Administrative Code

Virginia Administrative Code
1/23/2022

Part VIII. Behavior Interventions

6VAC35-71-1090. [Reserved].

Statutory Authority

§§ 16.1-309.9, 66-10, and 66-25.1 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 29, Issue 25, eff. January 1, 2014.

6VAC35-71-1100. [Reserved].

Statutory Authority

§§ 16.1-309.9, 66-10, and 66-25.1 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 29, Issue 25, eff. January 1, 2014.

6VAC35-71-1110. Disciplinary process.

A. Each JCC shall follow written procedures for handling (i) minor resident misbehavior through an informal process and (ii) instances when a resident is charged with a violation of the rules of conduct through the formal process outlined below. Such procedures shall provide for (i) graduated sanctions and (ii) staff and resident orientation and training on the procedures.

B. When staff have reason to believe a resident has committed a rule violation that cannot be resolved through the facility's informal process, staff shall prepare a disciplinary report detailing the alleged rule violation. The resident shall be given a written copy of the report within 24 hours of the alleged rule violation.

C. After the resident receives notice of an alleged rule violation, the resident shall be provided the opportunity to admit or deny the charge.

1. The resident may admit to the charge in writing to a superintendent or designee who was not involved in the incident, accept the sanction prescribed for the offense, and waive his right to any further review.

2. If the resident denies the charge or there is reason to believe that the resident's admission is coerced or that the resident does not understand the charge or the implication of the admission, the formal process for resolving the matter detailed in subsection D of this section shall be followed.

D. The formal process for resolving rule violations shall provide the following:

1. A disciplinary hearing to determine if substantial evidence exists to find the resident guilty of the rule violation shall be scheduled to occur no later than seven days, excluding weekends and holidays, after the rule violation. The hearing may be postponed with the resident's consent.

2. The resident alleged to have committed the rule violations shall be given at least 24 hours notice of the time and place of the hearing, but the hearing may be held within 24 hours with the resident's written consent.

3. The disciplinary hearing on the alleged rule violation shall:

a. Be conducted by an impartial and objective staff who shall determine (i) what evidence is admissible, (ii) the guilt or innocence of the resident, and (iii) if the resident is found guilty of the rule violation, what sanctions shall be imposed;

b. Allow the resident to be present throughout the hearing, unless the resident waives the right to attend, his behavior justifies exclusion, or another resident's testimony must be given in confidence. The reason for the resident's absence or exclusion shall be documented;

c. Permit the resident to make a statement and present evidence and to request relevant witnesses on his behalf. The reasons for denying such requests shall be documented;

d. Permit the resident to request a staff member to represent him and question the witnesses. A staff member shall be appointed to help the resident when it is apparent that the resident is not capable of effectively collecting and presenting evidence on his own behalf; and

e. Be documented, with a record of the proceedings kept for six months.

4. A written record shall be made of the hearing disposition and supporting evidence. The hearing record shall be kept on file at the JCC.

5. The resident shall be informed in writing of the disposition and, if found guilty of the rule violation, the reasons supporting the disposition and the right to appeal.

6. If the resident is found guilty of the rule violation, a copy of the disciplinary report shall be placed in the case record.

7. The superintendent or designee shall review all disciplinary hearings and dispositions to ensure conformity with procedures and regulations.

8. The resident shall have the right to appeal the disciplinary hearing decision to the superintendent or designee within 24 hours of receiving the decision. The appeal shall be decided within 24 hours of its receipt, and the resident shall be notified in writing of the results within three days. These time frames do not include weekends and holidays.

E. When it is necessary to place the resident in confinement to protect the facility's security or the safety of the resident or others, the charged resident may be confined pending the formal hearing for up to 24 hours. Confinement for longer than 24 hours must be reviewed at least once every 24 hours by the superintendent or designee who was not involved in the incident. For any confinement exceeding 72 hours, notice shall be made in accordance with 6VAC35-71-1140 D (room confinement).

Statutory Authority

§§ 16.1-309.9, 66-10, and 66-25.1 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 29, Issue 25, eff. January 1, 2014.

6VAC35-71-1120. Timeout.

A. Facilities that use a systematic behavior management technique program component designed to reduce or eliminate inappropriate or problematic behavior by having a staff require a resident to move to a specific location that is away from a source of reinforcement for a specific period of time or until the problem behavior has subsided (timeout) shall implement procedures governing the following:

1. The conditions, based on the resident's chronological and developmental level, under which a resident may be placed in timeout;

2. The maximum period of timeout based on the resident's chronological and developmental level; and

3. The area in which a resident is placed.

B. A resident in timeout shall be able to communicate with staff.

C. Staff shall check on the resident in the timeout area at least every 15 minutes and more often depending on the nature of the resident's disability, condition, and behavior.

D. Use of timeout and staff checks on the residents shall be documented.

Statutory Authority

§§ 16.1-309.9, 66-10, and 66-25.1 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 29, Issue 25, eff. January 1, 2014.

6VAC35-71-1130. Physical restraint.

A. Physical restraint shall be used as a last resort only after less restrictive behavior intervention techniques have failed or to control residents whose behavior poses a risk to the safety of the resident, others, or the public.

1. Staff shall use the least force necessary to eliminate the risk or to maintain security and order and shall never use physical restraint as punishment or with intent to inflict injury.

2. Trained staff members may physically restrain a resident only after less restrictive behavior interventions have failed or when failure to restrain would result in harm to the resident or others.

3. Physical restraint may be implemented, monitored, and discontinued only by staff who have been trained in the proper and safe use of restraint.

4. For the purpose of this section, physical restraint shall mean the application of behavior intervention techniques involving a physical intervention to prevent an individual from moving all or part of that individual's body.

B. Each JCC shall implement written procedures governing use of physical restraint that shall include:

1. A requirement for training in crisis prevention and behavior intervention techniques that staff may use to control residents whose behaviors pose a risk;

2. The staff position who will write the report and time frame;

3. The staff position who will review the report for continued staff development for performance improvement and the time frame for this review;

4. Methods to be followed should physical restraint, less intrusive behavior interventions, or measures permitted by other applicable state regulations prove unsuccessful in calming and moderating the resident's behavior; and

5. Identification of control techniques that are appropriate for identified levels of risk.

C. Each application of physical restraint shall be fully documented in the resident's record including:

1. Date and time of the incident;

2. Staff involved;

3. Justification for the restraint;

4. Less restrictive behavior interventions that were unsuccessfully attempted prior to using physical restraint;

5. Duration;

6. Description of method or methods of physical restraint techniques used;

7. Signature of the person completing the report and date; and

8. Reviewer's signature and date.

Statutory Authority

§§ 16.1-309.9, 66-10, and 66-25.1 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 29, Issue 25, eff. January 1, 2014.

6VAC35-71-1140. Room confinement.

A. Written procedures shall govern how and when residents may be confined to a locked room.

B. Whenever a resident is confined to a locked room, including but not limited to being placed in isolation, staff shall check the resident visually at least every 30 minutes and more frequently if indicated by the circumstances.

C. Residents who are confined to a locked room, including but not limited to being placed in isolation, shall be afforded the opportunity for at least one hour of physical exercise, outside of the locked room, every calendar day unless the resident's behavior or other circumstances justify an exception. The reasons for any such exception shall be approved in accordance with written procedures and documented.

D. If a resident is confined to a locked room for more than 24 hours, the superintendent or designee shall be notified.

E. If the confinement extends to more than 72 hours, the (i) confinement and (ii) the steps being taken or planned to resolve the situation shall be immediately reported to the department staff, in a position above the level of superintendent, as designated in written procedures. If this report is made verbally, it shall be followed immediately with a written, faxed, or secure email report in accordance with written procedures.

F. The superintendent or designee shall make personal contact with each resident who is confined to a locked room each day of confinement.

G. When confined to a room, the resident shall have a means of communication with staff, either verbally or electronically.

H. If the resident, after being confined to a locked room, exhibits self-injurious behavior (i) staff shall immediately consult with, and document that they have consulted with, a mental health professional; and (ii) the resident shall be monitored in accordance with established protocols, including constant supervision, if appropriate.

Statutory Authority

§§ 16.1-309.9, 66-10, and 66-25.1 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 29, Issue 25, eff. January 1, 2014.

6VAC35-71-1150. Isolation.

A. When a resident is confined to a locked room for a specified period of time as a disciplinary sanction for a rule violation (isolation), the provisions of 6VAC35-71-1140 (room confinement) apply.

B. Room confinement during isolation shall not exceed five consecutive days.

C. During isolation, the resident is not permitted to participate in activities with other residents and all activities are restricted, with the exception of (i) eating, (ii) sleeping, (iii) personal hygiene, (iv) reading, (v) writing, and (vi) physical exercise as provided in 6VAC35-71-1140 (room confinement).

D. Residents who are placed in isolation shall be housed no more than one to a room.

Statutory Authority

§§ 16.1-309.9, 66-10, and 66-25.1 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 29, Issue 25, eff. January 1, 2014.

6VAC35-71-1160. Administrative segregation.

A. Residents who are placed in administrative segregation units shall be housed no more than two to a room. Single occupancy rooms shall be available when indicated for residents with severe medical disabilities, residents suffering from serious mental illness, sexual predators, residents who are likely to be exploited or victimized by others, and residents who have other special needs for single housing.

B. Residents who are placed in administrative segregation units shall be afforded basic living conditions approximating those available to the facility's general population and as provided for in written procedures. Exceptions may be made in accordance with written procedures when justified by clear and substantiated evidence. If residents who are placed in administrative segregation are confined to a room or placed in isolation, the provisions of 6VAC35-71-1140 (room confinement) and 6VAC35-71-1150 (isolation) apply, as applicable.

C. For the purpose of this section, administrative segregation means the placement of a resident, after due process, in a special housing unit or designated individual cell that is reserved for special management of residents for purposes of protective custody or the special management of residents whose behavior presents a serious threat to the safety and security of the facility, staff, general population, or themselves. For the purpose of this section, protective custody shall mean the separation of a resident from the general population for protection from or of other residents for reasons of health or safety.

Statutory Authority

§§ 16.1-309.9, 66-10, and 66-25.1 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 29, Issue 25, eff. January 1, 2014.

6VAC35-71-1170. Chemical agents.

Chemical agents, such as pepper spray, shall not be used by staff for behavior management or facility security purposes.

Statutory Authority

§§ 16.1-309.9, 66-10, and 66-25.1 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 29, Issue 25, eff. January 1, 2014.

6VAC35-71-1180. Mechanical restraints.

A. Written procedure shall govern the use of mechanical restraints and shall specify:

1. The conditions under which handcuffs, waist chains, leg irons, disposable plastic cuffs, leather restraints, and mobile restraint chair may be used;

2. That the superintendent or designee shall be notified immediately upon using restraints in an emergency situation;

3. That restraints shall never be applied as punishment;

4. That residents shall not be restrained to a fixed object or restrained in an unnatural position;

5. That each use of mechanical restraints, except when used to transport a resident, shall be recorded in the resident's case file or in a central log book; and

6. That the facility maintains a written record of routine and emergency distribution of restraint equipment.

B. If a JCC uses mechanical restraints, written procedure shall provide that (i) all staff who are authorized to use restraints shall receive department-approved training in their use, including procedures for checking the resident's circulation and checking for injuries; and (ii) only properly trained staff shall use restraints.

C. For the purpose of this section, mechanical restraint shall mean the use of an approved mechanical device that involuntarily restricts the freedom of movement or voluntary functioning of a limb or portion of an individual's body as a means to control his physical activities when the individual being restricted does not have the ability to remove the device.

Statutory Authority

§§ 16.1-309.9, 66-10, and 66-25.1 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 29, Issue 25, eff. January 1, 2014.

6VAC35-71-1190. Monitoring residents placed in mechanical restraints.

A. Written procedure shall provide that when a resident is placed in mechanical restraints staff shall:

1. Provide for the resident's reasonable comfort and ensure the resident's access to water, meals, and toilet; and

2. Make a direct personal check on the resident at least every 15 minutes and more often if the resident's behavior warrants.

B. When a resident is placed in mechanical restraints for more than two hours cumulatively in a 24-hour period, with the exception of use in routine transportation of residents, staff shall immediately consult with a mental health professional. This consultation shall be documented.

C. If the resident, after being placed in mechanical restraints, exhibits self-injurious behavior, (i) staff shall immediately consult with, and document that they have consulted with, a mental health professional and (ii) the resident shall be monitored in accordance with established protocols, including constant supervision, if appropriate. Any such protocols shall be in compliance with the procedures required by 6VAC35-71-1200 (restraints for medical and mental health purposes).

Statutory Authority

§§ 16.1-309.9, 66-10, and 66-25.1 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 29, Issue 25, eff. January 1, 2014.

6VAC35-71-1200. Restraints for medical and mental health purposes.

Written procedure shall govern the use of restraints for medical and mental health purposes. Written procedure should identify the authorization needed; when, where, and how restraints may be used; for how long; and what type of restraint may be used.

Statutory Authority

§§ 16.1-309.9, 66-10, and 66-25.1 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 29, Issue 25, eff. January 1, 2014.

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