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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  12:00 pm
Commenter: john humphreys

experience as a substitute for degrees in residential settings

12 VAC 35 – 105 – 590 – C7; 12 VAC 35 – 107 – 160-C7 and 12 VAC 35 – 108 – 120-C7 All include the phrase "experience may be substituted for the educational requirement"-this phrase and its prior equivalents have been an extremely problematic inclusion in the regulations for many years, which has been addressed in repeated comments by this writer and more recently expressed as a concern by other regulatory commenters; however, the regulatory inclusions listed above represent the 1st substantive change in this regulatory concern that I am aware of after all these years. Unfortunately, the change is insufficient, counterproductive and creates new unintended concerns: 1st – the change fails to address any of the concerns, possible benefits and negative impacts of this inclusion which have been addressed repeatedly and are reposted below. 2nd – the primary difference of the recent change is removal of the QDD/IDP title association within the section, which is counterproductive both for the regulations protects for individuals served and in addressing the concerns previously noted. By removing the association of the QDDP title from this section of the regulation it divorces the educational substitute from the knowledge, skills and abilities that are essential for providing DD/ID services/supervision, and would presumably allow more generalized experience which neither serves the intent of the regulation nor the health, safety and welfare of the individual served. This is also counterproductive for individuals who wish to employ the educational substitute for their career advancement as in addition to the concerns noted below, it reduces their ability to provide a recognizable, accepted and germane addition to the alphabet soup post sign off on any official documentation, which the regulators appear to value so highly. 3rd – the recent change, perhaps inadvertently (perhaps not), would exclude a registered nurse who is in good standing with the Commonwealth but used one of several other avenues (besides a bachelor’s degree) to obtain their registered nursing certificate from automatic qualification. Given the dedication to care, knowledge, skills and abilities necessary for obtaining a registered nursing qualification, whether they have a bachelor’s degree are not these individuals should surely not be excluded as they currently are due to the change.


Significant additional consideration needs to be given to greatly improving the implementation of this phrase in the regulations not only to prevent grave injustices, but also, to improve individual services and alleviate our severe and growing staffing concerns; given the insufficient reimbursement rates as outlined in this reposting:

Experience may be substituted for the educational requirement.” This 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 is 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.

  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 is 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 and 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 that fall disproportionately on 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 season 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 and in providing the 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).

CommentID: 116743