A "guidance document" is any document developed by a state agency that provides information or guidance of a general nature to agency staff or the public to interpret or implement statutes or the agency's regulations.
Regulations have the force of law and bind regulated entities (i.e., entities that flout regulations can be punished) and the regulator (i.e., the agency/board has to follow its rules or the courts will order the agency/board to do so).
Guidance documents, on the other hand, may sometimes bind regulators but do not bind their regulated entities. Therefore, this proposed Guidance Document should not be expanding on existing regulations or creating heightened parameters or rules.
“Guidance Document Change: The purpose of this memorandum is to remind DBHDS licensed providers of the requirements and expectations for reporting serious incidents to the DBHDS Office of Licensing, pursuant to 12VAC35-46-1070.C. and 12VAC35-105-160.D.2.,” Guidance documents should not be used to “remind providers” of existing requirements or regulations;
“including the timeframe for reporting incidents; the process for reporting incidents; the allowable timeframe for adding to, amending, or correcting information reported to the Office of Licensing through the Computerized Human Rights Information System (CHRIS);” The information contained in this Guidance is not as much a reminder, but a substantially impactful increase in requirements on the provider, beyond existing regulations.
“and to inform providers of the processes that the Office of Licensing will follow for issuing citations, repeat citations and sanctions for violations of serious incident reporting requirements.” Guidance document is being used as a vehicle to “inform providers” of heightened criteria for citations and sanctions?
“In addition to ensuring all providers understand the regulatory requirements associated with reporting incidents, the processes outlined in this memo are central to the department’s efforts to address compliance indicators related to serious incident reporting as mandated by the US Department of Justice’s (DOJ) Settlement Agreement with Virginia.” These are compliance indicators related to the Department’s compliance with DOJ’s Settlement Agreement, not the providers’ compliance; however, DBHDS is checking off the box to show their compliance by passing the burden of implementation and the threat of sanctions to the provider. It is of note that these are significantly impactful to the provider and do not consider the impact to the supports-delivery system: