12VAC35-105-170. Corrective Action Plan (F)

While the guidance addresses situations which may arise during the 15 day CAP submission window, it is silent on situations in which the execution of the CAP uncovers further needs or concerns that may call for the modification of the CAP.  The lack of guidance and procedures for these situations have the potential to negatively impact a provider’s ability to implement the MOST meaningful and effective corrective actions that benefit the individuals served.  For that reason, we ask the Department to consider and provide guidance for situations that warrant the modification of a CAP post approval from the Department.

The guidance indicates that the dispute process may be initiated by the provider or the specialist in the event the two parties are not able to come to an agreement related to the citation.  The guidance is silent though on the time or standard for which the two parties must attempt to reach an agreement prior to the initiation of dispute resolution.  This provider would like clarification on how long after the request can the provider expect the resolution processes to take place.

The guidance on pages 2 and 3 also appear to contradict the guidance regarding dispute resolution.  The guidance adds a citation prior to the initiation of any dispute process.  This negatively impacts the provider in two ways.  First, it prevents any dispute resolution from occurring in advance of the issuance of a citation.  Second, should the dispute resolution come out in favor of the provider the guidance is silent as to what will become of the citation issued in advance of the dispute process.  We ask that the Department provide clarity regarding this contradiction and amend the guidance to reflect that citations will not be issued until any disputes are resolved.

The guidance provides the Department 10 days following the resolution meeting to provide a final decision.  We have a concern regarding this timeframe.  Keeping in mind that the CAP process is a critical component of ensuring the safety of the individuals receiving services, we believe this timeframe has the potential to negatively impact the individuals served and ask that the timings associated with the resolution process be more immediate in nature.   

The guidance indicates that “No decisions will be made at the time of [the dispute resolution] meeting and the information will be gathered from the meeting and discussed with the Office of Licensing Associate Director and Director to make a final decision.”  We wish to express concern that the provider will not have a voice of representation when the information gathered from the dispute meeting is presented to the Associate Director and Director. This provision of the guidance creates a potential for a perceived risk of bias and misrepresentation during the dispute resolution process. Therefore, we ask DBHDS to amend this portion to include the Associate Director and/or Director in the information gathering meeting.