Title of Regulation: 12VAC35-190. Regulations for Voluntary Admissions to State Training Centers (amending 12VAC35-190-10, 12VAC35-190-21, 12VAC35-190-30).

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

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: December 12, 2018.

Effective Date: December 27, 2018.

Agency Contact: Ruth Anne Walker, Regulatory Coordinator, Department of Behavioral Health and Developmental Services, 1220 Bank Street, 11th Floor, Richmond, VA 23219, telephone (804) 225-2252, FAX (804) 786-8623, TTY (804) 371-8977, or email ruthanne.walker@dbhds.virginia.gov.

Basis: Section 37.2-203 of the Code of Virginia authorizes the State Board of Behavioral Health and Developmental Services to adopt regulations that may be necessary to carry out the provisions of Title 37.2 of the Code of Virginia and other laws of the Commonwealth administered by the commissioner and the department.

Purpose: This action is the result of a periodic review. No comments were received during the review. With only two exceptions the amendments are not substantive and merely update language to mirror language in the Code of Virginia or in 12VAC35-115, Regulations to Assure the Rights of Individuals Receiving Services from Providers Licensed, Funded, or Operated by the Department of Behavioral Health and Developmental Services. The two substantive changes are (i) the addition of the definition of "regional support team" (RST) and the function of the RST to the discharge planning process, which is initiated at admission, and (ii) the addition of the assistant commissioner having responsibility for the training center as part of the admission process. These two changes mirror practices that have been in place since 2012.

Rationale for Using Fast-Track Rulemaking Process: This action is the result of a periodic review. No comments were received during the review. The amendments merely update language to mirror current language in state law, regulation, or practices that have been in place since 2012.

Substance: The amendments (i) update definitions of authorized representative, community services board, and training center; (ii) add definitions of department, intellectual disability, individual, and regional support team; (iii) add "in consultation with" in two sections to include RSTs in the process described in 12VAC35-190-21 regarding applications for admission and the assistant commissioner having responsibility for the training center in 12VAC35-190-30 regarding the criteria for admission; and (iv) delete the definition for "mental retardation" and the term throughout the regulation.

Issues: This action is the result of a periodic review, which includes a public comment period. The proposed amendments will provide clarity for interested stakeholders and the system by providing updated language to mirror language in the Code of Virginia, 12VAC35-115, and current practice.

Small Business Impact Review Report of Findings: This fast-track regulatory action serves as the report of the findings of the regulatory review pursuant to § 2.2-4007.1 of the Code of Virginia.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. As the result of a periodic review,¹ the State Board of Behavioral Health and Developmental Services (Board) proposes to: 1) add a definition for "regional support team" (RST),² 2) specify that community services boards (CSB) must consult with the RST prior to preparing a preadmission screening to a state training center,³ 3) specify that the director of the training center consult with the assistant commissioner responsible for the training center in determining whether admission is appropriate, and 4) update language to mirror language in § 37.2-100 of the Code of Virginia⁴ or in 12VAC35-115, Regulations to Assure the Rights of Individuals Receiving Services from Providers Licensed, Funded, or Operated by the Department Of Behavioral Health and Developmental Services.⁵

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

Estimated Economic Impact:

Background. The Regulations for Voluntary Admissions to State Training Centers are designed to: 1) inform individuals, authorized representatives, Department of Behavioral Health and Developmental Services (DBHDS) employees, community services board staff, and pertinent stakeholders of the process and procedures related to admitting individuals with intellectual disabilities to state training centers, 2) educate responsible persons on the approved criteria for admission to training centers, and 3) inform individuals and authorized representatives of the appeal process if they should disagree with the admission decision.

In 2012, the federal government and Virginia entered into a settlement agreement⁶ concerning how the Commonwealth provides services to its intellectually and developmentally disabled population. As a result of that settlement agreement, RSTs were then created, and CSBs were required to consult with the RST prior to preparing a preadmission screening to a state training center. Additionally, the director of training centers have been required to consult with the assistant commissioner responsible for the training center in determining whether admission is appropriate.

Analysis. The proposal to update language to mirror the Code of Virginia and 12VAC35-115 provides improved clarity and does not affect requirements in practice. The existence of and requirement for consultation with RSTs, and the requirement for consultation with the assistant commissioner, have been legally required through the settlement agreement since 2012. Thus, the only impact of the proposed language amendments would be to better inform the public of current legal requirements and procedures. Consequently, the benefits of the proposed amendments exceed the costs.

Businesses and Entities Affected. The proposed amendments affect the 40 Virginia CSBs, 3 training centers operated by DBHDS, and 5 RSTs.⁷

Localities Particularly Affected. The proposed regulation does not disproportionately affect particular localities.

Projected Impact on Employment. The proposed amendments do not affect employment.

Effects on the Use and Value of Private Property. The proposed amendments do not affect the user and value of private property.

Real Estate Development Costs. The proposed amendments do not affect real estate development costs.

Small Businesses:

Definition

Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. The proposed amendments do not affect costs for small businesses.

Alternative Method that Minimizes Adverse Impact. The proposed amendments do not adversely affect small businesses.

Adverse Impacts:

Businesses. The proposed amendments do not adversely affect businesses.

Localities. The proposed amendments do not adversely affect localities.

Other Entities. The proposed amendments do not adversely affect other entities.

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¹See http://townhall.virginia.gov/l/ViewPReview.cfm?PRid=1601

²Regional support team is defined as "a group of professionals with expertise in serving individuals with developmental disabilities in the community appointed by the commissioner or his designee who provide recommendations to support placement in the most integrated setting appropriate to an individual's needs and consistent with the individual's informed choice."

³Training center is defined as "a facility operated by (DBHDS) that provides training, habilitation, or other individually focused supports to persons with intellectual disability."

⁴See https://law.lis.virginia.gov/vacode/title37.2/chapter1/section37.2-100/

⁵See https://law.lis.virginia.gov/admincode/title12/agency35/chapter115/

⁶See https://www.justice.gov/sites/default/files/crt/legacy/2012/09/05/va_orderapprovingdecree_8-23-12.pdf

⁷Data Source: Department of Behavioral Health and Developmental Services

Agency's Response to Economic Impact Analysis: The Department of Behavioral Health and Developmental Services concurs with the economic impact analysis.

Summary:

The amendments (i) specify that community services boards must consult with the regional support team regarding admissions, (ii) specify that the director of the training center consult with the assistant commissioner responsible for the training center in determining eligibility for admission, and (iii) update language.

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 acceptance of an individual in a training center.

"Authorized representative" or "AR" means a person permitted by law or regulation to authorize the disclosure of information or to 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.

"Commissioner" means the Commissioner of the Department of Behavioral Health and Developmental Services.

"Community services board" or "CSB" means the public body established pursuant to § 37.2-501 of the Code of Virginia that provides mental health, developmental, and substance abuse services to individuals within each city and county that established it. For the purpose of these regulations this chapter, CSB also includes a behavioral health authority established pursuant to § 37.2-602 of the Code of Virginia.

"Department" means the Department of Behavioral Health and Developmental Services.

"Discharge plan" means a written plan prepared by the CSB providing case management in consultation with the training center pursuant to §§ 37.2-505 and 37.2-837 of the Code of Virginia. This plan is prepared when the individual is admitted to the training center and documents the services to be provided upon discharge.

"Guardian" means:

1. For Minors minors -- an adult who is either appointed by the court as a legal guardian of 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.

2. For Adults 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 § 37.2-1000 64.2-2000 of the Code of Virginia.

"Individual" means a person with an intellectual disability for whom services are sought. This term includes the terms "consumer," "patient," "resident," and "client."

"Intellectual disability" means a disability originating before the age of 18 years, characterized concurrently by (i) significant 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.

"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" ("intellectual disability") means 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.

"Regional support team" or "RST" means a group of professionals with expertise in serving individuals with developmental disabilities in the community appointed by the commissioner or the commissioner's designee who provide recommendations to support placement in the most integrated setting appropriate to an individual's needs and consistent with the individual's informed choice.

"Training center" means a facility operated by the Department of Behavioral Health and Developmental Services for the treatment, department that provides training, or habilitation of, or other individually focused supports to persons with mental retardation (intellectual disability) intellectual disabilities.

12VAC35-190-21. Application for admission.

A. Requests for admission to a training center shall be processed through the CSB. A parent, guardian, or authorized representative seeking admission to a training center for an individual with mental retardation (intellectual disability) an intellectual disability shall apply first to the CSB that serves the area where the individual, or if a minor, his the minor's parent or guardian is currently residing. The CSB shall consult with the RST prior to preparing a preadmission screening.

B. If the CSB, in consultation with the RST, determines that the services for the individual are not available in the community or the individual chooses to obtain services in the state training center, the CSB shall forward a preadmission screening report, pursuant to § 37.2-806 B of the Code of Virginia, to the a training center serving individuals with mental retardation (intellectual disability) from that geographic section of the state in which the individual or, if a minor, his parent or guardian is currently residing intellectual disabilities.

C. The 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 housing or living arrangements; and

4. A psychological evaluation that reflects the individual's current functioning.

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

1. A current individualized education plan for school-aged individuals.

2. A vocational assessment for adults.

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

4. A statement from the individual, family member, or authorized representative requesting services in the training center.

12VAC35-190-30. Criteria for admission.

A. Upon the receipt of a completed preadmission screening report, the director of the training center or designee shall determine eligibility for admission based upon the following criteria:

1. The individual has a diagnosis of mental retardation (intellectual disability) an intellectual disability;

2. The diagnosis of mental retardation an intellectual disability has been made by a licensed professional; and

3. The training center has available space and service capacity to meet the needs of the individual.

B. If the director, in consultation with the assistant commissioner responsible for the training center or his designee, finds that admission is not appropriate, he the director shall state the reasons in a written decision and may recommend an alternative location for needed services.

C. 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 CSB.