Human Rights Licensing

No. Per 12VAC35-115-30 “Licensed professional” means a licensed physician, licensed clinical psychologist, licensed professional counselor, licensed clinical social worker, licensed or certified substance abuse treatment practitioner, or licensed psychiatric nurse practitioner. 

LBA’s are authorized to write, revise and oversee restrictive and nonrestrictive behavior plans per specifical authority given to them in 12VAC35-115-105(B). Because LBA’s are not identified in the defined list as a “licensed professional,” LBA’s are not permitted to assess the clinical necessity of restrictions being implemented under 12VAC35-115-50(C), or to perform capacity evaluations under 12VAC35-115-145.  

Yes. If the licensed-eligible clinician is registered with their respective Board (e.g., Board of Counseling, Virginia Board of Social Work) and has a valid and enforceable supervisory contract with a licensed professional (see 12VAC35-115-30) which includes having their work reviewed and signed off on by the licensed professional, the licensed-eligible clinician may assess and determine the need for a restriction under 12VAC35-115-50. 

Any restriction, both under section 50 or 100, lasting longer than 7 days or being imposed 3 or more times within a 30-day period must be reviewed and approved by the LHRC. The Restrictions to Dignity and Freedoms of Everyday Life Request for LHRC Review form must be completed. Please check with your assigned Regional Advocate for instructions on submission of the form.

No. Court-ordered restrictions do not need LHRC review. Per 12VAC35-115-100 (B)(5), “Providers shall obtain approval of the LHRC of any restriction imposed [emphasis added] on an individual’s rights under [emphasis added] this subsection or 12VAC35- 115-50 that lasts longer than seven days or is imposed three or more times during a 30- day-time period.”  

Additionally, per 12VAC35-115-100 (B)(4), restrictions that are imposed by the court are not “imposed under” the human rights regulations. All that is necessary for court ordered restrictions is that they be documented in the Individual’s services record, in accordance with 12VAC35-115-100 (B)(4) that reads: “If a court has ordered the provider to impose the restriction or if the provider is otherwise required by law to impose the restriction, the restriction shall be documented in the individual’s services record.” 

This timeframe is variable; however, decisions made during the LHRC meeting are effective immediately. Providers should confer with their assigned Regional Advocate or Human Rights Advocate to be placed on the agenda for an LHRC review or other LHRC business.

LHRC review of restrictions to an Individuals assured rights under 12VAC35-115-50 and 12VAC35-115-100 may occur AFTER implementation. This may happen as the “three or more times in a 30-day period” and “lasting longer than 7 days” thresholds are met. However, the Advocate must be notified of proposed restrictions to assured rights under Dignity (12VAC35-115-50) and the reasons for the proposed restriction PRIOR to implementation. If LHRC review occurs after a restriction has been implemented; the Provider must ensure the restriction is at all times justified and carried out according to sections 50 and/or 100 of the Human Rights Regulations (HRR). 

Yes, a behavioral plan can suggest or include Provider use of arm guards. While not required, it is encouraged to include this in the behavior plan to educate everyone as to how the arm guards are supposed to be used, under what circumstances they are to be used, and by whom; in effort to reduce the likelihood of improper use on or with the individual. Arm guards for a provider staff do not require LHRC review because they do not limit the individual’s freedom of movement (restriction), and they are not being applied to the individual’s body at all or in a way that prevents them from taking them off or moving their body freely (restraint). 

Yes. LHRC Review forms should not contain any PHI/PII. In addition, any information submitted along with the form must have all PHI/PII redacted prior to submission. Please consult your assigned Regional Advocate for questions about what should be redacted, and for instructions on the method used to code the forms for tracking purposes.

Per 12VAC35-115-30. Definitions, “Independent review committee” means a committee appointed or accessed by a provider to review and approve the clinical efficacy of the provider’s behavioral treatment plans and associated data collection procedures. An independent review committee shall be composed of professionals with training and experience in behavior analysis and interventions who are not involved in the development of the plan or directly providing services to the individual.  

It is fine to develop an IRC – but not be part of the review of a plan that you are involved with. IRCs should consist of three (3) or more professionals. Any restrictive Behavioral Plan must go before an IRC for review of the technical adequacy of the Plan prior to the required LHRC review, and it must continue to be reviewed by the IRC quarterly. See 12VAC35-115-105 Behavioral Treatment Plans, specifically -105(C)(3), -105(E) and -105(G).  

Providers have the option to join resources with other providers. This is a common model in Northern Virginia. Accessing a local Community Services Board or other private providers that are potentially open to reviewing outside plans is additionally acceptable, upon confidentiality procedures being established. 

No. A provider is expected to utilize approved crisis management strategies in an emergency, as described in the program’s policies and procedures. 

No. Providers can utilize restraint in an emergency consistent with their approved policies. The requirement for ONLY implementing restraint AFTER a licensed professional or LBA has conducted a detailed and systematic assessment is connected to the use of restraint that is written into a Behavioral Treatment Plan. 

Providers receive a signed copy of the LHRC Review Form at the conclusion of the LHRC meeting. Professionals should review the document with the provider. Draft minutes from every LHRC meeting are also posted within three business days after the meeting occurs.  

While a legal guardian has the legal authority to request the Provider to impose a restriction on the Individual served, it is the Provider’s duty and responsibility to assess the need for the restriction according to the Individual’s health, safety, and welfare; to ensure the restriction, if imposed, does not conflict with the individual’s assured rights and if imposed, is done so in accordance with processes required in the HRR. See 12VAC35-115-50 and 12VAC35-115-100.  

Providers licensed, funded, or operated by DBHDS are subject to the HRR, and therefore, any person who is employed by a DBHDS Provider is subject to the HRR.  When a parent or legal guardian is employed by a DBHDS provider (for example as a Sponsor Provider), incidents that qualify as reportable must be reported. 

Providers are required to submit annual data about the use of restraint (and seclusion) by January 15 for the prior calendar year. Otherwise, only instances of unauthorized restraint or restraint that resulted in a complaint are reportable in real time. 

Providers are prohibited from issuing standing orders for the use of seclusion or restraint (pharmacological, or otherwise) for behavioral purposes (see 12VAC35-115- 110). 

Restraint is the last resort and whether it is appropriate in any situation is a matter of professional/clinical judgment. Emergency is defined as a “situation that requires a person to take immediate action to avoid harm, injury, or death to an individual or to others.” Pharmacological restraint means “the use of a medication that is administered involuntarily for the emergency control of an individual’s behavior when that individual’s behavior places him or others at imminent risk and the administered medication is not a standard treatment for the individual’s medical or psychiatric condition.” When use of the PRN is not voluntary, and it is used to address behavior creating imminent risk, it is a pharmacological restraint. Under these circumstances, the Provider must adhere to a doctor’s order with instructions and criteria for use and discontinuation of the PRN. If a Provider utilizes pharmacological restraint, they must have a restraint policy to specifically include pharmacological restraint, and best practice is to also have a protocol in place specific to the Individual that details when to provide the PRN medication in an emergency. 

A restraint is the use of a mechanical device, medication, physical intervention, or hands-on hold to prevent an Individual from moving his body to engage in a behavior that places him or others at imminent risk. If an Individual needs certain supports to increase their functioning, and the Individual voluntarily chooses to use the support or protective equipment, the use of the support or protective equipment is not considered to be a restraint. This means that the Individual can remove the device when they want. The use of protective equipment used for a protective purpose does not require LHRC review. 

Using a physical hold, medication, or mechanical device to limit mobility of an Individual for medical, diagnostic, or surgical purposes does not require LHRC review. Restraints for Medical Purposes are specific and are related to specific medical procedures. The required protections as outlined in 12VAC35-115-100 (B)(3)(a-e) of the HRR must be documented in the Individual’s services record. 

Any Provider (e.g., residential, inpatient, community-based, state operated facility) may implement program rules. Note providers of services subject to the Home and Community Based Services Settings Rule should consult with DMAS. What is significant to understand about program rules is that they are standards of conduct for all Individuals within the program and may not be in conflict with the HRR. See 12VAC35-115-100(B)(7). 

Yes. Per 12VAC35-115-260(A)(9) providers shall submit to the Human Rights Advocate for review and comment proposed policies, procedures, or practices that may affect individual human rights. 

As documented in 12VAC35-115-30 of the Human Rights Regulations (HRR), the director is the chief executive officer of any Provider delivering services. In organizations that also include services not covered by the HRR, the director is the chief executive officer of the services or services licensed, funded, or operated by the department. 

The HRR in 12VAC35-115-260 (A)(8) requires Providers’ compliance with all state laws concerning the reporting of abuse and neglect. Providers, as mandated reporters, should report all allegations of abuse and neglect to the appropriate office at the time of discovery. 

“Medication Error” means a mistake by the Provider in administering medication to an Individual receiving a licensed service and includes when any of the following occur:  

• The wrong medication is given to an Individual.
• The wrong dosage of a medication is given to an Individual.
• The wrong method is used to give the medication to the Individual.
• The medication is given to an Individual at the wrong time, or not at all.  

When a Provider discovers a medication error that occurred during the provision of their licensed service(s), and the information known at the time of discovery indicates abuse or neglect, or there is an allegation of abuse or neglect as defined in 12VAC35- 115-30, the Provider should enter an Abuse report into CHRIS and conduct an investigation.  

When the information known at the time of discovery does not involve an allegation or indicate abuse or neglect, as defined in 12VAC35-115-30, the Provider should follow their own policy for internal review to include any protocols for monitoring the Individual and documenting the event. 

If the documentation error did not result in, or have the potential to result in, a serious injury, and the Individual or AR has not filed a complaint, it does not need to be reported. 

ALL deaths, ALL falls, ALL medication errors. Only incidents where there is a complaint, or the provider has suspicion that a human rights violation occurred are reportable. Abuse/Neglect that does not occur during the provision of the provider’s service, and the alleged abuser is not an employee, contractor, or volunteer of the provider. 

Contact the Regional Manager for the area where the DBHDS provider (who is involved in the alleged violation occurred) is located. You do not need to know all the details, but it is helpful to be able to relay the name of the individual(s) involved, any involved staff names or titles, and the date(s) of the alleged rights violation. 

“Immediately” on the same day a provider is made aware of a complaint alleging abuse/neglect, they are required to take steps to protect individuals from harm, see 12VAC35-115-50(D)(3). Following the conclusion of the investigation and the determination that abuse/neglect occurred; the provider could decide these immediate steps will remain in effect and/or other corrective actions will be implemented. While the provider director has 10 working days from the date the investigation is completed to submit an action plan directly to the individual/AR and to the Advocate via CHRIS [12VAC35-115-175(F)(7) ], the goal of the complaint resolution process is to resolve the complaint at the earliest possible stage [12VAC35-115-150(B)]. The Advocate is responsible to ensure a reasonable timeline for the implementation of all appropriate corrective actions and may begin requesting this information as soon as the provider’s finding has been entered into CHRIS.