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  12:22 pm
Commenter: Kim Black

Agency comments
  • The description of an employee’s “character, ability, and fitness for employment” can be described differently and will vary from provider to provider. A standardized means of describing and employee’s character, ability and fitness for employment should be developed so that all providers are using the same tool/scale.
  • Employer liability would limit the information to what can be consistently documented. Subjective use of this information and categorization of “character, ability, and fitness for duty” would open employers up to liability suits.
  • Clarify “or other individual currently or previously associated with the provider in a capacity that requires a criminal history background check to any other licensed provider.” The other individuals should be clearly stated so that providers can meet the expectation.
  • Although the Fast-Track Regulation Agency Background Document consistently states there is not economic impact, this is an additional administrative requirement being placed on the provider and therefor a staff must perform the work and the provider must pay the staff to complete this additional work.
  • Although the Fast-Track Regulation Agency Background Document states there is not an alternative to this regulatory change, that is not true. Instead of placing additional requirements on providers, the Department should use resources currently in place to capture this data to meet this need.
  • Define a timeframe as this creates additional administrative demands on providers without providing additional resources or increases in reimbursement rates.
  • Clarify the role of the referenced written statement in the hiring process.
  • The VA Code limits employer disclosures to the following: job performance, reasons for separation, performance evaluation or opinion, knowledge, qualifications, skills, or abilities, job description and duties, attendance, effort, and productivity, awards, promotions, or demotions, disciplinary actions and professional conduct. Although § 8.01-46.1. includes in the definition of job performance, ‘ability’; character nor fitness for employment is included. Providers should not be asked to do something that is not in language supported by the code of Virginia even if the intent is the same.

• As the stated intent of the legislative mandate is ‘to protect individuals receiving services from unfit direct care staff as there currently is not a state registry for those with founded cases of abuse and neglect against adults”; however, the question of if an employee has been the focus of a founded allegation of abuse or neglect is not being asked. This information already is available in the CHRIS system. The State Board should use tools already in place to share the findings instead of placing new requirements on providers.

CommentID: 87367