--

Agency policy states that employees are to notify HR if charged with a barrier crime during the course of employment.  It would not be cost effective and cause an administrative burden to complete 600+ criminial history checks annually, as well as obtain annual disclosure statements from each employee.

Could there be one section just for definitions that could be used for chapters 106, 107, and 108?

Case management service or support coordination service - means services that can include assistance to individuals and their family members in accessing needed services that are responsive to the individual's needs and desires. - Responsive to needs, yes, but desires seems broad, suggest changing to preferences

Crisis Stabilization - Please ensure definitions are consistent with forthcoming changes related to Project Bravo.

Serious Incident - Thank you for the inclusion of WRAP.  This is an important, but limiting addition; there are other applicable, relevant concepts, such as Psychiatric Advance Directives.  More importantly, clearly stating that voluntary psychiatric hospitalizations are planned hospitalizations will decrease confusion and demonstrate a recognition that, unlike surgical procedures, psychiatric inpatient care is not scheduled days or weeks in advance.

Serious Incident - Level III, item 3.  Remove to reflect the change made in 2020.

Add a definition for Service Animal

We would like to recommend listing all licenses here as the ASAM levels are missing as well as the ACT (small, medium, and large).

I wrote the wrong section on the subject/title of my last comment. Subject: 12VAC35-106-30 Licenses. Recommendation to list all licenses here as ASAM and ACT (small, medium, and large) are missing. 

Southside Behavioral Health complies with regulatory requirements. As DBHDS expectations and requirements burgeon across all of its departments, it is increasingly challenging to meet requirements with current staff. Southside Behavioral Health is requesting consideration of funding for additional administrative and/or quality assurance staff to meet expectations. Consideration is also requested for DBHDS to partner with providers in the drafting of future regulations and guidance documents prior to the public comment period to gather input on implementation impacts.

12VAC35-106-40 Applications

• Request timeframes for a response back from DBHDS

12VAC35-106-60 Inspection Requirements

• Two hours may not be enough time for rural CSBs or agencies with multiple locations.

12VAC35-106-80 Changes to Licenses and notifications to the department

• Previous versions of regulations give a timeframe of 45 days request to keep 45 calendar days instead of changing to 45 business days.
• In regards to modifications of service descriptions please provide more detail either within the regulations or in a guidance document. Is this meant to imply that all program revisions need to be submitted, along with the service modification form?

12VAC35-106-90 Variances

• Request timeframes for response back from DBHDS

12VAC35-106-110 Compliance

• In regards to section B, how will this be determined?
• (B)(5) uses the word defects is this perhaps a typo? Should it be deficiencies?

12VAC35-106-120 Corrective Action Plan

• Request timeframes for a response back from DBHDS.
• While addressing systemic deficiencies is important it is important to recognize that not all instances of non-compliance are systemic.

12VAC35-106-190 Organizational Structure

• (B) What adjustments will be made to this stipulation considering recent events and increasing telework? Directors often have out-of-town meetings and are only available by phone will they need to designate an acting director every time they are away from the premises?

12VAC35-106-200 Executive Director or Administrator

• (C)(1-2) Please change his to their as it is more gender-neutral.

12VAC35-106-240 Criminal Background and Registry Searches

• (2-3) Thank you for this addition
• (D) The addition of “annual” is confusing, please give additional information here. Do we need to ask all employees for an annual disclosure statement?

12VAC35-106-250 Personnel Records

• (8) Please rephrase so it is clear that any valid driver’s license is acceptable. We have many employees from North Carolina as we are on the VA/NC line.

12VAC35-106-290 Employee Training

• (1) Typo in the number of days for initial training 14 needs to be changed to 15.
• (2) Specify that medication administration training is only for staff whose positions involve medication administration.

12VAC35-106-300 Notification of Policy Changes

• (B) Request that DBHDS provides guidance with examples of “substantive changes”. Does this mean that DBHDS has to approve changes to a provider’s policies?

12VAC35-106-310 Tuberculosis Screening

• (B) what does self-presentation mean, please define.
• (B) Additional administrative burden with additional annual training.

12VAC35-106-480 Emergency Medical Information

• (A)(6) Including details of medical protocols on a face sheet can make this document cumbersome and more difficult for emergency medical personnel to use.  Recommend this be revised so that the face sheet lists the types of protocols a person may have, but that the details be maintained separately and be readily available for EMS personnel.
• (A)(9) Does this requirement apply to all services as it would seem to be needed more for residential programs?

12VAC35-106-500 Service Description Requirements

• Please consider revising so that service descriptions are to be readily available for people to review, without implying a need to post on the walls in residential settings such as ICF/IIDs and Group Homes, as this detracts from having the environment look and feel like a typical home in a community-based setting.

12VAC35-106-570 Reporting to the Department

• (C) Request to change to 30 business days.

12VAC35-106-589 Risk Management

• (C)(2) What is DBHDS looking for to test staff competence?

12VAC35-106-590 Monitoring and Evaluating Service Quality

• Having an Office of Human Rights process and an Office of Licensing process will be confusing to consumers.

12VAC35-106-720 Computers and Internet Access

• Recommend relocation to the residential services chapter, as this has limited applicability to other services.

Wondering about language that gives the individual the choice to deny transfer to another service should they choose?

The MPNN CSB would like to respectfully appeal the proposed Medication Administration within 30 calendar days of hire.  As this proposed regulation resides in the General Chapter 12VAC35-106-290, it makes it mandatory for all clinically oriented staff, rather than the select few who will actually be tasked with administration of medications.  We believe this is both unnecessary for the vast majority of staff and poses a potential safety risk in that staff with no assigned professional duties in the realm of medication administration, now having the certification to do so.  We believe that this training needs to be targeted to only those presented with this responsibility.  If the purpose behind this regulatory proposal is a clinical work force with increased medication awareness, we do see the benefit to all service staff having a better understanding of basic terminology, types of medications, and common side effects, and would not be opposed to such a training mandate.  We thank you for your time and consideration.

Please reconsider the medication training requirement.  Medication Management is a 32 hour course and would be difficult and a burden to obtain within 30 days.  Also, having all staff complete such an in dept and lengthy course would also be a burden to instructors as well as the program.   Staff that are not required to administer medication as part of their position should be exempt from this training or be permitted to take a more condensed version.

"Systemic Deficiency" - the definition reads violations of regulations documented by the department that demonstrate multiple or repeated defects in the operation of one of more service.  

Because there are not clear parameters for multiple or repeated - OL has already interpreted this to the most extreme measure in a recent CAP for our organization.    We received 2 CAPS for the same regulation but for very different issues that did not reflect a systemic issue within the organization.   Many regulations encompass various systems, both internal and external, therefore more than one citation of the same regulation does not necessarily constitute a systemic deficiency within the organization.  I am happy to provide concrete examples if that would be helpful.

Annual TB education will cause an extra administrative burden

12VAC35-106-60 (F) - Please consider changing the language to "the majority or most" records or information shall be made available to department staff with two hours of the request. Two hours is a short period of time to gather all information for small agencies with limited staff. 

12VAC35-105-290 (B,1) - Required initial training: Within 14 business days. Is this a typo & should it be 15 business days?

12VAC35-106-290 (2) - Please reconsider the medication requirement "within 30 days following employee or contractor's start date". This requirement would be impossible to achieve. The requirement would put extra burden on the instructor and agency to complete timely with maintaining compliance to the regulation. 

A.6 - Three references which support the character, ability and fitness for employment

1. please define -"support the character, ability and fitness for employment"
2. Does this mean that we are to receive employment references as well as personal references?
3. It is very difficult and often impossible to get employers to complete a simple verification of employment with basic information.  This would add an additional undue hardship to seek out these references, much less actually get them returned.  In addition, it opens agencies up to liability of slander among other things that may result in a negative connotation.

1. 106-20 Definition of Emergency Services (Crisis Intervention) – please make sure that the definition of ES is consistent with the forthcoming Project Bravo plans for Crisis Intervention Services.  If there will be different expectations between DMAS and DBDHS’ definitions of what constitutes CI services please clarify the distinct different between ES and CI now.
2. 106-20 Definition of OP services – the definition includes the term hourly which could be taken to mean that any time frame less than 60 minutes is not meeting the definition of services despite DMAS’ approval to bill in smaller increments (15 min blocks).
3. 106-20 Definition of Serious Incident – in addition to using the term WRAP in item 4 of a level two incident please consider including different types of advance planning to include Psychiatric Advance Directives, etc.  It is important to acknowledge that voluntary admissions are planned admissions and not indicative of an emergency and therefore should not be CHRIS reportable.
4. 106-20 Definition of Serious Incident – Level III number 3.  Please remove to bring definition into alignment with changes made in 2020.  Level II number 2 please clarify that if a competent adult does not a sexual assault reported to CHRIS that organizations are not required to report.
5. 106-20 – Definition of Succession plan.  Please consider including an exemption for CSB as there is no specific “license holder” at a CSB.
6. 106-20 – Consider adding a definition of a service animal to be alignment with ADA definition of a service animal
7. 106-20 – SAIOP and SAOP definitions -- Please add ASAM levels to definitions to any services that have specific ASAM level requirements
8. 106-20 – definition of systemic deficiency – do you mean to use the word defects or is this supposed to be deficiencies?  Please be more specific as to what “multiple” means in context of the size and scope of an organization?
9. 106-30 – Please add licenses for Small, Medium and Large ACT teams such as SAIOP and SAOP.
10. 106-40 D.2 – please make both timelines 60 calendars days so they are consistent.  Please add timelines for DBHDS to respond to initial applications and other follow up requests.
11. 106-50.2.f /50-3.e – The commissioner may lower a license at any time?  This seems rather capricious.  Shouldn’t this only be as a last resort after certain conditions are met such as repeated failures to fix a problem?   The way this reads a provider could receive 1 CAP and end up with a reduced license. The conditions under which this punishment could happen and the due process afforded a provider need to be spelled out.
12. 106-60 – expecting every record needed within 2 hours of request might be an untenable requirement due to things such as travel distances for some CSBs as well as having to potentially access paper records located in storage.  Please modify this to state that access to the EHR within 2 hours and any paper, scanned, or County documents/records within 1 business day.
13. 106-80 A – please specify the time frame that DBHDS has to respond to any service modification requests and make sure they are in alignment.  Currently the guidance is that DBHDS has 60 days to process so that actually means that a provider has to submit 60 days ahead of time in order to give DBHDS their allotted 60 days prior to implementing the change.
14. 106-80 A.4 and E.5 – does this mean that every time a CSB updates a service description they have to send to DBHDS with a service modification form for review and approval?
15. 106-80.E.8 – is this inability to service a specific individual or is this intended to address at a service level?
16. 106-80. A and 80.E – several of these items overlap including geographic location/office locations and service descriptions.
17. 106.90 – please include timeframes in which DBDHS is required to respond in writing recommend within 30 calendar days.
18. 106-110 B.5 –Please be more specific as to what “multiple” means in context of the size and scope of an organization?  Do you mean to use the word defects or deficiencies?
19. 106-120 – Please clarify that not all errors resulting in a CAP are indicative of a “systemic deficiency” even if there are several of the same errors and therefore systemic issues do not need to be documented to with each CAP.  In organizations as large as CSBs, serving thousands of clients and with hundreds of employees, there can be instances of just human error despite the robustness of systems put in place to meet all reporting regulations.  
20. 106-20-- Current guidance from the department has been that CAPs are to be completed within 60 days.  This is often not enough time to complete items (such as implementing a training for several hundred staff) and goes against the idea that some deficiencies are “systemic” and therefore require a systemic response (changing policies, developing SOPs, modifying/developing forms).  Please consider spelling out expectations about timelines for implementation and completion of CAPs.
21. 106-20.E – please include a timeframe indicating the timeframe in which DBHDS is required to respond (accept/reject) a CAP.  Please include a timeframe indicating how far after a deficiency DBHDS is allowed to issue a CAP (for example for an error noted by DBHDS on January 1 can they still issue a CAP on July 1).  These timelines regarding CAPs need to be consistent across all departments and units charged with issuing CAPs to organizations so that there is consistency and organizations don’t inadvertently miss a timeline due to confusion as to which department/unit issued the CAP.
22. 406-120 E. 1 and 2 – Please modify this to include a collaborative process in developing an acceptable CAP prior to just dictating a plan that may or may not be able to be implemented by the organization?  So, for E.2 the department’s next step is go straight to punishing an organization?  This regulation reads as if organizations that fail to get a CAP “right” within two tries is intentionally trying to get away with something as opposed to genuine misunderstanding.  Building in more collaborative language will help facilitate better working relationships between DBHDS and organizations. 
23. 106-120. F – Appealing to the licensing supervisor’s supervisor in “collaboration” with a director – does this mean the director is there and available for the organization to speak to or is everything run through the specialist and they got to collaborate and relay information back?  Is there a way to appeal to “the” director of licensing or can they delegate to others?  If so, are organizations also allowed to have their directors delegate any appeals to “a” director for their choosing?
24. 106-180 – please include language that CSBs are exempted from this requirement as they do not operate in this manner
25. 106-190 – the executive director shall be on the premises during regular business hours?  CSB’s often have regular business hours that cover more than 12 hours each day.  Does this mean that if an ED is off site for a couple of hours for a meeting or even out of town for a conference but available by phone/email that there has to be someone officially appointed in their place?   Please clarify what “ensuring” each site has an “appropriately” appointed designee would look like/require.   How does telework impact this requirement?  If and ED is working from home for the day but responsive to requests does this equal being on the premises?
26. 106-200 – DBHDS should review all regulations to ensure compliance with gender neutral language.  Is the intent of this requirement that each executive director has a personnel file on file with the organization or does this mean that the ED needs to submit their education and prior experience verification to DBHDS?
27. 106-240 A.1. – please add clarification regarding exceptions for peers. Specifically which timeframes that will allow certain barrier crimes are waived.
28. 106-240 D.1 – re: an “annual” disclosure from an “applicant.” Should “annual” be removed if this is regarding job applicants? Is this a way for organizations to get around the “ban the box” initiatives throughout the state? Is this only for barrier crimes or is this for any crime and or pending charges?   Or is this statement intended to say from employee?  If so, this is yet another unfunded mandate from the department that will take up significant resources and time (particularly for organizations that have hundreds of employees) when most employees will not have anything to discover.
29. 106-250-2 – How should organizations verify high school educations?  Also, what happens when transcripts are being held hostage by institutions due to an applicant owing the institution money?
30. 106-250 – Are organizations able to accept driver’s license issued by a different state?  What if the applicant is moving from another state and therefore there is no driving record in the state of Virginia?  Wording makes it seem as if only Virginia documents will be accepted.
31. 106-250.D – does this also apply to individuals hired through temp agencies?
32. 106-280.D – How does an organization address this for positions that do not serve a specific population and are more a generalist?  Also, what about job descriptions that are generalized across various positions in various programs such as a “therapist II” position that resides in all the licensed programs throughout the agency?
33. 106-290 B.1.  Is 14 business days a typo?  Please modify to 15 business days for a full three weeks. For 290.B.1.A does this also include the actual training in the behavior management intervention?  If so please increase the time to 60 business days for that specific part to allow for time to access quarterly trainings.
34. 106-290.2.A/B  Please increase the time frame in which to get this completed to 60 business days to allow for sufficient time to access training opportunities.  Please also clarify that if a new employee comes in with valid CPR/FA, behavior intervention training, and/or Medication administration training from a different employer that is accepted to meet these criteria.  Please also clarify if this is required for medical staff (doctors, nurses, PAs, etc.) or is it accepted that their formal education was sufficient training?
35.   106-290.C – Please reconsider the wording on this.  Not all items listed in 290.B.1 and 2 are required or necessary annually specifically, things such as the objectives and philosophy of the provider, personnel policies/grievance procedures, etc.  The ever increasing training requirements from both DBHDS, DMAS and the MCOs are putting significant stress on the system, are unfunded mandates, and end up taking away considerable time from providing client services.
36. 106-300.B. – please provide clarification as to what substantive changes means?  Organizations are constantly reviewing and revising policies.  Does DBHDS want organization to send them a copy each time there is a modification?  Does this mean that DBHDS has to approve the changes or just that they are informed?  Also please clarify who we would be sending them to?
37. 106-310.  Thank you for removing the annual recertification for co-occurring OP/Residential program.
38. 106-320.A – please clarify if a contractor includes staff hired through a temporary agency.  For contract employees is a review of the contract annually sufficient for a performance review?
39. 106-370.C – Can this please be modified to provide information regarding business hours to DBHDS upon request?  If not, who are we sending this information to and how often?
40. 106-460-B – isn’t this a duplication of 106-590 F?  Also does this match information in the Human Rights regulations in 115-175?
41. 106-470.1 – Again, succession planning does not pertain to government entities.  Please clarify.
42. 106-480 – In an electronic health record all this information is readily accessible and not necessary to be placed on a “face sheet”.  Face sheet terminology is a holdover from the time of paper charts.  Requiring all this information to be located on the initial screen of a client record will make it unwieldy and duplicative as information regarding medical interventions and medications, diagnoses, etc are located in other places. 
43. 106-480.9 – is this excessive amount of information related to pregnancy necessary for all programs?  This is excessive and really only needed for residential programs.
44. 106-490.B. – please further define emergency and crisis.  Also please increase the time from one business day as this is restrictive depending on the extent of the emergency/crisis.
45. 106-500 – please further define post.  Does this mean putting up on the walls of the building or is making available via internet acceptable?
46. 106-560 – Would the organization be required to check all employee’s and contractors driving records even if they do not provide transportation to clients?  If not, please clarify.
47. 106-570. B. -- Please increase in the time frame of reporting to CHRIS from 24 hours to the next business day.  There is no one at the department to review the reports over the weekend so making organization report them is burdensome.  Thiis requirement results in another unfunded mandate by the DBHDS for organization as they have to pay staff overtime (or hire extra) staff to cover reporting on the weekends instead of waiting until the next business day. 
48.  106-570.C – please consider increasing to 30 business days
49. 106-570.C.2.9(d) – please clarify that this is only if the death is reportable as a Level III incident to the department.  Please consider increasing the time for the RCA in these types of events because if someone dies of an unknown reason it often takes a significant about of time to an autopsy report back in order to accurately complete a RCA  -- suggest 30 days from receipt of an autopsy report (if one is to be completed).
50. 106-580.C.3 – staff competency in what?  Please clarify.
51. 106-580.F – please define serious injury.
52. 106-590.G – This has the potential for another significant increase in administrative tasks for the organization and yet another unfunded mandate by the state.  It will be confusing for individuals as to which compliant/investigation process is available to them.   Also please clarify if this requirement and the regular complaint process for HR is for individuals who are receiving services within a licensed service only or if it is for any client involved in any service provided by a provider that holds any license (which is what we have been informed by the disability law center is the case).   
53. 105-600.A.4. – please add language that “reasonable security measures” are expected. In emergencies it is not always possible to plan for and or avoid all issues.
54. 105-620 A. – please clarify if this is required as part of the onboarding of an individual to each service (such as both OP and PSR services) or as part of the individual’s onboarding to the organization as a whole.  Please provide more time for this as providing it all on the first day an individual is not always possible based on client need.  Consider language such as within 3 service visits.
55. 106-680 and 106-690 – is specific to certain services.  Should be moved to those chapters.
56. 106-700 – define that service animals must be maintained but that other animals are not required to be allowed on the premises in keeping with 700.D.  please define service animals and suggest using definition per the ADA.
57. 106-720 B – recommend moving this to the residential services chapter as this is not possible nor appropriate at many center-based services to provide persons served with access to a internet and a computer upon demand.

Page 9 of the General Chapter has conflicting information with page 16 of the Home/Non-Center Based Chapter regarding the timeframes in developing the initial ISP.  General Chapter, page 9 states that the initial ISP means a written plan developed and implemented within 24 hours of admission.  Page 16 of  the Home/Non-Center Based Chapter states to develop and implement the initial ISP 24 hours after admission. Please confirm that the initial ISP can be developed anytime after the assessment and up to 24 hours after the admission date (start date of services).

Page 16  The level 3 incident type of permanent physical or psychological impairment was removed per DBHDS training we received.  This chapter still has this level 3 incident type.  Please confirm if this is still a level 3 incident. 

Page 34  An employee can work direct care without receipt of the background and registry checks if they are working under the direct supervision of another employee who has had these checks completed.  Please confirm that this change will apply to residential services.  For residential, currently we must receive results prior to having the staff working in the home. 

Page 51  Please clarify definition of a licensing complaint (related to complaint handling process) as this is different from the human rights complaint handling process. 

vaACCSES Comments
Licensing - New General Chapter  12VAC35-106

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.  

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.  

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.

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.

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.  

vaACCSES Comments
Licensing - New General Chapter  12VAC35-106

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.  

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.  

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.  

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.  

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.  

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.  

Licensing - New General Chapter  12VAC35-106

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.  

I have provided detailed comments directly to Susan Puglisi for Chapter 106; in general, the structure seems appropriate and we look forward to working with DBHDS as this process unfolds.

12VAC35-106-240. Criminal background and registry searches. A. Providers shall comply with the requirements for obtaining criminal history background checks as outlined in §§ 37.2-416, 37.2-506, and 37.2-607 of the Code of Virginia. 1. The documentation necessary to conduct the criminal history background check shall be submitted no later than the first date of employment.

Comment: Asking employers to submit a Central Registry form no later than the 1^st day of employment may be an administrative burden – this cannot be completed online like Fieldprint and requires a check to be cut for $10.00. Cutting a check prior to someone starting could cause an undue administrative burden should the candidate not start.

12VAC35-106-250. Personnel records.

12VAC35-106-250. Personnel records. A. Employee personnel records, whether hard-copy or electronic, shall include: 1. Individual identifying information; 2. Verified education history; 3. Employment history including dates and places of employment, job title, job description, and if applicable population served; 4. Evidence of reasonable efforts to verify employment history;

Comment: Verified education history: please change to when a college degree is required. Requiring primary source confirmation of high school diplomas would create an excessive administrative and costly burden on employers and potential employees. This will not help the workforce shortage.

12VAC35-106-250 Personnel Records

Three references which support the character, ability, and fitness for employment;

Comment: It is difficult to get agencies to return call for references. With COVID and agency closures or individuals working remotely, reference return calls are few and far between. Requiring three (3) reference may hinder agencies abilities to onboard candidates and then lose them to other positions, further who is assessing the fitness of employment and what criterial is used for the basis of this assessment.

A8. Evidence of a valid driver’s license and driving record by the Virginia Department of Motor Vehicles for employees transporting individuals.
Comment:  Please change to “a valid Driver’s License” period - as licenses are valid regardless of state of issuance. We have employees who live in West Virginia, Maryland, and Pennsylvania.  

12VAC35-106-560 B. 1. Requiring random driving record checks. 

Comment: Should be limited to staff required to drive clients. What percentage of drivers would the sample consist of?

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.

The extensive cost of background checks and TB checks for volunteers has made offer these types of opportunities untenable for us as well as the volunteers, especially for people who may only help out a day or two in total. These individuals would never be unsupervised (alone with clients).

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.

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.

A.2 - Verified education history.  It would be overly burdensome to verify high school education.  Should this only apply to those positions that require a college degree and/or license or certification?

A.12 - Training competency.  Not all trainings require competency testing.  Please define which training will require testing and define comptency?  Not all trainings are required to be reviewed annually.  This will add an additional burden.

B.1 - Requiring random record checks.  Should this only include employees that transport consumers?  It would be costly and overly burdensome to conduct annually.  

106-20: Please ensure definition of ES (Crisis Intervention) is consistent with Project Bravo and DMAS’ definitions.  

106-20: Please update OP service definition to account for DMAS allowance for outpatient to be billed in smaller increments of time.

106-20: Please update definition of serious incident—unplanned psychiatric admission to include other forms of advance planning in addition to WRAP. Please provide clarification that a “planned psychiatric admission” would be a voluntary admission and should not be considered emergent, requiring CHRIS reporting.

106-20: Please provide clarification regarding definition and guidance on reporting suicide attempts. Guidance document that was issued specifies suicide attempt “with intent to die” must be reported; however, who makes the determination of whether there was “intent to die” when determining whether an incident requires reporting. Licensed clinicians and physicians are often times not comfortable stating whether there was an “intent to die” so reporting is occurring for many incidents out of an abundance of caution, resulting in increased administrative burdens such as RCAs and inflating threshold numbers.

106-20: Please clarify how succession planning applies to CSB where there is not a specific, designated “license holder.” Is it referring to members of executive leadership or Executive Director within the CSB?

106-20: ASAM levels should be added to definitions for applicable SU services

106-20: For systemic deficiencies, please clarify “multiple” and how this takes in to account the size and scope of an agency.  

106-30: Should include licenses for ACT (small, medium, large teams)

106-40 D.2: Please include timelines and expectations for DBDHS to respond to applications and other requests.

106-50.2.f /50-3.e: If commissioner lowers a license for any reason, what is the process for appeal and/or due process.

106-60: The two-hour timeframe may not be obtainable particular for providers in rural areas and organizations with paper records that are in storage. Provider should respond immediately and no later than 2 hours with acknowledgment of receipt of request and plan for providing access, but access to documents may not be available for 1 business day.

106-80 A.4 and E.5: Is this requiring that all updates to a service description must be submitted to DBHDS with service modification form?

106.90: Should include timeframes for when DBHDS is expected to respond in writing within 30 calendar days.

106-120: It is important to clarify that not all errors resulting in a CAP should be considered a “systemic deficiency.” In larger organizations, human error does occur despite effective training and systems. Currently, providers are asked to treat each citation as “systemic” even if it is not systemic based on the root cause of the problem. Continually addressing each error as systemic regardless of true trends or patterns results in additional administrative burden and low morale among all staff.

106-120: If all CAPs must include systemic changes and ongoing monitoring, then the CAP itself cannot be completed within 60 days as currently required in the guidance. Further clarification would be appreciated on timelines for the implementation and completion of CAPs and should address that short-term actions may be completed within 60 days but long-term actions may take more time especially since methods of ongoing monitoring must be spelled out as part of the CAP requirement.

106-190 – Please clarify requirement of Executive Director being on premises during regular business hours. If ED is unavailable, what does official designation of another staff member look like? How does telework

106-250-2 – Are organizations required to obtain and maintain copies of high school diplomas as means of verifying high school education? Often times these diplomas are challenging to obtain.

106-250 – Are only Virginia documentation of driver’s license accepted?

106-290 B.1.  Correct to 15 business days

106-290.2.A/B  Please specify that medication administration training is only for positions responsible for administering medications. Also, clarify if this training is required for doctors, nurses, etc.—positions that are qualified based on their formal degrees and training.

 106-300.B. – Please provide clarification what consists a significant change to require updates being sent to DBHDS.  Are these now requiring formal approval from DBHDS or just being informed of the changes.

106-370.C: Who is business hour information being sent to and how frequently must this be communicated?

106-570.C: Consider increasing to 30 business days

106-589: How is competence to be demonstrated? What will DBHDS be looking for?

106-590.G: Duplicative complaint processes between Licensing and Human Rights will be confusing for both consumers and staff.

Comments - General Chapter 12VAC35-106

12VAC35-106-20. Definitions

• ACT – definitions must be consistent and clear across chapters. Be sure small and large teams’ language corresponds. The number of definitions are different across chapters.
• Case management services – providers are responsive to needs, yes, but the term desires seems expansive. Consider updating to the term “preferences” instead.
• Corrective Action Plan – (This insertion is more appropriately seated in the Human Rights regulations). Embed language to note that system issued will be addressed “where indicated” and will take into account instances of human error, acts of God, accidents and isolated instances attributed to one employee or factors outside of the provider’s control. 
• Crisis Stabilization - 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 inherently provides services 24-hours per day. Consistency with Project BRAVO language and parameters is key.
• Serious Incident, Level III, item 3.  Remove to reflect change made in 2020.
• Please add Service animals – no definition, consider adding definition and/or refer to ADA regulations

12VAC35-106-40.D.2 Applications

Recommend making both dates 60 calendar days, to increase consistency and clarity. 40b also references succession plan.  Perhaps a broader scope would be helpful, such as submitting an organization chart to fulfill requirement. Add a timeframes for when providers can expect things back from DBHDS i.e., applications, CAP responses.

12VAC35-106-40.D.2 License types

A1f.  One conditional license at a time??  Might be a typo that providers may NOT have more than one service on a conditional license. 

A2f and 3Ae.  Commissioner may lower a full license to a conditional license at any time??  Doesn’t allow for due process or explain what process will be used.

12VAC35-110.D Compliance

How will this be determined?  Will 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 potentially broadens the idea across services for a provider with multiple license types.  Distinct services under one organizational license should not be included.  Rather, each service type should be looked at distinctly.  It would, however, be understandable for a Licensing Specialist who identifies Systemic Noncompliance in one service type to ensure other service types within the organization are maintaining compliance.

B5 uses the language “defects”; perhaps it’s deficiencies.

12VAC35-160-120.E Corrective action plan.

Specify the timeframe the Department has to review plans and determine if they are approved.

E1.  Request timeframes for how far after a deficiency is noted that a CAP can be issued and also the timeframe for response back from DBHDS.  With these thresholds, timeliness is very important, so you’re not committing the same error before you’re even issued the CAP or its long since been resolved by the time you get the CAP.  And that timeframes to be consistent across all Offices and Departments at DBHDS.

12VAC35-160-240A.1 Criminal background and registry searches.

Providers shall not employ persons that have been convicted of any of the barrier crimes listed in §19.2-392.02 of the Code of Virginia, except as otherwise provided by the Code of Virginia.  How does this impact employability of peers for instance?  Exceptions in the Code of Virginia aren’t listed.  (Joe Hudson bill – Senate Bill 555 in 2018 removing burglary as a barrier crime.)

12VAC35-106-290 Employee training

Increase from 14 to 15 business days after start date (typo). Is this meant to include training in behavior interventions, too (e.g., CPI, TO, Mandt, etc.)?  If so, increase this to 30 business days, or denote that behavior intervention policies are to be reviewed within 15 business days while allowing 30 business days to provide training for in any approved hands-on emergency interventions.

Please reflect that a currently valid certification from a previous source prior to employment is acceptable.  Recommend changing timeframe to 90 calendar days for First Aid/CPR, behavior intervention and MAR training.  This requirement puts an undue burden on providers – the cost of training more of your staff as trainers or contracting with a trainer or travel expenses to get the soonest class regardless of distance.

12VAC35-106-580.C.3 Risk management

What DBHDS is looking for to test staff competence?

12VAC35-106-590.G Monitoring and evaluating service quality

If this will remain a part of the regulations, additional information is needed. Specifically, how does this intersect when an individual complains about an issue covered under the Human Rights complaint process, which most complaints are. This presents the possibility of a significant increase in administrative burden on the provider for a task that has heretofore been the responsibility of the Licensing Specialists. Having an OHR process and a licensing process will be confusing to individuals.

12VAC35-106-720.B Computers and Internet Access

It is recommended to relocate this verbiage to the residential services chapter, as this has limited applicability to other services, or, work with OHR to have this including in Chapter 115 instead, under Freedoms of Everyday Living.  In the residential chapter, consider overt allowance for limiting access during early phases of SUD/Detox types of programs or specifying this as a requirement for long-term residential services, not short-term.  Including this for non-residential services is not applicable.  In many cases, the expectation is for individuals to be participating in the services/programming outlined in the Service Description, which would not include having people engaging in “at request” (i.e. on demand) use of computer and internet – they are at the location to receive a specific service and there are reasonable, understood, expectations for participation in services during those hours.  For those services where use of computers may be beneficial for service delivery, providers would be expected to provide the necessary resources for staff members to provide services appropriately. This is unclear and can be easily misinterpreted by the client. A client asking for an accommodation is one thing however a client asking for a computer and internet access during an intensive outpatient stay is another. Are we to put computers in our lobbies?

Comments - General Chapter 12VAC35-107

12VAC35-107-10. Definitions

• Please include the definition of Residential Crisis Stabilization Services that matches forthcoming definitions being developed between DMAS and DBHDS. 

12VAC35-107-60.F.2.d Assessments.

Please revise to note the provider shall attempt to obtain BAC or administer a breathalyzer to reflect that individuals have the right to choice.

12VAC35-107-60.G Assessments.

Thank you for recognizing 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.

12VAC35-107-60.H. Assessments.

Revise to reflect for a minimum of six years after the individual’s discharge, as there are other factors affecting how long records must be retained.

12VAC35-107-80.B.14 ISP requirements.

Change to projected discharge date “or” estimated length of stay, to reflect that some services are anticipated to be the individual’s home for many years.B5 uses the language “defects”; perhaps it’s deficiencies.

12VAC35-107-80.E ISP requirements.

While staff members should be knowledgeable about the contents of ISPs for individuals served, establishing an expectation to train and test all staff members involved with service delivery is an unrealistic expectation that will significantly detract from service delivery.  Observations of competency in and knowledge about providing services is part of the supervisory and evaluation process.  Promoting this is likely to result in providers making fewer updates to ISPs to avoid retraining and testing staff.  For short-term services, a person could potentially be discharged before testing of all staff members (typically three shifts) could occur.  There is no realistic way to document this knowledge and competency without documentation of confidential information about individuals served, which should not be part of a Personnel File.  This also places an undue burden on Human Resources staff members who maintain personnel files.  File sizes would become unmanageable.

12VAC35-107-90.C. Reassessments and ISP reviews.

Remove, as this is not applicable for residential services, which are inherently not medication-only in nature.

12VAC35-107-100.A Progress notes or other documentation.

The intent of this is unclear.  Certainly, the format of progress notes across all locations of one service is desirable. However, the format of notes across the various services operated under a single organizational license may need to differ in order to reflect the unique nature of each service and affiliated requirements from pay sources.  Revise to reflect that the format of progress notes is to be consistent across all locations of the same service type.

12VAC35-107-180.A.3 Community participation.

Specify an exemption for short-term programs that typically do not have individuals leave the milieu, such as substance use treatment programs 30-days or less in duration.

We join with other providers who have requested that response timeframes from DBHDS are added to all sections where providers are required to submit documentation to DBHDS within specified timeframes.

12VAC35-106-20. Definitions

"Respite care service means providing for a short-term, time limited period of care on an episodic or routine basis . . .” Please provide clarification regarding the distinction between “episodic” and “routine.” Clarification is needed to avoid unnecessary future citations during audits and reviews.

12VAC35-106-240.D needs clarification. The language as written implies that the provider must document annual disclosure statements from the “applicant” regarding past convictions or pending criminal charges. Once an applicant is hired, they are then an employee, and no longer an applicant. Is the intent to require documentation of an annual disclosure form for every employee?

12VAC35-106-250.A.2  as written requires educational verification for all employees. This is a reasonable requirement for positions that require an education beyond high school, but verification of education short of college credits is burdensome, time-consuming, and unnecessary for direct care positions.

12VAC35-106-290.B.2.b requires medication administration training for all employees to include basic pharmacology and side effects. This is not an appropriate training requirement for DSPs who do not administer medication.

2VAC35-106-290.C.1. requires that ALL employees, contractors, students, and volunteers shall complete an annual training that shall include: 1. Retraining of all the elements required within 12VAC30-106-290 B 1-2, which are extensive and include:

 a. The provider’s behavior intervention policies and procedures regarding least restrictive interventions, timeout, and physical restraint;

b. Emergency preparedness and response training;

 c. Objectives and philosophy of the provider;

 d. Practices of confidentiality including access, duplication, and dissemination of any portion of an individual’s record;

 e. Practices that assure an individual’s rights including training regarding the Human Rights Regulations;

 f. Applicable personnel policies, including the grievance policy;

 g. Person-centeredness;

 h. Infection control practices and measures;

 i. Other policies and procedures that apply to specific positions and specific duties and responsibilities;

 j. Serious incident reporting, including when, how, and under what circumstances a serious incident report must be submitted and the consequences of failing to report a serious incident to the department in accordance with this chapter.

 Initial training is sensible and wise, but re-training on these elements for students and volunteers who are never alone with individuals being served is burdensome and creates a barrier to maintaining a robust volunteer base.

12VAC35-106-490. B. requires documentation of the interventions that occurred during a crisis or emergency be recorded in the individual’s record within one day or, one business day. One day is not sufficient time to accurately document the required information of the circumstances surrounding a crisis or emergency intervention.

12VAC35-106-560.B.1.  “The provider shall conduct checks in accordance with their policy on a random sample of all existing employees driving records annually.” Clarification is needed that the PROVIDER’S POLICY is what determines the metrics of the “random sample” during an audit, since this language does not define “random sample.”

Licensing - New General Chapter  12VAC35-106

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”.

“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.