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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9/24/20  12:54 pm
Commenter: Bill Sutton, General Counsel, Colonial Management Group, L.P.

Comments in Opposition to 12 VAC35-105

These comments are submitted on behalf of Metro Treatment of Virginia, L.P., an operator of outpatient opioid addiction treatment clinics in Virginia, in response to the proposed regulation set forth in 12 VAC35-105. 

In short, this proposed regulation wrongfully and needlessly exposes facilities to liability stemming from a requirement that each and every facility make a "statement regarding the character, ability and fitness for employment of a current or past employee."  As a prelimiary matter, amy negative assessment of an employee necessarily invities litigation, as such assessments require a factual interpretation that reasonable parties may perceive differently.  In particular, assessments involving "character" and "fitness" are inherently subjective and, as such, provide an employee (whether current or former) with a predicate to file suit should the employee perceive the assessment as negative, uniformed or otherwise unfair.  Even if such claims are utlimately deemed frivolous, the time, expense and effort required of facilities to respond to such legal actions will be disruptive, debilitating and, most important, distract facilities from their essential mission of caring for patients. 

In response to Ms. Fidura's comments in support of this proposed regulation, I respectfully disagree that Code of Virginia s. 8.01-46.1 provides complete immunity to facilities compelled to provide employee assessments of "character" and "fitness" to state regulatory agencies.  A plain reading of this law indicates that this immunity is limited and does not necessarily extend to this proposed reporting requirement.  Specifically, a current or former employee who disagrees with a negative assessment could simply allege that the assessment was done in "bad faith" , thereby allowing the employee to proceed with a lawsuit against his/her current or former employer.    In other words, by merely alleging "bad faith", the employee can easily avoid the law's prohibitions against suits predicated on employement-related information.  Further, the statute is limited to information furnished to a "prospective or current employer" - it says nothing about information furnished to government agencies including, but not limited to, State of Virginia agencies.  

The State of Virginia should not be in the business of compelling providers to engage in activities that invite and increase a facility's litigation risk.  The state has ample tools at its disposal to determine whether a particular individual is fit to work in healthcare facilities falling under the state's regulatory oversight.  Moreover, the state enjoys sovereign protections (none of which are available to the facilities on whom the state wishes to imposed these new, risk-enhancing obligations) that shield it from actions by the person alleged to be unfit to work in a healthcare facility.  Simply stated, the State of Virginia should require nothing more from a facility other than: (i) verification of whether a particular employee worked at the facility; (ii) what the employee's job and/or duties are or were at the facility; and (iii) the time frame during wihich the employee worked at the facility.  Absent any specific, unequivocal statutory grant of immunity (which s. 8.01-46.1 does not provide), an assessment of an employee's fitness to work in a healthcare facility should exclusively remain within the province of the state.  For these reasons, this proposed regulation should be retracted and vacated.  Thank you for your consideration.   

CommentID: 85784