Part IX. Responsibilities and Duties
12VAC35-115-250. (Repealed.)
Historical Notes
Derived from Virginia Register Volume 18, Issue 3, eff. November 21, 2001; Errata, 18:6 VA.R. December 3, 2001; amended, Virginia Register Volume 23, Issue 25, eff. September 19, 2007; repealed, Virginia Register Volume 33, Issue 10, eff. February 9, 2017.
12VAC35-115-260. Provider and department responsibilities.
A. Providers, through their directors, shall:
1. Designate a person or persons responsible for helping individuals exercise their rights and resolve complaints regarding services;
2. Take all steps necessary to perform duties required by, and ensure compliance with, this chapter in all services provided;
3. Post information in program locations about the existence and purpose of the human rights program;
4. Communicate information about the availability of a human rights advocate to individuals and authorized representatives, in accordance with 12VAC35-115-40 B 1 and B 2;
5. Ensure access, as needed, to the LHRC for all individuals receiving services;
6. Provide the human rights advocate unrestricted access to an individual and his services records whenever the advocate deems access is necessary to carry out rights protection, complaint resolution, and advocacy on behalf of the individual;
7. Require competency-based training of employees on this chapter upon employment and at least annually thereafter. Documentation of such competency shall be maintained in the employee's personnel file;
8. Comply with all state laws governing the reporting of abuse and neglect and all procedures set forth in this chapter for reporting allegations of abuse, neglect, or exploitation;
9. Submit to the human rights advocate for review and comment proposed policies, procedures, or practices that may affect individual human rights;
10. Ensure appointment of a designated liaison to, and appropriate staff participation with, the LHRC, as required;
11. Cooperate with the human rights advocate and the LHRC to investigate and correct conditions or practices interfering with the free exercise of individuals' human rights and make sure that all employees cooperate with the human rights advocate, the LHRC, and the SHRC in carrying out their duties under this chapter;
12. Comply with requests by the SHRC, LHRC, or human rights advocate for information, policies, procedures, and written reports regarding compliance with this chapter;
13. Ensure the availability of records and employee witnesses upon the request of the LHRC or SHRC;
14. Submit applications for variances to this chapter only as a last resort; and
15. Not influence or attempt to influence the appointment of any person to an LHRC affiliated with the provider or director.
B. Providers shall require their employees to:
1. Become familiar with this chapter, comply with it in all respects, and help individuals understand and assert their rights;
2. Protect individuals from any form of abuse, neglect, or exploitation by:
a. Not abusing, neglecting, or exploiting any individual;
b. Using the minimum force necessary to restrain an individual;
c. Not permitting or condoning anyone else abusing, neglecting, or exploiting any individual; and
d. Reporting all suspected abuse, neglect, or exploitation to the director; and
3. Cooperate with any investigation, meeting, hearing, or appeal held under this chapter. Cooperation includes giving statements or sworn testimony.
C. Department human rights advocates shall:
1. Represent any individual making a complaint or, upon request, consult with and help any other representative the individual chooses;
2. Provide training to individuals, family members, and providers on this chapter;
3. Investigate and try to prevent or correct any alleged rights violation by interviewing, mediating, negotiating, advising, or consulting with providers and their respective governing bodies, directors, and employees;
4. Provide orientation, training, and technical assistance to the LHRCs for which he is responsible; and
5. Investigate and examine all conditions or practices that may interfere with the free exercise of individuals' rights.
D. The department shall:
1. Employ the state human rights director to lead statewide implementation of the human rights program;
2. Determine, in consultation with the SHRC, the appropriate number and geographical boundaries of LHRCs;
3. Develop information, assistance, training tools, and other resources for individuals and constituents on this chapter;
4. Provide for regular monitoring and enforcement of this chapter, including conducting unannounced compliance reviews at any time;
5. Cooperate with and provide support to the SHRC and LHRCs, including:
a. Training SHRC and LHRC members on their responsibilities, roles, and functions under this chapter;
b. Providing access to topic area consultants as needed to support their fulfilling of their duties under this chapter; and
c. Providing necessary support for SHRC and LHRC investigations, meetings, and hearings; and
6. Maintain current and regularly updated data and perform regular trend analyses to identify the need for corrective action in the areas of abuse, neglect, and exploitation; seclusion and restraint; complaints; deaths and serious injuries; and variance applications.
Statutory Authority
§§ 37.2-203 and 37.2-400 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 33, Issue 10, eff. February 9, 2017.
12VAC35-115-270. State Human Rights Committee and local human rights committees responsibilities.
A. Local human rights committees shall:
1. Review any restriction on the rights of any individual imposed pursuant to 12VAC35-115-50 or 12VAC35-115-100 that lasts longer than seven days or is imposed three or more times during a 30-day period for providers within the LHRC's jurisdiction in accordance with 12VAC35-115-100 B 5;
2. Review next friend designations in accordance with 12VAC35-115-146 B 2;
3. Hold hearings according to the procedures set forth in Part V (12VAC35-115-150 et seq.) of this chapter for any individual served by a provider under the LHRC's jurisdiction;
4. Review behavioral treatment plans in accordance with 12VAC35-115-105;
5. Receive, review, and act on applications for variances to this chapter in accordance with 12VAC35-115-220;
6. Consist of five or more members appointed by the SHRC.
a. Membership shall be broadly representative of professional and consumer interests as required in § 37.2-204 of the Code of Virginia.
b. At least one member shall be a health care provider.
c. No current employee of the department or a provider shall serve as a member of any LHRC that serves an oversight function for the employing facility or provider.
d. Members shall recuse themselves from all cases in which they have a financial or other conflict of interest.
e. Initial appointments to an LHRC shall be staggered, with approximately one-third of the members appointed for terms of three years, approximately one-third for terms of two years, and the remainder for a term or terms of one year. After that, all appointments shall be for terms of three years.
f. A person may be appointed for no more than two consecutive three-year terms. A person appointed to fill a vacancy may serve out that term and then be eligible for two additional consecutive terms.
g. Nominations for membership to LHRCs shall be submitted directly to the SHRC through the state human rights director at the department's Office of Human Rights;
7. Elect a chairperson from its own members who shall:
a. Coordinate the activities of the LHRC; and
b. Preside at regular meetings and hearings held pursuant to this chapter;
8. Meet every quarter or more frequently as necessary to adhere to all timelines as set forth in this chapter; and
9. Adopt written bylaws that address procedures for conducting business; electing the chairperson, secretary, and other officers; designating standing committees; and setting the frequency of meetings.
B. Local human rights committees may delegate authority to a subcommittee when expedited decisions are required before the next scheduled LHRC meeting to avoid seriously compromising an individual's quality of care, habilitation, or quality of life. The decision of the subcommittee shall be reviewed by the full LHRC at its next meeting.
C. The State Human Rights Committee shall:
1. Perform the following responsibilities with respect to the operation of LHRCs:
a. Appoint LHRC members with the advice of the respective LHRC, human rights advocate, and the state human rights director;
b. Review and approve the bylaws of LHRCs; and
c. Provide oversight to and assist LHRCs in the performance of their duties under this chapter, including the development of guidance documents;
2. Review LHRC decisions when required by this chapter and, if appropriate, hold hearings and make recommendations to the commissioner, the board, and providers' governing bodies regarding alleged violations of individuals' rights according to the procedures specified in this chapter;
3. Notify the commissioner and the state human rights director whenever it determines that its recommendations in a particular case are of general interest and applicability to providers, human rights advocates, or LHRCs and ensure that:
a. Its recommendations are communicated to providers, human rights advocates, and LHRCs as appropriate; and
b. The communication of its recommendations does not identify the name of individuals or employees in a particular case;
4. Grant or deny variances according to the procedures specified in Part VI (12VAC35-115-220) of this chapter and review approved variances at least once every year;
5. Submit to the board and publish an annual report of its activities and the status of human rights in services licensed, funded, or operated by the department and make recommendations for improvement;
6. Evaluate the implementation of this chapter and make necessary and appropriate recommendations to the board, the commissioner, and the state human rights director concerning its interpretation and enforcement;
7. Review and make recommendations to the department and board, as appropriate, concerning:
a. The scope and content of training programs designed by the department to promote responsible performance of the duties assigned under this chapter;
b. Existing or proposed policies, procedures, or practices that could jeopardize the rights of individuals receiving services from any provider;
c. Proposed revisions to this chapter; and
d. Revisions to existing or proposed laws, regulations, policies, procedures, and practices that are needed to ensure the protection of individuals' rights;
8. Consist of nine members appointed by the board.
a. Members shall be broadly representative of professional and consumer interests as required in § 37.2-204 of the Code of Virginia;
b. Members shall recuse themselves from all cases in which they have a financial or other conflict of interest;
c. If there is a vacancy, interim appointments may be made by the board for the remainder of the unexpired term;
d. A person may be appointed for no more than two consecutive three-year terms. A person appointed to fill a vacancy may serve out that term and then be eligible for two additional consecutive terms; and
e. No current employee of the department, a CSB, or a behavioral health authority may serve as a member of the SHRC;
9. Elect a chairperson from its own members who shall:
a. Coordinate the activities of the SHRC;
b. Preside at regular meetings, hearings, and appeals; and
c. Have direct access to the commissioner and the board in carrying out these duties;
10. Conduct at least eight regular meetings per year; and
11. Adopt written bylaws that address procedures for conducting business; making membership recommendations to the board; electing a chairperson, vice chairperson, secretary, and other officers; appointing members of LHRCs; designating standing committees and their responsibilities; establishing ad hoc committees; and setting the frequency of meetings.
Statutory Authority
§§ 37.2-203 and 37.2-400 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 33, Issue 10, eff. February 9, 2017.