In the past several years, proposed regulatory changes and many of those adopted have unfairly and unnecessarily created onerous burdens on small independent providers of residential services (earlier comment postings); forcing several to discontinue services. This proposed draft continues the  deliberate targeting or callous indifference to small providers of residential services, guaranteeing further grossly unjust destruction of  small business providers and the elimination of service provider choices for individuals served. 

     The rationale for proposing changes at this time (the 4 year review required by the Administrative Process Act),  should not be construed as a rationale for the specific regulatory changes  in the proposed document. Rather, the Administrative Process Act establishes by law requirements for each of the individual changes proposed -2 are particularly applicable here:

1. A fact basis must be established that makes the proposed changes necessary. Section 2.2 – 4017 establishes that in the 4 year review changes must be “necessary” and that the agency must provide “reasons for its findings”. Section 2.2 – 4007.05 is even more specific and requires a “rationale or justification of the new provisions” and clearly separates a statement of “purpose” (why someone thinks they may be good/necessary) and a statement of “substance and issues” (actual risk, occurrences of concerns, data and facts).
2. Minimization of adverse impact on small businesses. Section 2.2 – 4007.1 clearly states in D that this is a required consideration in the 4 year review process and provides clear requirements “to minimize the economic impact on small businesses”, “consider utilizing alternative regulatory methods” for small businesses (listing 5), avoid regulations that “overlaps, duplicates… federal or state law or regulation” and “minimizing the adverse impact on small businesses”.

       There are 4 provisions in the proposed regulations that have no/very limited fact basis indicating necessity and would force our small business (and many others) to close upon their adoption and a 5^th that guarantees small businesses would be unable to survive the death of their owner and consumed by ever larger and more bureaucratic providers.

    

   12 VAC 35 – 106 – 180 – Governance – this proposed regulation may be appropriate for large bureaucratic organizations ( some may disagree); however, it is completely inappropriate for small providers. 1^st There is no fact basis to demonstrate poor organizational governance by small businesses under the existing regulations and no data nor examples exist that establishes poor governance impacts – if they’re going out of business it’s much more likely due to the regulatory and reimbursement burdens unique to small businesses. 2^nd the adverse impact on small businesses would be devastating:  Section A – creates substantial unfunded mandates: liability insurance would be required for the board (otherwise the individual from the population served the proposed regulations required to be on the board would be exposed to financial liability and finding board members would be even more costly); the qualifications and duties required of the board would make volunteers extremely unlikely for small businesses, requiring payment for board members to meet the regulatory requirement (or in the alternative recording names of uninvolved/indifferent board members who rubberstamp making the regulation ineffective) and the cost of setting up the board, adapting provider policies/procedures and maintaining its implementation ongoing. Section B – is even more troubling for small business: B1 requires board members “delegate” to a Director, could the director both be on the board and then delegate away the responsibilities to themselves, B2 would require the owner to sign a contract with themselves in order to be the director – enforceable on whom?; B9 and B10 pile on additional unfunded mandates that would be costly in time and services and finally worst of all from a small business owner perspective B6 would term limit the owner out of the governing body of their own small business through no fault of their own – very unjust. The effort to increase input from the population served,  overlaps and duplicates other requirements to seek input from that population,  could  be counterproductive in large bureaucratic organizations (directing individual complaints to their representative on the board who may or may not pursue them) and is wholly unnecessary for many small businesses; as in our case, where we employ a “committee of the whole” approach and all of the individuals we serve have an opportunity to have a voice in and request significant changes not only at the household but also at the organizational level.
3. 12 VAC 35 – 106 – 300 – Employee Training –  I concur with B4 and contend that it makes unnecessary some of the most onerous burdens found in B1 – 3, which establish unrealistic time frames and unnecessary requirements for small providers. 1^st the fact-based necessity of the time deadlines for completing trainings (7 to 14 business days) is not clear and would appear to be mitigated by strict adherence to B4. Also, lapses are typically tied to inattention/carelessness not a lack of training and no fact base exist to demonstrate a training concern. 2^nd the adverse impact on small businesses would be devastating: while we maintain qualified trainers in the house for most of the requirements, but cannot afford in-house training for medication management or CPR/1^st aid and have to rely on qualified agencies to provide and establish DSP competency in these areas; as a result we have little control over their scheduling and some are only available to us quarterly at best (and even then occasionally postponed due to weak overall demand), making it impossible to consistently meet the regulatory time lines even if we wanted to, forcing closure. The inclusion of medication management as a required training rather than an option, creates a significant unfunded mandate (course cost plus 40 to 108 paid staff hours) that would be unnecessary in some cases where an employee does not handle any medications during service provision and is prepared for effective monitoring of any serious side effects through the CPR/1^st aid requirement. Section C – requires annual retraining’s in all areas creating additional unfunded mandates that are often unnecessary and burdensome: retraining is appropriate for skills that are rarely used and may atrophy over time as a result (CPR – 1^st aid, emergency procedures, serious incident reporting); however, even when the need is clear our current training agency recertifies every 2 years which is effective, so this provision would double those cost. Other areas where the retraining is required annually, should also be reconsidered, particularly for daily task where frequent repetition, supervision, the corporate culture and periodic retraining of individuals to address lapses all assure that the individual skill set in these areas is demonstrated, reinforced and developed in real time throughout the year and taking a true false test annually becomes superfluous. These annual requirements are a significant cost to the provider and particularly burdensome for small business owners who have a very small staff with few part-timers, typically requiring overtime pay to provide the training to the full-time staff which make up the bulk of our employees. Simply put why would you need to provide an orientation to a 10 year veteran employee of the organization, if they don’t know by now they never will.
4. 12 VAC 35 – 106 – 390 – B – records shall not be stored within a provider’s personal residence – a more complete commentary for this section will be provided in a later posting that will provide clear and convincing evidence this proposed regulation fails both of the requirements for adoption of a specific regulation, which is applicable here. However, even without those considerations, this proposed regulation creates an onerous and unique burden on small businesses that would prevent their continued operation. The home office has been a necessary staple of small businesses since their inception and as such are even favored in the tax code to promote small business formation and operation. Elimination of the home office option by DBHDS would require a small business dependent upon the reduced overhead of a home office to rent a storefront at some strip mall or other office space and just sit there and wait for the occasional unannounced licensing visit, divorced from any opportunity to provide direction, supervision or services where the services are actually being provided. Thus, constituting an unfunded mandate that would be impossible for many small businesses forcing their closure and a significant detriment to the quality and quantity of services received by individual served at any small business that manages to struggle through the financial burden.

5. 12 VAC 35 – 106 – 390 – C – a more complete commentary for this section will be provided in a later posting that will provide clear and convincing evidence this proposed regulation fails both of the requirements for adoption of a specific regulation, which is applicable here. However, even without those considerations, the direct impact on small businesses would be devastating as it would ban a very successful and economically viable option for small residential providers, the shared residence group home where the provider and the Individual served share the provider’s personal residence. Were this regulation adopted our organization would be forced to discontinue group home services, surrender our license and go out of business and I suspect many others would be in similar circumstance. Even if the small business was able to struggle through this onerous burden, direct and indirect cost of operation would be greatly increased and the provision becomes another very significant unfunded mandate.

   5) Slow motion extinction of small independent providers – taken together the proposed regulations for initial licensing applications and change of ownership rules would prohibit many independent small business provider organizations from surviving the death of the owner or being transferred as a whole. 12 VAC 35 – 106 – 50 – C, 106 – 80 – C and D3 all clearly limit any attempt to transfer the business to a different person to a conditional license, apparently at both the organizational and service-level. Section 106 – 40 – B limits a conditional license to only one service and 106 – 50 – A1g further limits residential services with a conditional license to “a single location serving no more than 4 individuals during the conditional period”. Thus, a small business offering multiple services, a 5 or more person group home or having more than one group home would be prohibited from transferring the business in its entirety to anyone else; unless the acquirer had a full organizational license already, assuring that any attempt to transfer the business in its entirety will automatically involve the inexorable gobbling up of small independent business assets into ever larger bureaucratic organizations, until none of the small remain. For example, even our very small business 1-4 person group home and 1 sponsored placement home would have our continuity of service plan (all accounts have access by the house manager who has over 20 years of experience, 17 managing and operating our business and would receive all business assets in the will upon the owner’s death allowing them to meet the requirements to apply for a new license) is prohibited by these provisions. A husband-and-wife team who hold the license together and have operated their business with multiple services and homes successfully for many years would be required under these regulations to apply for a conditional license if the ownership changed to only one of them upon the death of the other and the business would have to be dismantled to meet the proposed regulatory requirement, destroying the business model, eliminating the economies of scale and unnecessarily disrupting the continuity of services for almost everyone they serve. Additionally, if the individual is not currently licensed section 106 – 40 – A – would require a much more stringent and restrictive 90 day funding requirements, which not only reduces small business formation, but would also create a barrier to relicensing an organization that has operated successfully for decades under the existing 90 day requirement with no difficulties whatsoever, further increasing the likelihood of the death of the organization along with the original owner. Even if the original owner wanted to add the individual they have identified in their continuity of services plan upon their death to the license, under these regulations that owner/individual would have to apply for a new conditional license under the change of ownership rules, dismantle their existing small business to meet the requirements of the conditional license and comply with the more stringent/restrictive 90 day funding requirements; despite decades of successfully running their small business and providing exemplary services. Clearly, under these requirements small business formation would be deterred and existing small independent providers would not be able to survive the death of the original owner – assuring the eventual extinction of the small organization and services they have poured their lifetime into developing.

    

   In addition to these 5 small business killers that would immediately force closure or eventual death of many small businesses, there are a host of unfunded mandates that fail the 1^st test of demonstrated necessity based in fact (future posting) and create a substantial economic burden on small businesses 12 VAC – 106: 180; 210; 240; 480; 560; 600; and 810 among others. While these provisions individually may not force the closer of a small business, these unfunded mandates piled on top of the ones from previous regulatory changes add significantly to the burden; at some point one of them will become the straw that broke the camel’s back, forcing small business closures.

    

   The negative impact of these changes, which have little or no necessity basis in fact will be negative for both small providers and individuals receiving services in Virginia.

    

1. A gross injustice to good small independent providers who are operating currently. Small business providers who have operated their services successfully for decades would be forced out of service provision through no fault of their own and their years of hard work and successful operation will be for naught. The unfunded mandates are uniquely harmful to small businesses because they lack the economies of scale that are afforded to large bureaucratic organizations. Specifically, in a conference call on the Burns and Associates rate setting formulation they were asked what provisions were made for profits in their calculations and they simply laughed and indicated with economies of scale “you could probably find some”, which highlights an additional failure to consider the needs of small businesses in that process and that the analysis resulted in rates which were the bare minimum for continued operations in small organizations leaving no room for additional unfunded mandates. It is also important to note that this analysis was based on outdated data when it was performed, has not been refreshed and makes no provisions for general inflation nor the wage inflation concerns that have inexorably marched forward since the analysis was conducted – leaving no room for additional unfunded mandates at small businesses.

2. Individuals served currently by small independent providers will also be harmed in 2 ways. First, provider choice (a CMS and DBHDS right) will be eliminated by eliminating the option they currently choose and their future provider options will be severely curtailed as fewer and fewer different providers are available to choose among. Second, individuals served will be forced into ever larger and more bureaucratic organizations. There is an axiom in political science that the closer the government is to the individuals it impacts the more effective and responsive that government is to those they serve. This axiom also applies to services, large bureaucratic organizations adopt rules and practices that have to be applicable across all of their service environments leading to the increased institutionalization of the home and the dilution of individualized adaptations based on persons and contexts – which small independent providers are able to avoid because rules and practices are more effectively adapted to the specific and limited context in which they operate. This will also decrease the voice of the individual served in requesting and seeking change, because rather than going directly to the decision-maker they will be forced through a bureaucratic maze of varying degrees of indifference in any attempt to have their voice heard and achieve the desired individualized change.

   This may be just the tip of the iceberg, I have been told (but not independently researched) that with the move to MCO’s other states have altered their regulations in similar manner, resulting in the elimination of small independent providers and the reduction to only a few large bureaucratic residential service providers in those states.

   Recommendations: DBHDS should follow the law as currently written. The Administrative Process Act section 2.2 – 4007.1 requires regulatory flexibility and the utilization of alternative regulatory methods for small businesses and list 5 specific recommendations for protecting small businesses, none of which have been utilized in the proposed regulations. The one most applicable here, as none of these provisions have a basis in fact for promoting health, safety, environmental or economic welfare is number 5: “ the exemption of small businesses from all or any part of the requirements contained in the proposed regulation”.

12 VAC 35 – 106 – 390 – office and service location – C and D create restrictions on providers that would prohibit providing services and maintaining records in the providers personal home. While these provisions will impact a large range of services and providers, the focus of this commentary is on the prohibition of shared residence group homes (hereinafter SRGH) under the proposed regulations.

Initially, it is important to note that the burden of proof for the necessity of the proposed regulation should be placed on the state and that the Administrative Process Act that initiated this change and controls all regulatory proposals has 2 relevant specific requirements for these regulations:

1. a fact basis must be established that makes the proposed changes necessary. Section 2.2 – 4017 establishes that in the 4year review, changes must be “necessary” and that the agency must provide “reasons for its findings”. Section 2.2 – 4007.05 is even more specific and requires a “rationale or justification of the new provisions” and clearly separates a statement of “purpose” (why someone thinks they may be good/necessary) and a statement of “substance and issues” (actual risk, occurrences of concerns, data and facts).

2. Minimization of adverse impact on small businesses. Section 2.2 – 4007.1 clearly states in D that this is a required consideration in the 4 year review process and provides clear requirements “to minimize the economic impact on small businesses”, “consider utilizing alternative regulatory methods” for small businesses (listing 5), avoid regulations that “overlaps, duplicates… federal or state law or regulation” and “minimizing the adverse impact on small businesses”.

   Both of these proposed provisions fail both of these requirements in relation to SRGH.

   There is absolutely no justification and no fact base that makes the proposed changes necessary for SRGH. An email was sent to Emily Bowles DBHDS requesting the rationale for these changes. I received a response which stated “the intent of protecting both individuals served as well as licensing staff” …“it is not safe, appropriate, or practical for licensing staff to enter into a provider’s personal residence for an unannounced inspection. In addition, there are also privacy and safety concerns for individuals served when services are provided within the residence of a provider”. Finding the claims to be both vague and conclusionary, a follow-up email requested data and specifics to clarify and support the conclusions. When no response was received, I sent a FOIA request resulting in a conference call with Walker and Boyles of the DBHDS on 9/30/19 and the information received on that conference call is included in the analysis that follows:

   1)There is no basis in fact to establish the necessity of these provisions for SRGH to protect unannounced licensing inspections. They specifically stated that this language was designed to target not group homes but day programs which have no facility; resulting in occurrences where individuals “answered the door in their underwear” or “children answered the door and the provider was not present for the inspection” or “the inspector was just 1: 1 with the provider at their kitchen table” and as a result licensing inspectors “felt very uncomfortable”. They indicated that their conclusions were based on anecdotal reports of a few licensing inspectors of a few occasional occurrences “over the years”. They admitted that they have no idea how many SRGH currently operate and as a result there is absolutely no data available whatsoever that indicates any unannounced licensing inspections ever was unsafe, inappropriate or impractical in a SRGH. None of the examples given were applicable to SRGH and all of the examples cited would be subject to other regulatory controls in group homes; eliminating any necessity for the prohibition of SRGH even if all of the claims are true. There were absolutely 0 examples of any licensing agent being injured during an unannounced licensing inspection, reducing the pretext of safety to a more realistic pretext of inspector “comfort” and the pretext of appropriateness and practicality would be fully resolved by the office hour requirement located elsewhere in the regulations.

   2)There is no basis in fact to establish the necessity of these provisions for SRGH to promote the privacy or safety of individuals served in those homes. I specifically requested data showing an increase in CHRIS reported privacy violations, death, serious injury or serious incident reports and once again there was absolutely no data available whatsoever that indicates the privacy or safety of any individual served as ever been jeopardized and/or reduced in a SRGH. No examples or possible scenarios of how safety of individuals would be compromised by the SRGH service model were provided and privacy concerns focused on access to individual records by other members of the home and guest to the home. They appeared surprised when informed that these records were kept secured in locked cabinets/offices consistent with existing regulations and that other provisions had been made to assure their safety and non-access of records for any unauthorized individual living in or visiting the home.

   3)The sponsored placement exemption belies the credibility of the claim, if it is safe, practical and appropriate in the providers home with 2 individuals, how does adding a 3^rd or 4^th change this calculus – it does not.

   I do have the analysis and empirical facts that establish that none of these proposed rationales are applicable to SRGHs. I begin providing services in 1999 in a SRGH, I obtained my own license in 2002 and continued to provide services in a SRGH until 2010. In addition, I operated a staff only group home licensed for 5 persons from 2003 until 2010 and a staff only group home licensed for 8 persons from 2010 to 2016. In 2016 we consolidated into a SRGH for 4 persons and a sponsored placement home. As a result, I have over 14 years of empirical experience with the SRGH service model and 13 years of experience with the staff only group home service model.

   1)unannounced licensing inspections in the provider’s personal home are more practical, safer and appropriate in a SRGH that includes the organizations records than in a staff only group home with a separate office location. DBHDS was unable to provide any objective criteria or measurement of practicality for a licensing visit and there are several aspects of a SRGH with a home office that make the completion of an unannounced licensing inspection more practical: 1^st – it allows the full licensing inspection to be completed in one stop at one time, with no need to go to separate offices; 2^nd – it allows complete information to be provided at the time of the inspection and assures that at least one professional staff and much more likely the director will be available with first-hand information, preventing them from having to travel back and forth when they find something in the office records that creates a question for the service environment; 3^rd – it allows the licensing agent to conference with individual DSPs/supervisors without disrupting the staffing ratio or services being provided during an unannounced licensing visit, making it more practical for everyone. Licensing inspector safety (actually just comfort) is also adequately protected and improved in the SRGH service model. Any safety concern to the licensing inspector created by the physical plant of the provider’s personal home would be a safety threat to the Individuals served and as a result is controlled by the existing regulations. This leaves only safety threats directly from the provider themselves, where any effort to intimidate, harass or otherwise jeopardize a state official in the performance of their duties would constitute a violation not only of the existing regulations but also law with penalties of fines and/or imprisonment; allowing the department to revoke their license under 106 – 140. In addition to these effective controls, the SRGH model provides even greater safety for the unannounced licensing inspection: 1^st – it increases the likelihood that a fully qualified and vetted QDDP who is fully invested in the organization will be on-site to rein in and correct wayward DSPs not fully invested in the organization from responding negatively to the inspector; -2^nd- it permits an improved staff ratio that decreases the likelihood that the inspector would be alone 1:1 with the provider and extra staff to address any safety concerns for the inspector that may be created by the Individual served or their vistors during the inspection. Finally, as regards appropriateness, again the state was unable to provide any objective criteria or measurement of appropriateness and any inspection of the provider home/ home office is even more appropriate than inspecting the personal home of the individuals served. These proposed regulations are designed to regulate the provider not the individuals served by the provider; as such, it represents an institutional mindset to claim that it is more appropriate to enter the personal residence of the Individual served than it is to enter the personal residence of the provider who is the subject of the inspection/regulations.

   2)The safety and privacy of individuals served are better protected in a SRGH that includes the organizations records than in a staff only group home with a separate office location.

   *Safety – DBHDS provided no examples or hypothetical scenarios as to how a SRGH would jeopardize the safety of any individual served. Actually, the SRGH service model empirically and significantly increases the safety of the Individual served; 6 independent ways: 1^st – the SRGH service model improves the staff ratio across time and shifts, because in addition to the hourly paid DSPs providing services the provider is much more frequently on-site and available to provide services; 2^nd – the shared group home service model greatly improves supervision because a fully qualified QDDP is on site observing, interacting and promoting an appropriate corporate culture much more frequently than they would be if they were sitting in some separate storefront office waiting for the occasional licensing inspection; 3^rd – additional nighttime supports (which are typically limited to one third shift DSP in staff only group homes) to respond to any concerns and/or emergencies that arise during the night are available in seconds (rather than hours or the next day) when the 3^rd shift DSP awakens the QDDP for additional supports to respond to the emergency; 4^th – the qualifications and expertise of the staff that responds to any concern/emergency in the SRGH is likely to be increased by the availability of that QDDP across all 3 shifts; 5^th – investigations are greatly enhanced by the increased availability of the QDDP who is the trained investigator, providing the investigator with first-hand knowledge, the ability to interview those involved immediately after the occurrence and the ability to immediately rectify any inconsistencies in their reports; 6^th – continuity of services across time and shifts for any emerging risk is greatly enhanced by eliminating the sole reliance on brief shift contact exchanges between hourly paid DSPs and providing a fully qualified QDDP to provide training for the continuity of service needs and respond to any continuity of service risk mitigation questions that emerge post the initial shift exchange contact – there are other anecdotal examples of enhanced safety but 6 should suffice as they are consistently true across all time frames, services and context.  The net impact of these advantages is made clear by the data and empirical statistics, which clearly demonstrate a significant reduction from an average of 11 medication errors per year in the staff only group homes to an average of only 1.38 per year in the SRGH. Additionally, I would note that 75% (3 of the 4) licensing inspection corrective action requirements received by the organization over 17 years of operation were related to safety in the staff only group home and the only one received by the SRGH was not safety related. Thus, this analysis not only provides a clear rationale for why the SRGH model better protects the safety of the Individual served; but also, provides direct empirical data and evidence to collaborate that the exact opposite of the state’s claim is in fact the truth.

   *Privacy – the state was able to provide some indication of their perceived privacy concerns for the individual served in a SRGH, involving access to records and provider visitors. As noted earlier, records security provisions already in the regulations would resolve any access to records concerns. However, there are additional protections for records that are available in the SRGH with a home office for records that would not be available in a staff only group home with a separate office: 1^st – the physical transportation and/or electronic forwarding of records of the Individual served between the separate office and the service environment, increases the opportunity for unauthorized access to the records through these more vulnerable portals, as they are not locked up during transport and become accessible to hackers or errant sends to unauthorized persons; 2^nd – the increased presence of a fully qualified, vetted and invested QDDP across all 3 shifts, significantly increases the available monitoring and emphasis on records security; 3^rd – the increased supervision provided by the live-in QDDP provider, increases the likelihood that occasional records security lapses by hourly paid DSPs staff (leaving on a counter, unattended or unlocked) could be corrected in real time before any records breach occurs. It is also important to note that there are specific privacy protections in both the DBHDS regulations and the CMS final rule that would provide exactly equivalent protection to the privacy rights of individuals served in both service models, whether the visitors were there at the request of individuals served or to visit the live-in provider and provide sufficient recourse to correct any privacy concerns that would appear from either eventuality. In addition to these adequate privacy protections, any concerns created by visitors to the home are much better addressed by the SRGH service model than the staff only group home service model: 1^st – the increased monitoring from a fully qualified, vetted and invested QDDP afforded by the SRGH service greatly increases the likelihood that inappropriate and/or unmonitored staff visits will be prevented, staff only group homes seldom if ever provide supervisory staff to monitor the comings and goings in the home throughout the night and on a much less consistent basis during 2^nd shifts; however, if someone shows up at my home at 3:30 in the morning or any other time, I am more consistently there to monitor for and address any concerns that may arise; 2^nd – the increased supervision across shifts and time, enhances opportunities to identify, prevent and correct any privacy concerns that are created by DSPs and/or individual served visitors to the home; 3^rd – the improved staff ratios afforded by the SRGH service model increases the ability of staff to provide services in private when desired without leaving other individuals unattended and monitor/prevent privacy concerns that may be created by visitors (whether there to visit other individuals served or the provider) – again, there are other anecdotal examples of enhanced privacy protections but these 3 should suffice as they are consistently true across all time frames, services and context. The positive net effect of these advantages for the privacy of individuals served in SRGH is supported by empirical data. In 17 years of operation, we have experienced 2 confirmed violations of individual privacy (a DSP breaching confidentiality on a smoke break during an outside training with other agencies and a peer violation when a peer visiting the home for a possible placement intruded on another individual served brushing her teeth in the bathroom); both of these privacy breaches occurred in the staff only group homes -there have been no complaints, much less founded complaints, of privacy violations ever in the SRGH. Additional evidence is provided by the evaluation of the enhanced privacy protections required by the CMS final rule, where the SRGH service model we provide has been determined to be fully compliant, while numerous staff only group home service models have failed to achieve a determination of full compliance with privacy protections. Thus, this analysis not only provides a clear rationale for why the SRGH model better protects the privacy of the Individual served; but also, provides direct empirical data and evidence to collaborate that the exact opposite of the state’s claim is in fact the truth.

    

   In conclusion, the prohibition of the SRGH service model clearly fails the 1^st test of appropriateness for a proposed regulation contained in the APA. While the state may be able to state a purpose for the proposed regulations – that purpose has absolutely no basis in fact; rather empirical facts prove the purpose is actually better served by promoting SRGHs not prohibiting them.

Next, we turn to the 2^nd requirement for a proposed regulatory change minimizing any adverse impact on small businesses. The direct impact of section D on small businesses would be devastating as it would ban a very successful and economically viable option for small residential providers, the shared residence group home (hereinafter SRGH) where the provider and the Individual served share the provider’s personal residence. Post adoption of this regulation our organization would be forced to discontinue group home services, surrender our license and go out of business and I suspect many others would be in similar circumstance. Even if the small business was able to struggle through this onerous burden direct and indirect cost of operation would be greatly increased (overhead costs would be doubled, staffing cost and taxes would be significantly increased and the purchase of an additional home would be required – all of which would expand the 90 day reserve requirement)  and the provision becomes another very significant unfunded mandate. Likewise, the home office has been a necessary staple of small businesses since their inception and as such are even favored in the tax code to promote small business formation and operation. Elimination of the home office option by section C would require a small business dependent upon the reduced overhead of a home office to rent a storefront at some strip mall or other office space and just sit there and wait for the occasional unannounced licensing visit, divorced from any opportunity to provide direction, supervision or services where thier services are actually being provided. Thus, constituting an unfunded mandate that would be impossible for many small businesses forcing their closure and a significant detriment to the quality and quantity of services received by individual served at any small business that manages to struggle through the financial burden. Thus, the proposed regulation clearly fails the 2^nd test required by the APA which provides a 2^nd independent reason the proposed regulation should be rejected.

There is also a 3^rd requirement in the APA law that requires any “new provision” have a “rationale or justification”…“from the standpoint of the public’s health, safety or welfare”. The proposed elimination of the SRGH service model also fails this standard in multiple ways due to the impact it would have on individual served.

1. Risk management and the quality of services would be reduced for individuals currently served in the SRGH service model. My direct experience and empirical evidence (provided in part 1) with both service models clearly demonstrate that risk management and service quality is greatly enhanced for the individuals served in the SRGH service model when compared to the staff only group home service model. This model allows us to provide a 1:1 staff ratio throughout the day the vast majority of service days, improves community integration by allowing us to travel with qualified staff in 4 different directions at once if needed and greatly increases the quality and quantity of supervision across all time frames and services – things we could not accomplish with the staff only model no matter how hard we tried or how much we invested. Thus, the health, safety and welfare of individuals served would be reduced were they forced into the staff only group home service model.

2. Provider choice options would be reduced for all individuals served and individuals currently served in the SRGH would be directly denied their current provider and service choice. While the reduction in choice for all individuals from eliminating an entire service model from the system is obvious, the state cannot provide data as to how many individuals are currently served under this model and would be directly denied their informed choice rights, but I expect it is significant. Perhaps even more important than just the statistical reduction in Individual choice rights and options for individual served is the elimination of culturally appropriate options for some individuals. The SRGH service model has allowed us to create a home that is culturally appropriate for the individuals we serve, who were born and raised in the rural culture of the valley (yes, you in Richmond can read rural as “hillbilly” and snicker, but our culture is every bit as valid and valued as urban elitism). This service model has allowed us to create a multi-generational, symbiotically supportive and traditionally structured home that fosters a rural culturally appropriate home environment that could not be obtained in a staff only group home. All of the individuals we currently serve in the SRGH have knowledge of and many experiences with sponsored placement and staff only group models, have made an informed choice to select this service model and all have been vehemently negative about the changes that would be required by this regulation. For 2 of the individuals we have served for more than 16 years, we feel sure the loss of their current home would be a traumatic experience doing untold harm.

   Thus, the proposed regulation clearly fails the 3^rd test required by the APA which provides a 3^rd independent reason the proposed regulation should be rejected. From a public policy perspective, the advantages of the proposed change (reducing licensing agents who “felt very uncomfortable” during unannounced inspections) are significantly and overwhelmingly outweighed by the disadvantages to small businesses and the health, safety, provider/service choice rights and welfare of individuals served.

    

   Recommendations: there 2, one specific to the proposed regulations at hand and one multifaceted recommendation for improving the DBHDS regulatory process.

   1)DBHDS should follow the law as currently written and add group homes to the sponsored home exemption in the draft regulatory proposal. The Administrative Process Act section 2.2 – 4007.1 requires regulatory flexibility and the utilization of alternative regulatory methods for small businesses with 5 specific mechanisms designed for this purpose. The one most applicable here as neither of these provisions have a basis in fact for promoting health, safety, environmental or economic welfare is number 5: “ the exemption of small businesses from all or any part of the requirements contained in the proposed regulation”. While it is not the subject of this commentary, we would also contend that the negative small business impacts on other providers home offices/services should also be protected under this act by employing one or more of the 5 methods minimally required by the APA to reduce the effects of the proposed regulations on small businesses.

2)DBHDS should significantly reform the process currently utilized for proposing and implementing regulatory changes. During the conference call on 9/30/19, DBHDS stressed their process for regulatory proposals, emphasizing that they have numerous full-time staff whose sole job is to research the regulations from other states, similar regulatory efforts (child service regulations), and licensing reports to provide analysis and direction to suggest licensing changes. They also stressed that these proposed regulations were “just a draft” and that there would be this and an additional comment period where they “fully expect we will need to dial them back”. This response coupled with their response to prior commentaries, the FOIA request and lengthy experience trying to pry accurate information from DBHDS highlight significant concerns about the DBHDS process for proposing regulatory changes.

a)DBHDS should tailor proposed changes in regulations more carefully to the evidence at hand, prior to releasing any initial draft proposal. During the call, I finally responded to the repeated assertion that the draft proposal would be “dialed back” by pointing out that I fully understood the negotiation tactic of asking for more than you expected as a starting point, but that I did not believe this was an appropriate tactic for a state agency to be using on its citizens. In response they indicated that it was not a negotiating tactic and we agreed to disagree, you can make up your own mind. However, these responses clearly indicate that it is the state’s philosophy in initially proposing regulations, to over regulate, throw everything against the wall to see what sticks or gets missed in the commentary and improperly shift the burden of proof from the state’s need to justify their regulation to the citizenry who now have the burden of proof to contest the regulation. This burden of proof shifting is inappropriate for good governance. Additionally, this burden of proof shifting creates unnecessary burdens on the citizenry by requiring a great deal of time and effort be expended to discover the reason for and respond in commentary to overregulation, reducing the amount of time available to provide quality services to individuals served in the Commonwealth. If DBHDS used their team of regulators to more fully research, explore, analyze and apply section 2.2 – 4007.1 of the Administrative Process Act prior to initiating initial proposed drafts of regulatory reform (rather than cut-and-paste what other states/regulators are doing), the regulations proposed would be more appropriate and greatly reduced the unnecessary burden on the citizenry.

b)DBHDS should give more consideration to the content and analysis contained in the comments received than to the raw number of comments on any one proposal. This proposed regulatory change provides a clear example of responding to the raw number of comments versus careful consideration of the analysis provided by a single comment. Simply, DBHDS attempted to prohibit (or discourage) the SRGH model earlier this year in a proposed regulatory change for the definition of group home and withdrew this provision according to the commentary on the final adoption of those regulations based on the overwhelmingly large number of negative responses that were provided; however, in that commentary they also pledged to revisit this issue and attempt the prohibition again at a later date – which is where we are now. However, in those commentaries, I and others clearly indicated safety and service advantages to the SRGH service model that were totally ignored in the commentary response and evidently in the formation of subsequent regulatory proposals – because here we are again. Even if only one person provides clear and convincing evidence and analysis that what the state is doing is wrong, they should at least provide some evidence that they found this person’s comments to be inadequate or misplaced and an opportunity for rejoinder; rather than ignoring the valid criticisms because not enough posters focused on the same specific area.

c)DBHDS should be more forthright and transparent in their interactions with providers and the citizenry in general. DBHDS has consistently lacked candor, used word games and in some cases consciously misled providers on crucial subject matter. Numerous examples exist but perhaps the most damning was the frequently repeated claim, even when directly pressed, during the introduction of the SIS that it had nothing to do with reimbursement and was “just a way to give you more information for person- centered planning and allow the state to collect comparable data across the state”. When I was able to catch a top level DBHDS regulator in the hall after a presentation and asked them whatever happened to this claim that the SIS would have nothing to do with reimbursement levels. They responded that it had nothing to do with rates they were set by the Burns analysis; which of course did not answer the question and is a distinction without a difference as the SIS is often the sole determinant of how those rates are applied and clearly impact individual reimbursement levels. Another, was the repeated claim that DMAS was “fully on board” with removing all the percentages/statistical data from our service provision and subsequent review during introduction of the person- centered planning process, which did not turn out to be the case. During a recent DBHDS training, the trainers went to great lengths to explain the philosophy and goals of trying to incentivize reduced home size, but when ask why DBHDS chose to violate their own philosophy by recommending to the General assembly that the sponsored rate be lower than the group home rate, they repeated and so have others the canned response: “a group lobbied the Gen. assembly for a higher sponsored rate and the Gen. assembly chose not to adopt one”. Which in no way answers the question of why DBHDS violated their own goals and philosophy by recommending a lower rate and when this was pointed out they would only repeat the canned response. Other examples abound and can be found in prior commentaries (paying providers the same rate for 8 hours of work as 16 hours of work, sis manipulations, lack of transparency in level assignments etc.). This concern is particularly relevant for this proposed regulation: 1^st – when ask how any of the concerns being expressed in the conference calls were relevant to the SRGH service model, they repeatedly stressed that “the language was not targeted towards group homes” but “day providers”, but they clearly knew that this language would impact the SRGH service model and the credibility of the statement was belied by their earlier effort to prohibit/dis-incentivize this model and their pledge in explaining the finalization of the earlier regulations measures to return to efforts to prohibit the SRGH service model in the future; despite the overwhelmingly negative response to these efforts. 2^nd – the response to the FOIA request, which clearly indicated a desire to understand the internal process and deliberations for including this specific regulatory proposal in the initial draft (the very purpose of FOIA) and was specific to the types of internal documents requested – “This request includes any proceedings, minutes, records, reports, analysis, findings, conclusions, recommendations, opinions of experts and/or communications that may legally be released to inform our understanding of and provide an opportunity for meaningful comment on the deliberative process” with a list of questions generated by the 1^st email response; received a grossly inadequate response. The email received in response only provided 5.5 pages of documents and none were relevant to the decision to include the provisions-all were post inclusion: 2 pages were a copy of the proposed regulations which I already had, 3.5 pages where the draft minutes from the 9/26/19 regulatory advisory panel, of which 1.5 pages was the attendance list, welcome and introduction and the remainder provided a numbered list of areas covered with the only relevant entry being number 30 which stated in its entirety “personal residence: distinguish between service and office location”. Thus, none of the information received explain the justification/rationale for including proposed regulatory change in the first place and more importantly absolutely none of the information received provided insight into the internal process, deliberations or statements provided by the regulatory research team that would justify the inclusion of these requirements in the original draft proposal – which subverts the very purpose of FOIA, which was designed to provide insight into the internal workings and decision-making of regulators who impact on the citizenry. I have neither the time nor resources to hire lawyers and pursue an appropriate FOIA response, but do believe the response received illustrates the concerns being expressed; either: this was the extent of internal evidence gathering, analysis and justification for the proposed regulatory change – which indicates there was absolutely none or the internal documents, analysis and justification which were used to justify inclusion of these regulatory requirements in the draft document are being withheld – indicating a lack of transparency and forthrightness. If the citizenry is expected to serve the primary function of “dialing back” overregulation and harmful inclusions in the proposed regulations, they cannot make meaningful, informed or impactful commentary to fulfill their purpose without more forthrightness as to the purpose from DBHDS.

We recognize and fully support the need for good regulation to protect, serve and improve services for the individual served by DBHDS and fully support any regulatory change that is necessary to accomplish these objectives. Although our personal experience indicates that the SRGH service model works very well and accomplishes these objectives, we were fully ready to accept that our experience may be atypical and that there were inherent structural flaws in the service model that would warrant their prohibition and would support that prohibition if it were necessary; but is this analysis makes clear that is not the case. In fact, we encourage DBHDS to include the protections in the sponsored home regulations 105-1180 E &F in the SRGH provisions of subsequent chapters. However, the use of pretext, non-applicable occurrences, lack of candor and nonresponsiveness to information request should not be allowed to prohibit an entire service model that has empirically served the population well. While this example may not apply to your service model or your situation, I strongly urge you to consider an important historical lesson concerning governmental abuse – “when they came for the gypsies, I said nothing because I wasn’t a Gypsy; when they came for the disabled, I said nothing because I was not disabled; when they came for the Jews, I said nothing because I was not a Jew – when they came for me there was no one left to say anything.”

12VAC-106-830:  First Aid it Accessible:

Pretty sure that's supposed to be First Aid "Kit" Available.  Or maybe First Aid "IS" Available?  

12VAC-106-790:  Swimming Pools:

Most local health departments are not going to come to a facility to inspect a swimming pool.  They are far less likely to come to a residential location to inspect one of those pools either.  The alternative is a swimming pool business.  What constitutes a "swimming pool business?"  A place that sells pools?  What are they inspecting for?  Holes?  Disease?  Functioning filters?  This overly vague requirement is bound to leave licensing specialists to their own devices when it comes to interpretation.  

12VAC-106-740 C:  Personal Necessities:

Where to begin... "diapering?"  "diaper pail?"  Babies wear diapers.  Adults wear incontinence briefs or receive support with maintaining clean incontinence supplies.  

It's obvious whoever wrote this was only thinking of children, which is why #4 of that reg says folks shall wash their hands after assisting children and themselves in the bathroom.  

"Toileting" is another word you could do without.  

12VAC-106-680 F: Physical Environment:

Very much support the additional 10 degrees Fahrenheit in water temperature.  Not only will that be easier to maintain in older hot water heaters, it will be a more comfortable shower for many people who have historically complained of being forced to take cold showers.  There will surely be arguments made for even hotter water allowances but this is a welcomed step towards a person's ability to choose.

12VAC-106-580 C (iii):  Risk Management

Staff competency "through testing" isn't very clear.  Does this refer to the arbitrary General/Medical/Behavioral/Autism competencies?  Or does this mean competency in a sense that the employee can do the job duties assigned to them in their specific service area?  

Wouldn't both of those things just be the training record and employee evaluation?  What are we testing here?  I can understand testing Human Rights, First Aid, CPR, Crisis Management, Safety Drills, etc.  But there are so many other tasks an employee will be proficient in that aren't going to be tested.

Could the language say "documented staff competency" to allow for orientation and review checklists, staff meeting minutes, staff supervision notes, seminar/workshop attendance sheets, etc?  Otherwise the tests you're going to get are going to be meaningless because they're going to be written to take as little time as possible.  And if a provider isn't going to take a test seriously, it isn't much of a stretch to not take the material seriously.  

These chapters should have been released with these updated regulations.  It's difficult to conceptualize these regulations without having all of the information.  

12VAC-106-20: Definitions-  Serious Incident
12VAC-106-570 C: Root Cause Analysis

Very appreciative of clarifying regulations to remove the requirement for completing a Root Cause Analysis for all Level III's and limits it to only the ones happening during the provision of a service or on the premises of the provider.  

Also appreciative of some of the language change to the definition of a Level II incident that takes out urgent care visits.  "In lieu of a PCP" left it up to the provider to determine what a PCP could/should treat versus an emergency room.  And logically, an urgent care visit is always going to be in lieu of a PCP otherwise the urgent care facility will recommend the person goes to the ER anyway.  

Not sure if all areas have access to urgent care facilities as opposed to emergency departments thought.

All that said, there is still one issue that regulations have yet to help clarify.  Most providers have at least one (if not multiple) individual(s) who insist on overuse of the emergency room.

There's only so many times a provider should have to write the following on a root cause analysis: "staff took individual to the hospital because they didn't want to get in trouble when individual declared some combination of the magic words... (i.e. 'chest pains,' 'can't breathe,' 'danger to myself or others,' 'it's my right,' etc.)."

If an individual goes to the emergency room and is discharged with no changes there should not be a CHRIS report or a Root Cause Analysis. Nor should there be for an individual who goes to the emergency room and then leaves prior to receiving treatment.  

Both instances should be clearly documented in progress notes, but the CHRIS/RCA follow up is unnecessary.  

12VAC35-105106-30. Licenses. - I can see that nonresidential and residential crisis has been removed and replaced with "Crisis Stabilization". Does this mean that there will no longer be a separation between the two? Will there only be one licensed required to operate community or residential crisis? 

12VAC35-106-710. Traffic pattern. - How does this impact noncenter based programs such as Crisis, IIH, or MHSS? It should be clarified if this affects these type of services. It seems that it would apply to TDT or residential services. 

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 – 1^st 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”; 2^nd - 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 – 1^st – 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; 2^nd – 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 (11^th lowest versus Virginia being the 15^th 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.

12VAC35-106-720 (c). Lighting-  There are a number of individuals receiving residential supports who have significant trauma histories and as a result prefer to sleep with their doors open.  Having lights on in the hallways may seem like an easy solution to night time fall risk but in reality, mandating this across the board is not person-centered.  

C. Outdoor recreation space shall be available and appropriately equipped for the individual’s' use. 

This does not seem to make sense for most services that aren't provider owned/operated residential.  Locations housing outpatient therapy or case management shouldn't have to worry about anything outside of their building aside from safety hazards and adequate parking.  

I don't think most providers would mind amending a policy to include "drivers will do a headcount (or otherwise make sure nobody was forgotten) at each stop" but if this is followed by a licensing specialist's interpretation that this is requires documentation each time this is done then it's just more administrative nonsense that gets in the way of service provision.  

We already check off and initial enough common sense in response to isolated incidents across the state.  Doesn't seem logical to require even more of that from licensed providers when the incidents that sparked this idea are likely coming from transportation providers that aren't licensed by DBHDS anyway.

References: I will repeat the same thing from above. When you are hiring younger staff, they may not have had 3 previous jobs, therefore, this make this reg unobtainable. Also, as stated many organization will only give hire date, end date, and job title. It has become a liability to say anything more. 

Training: Again, reiterating from above. We are a small agency and do not have an in house training department, so we are reliant upon others to allow us to use their training. This is not always available with in a 7 day time frame or even 14 days. I have been trying to find an organization who will help us out with this, and we are getting shut down on a regular basis. 

EHR: We don't have EHR at this time due to being a small day support program . We are reliant on getting our medical update from case managers or residential. The information is placed in wams, but once it is in there, it cannot be changed. I am continually contacting residential staff for medication updates, as they are not provided to me when a change has been made. So even if we had an EHR, it would be "outdated" because we did not receive the information in the first place.

These training requirements are not possible.  Medication Management requires a nurse and most private providers don't employ a nurse... and the ones that do likely don't have that nurse only doing Medication Management (which is a multiple day training).

The language should reflect that this training should be provided before a staff person can be given medication management responsibilities.  Requiring this of all staff, especially in such a small time frame, is going to further limit the ability to hire in a timely fashion. 

Considering what organizations are able to pay for quality direct support professionals it isn't feasible to then make those qualified applicants wait until most of these trainings can be scheduled.  

Why wait an extra month to start a challenging new career when you can start tomorrow at Taco Bell making more money with less hassle?  

Poll every provider in the state and I'm sure you'll see that onboarding and maintaining quality staff is the biggest challenge we face.  Let's not make it more complicated.  

Prohibition on staff visitors is not only vague language open to interpretation but is unnecessary in regulations.  

If a concern was expressed that residential or day support staff are preoccupied with their personal lives (visitors, cell phones, etc.) at work, should that not be addressed as a personnel issue with management?  And if the personnel channels don't resolve the issue, would that not be a neglect complaint by whoever it was that noticed it in the first place (visiting case manager, licensing specialist, etc.)?  Let's not make a new regulation just to restate regulations we already have.  

Or is this directed at a smaller type service, like sponsored residential?  Is the goal to keep sponsored providers from having guests?  Or is the lack of compliance with maintaining back-up providers in this service so problematic that this regulation is suggesting sponsors should make all their visitors become back-up supports?

Are clerical, clinical or other direct-support staff no longer allowed to have lunch with their spouses in the break rooms?  

Suggest removing this language entirely and enforcing the regulations that are already in place.  Otherwise you'll eventually see random family/friends of staff being identified as "natural supports" in support plans.

Part of a functional governing body within an organization is the development of quality improvement protocols that will ultimately address policies.  

I support notifying the department of policy changes provided there is a standard for their response that won't hinder improvement to service delivery.

Perhaps the department should clarify how the notifications should be done to ensure they are received and acknowledged.  That way that providers aren't later hoping that an email to a licensing specialist sometime in the past will suffice as proof that they told the department their organization would be updating their language.  

That said, some further guidance on what would constitute a change worthy of notification would be helpful as we maintain change logs already and a lot of the changes likely are not significant enough to report.  Might save some paperwork.

• P17, Section 106-30, C3 - For non-residential services, the license identifies the maximum capacity of individuals the provider may serve at a given time.  Unclear what this means for non-residential services such as outpatient, case management, etc.  It may be in reference to inpatient services which are alluded to in the prior sentence, but this is not clear.  This requirement is repeated in several other sections including p22, Section 106-80, A11.
• P23, Section 106-80, E6 . Any changes that cause a provider to be unable to provide services to any individual for a significant period of time. Unclear what scenarios would fall under this category, what is a significant period of time, and encompassing any individual seems overly broad. 
• P29, Section 106-180 and 106-200 Governance and Executive Director/Administrator These sections are very similar to the Department’s Performance Contract which already dictates code requirements for Boards and Board members. Will smaller providers have the administrative structure to meet these requirements.  How it the requirement The provider shall have a governing body … which includes persons with expertise in management, and finances to be met and measured   
• P. 33, Section106-240, B3 The policy shall require that the provider conduct background checks on a minimum of 20% of all existing employees annually.  This places an additional administrative and financial burden with unlikely benefit – each employee would only have a background check once every 5 years but to recheck all employees every year would be excessive, expensive,  and still not guarantee an immediate awareness of changes.  B2 is sufficient.

• P33, Section 106-250, A6 and 7, Results of reasonable efforts to secure job-related references; Reasonable verification of employment history.  What is the definition of reasonable – this is a prime example where different licensing specialists could have very different expectations for this.  Suggest requiring instead that it be documented if 3 references or most recent employment history cannot be obtained and other supporting documentation if the decision is  made to hire.
• P36, Section 106-300, B1 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:… 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…. and c) medication administration including basic pharmacology and medication side effects. This is not a feasible time frame for programs that do not have an in-house training department and most do not.  What is the definition of “supervision of individuals receiving services” – very open to different interpretations. For example would this include outpatient therapists. It should be made clear that the medication administration requirement is not be required for programs that do not administer medications. 

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• P37,106-310, B. The provider shall notify the department of any changes to policies required by this regulatory chapter prior to implementation of the change. This requirement is overly broad as policies often contain agency specific content and may lend itself to various interpretations and expectations by specialists.
• P 39, 106-380, C The provider shall submit their regular business hours to the department. Too vague – when should this be done, to what part of the Department.  There are several other references in the draft to “the Department” For example 106-440.  Would suggest specifying Licensure, Licensing Specialist, etc. 
• P44, 106-490, A. The provider shall maintain the following emergency medical information on a completed face sheet.  EHRs do not have face sheets (definition?) and this requirement seems relevant for residential and day program but not outpatient services.
• P47, 106-550, 5, 5. A prohibition on staff visitors. This seems directed to a specific type of provider.  How would outpatient clinics do this and why should they?
• P51, 106-590, C-E. Each provider shall establish and maintain licensing complaint handling policy for all other complaints under this chapter which specify: A system for logging receipt, investigation, and resolution of licensing complaints; Format of the written record of the findings of each licensing complaint investigated; Designated staff responsible for licensing complaint resolution, In addition to the information required by 12VAC35-115-40, the provider shall also provide each individual receiving services and, if applicable, his authorized representative, with the name, mailing address, and telephone number of the: Provider’s complaint contact person; and The contact for the department’s Office of Licensing, The provider shall maintain documentation of all licensing complaints received and the status of each licensing complaint from date of receipt through its final resolution. Records of licensing complaints shall be maintained for no less than three years.  It is difficult to distinguish this from the Human Rights regulations related to complaints – and the wording of this seems to indicate that we are to investigate our own complaints.  This entire section is confusing and seems to replicate human rights regulations. 

The licensing regulations have consistently prioritized risk management over the individual’s right to dignity of risk. While the CMS HCBS rights were an important counterweight to this tendency, the state continues to implement/propose regulations that impinge upon the human/HCBS rights of individuals and their perception of service quality with little balancing in their continuing drive to institutionalize the home. Specific concerns in this draft proposal:

1. 106 – 680 – F – we fully support the change of the maximum water temperature to 120 and suggest this be done through an emergency regulation or guidance document to allow the change to take effect immediately; it is long overdue. However, the inclusion of the sentence “precautions shall be taken to prevent scalding from running water” should be removed or significantly amended. This inclusion requires the development of blanket provisions that cover all individuals under all circumstances in the organization which would reduce the individualization of services and potentially infringe on the free access/use rights of many individuals where additional precautions are not required. Rather the inclusion of additional scalding precautions for an individual should be made based on an individual assessment of need, included in an approved plan of supports and monitored through the serious incident process.
2. 106 – 710 – traffic pattern – ridiculous requirement for single-family home (which sponsored placement and small group homes qualify as) what kind of traffic pattern plan do they expect for a 30 foot driveway or parking area adjacent to a home –this provision should be limited to high flow traffic areas subject to congestion and homes excluded.
3. 106 – 730 – C & D – lighting – C- requires lighting in halls to be “continuous at night” – while this may be appropriate for large/long institutional hallways with numerous doors it is wholly inappropriate for small individual homes. I agree with an earlier post and can provide additional examples where this requirement would directly infringe on the sleeping preferences (and thus HCBS rights) of individuals in the home. The proposed regulation is also overly restrictive for the home and the intent of the regulation can be accomplished through less restrictive means. For example, we have a small nightlight in the longer hall, overflow illumination from the common area and a smoke detector with an emergency light that provides additional illumination for exit areas during an emergency evacuation which effectively resolve any concern without infringing on the rights of anyone or running up the electric bill – another unfunded mandate. D is unclear but the inclusion of the need for “protection against… intruders”, appears to assume that these lights will be left on all night as well, again running up the electric bill – another unfunded mandate. Additionally, if the requirement is interpreted this way it would actually increase the risk of intruders for our homes which are located in rural areas – rural people are frugal (we have to be we don’t get NOVA rates) and typically only leave the outside lights on when they are out of the home to illuminate their return and turn them off in the evening unless they are expecting visitors; but only rarely leave them on all night when they forget. As such having exterior lighting on in the middle of the night is often a signal that no one is at home and actually becomes a trigger for inviting intruders to that location in rural areas increasing the risk. Individual providers should be allowed to assess the traditions, culture and experience in their specific geographic location in making a decision about exterior lighting throughout the night and the regulations should clearly protect their ability to do so without the risk of licensing citation.
4. 106 – 560 – A4 – seatbelts – “requiring individuals receiving services to wear appropriate seatbelts or restraints” – requiring individuals we serve to do anything is problematic at best with this being an excellent case in point – how does the state expect us to enforce this requirement; do we replace seatbelt buckles with ones that lock and then manhandle them into position and lock them in impinging upon their human/HCBS rights or do we just refuse to transport them anywhere if they refuse to wear their belt, which would significantly impinge upon their human/HCBS community access rights and could result in them becoming permanently home bound. If this requirement is maintained the regulations need to clearly spell out how providers are permitted to accomplish the regulatory requirement. Currently, if anyone protests the wearing of the seatbelt we reinforce their right not to, but point out that it is a violation of Virginia state law with a significant financial fine which they will have to pay from their own money; identifying the quantity of preferred items they would have to forgo to pay the fine-which has been very effective and everyone buckles up on every trip, so we do currently meet the requirement; but have no idea how we could force a person who insists on their right to civil disobedience and agreed to pay the fine, where we would have to defer to their dignity of risk rights. How can the DBHDS justify a higher penalty for an individual served than the law currently allows for individuals not receiving HCBS services? This appears to be an on face a violation of CMS HCBS rights and should be removed or amended to ensure HCBS rights compliance.
5. 106 – 550 – Privacy – #4 – open houses – at the very least this is an atypical use of the term (meaning open to the general public) and even the language here refers to “events” and provides restrictive qualifiers that would require an “open house” to be declared whenever an individual served exercised their human/HCBS rights to have resident visitors, clergy, lawyers, probation officers etc. listed in those regulations into their home. Depending on how interpreted and implemented by the organization this could become a perceived impediment to exercising those rights, foregoing visitor rights to avoid triggering an “open House”(with whatever strictures that may bring) for them or peers – this requires significant rework to accomplish the proposed purpose in a much less generalized and restrictive manner.
6. 106 – 550 – privacy – #5 – prohibition on staff visitors – a blanket prohibition is unwarranted, excessive and counterproductive. Initially, there is no established necessity based in fact (see earlier post). I submit that all providers have policies and/or practices in place currently to regulate staff visitors, both as regards visit time/length and restrictions on visitor’s interaction/access; if not they could be required as a less restrictive means of achieving the regulatory intent. However, even this is unnecessary without a demonstrated necessity based in fact – how many CHRIS and/or serious incident reports annually involve or implicate staff visitors? What anecdotal evidence is there that staff visitors have been a concern? Without some specific documentation of a concern it is impossible to establish the necessity for the regulation, least restrictive measures and weigh any potential benefits against the disadvantages of the regulation. If the risk is so great and/or this regulation is implemented, then DBHDS should provide 3^rd shift (11 PM – 7 AM) unannounced licensing visits, because of the greater risk on this shift due to the absence of other staff persons to monitor, correct and report. Implementation of this regulation would have a significant negative impact on individuals served, which must be weighed against any perceived advantages of the regulation. 1^st – individual provider choice would be diminished. This regulation would create a serious disincentive (perhaps the hidden agenda here) for sponsored placement and shared residence group homes, as individuals providing these services would be denied the ability to have their friends and/or family visit them in their own home, ever. Some homes would close directly denying individuals who were there their informed choice of service in provider, others would never be created further limiting the options of all individuals served in the Commonwealth. 2^nd – community integration efforts would be undermined. Staff visitors to our home are both rare and brief (typically to drop off or pick up something), with the exception of event visits (birthday parties, Thanksgiving/ Christmas dinners, a summer cookout)and occasional dinner invitations, where staff are encouraged to invite significant others to share the social experience. All of the individuals served in the home are positive about these traditions and each participates in preparation of one or more dishes for the holiday dinners, taking great pride in their contribution. Under this proposed regulation, opportunities to expand positive community social interaction would be lost and the individuals in the home would be more insulated from the larger community. Not only would they lose direct social contact with the community; but also, opportunities that are generated for community integration through that contact: an Assistant House manager whose husband was a local minister, visited during an event/dinner and had positive interaction with the Individuals served; resulting in 3 of them who had not attended church previously beginning to attend church more frequently – 2 of them regularly, where the opportunity for social interaction and development of natural supports was greatly enhanced; a DSP’s son, who is an athletic coach at a local high school, visited for Thanksgiving dinner and interacted well with a sports minded individual we serve, who has since attended the coaches games and we hope to develop a source of natural supports from this contact. The director’s parents, who have known and interacted with some individuals 16+ years occasionally provide natural supports in the home and community which is highly valued by the individuals served. Enforcement interpretations would be difficult and further reduce community integration – when neighbors drop by to thank us for the Christmas cookie trays, should I kick them out if they talk more to staff than the individuals served because they become staff visitors? 3^rd – HCBS visitation rights of individuals served would be undermined. The director’s parents attend almost every birthday for individuals served (bring a present) and their attendance is both requested and anticipated by the individual. However, under this regulation the provider would be in a dilemma where they can either a) deny the Individual served the right to have visitors of their choice; thus clearly violating their HCBS rights or b) allow the visitors and run the risk of a licensing citation because being direct relatives they are arguably there to visit staff. This is just one of numerous examples. The full-time staff who provide the bulk of services in our group home has an average of 11.5 years of service (the lowest is 8 years) with the individuals we serve, with almost daily contact across such lengthy time frames it would be unnatural for the 2 individuals not to be aware of the others family and individuals served often comment that they would like to meet significant others of staff, which we typically accommodate given the positive community integration that results. A blanket prohibition on staff visitors would have precluded all of these successful community integration experiences from ever occurring, further isolating individuals served from the larger community. Recommendation – eliminate the provision completely or exempt homes (sponsored placement/group) or require a policy that permits individual provider discretion/flexibility in balancing objectives and providing protections during staff visitations.
7. 106 – 810 – emergency preparedness and response plan – A 2 & 3 are overly prescriptive as to format, our current plan which is designed to promote training, understanding and effective utilization includes specific scenario responses based on hazard priority now in section 3 and we should not be punished for already complying with the regulation by having to rewrite the plan and retrain everyone just to place this material in “annexes” as would be required by this regulation – another unfunded mandate that would make the training and response less effective. Section A4 – evacuation plan – a- requires “current MOU or MOA or other arrangement (hotel accommodation) with local/regional sites”; while this may be appropriate for large organizations with lots of people to move (requiring buses, ambulance transportation, significant resources etc.) it is wholly inappropriate for very small organizations and it is highly doubtful that they would be able to secure an MOU or MOA for a group of 2, 4 or 6 people; even if they were able to secure hotel accommodations for some unknown future event at some unknown time this would provide no actual guarantee of their availability when that time arrived making the requirement useless. Additionally, this becomes another very large unfunded mandate as we don’t know what direction we would have to run, how far or for how long; the regulation as written would require us to develop agreements in all the ordinal directions of the map at various stages along the way for some unknown distance. Even if we could get these agreements the cost of pursuing them alone would significantly adversely impact small businesses. Small businesses/providers should be excluded from this provision consistent with the APA. Section D – annual outreach to local emergency officials – this is an institutional requirement in Virginia law which already covers large commercial institutions and the inclusion here is duplicate extending this institutional requirement to small homes and would have a negative impact on small rural providers where there is no demonstrated necessity based in fact for this provision to be applied. Simply, in past coordination efforts we were told we were over prepared and had less to worry about “out there in the county” and it was recommended we attend their community emergency seminars – which we did and they focus just on the urban response and had nothing to offer for rural residents making it a complete waste of time. Again, another unfunded mandate that takes away from services and serves no realistic function --- requiring a small business exemption or other adjustment as required by the APA for small businesses.

8. Postings – 106 – 400; 410; 510; 380 and probably a few others I missed, require postings of various information, to be added to the wall postings already required by previous regulations; some of the required postings are multiple pages in length and cumulatively these postings will take up large sections of wall with framed narratives that definitively invoke the perception of an institution and undermine the perception of a home. These provisions would also impinge upon an individual’s HCBS right to decorate common areas in their home according to their preferences, as each of the state requirements squeeze out space/ opportunities for inclusions by individuals who reside in that home. We currently make all this information and much more readily available to any individual via free access, supported review and training on our policy and procedure manual at any time upon request and this has been effective in relaying the information. If the state does not want to remove these entirely, at the very least, all of these postings could be reduced to a single frame wall posting indicating where and how the information can be accessed which would effectively serve the purpose of the regulation without creating another unfunded mandate, institutionalizing the home and generating risk to the rights of individuals served.

    

    

   On a separate topic – numerous provisions in the proposed regulations require the provider to notify DBHDS/OL (often in writing) of various changes, actions or updates which is all fine and good – however, the regulation should specifically include to whom, how this notification will be provided and should require a written response to provide documented verification for the provider that the notification was received and in the case of changes (policies, procedures, practice etc.) verification that these changes were approved and if not what would need to be changed to gain approval. Past efforts to submit and elicit approval for various changes have been very problematic, and in some cases policies that appear to have been approved by DBDHS can become violations when a new licensing specialist comes on board.

    

106-20, Definitions:
Consider adding a definition for “Behavioral Health”, allowing for recognition of co-occurring Mental Health and Substance Use disorders. Adjust license types to reflect the current status of the field.

“Comprehensive Assessment” – specify this by content, vs. as an update and finalization of an initial assessment. If the first assessment is comprehensive in nature and meets the specifications outlined in disability specific chapters, this should be acceptable. This is consistent with needs of short-term services, requirements issued by DMAS for several services, and with Same Day Access expectations.

Add a definition for “Counseling” to align with DMAS, which currently describes counseling as psychotherapy and, therefore, would not allow counseling to be provided in places specified as acceptable under Licensing. Alternately, select a different term, to avoid contradictions with DMAS.

Align the definition of IOP to match that used by DMAS, which specifies a minimum of three hours of service per day.

Align the definition of “Partial Hospitalization services” with that of DMAS, which does not require the service to be medically-directed.

Revise “Serious incident” Level II item #4 to specify that this relates to a Temporary Detention Order or unplanned medical hospital admission, as a TDO is the conceptual equivalent of an unplanned hospitalization. Thank you for focusing on emergency room visits, vs. urgent care visits. Some individuals do utilize emergency rooms in lieu of a PCP; is there a way of acknowledging this? Is the removal if Level III item 3 intentional?

As “gero-psychiatric residential services was removed from the list of services, remove from the definitions.

106-60, Inspection Requirements:
While a sixty-minute timeframe to provide information is reasonable in most circumstances, this level of specificity does not account for geographical issues and the centralization of administrative functions (e.g. Human Resources), which may be at some distance from service delivery sites, particularly residential sites.

106-80, Changes and Notifications:

A. Thank you for the transition to business days. However, a 7/10/19 Memo regarding Service Modifications allows Licensing Specialists 60 business days to conduct site reviews from the time a completed service modification packet is completed. In essence, this changes the timeframe for providers to submit a Service Modification to 60 days in advance of a desired start date. Please align the regulation and the intended practice.

A. 7 & 11 – requiring notice of changes at this level does not reflect the ebb and flow of business practices. Notification of changes to the maximum number of individuals served in a residential setting makes sense but is unreasonable in services such as outpatient and day services. A more reasonable expectation would be for Licensing Specialists to review program descriptions during annual site visits and to monitor to ensure staffing levels are appropriate for the type of service. This provides oversight without the additional burden to both providers and Licensing inherent in the submission of Service Modification requests.

106-110, Compliance:
The addition of the requirement to comply with “all applicable department guidance” places guidance at the same level as regulation. While these may be considered best-practice guidelines, if DBHDS is establishing an expectation, regulatory changes are the more appropriate avenue.

106-120, Corrective Actions:
The regulation does not specify the timeframe for a Licensing Specialist to notify the provider if the corrective actions have been approved; experiences have ranged from receiving this in one business day to having no feedback at all. Lengthy delays in responses put providers in a difficult position in terms of whether to move forward with taking actions. Recently, there has been some request for the provider to specify the role of the person monitoring an action step. If this is to be a routine expectation, the specify this in the regulation, to increase consistency.

106-190, Organizational Structure:
A current organizational chart should be sufficient to meet the needs of this regulation, without the need for additional policy. Job descriptions also outline roles and responsibilities.

106-180, Governance:
The expectations outlined in this section are overly prescriptive. For Community Services Boards, they do not align with existing State Code (37.2, Chapters 5 and 6) that specify options for different types of Boards. Among private providers, Boards are often more advisory in nature and are often comprised of volunteers. It is unreasonable to expect these individuals to write and authorize policy and have authority over day to day service activities. If the burden of responsibility is too large, it will become increasingly difficult to find members of the community to serve in this important role. Board members typically rotate, resulting in high level of notification to the Office of Licensing of a matter that can readily be assessed during annual site visits. Furthermore, volunteer board members may be reluctant to have their personal contact information provided to DBHDS.

106-240, Background checks:
While establishing a short timeframe to ensure providers address the outcomes of criminal history background checks is reasonable, the timeframe may prove insufficient to allow adequate review of the circumstances. Such review is likely to include conversation with the employee, legal consultation, and consultation with Human Resources. Please increase the timeframe to one that is more plausible.

Setting a requirement to conduct background checks of at least 20% of employees on an annual basis may be excessive. While safety concerns are paramount, is there evidence to support that a significant percentage of employees in the behavioral health and developmental services realm engage in behaviors related to these concerns? If not, consider reducing the percentage.

106- 250 & 260, Employee Records:
Some employers are shifting to the use of third-party vendors for primary source verification of education history in lieu of obtaining official transcripts. This facilitates more reliable receipt of this information. Please add this as an option.

Allow for driver’s licenses from other states to be accepted as these are valid across the U.S. Virginia shares borders with several states and employees may reasonably live in those states. There is a heavy Military presence in Virginia and family members may maintain a license from a different state. This would also make it difficult to hire someone who intends to relocate to Virginia.  This restriction places an undue limitation on providers, already struggling to fill certain positions.

106-270, Students and Volunteers:
Please specify that the phrasing of this section exempts students and volunteers from needing to have all the elements of personnel files as outlined in 250.A and 260.A.

106-300, Training:
The proposed requirement for members of the workforce to complete behavior intervention (e.g. TO, CPI, Mandt), CPR, First-Aid, and Medication Administration trainings within seven business days of start date is implausible. Although these are important courses as they focus on basis safety concerns, this requirement would involve having staff members receive these trainings before learning even the most basic information about their new employer. The information learned is utilized with far less frequency than information about confidentiality, human rights, person-centeredness, and other key elements of orientation. As some of these trainings are multi-day trainings, it could require more than seven days simply to complete this course work. In addition, many providers rely on courses taught in the community and have no control over the frequency or scheduling of those courses. Those providers who have their own trainers need to ensure a large enough class size to support offering it. Furthermore, the regulation reads that all members of the workforce responsible for supervision of individuals shall receive training in medication administration; what is the rationale for this in programs that do not administer medications or for people whose roles do not involve this duty. What about when circumstances change, and an employee demonstrates the ability to take on this duty?
Several required trainings are routinely certified for a two-year period. What is the rationale for setting a standard in excess of those established by the developers of standardized training practices?

Some topics outlines are not conducive to being competency based (e.g. grievance procedures); providers should be able to demonstrate that they have provided the relevant information to staff members and have informed them of how to obtain/access that information as needed.

The concept of competency testing is not clearly articulated. Would a policy be able to specify which items require providing staff members with training versus those involving testing? For example, while it is reasonable to inform staff members of their grievance rights, it would not make sense to test them on their knowledge of this policy and to reiterate this training annually – this promotes a sense that the organization is punitive and expects that the frequency of disciplinary actions will be high.

106-310, Notification of Policy Changes:
Requiring notification to OL of changes to policies prior to implementation places undue burden on both OL and providers. This implies that review and approval from OL is required, yet no response time is specified. Regardless, this additional layer of responsibilities will slow the process of updating policies and, indeed, serves as a disincentive to update policies. Some policies require updating due to changes in relevant laws; a provider will be out of compliance while awaiting approval to implement new policies. It is already understood that Licensing Specialists may request and review policies during site visits. Perhaps consistently including review of a subset of policies during annual visits would suffice. Should there be concerns, a Licensing Specialist would be within his/her purview to request additional policies and, if indicated, to issue citations when there is a pattern of not having policies that meet the specified requirements.

106-320, TB Screening:
In recent years, there have been shortages of the serum used for tuberculosis testing. Recommend that a paper assessment be permitted, with required testing for a subset of employees, such as those working in residential settings and those who screen-in as having potential risk of exposure. In addition, it may not be logistically feasible to have the test before the staff reports to work.

106-380, Business Hours:
As previously noted, this impacts the normal ebb and flow of business. Licensing Specialists can readily obtain this information during site visits. Requiring submission of a Service Modification will also create a burden for Licensing.

106-390, Office Locations:
Please clarify that providers with multiple offices may utilize centralized locations to store personnel files. This allows for more efficient and realistic business practices. Similarly, for individuals who have received services for an extended period, older portions of records may be stored in an off-site, centralized location.

106-400, Mission Statements:
As with the submission of policies, oversight of changes in mission statements can be readily accomplished during site visits. This is more streamlined than submission to Licensing.

106-430, Cessation of Services:
Thank you for the clarification that providers have 30 business days to provide notification of plans to cease services. Witten notification to individuals is appropriate, however, documentation that notification has been provided to individuals/authorized representatives would be completed in a progress note, not on an ISP. Please align the regulation with standard practices.

106-440, Transitions:

Thank you for the specification that these expectations apply to transitions among services operated by the same provider. This helps align the regulation with normative practices.

106-480, Policies:

18. While a policy related to traffic patterns for center-based, day support/day services could have some merit, applying this concept to all center-based services is overly prescriptive. Center-based services that should be excluded from this include outpatient services and residential services. For the latter, it is not normative for a home to have policies tied to traffic patterns. Factors such as parking and accessibility should be taken into consideration during the initial application process.

106-550, Privacy:

5. Please clarify this requirement. Is the intent for the policy to prohibit staff members from receiving visitors while at work in any manner that could potentially compromise confidentiality of individuals served?

106-560, Transportation:

C.6 – please specify a timeframe that would preclude someone with a past conviction from driving in an emergency. Two years would be consistent with hiring practices outlined in B.

C.4 – Addressing appropriate supervision standards is adequate. The additional documentation to prove completion of head counts at each stop is an additional burden and potential distraction. Should an individual prove to be missing while transporting him/her, an allegation of neglect would likely be indicated.

106-570, Reporting:

C. Provide 30 business days to complete root cause analyses. Thank you for shifting the requirement to complete a root cause analysis for Level III serious incidents to focus on those events that occur during the provision of services or on a provider’s property.

106-650, Choice of Provider:

While individuals who are incarcerated have the right to decline to participate in services, there is generally no options for a choice of provider during that time.

106-700, Building Modifications:

Ensure this regulation aligns with 106-80 – which denotes business days – and with the currently in effect guidance document.

What are examples of renovations that do/do not require this notification? For example, changing out a counter top is not the same as remodeling a bathroom and can be completed within a short period with minimal disruption to services.

106-710, Traffic pattern:

While a policy related to traffic patterns for center-based, day support/day services could have some merit, applying this concept to all center-based services is overly prescriptive. Center-based services that should be excluded from this include outpatient services and residential services. For the latter, it is not normative for a home to have policies tied to traffic patterns. Factors such as parking and accessibility should be taken into consideration during the initial application process.

106-740, Personal Necessities:

Is the intent of C.4. to read “after assisting a child, any other individual, or themselves with toileting”?

General:
In summary, several aspects of the level of oversight imbued in the proposed regulations are excessively cumbersome, for both providers and the Office of Licensing. While the intent of ensuring the welfare of individuals receiving services is clear, this level of oversight will likely have a negative impact on service providers of all types and sizes, with the ultimate outcome of reducing the number of service providers available to the citizens of Virginia. Any business needs to be attuned to sustainability and financial viability and the degree of increased administrative burden will likely detract from increasing staff members who provide direct services and will promote the cutting of corners in areas with more direct impact on individuals’ services and lives (e.g. funds available for going above and beyond to assist individuals, community outings, purchasing newer equipment). Many of the underlying goals may be accomplished via a thorough, structured review of a provider during unannounced annual visits and utilizing tools such as the checklists utilized when assessing new providers for their initial license may help ensure consistency. The minority of providers who do foster unethical practices should be weaned out via greater scrutiny of their services and being held accountable without placing this degree of increased expectations on all providers.

Having the disability specific chapters available for concurrent review would have been helpful. It is interesting that DBHDS did not include a definition of Behavioral Health and appears to be moving away from recognition of the frequency of co-occurring mental health and substance use disorders by further distinguishing between this (e.g. in the forthcoming anticipated distinct chapters for these services, maintaining separate licenses for MH and SUD programs), vs. moving towards greater integration of these services.

The proposed draft regulations contain a number of provisions which would add substantial administrative costs to implement and monitor and it is not clear why these are needed, particularly for CSBs under a Performance Contract.   The increase in regulations that are not aligned, often in conflict with other regulatory agencies and frequently interpreted differently depending on the auditor are not adding value to an overly regulated system that is underfunded.   The increase in administrative requirements are shifting the agencies workforce from clinical provision of services to administrative.

Definitions: 

Emergency Services – “Emergency Services shall provide immediate mental health in the home or community to assist individuals who are experiencing acute psychiatric dysfunction requiring immediate clinical attention---not all CSBs have the capacity to provide what seems to be a mobile crisis service through emergency services

106 – 240 – A3 – documenting post background checks – Taking action within 3 business days is short turn around and would require additional monitoring

106-240 B 3-Periodic Performance of background check and minimum of 20% of all existing employees annually -burdensome in cost and additional staff time; some CSBs have requirement in place where employees and contractors are required to provide any new criminal charges following initial employment.

106-250- A 5- 3 job related references supporting knowledge, skills and abilities of the minimum qualifications according to the job description---as employers are typically providing very limited references and in many cases not qualitative references, this may limit the ability to hire qualified candidates in a workforce shortage.  Please consider “reasonable efforts” to secure job-related references if qualitative ones cannot be obtained.

106-300-  B-1 Employee training and development-required initial training within 7 business days; CPR—this is very restrictive time frame given all the training that is required and the need to fill critical roles and provide services. Keep the current 15 day requirement. Have retraining before expiration of first aid and CPR rather than on an annual basis as the cost and staff time are greatly impacted on an annual basis.

106-450 – Emergency transfers – needs clarification regarding transfer, discharge/transitioning

106-550 – 5- Privacy – unclear what “prohibition on staff visitors” means

106-20—Definitions - Implication of 2 documents for DD there is one full comprehensive document—suggest language review.

106-40—Clarification of maximum capacity of individuals by provider

106-60 –Inspection requirements-(f) required records on site within 1 hour-unrealistic timeframe, due to varying locations within an area served

106-80—Changes to Licenses-service modifications due to DBHDS at least 45 days prior to the change has a potential negative impact to providers. DBHDS’s timeframe is NOT defined for responsiveness

106-240 A3 – Annual criminal history background checks for 20% of existing employees puts an unnecessary burden on agencies administratively and financially.  If policies are in place for employees to notify the employer of any arrests and/or convictions or an employer reserves the right to conduct criminal history checks for cause, is this not sufficient?

106-240—Providers conduct a minimum of 20% of background and registry checks on exiting employees annually--***

106-250— Results of Criminal Background checks being placed within a file within 3 business days of being received - how would that be documented?

106-250 A2 – Official transcripts may be difficult or impossible to obtain if schools have closed or an extended period of time has elapsed since time of graduation.  Unofficial transcripts should be acceptable if sufficient attempts have been made to obtain an official copy. 

106-250 A5 – Three job related references supporting knowledge, skills and abilities.  Many employers simply do not supply references that are this descriptive, if they supply any at all.   Most respond with job title, dates of employment and, at times eligibility for rehire. Three references may not be possible for young employees just entering the workforce or tenured employees that have only worked for one or two employers. Define “reasonable”.  This is very vague and can be interpreted differently by licensing reviewer and/or employer.

106-250 A9 – Evidence of Virginia driver’s license would extremely limit the applicant pool.  With an area saturated with military this may be borderline discriminatory since members of the military and their spouses are not required to hold a driver’s license in their current state of deployment.  Employers that are located near bordering states would also be restricted by this requirement.

106-260 – Define Contracted Employees

106-B3.  Temporary workers obtained through a temp agency are not in fact employees.  Obtaining some of these documents could be problematic.

106-300 A – Define competency testing.  Pass/fail requirement only?  Grading scale?  Is this required for all training and development?

106-300 B – Required initial training within 7 business days following the start date is unrealistic.  Medication Administration is a 32 hour course alone.  CPR/First Aid and Behavior Management are instructor lead classes that may not be obtainable within the first 7 days.CPR/First Aid – Will this be required for every employee?  Conflicts with 1 person, per shift, per location be certified.Are RN’s required to be certified in CPR/First Aid? CPR/First Aid certification through the Red Cross is valid for two years.  Requiring annual certification would be administratively and financially unnecessary and burdensome.

106-560 B – Not allowing an employee with a driving under the influence or reckless driving conviction in the past two years if the employee has an otherwise qualifying driving record, could restrict program resources and inhibit continuity of care.   

106-20 Definitions

Admission Date—our EHR doesn’t seem to support adherence to this.. Does this contradict CCS3 reporting requirements? How does this impact the dashboard measures?  How does this then impact throughout the rest of the requirements, i.e. due date for quarterlies and annuals? Does this align with Medicaid/DMAS regs?

“Comprehensive Assessment”—we want to clarify that many Boards do not do an initial assessment, this changed largely in relation to Same Day Access.  Does including a definition of “initial assessment” contradict the expectations of the SDA model and completing a comprehensive assessment?  We also want to highlight that the comprehensive assessment in the SDA process takes longer than an hour.  Most individuals have to sit through a process that takes 2+ hours due to the increasing requirements for the assessment as well as the financial/administrative part of admission.

Do Boards offer non-residential/ambulatory crisis stab 24/7?  Reimbursement is only allowed for up to 23 hours, and funding is not sufficient for 7 days a week.

Emergency Services/Crisis Intervention—“in the home”—will this be reliant on “as funding for Mobile Crisis and safety allows”?

“Full-time Employee”—is this consistent with Labor Laws?  We’re curious why is this included in licensing regs?

“Initial assessment” definition has additional language that indicates, “An assessment is not a service”.  Can this be clarified more… for example, DMAS allows CM to get to know the individual’s needs and glean info from outside provides for up to 30 days. Plus, does admission through SDA equal the beginning of the service?  If so, this contradicts the assertion that an assessment is not a service. Also, DMAS’ CNA process was developed to streamline the admission and assessment process, but this further complicates how to satisfy licensing regs. The COV defines assessment as the provision of a behavioral health service 12VAC 30-50-226.

“Intensive outpatient service,” added “shall”-- “Intensive outpatient services shall include multiple group therapy sessions during the week, individual and family therapy, individual monitoring, and case management.”  Concerned intensive outpatient now shall include family therapy and case management.  Family therapy should be a choice and case management is a separate service, including as defined in the DMAS ARTS manual.

“IOP” def. does not seem to match DMAS def. of minimum of 3 hours per day.

Outpatient services definition “shall not include practitioners who hold a licensed issued by a health regulatory board of the Department of Health Professions” or who are exempt from licensing pursuant to…” This reads as if licensed staff are excluded from providing outpatient services.

PACT definition of 10 FTEs—this doesn’t align with discussions in MH redesign (to have varying staffing patterns in PACT to reflect the individuals served).

Page 14—under “Serious Incidents” definition, Level II now states “an emergency room visit,” whereas the emergency regs stated “an emergency room visit in lieu of primary care”—this will revert back to DBHDS receiving hundreds of unnecessary Level II reports again.

Also, #3 (in Emergency regs) of Level IIIs is missing (permanent injury)

106-40 Applications

#A.2 the language of operating expenses is inconsistent with our performance contracts.

#B.5—please clarify what they mean for “nonresidential services”.  Do we have a cap on the number of people we can serve in Outpatient services?

106-50 License Types

Pg. 21 F: “No provider shall be issued multiple licenses for the same service.” Please clarify that this mean a new number for a license for the overall entity/agency; not that we no longer have to apply to add locations for the same service (which results in multiple addendums being issued).

106-60 Inspection Requirements

Added language, “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”.  Is this reasonable for large organizations?

Does any regulation define how long DBHDS has to respond once a request for modifications to a provider’s license is submitted?

106-250 Full-time and Part-time employee records

Does this match EEO requirements?

#A.3 Please clarify what is meant by including history of population served.

(A)(5 &6)Note addition of three references supporting the KSAs of the job description or documented efforts to obtain them.  What documents reasonable efforts?  Shouldn’t these two be combined? We don’t require 3 references for internal hires. Is confirming dates of employment enough (which is often all that a previous employer will disclose)?

106-260 Contracted Employees

This section appears open-ended. For example, the way this is written, it could include vendors, like cleaning services or accounting services.  Should the definition be clarified to reflect contractors who are licensed under this regulation?

106-300 Employee Training

#A. Is this meant to broaden what providers do with retraining, based on provider-specific  needs?  Or is it an unfunded mandate because it will require more administrative functions with no additional funding or increases in reimbursement rates to cover increased administrative functions.

(B)(1) Within 7 days requiring –  “basic orientation” This will create a significant delay in beginning orientation to the job (under supervision) because many staff can job-shadow to learn how to do their job and serve individuals while waiting for the next orientation sessions to begin.  This also will cause delay in service provision. This will mean that we can only hire on one date every month.  In relation to medication administration training—this training take 5 business days.  Staff can work in a group home, but not administer meds.  Seven business days is not reasonable.

Also, please clarify that all administrative-only staff will be required to have CPR?  This is costly and retracts from maintaining operations.

 (B)(4) All new employees, contractors, volunteers and students shall be supervised until completing all orientation and training required…. What does “supervision” mean specifically?  Does this mean they cannot be alone with individuals until completing the requirements?

Personnel files: our personnel files are paper, but our trainings are documented electronically in an electronic system designed for tracking our training compliance.  Would we revert back to paper files for this, while we’re trying to become all digital?

106-310 Notification of Policy Changes

How will we be notifying DBHDS of every procedure change we make throughout the month/year?

106-320 TB Screening

“Prior to”: This creates a barrier and delay of service provision.  In our rural area, we can’t walk-in and get a TB screening in our health department at any time.  They are able to schedule appointments, some only on one day a week.

106-330 Performance Evaluation

Personnel files: our personnel files are paper, but we are moving to digital performance evaluations this fiscal year, documented in an electronic system designed for tracking our performance evaluation compliance.  Would we revert back to paper files for this, while we’re trying to become all digital?

106-460 Discharges

Added (F)(2) in the written discharge summary, “Description of the individual’s or authorized representative’s participation in discharge planning and documentation of informed choice by the individual or his authorized representative as applicable in the decision to and palling for the discharge.”  What does this look like? How does this apply to situations in which an individual voluntarily doesn’t return, despite efforts to re-engage?

106-480 Policies

Traffic pattern for drop off and pick up—Please clarify this.  We don’t really have a need for a policy on traffic patterns in our rural areas. This also relates to 106-710 Traffic Patterns

106-490 Emergency Medical Information

#A.6 and A.9-- Requiring identifying and maintaining Medical protocols and pregnancy and delivery information are excessive for community-based, non-residential services.  We are not medical providers beyond primary-case screening and monitoring. We believe that our EHR may not support this kind of detail (such as medical protocols being included for those who have a medical protocol or several).

106-550 Privacy

Request clarification of 550 – 5 – is the intent for the policy to prohibit staff members from receiving visitors while at work in any manner?  Please clarify if this applies to certain services like residential services or all services. This appears to be over-reaching and will overrule provider procedures on Employee Conduct and Confidentiality that are specific to each provider’s working environments (which is what HIPAA requires).

106-580 Risk Management

Please clarify: 30 Calendar days or business days?

106-720 Lighting

Please clarify if this is referring to all types of sites or just residential sites.

106-760 Laundry Areas

Will these modifications to existing facilities (approved by local inspectors) be funded?

106-810 Emergency Preparedness and Response Plan

For a 24-hour phone line—if cell service was knocked out, do you consider a fax line a land line? With today’s technology, many people no longer have land lines

Members of the VACSB MH/SUD Council had much feedback on these proposed regulations.  Overall the comments shared indicate that the new regulations added unnecessary administrative and financial burdens.  The question is “What is the value added to the client?”   Additionally, the regulations do not move in the direction of cohesion among different state agencies as directed by Secretary Carey.   Some of the content is contrary to STEP VA and DMAS.   Additionally, DBHDS hired Scott Lloyd with MTM Services to assist the state with implementing Same Day Access, the DLA 20 and other initiatives.  This organization instructed providers to utilize a comprehensive needs assessment at SDA and to look at consolidating the paperwork at admission.  These regulations contradict this directive.  Moreover, he shared that the paperwork requirements were as burdensome as any he had seen in the country.  The increased oversight and regulation adds even more pressure to an already stressed system.  In the future, it may be helpful to include providers and clients on work groups that review and develop regulations.    

Thank you for the opportunity to provide feedback.  

Leslie Stephen, LCSW    MH Council Chair for VACSB

12VAC35-106-20 Definitions

Comprehensive Needs assessment:

The definition in the new draft directly and significantly impacts Same Day Access.  During the implementation of SDA throughout the CSB system, the consultant that the hired (MTM)  for this process informed the system that the comprehensive needs assessment was to be conducted at SDA.  Many CSB’s ensured that licensed professionals are available to provide these comprehensive needs assessments when the person initially requests services.  Changing this process would cause an undue burden on the system and is not how the state’s own consultants trained the CSB system.  Suggest that the words “that updates and finalizes the initial assessment” be deleted.

Initial assessment:  

CSBs were informed during the development of SDA, the initial assessment and the comprehensive needs assessment could be one in the same.   This definition undoes that understanding between DBHDS and the CSBs.  An assessment is a service and is reimbursable by Medicaid and private insurance alike.   It was suggested that this definition be completely removed as the initial assessment is the comprehensive needs assessment as recommended by the state consultants and implemented by the CSBs.

Inpatient psychiatric service:

Consider aligning the definition with DMAS when possible. 

Intensive Outpatient Services:

Recommend aligning this definition with that of DMAS and ASAM criteria so there is consistency as encouraged by Secretary Carey.

Medication Assisted treatment:

Medication assisted treatment is utilized for more than opiate use disorder.   Alcohol use disorder also has very effective medications that are utilized.   This should not include just the medications that treatment OUD. 

Outpatient Services:

Could this definition please match the definition utilized in Step VA?  It would help to have consistency within DBHDS and also with DMAS.   Secretary Carey has publicly encouraged DMAS and DBHDS to work together to streamline processes.   Having the same definitions seems appropriate.

PACT definitions:

Recommend not stating “10 full time staff are needed.”  Rather, consider using ratios such as 1:10 staff to clients. 

Recovery:

Suggest using the SAMHSA definition for Mental Health and Substance Use Disorder recovery.  “A process of change through which individuals improve their health and wellness, live a self-directed life, and strive to reach their full potential.”

12VAC35-106-60  Inspection Requirements

It is the hope that those organizations /services that are accredited by CARF be exempt from annual reviews and move to a triennial review.  

Additionally the 1 hour time frame to produce a record places an undue burden on the agency.  Many agencies have sites that are up to an hour or more away.  This could negatively impact the everyday functions of the provider and negatively impact the clients.   We request that this be removed until all parts of the client record is electronic at all providers.

12VAC35-106-70  Renewals

In the past there has been a grace period for those organizations that may miss the deadline to submit a completed renewal application so as to prevent a disruption of services to those served by that agency.  Respectfully request that a grace period be added to this regulation.

12VAC35-106-110 Compliance

“All applicable federal, state, or local laws and regulations and all applicable department guidance….” This is a massive change.   This seems to indicate that department guidance has the same level of importance as regulations and laws.  While regulations allow for public comment and feedback, there is no such provision for guidance documents.  Please remove “applicable department guidance” from this regulation.

12VAC35-106-180  Governance

These regulations appear overly prescriptive and do not take into consideration the requirements of the localities, the differences in the communities, and the different CSB/BHA structures. These regulations do not allow for the flexibility needed for the vastly different communities that the CSB system serves.   Not all providers have a governing body.  Suggest removing this language.   Recommend a complete rewrite or full elimination of this regulation.  

12VAC35-106-200  Executive  director or administrator

What is the purpose of the minimum education requirement and the short list of degrees accepted?   Suggest eliminating this. 

12VAC35-106-240  Criminal background and registry searches

A.  Placing the information in the employee’s record within 3 days does not give time for appeal of accuracy.  The employee has a right to see and potentially challenge the accuracy of the findings per Virginia Code, however, this can’t be accomplished within 3 days. 

B.3. – “…background checks on a minimum of 20% of all existing employees annually.”  This creates both an administrative and financial burden.  Suggest, that each CSB has a policy about the frequency and they follow that policy.   Does this include administrative staff or direct service staff only?

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

Hiring of staff and the onboarding process is very long and arduous.  Vacancies/workforce shortages are negatively impacting clients.  Regulating additional requirements adds an excessive burden.  Most direct service positions require outside licensing and certifications.  (OMHP, Peers, LCSW, LPC, etc).  

Recommend allowing use of a 3^rd party vendor for primary source verification of educational history. 

TB testing – Recommend specifying “assessment” for TB.  At times there are shortages of the serum needed to perform TB testing. 

Driver’s license – Staff may work in VA but live in another state such as North Carolina, Tennessee, West Virginia, Maryland, etc.  Recommend removing the requirement for a VA license.  This is a barrier to employment.  Each provider should have the freedom to work with their Risk Management Department to identify an appropriate policy for that provider.

A.5. –“Three job –related references…”  This will eliminate many of those new to the field.   Suggest that this be changed to 2 job related references.

12VAC35-106-260 Contracted Employees

A.5. – “Three job related references…”  Again, this seems excessive.  See above.

Driver’s license – Staff may work in VA but live in another state such as North Carolina, Tennessee, West Virginia, Maryland, etc.  Recommend removing the requirement for a VA license.  This is a barrier to employment.  Each provider should have the freedom to work with their Risk Management Department to identify an appropriate policy for that provider.

12VAC135-106-300 Employee training

B.1 – 7 day training requirement is not feasible.  This is overly prescriptive and adds a huge financial burden to the provider.   Most providers are unable to accommodate this.  Availability of trainings such as CPR/First Aid/Medication Assistance are not always available same week.  It is reasonable to provide basic orientation as to job duties and agency policy and procedures within the first 7 days, but to require all of the training to happen in that amount of time appears unmanageable.   One suggestion is that staff does not work alone without completing necessary training. 

C. – It appears that the requirement for at least one employee on duty at each location to have a current CPR and First Aid certification is being removed, what is the new requirement?   Is the expectation that everyone must be trained?  If so, this is a huge expense and an unwarranted burden on the provider.

12VAC35-106-310   Notification of policy changes

B.  Notification “prior to implementation” prohibits organizations from quickly implementing changes and responding to concerns.   At times, providers find that they need to quickly implement a change for the health and safety of clients, this will not allow providers to be nimble and responsive to the needs of their clients/communities.  Policy changes are often required to be approved through individual boards/localities.  

Continued comments (part 2)

12VAC35-106-490  Emergency medical information

Face sheets are generally for paper charts.  Electronic Health Records are now used and emergency medical information is easily accessible. 

A.6 – “…and any medical protocols for those problems or conditions.”   What is meant by “medical protocols” and is this necessary for a provider not providing medical services?  

A.9 – What is the need for having the name of the hospital for delivery?  This seems unnecessary.   Does this information fall under the heading of “emergency medical information”?

12VAC35-106-510  Service Description requirements                     

Suggest that the service descriptions be available upon request. 

12VAC35-106-550  Privacy

5. A prohibition on staff visitors.  What is meant by this?   Please provide further explanation. 

12VAC35-106-560  Transportation

B. 1  requiring annual driving record checks causes an additional administrative and financial burden on providers. 

B. 6.  This seems to indicate that those with a DUI or reckless driving conviction are not allowed to provide transportation to clients.  Could there be a timeframe for these convictions?   Something like, no convictions in the past 5 years on these items?  This regulation may disproportionately affect peers with lived SUD experience. 

12VAC35-106-590  Monitoring and evaluating service quality

C.  Please provide a definition of a “licensing compliant.” 

12VAC35-106-710  Traffic pattern

Most traffic patterns are not under the control of the provider.  This seems unnecessarily onerous. 

12VAC35-106-750   Lighting

Section A.  Artificial lighting shall be by electricity.  This is prescriptive.  Some sites are moving to solar, battery, etc.  Recommend removing this.

Section C.  Lighting in halls – is this just for residential settings?

12VAC35-106-740 Personal necessities

Section A.  It reads as though the program must provide personal hygiene and grooming items.  Is this correct?  How will this be paid for?   Additionally, what is the definition of “service locations where appropriate?”

12VAC35-106-810  Emergency Preparedness and response plan

What is the definition of a “vulnerability analysis?” 

Section D.   For those CSB’s that are a part of a local government, the CSB is included in the emergency preparedness plans of that locality.   Thus documentation of collaborative outreach seems superfluous.

12VAC35-106-820   Access to telephone in emergencies: emergency telephone numbers

Section A.  Most landline telephones still require electric.

Over-arching Comments:

Throughout the regulations, there are multiple references to disability specific chapters regarding requirements.  As these chapters do not yet exist, it is hard to effectively evaluate in relation to these regulations.   A full review of comments is not possible if the reference is made to the disability specific chapters and not being able to read them to obtain full context.

There are definitions removed from proposed regulations that we are unable to determine if they will be included in the disability specific chapter or if being removed altogether which will impact practice. 

If duplications with performance contract remain in licensing regulations for the purpose of increasing structure for private providers, then we advocate removing redundant requirements in the performance contract.

The increase in administrative burden to meet the letter of these proposed regulations is substantial.  In general, it would seem that setting the expectation for Licensing Specialists to review program descriptions, (a sample of) policies, during annual site visits would be more efficient for both OL and providers – vs. frequent submission of documents to OL.

Regulations feel like they are micro managing and becoming prescriptive as to specifying exactly where information should be documented

Any reference to “Substance Abuse” should be changed to “Substance Use Disorders” for consistency in terminology.

Suggesting the regulations move to become gender neutral as positions could be filled by a male or female by using gender neutral pronouns.

Department guidance documents are not regulations.  While they may be best practice, regulations should document the requirements.  There is not the opportunity to provide comment or follow the adoption process with guidance documents.

Multiple sections reference competency testing.  This needs to be further defined including specification of expectations around this term.

106-20:  Definitions

Definitions should be consistent across licensing, DMAS, and core taxonomy definitions to ensure the ability to comply with each of these entities.

Adding “and desires” to the definition of case management services potentially broadens the scope of support coordination and stretches limited resources.  The service should be based on individual’s needs.

Add definition of “Behavioral Health”, allowing for recognition of co-occurring MH/SU disorders and adjustment of license types.  Regulations and expectations should be consistent across behavioral health services.

Change the proposed definition of “Comprehensive assessment” to “means a comprehensive and written assessment used in lieu of, or updates and finalizes the initial assessment.  This removes the requirement to complete a separate initial assessment for providers who provide the Comprehensive assessment at initial assessment.

“Crisis Stabilization”-  Change “…individuals may ‘be maintained’ in the community” to ‘be supported’.

“Direct Care Position”-Clarification requested.  Is this defining the role of a supervisor of direct care positions is also considered a direct care position?

“Full time employee” or “employee” means an employee employed on average at least 30 hours of service per week, or 130 hours of service per month.  Remove the second “employee” as this is seems to state that only employees who work those hours are considered to be an “employee”. 

“Intensive Outpatient Service”- This definition does not match DMAS definition of minimum 3 hours per day.   The proposed regulation adds “shall” include multiple group therapy sessions during the week, individual and family therapy, individual monitoring, and case management.  The word shall seems to require the provision of each and all of these.  Family therapy should be a choice and case management is a separate service, including as defined in the DMAS ARTS manual.

“Medication Error” definition is removed.  What is the impact?  Do we not have to investigate these as neglect?

“Outpatient services” definition “shall not include practitioners who hold a “licensed issued by a health regulatory board of DHP” or “who are exempt from licensing pursuant to” This reads as if licensed staff of excluded from providing outpatient services.

“Partial Hospitalization”- DMAS does not specify that these services must be medically-directed.  Remove “medically-directed” from proposed regulations.

“QDDP”, “QMHP”, “QMHP-A”, “QMHP-C”, “QMHP-E”, “QPPMH”-  These definitions are removed from the proposed regulations.  Is it intended that they will be included in the disability-specific chapters?  It is difficult to evaluate the appropriateness of the removal of these definitions without the subsequent chapters.

“Residential crisis stabilization”- Why is this definition removed?  Will it be included in disability specific chapter?  Would this cross disabilities?

“Serious Incident”-  Remove/reconsider the inclusion of “uplanned psychiatric hospitalizations” as this is part of the support/services provided by the CSB.  Is removal of Level III, item 3 intentional?

Remove “gero-psychiatric residential services” from “Services” definition to ensure it matches list under 1014.

106-30 Licensing Requirements

C. A license addendum shall:

Remove “normal business hours” from the requirement.  This reduces the flexibility of service providers to change hours and increases administrative burden on both providers and office of licensing.

106-60 Inspection Requirements

Would the Office of Licensure support organizations that are accredited by CARF (or National Accreditation Organization) by waiving the annual reviews and move to either a triennial review or on an “as warranted” basis.

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. “  Request to remove this wording.  Requiring records within a time frame seems to exceed the scope of regulations.  This may not always be possible in rural locations due to travel, larger organizations, or volume/extent of records requested, etc.

106-70- Renewals

F. Failure to submit a completed renewal application prior to the expiration of the provider’s current license shall result in the closure of the license. The department shall notify the provider in writing that the current license is closed and that any future interest in licensure will require the submission of an initial application. Comment: Can there be a warning for a provider before the closure of the license? Having a step in between seems to be a more efficient process.  Further, in the past lapsed renewal was given grace. 

106-80- Changes to licenses and notifications to the department

Draft Reg: A. A provider shall submit a written service modification application and all attachments required by this chapter at least 45 business days in advance of a proposed modification to its license. The modification may address Changes to the following characteristics require a service modification application: Modification to service descriptions; The provider’s normal business hours;

Comment: Requiring a licensed program to submit a service modification when modifying its service descriptions and hours is burdensome for services provider, removes the flexibility to respond to needs in a timely basis. Requesting this is removed. 

Requesting modification application for the modification to service description does not reflect the ebb and flow of business practices.  Perhaps review of a program description by Licensing Specialist when conducting the annual service review would help notify OL of changes without additional burden to both providers and OL by submitting this degree of Service Mods. 

7/10/19 Memo regarding Service Modifications allows Licensing Specialists 60 business days to conduct site reviews from the time a completed service modification packet is completed.  In essence, this changes the timeframe for providers to submit a Service Modification 60 days in advance of a desired start date.  Recommend regulation match the intended practice (or that the guidance document be revised to match the regulation).

“Any changes that cause a provider to be unable to provide services to any individual for a significant period of time”.  Too prescriptive, consider revision.

106-90- Variances

Draft Reg 2. The request shall demonstrate that complying with the regulation would be a hardship unique to the provider, that is not purely financial in nature, and that the variance will not jeopardize the health, safety, or welfare of individuals. Comment: The increase in regulatory requirements does come with a cost to organizations. It is requested that the department study the financial impacts on organizations as regulations increase to provide financial assistance to providers to meet the increase in administrative and quality assurance requirements.

106-110- Compliance

Draft reg: 3. All applicable federal, state, or local laws, and regulations and all applicable department guidance including: Comment: Department guidance documents are not regulations and should not be added to the regulatory requirements.  There is not an opportunity to give feedback on guidance documents as in draft regulation. They may be best practices, but providers may not have the ability to implement the guidance documents as written. An example is the guidance document on how to complete a root cause analysis.

106-120 Corrective Action Plan:

Regulation does not specify timeframe for Licensing Specialist to return the approved CAP or notify if not approved.  Experiences have ranged from 1 business day to several months.  Recommend adding this information (with 15 business days as the suggested timeline). Lengthy delays in responses put provider in difficult position regarding whether or not to move forward.  Recently, Licensing Specialist has required that the person responsible for monitoring an action step be named (by role) in the CAP.  If this is to be a routine expectation, then add to the regulation

106-170 Informal Hearings

Draft Reg: 1. “Reasonable” notice of the informal hearing, which shall include contact information consisting of the name, telephone number and government email address of the person designated by the department to answer questions or otherwise assist a named party; Comment: Requesting time frames are placed in the informal hearings such as within 15 days of receipt. Regulations should have clear time frames for providers and for the Office of Licensure.  Time frames should be added to each step so the provider knows the time commitment to an appeal process and knows what to expect. Each provider should experience the informal hearings the same way such as in the Human Rights hearing processes. Timeframes should occur in both departments, not just Human Rights.

106-180 Governance

Under the terms of the Core Services Taxonomy with DHBDS, CSBs have four options for how to be structured.  How does this effect boards that are part of a government agency in which the County provides this level of oversight and more? Requiring a specific standing committee is prescriptive and may not be effective if the board does not have this level of expertise in their volunteers.  Recommend this section be rephrased to ensure in alignment for CSBs. CSB board members are volunteers, they are not paid positions that you can find someone with the proposed distinct expertise.  Further, should not have requirement to submit personal, home addresses of Board members who are not employees.

106-190 Organizational Structure:

A.  written policy that describe the organizational structure including lines of authority, responsibility, communication, and staff assignment. Comment: If the organizational chart has names and shows the lines of authority it should meet this requirement.

106-200 Executive Director or Administrator

Remove list of degrees as not exhaustive with a preference for level of education and combination of experience.

106-220 Liabilities and Insurance

Draft Regs B. Additional protections from risks of liability may be required and enumerated within disability specific licensing chapters and department guidance. Comments: Remove reference to department guidance.

106-230 Confidentiality of Records

106-240 Criminal Background and Registry Checks

Draft Regs 2. Define direct supervision.  Does this mean the individual cannot be out of sight of supervisor?  Registry checks take extended time to complete and this would complicate onboarding.

Draft Regs 3. The provider shall have a policy related to the periodic performance of criminal history background checks of employees and contractors after the initial check performed pursuant to 12VAC35-106-240(A)(1). The policy shall require that the provider conduct background checks on a minimum of 20% of all existing employees annually. Comments: Suggest the regulations state the provider has a policy and that the regulations do not dictate an annual percentage.

106-250 Full and Part-time Employee Records

Employers are shifting to 3^rd party vendors for primary source verification of education history which are more reliable than transcripts.  Add this as an option.   Allow for driver’s licenses from other states; these are valid across the U.S., Virginia boarders on several states and employees may reasonably live in them, heavy Military presence in Virginia and family members may maintain license from a different state.  People may relocate.  Undue barrier to employment to limit to VA

Specify if assessment for TB is sufficient.  In recent years, there has been a shortage of serum needed to do TB testing, affecting ability to have all certified as TB free; rather assess and determine if warrant actual TB test.  Redundant of 106-320.

Draft Reg.5. Three job-related references supporting the knowledge, skills, and abilities of the minimum qualifications according to the job description; Comments: This should be reduced to two, if a person has worked one place for a long time it may be difficult to get three. Two is reasonable. Also, should allow for a performance evaluation in lieu of a reference. We do not want to hinder hiring a person because they can’t come up with three references when we are already experiencing a shortage.

Draft Regs: results shall be placed within a file in accordance with 12VAC35-106 230 D within three business days of being received by the provider from the department; Comments: Not everyone uses the Department for background checks, those board that are part of County government use their county. Language needs adjusting to allow for that.

 Draft regs: A record of participation in employee development activities, including orientation, training, and the results of employee’s competency testing. Comments: Further define competency testing with expectations for inclusion and evaluation of such testing.

106-260 Contracted Employees

Employers are shifting to 3^rd party vendors for primary source verification of education history as they are more reliable than transcripts.  Add this as an option

Allow for driver’s licenses from other states; these are valid across the U.S., Virginia boarders on several states and employees may reasonably live in them, heavy Military presence in Virginia and family members may maintain license from a different state.  People may relocate.  Undue barrier to employment to limit to VA

TB results – not specified.  Request same as above.  OR 106-320

Retention of contracted manpower employee records.  For people hired via temp agency (vs. independent contract) within CSB/public sector entity, they are not considered the employees of the provider, but of the temp agency. 

106-270:  Students and Volunteers

Does this mean no TB assessment for students & volunteers? OR 106-320

106-300:  Employee Training

Draft Reg:  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.

Comments: Does this training apply to Admin staff as well or only individuals working directly with the person served. It’s not possible to provide First Aid and CPR training within the first 7 days. CPR, First Aid, Medication Administration, and Behavior intervention such as TO/CPI are among more difficult trainings to obtain.  Define what is meant by “basic orientation”.  Also, impact on employers when small number of employees are onboarding concurrently.  Consider to move to within 30 days.   

(B)(4) All new employees, contractors, volunteers and students shall be supervised until completing all orientation and training required…. What does “supervision” mean specifically?  Does this mean they cannot be alone with individuals until completing the requirements?

(C)Annual training requirement from all items in 106-300  “basic orientation” a) behavioral intervention policies procedures and techniques regarding less restrictive interventions, timeout, and physical restraint; b) CPR and First Aid c) medication administration including basic pharmacology and medication side effects. What is meant by “basic orientation”.  Is this for all staff, including administrative staff?

106-310 Notification of Policy Changes

Draft Regs B. The provider shall notify the department of any changes to policies required by this regulatory chapter prior to implementation of the change. B. The provider shall notify the department of any changes to policies required by this regulatory chapter prior to implementation of the change.

Notification to OL of changes to policies prior to implementation places undue burden on both OL and providers.  Slows the process of updating and increases overall administrative burden.  What is the turnaround time for OL response?  What about need to respond to other changes quickly (e.g. laws).  Recommend that review of policies be integrated more routinely into site visits by Licensing Specialists.

106-320 Tuberculosis Screening

Specify if assessment for TB is sufficient.  In recent years, there has been a shortage of serum needed to do TB testing, affecting ability to have all certified as TB free; rather assess and determine if warrant actual TB test. 

106-350 Disciplinary Actions

 (B)(1-4) Policies for employee and contractor that lists discipline and penalties for abuse, neglect, exploitation and violation of client rights or providers policies.  This policy will wind up being relatively vague as our Human Resources Department has a “it depends” approach.  Will most likely use language like “up to and including”.  Contractors are not employees.

106-380 Regular Business Hours

Draft reg. C. The provider shall submit their regular business hours to the department. Comment: If the provider posts their hours on their website this should be sufficient public notice for the department. Submitting regular business hours seems micro managing.

106-400 Mission Statement

Draft reg. Anytime there is a modification to the mission statement Comments: If the provider posts their mission statement on their website and keeps it current is that sufficient notice to the Department? Does a change or update require a service modification form? How is the Department notified and to whom a licensing specialist?

106-410 Fee Schedule

Draft reg. and the provider shall publish, post, and make available the fee schedule to individuals Comments: Suggest this is changed to make available as opposed to publishing and posting all service fees

106-430 Cessation of Services

Documentation that written notification of information such as intent to cease operations would be documented in a progress note, not a treatment plan.  A treatment plan would be updated to note the date services are ended. 

106-460 Discharge

Added (F)(2) in the written discharge summary, “Description of the individual’s or authorized representative’s participation in discharge planning and documentation of informed choice by the individual or his authorized representative as applicable in the decision to and planning for the discharge.”  What does this look like?

106-480 Policies

Draft Reg: 18. A traffic pattern for center-based services that establishes a safe process for drop-off and pick-up of individuals who are transported by motor vehicle with site-specific application; Comments: this needs more clarification of what you are expecting in a policy.

104-490 Emergency Medical Information

Draft Reg. The provider shall maintain the following emergency medical information on a completed face sheet and updated for each individual when changes occur and any medical protocols for those problems or conditions; For individuals who are pregnant, the expected date of delivery and the name of the hospital to provide delivery services to the individual; Comments:  Every provider has a different way of setting up their record. To prescribe where information should be placed in the medical record is too prescriptive. It should be available in the individual’s record, not regulating that it is on the face sheet.  (A)(6) indicates that the provider must maintain the following information “significant medical problems or conditions and any medical protocols for those problems or conditions”.  This seems excessive.  Where does this begin and end?  Is this important for someone receiving outpatient services?  Is this per client’s report?

106-510 Service Description Requirements

Draft Reg The provider shall publish, post, and make available to individuals, and if applicable, their authorized representatives, service descriptions. The provider shall make the service descriptions available for public review. Comments: Recommend original language of making the service descriptions available as opposed to publishing and posting.

106-520 Medication Management

Need disability specific chapters to appropriately comment

106-530 Behavior Interventions and supports

No comment without seeing the disability specific licensing regulations

106-550 Privacy

Draft Reg 5. A prohibition on staff visitors. Request clarification of 550 – 5 – is the intent for the policy to prohibit staff members from receiving visitors while at work in any manner that could violate privacy? 

106-560 Transportation

Draft Reg 1. The check of the employees’ or contractors’ driving record shall occur at the time of employment and annually thereafter. Comment: This is for HAMHDS need to check if we do annual checks or sampling after time of employment.

106-570 Reporting to the department

Draft Reg:  A root cause analysis shall be conducted by the provider within 30 days of discovery of Level II serious incidents and any Level III serious incidents that occur during the provision of a service or on the provider's premises. Comment: Request moving RCA to read 30 business days.

106-590 Monitoring and Evaluating Service Quality

Comment: Clarification is needed as to what types of complaints are associated with licensure regulations that are not human rights, is this not a Department requirement for providers? This is confusing. It reads like another process similarly to human rights. This is a new system structure added to providers with no funding for the staff to implement this new structure.  What are the examples of how this would be implemented? Internally staff report on each other and it is investigated when a licensure regulations is not implemented? Not sure what this means.

106-600 Individual records

Draft Reg - Notice to individuals receiving services and their authorized representatives of where all individual records will be located. Comment: So, if its and electronic record that is required to be shared with the individual?

106-630 Human Rights

Comments: Does this imply that violations of human rights will now become CAPS?

106-650 Choice of Provider

Consider requesting does not apply to services provided in jail.  Also, define provider.  Individuals have the choice between provider agencies, but does this extend to choice of specific practitioner?  Specific case manager, for example.

106-690 Building and Grounds

Is the provision of outdoor recreation space required for all types of service locations?  Specify where this is required.

106-700 Floor Plans and Building Modifications

Draft Reg Within the service modification application to be submitted to the department as required by 12VAC35-106-80, The provider shall submit building plans and specifications for any planned construction at a new location, changes in the use of existing locations, and any structural modifications or additions including renovations.

Comments: Consider requesting clarification regarding renovations/examples (e.g. counter top replacement?) If there is no impact to individuals served is a service modification needed? Siding on the house is a service modification needed?

106-710 Traffic Pattern

Draft Reg Each provider shall submit a site specific traffic pattern at the time of initial application, as required by 12VAC35-106-40 and each time a service location is added in accordance with 12VAC35-106-80. Comments: All programs or just day programs.  This would not be consistent with normative life to submit for a group home setting.  What are the expectations for enforcing this?

106-720 Lighting

Draft Reg Lighting in halls shall be adequate and shall be continuous at night. Comments: Is this is for residential services or all service locations? Is a night light sufficient?

106-740 Personal Necessities

Draft Reg A. In service locations where appropriate, an adequate supply of personal necessities shall be available to individuals receiving services at all times for purposes of personal hygiene and grooming. Comments: Is this when individuals are not able to afford it themselves that the program would pay for it?  Which service locations are considered “appropriate”? Outpatient clinics?

106-770 Animals

Add language consistent with ADA. 

106-810 Emergency Preparedness and Response Plan

Draft Reg The provider shall maintain documentation of collaborative outreach to local emergency officials to include local emergency managers at least annually. Comments : If the CSB is part of a County government the communication occurs on an ongoing basis. The CSB would be part of their Counties EOC. What type of documentation of outreach is expected?

106-820 Access to telephone in emergency; Emergency Telephone numbers

Draft Reg A landline telephone shall be accessible for emergency purposes. The telephone shall be a line capable of operating during a power outage. Comments :  Is this for all services or just residential?

A governing body by definition means a body of person or officers having ultimate control constituted for administration.  With a governing body, this poses additional risks and those individuals are liable.  Many providers including the provider represented by this writer are incorporated, would be considered small and privately held.  As a small corporation, it is VERY common to have less complex bylaws but minimally the corporations bylaws would cover the company’s name, address and location of headquarters if there are multiple offices, the officers and directors that will be leading the company, the process for amending and adding company bylaws and the procedure for keeping and managing corporate records and types of stock classes that are offered.  Most small corporations are closely or privately held. They have few stockholders and most small corporations’ stockholders are known to each other and in many cases these stockholders are from the same family or have some other personal relationship.  Additionally, smaller corporations may consist of those individuals that are involved in day to day business operations as owners, managers or employees. Publicly held can have millions of shareholders and the individual shareholders have no direct involvement in the business.  Public companies are regulated by the Securities and Exchange.  There is no external regulation of shares in a privately held company. Different classes of corporations are required to keep minutes of meetings between shareholders (governed by each state as to requirements) no matter the size of the corporation.  

Non-profits are required by federal and state law to have a Board of Directors which acts as a governing board.  Non-profit organizations in complying with federal law, is that one of the board’s roles is to ensure that no inappropriate private inurement takes place deviating organizational assets into the hands of individuals who can influence the affairs of the nonprofit. State laws are explicit to indicate that nonprofit corporations need a board to assume the fiduciary role for the organization’s well-being and be the body to approve all the major financial transactions in the organization.

Several of the regulations under this Article, seem to be pulling from the Sarbanes-Oxley Act.  However, this act only covers PUBLICALLY HELD CORPORATIONS NOT PRIVATELY HELD CORPORATIONS. (For example, the board members area of expertise and the specific committee such as audit).

While a privately held corporation or company may benefit from having a governing board, it is not necessarily the best way to proceed for a SMALL corporation.  It may be more advisable for a smaller corporation or provider to have an advisory board that is not posing additional risks and liability to the corporation.  An advisory board may only be needed if management of the corporation or provider may feel they are losing touch with their employees, plan to raise capital from outside investors or are too busy running day to day affairs to think about strategic issues.  It does not seem warranted or necessary to increase regulations beyond established federal and state law on providers and small, privately held corporations that have successfully provided services in the Commonwealth for dozens of years.  If the oversight agency has concerns, it seems sufficient that bylaws of small, privately held corporations could be requested. For providers that are not incorporated, requiring an advisory board may be less demanding for the provider as well as more cost efficient.  It may be difficult to find willing board members that serve for no compensation when that is the norm for a governing body in a privately held corporation.  Additionally, the small corporations will have to increase their liability insurances to cover these board members which instills yet another cost on an already struggling profession. The exact cost is difficult to determine but additional training hours of paid staff would be required (orientation of board members). Also, with the proposed regulations, those that do have small corporations who may already serve as stockholders/shareholders and also are employees of the corporation would create redundant and additional requirements that are not necessary due to existing regulations in job descriptions and requirements of corporations already established by law. 

Audits by used to be required regularly of all providers. Again, the purpose of long-established providers where other financial tools are utilized seems like an over intrusion of expensive regulation that are not necessary.  Profit and loss statements may be more beneficial.

If the intent of these new regulations is to hold provider agencies no matter how organized to a higher level of accountability, this provider would request the number of situations where lack of accountability in areas where a governing board would have made a difference to that particular provider situation versus the cost (including additional time) to providers. Additionally, if the intent of this regulation is to move to a managed care system where large and limited providers are the goal of the Commonwealth of Virginia, it is requested that the Commonwealth make these intentions known so providers can respond as this will disrupt many employers, employees and most importantly individuals supported

12 VAC35106-240

3.  There are many unfunded mandates in the new licensing regulations.  Private providers continue to be hit with additional expenses with no changes in our rates.  The policy to require that the provider conduct background checks on a minimum of 20 percent of all existing employees annually is an example.  For this agency, this cost would be approximately $360.  Also does this include the background check with CPS?  If so, this would be an additional $60 and this does not include the time the agency would have to pay in extra administrative costs for our employees to comply which in many cases would be overtime.

2. A copy of any official transcripts or degrees and training history: many of our Direct Support Positions only require a high school diploma. If you hire an individuall that has graduated 10 years or more from high school, obtaining confirmation of this degree is quite difficult.
5. Three job related reference supporting the knowledge, skills and abilities of the minimum qualifications according to the job description: With the salaries for Direct Support Professional entry level, experience and limited time in the job market may make this quite impossible. DSP positions are often used as steppingstones and rarely are careers made in this area. If you hire a younger induvial, there may not be three job references to obtain.

1.  Required initial training within 7 business days is impossible.  This agency contracts with an outside vendor to conduct our First Aid and CPR.  Additionally, we contract with an agency to provide our medication management.  We are at the mercy of these agencies and many times, especially the medication administration is only offered quarterly. 

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

                1.  Retraining of all the elements required within 12VAC35-106-120

Another example of an unfunded mandate.  This would be an exorbitant expense for this small agency.  Currently, to bring a full-time DSP/Program Coordinator on board, the expense to this agency is approximately $1900 per employee in current mandated and best practice trainings.  This agency typically has turnover of 5-6 full-time DSP/Program Coordinators per year.  The cost of bringing on a part-time DSP is approximately $1,500/employee with this agency hiring between 5 and 6 part-time DSP’s a year.  Additionally, with the required competencies, our Program Coordinators are spending approximately 10 percent of their time to mentor employees to determine competency areas costing the agency approximately $10,400 year in just salaries.  Annually, we would have to increase our current training protocol by approximately 44 hours per employee at a cost of approximately $18,480.  This is based on straight wages where in reality, this would probably be overtime for the majority of our full-time employees.  Also, this figure does not include the number of hours that services would have to be cancelled or scaled back due to lack of DSP to cover individual’s schedules.  That cost would be approximately $5,000 a year additional.  There is very little small providers can continue to absorb with training that does not seem necessary by our proven track record. This expectation needs to be rethought and this agencies recommendation would be to spend time with provider on a CAP to determine training in areas that are lacking for that specific agency INDIVIDUALLY.

12VAC35106-400 Mission Statement

Please be specific in what you mean by post and publish.  We have a website and the mission is contained there.  Would this be sufficient?

12VAC35106-490 Emergency Medical Information

6.  Impossible to place medical protocols for those problems or conditions on a face sheet.  Our protocols can be a page in length for each condition.  If the Commonwealth is going to require EMR, it is requested by this agency that this intent be stated now.  It is also requested that the Commonwealth review the cost of EMR and the devastation in could bring to small providers.

12VAC35106-600

4.  Security measure that protect records from loss including fire damage or water damage:  another unfunded mandate costing this agency:  $40,000.

12VAC35106-730

C.  Concern of taking homes into mini institutions. Is this really person centered?

12VAC35-106-740

Where appropriate and at whose expense?  Does the provider have to provide this even if an individual can afford this?  Wording needs changes to be more age appropriate.   

• 106-110 Compliance, Draft:  All applicable federal, state, or local laws, and regulations and all applicable department guidance including: Comment: Department Guidance should not be added to regulatory requirements, as they are meant to only be a best practice guide.  Also, by the time the Department has made regulatory changes, guidance documents are generally not in place yet leaving agencies to create their own process in order to meet regulations.

• 106-240 Criminal background and registry checks: The provider shall have a policy related to the periodic performance of criminal history background checks of employees and contractors after the initial check performed pursuant to 12VAC35-106-240(A)(1). The policy shall require that the provider conduct background checks on a minimum of 20% of all existing employees annually. Comment:  This will have significant financial and administrative impacts on providers.  Consider changing requirement to all providers must have a policy that addresses criminal background checks, and do not include a required percentage. 

• 106-300 Employee training, Draft Reg:  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. Comment:  It would be extremely difficult for providers to provide First Aid and CPR training within the first 7 days.  Recommend removing a time frame. 

• 106-310 Notification of policy changes: Draft: The provider shall notify the department of any changes to policies required by this regulatory chapter prior to implementation of the change. B. The provider shall notify the department of any changes to policies required by this regulatory chapter prior to implementation of the change. Comment:  Notification to OL of changes to policies prior to implementation places undue burden on both OL and providers.  This will slow the process of updating policies to meet the needs of the changing regulations, laws, and agency requirements.

The proposed regulation changes contained in this draft represent a substantial increase in administrative burden and unfunded mandates which unreasonably stretch already limited resources.  I question the sustainability of the requirements contained in this document from both the provider agency and Office of Licensure.  In general, it  would seem to better serve the individuals receiving services for both providers and the Office of Licensure to be able to devote more time to the provision and robust review of services rather than the movement of paper to describe minute changes in process.  Quality and timely Corrective Action Plans would be more effective at addressing issues or concerns with a small number of providers versus adding regulations to address these situations of a few by adding substantial cost to all.

Department guidance documents are not regulations.  Their release does not follow the required process for adding/changing regulations, so such a broad statement does not have a valid place within the regulations.

12VAC106-50 Changes to licenses and notifications to the department

This section is very confusing.  If for example this agency would be to change ownership it would be through sale (which is better explained) or inheritance of shares in the corporation.  Does the organization retain its organizational license and all services become conditional?  The current regulations read more so that the agency moves to a conditional organizational license thus only allowing certain services to continue to be provided even though these services may be well established.  For unknown changes of ownerships such as death, the time requirement would be impossible.  Please review this section so small corporations are able to comply without interruption to employees or individuals served.

Overall, the proposed licensing changes create significantly more far –reaching regulations, especially in areas of administration and governance, all of which amount to unfunded mandates for providers. In the absence of additional resources to meet the proposed requirements, providers’ existing resources will necessarily be directed away from actual treatment and service to clients and instead be allocated towards meeting these unnecessarily burdensome administrative requirements. 

Emergency services (crisis intervention)- Emergency services shall provide immediate mental health care in the home or community to assist individuals who are experiencing acute psychiatric dysfunction requiring immediate clinical attention

Feedback:  This suggests a mobile crisis response capability which is not funded and not available in all CSBs’ Emergency Services.  The STEP-VA Mobile Crisis initiative and associated funding will support expansion of mobile crisis capability, but this will be regionally managed and a separate service than Emergency Services.  “Mobile Crisis” should be separately defined and this sentence removed from the ES definition.

Full time employee” or “employee” means an employee employed on average at least 30 hours of service per week, or 130 hours of service per month. 

Feedback: It is confusing to define “employee” and “full time employee” synonymously. Agencies employ employees who work fewer than 30 hours per week or 130 hours per month and are still employees

"Initial assessment" means an assessment conducted prior to or at admission to determine whether the individual meets the service's admission criteria; what the individual's immediate service, health, and safety needs are; and whether the provider has the capability and staffing to provide the needed services. An assessment is not a service.

Feedback: This is an extremely confusing term as used here.  Perhaps consider calling it “eligibility screening” if that is the intended meaning.  An assessment is commonly considered a clinical evaluation and most definitely is a service, often billable.

Social detoxification service" means providing nonmedical supervised care for the individual's natural process of withdrawal from use of alcohol or other drugs.

 Feedback: The elimination of the licensing category of non-medical detox/ social detox has resulted in elimination of an essential component in the Alexandria continuum of care for individuals with SUD.  Social detox is an ASAM-defined level of care that can provide a drug and alcohol-free environment with safety, stability, and supervision for individuals in early stages of recovery who do not need or want a medical environment or use of medication to safely eliminate or reduce the effects of alcohol or other drugs. A social detox program that properly assesses and monitors individuals and can refer clients for timely and appropriate medical intervention when needed is an appropriate level of care for many individuals with SUD and the removal of the licensing category runs contrary to the goal of providing cost-effective community care of the lowest appropriate level of intervention in the least restrictive environment.  The medical detoxification standards are significantly more costly to operate and staff and there is not commensurate reimbursement for this higher level of care by DMAS or other payors.  The levels of care defined by licensing should be compatible with ASAM levels of care and congruent with DMAS definitions and reimbursement structure.

Mental Health Community Support Service Skill Building" or "MHCSS

Feedback: Consider aligning the acronym with the name of the service to improve clarity.  Perhaps MHSB instead of MHSS.

"Screening" means the process or procedure for determining whether the individual meets the minimum criteria for admission assessment

Feedback: Definition of “assessment” “initial assessment” and definition for “screening” are indistinct. Unclear differentiation.

• 12VAC35-105106-30. Licenses

19. REACH

Feedback: REACH is not defined in Definitions.  REACH is considered a lifespan crisis stabilization program for individuals with IDD.  It is unclear why it is identified as a separate licensing category from Crisis Stabilization.

• 12VAC35-105106-50. Issuance of licenses License types.

2. A provisional license may be issued to a provider for a service that has demonstrated an inability to maintain compliance with all applicable regulations, including this chapter and Human Rights Regulations (12VAC35-115) or this chapter, has violations of human rights or licensing regulations that pose a threat to the health or safety of individuals receiving services, has multiple violations of human rights or licensing regulations, or has failed to comply with a previous corrective action plan.

            f. The commissioner may lower a full license to a provisional license at any time a            provider shows an inability to comply with licensing regulations.

3. e. The commissioner may lower a triennial license to an annual license at any time based on a change in the provider’s compliance with these regulations and other applicable statutes and regulations.

Feedback:  in highlighted paragraphs above, include the term “substantial(ly)” to qualify the degree to which non-compliance may result in issuance of a provisional license or lowering to a provisional license.

• 12VAC35-106-60.

Inspection requirements. (blend of current sections; see tracking chart)

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.

Feedback:  One hour is an onerous and unrealistic time frame in which to expect staff to prepare any records or information in response to a Department request. It is disruptive to program and agency operations.  Increase to 4 hours, minimum.

• 12VAC35-106-180. Governance.

A. The provider shall have a governing body that is accountable for and has authority over the policies and activities of the service and which includes persons with expertise in management, and finances, and individuals from or individuals related to the disability population served. A single individual on the governing body may serve multiple roles.

1. Records of the governing body shall specify the number of its members who are expert in each category listed above. Such records need not identify these members by name.

2. If the agency’s governing body is located outside of Virginia, the governing body shall establish an advisory board in Virginia comprised of Virginia residents from the disability population served or related to the disability population served.

B. The duties and responsibilities of the governing body shall include:

1. Appointment of a full-time executive director or administrator to whom it delegates, in writing, the authority and responsibility for the administrative direction and day-to-day operation of the provider and its services;

2. Establishment of an employment contract with a full time executive director or administrator;

3. Orientation for board members;

4. Annual conflict of interest disclosures by board members;

5. Oversight of programs, goals, budgets, operational reviews and licensure status;

6. Establishment of staggered term limits;

7. Definition of decision-making process;

8. Definition of scope of responsibilities for board and executive director or administrator;

9. Establishment of standing committees, at least one of which shall be on audit and finance;

10. Maintaining records documenting actions taken in accordance with 12VAC35-106-180(B)(1) through (9), and records of:

a. Minutes and records of meetings;

b. Reports to the governing body by the executive director or administrator;

c. Instructions and guidance provided to the executive director or administrator by the governing body;

d. Reviews by the governing body of the executive director’s or administrator’s performance, which shall be conducted at least annually; and

e. The governing body’s review and approval of the provider’s audit and annual operating budget.

C. The provider shall submit the following information to the department:

1. The names, addresses and phone numbers of all owners, officers, directors, and financial investors whether they are individuals, general and/or limited partnerships, corporate bodies, or subdivisions of other bodies, and anyone else that meets the definition of provider; the provider shall notify the department of any changes to this information at the same time the provider notifies the Virginia State Corporation Commission;

2. A certificate from the State Corporation Commission; and

3. Ownership or financial interest in the service, program or agency held by current employees, including the nature of such interest and the financial benefits received by the employee. The disclosure shall also state if no benefits are received.

Feedback:  Addition of governance section is regulatory overreach.  Virginia Code already specifies requirements for CSB governing body

• 12VAC35-106-190. Organizational structure.

A. The provider shall maintain, and make available to any employee or client an organizational chart and written policy that describe the organizational structure including lines of authority, responsibility, communication, and staff assignment.

B. The provider’s full time executive director or administrator shall be on the premises during regular business hours. In his absence a professional staff person shall be designated to act in his place. The provider shall ensure the designee has the contact information for the administration in the event of an emergency.

C. Each provider shall establish a system of business management and staffing to ensure that the provider maintains complete and accurate audits, accounts, books, and records, including required financial, personnel, and client records.

Feedback: Overreach.  Section B is ambiguous in organizations that have multiple licenses in multiple locations.  Suggest that wording be amended to reflect that administrator or designee is available in case of emergency.  Also, typo- “administration” ought to read “administrator”

• 12VAC35-106-200. Executive director or administrator.

A. The executive director or administrator shall have the following responsibilities:

2. Responsibility for all personnel;

4. Responsibility for the provider’s financial integrity.

.

C. Any applicant for the executive director or administrator position shall submit to the provider the following to demonstrate compliance with the qualifications required by this regulation for the executive director or administrator position:

1. Official transcripts from the accredited college or university prior to hire; and

Feedback:  For providers operating as agencies of local governments, the provider’s Executive Director (i.e., CSB Executive Director) is permitted only to make recommendations re personnel matters and does not have direct lines of authority re either personnel or finances and therefore responsibility is necessary constrained. 

Consider amending requirement for complete transcripts to “official verification of degree confirmation”.  Complete transcripts seem excessive/unnecessary.

• 12VAC35-105-400106-240. Criminal background and registry searches.

history background check or registry check.

B. 3. The provider shall have a policy related to the periodic performance of criminal history background checks of employees and contractors after the initial check performed pursuant to 12VAC35-106-240(A)(1). The policy shall require that the provider conduct background checks on a minimum of 20% of all existing employees annually.

Feedback: Section 3 above is a burdensome obligation in cost and staff time.  Consider amending to require that providers have a policy requiring employees and contractors to the provider any new criminal charges following initial employment.

• 12VAC35-105-430106-250. Full-time and part-time Employee employee or contractor personnel records.

A. Employee or contractor personnel records, whether hard-copy or electronic, shall include:

2. Education and training history A copy of any official transcripts or degrees and training history;

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

6. Results of reasonable efforts to secure job-related references;

7. Reasonable verification of employment history;

Feedback: consider substitution of “verification of degree confirmation” for “official transcripts”.  Consider combining 5 and 6 to read “Three job-related references supporting the knowledge, skills, and abilities of the minimum qualifications according to the job description; OR Results of reasonable efforts to secure job-related references”.  Employers typically will no longer provide qualitative job references.

106-260 Contracted Employees....

C. When a provider uses staff employed by a contractor or temporary agency, the provider shall ensure a method to obtain all the elements in 12VAC35-106-240 A so that the provider may have a copy of the contractor’s personnel record for its files.

Feedback: This requirement would necessitate considerable changes to existing processes involved in bringing on contract employees and these changes would require additional staff time and therefore cost to provider agencies.  These requirements would also substantially protract the hiring process meaning that key positions providing direct client service will remain vacant longer.

106-270 Students and volunteers...

C. The provider shall conduct a criminal background and a check of registry that is maintained by the Department of Social Services pursuant to Code of Virginia § 63.2-1515 for all students and volunteers. The provider shall follow the written policy for criminal history background checks and registry searches required by 12VAC35-106-240 B with regards to results obtained.

Feedback: this provision will increase cost in staff time.

106-300 Employee training...

. 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:

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

C. There shall be at least one employee or contractor on duty at each location who holds a current certificate (i) issued by the American Red Cross, the American Heart Association, or comparable authority in standard first aid and cardiopulmonary resuscitation (CPR) or (ii) as an emergency medical technician. A licensed medical professional who holds a current professional license shall be deemed to hold a current certificate in first aid, but not in CPR. The certification process shall include a hands-on, in-person demonstration of first aid and CPR competency. 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

Feedback: Keep requirement for initial CPR and first aid training to current 15 business days, not 7 days.  Proposed change will delay the ability to start staff to fill critical positions, as this training is not always available within 7 business days of start date. 

Typo in ‘c”.

Require re-training of first aid and CPR before credential is expired.  The additional of all of the re-trainings on an annual basis adds considerable cost in staff time and is burdensome.

106-350 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.

Feedback: For providers that are agencies of local governments, the jurisdiction’s human resource policy prevails.  Agency staff/Executive director can recommend disciplinary action however, the authority for issuing such rests with the local government Human Resource director. This regulation, as written, is not within the scope of the licensed provider to carry out.  Re: B—consider eliminating the word “penalty” and use “appropriate corrective response” instead or at least using an “and/or” to allow for one or both options.  Certain of the listed infractions would warrant penalty but others might warrant training or counseling, depending on the nature and seriousness.

106-450 emergency transfers

A. The provider shall implement a written policy that defines the process for transitioning or discharging an individual who experiences an emergency or crisis that the provider is not equipped to serve. At a minimum the policy shall address:

1. The process the provider will follow during the emergency or crisis while the individual is still within the provider’s care;

2. The process the provider will follow to transfer or discharge the individual to the successor provider; and

3. The process and timeframe for transferring the access to the individual’s record and ISP, including the individual’s discharge summary as required by 12VAC35-106-460 F.

B. All providers shall develop a method for documenting the provision of interventions that occur during a crisis or emergency. Documentation shall comply with 12VAC35-106-500. This documentation shall occur prior to transfer of documentation required under this section.

Feedback: “Transfer” and “transitioning” are not defined terms, so this section is unclear.  Do those terms mean a change in admission status of the client within a licensed program or could they mean simply that an individual remains admitted to the licensed program but is receiving emergency services elsewhere, such as with an acute medical emergency. The language suggests that “transfer” and “transitioning” are something different than “discharge” but it is ambiguous. This should be clarified. Under B, it is not clear whether the intended meaning is that the provider is to be documenting the interventions that the provider itself offers the individual during a crisis or emergency or if the provider needs to document the interventions that a another/successor provider is offering during the emergency.  If the latter, the requirement is unrealistic as the provider may not have ready access to detailed information about another/successor provider’s interventions.

106-480 Policies..

18. A traffic pattern for center-based services that establishes a safe process for drop-off and pick-up of individuals who are transported by motor vehicle with site-specific application;

Feedback: The provider may or may not have authority to determine traffic patterns at particular sites, nor can the provider regulate the practices of motor vehicles that may be dropping off and picking up individuals or other traffic in the immediate area. This regulation is an unfair and unrealistic burden on providers.

106-490 emergency medical information

A. The provider shall maintain the following emergency medical information on a completed face sheet and updated for each individual when changes occur:

Feedback: The provider can only know when changes occur in emergency medical information when informed accurately by the individual.  Consider modifying language to reflect that reality by adding”…or when informed by the individual or guardian or at least quarterly.”

106-550 Privacy

Each provider shall have written policies and procedures regarding privacy, social media, photography, and audio or audio-video recordings of individuals that shall ensure and provide:

5. A prohibition on staff visitors.

Feedback: What does “a prohibition on staff visitors” mean? There are many times when the site of service delivery for individuals is also a site at which meetings convene or other members of the public might be present.

106-690 Building & grounds

A. Any service location’s grounds shall be safe, properly maintained, and free of clutter and rubbish. The grounds include, but are not limited to, all areas where individuals, staff, and visitors may reasonably be expected to have access, including roads, pavements, parking lots, open areas, stairways, railings, and potentially hazardous or dangerous areas.

B. The interior and exterior of all buildings shall be safe, properly maintained, clean, and in good working order. This includes, but is not limited to, required locks, mechanical devices, indoor and outdoor equipment, and furnishings.

C. Outdoor recreation space shall be available and appropriately equipped for the individual’s' use.

Feedback: A: In leased space, the provider may have limited authority over the condition of these areas.  A caveat should allow for evidence that the provider has attempted to identify and remediate any problem areas that the provider does not directly control.

C: What does this mean? Some buildings do not have grounds for recreational space. Nor would it be compatible with the nature of many services to provide recreational space.

106-710 Traffic Pattern..

The provider shall enforce the traffic pattern.

Feedback: Extreme overreach. Unrealistic in many settings and especially leased facilities or buildings where space is integrated/shared with other offices or businesses.  Providers are not authorized as traffic enforcers nor staffed to provide traffic enforcement or address the safety needs of the general public.

106-710 Personal necessities

C. In service locations where appropriate, when individuals are incontinent or not able to use the toilet independently:

4. Staff shall thoroughly wash their hands with warm soapy water immediately after assisting a child or themselves with toileting.

Feedback: Staffs assist children and adults with toileting.  Nobody assists themselves with toileting.

106-810 Emergency Preparedness & response plan

b.Maintenance of a 24-hour phone line which can be used for communication duringemergencies.

Feedback: (b) is overly prescriptive.  Consider modifying to allow flexibility in how to maintain the capacity for 24/7 communication during emergencies. This may be achieved in ways other than a 24/7 telephone line

4. d.Policy and procedure for repatriation following evacuation including any necessary site inspections required before repatriation can take place.

Feedback: substitute “return” for “repatriation.”

106-820 Access to telephone....

A landline telephone shall be accessible for emergency purposes. The telephone shall be a line capable of operating during a power outage.

Feedback: Overly prescriptive.  Consider modifying to allow “telephonic communication shall be accessible for emergency purposes and capable of operating during a power outage.

Thank you!