Part of the strength of DBHDS has been an ability to facilitate collaboration with providers, which enables providers to be appropriately responsive across a range of scenarios and services. While we uphold the need for clear regulations and accurate reporting of serious incidents, the proposed changes in the Incident Reporting Requirements Memorandum impede our ability, as a community provider, to meet those expectations and provide effective reporting, and, ultimately, these changes hamper our ability to offer responsive care to those we serve.

“When the provider must update an incident report in CHRIS after the initial submission, the provider must do so within 48 hours from the initial submission of the incident report, or from the time that the provider is informed by the IMU of the need to update the report, whichever is later. Failure to update a serious incident report in CHRIS within 48 hours from the initial submission of the report, or from the time that the provider is informed by the IMU of the need to update the report, will be cited as a regulatory violation of 12VAC35-105-160.F. or 12VAC35-46-230.A., as applicable.” 

• As a community-based provider the requirements of 24- and 48- hour deadlines create significant burden. For this category of provider, reportable incidents occur outside a provider facility often without direct observation. Therefore, our ability to collect accurate and timely information is limited. Even with an additional 24 hours, the ongoing administrative burden to collect, verify, and submit report updates are often limited by delays in testing or access to necessary points of contact, both of which are required to inform accurate reports. Case in point, faced with the sudden death of a client, the threat of citation forces providers to investigate an incident with grieving family members simply to satisfy the reporting requirements rather than offer the flexibility to deliver the courtesy and respect, which should prevail with those we serve, and gather the necessary information in an appropriate manner. 
• This restrictive timeline requires formal communication from IMU, perpetuates a disregard for context, and limits provider ability to implement appropriate situational responses, thus shifting the focus from care to simply avoiding discipline. The proposed punitive response shifts the focus from specific provider improvements or quality of care issues, to a re-focusing on provider efforts to improve CHRIS reporting processes in order to 'beat the clock.’ 

Beginning June 15, 2020, the Office of Licensing will implement progressive citation protocols to address repeat violations of serious incident documentation and reporting requirements.  

What happens when that ‘regulatory violation’ is (or was) a late initial or updated report due to factors beyond provider control?

• The reality of receiving a corrective action plan for a report submitted after the required time period, along with the compounding discipline for issues associated with report detail and timeliness, will fail to create better or even more consistent reporting but quite the opposite. 
• If an individual living in the home reports that a child is not at home because the family has taken them to the hospital, there exists several factors impacting our ability to provide a timely report. First of all, when the information offered at the "point of discovery” is volunteered by individuals who exist outside the protected HIPAA relationship, rights to privacy must be considered and limit the information we are able to gather. Second, if the clinician is unable to immediately access the family to verify the report as well as the status of the child, the ability to reasonably provide an accurate report in 24 hours becomes difficult and possibly unnecessary. In addition, if that clinician is then disciplined for failing to notify their supervisor immediately, despite the lack of confirmed information, their willingness, and soon that of their colleagues, to report future concerns plummets. As a provider, we want our staff to communicate issues, continue to collect information as it is relevant, and respond appropriately in the best interest of the client or family.  
• Collaborative engagement with the licensing specialist at the point of incident or simply allowing for flexibility of the reporting requirements, including the timeline, would serve to foster better alignment between providers and state agencies. Unfortunately, the severity of these requirements creates a punitive relationship that likely opposes the intent of DBHD’s proposed changes. 

"Fourth Citation: When issued related to the reporting of serious incidents, deaths, or allegations of abuse or neglect within a two-year period, in addition to the steps enumerated above for the third citation, the Office of Licensing may do any of the following:

Ø Deny an application for a license or license renewal (Code of Virginia § 37.2-418 and 12VAC35- 105-110 or 12VAC35-46-120);

·       Ø  Issue a provisional license (Code of Virginia § 37.2-415 and 12VAC35-105-50A.2. or 12VAC35- 46-90.B.); or

·       Ø  Revoke or suspend a full, conditional, or provisional license, due to the provider’s repeated failure to submit or implement an adequate CAP (Code of “Virginia § 37.2-418 and 12VAC35- 105-110 or 12VAC35-46-1630). "

• Quantifying citations ignores the size and scope of care programs and adversely impacts larger providers. While repeated violations should be a concern and placed under the consideration of licensing specialists, the language above fails to distinguish any variation in the level of risk specific to providers or programs. The differences between the risk for citations when considering a small BH clinic versus a large, statewide, in-home provider the variation of risk becomes clear, and yet, as it reads, the consequence of citation is applied the same to each regardless. 

While we understand the need for regulations to support ongoing provider improvements and ultimately the safety of those we serve, the regulations as written derail efforts to reinforce positive provider response and, instead, creates a system of punishment more focused on compliance with the reporting system itself than on those it was created to protect.