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:

• The draft language of this “guidance” from DBHDS is, at the least, a disheartening and tone-deaf approach by the Department that places the brunt of the burden on providers without regard to varying circumstances that may delay reporting. In addition to connectivity issues that may not fall into either the category of “CHRIS system not functioning” or “provider was unable to access the CHRIS system for reasons that were not in the provider’s control,” there are, and have been, reasonable and justified circumstances that have delayed reporting in the past and that have been recognized as such by DBHDS.  This language, however, seems to eliminate good faith circumstances by the provider or good judgment considerations by DBHDS representatives, themselves. Instead, this “guidance” seems to be providing a punitive script that providers “will be cited” – without regard to circumstances.
• In the draft language of this “guidance” from DBHDS, a situation in which a provider reports an incident at hour 25 is weighed equally (cited/sanctioned equally) with a situation in which a provider fails to report at all. If this punitive approach is meant to improve/increase provider reporting measures (or, rather, the data that DBHDS has agreed to with DOJ), it likely will have a counter-effect. It would not be surprising to see an actual decrease in initial reporting, especially in situations in which an incident may have been submitted if the provider had been able to make the determination and enter the information outside of the 24-hour deadline without threat of automatic citation.

• In the draft language of this “guidance” from DBHDS, a situation in which a provider self-indicates that they will provide an update to the initial incident report, but then fails to update until hour 49, is also weighed equally (cited/sanctioned equally) with a situation in which a provider fails to report at all. In addition to the reasons noted above, this is yet another reason why a provider is going to be less-inclined to report in the first place. Unfortunately, the majority of providers who are conscientious about reporting (and whose incident reporting makes up the 90%+ compliance of reporting) will now be less-inclined to check the box in CHRIS indicating that they have self-determined a need to provide additional information or an update, knowing that, as soon as they do, the clock starts again (and that the penalties are extremely high if anything prevents that update from occurring by hour 48).

• It is also significant to note that, while DBHDS seems to continue to expand its staff, the options and parameters for providers in regards to reporting concurrently gets more narrow, burdensome, and punitive.  Maybe the problem isn’t so much the providers but the indiscriminate layers of “solutions” that no longer seem to be vetted with stakeholders in advance to help avoid these unintended consequences. 

• Most concerning of all is that this “guidance” seems to have a one-size fits-all approach and is oblivious to the various sizes and organizational structures of provider agencies.  Not only do reporting citations result in provider sanctions (for the entirety of the provider agency) regardless of size or scope of the agency, substantial compliance, etc., it also fails to recognize that, for smaller agencies, the person(s) gathering/reviewing the information to complete the reporting may also be the person responsible for direct assurance of care and follow-up. THAT should be the emphasis, not an arbitrary reporting timeframe that is a higher standard of provider administrative availability than that of IMU staff.