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 Provision of provider statement to any other provider
Stage Fast-Track
Comment Period Ended on 10/14/2020
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9/15/20  4:42 pm
Commenter: Harrisonburg-Rockingham Community Services Board

Concerns with proposed regulatory language

There are already inherent legal risks of negligent referral as well as liability incurred with negligent hiring.  That said, this opens an organization up to greater liability. 

Too often supervisors working in licensed facilities do not appropriately and accurately document performance and conduct issues in poor performing staff.  This continues to be a struggle in both small organizations as well as larger organizations.  The additional requirement of a written statement of "character, ability and fitness for employment" is an escalation of that struggle in the event the written statement is challenged and/or subpoenaed. 

Beyond founded cases of abuse, neglect or exploitation, a personnel file may not have sufficient documentation to defend a negative statement in court that implicated the staff person in personnel issues for which they were retrained or moved to another work environment.  Ultimately this means the employee would then have greater option to seek civil penalties from a former employer despite protections in Virginia Code.

Even with a signed release, an organization cannot give an honest assessment of a poor performing employee if they do not have the supporting documentation, so instead organizations provide a neutral reference under current circumstances (dates of higher, current standing or eligibility for rehire). 

Clarification is needed as to what would be included in a statement of "character, ability and fitness for duty."

How does a licensed provider go about requesting such information from another provider?  

How is the written consent obtained, documented and shared between the acquiring organization, current/former organization and potential employee?  Is the written consent of the employee requested by the acquiring provider and forwarded to the current or former employer?

Does the current VA code protecting organizations from civil liability (unless the employer acted in bad faith) extend to protecting specific human resources and/or the manager/supervisor as well?  

It seems that ultimately the language of this regulation will just force organizations to make broad, general statements unless there was a finding of adult abuse.  It will not achieve a goal of providing an honest to goodness statement on "character, ability and fitness for duty. "

CommentID: 84901