12 VAC 35 – 105 – 20 – definitions
Group Home – specific proposed change insert “that provides 24-hour supervision by persons in direct care positions who do not live in the home”.
I)The proposed regulation is unjustified:
There is no logical nexus between the justifications provided in the Walker memorandum of 3/5/18 and this specific regulatory change. In that memo 3 rationales for the changes are identifiable; 2 to specifically address the DOJ concerns (inadequate requirements for submission of information and mandatory attendance at trainings) and the last a broad statement of goals to address health and safety concerns. Nothing in this specific provision would address either of the DOJ concerns and thus they provide no justification for this specific change. Additionally, it is difficult to imagine a scenario in which a live-in QDDP providing a portion of their services and continuous supervision of DSP services would have negative impact on health and safety that justifies this provision. In fact, even a cursory reading of the investigations and CAPs listed on your website indicate that a vast majority of the actual concerns occurred in traditional not live in group homes and there is no available evidence indicating that live in homes or more problematic on a percentage basis. Empirical evidence based on provider experience proves that the live-in model provides superior supports that reduce health and safety risk and thus better meets the goal (see below).
The proposed regulation is overly broad as written as it would require a person not living in the home to be in contact with all individuals served 24 hours a day; creating absurd dilemmas for providers that would reduce options, choice and the quality of services. Since supervising is listed as a direct care position, a fully qualified QDDP who lives in the home could be interpreted as incapable of supervising DSPs. Even without this interpretation other negative scenarios abound, 2 simple ones provide sufficient evidence to illustrate the point; 1st – a DSP who lives outside the home is providing services to 2 individuals, one wants to go to McDonald’s for lunch the other wants to stay home. Under this regulation the fully qualified QDDP who lives in the home would not be able to be home alone with the individual who desires to stay home while the other went to McDonald’s with the DSP; rather one would be denied their preferred choice. 2nd – when DSPs call out due to dangerous weather conditions or last-minute concerns, a fully qualified QDDP who lives in the home cannot under this regulation provide the services, but instead would either have to force staff into the dangerous condition (if possible) or be in noncompliance with the regulation.
The proposed regulation is overly restrictive and less restrictive approaches that would avoid its pitfalls and still achieve the supposed objective are available. If the purpose is to assure significant contact with persons who do not live in the home simply inserting the words “including staff” or “including direct care staff” between the word “positions” and the phrase “who do not live in the home” with additional qualifiers if necessary, would address this concern without the pitfalls of the current wording-assuming such a restriction is ever found justified. Without a clear objective or nexus between the specific regulation and the justifications provided it is difficult to pinpoint other less intrusive options; however, a host of alternatives such as regulating: staff ratios, contact hours, demonstration of outside contacts etc.; are all available to address specific concerns as they arise without incurring the negative impact of this specific regulation.
The burden of proof is on the department to provide a justification for a regulatory change and the only ones offered to date do not provide a justification for this specific proposed change and given the preceding analysis it is unclear how one would be generated. Simply the burden of proof is on the department to identify a unique scenario where any aspect of an individual’s well-being or services would be negatively impacted by allowing a fully qualified QDDP who lives in the home to provide some of their services and supervision of the DSPs who provide the bulk of their services.
II) This specific regulatory change is counterproductive and would undermine efforts to promote health and safety as a number of advantages of the live-in provider would be undermined or lost.
A live-in QDDP provides increased supervision of DSPs. A live-in provider has the opportunity to have more frequent observations, interactions and collaborative development across the staff and throughout their shift than is provided by a house manager on an 8 hour shift who is typically absent at least 2 days a week. If as other sections of the regulations suppose QDDP supervision is necessary and beneficial then this is clearly a superior model. Empirical evidence also demonstrates that this model has superior outcomes. Having operated under both models for several years medication errors have been significantly reduced under the live-in model.
A live-in QDDP provides for an improved emergency response. Even in their time off the live-in QDDP is able to spring into action when any type of emergency occurs in the home to provide additional support to the DSPs on duty and in a true emergency the more qualified actors the better. Additionally, it should be noted that the QDDP is assumed to be a better decision-maker under the regulations and the live-in model better assures that the QDDP would be available to make a more timely/qualified decision in directing the emergency response. Clearly, for promoting health and safety during an emergency the live-in model is superior.
A live-in QDDP provides for improved continuity of service. A live-in provider is engaged and available across all 3 shifts, typically on a daily basis, which provides the opportunity to relay information and instruction without repetition bias and allows for direct observation in real time of services provided which promotes continuity. This gives the live-in QDDP a unique ability to provide consistent feedback and follow-up on implementation to assure continuity of services in real time which can be vital in preserving/promoting an individual’s health and safety, making the live-in model superior for addressing health and safety concerns; among others.
III) This specific regulatory change is counterproductive to meeting the stated DOJ concern justifications for the change.
A live-in QDDP improves the provider reporting process. A live-in provider is much more likely to be available and engaged when an emergency, crisis and/or other reportable event occurs. This increased presence allows the live-in provider to more often experience the event 1st hand, begin the investigation immediately, actually observe the actions in question, collect testimony in real time and be less reliant on secondhand testimony; which would improve the content and reliability of any subsequent reports. Presence would also increase the likelihood of more timely/accurate reporting as the house manager wouldn’t have to type in information from telephone reports in 24-hour situations or wait until they return from their three-day weekend in other scenarios.
A live-in QDDP improves quality control and risk management. The improved quality control potential of this model is clear in the analysis on superior supervision, continuity of services, emergency response and providing preferred options (above) and will be further clarified in the section on disadvantages to this proposed change (below). The improved risk management potential of this model stems not only from the increased ability to intervene, investigate and respond to risk scenarios as they occur but also from the increased availability of the fully qualified QDDP to consistently implement risk control measures and respond immediately to potential risk as they arise. Finally, it should be noted that the ability to better employ ethnographic tools by the fully qualified QDDP in the home will greatly enhance any subsequent root cause analysis.
IV) This specific regulatory change would be disadvantageous from a policy perspective for individuals receiving services.
This change would undermine the right of individuals served to freely choose from a range of available service options in the community. The clear intent of the regulatory change is to discourage the live-in model, make it impractical and thus reduce the existence of live-in group homes. It is important to note that the individuals who currently live in those homes made an informed consent decision with numerous protections to do so because it was their preferred option. Empirical surveys of individuals we have served in group homes under both models unanimously indicate a preference for the live-in model. This regulation would also have a disproportionate impact on small group homes in rural areas as weather barriers and lengthy rides on cajoled outings (see above) would make this regulation much more problematic for rural providers, which demonstrates a clear cultural insensitivity to individuals who prefer a rural environment. This cultural insensitivity could be magnified for countryfolk from our area where multi-generational domiciles coupled with a clear head of household are familiar, comforting and consistent with traditional cultural norms. Thus, this specific regulation would have the exact opposite impact of the DOJ intent to increase the range of culturally appropriate community-based services that can be offered to individuals in Virginia.
This change would undermine individualization of services and free choice. The proposed regulation would have a disproportionate impact on small independent providers who have found this model the key to successful continuation of their services under the new reimbursement regime. Our organization for one would probably not be able to continue services under this definition. The reduction of small independent service providers would not only reduce the availability of a range of choices for community-based options; but also, would result in services increasingly being provided by organizations with a large bureaucratic model. In large bureaucratic models, blanket house rules and company procedures developed without regard to specific individuals are frequently encountered where staff feel constrained from making small nuances of difference to account for differences in and individual’s abilities and default to the blanket provision. In large bureaucratic models, decision-making authority is often far removed from or occasionally unavailable to the individual which reduces their ability to influence the decision and may limit their ability to exercise their preferred choice (i.e. we encounter situations where waiting for house manager approval for an activity with a peer in another group home have prevented the activity from occurring, even though the house manager was eventually agreeable). In short, large bureaucratic models tend to institutionalize the home. The increased presence of a live-in QDDP gives the individual more consistent direct access to the decision-maker, provides ethnographic tools to better develop individualized/nuanced services/rules application; coupled with increased supervision of implementing staff and continuity of services to promote more effective provision of individualized services and choice on a day-to-day basis. Again, this regulation would have the exact opposite impact of the DOJ intent.
12 VAC 35 – 105 – 20 – definitions
Missing – although the intent is laudable and link to the justifications clear the wording (particularly when reinforced by the reinclusion of the words “any period of time” on page 12) should be reconsidered. An individual who is exercising their freedom to move about the home and grounds freely may easily be somewhere staff did not expect them but well within their rights and creating no concern which would appear to make the word “supposed” operative in this example. Merriam-Webster’s dictionary indicates that supposed can be relevantly defined as “believed” or “understood” and/or “permitted” – if the pertinent indication is “believed” or “understood” it is virtually synonymous with expected in this context and if it is permitted it would appear to only apply in situations where restrictions have been placed on the freedom to move about the home and grounds freely. Depending on how this section is later interpreted it could have an adverse impact by appearing to require reports for a missing person who is not in bed during bed check (where they are supposed-“believed/understood” to be) and not located in the bathroom or other portion of the home for 30 or 40 seconds. Additionally, it would be unclear how to handle a common situation where logisticare is “supposed” to deliver a person at an “expected” time but the person is late and they are not where they are supposed to be or under another interpretation you have no way to make contact to see if they are where they’re supposed to be (in the cab) and have to report. An unfortunate side effect of this requirement may well be that supervision is increased in such a way as to reduce privacy and undermine their freedom to move about the home and grounds freely to reduce the burden of a multitude of frivolous occurrence reports.
12 VAC 35 – 105 – 20 – definitions
Medication administration – it is unclear how the phrase “in the presence of” a legally permitted administrator would apply if medications are packaged/administered from the med cabinet for an individual to attend a weekend home visit and/or other outing with natural supports.
12 VAC 35 – 105 – 20 – definitions
QDDP – the definition listed here is inconsistent with the definition published in the Virginia register 1/8/2018 issue 10 volume 34 action ID # 4928 – – is this a change back, which definition will be controlling going forward.
12 VAC 35 – 105 – 400 – criminal background checks and registry searches.
Although section B is clearly required by and reflects the intent of 37.2 – 416 which governs group homes, the inclusion in section E which establishes the requirement that registry results be reviewed prior to hiring the applicant, clearly exceeds the statutory intent and would create an onerous requirement which would have a negative impact on individuals served and is unnecessary given that less restrictive/intrusive provisions which would provide adequate safeguards are available.
The section E inclusion clearly adds an additional element which was not included in the statute, it is equally clear that awaiting the results of the registry search was not the intended in the statute; given the legislative history of the statute, the method of inclusion and the ease of making the requirement had it been intended.
Awaiting the results of the central registry search prior to making an employment decision would be an onerous burden. An empirical analysis of our last 5 most recent checks (going back almost 3 years) indicates that criminal history results can be received in as little as 8 days post them being mailed to BIU; however, central registry searches consistently require more than 30 days between the form being mailed in and an individual signing off on the approval and then involves additional days of delay as the approval was mailed back. This provision would prevent hiring the individual for training activities (even if they were held off-site) which would add an additional month before a hired individual could begin providing services. As a result, a provider who was faced with a sudden need (death, quit with no notice, immediate termination) would have to advertise the position, conduct interviews, wait over a month for the return of the registry search, then hire and begin training- leaving that position unfilled for almost 3 months.
Less restrictive provisions which would provide adequate protections to the individual served while reducing the burden and negative impacts of the proposed restriction are available. For example, in our agency no individual who has been hired (post criminal background check verification and OIG exclusion search) is permitted to have any independent contact with nor supply any services to individuals served until the results of the central registry search have been verified. This simple change would not only protect the individual but would also reduce the onerousness of the burden by permitting training activities which would prepare the individual for the provision of services and allow them to begin their duties as soon as they are cleared in the central registry search which would cut the delay in filling the position almost in half.
This specific proposed change as currently written would have a negative impact on the individual served.
The proposed change would reduce our ability to secure quality hires. If you can’t hire them even for training purposes you can’t pay them and we have few to no quality applicants who can afford to wait over a month and a half before they receive their next paycheck. Given the significant direct competition for the limited applicant pool which we face from assisted-living, nursing home and home health agencies who would not be required to have a similar delay, it is highly doubtful that any of the individuals we contacted a month after their interview would still be available for hire. While this may be a lesser concern in Richmond due to the focus on degreed professionals, it is certainly a significant concern for the DSP applicant pool currently available given the constraints of the current reimbursement regime. Even if a few of the individuals were available for hire it would often mean that we miss the opportunity to hire the best/preferred individual for the position and we would be stuck with people who were unable to find employment anywhere else; typically for reason.
This change would undermine individualization of services and free choice. The proposed regulation would have a disproportionate impact on small independent providers who are forced to staff to their needs with little excess personnel available due to the new reimbursement regime making the long-time lag even more problematic and their low turnover rates (we only have a new hire every 2 or 3 years) which reduces advertisements to generate new applicants and prevents them from developing a contemporary stockpile/backlog of screened applicants to draw on when a need arises. Both of these impacts would make continued operation of a small independent service much more difficult and unlikely. The reduction of small independent service providers would not only reduce the availability of a range of choices for community-based options; but also, would result in services increasingly being provided by organizations with a large bureaucratic model. In large bureaucratic models, blanket house rules and company procedures developed without regard to specific individuals are frequently encountered where staff feel constrained from making small nuances of difference to account for differences in and individual’s abilities and default to the blanket provision. In large bureaucratic models, decision-making authority is often far removed from and occasionally unavailable to the individual which reduces their ability to influence the decision and may limit their ability to exercise their preferred choice (i.e. we encounter situations where waiting for house manager approval for an activity with a peer in another group home have prevented the activity from occurring, even though the house manager was eventually agreeable). In short, large bureaucratic models tend to institutionalize the home. Thus, this regulation would have a net impact that is the exact opposite of the DOJ intent.
This change would undermine the right of individuals served to freely choose from a range of available service options in the community.This regulation would also have a disproportionate impact on providers in rural areas as individuals for hire in rural (less socioeconomically advantaged) locations are less likely to be able to accommodate the long lag time in receiving their 1st check (under these regulations would go for 2 weeks to 6 or more a 200% increase in the time lag between interview and payment); they need to eat and will simply look elsewhere. In addition to our perception, interviews with all of our current staff indicate that none of them would have waited nor accepted employment if this long lag time had been in place at the time they were hired. Jeopardizing rural placements demonstrates a clear cultural insensitivity to individuals who prefer a rural environment. Thus, this specific regulation would have the exact opposite impact of the DOJ intent to increase the range of culturally appropriate community-based services that can be offered to individuals in Virginia.