12 VAC 35 – 106 – 390 – office and service location – C and D create restrictions on providers that would prohibit providing services and maintaining records in the providers personal home. While these provisions will impact a large range of services and providers, the focus of this commentary is on the prohibition of shared residence group homes (hereinafter SRGH) under the proposed regulations.

Initially, it is important to note that the burden of proof for the necessity of the proposed regulation should be placed on the state and that the Administrative Process Act that initiated this change and controls all regulatory proposals has 2 relevant specific requirements for these regulations:

1. a fact basis must be established that makes the proposed changes necessary. Section 2.2 – 4017 establishes that in the 4year review, changes must be “necessary” and that the agency must provide “reasons for its findings”. Section 2.2 – 4007.05 is even more specific and requires a “rationale or justification of the new provisions” and clearly separates a statement of “purpose” (why someone thinks they may be good/necessary) and a statement of “substance and issues” (actual risk, occurrences of concerns, data and facts).

2. Minimization of adverse impact on small businesses. Section 2.2 – 4007.1 clearly states in D that this is a required consideration in the 4 year review process and provides clear requirements “to minimize the economic impact on small businesses”, “consider utilizing alternative regulatory methods” for small businesses (listing 5), avoid regulations that “overlaps, duplicates… federal or state law or regulation” and “minimizing the adverse impact on small businesses”.

   Both of these proposed provisions fail both of these requirements in relation to SRGH.

   There is absolutely no justification and no fact base that makes the proposed changes necessary for SRGH. An email was sent to Emily Bowles DBHDS requesting the rationale for these changes. I received a response which stated “the intent of protecting both individuals served as well as licensing staff” …“it is not safe, appropriate, or practical for licensing staff to enter into a provider’s personal residence for an unannounced inspection. In addition, there are also privacy and safety concerns for individuals served when services are provided within the residence of a provider”. Finding the claims to be both vague and conclusionary, a follow-up email requested data and specifics to clarify and support the conclusions. When no response was received, I sent a FOIA request resulting in a conference call with Walker and Boyles of the DBHDS on 9/30/19 and the information received on that conference call is included in the analysis that follows:

   1)There is no basis in fact to establish the necessity of these provisions for SRGH to protect unannounced licensing inspections. They specifically stated that this language was designed to target not group homes but day programs which have no facility; resulting in occurrences where individuals “answered the door in their underwear” or “children answered the door and the provider was not present for the inspection” or “the inspector was just 1: 1 with the provider at their kitchen table” and as a result licensing inspectors “felt very uncomfortable”. They indicated that their conclusions were based on anecdotal reports of a few licensing inspectors of a few occasional occurrences “over the years”. They admitted that they have no idea how many SRGH currently operate and as a result there is absolutely no data available whatsoever that indicates any unannounced licensing inspections ever was unsafe, inappropriate or impractical in a SRGH. None of the examples given were applicable to SRGH and all of the examples cited would be subject to other regulatory controls in group homes; eliminating any necessity for the prohibition of SRGH even if all of the claims are true. There were absolutely 0 examples of any licensing agent being injured during an unannounced licensing inspection, reducing the pretext of safety to a more realistic pretext of inspector “comfort” and the pretext of appropriateness and practicality would be fully resolved by the office hour requirement located elsewhere in the regulations.

   2)There is no basis in fact to establish the necessity of these provisions for SRGH to promote the privacy or safety of individuals served in those homes. I specifically requested data showing an increase in CHRIS reported privacy violations, death, serious injury or serious incident reports and once again there was absolutely no data available whatsoever that indicates the privacy or safety of any individual served as ever been jeopardized and/or reduced in a SRGH. No examples or possible scenarios of how safety of individuals would be compromised by the SRGH service model were provided and privacy concerns focused on access to individual records by other members of the home and guest to the home. They appeared surprised when informed that these records were kept secured in locked cabinets/offices consistent with existing regulations and that other provisions had been made to assure their safety and non-access of records for any unauthorized individual living in or visiting the home.

   3)The sponsored placement exemption belies the credibility of the claim, if it is safe, practical and appropriate in the providers home with 2 individuals, how does adding a 3^rd or 4^th change this calculus – it does not.

   I do have the analysis and empirical facts that establish that none of these proposed rationales are applicable to SRGHs. I begin providing services in 1999 in a SRGH, I obtained my own license in 2002 and continued to provide services in a SRGH until 2010. In addition, I operated a staff only group home licensed for 5 persons from 2003 until 2010 and a staff only group home licensed for 8 persons from 2010 to 2016. In 2016 we consolidated into a SRGH for 4 persons and a sponsored placement home. As a result, I have over 14 years of empirical experience with the SRGH service model and 13 years of experience with the staff only group home service model.

   1)unannounced licensing inspections in the provider’s personal home are more practical, safer and appropriate in a SRGH that includes the organizations records than in a staff only group home with a separate office location. DBHDS was unable to provide any objective criteria or measurement of practicality for a licensing visit and there are several aspects of a SRGH with a home office that make the completion of an unannounced licensing inspection more practical: 1^st – it allows the full licensing inspection to be completed in one stop at one time, with no need to go to separate offices; 2^nd – it allows complete information to be provided at the time of the inspection and assures that at least one professional staff and much more likely the director will be available with first-hand information, preventing them from having to travel back and forth when they find something in the office records that creates a question for the service environment; 3^rd – it allows the licensing agent to conference with individual DSPs/supervisors without disrupting the staffing ratio or services being provided during an unannounced licensing visit, making it more practical for everyone. Licensing inspector safety (actually just comfort) is also adequately protected and improved in the SRGH service model. Any safety concern to the licensing inspector created by the physical plant of the provider’s personal home would be a safety threat to the Individuals served and as a result is controlled by the existing regulations. This leaves only safety threats directly from the provider themselves, where any effort to intimidate, harass or otherwise jeopardize a state official in the performance of their duties would constitute a violation not only of the existing regulations but also law with penalties of fines and/or imprisonment; allowing the department to revoke their license under 106 – 140. In addition to these effective controls, the SRGH model provides even greater safety for the unannounced licensing inspection: 1^st – it increases the likelihood that a fully qualified and vetted QDDP who is fully invested in the organization will be on-site to rein in and correct wayward DSPs not fully invested in the organization from responding negatively to the inspector; -2^nd- it permits an improved staff ratio that decreases the likelihood that the inspector would be alone 1:1 with the provider and extra staff to address any safety concerns for the inspector that may be created by the Individual served or their vistors during the inspection. Finally, as regards appropriateness, again the state was unable to provide any objective criteria or measurement of appropriateness and any inspection of the provider home/ home office is even more appropriate than inspecting the personal home of the individuals served. These proposed regulations are designed to regulate the provider not the individuals served by the provider; as such, it represents an institutional mindset to claim that it is more appropriate to enter the personal residence of the Individual served than it is to enter the personal residence of the provider who is the subject of the inspection/regulations.

   2)The safety and privacy of individuals served are better protected in a SRGH that includes the organizations records than in a staff only group home with a separate office location.

   *Safety – DBHDS provided no examples or hypothetical scenarios as to how a SRGH would jeopardize the safety of any individual served. Actually, the SRGH service model empirically and significantly increases the safety of the Individual served; 6 independent ways: 1^st – the SRGH service model improves the staff ratio across time and shifts, because in addition to the hourly paid DSPs providing services the provider is much more frequently on-site and available to provide services; 2^nd – the shared group home service model greatly improves supervision because a fully qualified QDDP is on site observing, interacting and promoting an appropriate corporate culture much more frequently than they would be if they were sitting in some separate storefront office waiting for the occasional licensing inspection; 3^rd – additional nighttime supports (which are typically limited to one third shift DSP in staff only group homes) to respond to any concerns and/or emergencies that arise during the night are available in seconds (rather than hours or the next day) when the 3^rd shift DSP awakens the QDDP for additional supports to respond to the emergency; 4^th – the qualifications and expertise of the staff that responds to any concern/emergency in the SRGH is likely to be increased by the availability of that QDDP across all 3 shifts; 5^th – investigations are greatly enhanced by the increased availability of the QDDP who is the trained investigator, providing the investigator with first-hand knowledge, the ability to interview those involved immediately after the occurrence and the ability to immediately rectify any inconsistencies in their reports; 6^th – continuity of services across time and shifts for any emerging risk is greatly enhanced by eliminating the sole reliance on brief shift contact exchanges between hourly paid DSPs and providing a fully qualified QDDP to provide training for the continuity of service needs and respond to any continuity of service risk mitigation questions that emerge post the initial shift exchange contact – there are other anecdotal examples of enhanced safety but 6 should suffice as they are consistently true across all time frames, services and context.  The net impact of these advantages is made clear by the data and empirical statistics, which clearly demonstrate a significant reduction from an average of 11 medication errors per year in the staff only group homes to an average of only 1.38 per year in the SRGH. Additionally, I would note that 75% (3 of the 4) licensing inspection corrective action requirements received by the organization over 17 years of operation were related to safety in the staff only group home and the only one received by the SRGH was not safety related. Thus, this analysis not only provides a clear rationale for why the SRGH model better protects the safety of the Individual served; but also, provides direct empirical data and evidence to collaborate that the exact opposite of the state’s claim is in fact the truth.

   *Privacy – the state was able to provide some indication of their perceived privacy concerns for the individual served in a SRGH, involving access to records and provider visitors. As noted earlier, records security provisions already in the regulations would resolve any access to records concerns. However, there are additional protections for records that are available in the SRGH with a home office for records that would not be available in a staff only group home with a separate office: 1^st – the physical transportation and/or electronic forwarding of records of the Individual served between the separate office and the service environment, increases the opportunity for unauthorized access to the records through these more vulnerable portals, as they are not locked up during transport and become accessible to hackers or errant sends to unauthorized persons; 2^nd – the increased presence of a fully qualified, vetted and invested QDDP across all 3 shifts, significantly increases the available monitoring and emphasis on records security; 3^rd – the increased supervision provided by the live-in QDDP provider, increases the likelihood that occasional records security lapses by hourly paid DSPs staff (leaving on a counter, unattended or unlocked) could be corrected in real time before any records breach occurs. It is also important to note that there are specific privacy protections in both the DBHDS regulations and the CMS final rule that would provide exactly equivalent protection to the privacy rights of individuals served in both service models, whether the visitors were there at the request of individuals served or to visit the live-in provider and provide sufficient recourse to correct any privacy concerns that would appear from either eventuality. In addition to these adequate privacy protections, any concerns created by visitors to the home are much better addressed by the SRGH service model than the staff only group home service model: 1^st – the increased monitoring from a fully qualified, vetted and invested QDDP afforded by the SRGH service greatly increases the likelihood that inappropriate and/or unmonitored staff visits will be prevented, staff only group homes seldom if ever provide supervisory staff to monitor the comings and goings in the home throughout the night and on a much less consistent basis during 2^nd shifts; however, if someone shows up at my home at 3:30 in the morning or any other time, I am more consistently there to monitor for and address any concerns that may arise; 2^nd – the increased supervision across shifts and time, enhances opportunities to identify, prevent and correct any privacy concerns that are created by DSPs and/or individual served visitors to the home; 3^rd – the improved staff ratios afforded by the SRGH service model increases the ability of staff to provide services in private when desired without leaving other individuals unattended and monitor/prevent privacy concerns that may be created by visitors (whether there to visit other individuals served or the provider) – again, there are other anecdotal examples of enhanced privacy protections but these 3 should suffice as they are consistently true across all time frames, services and context. The positive net effect of these advantages for the privacy of individuals served in SRGH is supported by empirical data. In 17 years of operation, we have experienced 2 confirmed violations of individual privacy (a DSP breaching confidentiality on a smoke break during an outside training with other agencies and a peer violation when a peer visiting the home for a possible placement intruded on another individual served brushing her teeth in the bathroom); both of these privacy breaches occurred in the staff only group homes -there have been no complaints, much less founded complaints, of privacy violations ever in the SRGH. Additional evidence is provided by the evaluation of the enhanced privacy protections required by the CMS final rule, where the SRGH service model we provide has been determined to be fully compliant, while numerous staff only group home service models have failed to achieve a determination of full compliance with privacy protections. Thus, this analysis not only provides a clear rationale for why the SRGH model better protects the privacy of the Individual served; but also, provides direct empirical data and evidence to collaborate that the exact opposite of the state’s claim is in fact the truth.

    

   In conclusion, the prohibition of the SRGH service model clearly fails the 1^st test of appropriateness for a proposed regulation contained in the APA. While the state may be able to state a purpose for the proposed regulations – that purpose has absolutely no basis in fact; rather empirical facts prove the purpose is actually better served by promoting SRGHs not prohibiting them.