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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10/14/20  8:23 am
Commenter: Brooke Mitchell, Loudoun County MHSADS

Comments regarding 12VAC35-105-435

The proposed text indicates a provider’s written statement shall pertain to “the character, ability, and fitness for employment in or to otherwise fill the role for which the person has applied.”  We believe implementation of this provision will negatively impact providers by adding both an administrative burden and unnecessary litigation risks.  The Legislative intent behind the addition was to fill the information gap created by the lack of a state registry for those with founded cases of abuse and neglect.  The required written statement of character, ability, and fitness fails to satisfy that intent in the following ways:

  1. The provision as written fails to mention abuse or neglect and rather asks providers to weigh in on aspects of an individual’s performance with is subjective in nature and challenging to collect;
  2. As there is a lack of comprehensive regulations regarding abuse and neglect investigation related methodologies and definitions, the provision fails to acknowledge the inconsistencies in standards utilized across providers and the impact such variation has on information shared between providers.

Furthermore, the subjectivity of the information being requested places providers at an increased risk of litigation.  While the regulation addresses civil liability at the State level for the provider, it fails to address the risks associated at the Federal level and for individual staff members. 

Realizing the language in the provision directly mirrors what is required by the Virginia Legislature, we ask that DHBDS provide written guidance indicating draft statement language which will both satisfy a written assessment of character, ability, and fitness for employment AND reduce any litigation risks for the provider.  We ask that any guidance provided by DBHDS provide uniform definitions and methodologies as they relate to investigations into allegations of abuse and neglect.  We further ask that DBHDS provide guidance to assist providers in communicating requests for information to staff and informing as to options of recourse for staff who dispute the information provided.

CommentID: 87363