Virginia Regulatory Town Hall
Department of Behavioral Health and Developmental Services
State Board of Behavioral Health and Developmental Services
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10/31/19  2:31 pm
Commenter: Ken Crum, ServiceSource

Comments - 12VAC35-106

12VAC35-106-20. Definitions.

“Contracted employee” or “contractor” means a person that enters into an agreement with a provider to provide specialized services for a specified period of time.

COMMENT: We are concerned that the frequent requirements proposed for contractors throughout these regulations are in conflict with published guidance from the US DOL advising businesses to clearly distinguish between employees and contractors and to correctly classify them.  We are concerned that the proposed regulatory language blends the roles of employees and contractors rather than clearly distinguish. As a citation, here is a link to IRS guidance:  


12VAC35-106-60. Inspection requirements.

F. Any records or information requested by department staff in order to conduct the onsite review shall be available to department staff within one hour of the request for such information.

COMMENT: Extend the narrow hourly requirement to produce records.


12VAC35-106-250. Full-time and part-time employee records.

3. Employment history including dates and places of employment, job title, job description, and population served;

COMMENT:  This detailed information is not included on the applicant’s resume (e.g. population served and job description of previous positions).  This is an unreasonable request of providers and a further restriction on our already strained workforce crisis. This language would further reduce our available workforce if potential applicants self-screen themselves from applying if they are missing employment history with the specific population of DD.

5. Three job-related references supporting the knowledge, skills, and abilities of the minimum qualifications according to the job description;

COMMENT:  This requirement may be based on good intention, but in practice, the current legal counsel advice to employers is to limit reference content to minimal information advising them not to disclose qualitative information about performance.  The impact of this is that providers will not be able to solicit the detailed information as required for three job related references and will either (1) not be able to hire the applicant or (2) hire the applicant and not be in compliance with the regulation. 

9. Evidence of a Virginia driver’s license and driving record by the Virginia Department of Motor Vehicles for employees transporting individuals;

COMMENT:  This requirement should not be limited to a Virginia driver’s license since in many areas of Virginia, provider staff may live in a contiguous municipality such as DC, MD, WV, NC, TN or KY.   It would be unreasonable for providers to limit their workforce to Virginia residents.  This also limits providers in hiring new staff who may have just moved to VA and have not yet obtained a VA driver’s license, which is required within 60 days of moving to VA.


12VAC35-106-300. Employee training

A, Employee and contractor participation in training and development opportunities and the results of competency testing shall be documented within their personnel file and shall be accessible to the department

1. Required initial training: Within 7 business days following an employee or contractor’s start date, each employee or contractor responsible for supervision of individuals receiving services shall receive basic orientation and training regarding:

a) the provider’s behavior intervention policies procedures and techniques regarding less restrictive interventions, timeout, and physical restraint;

b) Cardiopulmonary resuscitation (CPR) and first aid training issued by the American Red Cross, the American Heart Association, or comparable authority in standard first aid and CPR. The training shall have a certification process which shall include a hands-on, in-person demonstration of CPR competency. Employees who are certified as an emergency medical technician shall be deemed to have fulfilled this requirement; and

c) medication administration including basic pharmacology and medication side effects.

2. Within 14 business days following an employee or contractor’s start date, the provider shall conduct emergency preparedness and response training that shall include:

a. Alerting emergency personnel and sounding alarms;

b. Implementing evacuation procedures, including evacuation of individuals with special needs;

c. Using, maintaining, and operating emergency equipment as appropriate for the service setting and individuals served;

d. Accessing emergency information for individuals receiving services including medical information; and

e. Utilizing community support services.

COMMENT:  The requirement for contractors to complete these trainings is unreasonable, since they generally have external credentials.  We also recommend exempting students and volunteers from these requirements since they are not serving in a role of independent direct service provision.

Behavior intervention, CPR, First Aid and medication administration training all collectively require multiple days of training, the limit of 7 days is completely unreasonable. In fact, even the logistics of scheduling this array of training EACH time a new employee is engaged is completely unreasonable.

We propose a 30-day time period rather than 7- or 14-day requirements and we also propose removing medication training since that training must be outsourced and scheduling is not controlled by a provider.  We also recommend that providers be allowed to identify which employees need medication training, based on their job description, since the administration of medications is not in each employee’s job description.

4. All new employees, contractors, volunteers and students shall be supervised until completing all orientation and training required under 12VAC35-106-300 (B) (1)- (3) and demonstrating competency through testing. All new employees, contractors, volunteers and students shall complete all orientation and training required under 12VAC35-106- 300 (B)(1)-(3) and demonstrate competency through testing prior to carrying out job responsibilities without supervision. Documentation of competency testing shall be kept in the employee or contractor’s personnel file.

COMMENT:  We are concerned that this requirement pertains to all staff, contractors, students and volunteers and states that they need to be supervised until training is completed and competency demonstrated through testing.  While this is of course best practice, we suggest language be clarified to exempt contractors, students and volunteers and to pertain ONLY to those employees whose job description requires them to provide the services identified in the training.

Due to the system wide challenge of recruitment of DSPs, this would further strain providers’ ability to deploy staff quickly.  Most providers do NOT have dedicated training staff and must redeploy their existing staff to be trainers, further exacerbating the strain on personnel resources.

  1. All employees, contractors, students, and volunteers shall complete an annual training that shall include:

1. Retraining of all the elements required within 12VAC30-106-300 B 1-3; and

2. Any additional training that may be required due to appropriate implementation of a corrective action plan required by 12VAC35-106-120, the provider’s risk management program required by 12VAC35-106-580, or the provider’s quality improvement program required by 12VAC35-106-590.

COMMENT:  We oppose the inclusion of contractors, students and volunteers within the training and orientation requirements.  For employees, establishing an annual training renewal for required elements that each have a longevity beyond one year (such as CPR and First Aid and behavior intervention) creates an unnecessary financial, administrative and scheduling burden on providers.  These further burden providers who are already stressed  to comply with existing recurring training requirements.  We recommend adhering to the renewal cycle of each of the respective required trainings rather than imposing an annual renewal.


12VAC35-1106-330. Performance evaluation.

  1. The provider shall evaluate employee and contractor performance at least annually and document the employee or contractor’s performance within the employee’s or contractor’s personnel file.  

COMMENT:  This requirement makes it clear that providers must conduct annual performance evaluations for their contractors which again pushes providers to treat their contractors as employees, thereby conflicting with DOL guidance.  We recommend that contractors be required to comply with the terms of their individual contracts and note that all contracts have termination clauses available to providers to enforce


12VAC35-106-350. Disciplinary actions.

A. The provider shall maintain policies and procedures governing employee and contractor discipline. Such policies shall include:

1. The circumstances under which discipline will be administered;
2. The range of penalties permitted;
3. Procedures for employee and contractor appeals of discipline;
4. Documentation of disciplinary actions and results of appeals; and
5. A list of types of individuals who may access documentation of disciplinary actions.

B. Policies for employee and contractor behavior that are subject to discipline shall include penalties for:

  1. Abuse, mistreatment, neglect, or exploitation of individuals;
  2. Violation of rights of individuals;
  3. Violation of confidentiality rules; and
  4. Violation of the provider’s policies.

COMMENT:  This is in conflict with  DOL guidance about keeping contractor and employees separate.  In reality, a provider would NOT discipline a contractor but rather terminate its contract for their services.


12VAC35-106-560. Transportation.

B. The provider shall conduct a check of all employees’ or contractors’ driving records. The provider shall not permit an employee or contractor to transport individuals if they have a conviction for driving or operating a vehicle under the influence or reckless driving within the past two years.

1. The check of the employees’ or contractors’ driving record shall occur at the time of employment and annually thereafter. Documentation of the latest check of the employee or contractors’ driving record shall be placed within their personnel record.

COMMENT:  We recommend that this requirement only apply to employees who have a requirement in their job description to transport persons served.  Contractors should be excluded from this requirement if they do not have the responsibility within their contact to transport people served.


12VAC35-106-600. Paper and electronic Individual records management policy. (blend of current sections; see tracking chart)

COMMENT:  This requirement to add new security measures to ensure protection of records from loss such as fire and water damage is a very costly service and would be extremely difficult for providers to implement.  It is good intentioned, but is an unreasonable expectation.

CommentID: 76816