TITLE 12. HEALTH

STATE BOARD OF BEHAVIORAL HEALTH AND DEVELOPMENTAL SERVICES

Fast-Track Regulation

Title of Regulation: 12VAC35-260. Certified Recovery Residences (amending 12VAC35-260-10, 12VAC35-260-20).

Statutory Authority: §§ 37.2-203 and 37.2-431.1 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: September 24, 2025.

Effective Date: October 9, 2025.

Agency Contact: Susan Puglisi, Regulatory Research Specialist, Department of Behavioral Health and Developmental Services, Jefferson Building, 1220 Bank Street, Fourth Floor, Richmond, VA 23219, fax (804) 371-6638, TDD (804) 371-8977, or email susan.puglisi@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 necessary to carry out the provisions of Title 37.2 of the Code of Virginia and other laws of the Commonwealth administered by the Department of Behavioral Health and Developmental Services (DBHDS). Section 37.2-431.1 of the Code of Virginia authorizes DHBDS to certify recovery residences in accordance with regulations developed by the board.

Purpose: Treatment and recovery services offer individuals with substance use disorders the opportunity to work towards achieving healthier lifestyles. Recovery residences are intended to provide stable, drug-free and alcohol-free housing and increase rates of successful recovery; however, a return to substance use happens for some individuals, increasing the risk for overdose. This action is intended to promote increased accountability in recovery residence settings. Reporting deaths and serious injuries in certified recovery residences will allow the state to begin tracking these occurrences, which will help inform the General Assembly and DBHDS where additional resources are potentially needed to prevent such incidents from occurring in these settings, thereby improving public health, safety, and welfare.

Rationale for Using Fast-Track Rulemaking Process: This action is expected to be noncontroversial and therefore appropriate for the fast-track rulemaking process because it aligns the regulation with statute.

Substance: Pursuant to Chapter 30 of the 2024 Acts of Assembly, the amendments (i) add a definition of "serious injury" and (ii) require that any certified recovery residence in Virginia report any death or serious injury that occurs in the recovery residence to DBHDS.

Issues: The primary advantage to the public is that the amendments will provide the Commonwealth, including the General Assembly, with more data about any such death or injury so that the state can make informed decisions. There are no disadvantages to the public. The primary advantage to the agency is receiving more data on what is occurring with individuals across the state in recovery residences. A manageable disadvantage for the agency is that a new reporting process needs to be put in place for recovery residences to report deaths and serious injuries similarly to licensed facilities reporting these occurrences.

Department of Planning and Budget Economic Impact Analysis:

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 Code of Virginia and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. To fulfill a 2024 legislative mandate, the State Board of Behavioral Health and Developmental Services (board) seeks to add a reporting requirement for deaths and serious injuries that occur at certified recovery residences. The proposed language is nearly identical to current reporting requirements for providers licensed by the Department of Behavioral Health and Developmental Services (DBHDS).

Background. Recovery residences are intended to provide stable drug and alcohol-free housing in order to increase rates of successful recovery for individuals with substance use disorders. However, some individuals may return to substance use, and DBHDS reports that the risk for overdose can increase when this occurs. DBHDS also reports that individuals have died in such settings and in some cases have remained undiscovered for days. Family members impacted by such deaths have advocated for increased reporting and accountability in such settings. As a result of such advocacy, Chapter 30 of the 2024 Acts of Assembly amended § 37.2-431.1 of the Code of Virginia to state that board regulations shall require recovery residences to report to the department any death or serious injury that occurs in the recovery residence. Accordingly, the board proposes to make the following changes: 12VAC35-260-10 adds a definition of "serious injury" to mean any injury resulting in bodily hurt, damage, harm, or loss that requires medical attention by a licensed physician, doctor of osteopathic medicine, physician assistant, or nurse practitioner. This definition is identical to the DBHDS licensing regulations, 35VAC105-20; and 12VAC35-260-20 adds that each recovery residence shall report deaths and serious injuries within 48 hours of discovery, including deaths that occur in a hospital as a result of illness or injury while the individual was in a recovery residence. All reports would have to include (i) the date and place of the death or serious injury, (ii) nature of the injuries, and (iii) circumstances of the death or serious injury. These requirements are identical to the requirements for licensed providers (in 35VAC115-230 B 3) except to allow 48 hours rather than 24, which the board considered to be more realistic. The proposed language does not specify the manner of reporting. However, DBHDS reports that a reporting link was circulated to certified residences via credentialing bodies, via email, with instructions and during scheduled monthly reporting meetings.

Estimated Benefits and Costs. The proposed change would meet the requirements of § 37.2-431.1 of the Code of Virginia and benefit individuals in recovery residences as well as their families by providing greater transparency and oversight. DBHDS reports that the cost of establishing a reporting system for recovery residences to report deaths or serious injuries can be absorbed within existing agency information technology and staff resources. Although recovery residences may incur costs in filing a report in the event of a serious injury or death, DBHDS anticipates that recovery residences can absorb such costs within their existing operations. The reporting requirements may also incentivize some residences to implement better monitoring, if they have not already, to ensure a faster response to any serious injuries or deaths.

Businesses and Other Entities Affected. DBHDS reports indicate that there are 279 certified recovery residences as of April 2025.² The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.³ An adverse impact is indicated if there is any increase in net cost or reduction in net benefit for any entity, even if the benefits exceed the costs for all entities combined.⁴ Since the proposed requirements are mandated by statute, no adverse impact is indicated.

Small Businesses⁵ Affected.⁶ Most recovery residences likely meet the definition of small businesses; however, some may operate as a nonprofit. However, the proposed amendments would not create new costs that are not required by statute. Thus, the proposed amendments do not adversely affect small businesses.

Localities⁷ Affected.⁸ The proposed amendments do not disproportionately affect particular localities or affect costs for local governments.

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

Effects on the Use and Value of Private Property. The proposed amendments affect neither the use and value of private property nor real estate development costs.

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¹ Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

² See https://dbhds.virginia.gov/office-of-recovery-services/recovery-residences/. There are 111 recovery residences under Oxford House and 168 under VARR.

³ Pursuant to § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.

⁴ Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation. As a result, DPB has adopted a definition of adverse impact that assesses changes in net costs and benefits for each affected Virginia entity that directly results from discretionary changes to the regulation.

⁵ Pursuant to § 2.2-4007.04, 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."

⁶ If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

⁷ "Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

⁸ Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

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

Summary:

Pursuant to Chapter 30 of the 2024 Acts of Assembly, the amendments (i) add a definition of "serious injury" and (ii) require that any certified recovery residence in Virginia report any death or serious injury that occurs in the recovery residence to the Department of Behavioral Health and Developmental Services.

12VAC35-260-10. Definitions.

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

"Certification list" means the list of certified recovery residences maintained by DBHDS.

"Credentialing entity" means a nonprofit organization that develops and administers professional certification programs according to standards of the National Alliance for Recovery Residences or standards endorsed by Oxford House, Inc.

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

"Level of support" means the level of support and structure that a recovery residence provides to residents, as specified in the standards of the National Alliance for Recovery Residences.

"Recovery residence" means a housing facility that (i) is certified by DBHDS in accordance with this chapter; (ii) provides alcohol-free and illicit-drug-free housing to individuals with substance abuse disorders and individuals with co-occurring mental illnesses and substance abuse disorders; and (iii) does not include clinical treatment services.

"Serious injury" means any injury resulting in bodily hurt, damage, harm, or loss that requires medical attention by a licensed physician, doctor of osteopathic medicine, physician assistant, or nurse practitioner.

12VAC35-260-20. Recovery residence.

A. Any person, nonprofit organization, or business entity seeking to operate a recovery residence under this chapter shall for each location (i) meet the qualifications, policies, and practices of a credentialing entity and hold a credential, accreditation, or charter from the Virginia Association of Recovery Residences or Oxford House, Inc.; and (ii) be certified by DBHDS.

B. A recovery residence seeking to be certified by DBHDS shall:

1. Submit a completed application on a form provided by DBHDS;

2. Provide evidence of accreditation by a charter from or membership in a credentialing entity listed in this section; and

3. Provide evidence that the recovery residence complies with any minimum square footage requirements related to beds and sleeping rooms established by the credentialing entity or the square footage requirements set forth in § 36-105.4 of the Code of Virginia, whichever is greater.

C. Each recovery residence shall report the following information concerning deaths and serious injuries to DBHDS in a manner prescribed by DBHDS within 48 hours of discovery. All deaths that occur as a result of illness or injury occurring when the individual was in a recovery residence shall be reported regardless of the location where the death occurs. All reports of death and serious injuries shall include:

1. Date and place of the death or serious injury;

2. Nature of the injuries; and

3. Circumstances of the death or serious injury.