Title of Regulation: 12VAC35-210. Regulations to Govern Temporary Leave from State Mental Health and State Mental Retardation Facilities (amending 12VAC35-210-10, 12VAC35-210-20, 12VAC35-210-30, 12VAC35-210-50 through 12VAC35-210-100).

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

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: February 6, 2019.

Effective Date: February 21, 2019.

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, 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: 12VAC35-210 includes definitions, required policy, and documentation expectations related to temporary leave from mental health hospitals and training centers operated by the Department of Behavioral Health and Developmental Services. Collectively, these hospitals and training centers are referred to as "state facilities." As long as the department operates state facilities, this regulation is needed to ensure the safety of the individuals on leave.

This action is the result of a periodic review. The amendments are not substantive and merely update language to mirror language in the Code of Virginia or in 12VAC35-115, referred to as the Human Rights Regulations. 

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, state regulation, or practices that have been in place for many years.

Substance: There are no substantive amendments. 12VAC35-210-100 F is deleted as it is unnecessary because there is no other reference to how to "revoke" a trial visit and it is redundant with 12VAC35-210-100 D 2.

Issues: This action is the result of a periodic review, which includes a public comment period. The amendments will provide clarity for 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 update text to mirror language in § 37.2-100 of the Code of Virginia² and 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.³

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

Estimated Economic Impact. The Regulations to Govern Temporary Leave from State Mental Health and Mental Retardation Facilities are designed to: 1) inform individuals, authorized representatives, Department of Behavioral Health and Developmental Services (DBHDS) employees, community services board (CSB) staff, and pertinent stakeholders of the process and procedures related to temporary leave from state facilities, and 2) establish the conditions for granting leave, including provisions to ensure accountability and appropriate care for persons who are on leave status.

The Board's proposal to update language to mirror the Code of Virginia and 12VAC35-115 provides improved clarity and does not affect requirements in practice. 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 regulation affects the 14 DBHDS facilities, 40 Virginia CSBs, and the individuals receiving services in DBHDS facilities and their families.⁴

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 use 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.

_____________________________

¹See http://townhall.virginia.gov/L/ViewPReview.cfm?PRid=1603

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

³See https://law.lis.virginia.gov/admincode/title12/agency35/chapter115/

⁴Data Source: Department of Behavioral Health and Developmental Services

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

Summary:

The amendments (i) clarify and update the regulatory text to reflect current language in § 37.2-100 of the Code of Virginia and 12VAC35-115 and long-standing practices and (ii) include changing "family visit" to "home visit" and updating the definition of "individualized services plan."

CHAPTER 210
REGULATIONS TO GOVERN TEMPORARY LEAVE FROM STATE MENTAL HEALTH AND STATE MENTAL RETARDATION FACILITIES

12VAC35-210-10. Authority and applicability Applicability.

This regulation is adopted pursuant to § 37.2-837 B of the Code of Virginia to establish a process to facilitate community integration and the conditions for granting a trial or home visit to individuals admitted to state hospitals or training centers operated by the Department of Mental Health, Mental Retardation and Substance Abuse Services.

This regulation shall not apply to individuals receiving services in a facility who are committed pursuant to Chapter 9 (§ 37.2-900 et seq.) of Title 37.2, Title 19.2, or Title 53.1 of the Code of Virginia.

12VAC35-210-20. Definitions.

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

"Authorized representative" or "AR" means a person permitted by law or the State Mental Health, Mental Retardation, and Substance Abuse Services Board's regulations regulation to authorize the disclosure of information; or to consent to treatment and services, or participation in human research; and to authorize the disclosure of information on behalf of an individual who lacks the mental capacity to make these decisions.

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

"Day pass" means authorized leave from the a state facility without a staff escort generally occurring during the day and not extending overnight.

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

"Family" "Home visit" means an authorized overnight absence from a state hospital or training center that allows an individual to spend time with family members, an authorized representative, or other responsible person or persons.

"Individual" means a person who is receiving services in a state hospital or training center. This term includes the terms "consumer," "patient," "resident," and "client."

"Individualized services plan" or "ISP" means a comprehensive and regularly updated written plan that includes but is not limited to an describes the individual's needs, the measurable goals and objectives to address those needs, and strategies to reach the individual's goals. An ISP is person-centered, empowers the individual, and is designed to meet the needs and preferences of the individual. The ISP is developed through a partnership between the individual and the provider. An individual's treatment plan, functional plan, habilitation plan, person-centered plan, or plan of care are all considered individualized services plans that meets the needs and preferences of an individual and describes the measurable goals, objectives, and expected outcomes. 

"Missing person" means an individual who is not physically present when and where he should be and his absence cannot be accounted for or explained.

"Responsible person" means an individual's parent, spouse, legal guardian, relative, friend, or other person whom the facility director determines is capable of providing the individual with the needed care and supervision, and, if the individual has an AR, for whom the AR has given written consent to supervise the individual during temporary leave from the state facility.

"State facility" or "facility" means a state hospital or training center operated by the department for the care and treatment of individuals with mental illness or mental retardation intellectual disability.

"Trial visit" means an authorized overnight absence from a state facility without a staff escort for the purpose of assessing an individual's readiness for discharge. Trial visits do not include special hospitalizations, facility-sponsored summer camps, or other facility-sponsored activities that involve staff supervision.

12VAC35-210-30. General requirements for temporary leave.

A. Directors of state facilities shall develop written operating policies and procedures for authorizing and implementing the following types of temporary leave from the facility:

1. Day passes for periods that do not extend overnight;

2. Family Home visits and trial visits for a maximum of 28 consecutive days per episode for individuals in training centers; and

3. Family Home visits and trial visits for a maximum of 14 consecutive days per episode for individuals in state hospitals.

B. The justification for all temporary leave shall be documented in the ISP. This documentation shall include:

1. The reason for granting the specific type of leave;

2. The benefit to the individual;

3. How the individual participated in the decision-making related to temporary leave; and

4. How the leave addresses a specific objective or objectives outcome in the individual's ISP; and

5. The signature of the facility director or designee authorizing the temporary leave.

C. Responsible persons during leave.

1. Adults and emancipated minors receiving services in state hospitals who are granted a day pass, family home visit, or trial visit may be:

a. Placed in the care of a parent, spouse, relative, guardian, a facility licensed by the department or other a responsible person or persons; or

b. Authorized to leave the facility on his their own recognizance, when, in the judgment of the individual and the facility director, this leave is appropriate.

2. Individuals in training centers and minors receiving services in any state hospital, who are granted a day pass, family home visit, or trial visit, shall be placed, with the prior written consent of the AR, in the care of:

a. The parent, legal guardian, or LAR AR; or

b. Another relative, friend, or other responsible person or persons, or a facility licensed by the department with the prior written consent of the AR or a responsible person.

D. The state facility granting a trial or family home visit to an individual shall not be liable for his the individual's expenses during the period of that visit. Expenses incurred by an individual during a trial visit or family home visit shall be the responsibility of the person into whose care the individual is entrusted or the appropriate local department of social services of the county or city of in which the individual resided at the time of his admission to the facility, as appropriate, pursuant to § 37.2-837 B of the Code of Virginia.

12VAC35-210-50. Trial visits.

A. The facility and the CSB may arrange trial visits for the purpose of assessing an individual's readiness for discharge from the facility. These trial visits shall be planned during the regularly scheduled review of the ISP or at other times in collaboration with (i) the individual, (ii) the individual's family or AR, or (iii) any other person or persons requested by the individual. When trial visits are used in conjunction with discharge planning, the state facility treatment team shall meet with the individual to discuss his the individual's preferences for residential settings and give due consideration to his the individual's expressed preferences. If the treatment team cannot reasonably accommodate the individual's preferences, a member of the treatment team shall meet with the individual to discuss the reasons for this determination and the options that are available to him the individual. The treatment team shall document in the individual's record that it has met with the individual to consider his the individual's preferences and review the available options. All plans for trial visits shall be documented in the ISP and include consideration of the following:

1. The individual's preferences for residential setting; and

2. The individual's essential support needs for support and supervision requirements.

B. In advance of the trial visit, the facility shall work with the individual, CSB, and responsible persons, as appropriate, to develop an emergency contingency plan to ensure appropriate and timely crisis response.

12VAC35-210-60. Family Home visits.

A. Family Home visits may include visits with the individual's immediate or extended family, AR, friends, or other persons arranged by the family or AR.

1. Training centers shall plan family home visits in collaboration with the individual, his the individual's family or AR, and when appropriate, the CSB;

2. State hospitals shall plan family home visits in collaboration with the individual and his, the individual's family or AR, and when appropriate, the CSB.

B. When planning family home visits, facilities shall:

1. Ensure all identified essential support needs are reviewed with the responsible person;

2. Develop plans to address potential emergencies or unexpected events;

2. 3. Consider whether the visit has an impact on the treatment or training schedule for the individual and make appropriate accommodations; and

3. 4. Give consideration to the individual's medical, behavioral, and psychiatric status.

12VAC35-210-70. Required authorizations and documentation.

The facility shall not release individuals for day passes, trial visits, or family home visits unless the required authorizations have been obtained and documentation is included in the individual's record.

12VAC35-210-80. Illness or injury occurring during a family day, home, or trial visit.

A. When a facility is notified that an individual is injured or ill and requires medical attention while on a day pass, trial visit, or family home visit, the facility director or designee shall notify the (i) facility medical director, (ii) treatment team leader, (iii) risk manager, facility (iv) human rights advocate, and (iv) (v) the CSB. The facility director shall also ensure that all events are reported in accordance with department and facility policy and protocol for risk management and any applicable law or regulation.

B. The facility director or designee may assist the CSB or the responsible person to identify an appropriate setting for the evaluation and treatment of the individual. The facility medical director may also consult with the physician and any other medical personnel who are evaluating or treating the individual. However, the individual shall not return to the facility until he is medically stabilized.

C. Individuals who have been admitted to a state hospital on a voluntary basis and require acute hospital admission for illness or injury while on temporary leave from the state hospital may voluntarily return to the state hospital following discharge from an acute care hospital if they continue to meet the admission criteria.

D. If an individual has been legally committed to a state facility hospital and his length of stay in an acute care hospital exceeds the period of commitment to the state facility hospital, the facility hospital shall:

1. Discharge the individual in collaboration with the CSB; and

2. Notify the individual or his the individual's AR in writing of the discharge.

E. If the facility is notified that an individual has died while on temporary leave, the facility director or designee shall:

1. Notify the appropriate facility and other department staff, including, the medical director, risk manager, treatment team leader, and human rights advocate;

2. Notify the appropriate CSB and AR;

3. File the appropriate documentation of the death in accordance with department policies and procedures; and

4. Notify the state medical examiner in writing of the death in accordance with § 32.1-283 of the Code of Virginia.

12VAC35-210-90. Failure to return to training centers.

A. When an individual fails to return to a training center from any authorized day pass, family home visit, or trial visit within two hours of the scheduled deadline, the facility director or designee shall contact the responsible person into whose care the individual was placed to determine the cause of the delay.

B. Upon the request of the responsible person, the facility director may extend the period of a family home or trial visit for up to 72 hours beyond the time the individual was scheduled to return when:

1. An emergency or unforeseen circumstances delay the individual's return to the training center; and

2. The individual's AR agrees to the extension.

Extensions for emergency or unforeseen circumstances shall not be granted in advance of the family home visit or trial visit.

C. If an individual does not return to the training center from a day pass, trial visit, or family home visit within two hours of the established deadline for his the individual's return and the training center is unable to contact the responsible person into whose care the individual was placed, the facility director or designee may extend the period of the visit for up to 24 hours if, in his judgment, the extension is justified. During this period the facility shall continue efforts to contact the responsible person.

D. If an individual does not return to the training center and his the individual's absence cannot be accounted for or reasonably explained by the responsible person or a family member, he the individual shall be classified as a missing person, and the facility shall follow the department's policies and procedures for management of individuals who are missing.

E. If no emergency or unforeseen circumstances exist that may prevent the individual's return to the facility, and the responsible person does not agree to the return of the individual to the training center as scheduled, the facility director shall contact the CSB and discharge the individual. Written notification of discharge shall be sent to the individual's AR.

12VAC35-210-100. Failure to return to hospitals.

A. When an individual fails to return to a state hospital from any authorized day pass, family home visit, or trial visit within two hours of the scheduled deadline, the facility director or designee shall contact the responsible person into whose care the individual was placed to determine the cause of the delay.

B. Upon the request of the responsible person, the facility director may extend the period of the visit for up to 72 hours beyond the time the individual was scheduled to return when:

1. An emergency or unforeseen circumstances delay the individual's return to the hospital; and

2. The individual, or his if applicable, the individual's AR agree, agrees to the extension.

Extensions for emergency or unforeseen circumstances shall not be granted in advance of the family home visit or trial visit.

C. If an individual agrees to return to the facility, the facility director or designee may assist the individual to make arrangements for his return in collaboration with the CSB and the responsible person, when necessary.

D. If an individual is unwilling to return to the facility, the facility director or his facility director's designee shall contact the responsible person to determine whether continued hospitalization is appropriate or the individual should be discharged.

1. If Except for an individual receiving services in a state hospital who is held upon an order of a court for a criminal proceeding, if there is no evidence that the individual meets the criteria for hospitalization then the facility shall discharge the individual in collaboration with the CSB.

2. If the individual has been legally committed to the hospital and the facility director determines that the individual may require further hospitalization and he currently meets commitment criteria and requires further hospitalization, or that the individual cannot be located, the facility director shall:

a. Ensure that the commitment order is valid;

b. Classify the individual as a missing person;

c. Alert the CSB pursuant to the department's policies and procedures for managing management of individuals who are missing from state facilities;

d. Issue a warrant for the individual's return under § 37.2-834 of the Code of Virginia; and

e. Arrange for a physical examination at the time of the individual's return to the facility.

3. If the individual is on voluntary status or the commitment order is no longer valid, the facility director, after consulting with the appropriate clinical staff, shall:

a. Discharge the individual; and

b. Alert the CSB of the individual's status.

F. When it is determined that an individual who has been legally committed to the facility must be returned to the facility and the individual refuses to return on his own accord, the facility director or his designee shall:

1. Issue a warrant for the individual's return under § 37.2-834 of the Code of Virginia to the hospital; and

2. Contact the CSB upon revocation of the trial visit.