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  6:43 pm
Commenter: Carlinda Kleck, MHSADS

Licensing Draft Comments

The opportunity to review and respond to the draft general chapter regulations is appreciated; however, we feel that we cannot give a thorough and comprehensive review with the specific disability chapters to review in tandem. With that in mind, the following are concerns our agency has identified.

Regulation §





The definitions for the Initial Assessment and Comprehensive Assessment imply that these are two separate documents. This implies there will be two documents.  This needs to be removed as the information in the comprehensive assessment is needed at the initial assessment to meet DMAS requirements for many services. Requiring two separate documents is not person centered or appropriate.

We recommend language such as “the comprehensive assessment may be completed at the time of initial assessment if it includes all elements of the comprehensive assessment.”



Emergency Services - This indicates that emergency services will be in the home and community.  This sounds like mobile crisis.



Licensing Report - A report should be sent to a provider following a visit to indicate no issues identified, not just when asking for a corrective action plan.



Mental Health Skill Building - The idea of restore to baseline functioning is problematic. This seems to imply a person would have had to know how complete a task or skill, lost ability and then be “restored”.  This would eliminate being able to work with someone on developing new skills and abilities for more independence.  This definition also is not person-centered.



Partial Hospitalization Program - This definition seems to eliminate individuals with co-occurring Developmental disorders. It would seem those with a DD who have a serious mental illness might benefit from partial hospitalization and should be clinical screened to determine appropriateness.  Is the intent to exclude those with DD with dual diagnosis, even when clinical determined they would benefit from the service?



What does health status mean in the definition of quality improvement plan?  The “health status” of a diagnosis might not improve…however, the individual could make progress in independence, ability to recognize symptoms and take actions for assistance. Improvement in health status may not be possible.



Risk Management - Concern with “ensure the safety”; this is not risk management, nor is it person-centered and honoring of dignity of risk.  “Risk management” mean an integrated system-wide program to identify, mitigate (as appropriate) and evaluate risks to individuals, employees.  Risk management includes education and ensuring informed choice for individuals receiving services.  Risk management is not intended to prevent individuals from making informed choices nor for restricting an individual’s rights without following the process identified in the Human Rights regulations.



Who determines what is adequate information and knowledge as referenced in the informed choice definition?



Screening needs further definition as the components of the regulations in this chapter do not speak to its application.



Seclusion: this definition contradicts Human Rights regulations, which states only Children’s Residential Facilities and inpatient hospitals may use it and only in an emergency. Correctional facilities follow the Department of Corrections regulations.



Serious incident: The requirement to report missing individuals per the definition is too subjective.

Disagree that a sexual assault should be categorized as a level III. During the provision of outpatient services, this information may be disclosed. Adults with capacity may not wish to follow-up with that information. Additionally, reporting such incidents may negatively affect the therapeutic relationship the individual establishes with a provider.  This would be outside the scope of disclosing information as the individual should be able to determine who receives the information.  The provider’s role is to assist the individual with ensuring personal safety and reporting to appropriate authorities.  The appropriate calls would be to APS/CPS and police.  Additionally, an individual may disclose a past sexual assault to a provider to work on the trauma.  Reporting this incident to DBHDS is not appropriate and takes DBHDS beyond the scope of responsibility.

Suicide Attempt - Again concern with scope of reporting.  A person may reveal in an assessment or service of past attempts…reporting these would serve no purpose…also, who makes the determination of the definition of “intent to die” if it was in the past.  This too seems to ask for information outside of what is helpful for quality assurance and DBHDS responsibility.



Structural Modification - What is fundamental change to the structure of a building?  Need to see how this is used…if change is happening in a non-service area of a building why would DBHDS need to know?



Supervised Living - To be person-centered, I would recommend this be changed from requiring daily monitoring…it could be that a person would need support five days a week, but not seven.  What is meant by daily monitoring? For a continuum of care and to be person-centered, suggest looking to have less restrictive amount of monitoring.



The department should be required to provide providers specific information about the budget requirements; there needs to be a review process.  How is this going to be consistently applied?  What is the bases of “appropriateness”?



Clarification requested on “maximum capacity of individuals served at a given time.” For example; many individuals attending day support programs do not attend five week days, but rather anywhere from one to five days. A day support program may have a maximum number it can support per day which is very different from the maximum number of individuals it can have enrolled. As the current definition is not specific, there is concern that providers may not be able to support individuals due to this requirement of defining the maximum individuals to serve. This has the potential for individual to lose vital services. Seems setting staffing ratios is a better method than putting on the license and needing to make modifications.  What is the purpose for this information?  How is it going to be used?


License Types

A.3.e. - Seems there could be cause to lower a license to a provisional license if there is substantial concern.  Why indicate only an annual license?


Inspection requirements

The requirement to have records within an hour for an onsite visit is not feasible. As a county agency, many of our personnel records are stored with county human resources department. In addition, it can take time to set up a guest account, etc. in order to get the records. While we strive to get records as soon as possible, this short of a turnaround time does not leave room for staff who may be assisting with individuals and are unable to make the hour requirement.


Changes to licenses and notifications to the department

Not all modifications should require the same modification form information and attachments.  Please provide clarity on what is required for changes. 

The requirement to have service modifications to the department at least 45 business days prior to the change slows down providers’ ability to ensure service delivery and individuals’ choice of providers. Additionally, the department’s timeframe for response is not defined. We request shorter timeframes to meet individuals’ changing needs and defined timeframes for departmental response.

D. There may be situations where this is not possible, i.e. sudden illness or death of sole ownership organizations.  There must be an emergency exception for this requirement to ensure services. If the services provided are not changing with the new owner, why does a service description have to be submitted?

E.6. This is concerning.  What is considered significant?  Is this meant for each individual as in if a provider can’t provide services to an individual for a month as they are traveling?  Unreasonable.

G. Again, what is the department timeline for returning?  What is to happen in the interim…if there is a sudden change in ownership, do people have to move out of group homes ASAP?  This is a concern for person-centered system.


Corrective Action Plan

We support the following language to section E. The department shall review the plan and notify the provider within 10 business days if the corrective action plan is approved or not approved.  If not approved, the department shall provide a written notification of the non-approving of the CAP, which at minimum includes the (1) reason the plan is not approved.  (2) a summary of the information that is missing or needs revision for the plan be approved; and, (3) specific concerns with the proposed plan.  The provider has 10 business days from the receipt of the non-approval notification to revise and resubmit the corrective action plan.

It is unreasonable to be required to use DBHDS’ issued corrective action plan.

F. Seems the commissioner should have the final say, not the director of licensing.



This is concerning for the requirement of a governing body as this will prevent growth in the system; only organizations and not single owners can open services?

106-250 & 260

Full-time and part-time employee records. & Contracted Employees

The requirement for driver’s to have a Virginia driver’s license is unreasonable. Many providers have employees from surrounding states (e.g., WV, D.C., TN, MD) and additionally this is discrimination against military personnel and spouses who by law are allowed to keep a driver’s license from their “home” state. 


Criminal background and registry searches.

We request clarity around the requirement for 20% background checks. As currently written, a provider can run the same 20% every year. There is also a large expense associated with this requirement. Seeking clarity on what “annually” means; from hire date? From a specific date each year (i.e., every July). As we anticipate the system becoming backlogged, will there be penalties if the checks are not back in time?


Full-time and part-time employee records.

Three job-related references may be unattainable for individuals new in their career and those who have worked for the same organization for many, many years.  This can effect hiring, which will have a direct effect on being able to serve individuals.


Contracted Employees

There should be a distinction between employee in which we directly contract via a 1099 and agency in which we contract with (i.e., agencies which providing contract psychiatrists).

There is question to the legality of the ability to obtain these documents from contracted agencies. Example, may be able to ask that an evaluation is done, but unsure that the contracted agency can share specifics. The requirements as written increases the amount of documentation and training required for the provider, which would prohibit service delivery. This makes the ability to retain contracted employees more difficult and reduces the ability to retain robust person-centered, continuity of care.

What individual identifying information is being requested in 1?

Same comment as above for job-related references.

Same comment as above for VA driver’s license.


Employee Training

The requirement for the trainings as listed to be done within seven days is unrealistic and unfeasible. Those providers that are within the constructs of another agency (i.e., local government jurisdiction) are often bound by their onboarding training requirements. Additionally, medication administration training is a multiple day training that requires specific credentials for trainers. Many providers do not provide this onsite. Same is true for CPR/first aid. This requirement as written is an impediment to adequate service delivery and service choice to get staff trained within this short timeframes. The requirement for supervision prior to training is not defined and doesn’t allow for shadowing of seasoned peers.

The medication administration should only be applicable if the position will be administering medications.  The medication administration class is a 32-40 hour class.  It cannot be done during this timeframe.  The staff must have medication administration training prior to administering medications.

Section B.2.e. What does “utilizing community support services” mean?

Section B. 3. This section repeats some of the information from above in section 2.


Notification of Policy Changes

This will delay making changes based on own internal Quality Assurance and Risk Management Plans.  Suggest indicating the provider is responsible for ensuring policies are maintained that are in compliance with this chapter.  Policies must be available for review by the department on request.  This hurts providers from changing to respond to needs of agency or as other regulations change if the policy includes items from this chapter.  Current way written is impractical and excessive.


Tuberculosis screening.

The requirement to have a TB screening prior to contact with individuals is impractical and slow down recruitment and providing services to individual.

In section B. “certified as tuberculosis free” is confusing; suggest changing to Suggest using language from A “shall obtain a statement of certification by a qualified licensed practitioner indicating the absence of tuberculosis in a communicable form…”



What is orientation period referenced in the regulation?  During orientation training?


Disciplinary action

As a department in county government, we have limited ability to develop our own policies and procedures governing disciple.


Fee Schedule

Is the posting reference meaning posting online or on the wall?  Posting on a wall is not practical as this could be pages and pages long.  Posting information indicating a full fee schedule is available upon request is practical, posting a full fee schedule is not. 


Cessation of Services

It is not always possible to provide 30 business days advanced notice to end services. 30 business days is a long time period.


Service description requirements

Is the posting reference meaning posting online or on the wall?  Posting on a wall is not practical as this could be pages and pages long.  Posting information indicating a service description is available upon request is practical. 



Clarification needed on prohibition on staff visitors. As written, it contradicts the statement above allowing open houses. We value privacy and confidentiality, but also have administration buildings with visitors coming on a daily basis to meet with staff. As written, it prohibits ANYONE (e.g., food delivery, job applicants, other government department leaders) from coming on to the premises of ANY licensed building. This is unreasonable.


Reporting to the department

We agree with the importance of reviewing all serious incident levels on a quarterly basis; however, concerns with requirement for documentation of steps to mitigate potential future incidents. While we strive to provide robust, person-centered services; the amount of incidents in a particular area does not always mean an issue. Individuals should have the dignity of risk with their choices. 

Concern that providers are required to submit information to licensing via CHRIS within 24 hours and are only provided 24-48 following to provide updates; yet are provided 30 days to conduct a root cause analysis.



Our vehicles are administered and maintained under another county agency, and has such; we have limited ability to develop our own policies into the maintenance of the vehicles that are provided to us to use from the county.


CommentID: 76825