Virginia Regulatory Town Hall
Department of Behavioral Health and Developmental Services
State Board of Behavioral Health and Developmental Services
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10/15/19  8:50 am
Commenter: John Humphreys

organizational concerns

The proposed draft regulations contain multiple provisions that will unnecessarily and severely limit the available staffing pool of individuals for hire.


106 – 200 – B & C – executive director or administrator – while I agree with the reduction of the current (field specific) requirement to any baccalaureate degree, the reduced experience requirement for specific degrees in B1 & 2 should be amended to include all currently accepted field specific degrees – –Also the addition in B and an amendment to the word “and” at the end of C1 that would permit individuals who have met the QDDP functional equivalency standard to serve in this role. There are individuals currently, without a baccalaureate degree, who have successfully been providing quality services and demonstrating all of the knowledge, skills and abilities required of the QDDP designation for decades. These individuals some with 20+ years experience , clearly and consistently demonstrating their ability to fulfill this role are much more qualified than an individual with a degree in ceramics or Russian literature with only 4 years experience. The mere possession of a baccalaureate degree does not make you a better or safer choice for this position than someone who has been successfully fulfilling this role for decades. Even if the state does not want to make this available in the future, they should at the very least out of fairness, grandfather in existing QDDP functional equivalents (as was done with the case manager position recently) and amend the regulation to allow them to serve this role. This change would increase the available applicant pool, improve the overall qualifications of the Individual selected and avoid a gross injustice to those individuals who have dedicated a significant portion of their life to developing and proving they possess the KSAs to fulfill the role.


106 – 250 – A3 – employment history and A5 job-related references – while these standards are acceptable for supervisory/professional positions they are problematic for hourly DSP hires and significantly constrain the available pool of potential staff for those positions. We have hired individuals directly out of high school (and in one case a recent divorcee) who had absolutely no prior job experience and in many of these cases with training and supports these individuals became excellent DSPs. They would be excluded from hire and the applicant pool as the regulation is currently constructed; requiring amendment to accommodate these good employees. Additionally, several good applicants had only worked as clerks in convenience stores/production labor or other similar positions where the job title/description and population served bears little relevance and is fairly self-evident. Also it is almost impossible to get detailed information in a job reference call where typically all they are allowed to provide is verification of hire date and end date and in a few cases (but seldom) eligibility for rehire; making obtaining supporting information for KSAs impossible, even if the provider wanted to get this information and again under the regulation exclude those individuals from the pool.


106 – 260 – contracted employees – A5 – same problems here – we currently contract with an individual who operates a sponsored placement home, this individual was hired directly out of high school by the licensed organization and worked as a DSP 10 years prior to becoming a contracted employee. As a result, I can verify that they have the KSAs and minimum qualifications of the job description but would have to cancel their contract and let them go (denying the individuals they serve their informed choice of provider and disrupting their continuity of services) because they do not have 3 job-related references in their employment history. Even if the individual had 3 prior jobs (or took 2 more and then quit so they can be re-contracted) verification of KSA’s for those jobs would run into the same difficulties indicated above, again significantly decreasing the pool of available applicants.


106 – 240 – B3 – repeated background checks & 106 – 560 – B1 annual driving records – also create a significant dilemma for providers in that they can either:

1)require individual employees to pay the cost for these provisions – in which case these provisions become an employment tax for our employees not encountered in other similar positions, making the positions less attractive and decreasing the available applicant pool (particularly given the low wages we can offer given the current inadequate reimbursement rates) or 2) The provider pays the cost of these additional provisions and it becomes another unfunded mandate (cost not included in the Burns rate setting analysis) that creates a particularly onerous burden for small businesses who lack the economies of scale of large bureaucratic organizations (see analysis small business destruction earlier posting). The necessity for these provisions for small businesses is also very doubtful – insurance companies require a driver’s list with driver license numbers for all staff who will be transporting individuals served, which they monitor sending you a notice for an increase in your insurance rate if you do not remove the offending individual from the list when a concern crosses their computers; making it possible to track the significant offenses listed in the proposed regulations (as well as others) without the additional cost of and annual driving record. Similarly, barrier crimes committed in our area are typically front-page news, requiring the employee to take time off to address the charges/serve any sentence and would certainly become grist for the gossip mill ensuring provider notification whether the individual employee provided the notification or not; making the additional cost of annual background checks unnecessary to accomplish the purpose. Given these existing protections, the obvious question becomes what is the necessity based in fact for these additional unfunded mandates. How many times as someone convicted of a barrier gone unnoticed and continue to provide services? How many times has someone been involved in an accident involving individuals served who would not have been driving under the proposed regulations? Without some basic information, it becomes impossible to develop a rational public policy response that balances the actual risk against the harm done by the regulation – not answering these questions up front is how overregulation occurs and has become so pervasively prevalent in our society.


In conclusion, ad response rates are down and the available pool of acceptable applicants has steadily dwindled, some reject offers due to the low wages (forced by the obscenely low assumptions that went into the reimbursement rates that have not been refreshed in years) and some veteran DSPs have moved to other service types to obtain higher wages because the current reimbursement rates have left us uncompetitive; given this environment additional unnecessary restrictions on the available labor pool should receive serious reconsideration.


The proposed draft regulations contain a number of provisions which add additional unfunded mandates that have no demonstrated necessity based in fact.


106 – 180 – B9 & B10e – require audits and audit approvals without providing any specificity as to what these audits are required to contain or who must do them, making cost calculations difficult but they could be significant.

106 – 210 – A – sets standards for an annual operating statement, balance sheet and working budget; but never uses the word audit so it appears these are separate and distinct from the audit requirement in 180, adding another significant financial burden to the regulations. Combined these could be in the thousands of dollars. The extent of the unknown cost is further magnified by 210 – A2 –the department may require audit by a CPA who is independent of the provider; given past precedent I assume these cost would have to be paid by the provider not the state, who would have no incentive to seek the best deal for the provider; resulting in another significant unfunded mandate. As written the regulation would get unfettered discretion to the department to request this audit for any reason whatsoever or no reason at all – which is significantly unjust. This provision should be rewritten to require at the very least a reasonable suspicion or identification of concerns that make an independent audit advisable and set some limits on the states discretionary power and the potential for abuse of this provision. The state should also provide a small business exemption from these provisions as recommended by the administrative process act; or at the very least exempt them from a costly CPA requirement. In our small business, the operational account is fairly simple – with only one source of income (monthly DMAS reimbursements) and 5 line item expenditures and all of the necessary information for a licensing review and determination of the need for an independent CPA audit can be generated in the house by a QuickBooks print out they would have little or no cost for the small business. 210 – F – also requires some revision/clarification, in our very small business one individual lost from our service population (for whatever reason) is a significant reduction in incoming funds, but it is one we have survived many times over the years and have empirically proven successful contingency plans for, so why should each one need to be reported.


106 – 240 – A3 – documenting post background checks – separate documentation is just another unfunded mandate as payroll and other records would make the answer to this question self-evident and provide better evidence of compliance than the proposed requirement.

106 – 560 – C4 – require headcounts at each stop – yes, this is best practice and everyone should be doing, but the proposed regulatory change is both unnecessary and a significant unfunded mandate. Once made a requirement in the regulations, providers would have to create a form and document the headcount at each stop, apparently even when the headcount is one, in order to provide information to the licensing agent that documents adherence. Since the Burns rate-setting analysis specifically excluded any time for staff documentation this becomes an additional unfunded mandate. The purpose of this requirement could just as easily be accomplished by expanding the definition of missing in serious incident reporting, requiring a report any time an individual is left behind inappropriately at any stop. This change would allow licensing to monitor for the absence of headcounts, reduce the documentation burden to actual incidents of misconduct and provide a mechanism that emphasizes the significance of this type of lapse and force investigation/response. This is a very significant concern and including it as a serious incident level II would be much more effective in addressing the purpose of the proposed regulation than the proposed regulation. 560 – C3 – again is clearly best practice but given the need to individualize services would be better addressed in the specific ISPs of individuals who have been assessed as creating additional supervision needs during transport; rather than a blanket statement that attempts to cover all possible scenarios.

106 – 490 – emergency medical information – the addition of any medical protocols in A6 – makes complying with the requirement in A for a “face sheet” impossible to accomplish- medical protocols are multiple pages and would never fit on a face sheet. In addition, the inclusion of medical protocols is unnecessary for 2 reasons – 1st individual medical protocols seldom vary from the standard protocols for that condition and when they do we already have a section for special considerations on a “face sheet”; 2nd - protocols are very helpful to DSP staff; however, emergency responders have empirically demonstrated no interest in them, as they follow their own protocols and training regardless of what your specific protocols might call for so the change is meaningless in the real world and complying becomes another unfunded mandate. The future intent appeared in the minutes of the regulatory advisory meeting of 9/26/19 where item 57 reads “face sheet: EHR is never outdated; consider technology”; clearly indicating this change is the beginning of a process to force EHR on providers. EHR is a hugely significant unfunded mandate, we considered this technology and found both the startup and the ongoing maintenance cost of the technology would be independently prohibitive; forcing closure of our small business. This statement provides clear evidence of how out of touch the department is with the current status of reimbursement rates, small businesses and the impact of what they perceive as simple changes. Also, given the constant news of new database hacks, this system arguably places an individuals protected information at substantially greater risk.

106 – 600 – A4 – protecting records from fire or water damage – this new requirement is too vague to indicate the true cost of compliance at this time; however, could be very significant depending upon how it is interpreted, implemented and enforced – at one extreme, total protection would require that they be secured in a salt mine in the Midwest somewhere (currently done by major financial institutions), which would make the one hour document production requirement in 106 – 60 – F particularly problematic; even lesser, protection would require providers to purchase water and fire resistant cabinetry for storage of their records and the number of records/lengthy retention requirements would add thousands of dollars of additional cost. While it may be appropriate to cite providers for carelessness in record storage and exposing them to known water or fire risk, as written this is wholly inappropriate and lays the groundwork for future unwarranted exercises of the department’s discretion and possible abuse.


In conclusion, this draft proposal continues to pile additional unfunded mandates of often unknown but potentially hugely significant cost on the provider on top of those already added on since the Burns rate-setting analysis was conducted. While the cost of any one provision may appear to be relatively insignificant the cumulative effect of this continued piling on even of small unfunded mandates will have disastrous impacts – 1st – small businesses do not have the economies of scale which the original Burns analysis depended upon to make any additional funds available; as a result, these changes would severely adversely impacted small businesses and relief is required under the administrative processes act. During my conference call with DBHDS, they lamented that they must address both mom-and-pop shops and multinationals in their regulations, which I understand could be difficult; however, these concerns could be readily addressed by utilizing the 5 mechanisms found in the administrative process act to adapt regulations to small businesses – nowhere in the current regulations nor those proposed are there any accommodations specific to small business and clearly delineating adaptations for small businesses as required by the APA would be appropriate for both these and many of the existing regulations – resolving their conundrum; 2nd while the cost of the unfunded mandates in the proposed draft regulations will surely be in the tens of thousands of dollars they could easily reach the hundred thousand level; regardless, each and every individual unfunded mandate uniquely and linearly decreases the compensation we can provide to support staff, a seemingly small cost of $2000 represents a dollar per hour for a single full time DSP or $.10 an hour for 10 full time DSPs for a year and more than double that impact for part-timers; so the funds available for the entry wage and our subsequent raises would be reduced further by each individual small unfunded mandate –the current average wage in Virginia is already below the average wage at McDonald’s – how can the state justify calling them professionals, requiring we trained them up to professional standards but only make it possible to pay them unskilled labor rates.


Lest you think these concerns mad musings or exaggerated hypotheticals, consider the empirical evidence. The only state specific singled out as a source for the draft regulations in the 9/30/19 conference call with DBHDS (see earlier post) was Maine. So, I googled Maine group homes 2019 to see how the regulations were working out for them. The Portland Press Herald reported on 7/14/19 a shortage of group homes in the state and in an editorial on 7/22/19 identified a statewide group home and group home workforce crisis. The NECN, regional news source reported on 7/15/19, that 1580 people approved for group home services in Maine could not be placed due to a shortage of group homes and struggles to find workers to staff homes. The direct link to unnecessary overregulation and evidence that the situation would be far worse if these regulations were imported to Virginia can be seen by comparing the 2 states. Maine has a lower cost of living (11th lowest versus Virginia being the 15th highest in the US – USA Today 5/10/18), pays DSPs significantly more ($11/hour starting guarantee increasing to 12 in January versus an average in Virginia of $10.35 even with veteran employees included – Burns analysis) and has higher reimbursement rates ($69,700/waiver participant versus just $63,900 in Virginia – Sate of the States in IDD, 2017). Even with all of these advantages the Maine service system has been unable to survive these regulations, why on earth would we try to import the same disaster into Virginia where we would surely fare worse given the comparative economics.


CommentID: 76579