Virginia Regulatory Town Hall
Department of Behavioral Health and Developmental Services
State Board of Behavioral Health and Developmental Services
Rules and Regulations For Licensing Providers by the Department of Behavioral Health and Developmental Services [12 VAC 35 ‑ 105]
Action Compliance with Virginia’s Settlement Agreement with US DOJ
Stage Final
Comment Period Ended on 7/22/2020
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7/21/20  4:07 pm
Commenter: Dyane Winn, Fidura & Associates

CAP – “Prevent” is unrealistic

The description of identified implementation standards for a CAP to address violations start with the realistic standard of “minimize the possibility that the violation will occur again” in section 12VAC35-105-170 C1  to the unrealistic standard of “prevent the reoccurrence of a regulatory violation” listed in section 12VAC35-105-170 H and “prevent the reoccurrence of the cited violation” listed in section 12VAC35-105-170 H1. 


The increase in the standard diminishes what the regulation previously stated as the function of the CAP. This means an agency can, actually, be meeting the related standard (“minimize”) while also being cited for not meeting the CAP regulation (“prevent”). This causes a severe impact in understanding the correct development and implementation of any CAP. These regulations, at the very least, contradict themselves.


It is unreasonable to expect anyone to be able to develop a CAP that will “prevent” the reoccurrence. The realistic expectation is listed in section 12VAC35105-170 C1 to “minimize the possibility.”  With an expectation of “prevent” within the CAP, an agency will constantly be spinning wheels to provide revisions every time there is a perceived reoccurrence.  By definition, humans are not perfect; mistakes are made and plans for improvement are warranted. However, based on the logic of the revised/proposed regulation, humans (licensing specialists) will continually issue citations to humans (providers) because they are human, until the provider is cited out of their license. 

CommentID: 83997