On behalf of the disAbility Law Center of Virginia (dLCV) and the people we serve, I write to comment on the new regulation found in § 12VAC-35-105, “Provision of Provider Statement to Any Other Provider.”  As the designated Protection and Advocacy system for individuals with disabilities in Virginia, dLCV supports the spirit of the new regulation as it may serve as a mechanism to prevent caregivers who have abused, neglected or exploited vulnerable individuals from moving into a new position in which they would again have access to vulnerable individuals. While dLCV’s position is that the Commonwealth should host an electronic registry of such individuals and we advocate for the state to develop such a registry, the new regulation is a good step in the right direction of ensuring protection of vulnerable adults.

We are concerned, however, that because the regulation requires that the individual for whom the statement is being requested give their express written approval to their employer to release the statement, the positive impact of the new regulation may be diminished.  We recommend that DBHDS develop and disseminate a process for determining the effectiveness of the new regulation, and study the impact over the next several years to determine benefit.  In addition, we note that requiring the individual to give written approval, as opposed to providing approval in the format best understood or expressed by the individual, could negatively impact individuals who have disabilities that limit their ability to use that format.

dLCV has reviewed the public comments submitted on this regulation to date, and agrees with the commenters who expressed concern about the lack of definition in the new regulation.  Until employers and staff have clear guidance they can follow, the lack of clarity will undermine the point of the regulation and will not fully protect Virginians with disabilities.  We recommend that DBHDS work with stakeholders, including service participants, providers and advocates, to further flesh out the content of the statement required from employers in the new regulation to ensure the most protection for vulnerable adults.

Sincerely,

Colleen Miller, Executive Director