Title of Regulation: 12VAC35-190. Regulations Establishing Procedures for Voluntarily Admitting Persons Who Are Mentally Retarded to State Mental Retardation Facilities (amending 12VAC35-190-10, 12VAC35-190-21, 12VAC35-190-30, 12VAC35-190-41, 12VAC35-190-51).

Statutory Authority: §§ 37.2-203 and 37.2-806 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comments: Public comments may be submitted until December 26, 2008.

Agency Contact: Dawn Traver, Office of Mental Retardation Services, Department of Mental Health, Mental Retardation and Substance Abuse Services, P.O. Box 1797, 1220 Bank St., Richmond, VA 23218-1797, telephone (757) 253-4316, FAX (757) 253-5440, or email dawn.traver@co.dmhmrsas.virginia.gov.

Basis: The State Mental Health, Mental Retardation and Substance Abuse Services Board has the statutory authority under §§ 37.2-203 and 37.2-806 of the Code of Virginia to adopt these regulations.

Purpose: The action is necessary to clarify the current regulatory provisions and to ensure that individuals seeking admissions to state training centers have accurate legal guidance for seeking such admissions. These regulations are essential to protect the health and welfare of persons who are admitted to state training centers by requiring comprehensive preadmission screening and appropriate documentation on all persons who request admission. This helps to ensure that admissions to training centers are appropriate and the needs of the individual are addressed when an individual is admitted.

Substance: A definition for "authorized representative" has been added to be consistent with the terminology in the recently amended Human Rights Regulations, 12VAC35-115. The definition of "legally authorized representative" has been stricken.

A definition of "licensed professional" has been added and the regulations are revised to require an individual to have a diagnosis of mental retardation made by a licensed professional to be considered eligible for admission to a training center.

The timeframe for the director of a facility to make a decision on an admission request has been reduced from 30 working days to 10 working days from the receipt of the complete preadmission screening report.

Some language and terminology has been revised for clarity and consistency with the Code of Virginia and other regulations of the board.

Issues: Throughout the regulations language changes have been made to support the concept of person-centeredness and a consumer-driven system of services. These changes include the replacement of the word "applicant" with "individual." Some provisions are reorganized and revised to promote clarity and facilitate the process for members of the public seeking admissions to training centers.

The length of time allowed for the director of a facility to make a decision on an admission request is reduced from 30 working days to 10 working days from the receipt of a completed preadmission training report. This should be reasonable timeframe for the agency and the public.

The definition of "authorized representative" is updated to conform to the recently amended Human Rights Regulations. The definition of "case management community services board" has been revised to be consistent with the Code of Virginia and other agency documents. This will eliminate confusion and promote consistent regulatory and administrative processes.

The regulations have been changed to require that a diagnosis of mental retardation is made by a "licensed professional" rather than an "interdisciplinary team." The term "licensed professional" is defined. This is consistent with current professional practice.

There are no other pertinent matters of interest to the regulated community, government officials, and the public. No disadvantages to the public or the Commonwealth are noted.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of State Mental Health, Mental Retardation and Substance Abuse Services proposes to reduce the time frame to make a decision on a request for admission to a state facility from 30 working days to 10 working days. Also, the Board proposes that the diagnosis of mental retardation is made by a licensed professional. Finally, the Board proposes a number of other changes to update the references to the Virginia Code and update specific terms for clarity and consistency.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. The Board of State Mental Health, Mental Retardation and Substance Abuse Services (the Board) proposes to reduce the time frame to make a decision on a request for admission to a state facility from 30 working days to 10 working days. According to the Department of Mental Health, Mental Retardation and Substance Abuse Services (DMHMRSAS), these decisions are currently made within the 10 working days already. Thus, as the proposed changes will more accurately reflect the practice already followed, no significant economic effect is expected.

Also, the Board proposes that the diagnosis of mental retardation is made by a licensed professional. Similar to the previous proposed change, the diagnosis is already made by a licensed professional and no change in practice is expected. Consequently, no significant effect is likely to result from this proposed change.

Finally, the Board proposes a number of other changes to update the references to the Code Virginia and update specific terms for clarity and consistency. None of these changes are expected to result in any significant economic impact.

In summary, none of the proposed changes are expected to create any significant economic impact, but are expected to improve the clarity and consistency of the regulations with the current practices in place and with the correct references to the Code of Virginia.

Businesses and Entities Affected. The proposed regulations apply to five state training centers, 39 local community boards and behavioral health authorities. Approximately, 50 requests are made for admission to a state facility annually.

Localities Particularly Affected. The proposed regulations apply throughout the Commonwealth.

Projected Impact on Employment. The proposed changes are not expected to create any significant impact on employment.

Effects on the Use and Value of Private Property. The proposed changes are not expected to create any significant impact on the use and value of private property.

Small Businesses: Costs and Other Effects. There are no significant costs or other effects expected on small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. No adverse effect on small businesses are anticipated.

Real Estate Development Costs. No significant real estate development costs are anticipated.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB’s best estimate of these economic impacts.

Agency's Response to the Department of Planning and Budget's Economic Impact Analysis: The agency concurs with the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

This action revises the statutory references to reflect the recent recodification of Title 37.1 to Title 37.2 of the Code of Virginia. Changes have been made to definitions of "authorized representative," "case management community services board," "mental retardation" and several other terms for clarity and consistency with the Code of Virginia and other regulations of the board. The application process and requirements are revised to require that the diagnosis of mental retardation be made by a "licensed professional," which has been defined in the regulations. The required timeframe for a decision on a request for admission has been reduced from 30 to 10 working days from the date of receipt of the completed application package.

CHAPTER 190
REGULATIONS ESTABLISHING PROCEDURES FOR VOLUNTARILY ADMITTING PERSONS WHO ARE MENTALLY RETARDED VOLUNTARY ADMISSIONS TO STATE MENTAL RETARDATION FACILITIES TRAINING CENTERS

12VAC35-190-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Admission" means placement of an individual in a residential facility for individuals with mental retardation as defined in this chapter so that the facility becomes the individual's primary locus of care, treatment, and training center.

"Authorized representative" means a person permitted by law or regulation to authorize the disclosure of information and consent to treatment and services, including medical treatment, or the participation in human research on behalf of an individual who lacks the mental capacity to make these decisions.

"Case management community services board (CSB)" or "CSB" means a citizens board the public body established pursuant to § 37.1-195 § 37.2-501 of the Code of Virginia that serves the area in which an adult resides or in which a minor's parent, or guardian or legally authorized representative resides. The case management CSB is responsible for case management, liaison with the facility when an individual is admitted to a state training center, and predischarge planning. If an individual, or the parents, guardian or legally authorized representative on behalf of an individual, chooses to reside in a different locality after the individual's discharge from the facility, the community services board serving that locality becomes the case management CSB and works with the original case management CSB, the individual receiving services and the state facility to effect a smooth transition and discharge. For the purpose of these regulations, CSB also includes a behavioral health authority established pursuant to § 37.2-602 of the Code of Virginia.

"Commissioner" means the Commissioner of the Department of Mental Health, Mental Retardation and Substance Abuse Services.

"Discharge plan" or "predischarge plan" means a written plan prepared by the case management CSB in consultation with the state facility training center pursuant to § 37.1-197.1 § 37.2-505 of the Code of Virginia. This plan is prepared when the individual is admitted to the facility training center and documents the planning for services after discharge.

"Facility" means a state training center for individuals with mental retardation under the supervision and management of the Commissioner of the Department of Mental Health, Mental Retardation and Substance Abuse Services.

"Guardian" means:

For Minors -- An an adult who is either appointed by the court as a legal guardian of said a minor or exercises the rights and responsibilities of legal custody by delegation from a biological or adoptive parent, upon provisional adoption or otherwise by operation of law.

For Adults -- a person appointed by the court who is responsible for the personal affairs of an incapacitated adult under the order of appointment. The responsibilities may include making decisions regarding the individual's support, care, health, safety, habilitation, education and therapeutic treatment. Refer to definition of "incapacitated person" at § 37.1-134.6 § 37.2-1000 of the Code of Virginia.

"Legally authorized representative" means a person permitted by law or regulations to give informed consent for disclosure of information and give informed consent to treatment, including medical treatment and participation in human research on behalf of an individual who lacks the mental capacity to make these decisions.

"Licensed professional" means a licensed psychologist, licensed professional counselor, or other individual who holds a valid professional license and has appropriate training in intellectual testing.

"Mental retardation" means substantial subaverage general intellectual functioning which originates during the developmental period and is associated with impairment in adaptive behavior. a disability originating before the age of 18 years, characterized concurrently by (i) significantly subaverage intellectual functioning as demonstrated by performance on a standardized measure of intellectual functioning, administered in conformity with accepted professional practice, that is at least two standard deviations below the mean; and (ii) significant limitations in adaptive behavior as expressed in conceptual, social, and practical adaptive skills.

12VAC35-190-21. Application for admission process.

A. Requests for admission to a facility training center shall be processed through the case management CSB. A parent, guardian, or legally authorized representative seeking admission to a facility training center for an individual with mental retardation shall apply first to the CSB that serves the area where the applicant individual, or if a minor, his parent, or guardian, or legally authorized representative is currently residing.

B. If the case management CSB determines that the services for the individual are not available in the community or the individual chooses to obtain services in the state facility training center, the CSB shall forward a prescreening preadmission screening report, pursuant to § 37.1-65.1 B § 37.2-806 B of the Code of Virginia, to the facility training center serving individuals with mental retardation from that geographic section of the state in which the applicant individual or, if a minor, his parent, or guardian, or legally authorized representative is currently residing.

C. The prescreening preadmission screening report shall include at a minimum:

1. An application for services;

2. A medical history indicating the presence of any current medical problems as well as the presence of any known communicable disease. In all cases, the application shall include any currently prescribed medications as well as any known medication allergies;

3. A social history and current status housing or living arrangements; and

4. A psychological evaluation that has been performed in the past three years unless the facility director or designee determines that sufficient information as to the applicant's abilities and needs is included in other reports received; reflects the individual's current functioning.

D. The preadmission screening report shall also include the following, as appropriate:

5. 1. A current individualized education plan for school-aged applicants unless the facility director or designee determines that sufficient information as to the applicant's abilities and needs is included in other reports received; individuals.

6. 2. A vocational assessment for adult applicants unless the facility director or designee determines that sufficient information as to the applicant's abilities and needs is included in other reports received; and adults.

7. 3. A completed discharge plan outlining the services to be provided upon discharge and anticipated date of discharge.

12VAC35-190-30. Determination of suitability Criteria for admission.

A. Within 30 working days from the receipt of the completed prescreening report, the director of the facility, or his designee, shall notify the case management CSB in writing of the determination on the admission request.

B. Determination of suitability A. Upon the receipt of a completed preadmission screening report, the director of the training center or designee shall determine eligibility for admission by the director shall be based upon the following criteria and shall be so stated in his written decision:

1. The individual has a primary diagnosis of mental retardation;

2. The diagnosis of mental retardation has been made by an interdisciplinary team of qualified mental retardation professionals upon review of the completed prescreening report a licensed professional; and

3. The facility training center has available space, training, treatment, and habilitation services appropriate and service capacity to meet the needs of the individual.

B. If the director finds that admission is not appropriate, he shall state the reasons in a written decision and may recommend an alternative location for needed services.

C. If the director finds that the applicant is not suitable for admission to the facility, he shall state the reasons for his decision and may recommend alternative locations for needed services. Within 10 working days from the receipt of the completed preadmission screening report, the director of the training center or designee shall provide the written decision on the admission request to the case management CSB.

12VAC35-190-41. Requests for reconsideration of the director's determination.

In the event that (i) the case management CSB making the request for admission, or (ii) a person seeking admission to a facility, the parent, guardian, or authorized representative applying on behalf of an individual disagrees with the determination of the director, the CSB, or person seeking admission, or both they may request a reconsideration of the determination by submitting a request in writing to the commissioner within 10 working days of receiving such determination. Upon receipt of a request for reconsideration, the commissioner shall notify the facility training center director and the facility training center director shall forward the prescreening preadmission screening report package and related information to the commissioner within 48 hours. The commissioner shall also provide an opportunity for the person individual requesting reconsideration to submit for review any additional information or reasons why the admission should be approved. The commissioner shall render a written decision on the request for reconsideration within 30 calendar days of the receipt of the request and notify all involved parties. The commissioner's decision shall be binding.

12VAC35-190-51. Procedure for admission Judicial certification.

Upon receipt of written notification from the facility training center director that an individual is suitable eligible for admission, the case management CSB will shall inform the individual or and the individual's parent, guardian, or legally authorized representative of this decision and assist the parent, guardian, or legally authorized representative in initiating a judicial proceeding pursuant to § 37.1-65.1 § 37.2-806 of the Code of Virginia. When the judge has certified that the individual is eligible for admission to a facility training center in accordance with subsection C3 of § 37.1-65.1 § 37.2-806 F of the Code of Virginia, a date for admission to the facility will training center shall be established.