The State Board of Behavioral Health and Developmental Services has released draft regulations governing recovery residences, as required by this year’s recovery housing law.
The draft is open for public comment through September 25, giving the public an opportunity to weigh in before the proposed rules enter Virginia’s formal regulatory process.
The SB270/HB931 Recovery Residences Workgroup will review and discuss the public comments at its next meeting, scheduled for October 15.
At the group’s Aug. 24 meeting, Mary Broz-Vaughan, DBHDS director of regulatory affairs, emphasized the importance of public participation. “The regulatory process has public comment and participation baked in at every stage, and it really is meaningful, and that is why it takes so long,” she said. “It helps ensure that, if not the best outcome, a better outcome.”
Susan Puglisi, DBHDS regulatory research specialist, later added: “We really want everyone’s feedback.”
Members of the public can view the draft and submit comments through the Virginia Regulatory Town Hall.
The highlights are as follows.
Pathways to certification
In accordance with the new law, the draft regulations establish a pathway for operators to apply for certification directly to DBHDS without first going through a third-party, such as the Virginia Association of Recovery Residences (VARR) or Oxford House. Operators choosing that route would provide DBHDS with the residence’s floor plan, policies and procedures, proof of insurance and other information.
The draft is unclear about whether an initial on-site inspection is required for residences applying directly to DBHDS.1
>>Click to view the full text of this section
12VAC35-260-50. Application for certification or conditional certification.
A. All recovery residences that are not currently certified or conditionally certified shall be required to apply for certification or conditional certification using the application forms provided by the Department.
B. Recovery residences applying for certification shall submit:
1. An application form required by the department which shall include;
a. The name of the individual or organization seeking certification;
b. The proposed name of the recovery residence;
c. The address and telephone number of the recovery residence
d. The applicant’s address and telephone number, if different from the address and telephone number of the recovery residence;
e. An email address for the applicant or organization;
f. The name and contact information of the applicant’s parent organization, if applicable;
g. The maximum number of residents to be housed in the recovery residence;
h. The floor plan of the recovery residence which includes square footage of all rooms;
i. The name, address, telephone number, and email address of the operator of the recovery residence, if different than the applicant;
j. Copies of policies and procedures required by this chapter;
k. Documentation that the applicant is the owner of the property or a legal agreement that the applicant has permission to operate a recovery residence on the premises;
l. Proof of business insurance, including general liability insurance; and
m. An application fee.
2. In lieu of an application as required by 12VAC355-260-40 (B) (1), the recovery residence, or the credentialing entity on behalf of a recovery residence, may provide evidence of accreditation by a charter from or membership in a credentialing entity listed below:
a. the Virginia Association of Recovery Residences;
b. or Oxford House, Inc.
C. If the department identifies deficiencies in an application, the department shall notify the applicant in writing. The applicant shall have 30 days from the notification of the deficiency to correct the deficiency.
D. The department shall screen an application and accompanying documents for completeness according to the date and time the application is received. An application will be considered complete when all required documents are received by the department.
E. Upon initial review and approval of an application, the department may conduct an inspection of the recovery residence to ensure the residence is in compliance with this chapter and meets standards for certification.
1. Recovery residences which are accredited or chartered from a credentialing entity shall not be required to have an inspection.
2. The credentialing entity shall share information requested by the department regarding applicants to ensure compliance with this chapter.
F. Any applicant who does not respond to application deficiencies or who does not schedule an inspection based on department procedures shall have their application closed. The department shall notify the applicant in writing of the application closure and that new application may be submitted. An applicant who has had an application closure shall wait 60 days prior to the submission of a new application.
G. The department shall issue a certification upon approval of a recovery residence’s application and inspection.
H. A certification shall last for a period of two years.
I. A certification issued pursuant to this chapter shall not be transferred or assigned to another recovery residence. A new application shall be made and a new certification issued when there is a change in ownership.
J. Each recovery residence shall be certified, and each recovery residence shall submit a separate application and documentation.
Certification denials and revocations
DBHDS would have the authority to deny or revoke certification for a range of violations, including:
- failing to comply with the regulations;
- refusing to provide records or access to DBHDS;
- allowing illegal acts;
- submitting false or misleading information to DBHDS; and
- conduct that is “detrimental to the welfare of any individual in residence.”
This section also addresses the criminal histories of owners, operators, directors and chief financial officers. DBHDS could deny or revoke certification when any of those individuals has been convicted of certain offenses — including healthcare fraud, resident brokering, criminal use of confidential personal information, or abuse, neglect or exploitation of vulnerable persons — within five years prior to the application.
It’s unclear why a conviction for abusing, neglecting or exploiting a vulnerable person would no longer, by itself, prevent someone from holding a position of authority over recovery housing residents after five years.
>>Click to view the full text of this section
12VAC35-260-80. Denial or revocation of certification or conditional certification
A. An application for certification, conditional certification, or certification renewal may be denied or a certification or conditional certification may be revoked for one or more of the following reasons:
1. The recovery residence or applicant has violated any provisions of § 37.2-431.1 of the Code of Virginia or these regulations;
2. The recovery residence or applicant’s conduct is detrimental to the welfare of any individual in residence;
3. The recovery residence or applicant permits, aids, or abets the commission of an illegal act;
4. Any owner, operator, director, or chief financial officer has been found guilty of, or has entered a plea of guilty or nolo contendere to any of the following offenses within five years prior to the application:
i. A serious offense related to healthcare fraud;
ii. Resident brokering;
iii. Criminal use of confidential personal information; or
iv. Abuse, neglect, or exploitation of vulnerable persons.
5. The recovery residence or applicant fails or refuses to submit reports or make records available as requested by the department;
6. The recovery residence or applicant refuses to admit a representative of the department who displays a state-issued photo identification to the premises;
7. The recovery residence or applicant fails to submit or implement an adequate corrective action plan;
8. The recovery residence or applicant submits any misleading or false information to the department.
9. Repeated violations continue despite corrective measures.
10. Accreditation or chartering is permanently withdrawn.
B. A recovery residence shall be notified in writing of the department’s intent to deny or revoke a certification or conditional certification; the reasons for the action; the right to an informal conference; and the informal conference process.
Complaint process
The draft regulations would require each recovery residence to have an internal complaint process, giving residents the right to file complaints without retaliation. Operators would be required to designate someone to handle complaints, contact residents within 24 hours and provide a decision and action plan within 10 working days.
Complaints involving an operator, residents’ health or safety, or injury, abuse or exploitation would have to be reported to DBHDS, with shorter reporting deadlines for serious allegations. DBHDS would be required to respond to complaints within five business days.
For complaints involving residents’ health or safety, injury, abuse or exploitation, residents could also contact DBHDS directly. The draft does not specify how residents would do so, nor does it require that they be provided with instructions for filing a complaint. A later section states that each resident should receive a handbook outlining the rules, expectations and residents’ rights, but it does not specifically require the handbook to include information about contacting DBHDS.
At the Aug. 24 workgroup meeting, McShin CEO Honesty Liller pointed out: “I think it needs to be, for the humans that we serve, needs to be an easy process.”
>>Click to view the full text of this section
12VAC35-260-140. Complaint process.
A. Each recovery residence shall have a complaint policy and procedure which addresses the requirements of this section. The policy and procedure shall:
a. Identify the staff member who is responsible for addressing complaints; and
b. Prohibit the use of non-disclosure agreements that conflict or deter submission and investigations of complaints.
B. Each resident in a recovery residence has the right to:
1. Make a complaint regarding the recovery residence or the operator of the recovery residence;
2. Have a timely and fair review of any complaint in accordance with the recovery residence’s policies and procedures; and
3. Make a complaint under any other applicable law, including to protection and advocacy agencies.
C. When a resident makes a complaint to the recovery residence, the resident shall:
1. Be contacted by the staff member of the recovery residence responsible for addressing complaints regarding the complaint within 24 hours;
2. Be protected from retaliation and harm;
3. Have the complaint reviewed, investigated, and resolved as soon as possible;
4. Receive a report with the recovery residence’s decision and action plan regarding the complaint within 10 working days.
5. Be notified in writing of his right to and the process for appealing the decision and action plan to the recovery residence’s operator.
D. Certain classifications of complaints shall be referred directly to the department. Complaints to be referred directly to the department include:
1. Complaints regarding the recovery residence’s operator.
2. Complaints which concern the health, safety or welfare of the residents of the recovery residence.
i. The resident may contact the department directly.
ii. The recovery residence operator shall notify the department of the complaint as soon as possible, but no later than the next business day.
iii. Credentialing agencies shall notify the department of the complaint as soon as possible, but no later than the next business day.
3. Complaints involving injury, abuse or exploitation:
i. The resident may contact the department directly.
ii. The operator shall take immediate steps to protect the resident until an investigation is complete;
iii. The recovery residence operator shall notify the department of any injuries or allegation of abuse or exploitation within 24 hours of discovery;
iv. A credentialing entity shall notify the department of any injuries or allegation of abuse or exploitation within 24 hours of receiving the complaint.
v. The operator shall ensure that an investigation is conducted by a person who is not involved in the issues under investigation;
vi. The investigator shall provide a written report of the results of the investigation of injury, abuse or exploitation to the operator and to the department within 10 working days from the date the investigation began unless an extension has been granted by the department.
E. The department shall respond to all complaints referred to the department as soon as possible but no later than five business days.
F. If at any time the operator has reason to suspect that any complaint reported to them is a crime and that it occurred on the recovery residence premises, the operator shall immediately contact the appropriate law-enforcement authorities and cooperate fully with any investigation that may result.
G. Recovery residences and recovery residence operators are prohibited from creating, using or pressuring a resident to enter into a non-disclosure agreement which would interfere with the resident’s right to submit a complaint regarding the recovery residence or recovery residence operator.
Inspections
The draft gives DBHDS the authority to conduct announced or unannounced inspections at any time to determine compliance with regulations or as part of investigation of complaints or serious incidents.
Corrective action plans
This section requires recovery residences to submit corrective action plans for violations identified during DBHDS inspections or complaint investigations. The plans must detail how each violation will be corrected, include deadlines for completing the corrective actions and identify who will oversee them. Residences generally would have 15 business days to submit a plan, although DBHDS could require immediate action when violations pose a danger to residents.
For DBHDS-licensed programs, such as residential treatment facilities, inspection reports, investigations and corrective action plans are available for public review online. The draft regulations do not specify whether the same records for recovery residences would be made publicly available.
>>Click to view the full text of this section
12VAC35-260-120. Corrective action plans.
A. If there is noncompliance with any applicable regulation during an inspection or complaint investigation, the department shall issue a certification report describing the noncompliance and requesting the recovery residence to submit a corrective action plan for each violation cited.
B. The recovery residence shall submit to the department a written corrective action plan for each violation cited.
C. The corrective action plan shall include a:
a. Detailed description of the corrective actions to be taken that will minimize the possibility that the violation will occur again and correct any deficiencies;
b. Date of completion for each corrective action; and
c. The responsible person designated to oversee the implementation of the pledged corrective action.
D. The recovery residence shall submit a corrective action plan to the department within 15 business days of the issuance of the certification report. One extension may be granted by the department when requested prior to the due date, but extensions shall not exceed an additional 10 business days. An immediate corrective action plan shall be required if the department determines that the violations pose a danger to residents of the recovery residence.
E. The recovery residence shall implement an approved written corrective action plan for each violation cited by the date of completion identified in the plan.
F. Failure to implement a corrective action plan by the date of completion identified in the plan may result in disciplinary action enumerated within 12VAC3-260-100.
Disciplinary actions
The draft regulations establish a range of disciplinary measures DBHDS can impose on recovery residences, from warnings and probation to suspension and ultimately decertification. Grounds for discipline include repeated complaints that “indicate systemic issues,” health and safety concerns, failure to report serious incidents, failure to implement corrective actions, interfering with inspections, and loss of third-party accreditation or chartering. Credentialing entities would also be required to report sanctions against the residences they credential to DBHDS.
>>Click to view the full text of this section
12VAC35-260-130. Disciplinary actions.
A. The department may invoke disciplinary actions as enumerated in § 37.2-431.1 of the Code of Virginia upon receipt of information that a recovery residence is:
1. In violation of the provisions of § 37.2-431.1 of the Code of Virginia, these regulations, or the requirements of their charter or membership within their credentialing entity; and
2. Such violation adversely affects the residents within the recovery residence, or poses an imminent and substantial threat to the health, safety or welfare of residents.
B. Warning notice. The department may issue a warning notice to a recovery residence when:
1. Multiple deficiencies are identified; or
2. The department receives repeated complaints about a recovery residence.
C. Probationary status includes inspections, documentation requests, and progress reviews. The department may place a residence on probationary status when:
1. Multiple deficiencies are identified;
2. Repeated complaints indicate systemic issues; or
3. Health and safety concerns necessitate enhanced oversight.
D. Suspension of indigent bed funding. The department may suspend a recovery residence’s indigent bed funding when:
1. Immediate danger to residents is present; or
2. Serious incident reports are not submitted or not submitted within the deadline.
E. Temporary suspension prohibits a recovery residence from representing itself as certified during the suspension. Temporary suspension bars the recovery residence from admitting new residents during the term of their suspension. The department may place a recovery residence on temporary suspension when:
1. Immediate danger to residents is present;
2. Serious incident reports are not submitted or not submitted within the deadline;
3. Accreditation or chartering status is lost; or
4. The recovery residence refuses to admit a representative of the department who displays a state-issued photo identification to the premises, or otherwise interferes with an inspection.
F. Decertification or revocation of certification bars future applications for a period defined within department policy. Certification may be revoked when:
1. The recovery residence conduct is detrimental to the welfare of any individual in residence;
2. The recovery residence or operator submits any misleading or false information to the department.
3. The recovery residence fails to report serious incidents to the department.
4. Corrective action plans are not carried out or inadequately carried out.
5. Repeated violations continue despite corrective measures.
6. Accreditation or chartering is permanently withdrawn.
G. Credentialing entities shall report all sanctions of their credentialed recovery residences to the department at the time the credentialing entity reports the sanction to the recovery residence.
Prohibition against deceptive or false advertising
This section states: “The recovery residence shall not use any advertising that contains false, misleading, deceptive statements or claims. The recovery residence shall not use any advertising that contains false or misleading disclosure of fees, payments, or disclosure of outcomes.”
A noticeable omission
The draft regulations do not include a prohibition expressly required by state law.
As of this year, Virginia law mandates that recovery housing regulations:
shall require that no recovery residence, or operator, employee, or agent of a recovery residence, require a resident to participate in medical or psychological services, including clinical substance use treatment, that such recovery residence receives financial benefit from, either directly or indirectly, as a condition of entering or continuing residence at such recovery residence.
The draft contains a vague prohibition on resident brokering,2 but does not include language that clearly implements this statutory mandate.
To view the full draft and submit comments, visit the Virginia Regulatory Town Hall.
The next workgroup meeting will be hosted virtually from 1 to 3 p.m. Thursday, Oct. 15. Registration is available here.
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1. One subsection says DBHDS “may” conduct an inspection after reviewing and approving an application, while another says the department “shall issue a certification upon approval of a recovery residence’s application and inspection,” suggesting that an inspection is required. [Return to article]
2. The draft defines resident brokering as “an illegal practice in which a recovery residence or a recovery residence operator offers or pays any remuneration directly or indirectly, in cash or in kind, in return for referring a resident or residents to the residence.” [Return to article]