Overall Comments:

• For a document that is supposed to only included the reorganizing of existing language into a General Chapter and Specific Service Chapters - there is a lot of new requirements that continue to be onerous and overly administratively burdensome without any clear evidence of how they add value or quality of services to the individuals that we serve.
• Ensure all definitions are consistent across all chapters and are up to date with current code, regulatory and guidance documents. (DMAS, DBHDS, and Human Rights).
• Response timeframes from DBHDS must be added to all sections where providers have to submit documents or documentation to DBHDS within timeframes.

12VAC35-106-20. Definitions
Comment:  Ensure definitions are consistent across all chapters.  Current definitions and the number of definitions across chapters is different.

“Admission date” means the date at which an individual’s services begin.”
Comment:  Providers need to be attentive to admission meaning the date that the services commence rather than the date the provider “approved” the person to begin services.

“Comprehensive Assessment”
Comment: Appreciate the recognition that there are situations where the initial assessment meets the requirements of a comprehensive assessment and that an update is not required.  This increases alignment with DMAS expectations for many services.

“Corrective Action Plan”
Comment:  Address systemic change. This definition/expectation gives no latitude for human error, accidents, and other isolated incidents not indicative of a “systemic issue”.

“Crisis Stabilization” -
Comment:  Revise definition to align with DMAS terminology which does not specify that Crisis Stabilization services be available 24 hours per day or differentiate between community based and residential crisis stabilization -where the latter provides services 24-hours/day.

“Serious Incident Level III, Item 3” - Comment:  Delete to reflect change made in 2020.

“Service Animals” - Comment:  No definition. Add and/or refer to ADA regs.

12VAC35-106-90
Comment:  Request timeframes for responses back from DBHDS.

12VAC35-106-40.D.S
Comment:  Make both dates 60 calendar days to increase consistency and clarity. 40B also references succession plan. Recommend a broader scope such as submitting an organization chart to fulfill requirement.

12VAC35-106-50.A1f
Comment:  Question one conditional license at a time?  Is this a typo that providers may NOT have more than one service on a conditional license? 

12VAC35-106-50.A2f and 3Ae
Comment:  Commission may lower a full license to a conditional license at any time??  Does not allow for due process or explain what process will be used.

12VAC35-10-60
Comment: All records within two hours?? This is unreasonable. Many reasons why this is impossible - rural CSBs? Information from County?  Recommend that it be some records or access to HER within two hours - but not all records.

12VAC35-106-110.D.5
Comment:  How will this be determined?  Recommend context of numbers of individuals served and numbers of locations be taken into consideration.  While looking at systemic issues within one licensed service type is understandable - this broadens the idea across services for a provider with multiple license types.  Distinct services under one organizational license should not be included.  Each service should be looked at distinctly.

12VAC35-106-120.C.1
Comment: We agree that addressing systemic deficiencies is important.  However, there is a need to recognize that not all instances of non-compliance involve an underlying systemic problem. 

12VAC35-106-120.C.2
Comment:  Concern is related to current practices when certain citations are issued.  Providers are now being directed to identify corrective actions that can be completed within 60 days.  This is not reflected in the regulations and flies in the face of “increasing focus on addressing underlying systemic concerns.”  True systemic corrections are often more complex and may not be readily implemented in this narrow timeframe.

12VAC35-106-120.E.
Comment:  Specify the timeframe that the Department has to review plans and determine if they are approved. 

12VAC35-106-120 E.1. and 2; 120.F.
Comment:  E.1. Request timeframe for how far after a deficiency is noted that a CAP can be issues and also the timeframe for response back from DBHDS.  Timeliness is very important so providers are not committing the same error before you’re issued the CAP or it’s long since been resolved by the time you get the CAP.  Timeframes need to be consistent across all offices and departments at DBHDS.  As currently written, this language allows limited opportunity for collaborative problem solving and dialogue between a provider and DBHDS.  E.and F. are not consistent.  If there is disagreement about whether a revised CAP is acceptable, is there an opportunity for discussion, or does the Department automatically issue a plan for the provider, or pursue adverse action?  The language of E.1 and E.2. presumes that the provider is intentionally avoiding submission of an acceptable CAP.  This language and assumption needs to be removed. 

Does “A” Director mean an Assistant Director can make the determination on a CAP, and if so, is there an appeal to “The” Director??

12VAC35-106-120.H.1
Comment:  This language assumes that additional measures are needed without giving consideration that the original action plans are working - but, may take time to fully take hold.

12VAC35-106-190.B.
Comment:  Onsite Director for full 40 hours per week is unreasonable. This doesn’t allow for off-site meetings or increases the notification burden of an acting director when the Director is otherwise available by phone or could respond onsite in a reasonable amount of time.  What adjustments will be made to this stipulation considering increasing shifts to telework?

12VAC35-106-200.C
Comment:  Typo - Shouldn’t “provider” be DBHDS? Credentials for the Executive Director, President or leader of an organization is unreasonable and out-of-date.  Having a human services background or educational degree has nothing to do with running a business successfully. Credentials like this should only apply to Human Services divisions that are responsible for service delivery within an organization. Please be gender neutral throughout. C.1-2 states “his” personnel record.  Not only men are Executive Directors or Administrators.

12VAC35-106-240.B - Criminal background and registry searches.
Comment: Sections # 2 through 5 are NEW requirements and providers may need to develop or revise HR procedures adding additional administrative burden. #2 requiring staff to self-report barrier crime while during employment-and especially “OTHER offenses” as noted below, #3 in terms of filing HR info, #4 would be if staff has a crime but not “serious” enough to be a barrier crime (which are defined in State Code) and #5, for what do providers typically implement for students and volunteers.

12VAC35-106-240.D.
Comment: New annual disclosure statement? Need clarification from DBHDS as to what they mean by “any offense”. The previous section was specific to barrier crimes but “any offense” could open up to traffic violations or simple misdemeanors which is excessive.

106-240 A. 2. Currently documentation has to be submitted and once returned we can terminate but if they are not allowed to work, this could impact some services. 

106-240 A. 3. Seems to contradict 2.

12VAC35-106-250. Personnel records.
A8. Evidence of a valid driver’s license and driving record by the Virginia Department of Motor Vehicles for employees transporting individuals.
Comment:  We have previously commented that this limited focus to ONLY VA DMV is not sensible nor reasonable in areas like NOVA where VA borders contiguous States and have employees from DC and MD—other parts of VA may have employees from NC, WV, Tennessee or Kentucky. Requirement should be  “a valid Driver’s License” period - as licenses are valid regardless of state of issuance.

D. 1-3 - Contractor Requirements & Records
Comment: The above section is an example of where the definition of contractor must be both clear and consistently applied.

12VAC35-106-260. Students and volunteers.
Comment: NEW? Providers must be aware of requirements of a written policy for students and volunteers along with criminal background and TB checks.

12VAC35-106-290. Employee training.
Comment: Within this section, there are specific timelines for when employees, contractors, students and volunteers must be trained.  Unreasonable and unmanageable since most training is dependent upon other businesses training schedules.

12VAC35-106-290.B.1a
Comment::  Please allow a current valid certification from a previous source to employment is acceptable.  Recommend changing timeframe to 90 calendar days for First Aid/CPR, behavior intervention training, etc. Current language creates undue burden on providers.

12VAC35-106-290.B. 2.
Comment:  Specify that this requirement is only for staff whose positions involve medication administration.  Currently reads as though all staff members need to complete this training regardless of whether of not medication administration is job duty.
Not all training in B.1-2 needs annual retraining.
Specify that providers may exempt students and volunteers from needing to have CPR/First Aid training.  Per regulations, students and volunteers are not to be part of the staffing plan. This additional burden decreases the opportunities to have students and volunteers.  It is not realistic to have them engage in extensive orientations and trainings since many are very part-time and have limited schedules to be at a provider location.

12VAC35-106-310
Comment:  Please clarify “actual TB test or screening and TB test if indicated?” B.  What does self-presentation mean? Please define.  Creates additional burden.]

12VAC35-106-340 - Comment: Very prescriptive in nature

12VAC35-106-470. Policies.
Comment:  There are new required policies on succession plan as well as financial risk management procedures.

12VAC35-106-540. Fundraising.
The provider shall not use individuals in its fundraising activities without written permission of the individual and, if applicable, their authorized representative.
Comment: Providers need to be aware that this is a specific “release form” and they may need to insert the phrase fundraising in all photo release forms.

12VAC35-106-560 B. 1. Requiring random driving record checks.  Overly burdensome and costly.  This is an additional expense that begins to add up without any of this being added to the Rate Models. It will likely be passed on to employees, who are already making less than a living wage in many areas/programs. It will not help the current workforce crisis/DSP shortage. Most agencies already have requirements that have to be met by their insurance companies. They do not require new DMV checks on 100% of employees so what would be a random sample. Would this apply to all employees - even those that do not drive clients?  Why require this of employees or contractors who have not client contact to have driving record checked annually.

106-560 C. 6. How can providers govern contracted transportation agencies?

12VAC35-106-570.B.1 and 3.
Comment:  Specify that reporting of allegations of abuse or neglect to the Office of Licensing is only needed when the definition of a Level II or Level II incident is met.  Currently reads as though duplicative reporting is required for all allegations - although events may not meet the definition of Level II or Level III incidents.

570.B.2 - Comment:  Please change notification to AR’s be moved to 1 business day instead of 24 hours. 24 hours is unreasonable and unmanageable.

570.C. - Comment:  Please change 30 days to 30 business days. C.2.(c) - Revise to match guidance that this refers to locations of the same type of license, NOT to all locations of all services across a provider’s organizational license.

12VAC35-106-580. Risk management.  
Comment: There is a requirement for an annual (at least) risk assessment to include assessing staff competency through testing.  The issue is whether DBHDS dictates the testing or will this be up to providers…and a related question as to whether providers can choose to rely on Med Waiver competency requirements for this requirement.

12VAC35-106-590. Monitoring and evaluating service quality.
G3. Designated staff responsible for licensing complaint resolution
Comment: Whenever providers must designate staff - is this designation required in the job description or via communication to the responsible employee?  Clarification needed.

12VAC35-106-720.B. Computers and Internet Access.
Comment: This is a new requirement. Will individuals have access to AT funds to pay for their computer/tablet equipment and monthly internet access fees?  The availability of computers/tablets and internet access is not included in the residential daily rate.

12VAC35-106-730. Access to communication systems in emergencies; emergency telephone numbers.  
Comment: This is NEW - again, additional administrative burden - to “receive tuberculosis education on an annual basis”—the most efficient way for providers to do this is if DBHDS issues information and providers present to all staff and have them document that they received it.