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.”