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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7/11/20  1:56 pm
Commenter: john humphreys

unfair to small providers

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 2ndInclude 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:


  1. Devalues an entire class of individuals who have demonstrated exemplary professional performance in serving this role. The current regulation permits the existence of functionally equivalent individuals without any direct recognition (title) or inclusion in the regulatory rights/privileges implied for QDDP’s (holding a license, independently operating a home, training/supervision at upper levels etc.). Individuals in this class, who have clearly met the standard and are performing the function well, are reminded daily when they sign off on paperwork and are unable to know what letters to include after their name to meet the requirement/current vogue for establishing their bona fides on each document. These individuals also find themselves in a regulatory limbo as to what duties they can legitimately perform, as the areas required in the guidance document for establishing functional equivalency appear far broader than the regulatory inclusion (or maybe not, really no way to know). This regulatory limbo is destructive to the morale of individuals who fulfill this function, excessively limits their career advancement opportunities and represents a basic unfairness to the individual who has dedicated a lifetime of work to serving individuals in the population.
  2. Disincentivizes the development and utilization of functional equivalents. The current regulation permits the existence of functional equivalent individuals but provides no verification process that would formalize the acceptability of an Individual in that role. Licensing agents will not review the material that establishes equivalency and/or provide written verification that an individual has been determined to meet the standard and neither they nor the department can point you to anyone who will verify that an individual meets the standard. As a result, the Individual and the provider can never be sure if the individuals work product will actually be acceptable to the state, since there are no objective standards nor verification process, any one individual can retroactively be declared unqualified by the state and all of the work/billing they’ve been responsible for disallowed. This regulatory limbo provides a clear barrier to providers investing in the development of functional equivalents. Additionally, this factor coupled with the regulatory limbo for acceptable roles for the functional equivalent incentivizes underutilization of individuals who have developed the knowledge, skills and abilities on their own through decades of experience, limiting the utility of a potentially significant staff resource.


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.


  1. Individuals in the functional equivalency class of employees are treated unfairly. Remember here that we are talking about individuals who through decades of service, training and experience have empirically verified their ability to demonstrate and implement all of the knowledge, skills and abilities required of a QDDP in the provision of their services. However, the system devalues their contribution, creates barriers to professional growth and prohibits them from obtaining the recognition they duly deserve; seemingly dismissing all the hard work they endured to achieve the status and making it an apparent dead-end.
  2. Exacerbates the staffing crisis reducing overall service quality. Service quality is impacted in 2 ways 1st the quality of the overall labor pool is reduced; by dis-incentivizing the use of functional equivalents these individuals are excluded from inclusion in the available supervisory labor pool up front and over the long-term quality employees will leave our services in search of employment that recognizes and rewards their empirical knowledge, skills and abilities (they have lots of options for this). Underutilization of functional equivalents also inflates the wages that have to be dedicated to supervisory staff, as a result of college graduates seeking/feeling entitled to a more significant wage, which directly draws from the overall allocation to wages in the organizational budget and results in lower wages for all DSPs making the direct service positions less attractive to quality individuals. 2ndoverreliance on college graduates reduces service quality –individuals with college degrees who we can hire at the currently low pay rates are seldom if ever superior to the individual with decades of experience and given the wages that we can pay these positions are frequently filled by new graduates or existing graduates who exhibit frequent job hopping, both of which introduce significant turnover in these vital roles undermining the familiarity, stability and continuity of services for individuals served. The use of new graduates is particularly problematic when they are put in charge of DSPs with years of experience, generating resentment among seasoned DSPs who believe that you can’t lead the charge unless you’ve been in the trenches; resulting in decreased morale, supervisory dismissiveness and tensions, all of which impact negatively on service quality. Even more problematic is when the seasoned DSP has to perform roles/functions for the individual with the new or existing college degree, because they simply lack the understanding that can only be gained from years of experience with the population/services and all of these concerns become significantly exacerbated; decreasing service quality.
  3. Business operations, particularly that of small businesses are significantly hampered by a labor shortage/crisis. At the simplest level, forcing reliance on college graduates significantly increases the labor cost for that position, which is a cost that will fall disproportionately on small businesses because they lack the economies of scale, double dipping and multiple career paths that are enjoyed by large bureaucratic businesses. Additionally, the inability to identify and hire qualified college graduates particularly in rural areas has become a significant constraint on our ability to maintain much less expand service provision in the Commonwealth. Reduction in the regulatory disincentives to the development of functional equivalent individuals to fill these vital roles would significantly increase the availability of qualified supervisory personnel who could help fill a significant labor shortage in our field. The refusal of the state to include cost-of-living adjustments and/or regularly scheduled rate refurbishments in the regulations, ensure that the labor crisis in our services will only get worse as inflation and more competitive wages elsewhere draw individuals away from our agencies and the state disincentivizing the development of this potential labor pool makes the crisis more acute; ignoring a potentially significant source of relief.


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.

CommentID: 83884