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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]
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11/26/21  11:56 am
Commenter: john humphreys

Administrative concerns

12 VAC 35 – 107 – 90 – C2 and 12 VAC 35 – 108 – 80 – C2 – both create an affirmative duty to make sure the ISP is "distributed to the individual and others authorized to receive it, prior to implementation". While I have no difficulty with the intent of the regulatory change, the language is too vague/broad and the locus of responsibility is unclear. The phrase "others authorized to receive it" is overly broad and would presumably include those agencies (other providers, other CSB's, police and emergency personnel, hospitals, day support programs, supported employment etc.) that are authorized to receive it under exemptions in the confidentiality regulations; when clearly there is no need and they do not desire a copy distributed to them. The focus on the ISP creates the appearance that this would be the responsibility of the support coordinator who develops, reviews and implements the ISP; however, unclear if it is the support coordinator’s role to implement and document this regulation for the entire plan, including the part V, or will individual residential providers be required to independently document distribution of the plan? Finally, we always provide a full copy of the plan to all signatories during the final review, informed consent/options supports and signature; however, the other parties involved consistently decline to keep their copy and asked that it be filed with other records held by the provider – if the provider complies is the plan still considered "distributed"; or will the provider be required to make them keep their copy whether they wanted it or not and thus create a source of insecure private and HIPAA protected information about the individual. RECOMMENDATION: keep the intent but clarify the language to reduce the affirmative duty of the individual provider to providing a full copy of their plan to those individuals who are authorized, that are signatories and/or request a copy, clarify the locus of responsibility for regulatory compliance and permit the provider to take back and store the copy if the individual or other authorized participants so desire.

12 VAC 35 – 106 – 110 – B – compliance – establishes determination categories for levels of compliance which for the most part are reasonable; however, B3 Not Determined (ND) creates an affirmative duty for the provider to forward additional information when it uses the word "must", which may be impossible for the provider if the information simply does not exist at the time of the determination. For example, during our most recent review we received 2 determinations of ND associated with discharge documentation, as we have not had an individual discharged from our services in almost 10 years in the group home and there's never been a discharge in the shorter history of the sponsored placement home; thus information necessary to demonstrate compliance with the new regulations in effect had no opportunity to ever exist. RECOMMENDATION: the use of the word "must" should be replaced or at the very least qualified to limit the affirmative duty of the provider in responding to an ND rating to that information requested by the reviewer and in the possession (or should be given events) of the provider; as is this regulation would create an affirmative duty that in some cases would be impossible for the provider to meet.

12 VAC 35 – 105 – 170 and 12 VAC 35 – 106 – 120 – corrective action plans provide a required timeframe for the provider's CAP response to the issuance of a violation, but it provides no equivalent nor any required timeframe for the departments/licensing agents response to the CAP – whats good for the goose is good for the gander and simple fairness, efficiency and health/safety concerns dictates that the state should be required to respond in a timely manner. RECOMMENDATION: include a 10 – 15 day response time frame for the department/licensing agent to a provider submitted CAP


12 VAC 35 – 107 – 100 – B5 – requires that daily/per shift narrative log notes each include "next steps related to treatment or care of the individual"; in a similar vein

12 VAC 35 – 108 – 100 – B5 – requires that these daily/shift notes "describe follow-up care need that is needed or note which objective within the ISP will be the focused on the next time the individual receives services"– Neither of these provisions are appropriate for residential service where the individual receives daily services often across 3 different shifts in the same 24 hour period for a variety of reasons:

1) inclusion of these items in the individual narrative log is unnecessary/fruitless – any ongoing monitoring needs due to the possible emergence of health, behavioral or other concerns; as well as, any follow-on services the individual has expressed a preference for and/or require a focus for health reasons are typically indicated during shift contact meeting, significant concerns are indicated in the shift contact log and this system has been consistently effective in ensuring continuity of needed services making the change unnecessary. Even if this change were implemented and the information included in the narrative log it would be fruitless as no one has the time nor interest in going back and reading other people's entries, so the change would have no real impact except for increasing the documentation burden.

2) hourly paid DSPs lack the training, qualifications and authorization to make any changes that would "include next steps related to treatment"; as they are required to consistently and unerringly follow the treatment steps prescribed by the licensed medical practitioner and/or as outlined in the ISP/plan of supports, so anything that they record in regards to this regulatory requirement would simply be a repeat of information that all staff have already been informed of and trained on, with any variations being a violation of rights at multiple levels.

3) the proposed requirement makes an impossible demand for precognition, as "which objective within the ISP will be the focus on the next time the individual receive services" is typically impossible to know into the future. Whether the ISP objective is related to health and safety, where the required focus/timing is regulated by physician orders, medical protocols, the plan of supports and the emergence of health/safety concerns that were not apparent on the prior shift or the ISP objective is related to community/daily living supports, where the ISP objective focus is determined by the individuals expressed preference/request and/or activity choices in real time; neither of these areas can be predicted in advance with any reliability – making the proposed requirement and exercise in futility or a directive that undermines the individual's ability to control the implementation of their own ISP objective focus.

RECOMMENDATIONS: While the utility of these inclusions or dubious at best, if the state/department can clarify their intent and they still need to be included, they would best be included under reassessments based on events and/or quarterly reviews, where a qualified supervisor could collect the entire range of relevant information, establish context and make recommendations/changes that follow appropriate procedures, provide for professional direction and better serve whatever intent is envisioned by the proposed change.


 12 VAC 35 – 105 – 1210 – 5; 12 VAC 35 – 107 – 100 and 12 VAC 35 – 107 – 830 – collectively place a burden on group homes and/or sponsors to include a daily log and once per shift log of progress notes to be completed on the date of service delivery. While this requirement is reasonable and the typical practice in most homes, we recommend one exemption to this requirement when the individual served is engaged in supported extended travel away from the home on vacation or weekend getaways. We have traditionally taken people on a weeklong vacation at least annually and several weekend trips to various venues/events they have expressed an interest in, where the individual stay in motels, order from restaurants, sightsee, attend shows and shop for souvenirs. During these travels the individual is supported with a staff ratio of either 1:1 or 1:2 and the same staff person is primarily responsible for the them, their services and documentation throughout a long and typically arduous day. Currently, health related information is documented on a daily basis but the vast majority of the community integration supports, which are very repetitive across days, activity and venue types are recorded for several days at a time, with individual notations for days where significant differences were noted. This approach allows staff to make a very short notation, usually very late in the day (1030 – 11 PM), before they get up to start the process again very early in the morning (6 – 7 AM) to facilitate positive service provision. This approach typically leads to a more detailed note that compares/contrasts responses, changes and growth in abilities in the same support area across several days which makes the information more informative and better suited to informing development of the individual's supports. RECOMMENDATION: creating exemption when the individual engages and supported travel outside the home for several days in a row to allow for summary notes that address supports that are not health related


12 VAC – 107 – 220 – F – documented annual contact with local emergency managers – this provision clearly fails the necessity criteria for review, what exactly is the intent of this provision and how will it contribute to the health, safety, welfare of the individual served – in almost all cases it will not at all. Specifically, in our area the local emergency manager is situated in the largest city in the county and any changes in their offerings are typically limited to the city; in fact, in our periodic contacts to date we've been specifically told that there was nothing new for the "rural areas" and the threats/risk, locations of emergency shelters and recommendations have remained unchanged for 20 years – what exactly do they expect us to talk about during contact and what positive results/changes do they perceive could possibly come from it – there are none. This provision merely makes another unproductive administrative burden/documentation requirement that provides no value and serves no realistic purpose for those of us in rural areas; creating an additional unfunded mandate that will not be included in the most recent Burns analysis of rates. RECOMMENDATIONS:1) remove the requirement for annual contact; 2) amend the contact requirement to have it initiated only when significant changes in emergency risk, programs and/or services are indicated in the local news media; or 3) exempt small businesses in nonurban (non-nova rate)or rural areas from the annual requirement


12 VAC 35 – 107 – 220 – I – requiring medical professional approval of standard precautions for infection control – perhaps this requirement is just worded in an unclear manner given the context of the overall regulation –

  • if the intent is for the provider to develop and implement written policies and procedures when an individual with a communicable and contagious medical condition is going to be admitted to the service and the policies and procedures for that individual have to be approved by a medical professional that appears reasonable, but the regulatory section should be reworked to make it clear that only applies to that individual and the circumstances they create.
  • If the intent of the regulatory change is to require that the written policies and procedures for implementation of the "standard precautions" for infection control for the overall organization as contained in the policy and procedures manual be approved by a medical professional that requirement would be unwarranted, unnecessarily burdensome and constitute another unfunded mandate not included in the Burns analysis. Specifically, the "standard precautions for infection control" or just that standard and I'm sure other providers like me took them directly from the standard precautions published by the medical professions and they are therefore in compliance without the need for additional approval. Even if the state/department felt there was too much possibility for variations in what people consider the "standard precautions", they could simply publish a list and of the standard precautions that must be included in the overall organization's policy and procedure manual that would be preapproved and provide a template that could be used by licensing specialist to evaluate their adequacy/implementation without any variation across providers. If the regulation is applied in this manner as written it would create an onerous (and perhaps impossible) burden on the individual provider as they would have to find a medical professional who was willing to take the time to review their "standard precautions" and accept the liability for their approval when they are in no way associated with the organization, which is extremely unlikely; and even if possible would be unnecessarily burdensome of time and possibly cost to the organization.

 RECOMMENDATION: clarify the intent to limit approval to an individual who presents with these concerns and their specific PCP or other medical professional or eliminate the approval provision completely


12 VAC 35 – 106 – 600 – B4 – has a new inclusion requiring security measures that protect records from "fire damage or water damage" which fails all 3 of the criteria relevant to this review: 1st – the provision is not clear nor easily understandable, in fact it is extremely vague and provides no standards or thresholds for the degree of protection required, no indication of what would be considered sufficient protection and opens each individual provider up to the capricious, inconsistent and/or arbitrary interpretations by individual licensing reviewers that ensures unequal/unfair application across the state. 2nd – the provision has no demonstrated necessity for the health, safety or welfare of the individual served, in fact it is totally unrelated to these specific areas for the individual and only serves a regulatory function; but even if it is considered a necessity for that regulatory function there is no indication that the provision is a necessity to accomplish the objective (how many records have been rendered unreviewable due to fire/water damage during the past year?, Past 5 years?). 3rd – the provision fails to minimize the impact on small businesses, as it provides no small business exclusion and depending on how it is eventually interpreted could entail a significant unfunded mandate that would drive some small businesses out of existence. A review of available fire proof storage systems provides clear evidence that this cabinetry is very expensive and given the significant volume of records we are required to retain/store the initial cost of just meeting the fire provision could well be in the tens of thousands of dollars, if the cabinetry has to be waterproof as well we could be looking at $100,000 or more and we (and I suspect many other small businesses) simply do not have those resources available, given the low reimbursement rates and rising staffing cost that exceeds those rates or changes in them; forcing us and others to close, while still confronting the cost of meeting the standard for long-term storage for the prescribed period even after closure. There are additional concerns with this inclusion as well, for example, what about the records where multiple recurrent daily access, quick availability and/or continuous use on the service floor are required. While these records are currently locked in a specially built cabinet that was designed to fit into the decor of the home seamlessly, this requirement, depending on how it is interpreted could force the inclusion of a large hulking metal fire/waterproof cabinet in the middle of the living room, which would further institutionalize the home creating the appearance of the facility and undermining efforts to create a positive home environment like that enjoyed by individuals not receiving HCBS services as envisioned by the federal HCBS service/setting rights. RECOMMENDATIONS: 1) remove the new inclusions completely; 2) amend the inclusions to require providers address known increased risk to the utility of records in storage (i.e. additional precautions if the records are to be stored in a basement that has a history of flooding); 3) clarify and include specific standards for fire/water protection that are affordable and can be implemented in a fair and consistent manner across licensing specialist; or 4) exempt small businesses from this provision to avoid their extinction.


Although I can see the argument that each one of these items individually may not be all that significant, they are not being adopted individually, they are not being considered in the current calculations for the rate rebase and they slowly, incrementally, unnecessarily and inevitably add to the administrative burden/cost of the unfunded mandates that have already become the straw that broke the back of many providers who have had to recently close locations – this just makes it worse and worse. While many of these closures have been blamed on staff availability due to the low reimbursement rates and that is surely a significant factor, the exponentially increased administrative burden of the new regulations have also been a significant factor as they take money away from what could go to pay increases, take time away from supervisory supports to develop and retain good staff, reduce the availability of supervisory staff for service provision and foster high turnover rates in supervisory staff. When I first began operating group homes the entire administrative burden took approximately 25 – 30% time and the rest was spent on direct provision service, now the administrative burden takes 80 – 90% of my time, even though we now serve less people, which leaves very little time for service provision and staff retention supports and really makes the job frustrating, unrewarding and negative which is also contributing to closures




CommentID: 116741