Behavior intervention, CPR, First Aid and medication administration training all collectively require multiple days of training, the limit of 7 days is completely unreasonable. In fact, even the logistics of scheduling this array of training EACH time a new employee is engaged is completely unreasonable.

We propose a 30-day time period rather than 7- or 14-day requirements and we also propose removing medication training since that training must be outsourced and scheduling is not controlled by a provider.  We also recommend that providers be allowed to identify which employees need medication training, based on their job description, since the administration of medications is not in each employee’s job description.

4. All new employees, contractors, volunteers and students shall be supervised until completing all orientation and training required under 12VAC35-106-300 (B) (1)- (3) and demonstrating competency through testing. All new employees, contractors, volunteers and students shall complete all orientation and training required under 12VAC35-106- 300 (B)(1)-(3) and demonstrate competency through testing prior to carrying out job responsibilities without supervision. Documentation of competency testing shall be kept in the employee or contractor’s personnel file.

COMMENT:  We are concerned that this requirement pertains to all staff, contractors, students and volunteers and states that they need to be supervised until training is completed and competency demonstrated through testing.  While this is of course best practice, we suggest language be clarified to exempt contractors, students and volunteers and to pertain ONLY to those employees whose job description requires them to provide the services identified in the training.

Due to the system wide challenge of recruitment of DSPs, this would further strain providers’ ability to deploy staff quickly.  Most providers do NOT have dedicated training staff and must redeploy their existing staff to be trainers, further exacerbating the strain on personnel resources.

1. 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

2. Any additional training that may be required due to appropriate implementation of a corrective action plan required by 12VAC35-106-120, the provider’s risk management program required by 12VAC35-106-580, or the provider’s quality improvement program required by 12VAC35-106-590.

COMMENT:  We oppose the inclusion of contractors, students and volunteers within the training and orientation requirements.  For employees, establishing an annual training renewal for required elements that each have a longevity beyond one year (such as CPR and First Aid and behavior intervention) creates an unnecessary financial, administrative and scheduling burden on providers.  These further burden providers who are already stressed to comply with existing recurring training requirements.  We recommend adhering to the renewal cycle of each of the respective required trainings rather than imposing an annual renewal.

12VAC35-106-330. Performance evaluation.

2. The provider shall evaluate employee and contractor performance at least annually and document the employee or contractor’s performance within the employee’s or contractor’s personnel file.  

COMMENT:  This requirement makes it clear that providers must conduct annual performance evaluations for their contractors which again pushes providers to treat their contractors as employees, thereby conflicting with DOL guidance.  We recommend that contractors be required to comply with the terms of their individual contracts and note that all contracts have termination clauses available to providers to enforce.

12VAC35-106-350. Disciplinary actions.

A. The provider shall maintain policies and procedures governing employee and contractor discipline. Such policies shall include:

1. The circumstances under which discipline will be administered;
2. The range of penalties permitted;
3. Procedures for employee and contractor appeals of discipline;
4. Documentation of disciplinary actions and results of appeals; and
5. A list of types of individuals who may access documentation of disciplinary actions.

B. Policies for employee and contractor behavior that are subject to discipline shall include penalties for:

• Abuse, mistreatment, neglect, or exploitation of individuals;
• Violation of rights of individuals;
• Violation of confidentiality rules; and
• Violation of the provider’s policies.

COMMENT:  This conflicts with DOL guidance about keeping contractor and employees separate. Realistically, a provider would NOT discipline a contractor but rather terminate its contract for their services.

12VAC35-106-560. Transportation.

B. The provider shall conduct a check of all employees’ or contractors’ driving records. The provider shall not permit an employee or contractor to transport individuals if they have a conviction for driving or operating a vehicle under the influence or reckless driving within the past two years.

1. The check of the employees’ or contractors’ driving record shall occur at the time of employment and annually thereafter. Documentation of the latest check of the employee or contractors’ driving record shall be placed within their personnel record.

COMMENT:  We recommend that this requirement only apply to employees who have a requirement in their job description to transport persons served.  Contractors should be excluded from this requirement if they do not have the responsibility within their contact to transport people served.

12VAC35-106-600. Paper and electronic Individual records management policy. (blend of current sections; see tracking chart)

COMMENT:  This requirement to add new security measures to ensure protection of records from loss such as fire and water damage is a very costly service and would be extremely difficult for providers to implement.  It is good intentioned but is an unreasonable expectation.