We applaud DBHDS efforts to improve these regulations and clarify expectations. We support the removal of the requirement of reporting for Level 1 serious incidents and the clarification that Case Managers are not required to duplicate Level II reporting of incidents that occur in other licensed programs.

12VAC-35-105-20 Definitions

The definition of “Licensed mental health professional” does not have a proposed change but should be expanded to include Licensed Nurse Practitioners.

The proposed definition of “serious incident’ as any event or circumstance that causes or could cause harm to the health, safety, or well-being of an individual does not sufficiently identify serious incidents and could result in significant over-interpretation.  Unemployment, homelessness, witnessing a crime, loss of a caregiver, lack of legal presence, addiction of a family member, deployment or serious illness of a parent, etal are examples of circumstances that could cause harm to the well-being of an individual and I believe are outside the intent of this regulation and the purview of DBHDS.

The proposed definition of “Level II serious incident” needs further clarification. “during the provision of a service or on the premises of a provider” particularly as it applies to “an individual who is missing.” Are we correct in assuming that a missing person is only a reportable Level II incident for providers who are responsible for individuals 24 hours per day?  Would a missed appointment with a Case Manager, Psychiatrist, Therapist, ICT or Skill Building provider be interpreted to occurring “during the provision of a service” and thus be reportable as a Level II incident since they could represent “circumstances in which an individual is not physically present when and where he should be and his absence cannot be accounted for or explained by his supervision needs or patterns of behavior”.

Also in the proposed definition of “Level II serious incident” #7a, a decubitus ulcer is only reportable if diagnosed. This could be a disincentive for a provider in seeking medical treatment for suspected ulcers which is not the intent of the regulation.

The proposed definition of “Level III serious incident” needs clarification specifically as it applies to:

1. “A sexual assault of an individual.” Guidance issued by DBHDS further states “Providers shall report to the department and other relevant authorities as required by law that an individual alleges they were sexually assaulted, whether or not the alleged assault occurred within the provision of the provider’s services or on their property.”  We support the reporting of sexual assaults that occur on the premises of a provider or against those individuals for whom we have 24-hour responsibility, we do not support reporting of all sexual assaults revealed by our clients to DBHDS.
   1. Reporting of assaults should be the prerogative of victims with capacity. Trauma Informed Care principals emphasize that the survivor have a genuine choice to direct reporting of victimization when possible.
   2. Regulations indicate assaults should be reported within 24 hours of discovery. Clients often reveal assaults years after they occur. If the assault occurred in the community, what purpose would the reporting serve?
   3. What role would DBHDS have in investigating/mitigating sexual assaults that occur in the community?
   4. “Sexual assault” is not defined
   5. Guidance in the Violence Against Women Act (VAWA) cautions against sharing information beyond minimum necessary since even the most secure systems can be compromised leaving sensitive information exposed, and survivors in danger and often unwilling to disclose their abuse and get help

1. “A serious injury of an individual that results in or likely will result in permanent physical or psychological impairment”. Further guidance issued by DBHDS states “For example, providers shall report if an individual had to have a leg amputated as a result of a car accident whether or not the car accident occurred within the provision of the provider’s services or on their property.” We support the reporting of serious injuries that occur on the premises of a provider, during the provision of services, or for those individuals for whom we have 24-hour responsibility, we do not support reporting of all injuries of this type to DBHDS. What role would DBHDS have in investigating/mitigating serious injuries sustained by clients in outpatient programs that occur in the community? While providers have a role in helping individuals process the trauma and linking to needed resources, we have no capacity for root cause analysis or mitigation of traffics accidents, acts of god, acts or war, crime, etc.

The definitions of QMHP-A and QMHP-C are not aligned with the new requirements for those staff to be registered with the Board of Counseling which can lead to misinterpretation of the requirements necessary to deliver services.

12VAC35-105-160. Reviews by the department; requests for information; required reporting.

“E. A root cause analysis shall be conducted by the provider within 30 days of discovery of Level II and Level III serious incidents. The root cause analysis shall include at least the following information: (i) a detailed description of what happened; (ii) an analysis of why it happened, including identification of all identifiable underlying causes of the incident that were under the control of the provider; and (iii) identified solutions to mitigate its reoccurrence.”

We support the root cause analysis following most incidents classified as Level II or Level III, conducting an analysis on the expected deaths from natural causes of individuals in outpatient programs  is unnecessarily burdensome.

12 VAC35-105-1245

“Case managers shall meet with each individual face-to-face as dictated by the individual’s needs. At face-to-face meetings, the case manager shall (i) observe and assess for any previously unidentified risks, injuries, needs, or other changes in status; (ii) assess the status of previously identified risks, injuries, or needs, or other change in status; (iii) assess whether the individual's service plan is being implemented appropriately and remains appropriate for the individual; and (iv) assess whether supports and services are being implemented consistent with the individual's strengths and preferences and in the most integrated setting appropriate to the individual's needs.”  Clients are often seen face to face by their case managers multiple times per month – a frequency interval for this extensive documentation requirement would be helpful.

12VAC35-105-1250. Qualifications of case management employees or contractors

“D. Case managers serving individuals with developmental disability shall complete the DBHDS core competency-based curriculum within 30 days of hire.” There is no contingency here for when the DBHDS portal is not available for over 30 days and DBHDS has no back-up training plan. We have experienced an outage of over 30 days in the past.