1. "Group home or community residential service" means a congregate service providing 24-hour direct awake supervision in a community-based home having eight or fewer residents. Services include supervision, supports, counseling, and training in activities of daily living for individuals whose individualized services plan identifies the need for the specific types of services available in this setting.

Comment: This does not allow for least restrictive environment. Providers have operated for many years with staff that sleep. There are measures in place to ensure the individuals are cared for should the need arise. This doesn’t consider electronic supports that have allowed for greater independence. This will also force smaller group homes to increase the capacity of home to cover the costs of bringing in awake staff. This takes away from services being individualized based on the needs of the people in the home.

2. "Systemic deficiency" means violations of regulations documented by the department that demonstrate multiple or repeat defects in the operation of one or more services.

Comment: please evaluate this definition. Providers receive a citation for each founded abuse/neglect case. That does not substantiate systemic deficiencies. Please allow providers time to resolve situations of abuse/neglect and cite when it is clear the resolution isn’t effective, or the same situation continues to occur. In addition, please consider frequency of occurrences, is something that occurs two or more times a systemic deficiency without considering the volume?  Two occurrences out of six would be 33% whereas two out of 100 would be 2%.  It seems that these frequencies would indicate different things and should be considered.

3. 3. For residential and inpatient services, the license identifies the number of individuals each residential location may serve at a given time. For non-residential services, the license identifies the maximum capacity of enrolled individuals the provider may serve at a given time.

Comment: Community Coaching, Community Engagement and Supportive In-Home services should not be included in the requirement for maximum capacity as the program can grow if we have the staff to provide the service.

4. 12VAC35-106-40. Applications

Comment: please provide timeframes in which you will review and process applications.

5. 12VAC35-106-90. Variances.

Comment: Please provide timeframes in which you will review and process variances.

6. 12VAC35-106-160. Consent agreements.

Comment: As an alternative to these agreements being used in lieu of adverse reactions would it be possible to have technical assistance, guidance or consultation between licensing and providers to more effectively communicate and partner?  Having additional regulations and formalized processes feels like we are moving further from effective collaborations. Also, is this in addition to a citation or does it take the place of a citation? Please clarify when a consent agreement would be utilized and what determines adverse action.

7. 12VAC35-106-170. Informal hearings

Comment: please provide timeframes for each step of the process. Please also allow virtual attendance.

8. B. The provider’s full-time executive director or administrator or their designee, shall be on the premises during regular business hours. In the absence of the provider’s full-time executive director or administrator, their designee shall be responsible for ensuring compliance with these regulations and ensuring supervision of the site. 1. In the event the provider has multiple locations, the provider shall ensure each site has an appropriately appointed designee.

Comment: this is an unreasonable expectation for providers who have decided to allow their teams to work remotely. We have administrators available throughout the state, but we do not dictate that they be on site at a specific location. The local designee spends a great amount of time offsite in meetings, visiting sites and other work-related activities, it would be impossible to have this person onsite during all business hours. This person is also permitted to take time off work, we do not require that the person covering their region be on site. We have electronic health records and have numerous people that can set an auditor up with access, it does not have to be the local designee.

9. 2. No person shall be permitted to work in a position that involves direct contact with an individual until an original criminal history background check and registry check has been received by the provider, unless such person works under the direct supervision of another employee for whom a criminal history background check and registry check has been completed in accordance with this section.

Comment: Who is going to pay the DSP Salaries for the 30+ days it may take to receive the background check? We do not have enough DSPs to cover open shifts as is, we certainly cannot have DSP’s waiting and not working, at times, there are delays of up to 60 days on background or registry checks. DSP’s need to be engaging in revenue producing work for agencies to maintain financially. We are not able to provide direct supervision of all DSP’s 24/7. If this is the route we are going to go down, will we begin receiving instant results for both the background and registry checks?

10. 2. Verified education history;

Comment: Would all previous employees be grandfathered in and start verifying employment after regulations go into effect?

11. 4. Evidence of reasonable efforts to verify employment history;

Comment: Is this simply a request to verify dates of employment?

12. Required initial training within 14 days

Comment: please allow providers at least 30 days to complete initial training. There are enough barriers to have someone start, please don’t make it more challenging.

13. Medication Administration

Comment: not all our DSP’s dose medications; therefore, they would never be trained on Medication Administration. Please change this regulation as it only relates to those who must dose medications.

14. 3. All new employees, contractors, volunteers and students shall not work alone until completing all orientation and training required under 12VAC35-106-290 (B) (1)- (2) and demonstrating competency. All new employees, contractors, volunteers and students shall complete all orientation and training required under 12VAC35-106-290 (B)(1)-(2) and demonstrate competency prior to carrying out job responsibilities without supervision. Documentation of competency shall be kept in the employee or contractor’s personnel file.

Comment: does this mean new hires can provide billable services prior to being deemed competent if they are being supervised? In addition, this regulation will create a financial burden for providers, will there be funds to cover these upfront costs until an employee can engage in billable work?

15. B. Some portion of the provider’s regular business hours shall include state business hours to ensure that the department has the ability to conduct unannounced inspections and investigations as required by 12VAC35-106-60. The business hours shall also include enough time for the department to conduct unannounced inspections and investigations.

Comment: how many hours is considered enough time to complete an unannounced inspection/investigation? Many offices are downsizing, and we are allowing remote work so some offices may only be open 2 – 4 hours per day.

16. C. The provider shall submit their regular business hours to the department.

Comment: What is the process for submitting this information?

17. B. Documentation of the interventions that occurred during a crisis or emergency shall become part of his the individual’s record within one day or, one business day if the provider does not provide services to the individual daily.

Comment: please allow providers at least 2 business days. We serve many people in 24/7 settings, but not all staff can upload on the weekends nor is that a priority for on call staff. The goal of on call is to manage emergencies situations, but not file paperwork in the individual’s record. Changes needed to treatment will be communicated with those working with the person immediately.

18. 2. Level II and Level III serious incidents shall be reported using the department's web-based reporting application and by telephone or email to anyone designated by the individual to receive such notice and to the individual's authorized representative within 24 hours of discovery. Reported information shall include the information specified by the department as required in its web-based reporting application, but at least the following: the date, place, and circumstances of the serious incident. For serious injuries and deaths, the reported information shall also include the nature of the individual's injuries or circumstances of the death and any treatment received. For all other Level II and Level III serious incidents, the reported information shall also include the consequences that resulted from the serious incident. Deaths that occur in a hospital as a result of illness or injury occurring when the individual was in a licensed service shall be reported.

Comment: please allow 2 business days for entry. We are managing the incident in real time, often we do not always have the full information and outcome. On call managers are managing remotely and will follow the situation, but allowances to enter within 2 business days would be beneficial. If this continues to be a mandate, please help us understand how DBHDS uses this information when it is entered immediately, will they provide support if needed? If not, please allow 2 business days for entry.  

19. 4. Security measures that protect records from loss including fire damage or water damage, unauthorized alteration, inadvertent or unauthorized access, disclosure of information, and transportation of records between service sites;

Comment: will funds be made available to purchase the cabinets or services that protect against fire and water damage? These cabinets/services are very costly. If there is no plan to provide funds, then please allow providers to continue storage in the same manner as before.