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]
Action Provision of provider statement to any other provider
Stage Fast-Track
Comment Period Ended on 10/14/2020
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9/14/20  5:06 pm
Commenter: Virginia Citizen

Love the intent, the execution needs work

Couple things about this regulation... the intent makes sense and is greatly appreciated, but the language dances around that intent and puts all the pressure in the wrong places.

My first concern was immediately that businesses will be sued by former employees who are denied a new position and then request the statement required by this regulation (perhaps via the Freedom of Information Act).  

But the following excerpt from Virginia Code eases that concern a little:

"§ 8.01-46.1. Disclosure of employment-related information; presumptions; causes of action; definitions.

A. Any employer who, upon request by a person's prospective or current employer, furnishes information about that person's professional conduct, reasons for separation or job performance, including, but not limited to, information contained in any written performance evaluations, shall be immune from civil liability for furnishing such information, provided that the employer is not acting in bad faith. An employer shall be presumed to be acting in good faith. The presumption of good faith shall be rebutted if it is shown by clear and convincing evidence that the employer disclosed such information with knowledge that it was false, or with reckless disregard for whether it is false or not, or with the intent to deliberately mislead."

That's good news.  However, while businesses may have some protection against civil liability, the fact that this regulation requires the provider to give this information in writing seems risky.  

A hiring organization can just as easily obtain the applicant's signed consent for obtaining the information and then that hiring organization can be responsible for getting that to the former employer and then documenting, on their end, the information that was provided to them verbally by the former employer.  

But that only helps a little.  Besides, there needs to be some standardization to "character" "ability" and "fitness for employment," especially since the intent here seems to be to make sure people who were fired for violating someone's human rights doesn't just move onto another agency and continue their despicable behavior.

That said, if that really is the intent, DBHDS has the capability of collecting this information themselves (it's essentially in the CHRIS system already) so why not have them be responsible for this and make it an additional component of the Criminal Background Check?  It wouldn't take much more on their part than an additional check box along the lines of:

"Another licensed-provider concluded founded abuse on the part of this applicant."


"This applicant's employment was terminated from another licensed provider for violations of human rights."

or even...

"This applicant was involved in a founded case of abuse, neglect or exploitation"

There's a brand new Incident Management Unit that doesn't seem to have much to do beyond reading CHRIS reports anyway, so put them in charge of it.

There would be your registry and you could detail it with as much or as little information as you want.  Folks who got fired for being really awful wouldn't be able to be hired again.  Folks who did something less awful and were retrained could be hired again and DBHDS could decide if that less awful event followed them around. 

Ultimately, if you want this wolf to bite then you're gonna have to give it teeth, and you're gonna have to sick it on the right meat.

The way its written now is going to put providers in defense-mode and we're going to miss a good opportunity to stop bad people from doing more bad things.  


CommentID: 84881