Title of Regulation: 12VAC35-200. Regulations for Emergency and Respite Care Admission to State Training Centers (amending 12VAC35-200-10, 12VAC35-200-20, 12VAC35-200-30).

Statutory Authority: §§ 37.2-203 and 37.2-807 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) consultation with the assistant commissioner having responsibility for the training center as a part of the admission process. These two changes mirror practices that have been in place since 2012.

Chapter 8 (§ 37.2-800 et seq.) of Title 37.2 of the Code of Virginia allows for emergency or respite admissions to state training centers operated by the Department of Behavioral Health and Developmental Services (DBHDS). For an emergency situation that can be supported through a training center admission after all community resources have been exhausted, or family members or caregivers who seek relief through respite, this regulation is essential to protect the health, safety, and welfare of citizens because it makes clear the procedures for individual emergency and respite admissions to state training centers operated by the Department of Behavioral Health and Developmental Services.

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, individual, and training center; (ii) add definitions of admission, department, intellectual disability, and regional support team; (iii) add "in consultation with" to two sections to include RSTs in the process described in 12VAC35-200-20 regarding the application for admission and to include the assistant commissioner having responsibility for the training center in 12VAC35-200-30 regarding the criteria for admission; and (iv) delete the definition for "mental retardation" and the term wherever it appears 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 developmental services system, including DBHDS, community services boards, individuals receiving services, and their families, by providing updated language to mirror language in the Code of Virginia and 12VAC35-115, and current practice. There are no disadvantages to the public or the Commonwealth.

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 an application for respite care at a state training center,³ in determining whether respite care for the individual in question is available in the community, and in determining whether an application for emergency admission is appropriate due to a lack of services in the community; 3) specify that the director of the training center consult with the assistant commissioner responsible for the training center: in determining eligibility for respite care services or emergency admission, and whether the training center is able to provide emergency services; and 4) update language to mirror language in § 37.2-100 of the Code of Virginia⁴ or in 12 VAC 35-115, 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 Emergency and Respite Care Admission to State Training Centers are designed to: 1) inform individuals, authorized representatives, Department of Behavioral Health and Developmental Services (DBHDS) employees, CSB staff, and pertinent stakeholders of the process and procedures related to admitting individuals with an intellectual disability to state training centers for the purpose of providing emergency and respite supports, 2) educate responsible persons on the approved criteria for emergency and respite admissions 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 created, and CSBs were required to consult with the RST for the functions that are proposed to be added in this action. Additionally, the director of training centers have been required to consult with the assistant commissioner as described above.

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 amendments do 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=1602

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."

³Respite care is defined as "care provided to an individual with mental retardation (intellectual disability) on a short-term basis because of the emergency absence of or need to provide routine or periodic relief of the primary caregiver for the individual. Services are specifically designed to provide temporary, substitute care for that which is normally provided by the primary caregiver."

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 respite care services and emergency admissions, (ii) specify that the director of the training center consult with the assistant commissioner responsible for the training center in determining eligibility for respite care services or emergency admission, and (iii) update language.

12VAC35-200-10. 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 regulations to authorize the disclosure of information or to consent to treatment and services, including medical treatment, or for 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 a 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.

"Emergency admission" means the temporary acceptance of an individual with mental retardation (intellectual disability) an intellectual disability into a training center when immediate care is necessary and no other community alternatives are available.

"Guardian" means:

1. For 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 -- 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 respite or emergency 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.

"Less restrictive setting" means the service location that is no more intrusive or restrictive of freedom than reasonably necessary to achieve a substantial therapeutic benefit and protection from harm (to self and others) based on an individual's needs.

"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.

"Respite care" means care provided to an individual with mental retardation (intellectual disability) an intellectual disability on a short-term basis because of the emergency absence of or need to provide routine or periodic relief of the primary caregiver for the individual. Services are specifically designed to provide temporary, substitute care for that which is normally provided by the primary caregiver.

"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.

12VAC35-200-20. Respite care admission.

A. Applications for respite care in training centers shall be processed through the CSB providing case management. A parent, guardian, or authorized representative seeking respite care 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 an application for respite care. If the CSB, in consultation with the RST, determines that respite care for the individual is not available in the community, it the CSB shall forward an application to the a training center serving individuals with mental retardation (intellectual disability) from that geographic section of the state in which the individual or his parent or guardian is currently residing intellectual disabilities.

The application shall include:

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;

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

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

6. A vocational assessment for adults unless the training center director or designee determines that sufficient information as to the individual's abilities and needs is included in other reports received;

7. A statement from the CSB that respite care is not available in the community for the individual;

8. A statement from the CSB that the appropriate arrangements are being made to return the individual to the CSB within the time frame timeframe required under this regulation chapter; and

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

B. Determination of eligibility for respite care services shall be based upon the following criteria:

1. The individual has a diagnosis of mental retardation (intellectual disability) intellectual disability and meets the training center's regular admission criteria;

2. The individual's needs are such that, in the event of a need for temporary care, respite care would not be available in a less restrictive setting; and

3. The training center has appropriate resources to meet the needs of the individual.

By the end of the next working day following receipt of a complete application package, the training center director, or the director's designee, in consultation with the assistant commissioner responsible for the training center or the director's designee, shall provide written notice of his the director's decision to the CSB. This notice shall state the reasons for the decision.

If it is determined that the individual is not eligible for respite care, the person seeking respite care may ask for reconsideration of the decision by submitting a written request for such reconsideration to the commissioner. Upon receipt of such request, the commissioner or designee shall notify the training center director, and the training center director shall forward the application packet and related information to the commissioner or designee within 48 hours. The commissioner or designee shall provide an opportunity for the person seeking respite care to submit for consideration any additional information or reasons as to why the admission should be approved. The commissioner shall render a written decision on the request for reconsideration within 10 days of the receipt of such request and notify all involved parties. The commissioner's decision shall be binding.

C. Respite care shall be provided in training centers under the following conditions:

1. The length of the respite care stay at the training center shall not exceed the limits established in § 37.2-807 of the Code of Virginia;

2. Space and adequate staff coverage are available on a residential living area with an appropriate peer group for the individual and suitable resources to meet his needs; and

3. The training center has resources to meet the individual's health care needs during the scheduled respite stay as determined by a physical examination performed by the training center's health service personnel at the time of the respite admission.

If for any reason a person admitted for respite care is not discharged at the agreed upon time, the CSB shall develop an updated discharge plan as provided in §§ 37.2-505 and 37.2-837 of the Code of Virginia.

Respite shall not be used as a mechanism to circumvent the voluntary admissions procedures as provided in § 37.2-806 of the Code of Virginia.

12VAC35-200-30. Emergency admission.

A. In the event of a change in an individual's circumstances necessitating immediate, short-term care for an individual with mental retardation (intellectual disability) an intellectual disability, a parent, guardian, or authorized representative may request emergency admission by calling the CSB serving the area where the individual, or in the case of a minor, his the minor's parent or guardian resides. Under these circumstances if the CSB, in consultation with the RST, determines that services for the individual are not available in the community, it the CSB may request an emergency admission to the a training center serving that geographic area individuals with intellectual disabilities.

The CSB shall make every effort to obtain the same case information required for respite admissions, as described in 12VAC35-200-20 A, before the training center assumes responsibility for the care of the individual in need of emergency services. However, if the information is not available, this requirement may temporarily be waived if, and only if, arrangements have been made for receipt of the required information within 48 hours of the emergency admission.

B. Acceptance for emergency admission shall be based upon the following criteria:

1. A change in the individual's circumstances has occurred requiring immediate alternate arrangements to protect the individual's health and safety;

2. The individual has a diagnosis of mental retardation (intellectual disability) an intellectual disability and meets the training center's regular admissions criteria;

3. All other alternate care resources in the community have been explored and found to be unavailable;

4. Space is available on a residential living area with appropriate resources to meet the individual's needs;

5. The training center's health services personnel have determined that the individual's health care needs can be met by the training center's resources; and

6. The length of the emergency stay at the training center shall not exceed the limits established in § 37.2-807 of the Code of Virginia.

C. Within 24 hours of receiving a request for emergency admission, the training center director, or the director's designee, in consultation with the assistant commissioner responsible for the training center or his designee, shall inform the CSB whether the individual is eligible for emergency admission and whether the training center is able to provide emergency services.

If the training center is able to provide emergency services, arrangements shall be made to effect the admission as soon as possible.

If the training center is unable to provide emergency services to an eligible individual, the training center director or designee shall provide written notice of this determination to the CSB and may offer in consultation with department staff to try to obtain emergency services from another appropriate facility.

If for any reason a person admitted to a training center for emergency services is not discharged at the agreed upon time, the CSB shall develop a discharge plan as provided in §§ 37.2-505 and 37.2-837 of the Code of Virginia.