12VAC35-105-170.H. and 12VAC35-105-620.3. create a substantial negative impact on Behavioral Health providers, including those providing CMHRS services.  Though committed to implementing corrective action plans in any necessary instance, Lucid remains concerned about how any agency would be able to “prevent recurrence” of a future regulatory violation.  This regulatory change shifts the focus from standards of care to a limited view of the impossible prevention of violations such as late reporting.

With so many factors outside of provider control, the next similar violation may not be caused by the same factors. A report could be forced beyond the 24-hour period due to the day and time of the incident (for example, on a Saturday at 10pm), difficulty accessing caregivers, awaiting medical procedures, or obtaining information from parties restricted to traditional business hours. These various factors could delay reporting despite internal efforts to mitigate any future regulatory violations. Therefore, there are simply too many individualized circumstances across multiple locations and programs that prevent provider ability to “prevent recurrence” of a cited violation.

If the current language goes in effect, it is possible and perhaps inevitable that providers will receive additional citations when their CAP is regrettably unable to prevent a future delay of an incident report. In practice, faced with the likelihood of a similar citation, many incidents that would have been brought to the attention of supervising staff for consideration will go unreported. Ultimately, with the addition of this language, the Office of Licensing establishes an entirely different expectation for providers to not just mitigate risk of citation, as previously directed, but to prevent it.  When coupled with the ‘Guidance’ document, this effort to improve care becomes a punitive endeavor for the provider.