September 5, 2018

Emily Bowles, Legal Coordinator

Dept. of Behavioral Health & Developmental Services

PO Box 1797

Richmond, VA 23218-1797

Re: Comment on DBHDS Office of Licensing Guidance for Serious Incident Reporting

Dear Ms. Bowles,

The disAbility Law Center of Virginia (dLCV), the Commonwealth’s federally mandated protection and advocacy system, thanks you for the opportunity to comment on the proposed guidance document that the Department of Behavioral Health and Developmental Services has created for providers regarding the requirements for Serious Incident Reporting.  dLCV maintains that many providers are confused by reporting requirements, and that this confusion results in inconsistencies and errors.  The proposed guidelines will help alleviate confusion in some respects, but as proposed, may create more confusion.

For example, the proposed guidelines could be read to exempt providers from reporting certain Emergency Room visits. You provide some language on page two of the document “evaluating how to use the emergency room,” but it is not cast as a mandate. We recommend that you clarify as mandate the appropriate use of the emergency room and that there is no exemption for reporting ER visits.

On pages two and three of the document, concerning Item 4, unplanned psychiatric or unplanned medical hospital admission, it states that “Any time that an individual is admitted to the hospital due to an unplanned medical issue […] shall be reported.” The document should clarify every entity that is responsible for making that report.  

Item 4 also states, “If an individual is taken to the hospital after a qualifying event in accordance with their medical protocol, and is not admitted following evaluation, then the provider does not have to report the incident. If it is determined that the individual should be admitted, then the incident shall be reported.” We disagree with this distinction and recommend removing it.  CHRIS reports speak to provider action. The fact that the provider believes the individual should go to the hospital is more relevant than the hospital’s determination not to admit.  

Another concern relates to Item 7, which speculates that decubitus ulcers, bowel obstructions, and aspiration pneumonia will “generally be reported by a provider of residential services.”  We recommend revising this requirement so that all providers who discover such an issue will report it, not just residential providers.

Regarding review of incidents, part C on page five says that the provider must “collect, maintain and review” Level 1 serious incidents that are not reported to the Department. While dLCV believes this is a necessary step, we suggest that providers’ data analysis should also include Level 2 and 3 incidents to fully identify trends.

Of greater concern is that, under the proposed guidance document, the information required for collection and review by the provider does not have to be reported to DBHDS. The Department should require some level of reporting of those reviews, including identified trends and remedial actions, as part of its quality assurance efforts.

Our final concerns relate to sections D and E on pages six and seven of the document. In part D-2, providers are only required to report deaths if the individual was not yet discharged from services.  This is inconsistent with the reporting requirements established for state operated facilities.  State operated facilities must report all known deaths that occurred within 21 days of discharge. This standard is the proper measure for community based providers as well.

Also in this section, Part D-3 requires reporting seclusion and restraint (that is improper). Improper use of seclusion and restraint is abuse, under the Human Rights regulations. For consistency, dLCV suggests merging this section with D-1. (“1. Each allegation of abuse or neglect shall be reported to the department as provided in 12VAC35-115-230 A.”) and emphasizing that seclusion and restraint is abuse, except for very narrow circumstances. dLCV also suggests providing guidance to providers to clearly report when an injury is connected to an episode of seclusion and restraint.

The section on Root Cause Analysis states that sponsored residential providers are not required to include an “uninvolved superior” in the analysis. We disagree. In order to ensure the integrity of the analysis, there should always be an additional level of objectivity and accountability.

Thank you for your thoughtful consideration of dLCV’s comment and concerns.

Sincerely,

Colleen Miller

Executive Director