Comments re: proposed language changes; need for experience equivalent for QDDP
There are two related substantive changes in 12VAC35-105-170 and 620.D.3 that will have a significant impact on all providers. Both sections contain provider expectations of “prevent recurrence” which is an impossible standard to meet. Perfection is an unachievable standard. The “Indicators” agreed to between DBHDS and DOJ, and approved by the Court on January 14, 2020, state “prevent or mitigate future risks of harm” (page 36) and “prevent or substantially mitigate risks of harm (page 33). The proposed regulations including the absolute “prevent recurrence” are above and beyond the standard agreed to between DOJ, DBHDS and Judge Gibney. We recommend the deletion of Section 170H
Overall concern that the complexity and intensity of the proposed Risk Management Plan expectations are such that they may be beyond many small organization's ability to meet without the hiring of a separate "Compliance Officer" or "Risk Manager". Administrative expectations and burden for DD Waiver providers is already extensive and expensive. Because of the historically low DD Waiver provider rates, the continued addition of administrative burden prevents providers from providing “living wages” to DSPs as well as other supports that provide value to the individuals we serve. The Risk Management function can be carried out by multiple staff that have expertise in different subject matter, not just one. Recommend that providers be given the option of having a risk management team that would have a collective knowledge base of root cause analysis, investigations, risk management, etc.
Based on recent OL audits of providers, there seems to be confusion that arises when the OL staff looks at some of the proposed items in the Risk Management Plan "in a vacuum".
For example, OL staff has asked to see quarterly Level 1 reviews - but, without looking at the individual’s record where there is person-centered context. Level 1 incidents are most often part of a person’s baseline and/or are very personalized. These would not be addressed in an “organizational” Risk Assessment Plan with the exception that the treatment team would follow-up when there are increased frequencies and/or patterns.
Qualified developmental disability professional or QDDP Experience option is needed in lieu of Bachelor’s Degree. Many QDDPs have achieved a 5-year+ experience standard but do not have degrees. Definition needs to clearly state experience option.
ISP Regulations are using the term Individual Service Plan. Person-centered language uses Individual “Support” Plan. “Service” is used throughout document as in “receives services” instead of “is provided supports”.
Level 1 Serious Incident Clarity is needed between Level 1 and Level II and III. To ensure providers understand the Level 1 serious incident definition, the regulation should include a list of sample incidents that constitute a Level 1 serious incident (e.g. bruises, minor sprain, etc.) Adding this information will help reduce CHRIS serious incident reporting errors and increase the likelihood that providers address all Level 1 incidents in their quarterly review.
12VAC35-105-160 Reviews by Dept; Requests for Info; Required Reporting
B. Further clarity is needed that “all information requested” applies to the current inspection and/or investigation currently under review. As currently written, this language may be interpreted as a “blanket request”. Include specifics as to “x, y and z” etc.
12VAC35-105-170. Corrective Action Plan
170.C and 170.H. - While it is reasonable for a provider to develop 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 (albeit not all cited violations are the result of systemic deficiencies), the standard is raised to an unattainable level in Section 170.H to “prevent recurrence”. This is unreasonable. The “Indicators” agreed to between DBHDS and DOJ, and approved by the Court on January 14, 2020, state “prevent or mitigate future risks of harm” (page 36) and “prevent or substantially mitigate risks of harm (page 33). The proposed regulations including the absolute “prevent recurrence” are above and beyond the standard agreed to between DOJ, DBHDS and Judge Gibney. We recommend the deletion of Section 170H. This additional burden must not be placed upon providers.
What is considered a repeat and systemic citation for a provider that operates multiple services via multiple sites throughout multiple regions of the Commonwealth? Please define.
12VAC35-105-520 - Risk Management
Suggested Language: A. The provider shall designate a person(s) responsible for the risk management function who has completed department approved training or equivalent experience, which shall include training related to risk management, understanding of individual risk screening, conducting investigations, root cause analysis, and the use of data to identify risk patterns and trends.
COMMENT: The purpose for the addition of (s) in 12VAC35-105-520.A is to allow for multiple individuals to possess risk management functions within their position description as necessary depending on where they are the subject matter expert. Additionally, this allows for contract positions to provide a risk management analysis from data collection.
Also states that the “designated person” for risk management will complete “department approved training”. We have concerns about the qualifying statement of “department approved training”. Will DBHDS be the designated provider of this training? Will there be a list of approved trainings? It would improve consistency across the state if DBHDS provided the training and the language read “complete training provided or approved by DBHDS”.