Initially, I think it is important to note that the competencies program expansion and checklist were not included in the original Burns analysis for establishing the current reimbursement rate and as a result represents an additional significant (time, money and resources) unfunded mandate in its current form and efforts should be made to decrease not increase the burden imposed, until compensation rates are adjusted to permit compliance without further reductions in relative pay levels which can only worsen the staffing crisis that confronts providers in the Commonwealth.

The annual update requirement and the five-year re-review should be eliminated. Proficiency is defined by demonstration of all aspects of the skill or action “on a routine basis in practice”, but an annual update and the documentation of additional observations at the five-year review do not measure this it only measures a person’s ability to adequately demonstrate the skill or action on a couple of specific occasions, typically when they know they’re being observed/evaluated. Thus, the states instrument fails to measure the outcome it attempts to prove; rendering it a useless unfunded paperwork requirement completely unrelated to actual proficiency. After proficiency is initially established, tracking lapses in any skill or action and comparing them to the total number of times that skill/action was attempted/warranted would be the only way to truly measure whether or not it was being demonstrated “on a routine basis in practice”. This type of tracking not only measures the outcome better but is also more conducive to achieving the goals stated on page 1 in real time rather than an annual or five-year timeframe. Currently, competency lapses in any area are tracked and corrective action is taken as a part of our risk management and quality review program. The state could easily make this a criteria in the often promised required thresholds and triggers areas, providing better measurement, quicker corrective action and a significant reduction in the onerous burden of this unfunded mandate.

The requirements for the advanced competencies are internally contradictory, include new provisions that would create a significant unfunded mandate, are in direct conflict with HCBS choice rights and have no basis in fact that warrants their inclusion. 1^st – contradictory – Page 9 clearly reads that to serve individuals in higher tiers all 3 the advanced competencies must be completed; however, in the graph on page 11 the box indicates that only the applicable advanced competencies need to be completed – hope page 11 is right – should be, but clarification is required. 2^nd – significant unfunded mandate – the requirement for advanced competency training to be accessed through “ nationally recognized or developed or approved by a qualified professional” with a very exclusive list of who qualifies could be a significantly huge unfunded mandate in that it would require a provider to either contract with a national training agency who has a near monopoly on that type of training making it very expensive or have qualified individuals in the house, who given the qualifications would be very expensive as well. This huge unfunded mandate would fall particularly hard on small providers who would have to make a choice between not providing services to individuals in the higher tiers (which would unfairly preclude them from obtaining the higher reimbursement rates that go along with those tiers and thus significantly unfairly disadvantaged the small business); or pay the significant unfunded mandate and reduce the starting and relative wages (they get no increase when the rest of the world does) of their staff, until they can’t find anymore; or they’re just driven under by trying either way until they are eventually out of business. Remember, the Burns analysis made no provision for “profit” and laughed at the idea, indicating with economies of scale you could probably “find some somewhere” – but small businesses do not have the economies of scale and the current mandate is already causing hardship adding this to it could well cause destruction. 3^rd – HCBS choice rights infringed – Individuals would find their HCBS rights seriously curtailed, universally because as small providers go out of business individuals are left with only large bureaucratic providers to choose among and specifically individuals who through no fault of their own find themselves in higher tiers would also find their choices significantly reduced, as small providers who could not afford the cost would be excluded from the pool of available choices, forcing them into large bureaucratic organizations. 4^th – unwarranted changes – there is no established basis in fact which makes this provision necessary, given the current training requirements for behavioral supports, health and medication management which already meet the qualifications listed, all of the materials necessary to train for these competencies are already provided and individuals can obtain the competencies without additional specific trainings in most cases and current regulations requiring the provider to demonstrate the ability to meet the Individual’s needs are sufficient without these provisions. Recommend clarification that any additional trainings required to meet this standard would only be applicable on an individually assessed need not as a general requirement or exemption/provision for the protections of small businesses from the requirement as required by the administrative process act.

The requirement in competency 3 that all “must be confirmed as competent in all of the skills in competency area 3 prior to working in the absence of staff determined proficient in this area” is unworkable, creates perverse incentives and will be counterproductive for individual served.

1^st workability – as written a DSP has to demonstrate competency in “all of the skills” (apparently allowing none to be marked as not applicable N/A), this could take a very long time for a 3^rd shift DSP who only works during hours of sleep in a home where people typically sleep through the night making 3.3, 3.4, 3.5, 3.9, 3.8 and 3.10 very difficult to demonstrate when they may have only none are very rare natural opportunities to demonstrate the skill across a year and requiring that there be 2 persons on the 3^rd shift until the 2 opportunities appear would be a huge unfunded mandate small businesses simply could not afford. While you may think we could require that the new 3^rd shift DSP work day shifts until the skills are demonstrated, this would not be possible for a part-time individual who has a day job (eliminating them from the applicant pool and making a difficult to fill position much more difficult) and it would create an additional unfunded mandate as you had to cover both shifts while trying to assure competencies and skills the DSP will never use. An additional workability concern is the confirmation process, I read the 2 confirmations requirement as 2 separate observations (which could be by the same supervisor); however, other commentators appear to believe it requires 2 separate supervisors to sign off, if they are correct this should be reduced to 1 supervisor to accommodate small businesses where only one may be available.

 2^nd perverse incentives – this requirement encourages providers to rush the process of determining competency which is directly counter to the 2^nd claimed goal “building skills” on page 1 of the protocol as the time to build would not be available, the focus will be on obtaining 2 demonstrations, which would also be counterproductive for goal 1 quality of service in the long run. Many of the observational indicators includes requirements for the DSP to “describe” or “explain” which theoretically could be done 2 days in a row or twice in the same day to confirm competency, a DSP could demonstrate competency in proper data entry by getting it right 2 days in row, even if no significant events to record occur during those days; all of which would meet the competency requirement but not represent the building of skills that we work so diligently to achieve now over already fairly short time frames. Good providers use questions to test these knowledge areas across time (we schedule them across the 1^st week, 3^rd week and 6^th week) in order to ensure information retention and reinforce actual examples where the information was required in their service experience, which provides a much better assurance of competency. However, under this provision diligent providers, who assure a skill competency is achieved before they allow independent performance of the skill, would not be allowed to leave a new DSP providing other services where they have been deemed competent for an individual for an hour or 2 in the afternoon, if the DSP had not fully mastered the tooth brushing or some other non-applicable competency for that timeframe which becomes another unnecessary unfunded mandate that incentivizes reduced diligence in building actual skills/competency. Less diligent providers would be incentivized to just pencil whip through the competencies and use their completion as a rationale to forgo additional skill building efforts, even when needed.

3^rd – counterproductive for service quality –a staff stressed provider would be incentivized to encourage frequent repetitions of skill demonstration opportunities that are unnecessary for the individual, just so they can establish the competency and allow the new DSP to proceed to provide independent services. Even a very good provider attempting to establish competency would be required to create situations that are distressing for the individual served – consider 3.11 the observational indicator is “follows evacuation procedures correctly” if this is to be determined by fire or evacuation drills it will significantly increase the number of drills the Individuals served have to suffer through and in our experience this will decrease not only their receptivity to drills but also their ability/motivation to respond in an actual emergency, as when we did them more frequently, individuals served would complain that it was just another drill and some refuse to discontinue their activities or leave, making excessive drills extremely counterproductive for individual safety, but apparently required by this guidance document.

Several other areas of note:

•  in the checklist page 5 of 8 prior has an*, but there is no reference note for the asterisk what is its meaning?
• The guidance document and the checklist introduction are inconsistent the guidance document on page 7 of 11 indicates that to establish as competent “all of the skills or actions in column 2” (observational indicators) are required; however, the checklist introduction indicates that column 2 provides only optional examples and that they are not required – clarification essential
• in the guidance document on page 7 of 11 (in the critical information box) it indicates that in the retest a score of 80% documents “proficiency in the identified area or areas”, will the same standard be applied to determining proficiency in skill demonstration were a success rate of 80% demonstrates “on a routine basis in practice” – since no one is perfect (at least not anyone who has applied so far), if 80% is not the standard what is?
• in that same box the phrase “from the date of that initial 180 day review” is also confusing is that from the date it started, from the date the 180 days ended?
• the last sentence in the box on page 7 of 11 in the guidance document is also inconsistent with remainder of the document, if competency is all that has to be demonstrated for the provider to submit billing during the initial 180 days, why would the standard for billing be increased to proficiency post the 180 day review
• both documents indicate that competent is the “bare minimum required for acceptability” where proficiency establishes an “ongoing level of ability that is above the minimum”; however, the only real distinction provided in the definitions is “not on a routine basis” for competent and “on a routine basis in practice” for proficient, so clearly the level of skill demonstration is the same and it is very difficult to go above the minimum in the actual skill so frequency not skills are the determining factor. It is also important to note, that this factor makes the retraining/retesting of the original curriculum an unnecessary unfunded mandate when knowledge/skill are not the issue but the motivation of the individual to perform what they already know consistently is the only relevant issue.

• if taken at its word, this process would require all providers to develop a level of proficiency in all DSPs that would make supervision minimally or completely unnecessary, which is not a realistic end state given the applicant pool we can attract due to the low wages required by the current reimbursement rate – if all DSPs are deemed proficient is DBHDS willing to accept the almost total absence of qualified staff supervision in an individual home (which would appear to be inconsistent with other regulations) and if not then why would they require such a high standard be achieved by everyone when it is not necessary given the supervision requirements contained in other areas of the regulations.

   

  Remember each and every individual unfunded mandate uniquely and linearly decreases the compensation we can provide to support staff, a seemingly small cost of $2000 represents a dollar per hour for a single full time DSP or $.20 an hour for 10 full time DSPs for a year and more than double that impact for part-timers; so the funds available for the entry wage and our subsequent raises have already been significantly reduced by the unfunded enhanced competency requirements and would be reduced further by the excessive additional unfunded mandates contained in this guidance document –the current average wage in Virginia is already below the average wage at McDonald’s – how can the state justify calling them professionals, requiring we trained them up to professional standards but only make it possible to pay them unskilled labor rates.