Hampton – Newport News Community Services Board

Response to Proposed Changes to DBHDS – Emergency Regulations

1. 12VAC35-105-20. Definitions.

"Serious incident" means any event or circumstance that causes or could cause harm to the health, safety, or well-being of an individual. The term "serious incident" includes death and serious injury. "Level I serious incident" means a serious incident that occurs or originates during the provision of a service or on the premises of the provider and does not meet the definition of a Level II or Level III serious incident. "Level I serious incidents" do not result in significant harm to individuals, but may include events that result in minor injuries that do not require medical attention or events that have the potential to cause serious injury, even when no injury occurs. "Level II serious incident" means a serious incident that occurs or originates during the provision of a service or on the premises of the provider that results in a significant harm or threat to the health and safety of an individual that does not meet the definition of a Level III serious incident. "Level II serious incident" includes a significant harm or threat to the health or safety of others caused by an individual. "Level II serious incidents" include: 1. A serious injury; 2. An individual who is missing; 3. An emergency room or urgent care facility visit when not used in lieu of a primary care physician visit; 4. An unplanned psychiatric or unplanned medical hospital admission; 5. Choking incidents that require direct physical intervention by another person; 6. Ingestion of any hazardous material; or 7. A diagnosis of: a. A decubitus ulcer or an increase in severity of level of previously diagnosed decubitus ulcer; b. A bowel obstruction; or c. Aspiration pneumonia. "Level III serious incident" means a serious incident whether or not the incident occurs while in the provision of a service or on the provider's premises and results in: 1. Any death of an individual; 2. A sexual assault of an individual; 3. A serious injury of an individual that results in or likely will result in permanent physical or psychological impairment; or 4. A suicide attempt by an individual admitted for services that results in a hospital admission.

• The new assignment of Levels to serious incidents does not improve the accuracy or efficiency of reporting for Providers. This assignment system is confusing, inconsistent/contradicting and does not adequately address some of the most common types of incidents experienced by Providers. For example, serious incidents occurring offsite, but reported to Case Managers outside of service provision, are notably difficult to categorize in the existing reporting infrastructure. The proposed Level system, and subsequent guidance offered by DBHDS, do not offer the direction needed for adequate application.

• Level III incidents, such as sexual assault, may fall outside of the jurisdiction of a Provider to investigate, as it might impede the work of a law enforcement entity.

• In accordance to the proposed regulations, Level III serious incidents include those that result in or likely will result in permanent physical or psychological impairment. This is a highly subjective descriptor and, given the parameters for reporting serious incidents (e.g., timeframes), as well as completing the subsequent investigations, it is unlikely if the information needed to make this type of assumption would be available at the time of completion.

• The Definitions do not acknowledge or define the position of Qualified Mental Health Case Manager (QCM). Is a QCM equivalent to a QMHP? If not, a separate, distinct definition for a QCM should be provided, with information as to what qualifications distinguish it from the QMHP classification.

1. 12VAC35-105-160. Reviews by the department; requests for information; required reporting.

1. The provider shall collect, maintain, and review at least quarterly all Level I serious incidents as part of the quality improvement program in accordance with 12VAC35-105-620 to include an analysis of trends, potential systemic issues or causes, indicated remediation, and documentation of steps taken to mitigate the potential for future incidents.

• Given the amount of additional reporting, analysis and outcome maintenance the regulatory standards mandate, quarterly review of Level I incidents, which are frequent in number, is superfluous and burdensome on an already overtaxed system. At a minimum, an annual review of trends would be sufficient.

E. A root cause analysis shall be conducted by the provider within 30 days of discovery of Level II and Level III serious Regulations Volume 34, Issue 25 Virginia Register of Regulations August 6, 2018 2510 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.

• Implementation of this requirement should be delayed until: DBHDS has provided adequate training to Providers on how to conduct a Root Cause Analysis (RCA) that meets the Department’s standards; provides the method by which Providers should document RCAs to ensure the Department’s standards are met.

• RCAs should not be applied universally to all Level II and Level III serious incidents. Deaths of unknown cause, some sexual assaults offsite and outside of service provision, etc. are types of events when an RCA should not apply.

• Sensitivity to the nature of “investigating” and/or completing RCAs with victims of assault, especially ones of a sexual nature, does not appear to have been applied in the development of this regulatory standard. This requirement should be rescinded.

1. 12VAC35-105-520. Risk management.

C. The provider shall conduct systemic risk assessment reviews at least annually to

identify and respond to practices, situations, and policies that could result in the risk of harm to individuals receiving services. The risk assessment review shall address (i) the environment of care; (ii) clinical assessment or reassessment processes; (iii) staff competence and adequacy of staffing; (iv) use of high risk procedures, including seclusion and restraint; and (v) a review of serious incidents. This process shall incorporate uniform risk triggers and thresholds as defined by the department.

• Implementation of this requirement should be delayed until: DBHDS has provided adequate training to Providers on how to conduct systemic risk assessments that meet the Department’s standards, with special emphasis on the “uniform risk triggers and thresholds” as defined by the department, per the proposed regulations. Given the DOJ’s scrutiny and the Department’s increased emphasis in this area, it is imperative Providers have the support and training, facilitated by DBHDS, to ensure this standard is adequately applied.

1. 12VAC35-105-675. Reassessments and ISP reviews.

D. 3. For goals and objectives that were not accomplished by the identified target date, the provider and any appropriate treatment team members shall meet to review the reasons for lack of progress and provide the individual an opportunity to make an informed choice of how to proceed.

• This section should read “the provider and/or any appropriate treatment team members” to more adequately represent Providers offering services to individuals in mental health and ARTS programming. Although it is recognized a treatment team approach would be ideal in progress review, this option is not always readily available, even with care coordination support. The proposed writing of this portion of regulation might result in over interpretation or misapplication.