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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7/22/20  2:39 pm
Commenter: Kimberly Black, Hope House Foundation


20 - Definitions

  • Service

1. Using the terms ‘reduce‘ and ‘ameliorate’ implies someone with mental health, developmental disabilities needs to be improved upon or made better.


  • Missing

1. Strike ‘present when and where he should be’. As an in-home provider if I am scheduled to support someone at 3pm and upon arrival the person is not home as they have chosen to participate in other activities that day and did not communicate, a provider should not be reporting this.

2. Strike ‘explained by his supervision needs or pattern of behavior’. Instead, use If the person’s health and safety is in jeopardy as defined by their plan of supports, then we would report them as missing.


  • Risk Management

1. Replace the term ‘ensure’ with ‘support’. Providers cannot ensure safety, only implement measures that support safety in the workplace.


  • Level II Serious Incidents –

1. All emergency room visits should not be reportable. At times when PCPs or Urgent Care facilities are the appropriate level of care to treat an ailment, when an appointment cannot be acquired. The department should determine if diagnosis is what they want to track and list those results for providers to make this reporting requirement less burdensome on providers and track data deliberately at the state level.


160 – Reviews by the dept.; requests for info.; required reporting

  • Section D.2.

1. The requirement for providers to report "the consequences or risk of harm" for Level II and III incidents is putting the undue burden to speculate on what could have occurred or may have occurred. Information provided will be subjective and can be incorrect if the person providing the information does not have the appropriate clinical education.

  • Section E.2.

1. Remove this section. It is redundant. Providers are already required to complete an in-depth root cause analysis after each Level II and Level III incident. Additionally, a Systemic Risk Assessment is already required of providers annually per section 520. This annual assessment includes a review of all serious incidents.


170 – Correction Action Plans

  • Section E.

1. This section should include a deadline (number of business days) for the DBHDS response and require the department response be in writing.

2. It is not possible for a provider to prevent actions taken by their employees. Providers can and should be held accountable for taking certain actions upon hire or after the discovery of an action, but cannot be expected to prevent violations of regulation or policy. Corrective Action Plans should be designed to reduce the likelihood of recurrence, but it is s to believe even the best CAP can prevent a human action.  


520 – Risk Management

  • Section C.

1. The language requires that the provider “incorporate uniform risk triggers and thresholds as defined by the department;”. These have not been published. Providers cannot agree to incorporate these triggers and thresholds when they have not been made available.


590 – Provider Staffing Plan

  • Section A.5.

1. In-home providers are not present 24 hours a day and cannot be responsible for evacuation during an emergency. The SIS is conducted by qualified personnel and not the provider. Assessed supports are reflected by the individual’s team in the Shared Plan and Part 3 of the ISP. This section does not apply to home and non-center based services.


620 – Monitoring and evaluating service quality

  • ‘includes and reports on statewide performance measures’

1.  Stakeholders must know where these are published and which are directly applicable to providers, so that consistent monitoring occurs on relevant measures.


660 – Individualized Service Plan

  • Section D

1. Informed consent, the proposal of alternative services that might be advantageous and accompanying risks or benefits of those alternative services when selecting services and providers is the responsibility of the support coordinator and NOT the individual provider.

2. Documentation of the explanation and the reason for the selection is also the responsibility of the case manager and not the provider.

3. Acceptable measures for demonstrating a working knowledge should be clearly defined, so that providers may meet the regulatory requirement and the regulation can be applied consistently across licensing specialist.

CommentID: 84110