Part V. Complaint Resolution, Hearing, and Appeal Procedures
12VAC35-115-150. General provisions.
A. Court orders or orders or decisions entered after an administrative hearing are not subject to review under the human rights complaint resolution process.
B. The parties to any complaint are the individual and the director. Each party can also have anyone else represent him during resolution of the complaint. The director shall make every effort to resolve the complaint at the earliest possible stage.
C. Reviews and hearings will generally be closed to other people unless the individual making the complaint requests that other people attend or if an open meeting is required by the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia). The LHRC and SHRC may conduct a closed hearing to protect the confidentiality of persons who are not a party to the complaint, but only if a closed meeting is otherwise allowed under the Virginia Freedom of Information Act (see § 2.2-3711 of the Code of Virginia).
D. In no event shall a pending hearing, review, or appeal prevent a director from taking corrective action based on the advice of the provider's legal counsel that such action is required by law or if the director thinks such action is correct and justified.
E. The LHRC or SHRC, on the motion of any party or on its own motion, may, for good cause, extend any time periods before or after the expiration of that time period. No director may extend any time periods for any actions he is required to take under these procedures without prior approval of the LHRC or SHRC.
F. Except in the case of emergency proceedings, if a time period in which action must be taken under this part is not extended by the LHRC or SHRC, the failure of a party to act within that time period shall waive that party's further rights under these procedures.
G. In making recommendations regarding complaint resolution, the LHRC and the SHRC shall identify any rights or regulations that the provider violated and any policies, practices, or conditions that contributed to the violations. They shall also recommend appropriate corrective actions, including changes in policies, practices, or conditions, to prevent further violations of the rights assured under this chapter.
H. If it is impossible to carry out the recommendations of the LHRC or the SHRC within a specified time, the LHRC or the SHRC, as appropriate, shall recommend any necessary interim action that gives appropriate and possible immediate remedies.
I. Any action plan submitted by the director or commissioner in the course of these proceedings shall fully address final and interim recommendations made by the LHRC or the SHRC and identify financial or other constraints, if any, that prevent efforts to fully remedy the violation.
J. All communication with the individual during the complaint resolution process shall be in the manner, format, and language most easily understood by the individual.
Statutory Authority
§§ 37.2-203 and 37.2-400 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 18, Issue 3, eff. November 21, 2001; amended, Virginia Register Volume 23, Issue 25, eff. September 19, 2007; Volume 33, Issue 10, eff. February 9, 2017.
12VAC35-115-160. (Repealed.)
Historical Notes
Derived from Virginia Register Volume 18, Issue 3, eff. November 21, 2001; repealed, Virginia Register Volume 23, Issue 25, eff. September 19, 2007.
12VAC35-115-170. (Repealed.)
Historical Notes
Derived from Virginia Register Volume 18, Issue 3, eff. November 21, 2001; amended, Virginia Register Volume 23, Issue 25, eff. September 19, 2007; repealed, Virginia Register Volume 33, Issue 10, eff. February 9, 2017.
12VAC35-115-175. Human rights complaint process.
A. Each individual has a right to:
1. Make a complaint that the provider has violated any of the rights assured under this chapter;
2. Have a timely and fair review of any complaint in accordance with this chapter and the program's human rights complaint resolution policies and procedures;
3. Have someone file a complaint on his behalf;
4. Use these and other complaint procedures; and
5. Make a complaint under any other applicable law, including to the protection and advocacy agency.
B. The individual shall:
1. Be contacted by the director or the director's designee regarding the complaint within 24 hours;
2. Have access to a human rights advocate for assistance with the complaint;
3. Be protected from retaliation and harm;
4. Have the complaint reviewed, investigated, and resolved as soon as possible;
5. Receive a report with the director's decision and action plan within 10 working days; and
6. Be notified in writing of his right to and the process for appealing the director's decision and action plan to the LHRC.
C. Upon receipt of a complaint, providers shall:
1. Notify the department of the complaint as soon as possible, but no later than the next business day;
2. Ensure that the director or the director's designee contacts the individual regarding the complaint within 24 hours;
3. Initiate an impartial investigation into, or resolution of, the complaint as soon as possible, but no later than the next business day;
4. Take all steps necessary to ensure that individuals involved in the complaint are protected from retaliation and harm;
5. Assist the individual making a complaint in understanding the human rights complaint process, the provider's complaint resolution policies and procedures, and the confidentiality of involved information;
6. Ensure that all communications to the individual are in the manner, format, and language most easily understood by the individual;
7. Adhere to the reporting requirements in 12VAC35-115-230; and
8. Report the director's decision and action plan within 10 working days to the individual, authorized representative, if applicable, and human rights advocate.
D. All providers shall have complaint resolution policies and procedures that address all of the requirements of subsections C and E of this section.
E. Provider complaint resolution policies and procedures shall be in writing and approved by the department prior to implementation. The policies and procedures shall:
1. Ensure that anyone who believes that a provider has violated an individual's rights under this chapter can report it to the director or the human rights advocate for resolution;
2. Ensure that employees shall not take, threaten to take, permit, or condone any action (i) to punish or retaliate against anyone filing a complaint or (ii) to prevent anyone from filing or helping an individual file a complaint either under this chapter or with an outside entity;
3. Ensure that every attempt is made to resolve an individual's complaint as quickly as possible;
4. Provide opportunities for timely negotiation and resolution for all complaints, including the additional requirements related to abuse, neglect, or exploitation in subsection F of this section;
5. Establish a process for designating the director's responsibilities to ensure timely complaint reporting and resolution;
6. Detail the program's complaint review or investigation process, including (i) specific actions the program will take to protect the individual and gather and document relevant information and (ii) how and when the individual and his authorized representative, if applicable, will receive updates on the progress of the review;
7. Detail notification requirements and deadlines including procedures for providing:
a. The program's complaint policies and procedures to all individuals and authorized representatives at admission to service; and
b. Written notification to the individual regarding his right to and the process to appeal the director's decision and action plan to the LHRC; and
8. Detail staff training requirements regarding the program's complaint resolution process and requirements.
F. Additional requirements for complaints involving abuse, neglect, or exploitation:
1. The program director shall take immediate steps to protect the individual until the investigation is complete, including appropriate personnel actions.
2. Any instance of seclusion or restraint that does not comply with this chapter or an approved variance, or that results in injury to an individual, shall be reported to the authorized representative, as applicable, and the department in accordance with the requirements for reporting allegations of abuse.
3. The program director shall notify the department and authorized representative, if applicable, of an allegation of abuse or neglect within 24 hours of the receipt of the allegation.
4. The program director shall ensure that the investigation is conducted by a person trained to do investigations and who is not involved in the issues under investigation.
5. The investigator shall provide a written report of the results of the investigation of abuse or neglect to the director and to the human rights advocate within 10 working days from the date the investigation began unless an extension has been granted.
6. The program director shall decide, based on the investigator's report and any other available information, whether the abuse, neglect, or exploitation occurred. Unless otherwise provided by law, the standard for deciding whether abuse, neglect, or exploitation has occurred is preponderance of the evidence.
7. The program director shall submit the final decision and action plan, if applicable, to the individual, authorized representative, if applicable, and human rights advocate within 10 working days of its completion.
G. If the human rights advocate concludes that there is substantial risk that serious or irreparable harm will result if the complaint is not resolved immediately, the human rights advocate shall inform the director, the provider's governing body, and the LHRC. The LHRC shall conduct a hearing according to the special procedures for emergency hearings in 12VAC35-115-190.
H. The director shall cooperate fully with any abuse or neglect complaint investigation conducted by a local department of social services.
I. If at any time the director has reason to suspect that the abusive, neglectful, or exploitive act is a crime and that it occurred on the program premises, the director or designee shall immediately contact the appropriate law-enforcement authorities and cooperate fully with any investigation that may result.
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.
12VAC35-115-180. Local human rights committee hearing and review procedures.
A. Any individual or his authorized representative who disagrees with a director's final decision or action plan resulting from any complaint resolution process under this chapter may request an LHRC hearing by following the process described in this section.
B. The individual or his authorized representative shall file the petition for a hearing with the chairperson of the LHRC within 10 working days from receipt of the director's action plan or final decision on the complaint.
1. The petition for hearing shall be in writing. It shall contain all facts and arguments surrounding the complaint and reference any section of this chapter that the individual believes the provider violated.
2. The human rights advocate or any person the individual chooses may help the individual in filing the petition. If the individual chooses a person other than the human rights advocate to help him, he and his chosen representative may request the human rights advocate's assistance in filing the petition.
C. The LHRC chair shall forward a copy of the petition to the director and the human rights advocate as soon as he receives it. A copy of the petition shall also be forwarded to the provider's governing body.
D. Within five working days, the director shall submit to the LHRC:
1. A written response to everything contained in the petition; and
2. A copy of the entire written record of the complaint.
E. LHRC hearing procedures:
1. The LHRC shall hold a hearing within 20 working days of receiving the petition.
2. The parties shall have at least five working days' notice of the hearing.
3. The director or his designee shall attend the hearing.
4. The individual or his authorized representative making the complaint shall attend the hearing.
5. The hearing is an informal process and, as such, the rules of evidence are not applicable.
6. At the hearing, the parties and chosen representatives and designees have the right to present witnesses and other evidence and the opportunity to be heard.
7. The hearing shall be conducted in a nonadversarial manner.
a. Each party shall be provided the opportunity to present its facts.
b. Each party shall direct questions to the LHRC rather than to the other party.
c. The LHRC shall ask questions, as appropriate, to each party.
F. Within 10 working days after the hearing ends, the LHRC shall give its written findings of fact and recommendations to the parties and their representatives. Whenever appropriate, the LHRC shall identify information that it believes the director shall take into account in making decisions concerning discipline or termination of personnel.
G. Within five working days of receiving the LHRC's findings and recommendations, the director shall give the individual, the individual's chosen representative, the human rights advocate, the governing body, and the LHRC a written action plan he intends to implement to respond to the LHRC's findings and recommendations. Along with the action plan, the director shall provide written notice to the individual about the timeframe for the individual's response and a statement that if the individual does not respond, then the complaint will be closed. The plan shall not be implemented for five working days after it is submitted, unless the individual agrees to its implementation sooner.
H. The individual, his chosen representative, the human rights advocate, or the LHRC may object to the action plan within five working days by stating the objection and what the director can do to resolve the objection.
1. If an objection is made, the director may not implement the action plan until the objection is resolved. The provider may, however, implement any portion of the plan to which the individual making the complaint agrees.
2. If no one objects to the action plan, the director shall begin to implement the plan on the sixth working day after he submitted it, or as otherwise provided in the plan.
I. If an objection to the action plan is made and the director does not resolve the objection to the action plan to the individual's satisfaction within two working days following its receipt by the director, the individual may appeal to the SHRC under 12VAC35-115-210.
Statutory Authority
§§ 37.2-203 and 37.2-400 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 18, Issue 3, eff. November 21, 2001; amended, Virginia Register Volume 23, Issue 25, eff. September 19, 2007; Volume 33, Issue 10, eff. February 9, 2017.
12VAC35-115-190. Special procedures for emergency hearings by the LHRC.
A. If the human rights advocate informs the LHRC of a substantial risk that serious and irreparable harm will result if a complaint is not resolved immediately, the LHRC shall hold and conclude a preliminary hearing within 72 hours of receiving this information.
1. The director or his designee and the human rights advocate shall attend the hearing. The individual and his authorized representative may attend the hearing.
2. The hearing shall be conducted according to the procedures in 12VAC35-115-180, but it shall be conducted on an expedited basis.
B. At the end of the hearing, the LHRC shall make preliminary findings and, if a violation is found, shall make preliminary recommendations to the director, the provider, and the provider's governing body.
C. The director shall formulate and carry out an action plan within 24 hours of receiving the LHRC's preliminary recommendations. A copy of the plan shall be sent to the human rights advocate, the individual, his authorized representative, and the governing body.
D. If the individual or the human rights advocate objects within 24 hours to the LHRC findings or recommendations or to the director's action plan, the LHRC shall conduct a full hearing within five working days of the objection, following the procedures outlined in 12VAC35-115-180. This objection shall be made in writing to the LHRC chairperson, with a copy sent to the director.
E. Either party may appeal the LHRC's decision to the SHRC under 12VAC35-115-210.
Statutory Authority
§§ 37.2-203 and 37.2-400 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 18, Issue 3, eff. November 21, 2001; amended, Virginia Register Volume 23, Issue 25, eff. September 19, 2007; Volume 33, Issue 10, eff. February 9, 2017.
12VAC35-115-200. Special procedures for LHRC reviews involving consent and authorization.
A. The individual, his authorized representative, or anyone acting on the individual's behalf may request in writing that the LHRC review the following situations and issue a decision:
1. If an individual objects at any time to the appointment of a specific person as his authorized representative or any decision for which consent or authorization is required and has been given by his authorized representative, other than a legal guardian, he may ask the LHRC to decide whether his capacity was properly evaluated, the authorized representative was properly appointed, or his authorized representative's decision was made based on the individual's basic values and any preferences previously expressed by the individual to the extent that they are known, and if unknown or unclear in the individual's best interests.
a. The provider shall take no action for which consent or authorization is required if the individual objects, except in an emergency or as otherwise permitted by law, pending the LHRC review.
b. If the LHRC determines that the individual's capacity was properly evaluated, the authorized representative is properly designated, or the authorized representative's decision was made based on the individual's basic values and any preferences previously expressed by the individual to the extent that they are known, or if unknown or unclear in the individual's best interests, then the provider may proceed according to the decision of the authorized representative.
c. If the LHRC determines that the individual's capacity was not properly evaluated or the authorized representative was not properly designated, then the provider shall take no action for which consent is required except in an emergency or as otherwise required or permitted by law until the capacity review and authorized representative designation are properly done.
d. If the LHRC determines that the authorized representative's decision was not made based on the individual's basic values and any preference previously expressed by the individual to the extent known, and if unknown or unclear, made in the individual's best interests, then the provider shall take steps to remove the authorized representative pursuant to 12VAC35-115-146.
2. If an individual or his family member has obtained an independent evaluation of the individual's capacity to consent to treatment or services or to participate in human research, or to authorize the disclosure of information under 12VAC35-115-80, and the opinion of that evaluator conflicts with the opinion of the provider's evaluator, the LHRC may be requested to decide which evaluation will control.
a. If the LHRC agrees that the individual lacks the capacity to consent to treatment or services or authorize disclosure of information, the director may begin or continue treatment or research or disclose information, but only with the appropriate consent or authorization of the authorized representative. The LHRC shall advise the individual of his right to appeal this determination to the SHRC under 12VAC35-115-210.
b. If the LHRC does not agree that the individual lacks the capacity to consent to treatment or services or authorize disclosure of information, the director shall not begin any treatment or research, or disclose information without the individual's consent or authorization, or shall take immediate steps to discontinue any actions begun without the consent or authorization of the individual. The director may appeal to the SHRC under 12VAC35-115-210 but may not take any further action until the SHRC issues its opinion.
3. If a director makes a decision that affects an individual and the individual believes that the decision requires his personal consent or authorization or that of his authorized representative, he may object and ask the LHRC to decide whether consent or authorization is required.
Regardless of the individual's capacity to consent to treatment or services or to authorize disclosure of information, if the LHRC determines that a decision made by a director requires consent or authorization that was not obtained, the director shall immediately stop such action unless and until such consent or authorization is obtained. The director may appeal to the SHRC under 12VAC35-115-210 but may not take any further action until the SHRC issues its opinion.
B. Before making such a decision, the LHRC shall review the action proposed by the director, any determination of lack of capacity, the opinion of the independent evaluator if applicable, and the individual's or his authorized representative's reasons for objecting to that determination. To facilitate its review, the LHRC may ask that a physician or licensed clinical psychologist not employed by the provider evaluate the individual at the provider's expense and give an opinion about his capacity to consent to treatment or to authorize disclosure of information.
The LHRC shall notify all parties and the human rights advocate of the decision within 10 working days of the initial request.
Statutory Authority
§§ 37.2-203 and 37.2-400 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 18, Issue 3, eff. November 21, 2001; amended, Virginia Register Volume 23, Issue 25, eff. September 19, 2007; Volume 33, Issue 10, eff. February 9, 2017.
12VAC35-115-210. State Human Rights Committee appeals procedures.
A. Any party may appeal to the SHRC if he disagrees with any of the following:
1. An LHRC's final findings of fact, conclusions, and recommendations following a hearing;
2. A director's final action plan following an LHRC hearing;
3. An LHRC's final decision regarding the capacity of an individual to consent to treatment, services, or research or to authorize disclosure of information; or
4. An LHRC's final decision concerning whether consent or authorization is needed for the director to take a certain action.
The steps for filing an appeal are provided in subsections B, C, and D of this section.
B. Appeals shall be filed in writing with the SHRC by a party within 10 working days of receipt of the final decision or action plan.
1. The appeal shall explain the reasons for disagreement with the final decision or action plan.
2. The human rights advocate or any other person may help in filing the appeal. If the individual chooses a person other than the human rights advocate to help him, he and his chosen representative may request the human rights advocate's help in filing the appeal.
3. The party appealing shall give a copy of the appeal to the other party, the human rights advocate, and the LHRC.
4. If the director is the party appealing, he shall first request and get written permission to appeal from the commissioner or governing body of the provider, as appropriate. If the director does not get this written permission and note the appeal within 10 working days, his right to appeal is waived.
C. If the director is appealing, the individual may file a written statement with the SHRC within five working days after receiving a copy of the appeal. If the individual is appealing, the director shall file a written statement with the SHRC within five working days after receiving a copy of the appeal.
D. Within five working days of noting or being notified of an appeal, the director shall forward a complete record of the LHRC hearing to the SHRC. The record shall include, at a minimum:
1. The original petition or information filed with the LHRC and any statement filed by the director in response;
2. Parts of the individual's services record that the LHRC considered and any other parts of the services record submitted to, but not considered by, the LHRC that either party considers relevant;
3. All written documents and materials presented to and considered by the LHRC, including any independent evaluations conducted;
4. A tape or transcript of the LHRC proceedings, if available;
5. The LHRC's findings of fact, conclusions, and recommendations;
6. The director's action plan, if any; and
7. Any written objections to the action plan or its implementation.
E. The SHRC shall hear the appeal at its next scheduled meeting after the chairperson receives the appeal.
1. The SHRC shall give the parties at least 10 working days' notice of the appeal hearing.
2. The SHRC shall notify the Office of the State Inspector General (§ 2.2-308 of the Code of Virginia) of the appeal.
3. The following rules govern appeal hearings:
a. The SHRC shall not hear any new evidence.
b. The SHRC is bound by the LHRC's findings of fact unless it makes a determination that those findings of fact are clearly wrong or that the hearing procedures of the LHRC were inadequate.
c. The SHRC shall limit its review to whether the facts, as found by the LHRC, establish a violation of this chapter and a determination of whether the LHRC's recommendations or the action plan adequately address the alleged violation.
d. All parties and their representatives shall have the opportunity to appear before the SHRC to present their positions and answer questions the SHRC may have.
4. If the SHRC decides that the LHRC's findings of fact are clearly wrong or that the hearing procedures employed by the LHRC were inadequate, the SHRC may:
a. Send the case back to the LHRC for another hearing to be completed within a time period specified by the SHRC; or
b. Conduct its own fact-finding hearing. If the SHRC chooses to conduct its own fact-finding hearing, it may appoint a subcommittee of at least three of its members as fact finders. The fact-finding hearing shall be conducted within 30 working days of the SHRC's initial hearing.
In either case, the parties shall have 15 working days' notice of the date of the hearing and the opportunity to be heard and to present witnesses and other evidence.
F. Within 20 working days after the SHRC appeal hearing, the SHRC shall submit a decision containing its findings of fact, if applicable, and its conclusions and recommendations to the commissioner and to the provider's governing body, with copies to the parties, the LHRC, and the human rights advocate.
G. Within 10 working days after receiving the SHRC's decision, in the case of appeals involving a state facility, the commissioner shall submit an outline of actions to be taken in response to the SHRC's recommendations. In the case of appeals involving CSBs and private providers, the director shall outline in writing the action or actions that will be taken in response to the recommendations of the SHRC. They shall also explain any reasons for not carrying out any of the recommended actions. Copies of their responses shall be forwarded to the SHRC, the LHRC, the director, the human rights advocate, and the individual.
H. If the SHRC objects in writing to the commissioner's or director's proposed actions, their actions shall be postponed. The commissioner or director shall meet with the SHRC at its next regularly scheduled meeting to attempt to arrange a mutually agreeable resolution.
I. Final determination regarding the action plan shall be as follows:
1. In the case of services provided directly by the department, the commissioner's action plan shall be final and binding on all parties. However, when the SHRC believes the commissioner's action plan is incompatible with the purpose of this chapter, it shall notify the board, the protection and advocacy agency, and the Office of the State Inspector General (§ 2.2-308 of the Code of Virginia).
2. In the case of services delivered by all other providers, the action plan of the director shall be reviewed by the commissioner. If the commissioner determines that the provider has failed to develop and carry out an acceptable action plan, the commissioner shall notify the protection and advocacy agency and shall inform the SHRC of the sanctions the department will impose against the provider.
J. Upon completion of the process outlined in this section, the SHRC shall notify the parties and the human rights advocate of the final outcome of the complaint.
Statutory Authority
§§ 37.2-203 and 37.2-400 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 18, Issue 3, eff. November 21, 2001; amended, Virginia Register Volume 23, Issue 25, eff. September 19, 2007; Volume 31, Issue 1, eff. October 8, 2014; Volume 33, Issue 10, eff. February 9, 2017.