General Comment:

Southside Community Service Board complies with regulatory requirements. As DBHDS expectations and requirements burgeon across all of its departments, it is increasingly challenging to meet requirements with current staff. Southside Community Service Board is requesting consideration of funding for additional administrative and/or quality assurance staff to meet expectations. Consideration is also requested for DBHDS to partner with providers in the drafting of future regulations and guidance documents prior to the public comment period to gather input on implementation impacts.

Guidance Document:

“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.”

Comment:

There are any number of reasons why follow-up details and information may not be available within 48-hours. If the provider adheres to the required timeframe, the information will be inaccurate, incomplete or both. Request a wording change from 48-hours to 2 business days to address weekend reporting.

Additionally, if the request for follow-up is made by the IMU, they must be required to request the information in writing (via email) with a notation of when the email was read as the time to note for when the update is required.

Guidance Document:

“Progressive Actions for Repeat Citations: 

Beginning June 15, 2020, the Office of Licensing will implement progressive citation protocols to address repeat violations of serious incident documentation and reporting requirements. The purpose of these protocols is to ensure that providers who demonstrate regulatory noncompliance implement effective corrective actions and quality improvement activities to prevent future violations. When a provider has been previously cited for a regulatory violation, future violations of the same regulation will result in the following progressive actions: 

First Citation: When issued related to the reporting of serious incidents, deaths, or allegations of abuse or neglect within a two year period, the provider will be issued a licensing report citing:  12VAC35-105-160D.2. or 12VAC35-46-1070.C., as applicable, for noncompliance with reporting requirements. 

Second Citation: When issued related to the reporting of serious incidents, deaths, or allegations of abuse or neglect within a two year period, the provider will be issued a licensing report citing:  12VAC35-105-160.D.2. or 12VAC35-46-1070.C., as applicable, for systemic noncompliance with reporting requirements; AND  12VAC35-105-170.G. or 12VAC35-46-80.B., as applicable, for failure to implement the previously pledged CAP. 

Third Citation: When issued related to the reporting of serious incidents, deaths, or allegations of abuse or neglect within a two year period, the provider will be issued a licensing report citing:  12VAC35-105-160.D.2. or 12VAC35-46-1070.C., as applicable, for systemic noncompliance with reporting requirements; AND  12VAC35-105-170.G. or 12VAC35-46-80.B., as applicable, for failure to implement the previously issued CAP. The Department of Medical Assistance Services (DMAS) will be copied on the licensing report when a third citation is sent out. In addition, the department may mandate serious incident reporting training for the provider’s employees, with costs borne by the provider, when it is determined that a lack of training caused or contributed to the licensing or human rights violations pursuant to Code of Virginia § 37.2-419 and 12VAC35-105-100.A. or 12VAC35-46-60.G.; or require the provider to submit a signed attestation verifying that the regulations and guidance pertaining to serious incident reporting were reviewed(Note: Memos from this office are guidance). 

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:  Deny an application for a license or license renewal (Code of Virginia § 37.2-418 and 12VAC35- 105-110 or 12VAC35-46-120);  Issue a provisional license (Code of Virginia § 37.2-415 and 12VAC35-105-50A.2. or 12VAC35- 46-90.B.); or  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).”

Comment:

Progressive Action for Repeat Citations should not be in effect as of June 15th, since the review of the document is not yet complete.  This should not go into effect until the document has had a fair review and providers of varying sizes should be included in this review. The information was sent out on June 3rd, a seven business day period is insufficient to prepare providers for such a significant change that threatens their license renewals or applications.

The DOJ Settlement Agreement states “At least 86% of reportable serious incidents are reported within the timelines set out by DBHDS policy”. Are providers meeting this requirement? If providers are currently meeting this requirement then please explain the need for this progressive action?

Most late reporting is due to weekend coverage or mistakes by reporting staff. Request to change the 24 hour reporting period to the next business day to alleviate the majority of late reporting.

I am concerned about the use of a flat number versus percentage for issuing citations for late CHRIS entries. This is biased against larger providers. It establishes negative consequences for those who are honest in reporting/honest in late reporting and does little to monitor providers who don’t report/under report.

Clarify and confirm that for providers with multiple licenses, the escalation of citations & consequences is by individual license, not the overarching license.

Clarify how the two-year time frame for tracking citations. When does the two years start? Is this a rolling two years, fiscal year, calendar year, etc.?

Will DBHDS have an appeal process?

If a provider received a fourth citation what process will the provider need to take in order to regain their license?