Objection to Regulatory Action

There are two related substantive changes (12VAC35-105-170 H. and 620 D.3.) from the version of the regulations published at the proposed stage which will have a substantial impact on all providers.  Both contain the expectation that providers, if cited for any violation of any regulation, will produce and implement a corrective action plan that will prevent recurrence.

While in 12VAC35-105-170 C the provider is required to produce a corrective action plan which includes a detailed description of the actions to be taken that will minimize the possibility that the violation will occur again and correct any systemic deficiencies, the standard is raised to an unattainable level in 170 H where if the provider determines that a corrective action plan was fully implemented but did not prevent recurrence additional steps are required to meet the standard and are now expected to prevent recurrence.   In 620 D the provider is required to include their plan for accomplishing the expectation to prevent recurrence as part of their Quality Improvement strategy.

We object to the change in principle as it is an impossible standard to meet – the scope of the regulatory authority is very broad and deals with everything from physical plant standards and maintenance to the development and implementation of services plans, care for the health and welfare of a wide variety of ages and disability groups, monitoring and maintaining health, nutrition and personal care, and supporting all aspects of life in the community.  There are a multitude of actions, occurrences, circumstances and/or instances of human behavior that can interfere with any path to perfection. 

To expect a provider to develop a corrective action plan (CAP) which is formulated to ensure that no actions, occurrences, circumstances and/or instances of human behavior, which may have contributed to the original citation, will prevent recurrence is asking more than should be expected. To be accepted as a valid CAP also requires that it meets that standard in the judgement and interpretation of the Licensing Specialist.  Failure to meet the expectations in the CAP development can result in an additional citation.

To expect a provider to implement a CAP which is formulated to ensure that no actions, occurrences, circumstances and/or instances of human behavior, which may have contributed to the citation will prevent recurrence is also asking more than should be expected. There are a multitude of actions, occurrences, circumstances and/or instances of human behavior that can interfere with any path to perfection.  Failure to meet the expectations can result in an additional citation.

12VAC35-105-170 H. and 12VAC35-105-D.3. should be removed from the Final regulations.