Virginia Regulatory Town Hall
Department of Behavioral Health and Developmental Services
State Board of Behavioral Health and Developmental Services
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10/25/19  10:37 am
Commenter: Jonina Moskowitz, Virginia Beach Dept. of Human Services

RE: Proposed DBHDS Licensure Regulation Changes

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”?

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.

CommentID: 76644