March 12, 2018
Emily Bowles
Legal Coordinator, QMD Division
Office of Licensing
Department of Behavioral Health and Developmental Disabilities
RE: Draft Amendments to the DBHDS Rules and Regulations for Licensing Facilities and Providers
Dear Ms. Bowles,
Thank you for the opportunity to provide public comment on the Draft Amendments to the DBHDS Rules and Regulations for Licensing Facilities and Providers. The disAbility Law Center of Virginia welcomes needed revisions to align the DBHDS provider licensing regulations with the goals of the U.S. v. Commonwealth Settlement Agreement.
The draft amendments establish requirements for the development of quality improvement programs and reporting processes, provide comprehensive definitions of serious incidents, and require routine root cause analysis. Other amendments go beyond the stated goal of aligning the regulations with the quality improvement requirements of the Settlement Agreement; many of those are positive. For example, they align the regulations with Federal and state law and currently accepted terminology within the disability community. dLCV is further encouraged by the enhanced staffing, employee screening and training requirements. However, to the extent that amendments seem to narrow protections or allow significant discretion to modify the licensing requirements, they demand further thoughtful deliberation.
dLCV welcomes the quality improvement requirements, including a comprehensive scheme of incident reporting and ongoing review of serious incidents. An effective system for licensing and protection from harm must include ongoing review and require providers to respond to and proactively identify systemic risks. The draft amendments could strengthen the system by requiring that recurring Level I serious incidents identified during quarterly review be reported to DBHDS along with Level II and Level III incidents.
An effective system should also capture critical information on serious incidents, regardless of where they take place or by whom they were caused. For example, Level II incidents should include self-injurious behavior other than a suicide attempt to allow providers and DBHDS to identify and address patterns on severe self-injury. Limiting the definition of Level II serious incidents to those that occur while the provider is delivering services or on the provider’s premises could allow significant injuries to go unreported. We recommend instead that the regulations require providers to confirm reporting of any Level II incidents of which they are aware.
The addition of the informed choice provision to 12VAC35-105-660 reinforces the importance of person-centered planning. However, the language requiring the provider to “explain to the individual or his authorized representative” should be changed to “the individual and his authorized representative.” This is consistent with the definition found in 12VAC35-105-20 and reflects the importance of including individuals in the development of services plans to the greatest extent possible, regardless of incapacity. Requiring providers to regularly review the ISP, evidence of progress or lack of progress, and the underlying barriers likewise reinforces these principles as well as the need for active treatment for individuals receiving services.
dLCV is concerned with the revisions to 12VAC35-105-120, pertaining to the Commissioner’s authority to grant variances to the licensing regulations. Subsection 1 builds in additional requirements for providers seeking a variance. However, Subsection 2 gives the Commissioner significant authority to grant variances to the regulations when “he determines necessary to facilitate the development of needed services to address emerging issues.” While this authority is limited where a variance may “jeopardize the health, safety, or welfare of individuals,” this seems to be the only limitation to the authority to waive licensing requirements in a regulatory scheme where the Commissioner may, on his own initiative, grant variances to the licensing standards to expedite the development of services or induce providers to develop new services. The licensing regulations should only be waived where they represent a significant burden to a provider and their purpose and effect can be accomplished by other means, without jeopardizing the health, safety and welfare of individuals receiving services. DBHDS must to have the tools it needs to safely and deliberatively expand community services for people with disabilities. Chief among those tools must be accountability. As providers enter the market and expand, they must be held to the standards and expectations set forth in the licensing regulations. The variance amendment is a departure from the current licensing variance scheme; we are concerned with lack of specific guidelines or review processes for this new and sweeping category of variance.
Finally, we note that without robust implementation by the Department and Office of Licensing, Virginia’s systems for quality improvement and protection from harm will continue to fall short of expectations. As the Independent Reviewer noted in his most recent report, “OLS appears to have the necessary regulatory tools to force improvements among substandard providers and to eliminate substandard providers who have demonstrated a refusal or inability to improve their services. Interviews with OLS staff confirmed previous findings of a continued systemic reluctance by OLS to pursue use of these other tools, including provisional status, because of the due process burdens on Licensing staff.” In short, the regulations are only as effective as the Department and OLS’s ability and willingness to implement them. We hope that the positive improvements to the licensing regulations will be supported by a robust licensing staff empowered to enforce them.
Sincerely,
Colleen Miller
Executive Director