Virginia Regulatory Town Hall
Department of Behavioral Health and Developmental Services
State Board of Behavioral Health and Developmental Services
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10/31/19  9:47 pm
Commenter: Karen Tefelski, vaACCSES

DBHDS Licensing Gen Sect 106 - Periodic Review (part 1 of comments)

COMMENTS – Licensing – Section 12VAC35-106

Virginia Association of Community Rehabilitation Programs Dba vaACCSES



12VAC35-106-20. Definitions.

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

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

12VAC350-106-20. “Change of Ownership”

We agree with VNPP comments that there are multiple issues with this definition as applied in 12VAC35-106-80. Many business structures permit/require “ownership” by an individual (LLC, S-Corp, Sole proprietorship, partnerships, etc.)  and the death (or in some cases – the disability) of the individual means that the “ownership” has changed at the time of death – likely not anticipated 90 days in advance.

COMMENT:  In instances where ownership is by an individual, the provider should be expected to develop a plan for succession.  Also suggested is that you clarify in 12VAC35-106-80 that change of ownership involving the acquisition by a provider currently licensed in Virginia to provide the services being acquired would not result in those services being placed on a conditional license.

12VAC35-106-60. Inspection requirements.

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

COMMENT: Extend the hourly requirement to produce recordsIt is completely unreasonable.

12VAC35-106-180, 190, 200

COMMENT: These entire sections are problematic, too prescriptive and overly burdensome and should be removed.  They are not appropriate for many provider structures and operational requirements/obligations.  An unintended consequence may be that individuals are not willing to serve on a Board of Directors.


“The policy shall require that the provider conduct background checks on a minimum of 20% of all existing employees annually”.

COMMENT: While this may seem like a good idea, the cost to use Fieldprint for this many individuals annually would be cost prohibitive – both in adding an administrative cost from the background check itself as well as the time that employees would have to take to travel to Fieldprint locations.  If this is required, alternative on-line background checks should be allowed from an organization’s office.  If a new charge is discovered using this system, then a follow-up comprehensive background check via Fieldprint could be required.

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

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

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

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

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

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

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

12VAC35-106-260.  Same Comment as 106-250 A.9.

12VAC35-106-300. Employee training

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

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

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

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

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

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

a. Alerting emergency personnel and sounding alarms;

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

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

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

e. Utilizing community support services.

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


CommentID: 76831