Overall Comments:

• We are concerned that the announced original intent was to merely reorganize chapters yet in reading this draft, there are numerous new requirements that add to the onerous and overly administratively burden for providers without any clear evidence of how they add value or quality of services to the individuals that we serve.
• As we have commented in previous Town Hall comments on other public regulations, we ask that all definitions are consistent across all chapters within DBHDS Licensing regulations as well as being consistent with current State Code, and regulatory and guidance documents from other related regulations such as DARS, DMAS, and Human Rights.
• We are requesting accountability from DBHDS in these regulations so that response timeframes from DBHDS are added to all sections where providers have to submit documents or documentation to DBHDS within timeframes.  Whenever providers submit information to DBHDS within a stated timeframe, DBHDS must also be accountable to respond within a stated timeframe.

12VAC35-106-120.C.1
Comment: While we agree that addressing systemic deficiencies is important and we support quality improvement measures, there is a fundamental need for DBHDS to recognize that not all instances of non-compliance involve an underlying systemic problem. 

12VAC35-106-120.C.2
Comment:  As a continuation of the previous comment, we are concerned that true systemic corrections are often complex and may not be readily implemented in the stated narrow timeframe of 60 days.

12VAC35-106-120 E.1. and 2; 120.F.
Comment:  E.1.  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. 

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:  Requiring an onsite Director for a 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.  We recommend contemporary language to reflect the practice of telework.

12VAC35-106-200.C
Comment:  We are concerned that requiring a human services background or related educational degree does not lead to effective business management. These limited credentials should only apply to Human Services divisions that are responsible for service delivery within an organization. Please update ALL regulatory language to be gender neutral---Throughout. C.1-2 states “his” personnel record.

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 conviction but not “serious” enough to be a barrier crime (which are defined in State Code) and #5, this may be onerous to apply to students and volunteers who are never alone providing direct supports.

12VAC35-106-240.D.
Comment: We are VERY concerned about the term “any offense” and seek clarification from DBHDS as to what is meant by “any offense”. The previous section was specific to barrier crimes but “any offense” could open up to traffic violations or simple misdemeanors and this type of self-disclosure is excessive and will further negatively impact recruitment and retention of our workforce.

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 in 2019 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: This section requires a clear definition of a contractor since later sections contain language requiring credentials for contractors.  We assume this would be limited to only those contractors who deliver direct services based on each ISP and not contractors hired by providers to perform specialized management functions.

12VAC35-106-290. Employee training.
Comment: Within this section, there are specific timelines for when employees, contractors, students and volunteers must be trained and we believe that this is both unreasonable and unmanageable since much training is outsourced to other businesses and therefore dependent upon these other businesses’ training schedules.

12VAC35-106-290.B.1a
Comment:  We recommend changing this timeframe to 90 calendar days for First Aid/CPR, behavior intervention training, etc. based on our previous comment.

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.

12VAC35-106-560 B. 1. Requiring random driving record checks.  We are concerned that this is overly burdensome and costly.  Many providers already randomly check their employees over a span of time but do not require new DMV checks on 100% of employees at once. We need clarification whether this apply to all employees, even those that do not drive individuals. 

12VAC35-106-570.B.1 and 3.
Comment:  The language should 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 III incident is met.  This 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 Medicaid 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 is needed to avoid unnecessary future citations during audits and review.

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 either the residential daily rate or group day hourly rate.