Virginia Administrative Code › Title 12 - HEALTH › Agency 35 - DEPARTMENT OF BEHAVIORAL HEALTH AND DEVELOPMENTAL SERVICES › Chapter 115 - REGULATIONS TO ASSURE THE RIGHTS OF INDIVIDUALS RECEIVING SERVICES FROM PROVIDERS LICENSED, FUNDED, OR OPERATED BY THE DEPARTMENT OF BEHAVIORAL › Part I - General Provisions › Section 12VAC35-115-30 - Definitions

Current through Register Vol. 40, No. 24, July 15, 2024
The following words and terms when used in this chapter
					 shall have the following meanings, unless the context clearly indicates
					 otherwise:
"Abuse" means any act or failure to act by an employee or
					 other person responsible for the care of an individual in a facility or program
					 operated, licensed, or funded by the department, excluding those operated by
					 the Department of Corrections, that was performed or was failed to be performed
					 knowingly, recklessly, or intentionally, and that caused or might have caused
					 physical or psychological harm, injury, or death to a person receiving care or
					 treatment for mental illness, intellectual disability, or substance abuse.
					 Examples of abuse include acts such as:
1. Rape, sexual assault, or other criminal
				  sexual behavior;
2. Assault or
				  battery;
3. Use of language that
				  demeans, threatens, intimidates, or humiliates the person;
4. Misuse or misappropriation of the person's
				  assets, goods, or property;
5. Use
				  of excessive force when placing a person in physical or mechanical
				  restraint;
6. Use of physical or
				  mechanical restraints on a person that is not in compliance with federal and
				  state laws, regulations, and policies; professionally accepted standards of
				  practice; or the person's individualized services plan; and
7. Use of more restrictive or intensive
				  services or denial of services to punish the person or that is not consistent
				  with his individualized services plan. See §
										37.2-100 of the Code
				  of Virginia.
"Administrative hearing" means an administrative proceeding
					 held pursuant to Chapter 40 (§
										2.2-4000 et
					 seq.) of Title 2.2 of the Code of Virginia.
"Advance directive" means a document voluntarily executed
					 in accordance with §
										54.1-2983
					 of the Code of Virginia or the laws of another state where executed (§
										54.1-2993 of the Code
					 of Virginia). This may include a wellness recovery action plan (WRAP) or
					 similar document as long as it is executed in accordance with §
										54.1-2983
					 of the Code of Virginia or the laws of another state. A WRAP or similar
					 document may identify the health care agent who is authorized to act as the
					 individual's substitute decision maker.
"Authorization" means a document signed by the individual
					 receiving services or that individual's authorized representative that
					 authorizes the provider to disclose identifying information about the
					 individual. An authorization shall be voluntary. To be voluntary, the
					 authorization shall be given by the individual receiving services or his
					 authorized representative freely and without undue inducement; any element of
					 force, fraud, deceit, or duress; or any form of constraint or coercion.
"Authorized representative" means a person permitted by law
					 or this chapter to authorize the disclosure of information or to consent to
					 treatment and services or participation in human research. The decision-making
					 authority of an authorized representative recognized or designated under this
					 chapter is limited to decisions pertaining to the designating provider. Legal
					 guardians, attorneys-in-fact, or health care agents appointed pursuant to
					 §
										54.1-2983
					 of the Code of Virginia may have decision-making authority beyond such
					 provider.
"Behavior intervention" means those principles and methods
					 employed by a provider to help an individual to achieve a positive outcome and
					 to address challenging behavior in a constructive and safe manner. Behavior
					 management principles and methods must be employed in accordance with the
					 individualized services plan and written policies and procedures governing
					 service expectations, treatment goals, safety, and security.
"Behavioral treatment plan," "functional plan," or
					 "behavioral support plan" means any set of documented procedures that are an
					 integral part of the individualized services plan and are developed on the
					 basis of a systematic data collection, such as a functional assessment, for the
					 purpose of assisting an individual to achieve the following:
1. Improved behavioral functioning and
				  effectiveness;
2. Alleviation of
				  symptoms of psychopathology; or
3.
				  Reduction of challenging behaviors.
"Board" means the Board of Behavioral Health and
					 Developmental Services.
"Caregiver" means an employee or contractor who provides
					 care and support services; medical services; or other treatment,
					 rehabilitation, or habilitation services.
"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, "community services
					 board" also includes a behavioral health authority established pursuant to
					 §
										37.2-602
					 of the Code of Virginia.
"Complaint" means an allegation of a violation of this
					 chapter or a provider's policies and procedures related to this chapter.
"Consent" means the voluntary agreement of an individual or
					 that individual's authorized representative to specific services. Consent shall
					 be given freely and without undue inducement; any element of force, fraud,
					 deceit, or duress; or any form of constraint or coercion. Consent may be
					 expressed through any means appropriate for the individual, including verbally,
					 through physical gestures or behaviors, in Braille or American Sign Language,
					 in writing, or through other methods.
"Department" means the Department of Behavioral Health and
					 Developmental Services.
"Director" means the chief executive officer of any
					 provider delivering services. In organizations that also include services not
					 covered by this chapter, the director is the chief executive officer of the
					 services or services licensed, funded, or operated by the department.
"Discharge plan" means the written plan that establishes
					 the criteria for an individual's discharge from a service and identifies and
					 coordinates delivery of any services needed after discharge.
"Disclosure" means the release by a provider of information
					 identifying an individual.
"Emergency" means a situation that requires a person to
					 take immediate action to avoid harm, injury, or death to an individual or to
					 others.
"Exploitation" means the misuse or misappropriation of the
					 individual's assets, goods, or property. Exploitation is a type of abuse. (See
					 §
										37.2-100 of the Code
					 of Virginia.) Exploitation also includes the use of a position of authority to
					 extract personal gain from an individual. Exploitation includes violations of
					 12VAC35-115-120
					 and
					 12VAC35-115-130.
					 Exploitation does not include the billing of an individual's third party payer
					 for services. Exploitation also does not include instances of use or
					 appropriation of an individual's assets, goods, or property when permission is
					 given by the individual or his authorized representative:
1. With full knowledge of the
				  consequences;
2. With no
				  inducements; and
3. Without force,
				  misrepresentation, fraud, deceit, duress of any form, constraint, or
				  coercion.
"Governing body of the provider" means the person or group
					 of persons with final authority to establish policy.
"Habilitation" means the provision of individualized
					 services conforming to current acceptable professional practice that enhance
					 the strengths of, teach functional skills to, or reduce or eliminate
					 challenging behaviors of an individual. These services occur in an environment
					 that suits the individual's needs, responds to his preferences, and promotes
					 social interaction and adaptive behaviors.
"Health care operations" means any activities of the
					 provider to the extent that the activities are related to its provision of
					 health care services. Examples include:
1. Conducting quality assessment and
				  improvement activities, case management and care coordination, contacting of
				  health care providers and patients with information about treatment
				  alternatives, and related functions that do not include treatment;
2. Reviewing the competence or qualifications
				  of health care professionals, evaluating practitioner and provider performance,
				  and training, licensing, or credentialing activities;
3. Conducting or arranging for medical
				  review, legal services, and auditing functions, including fraud and abuse
				  detection and compliance programs; and
4. Other activities contained within the
				  definition of health care operations in
				  45
				  CFR 164.501.
"Health plan" means an individual or group plan that
					 provides or pays the cost of medical care, including any entity that meets the
					 definition of "health plan" in
					 45
					 CFR 160.103.
"Historical research" means the review of information that
					 identifies individuals receiving services for the purpose of evaluating or
					 otherwise collecting data of general historical significance.
"Human research" means any systematic investigation,
					 including research development, testing, and evaluation, utilizing human
					 subjects that is designed to develop or contribute to generalized knowledge.
					 Human research shall not include research exempt from federal research
					 regulations pursuant to
					 45 CFR
					 46.101(b).
"Human rights advocate" means a person employed by the
					 commissioner upon recommendation of the State Human Rights Director to help
					 individuals receiving services exercise their rights under this chapter. See
					 12VAC35-115-260 C.
"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.
"Individual" means a person who is receiving services. This
					 term includes the terms "consumer," "patient," "resident," "recipient," and
					 "client."
"Individualized services plan" or "ISP" means a
					 comprehensive and regularly updated written plan that 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 and includes an individual's treatment plan,
					 habilitation plan, person-centered plan, or plan of care.
"Informed consent" means the voluntary written agreement of
					 an individual, or that individual's authorized representative, to surgery,
					 electroconvulsive treatment, use of psychotropic medications, or any other
					 treatment or service that poses a risk of harm greater than that ordinarily
					 encountered in daily life or for participation in human research. To be
					 voluntary, informed consent must be given freely and without undue inducement;
					 any element of force, fraud, deceit, or duress; or any form of constraint or
					 coercion.
"Investigating authority" means any person or entity that
					 is approved by the provider to conduct investigations of abuse and
					 neglect.
"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.
"Local human rights committee" or "LHRC" means a group of
					 at least five people appointed by the State Human Rights Committee. See
					 12VAC35-115-270 A for membership and duties.
"Neglect" means failure by a person, program, or facility
					 operated, licensed, or funded by the department, excluding those operated by
					 the Department of Corrections, responsible for providing services to do so,
					 including nourishment, treatment, care, goods, or services necessary to the
					 health, safety, or welfare of an individual receiving care or treatment for
					 mental illness, intellectual disability, or substance abuse. See §
										37.2-100 of the Code
					 of Virginia.
"Next friend" means a person designated in accordance with
					 12VAC35-115-146
					 B to serve as the authorized representative of an individual who has been
					 determined to lack capacity to consent or authorize the disclosure of
					 identifying information, when required under this chapter.
"Peer-on-peer aggression" means a physical act, verbal
					 threat, or demeaning expression by an individual against or to another
					 individual that causes physical or emotional harm to that individual. Examples
					 include hitting, kicking, scratching, and other threatening behavior. Such
					 instances may constitute potential neglect.
"Person centered" means focusing on the needs and
					 preferences of the individual, empowering and supporting the individual in
					 defining the direction for his life, and promoting self-determination,
					 community involvement, and recovery.
"Program rules" means the operational rules and
					 expectations that providers establish to promote the general safety and
					 well-being of all individuals in the program and to set standards for how
					 individuals will interact with one another in the program. Program rules
					 include any expectation that produces a consequence for the individual within
					 the program. Program rules may be included in a handbook or policies and shall
					 be available to the individual.
"Protection and advocacy agency" means the state agency
					 designated under the federal Protection and Advocacy for Individuals with
					 Mental Illness Act (PAIMI) and the Developmental Disabilities Assistance and
					 Bill of Rights Act (DD). The protection and advocacy agency is the disability
					 Law Center of Virginia (dLCV).
"Provider" means any person, entity, or organization
					 offering services that is licensed, funded, or operated by the
					 department.
"Psychotherapy notes" means comments, recorded in any
					 medium by a health care provider who is a mental health professional,
					 documenting and analyzing the contents of conversation during a private
					 counseling session with an individual or a group, joint, or family counseling
					 session that are separated from the rest of the individual's health record.
					 "Psychotherapy notes" shall not include annotations relating to medication and
					 prescription monitoring, counseling session start and stop times, treatment
					 modalities and frequencies, clinical test results, or any summary of any
					 symptoms, diagnosis, prognosis, functional status, treatment plan, or the
					 individual's progress to date.
"Research review committee" or "institutional review board"
					 means a committee of professionals that provides complete and adequate review
					 of research activities. The committee shall be sufficiently qualified through
					 maturity, experience, and diversity of its members, including consideration of
					 race, gender, and cultural background, to promote respect for its advice and
					 counsel in safeguarding the rights and welfare of participants in human
					 research. (See §
										37.2-402
					 of the Code of Virginia and 12VAC35-180.)
"Restraint" means 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. There are three kinds of restraints:
1. Mechanical restraint means the use of a
				  mechanical device that cannot be removed by the individual to restrict the
				  freedom of movement or functioning of a limb or a portion of an individual's
				  body when that behavior places him or others at imminent risk.
2. 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.
3. Physical restraint, also referred to as
				  manual hold, means the use of a physical intervention or hands-on hold to
				  prevent an individual from moving his body when that individual's behavior
				  places him or others at imminent risk.
"Restraints for behavioral purposes" means using a physical
					 hold, medication, or a mechanical device to control behavior or involuntarily
					 restrict the freedom of movement of an individual in an instance when all of
					 the following conditions are met:
(i)
				  there is an emergency,
(ii)
				  nonphysical interventions are not viable, and
(iii) safety issues require an immediate
				  response.
"Restraints for medical purposes" means using a physical
					 hold, medication, or mechanical device to limit the mobility of an individual
					 for medical, diagnostic, or surgical purposes, such as routine dental care or
					 radiological procedures and related postprocedure care processes, when use of
					 the restraint is not the accepted clinical practice for treating the
					 individual's condition.
"Restraints for protective purposes" means using a
					 mechanical device to compensate for a physical or cognitive deficit when the
					 individual does not have the option to remove the device. The device may limit
					 an individual's movement, for example, bed rails or a gerichair, and prevent
					 possible harm to the individual or it may create a passive barrier, such as a
					 helmet to protect the individual.
"Restriction" means anything that limits or prevents an
					 individual from freely exercising his rights and privileges.
"SCC" means a specially constituted committee serving an
					 intermediate care facility for individuals with intellectual disabilities as
					 described in the Centers for Medicare and Medicaid Services (CMS) Conditions of
					 Participation (
					 42 CFR
					 483.440(f)(3) ).
"Seclusion" means the involuntary placement of an
					 individual alone in an area secured by a door that is locked or held shut by a
					 staff person, by physically blocking the door, or by any other physical or
					 verbal means, so that the individual cannot leave it.
"Serious injury" means any injury resulting in bodily hurt,
					 damage, harm, or loss that requires medical attention by a licensed
					 physician.
"Services" means care, treatment, training, habilitation,
					 interventions, or other supports, including medical care, delivered by a
					 provider licensed, operated or funded by the department.
"Services record" means all written and electronic
					 information that a provider keeps about an individual who receives
					 services.
"State Human Rights Committee" or "SHRC" means a committee
					 of nine members appointed by the board that is accountable for the duties
					 prescribed in 12VAC35-115-270 C.
"State human rights director" means the person employed by
					 and reporting to the commissioner who is responsible for carrying out the
					 functions prescribed for the position in 12VAC35-115-260 D.
"Time out" means the involuntary removal of an individual
					 by a staff person from a source of reinforcement to a different, open location
					 for a specified period of time or until the problem behavior has subsided to
					 discontinue or reduce the frequency of problematic behavior.
"Treatment" means the individually planned, sound, and
					 therapeutic interventions that are intended to improve or maintain functioning
					 of an individual receiving services delivered by providers licensed, funded, or
					 operated by the department. In order to be considered sound and therapeutic,
					 the treatment shall conform to current acceptable professional
					 practice.
Statutory Authority: §§
												37.2-203
						and
						37.2-400
						of the Code of Virginia.