|Action||Compliance with Virginia’s Settlement Agreement with US DOJ|
|Comment Period||Ends 7/22/2020|
Initially, it is important to note that the risk management, requirements contained in these regulations were not included in the original Burns analysis for establishing the current reimbursement rate; thus, they represent a significant unfunded mandate. The state rightly considers this a major change; however, fails to recognize that it also generates a major expense in time, resources and payroll, both initially and ongoing. This unfunded mandate, like the litany of others imposed after the Burns rate setting analysis was conducted (2014), creates a unique hardship for small businesses, because the original Burns analysis excluded any provision for profit that would make additional funds (above 2013 operating cost) available for implementing changes, much less for inflation in cost and wages over the past 6 years. When asked about profit inclusions during the Burns call, they openly laughed and indicated with economies of scale you could probably “find some somewhere”; however, small businesses do not enjoy economies of scale and as a result are uniquely and seriously burdened by each additional unfunded mandate. The state should give serious consideration to providing some relief consistent with the provisions and requirements of section 2.2 – 4007.1 of the Administrative Process Act, for this and all other unfunded mandates implement since the Burns analysis was conducted.
105 – 520 – A – qualifications for risk manager –is too vague, overly restrictive, creates significant unfunded mandates and is a significant unique and unnecessary burden for small businesses. 1st – too vague/costly, insertion of the phrase “ completed department approved training” – provides no indication of what the department is likely to approve which makes any meaningful comment on the burden, necessity and/or utility of such trainings impossible—This also creates an unknown but potentially huge cost as providers would be forced to sign up for whatever trainings were eventually approved and the vendor could charge any astronomical fee they desire knowing you lose your license if you don’t pay up; and this would only magnify the cost of the unfunded mandate and all of the negative impacts that entails. 2nd – overly restrictive – as written it would require specific training in each of these areas when all of the knowledge, skills and abilities necessary to accomplish these functions can be obtained from a wide variety of other education, training and experiential sources – this creates the potential to disqualify individuals who have clearly and empirically demonstrated all of these abilities but cannot demonstrate that they’ve had these narrowly focused trainings and it creates a significant unfunded mandate as an already qualified individual has to take additional specific trainings just to meet the standard in the regulations. 3rd – unnecessary small business burden – the requirement for training and expertise in data analysis, assumes some large data set, multiple inputs and a complicated interrelationship of variables that simply does not occur in small businesses. The data analysis for our current risk program only requires an individual to be able to analyze less than or greater than (thresholds) and calculate percentages (for some data), which does not require any more training and/or expertise in data than is typically found in an individual graduating elementary school.
Recommendations: 1st – exempt small businesses from the requirement and/or utilize
other mechanisms contained in section 2.2 – 4007.1 of the Administrative Process Act to reduce the burden on small business or 2nd – Include language that indicates the training and expertise required is relative to the size/complexity of the operations of the business and the data sets they develop or 3rd – indicate in the regulation that completion of a state-sponsored training provided without charge in these areas (individually or in conjunction) is sufficient to meet the requirement and then provide that training to assure a standardized process that provides equal treatment across providers and reduces the onerous burden of the unfunded mandate.
105 – 59 – C7 – this section provides the QDDP definition and then adds “Experience may be substituted for the educational requirement.” This final sentence adds an entire class of individuals to the regulations without providing any clarity whatsoever as to their title, roles, rights and privileges. The guidance document for determining functional equivalency provided some standards but was wholly inadequate by itself for the effective identification, verification and use of this class of individuals – functional equivalents. Overreliance, on this single sentence in the regulations has had a negative impact on utilization of this class of individuals; in that it:
Both individually and collectively these factors significantly hinder the interest in and development of this potentially valuable staff resource and makes the use of functional equivalents much less prevalent in the current service environment.
Reduced utilization of functional equivalents has negative impacts on the employee class, service quality and business operations, especially small businesses.
Recommendation: recognize these individuals formally in the regulation by providing them a title (suggest QDDP functional equivalent), provide a regulatory mechanism which permits verification of their status by DBHDS and recognize regulatory rights for the individual who has achieved that status (i.e. qualifies to hold a license, preform all QDDP functions explicit or implicit for that service and establishes equivalency by regulation).
Regardless of how it looks in Richmond or other NOVA rate areas, the labor crisis confronting our services in much of the Commonwealth is real, growing and exacerbated by these regulations which fail to justly recognize functional equivalents and implement additional unfunded mandates; where each and every individual unfunded mandate uniquely and linearly decreases the compensation we can provide to support staff. The unfunded mandates continue to increase and each seemingly small cost of $2000 represents a dollar per hour for a single full time DSP or $.10 an hour for 10 full time DSPs for a year and more than double that impact for part-timers; given the limited line items in our budget these funds are subtracted directly from the available entry wage and our subsequent raises to individuals across service categories, which have made our employment offerings increasingly noncompetitive –the current average wage in Virginia is already below the average wage at fast food outlets – how can the state justify calling them professionals (but refuse to recognize the status officially, when it is earned), require we trained them up to professional standards but only make it possible to pay them unskilled labor rates. Change is needed before the crisis becomes a catastrophe for individuals in the population served.