Comment on Fast-Track Regulatory Action Affecting 12VAC35-105

Character, ability, and fitness for employment are all items which can be very subjective in nature and live in the “gray” area.  Additionally, what one employer considers good and bad may not be another’s employer’s definition.  So, there needs to be more definition and an independent party involved if you really want to accomplish this thought in reality.  Also, a basic tenant of applicant behavior is not thought through in this process that will be explained shortly.  The solution to all of these process flaws as written is for DBHDS to determine through CHRIS reporting and an added background check to DBHDS is a requirement prior to hire to determine whether, for example:

• An applicant was terminated from another licensed provider for violation of abuse, or.
• An applicant was terminated from another licensed provider for violation of human rights,
• An applicant was terminated from another licensed provider for exploitation, or
• An applicant was terminated in a founded case of neglect, abuse, and/or exploitation.

Next, why is the thought process flawed from a basic need of the applicant?  Please keep in mind that applicants do not want a “potential” future employer to check their reference with a current employer until a firm job offer contingent on a good reference from a current employer is required.  This tenant is not considered in what this regulation is trying to accomplish.  It is trying to “weed” out the bad from the good, not protect the current employment status of an applicant to another provider and this is a severe mistake with the regulation as written.  Applicants of a future employer will not want to sign this for fear of some type of retaliation (e.g., being terminated) if a candidate is looking to make a move from one employer to another.  The only way to ensure the protection of the applicant from such happenings if for DBHDS to be the conduit and part of the background process since they are the holders of the information and have agreed with the provider’s findings as to abuse, neglect, exploitation, etc.  Good idea to want “bad” employees not to be reemployed elsewhere, but flawed process otherwise that will keep an applicant from moving from one employer to another because they will not feel comfortable signing away their right and involving their current employer.  Please reconsider from a “good to great” applicant perspective and do not implement a flawed process where there is no DBHDS involvement. 

Finally, from the employer perspective, while there is an immunity clause, my reading is it states the entity has immunity. There are at least two issues with this that are not clarified:  (1) First, does the regulation protect fully the responding individual (e.g., the Human Resources responder, the manager/supervisor who documented the performance) from civil liability for example (there is only mention of the entity and (2) since this is at the State level I am not sure if it would prevail in federal court thus increasing liability for employers, etc.  For the sake of brevity, I’ll conclude by saying that I believe this will create greater liability for employers, etc., and as currently designed the process is a flawed process for “good to great” applicants.  DBHDS needs involvement and to be the conduit within the background check process, not contacting a current employer or past employer.  Please consider process and all stakeholders as redesign is required.