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Department of Behavioral Health and Developmental Services
State Board of Behavioral Health and Developmental Services
Rules and Regulations For Licensing Providers by the Department of Behavioral Health and Developmental Services [12 VAC 35 ‑ 105]


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11/15/21  12:41 pm
Commenter: Anonymous

Discharge criteria need more flexibility

My comment may pertain to several sections of this regulation or others, perhaps mostly to 12VAC35-105-580 Service description requirements and 12VAC35-105-940 Criteria for involuntary termination from treatment.


I believe that current regulations contributed, either intentionally or unintentionally, to the counterproductive and punitive discharge of my loved one from a respected outpatient treatment program in which he had made progress. The discharge resulted in a tailspin and subsequent hospitalizations for detox that might have been avoided had he been allowed to continue the outpatient treatment.


Briefly, after five months of sobriety this year and gradually reduced outpatient treatment plans, my loved one had a relapse and unsuccessful suicide attempt that resulted in an emergency room visit and overnight hospitalization. Unfortunately, this resulted in his discharge from the outpatient treatment. The clinical director told me that Virginia state regulations for treatment centers require them to follow ASAM protocol, and that the protocol required them to recommend the highest level of care (residential rehab) for someone who attempts suicide and is hospitalized. Since the treatment program does not offer inpatient rehab, they said they could no longer treat him and recommended some residential programs. My loved one was understandably unwilling to go back to residential rehab (having three previous stays), and so was left with no professional care or therapy. Upon checking with some other Northern Virginia outpatient programs, one said it would accept him at a PHP level, requiring attendance five days a week for most of the day. This, too, was something he was unwilling to do, given that he had returned to work after a five-month leave of absence, feared losing his job and thus his insurance, and did not want to incur further increased treatment costs.


My loved one had voluntarily informed his outpatient program of his suicide attempt and hospitalization, recognizing that it should know about it for his treatment, and expecting that it might alter his treatment plan, such as returning to more meetings and a higher level of outpatient care. Never did he or we expect that it would result in his being discharged with an insistence that he go to residential treatment. While the intentions of relevant ASAM protocols and Virginia state regulations are good, the effect is punitive and counterproductive. Surely it would have been better for my loved one’s mental health and recovery if he could have continued outpatient treatment at his current or another program at a level that permitted him to continue working. Instead, he was left in limbo with no access to any outpatient care.


In seeking to better understand these professional protocols and regulatory requirements, I corresponded with Leigh Hause-Alvarado, Director of Quality Improvement at the American Society of Addiction Medicine. She informed me: “While we cannot weigh in on the clinical care or legal proceedings of an individual patient, one of the core principles of The ASAM Criteria is individualized, person centered care. The ASAM Criteria speak at length about the patient’s role in working with their clinicians to develop their treatment plan. While the Criteria help to identify the least intensive level of care where a patient can safely be treated, they also note that the level of care placement can differ from what is recommended based on the patient’s preferences. In addition, the standards incorporate the use of motivational strategies to work with the patient to encourage greater participation in treatment. The ASAM Criteria does not recommend discharge for patients who are not willing to enter a more intensive level of care.”


I relayed this response to VDBHDS and received this reply from Susan Puglisi, Esq., Regulatory Research Specialist, Office of Regulatory Affairs: “The ASAM provisions of the licensing regulations do not specifically require discharge. However, 12VAC35-105-580 requires a provider to develop and implement a service description which include service termination and discharge criteria. It is likely that your [loved one] met these criteria, although I cannot say for certain without seeing their service description.  [The provider] is required to discharge individuals that meet their termination and discharge criteria, not doing so would be a violation of regulation.”


I appreciate that there need to be protocols to guide professionals’ treatment plans, but providers’ recommendations have to be feasible, affordable and something a patient will willingly do. I believe VDBHDS regulations should clarify that providers have the flexibility to allow patients to continue outpatient treatment under circumstances similar to what I described, e.g., with one relapse after five months.


CommentID: 116722

11/26/21  11:55 am
Commenter: john humphreys

Institutionalizing the home

Institutionalizing The Home- A number of provisions across the regulatory set that serve to institutionalize the home are of dubious necessity, dysfunctional and/or detrimental for very small residential settings attempting to provide a home rather than a facility.


12 VAC 35 – 107 – 260 and 190- lock it up provisions-Because for licensing agents that’s what “secure” means are perhaps one of the most egregious examples of this as it constitutes an insult to the adult individuals that we serve.

1st – the necessity of this provision is extremely unclear exactly how many people stick their hands in used sharp containers (especially since their designed with small openings that would appear to preclude this locked or not); how many examples of ingestion and/or injury from misuse of cleaning/car/garden supplies actually occur each year. In my 23 year experience of operating group/sponsor homes, there has not been a single incident involving consumption/misuse, much less injury from any of the listed items and access/use by individual served has been ubiquitous. Is a blanket provision across all providers really a necessity for health and safety?

2nd –This is not only just plain insulting to the individuals we serve (assumes none of them have the intellectual capacity to avoid drinking bleach) but it also represents a serious infringement upon their individual rights at both the state and federal level. At the state level is a direct violation of 12 VAC 35 – 115 – 100  that individuals should “enjoy all the freedoms of everyday life that are consistent with his need for services his protection and the protection of others”, if locking up these items are not consistent with the need for service/protection. Even the loopholes in this the blanket prohibition across individual/service contained in this regulation would surely be in violation of A2 of that provision that requires services under those conditions that are “least restrictive of his freedom” – as prohibiting access is the most restrictive way. At the federal level, this clearly requires a violation of the right to free access to their home and grounds as it would result in a number of items they now use regularly, independently and safely being locked up so that their access is restricted; at the very least it violates the spirit of the HCBS rights by requiring that individuals receiving services be treated differently from individuals that are not thus restricting their freedom more than would be acceptable for the general population.

3rd –This provision will undermine infection control efforts and create a far greater danger of risk to individuals served than the infinitesimal risk for ingestion/misuse of cleaning/car/garden supplies. Due to Covid 19 disinfecting and cleaning supplies have been made available openly at the entrance(s) to the home and their use required upon entry, placing these out of reach and locked up will make their consistent use much less likely increasing the risk of Covid. Currently, disinfecting wipes are made readily available for countertops/other surfaces in the kitchen and bathroom areas, again locking these up would greatly reduce their use thus increasing the risk of Covid, flu and other infections. The requirement for original containers would eliminate prior preparation of bleach cleaning solutions, which are recommended in almost all standard infection control precautions/protocols and/or create an unfunded mandate for the purchase of much more expensive pre-mixed solutions that would still be locked up; thus severely undermine the regular use of this vital infection control mechanism.

4th – this provision only serves to institutionalize the home and devalues the skills/independence that most of the adult individuals currently served are able to demonstrate absent this provision. Seriously, if you have a home full of all adults do you actually lock up and hide every single cleaning/car/garden supply – I doubt it and if you do it is a cultural not a safety considerations. People living in rural cultures have spent their entire life with cleaning supplies readily available, dish soap on the sink, laundry agents and marked spray bottles of mixed cleaning solutions and it would be extremely rare to enter the rural cultural home and not find any of these display. If this provision is adopted and the individuals we serve ask why their rights are being restricted, the truthful answer will be that the state has determined that they are different from everybody else in the world, requiring special protections and abnormal circumstance in their daily life – which is a shame and the very attitude we should be fighting against.

RECOMMENDATIONs: 1) remove these provisions as unnecessary; 2) exempt sponsored and small group homes who are attempting to maintain a homelike environment from these provisions or 3) require risk for ingestion/misuse of these substances be assessed at the time of individual intake and ongoing through the risk management/quality improvement mechanisms and that whenever a greater than normal risk is assessed require the provider to take appropriate preventative measures; following up on CHRIS reported violations with those mechanisms to assure compliance – while not optimal this would be more consistent with the least restrictive requirements on individual rights than the regulatory provisions included here.

12 VAC 35 – 107 – 170 Nutrition Section B 2,3,4,5,7 – These provisions are internally contradictory, unworkable in real-life and/or place a significant superfluous burden for documentation on providers – yet another unfunded mandate. Specifically, the B7 requirement that requires adaptation to individuals who change their mind in real time makes the development of menu prepared in advance superfluous (B 2), makes B3 meaningless/impossible and creates a constantly moving target for B5. In our home, we survey individuals and make any menu items requested available but for breakfast/lunch each person individually decides what they are going to have from a large available selection and each individual has a night where they select the menu for the group dinner meal; which they can change for themselves individually on any night they don't like the selection. While we have had some success in filling in the evening menu on a weekly basis, it is often like pulling teeth because people don't know what they will want a few days from now; making trying to prepare a menu a month in advance and then enforcing that it "be followed" problematic at best. Even if it is not the intent of this provision, the regulatory pressure on providers to demonstrate compliance with this regulation would undoubtedly lead to the development of staff generated menus, with purchases limited to following those menus and pressure on individuals to accept the scheduled menu items, which would infringe on both their state freedoms of everyday life and their federal freedom for access to any food at any time.

RECOMMENDATIONs: remove these provisions from the regulatory requirements and allow demonstration of the ability to self-select from a range of foods that meet the other requirements in this section and the retention of a list of items available and group meals selected as sufficient to allow for oversight/review of the spirit of these provisions.


12 VAC 35 – 106 – 560 – A4 – requiring individuals served to wear seatbelts – earlier comments on how problematic this regulation would be to actually implement for providers were ignored and the only response to these concerns was that the seatbelt requirement is Virginia state law – which while true is not relevant to the concerns expressed. Specifically, as a Virginia state law it establishes competent trained law enforcement authorities as the individuals to enforce the law and prescribes very specific penalties for infractions, which are then adjudicated by courts to assure due process in their application. Unfortunately, this regulatory requirement (which has the force of law on providers) does not recognize these aspects of the Virginia state law and inappropriately places untrained providers/DSPs in the role of law enforcement, the regulation fails to stipulate either the penalties the provider is supposed to use in enforcing this regulation nor does it provide any due process protections in that enforcement. Presumably, consistent with other state laws the only recourse the provider would have if the individual refused to wear their seatbelt would be to not transport them and just let them set in the car without it moving if they so desired-anything else would be a different rights violation. If the individual was a consistent refuser this would quickly violate their rights to access the community and community resources and if they consistently refused to get out of professional health appointments it would jeopardize their health to a greater extent than the absence of the seatbelt. This would in effect create an extrajudicial, nonproportional enforcement/penalty on individuals with ID/DD that is not imposed on those not receiving HCBS services, which on its face violates the federal HCBS protections---remove it.

12 VAC 35 – 106 – 370 and 500 – both create additional wall postings that the provider would have to add to the myriad of already required wall postings – neither provision is necessary because these are covered in the pre-intake and post intake orientation and remain readily self-evident throughout the entire duration of an individual’s services. Both provisions serve to further institutionalize the home by requiring the removal of preferred home decor to create space (often decor they selected consistent with their HCBS rights to have a role in decorating the common areas of their home) and replace it with regulatorily required language similar to any other institution.

RECOMMENDATIONs: 1) remove the requirement for posting and allow this to be covered under on boarding, 2) reduce these down from separate individual postings and allow only one posting that list these items (along with others) as information that is available upon request on a single posting Or 3) exempt sponsored placement and small group homes that are making every effort to achieve a homelike environment similar to those enjoyed by individuals not receiving HCBS services as required by the federal HCBS settings/rights protections

12 VAC 105 – 530 – monthly fire drills – Earlier comments on the dangers associated with this provision have gone unheeded and unaddressed – the state response was to point at other code provisions/practices for other types of long-term care facilities and include HCBS settings in with them for the purposes of making the regulatory requirement on HCBS settings. This is consistent with a long-established state practice of including HCBS settings whenever there is a restriction/penalty associated with these other provisions; but never including HCBS settings when there are benefits to being included with these settings (most recently the extra $20 per person per day during the Covid epidemic) – if you're not going to include us when there's benefits to be had, then don't include us when there's restriction/penalties to be doled out – it's just not fair. The necessity of this provision for the safety of the individual served is also very dubious, I am not aware of and a literature search did not uncover any recent examples of individuals served in HCBS settings in Virginia being killed or injured in a fire due to inadequate evacuation. In fact, these required drills in our homes (and I'm betting a large majority of other homes) have consistently verified that both the individuals served and the staff have sufficient training and competency to accomplish the evacuation in under the prescribed time, unfailingly, consistently over and over again and that in the event of a fire evacuation would not be a risk; this was also true for years when only quarterly drills were conducted. In fact, the impact of a return of monthly drills has been increased resistance to the disruption in the life of the individual served and in some cases reluctance (which will eventually become refusal) to respond as they complain about it only being another drill; which could create resistance that would be problematic in the event of a real fire.

RECOMMENDATIONs: 1) adopt a quarterly requirement, that requires more frequent (monthly) performance if any drill performance falls outside of the prescribed standards for evacuation; 2) adopt a requirement that allows an individual provider to move to quarterly drills if 6 months of monthly drills demonstrated ongoing skills/competency necessary for a timely evacuation; or 3) adopt a quarterly requirement for sponsored/small group homes to replace the monthly requirement any option would be less restrictive/disruptive for the Individuals served in the home.

12 VAC 35 – 106 – 700 – ANIMALS- 2 separate provisions of this inclusion are independently problematic:

1st section E1, 3 and D- are internally contradictory, unclear and potentially detrimental to the individuals served. Specifically while it may be reasonable (but I doubt it) to not accept staff allergies and fear of dogs as valid reasons for refusing service animals; it becomes much more problematic when individuals already served in the home have severe allergies, that cannot be controlled through other adaptations (thus creating a direct threat to the physical health of others) and/or they have posttraumatic stress associated with earlier animal interactions or a diagnosis of a mental health phobia (thus creating a direct threat to the mental health of others). Should people lose their job or their home because of physical and/or mental conditions which they have no control over – these provisions would appear to say yes but fairness requires the opposite conclusion; recommend either clarify or removing the internal contradiction.

2nd sections A and B, clearly represent an elitist/urban cultural bias that is wholly inappropriate for and culturally insensitive/destructive for rural individuals and their culture. It appears that section A would apply to farm animals and reoccurring wildlife who have chosen to domicile on the property, which is an impossible standard outside the scope of the DBHDS. Additionally, some of the animals that the standard is specifically covers (i.e. strays) require compliance that is impossible or cruel. Specifically, we have in many rural areas "barn cats", these are cats who come and go as they please choosing to occasionally reside in the barn on the premises for lengthy periods of time (often in the winter). These cats are a long-standing tradition in rural farm communities and a recognized part of that culture; however, they are often very difficult to capture, would be very expensive to provide veterinary/licensing services to, would run away or be even more impossible to catch (after the first time) never completing inoculations or never to return and are only accepted by the SPCA or other agencies and very limited numbers – which means they have no place to go even if you can catch them. Typically, these cats live off the land most of the year; however, in the winter when streams/ponds and other sources of water are frozen over and food is much scarcer, rural cultures have typically provided fresh water and occasional food to help them get through the winter months, without negative incident. If these provisions are passed, then rural individuals would have to make a devastating choice either to watch these animals slowly die of starvation/dehydration or just shoot them and put them out of their misery – which choice does the state think we should make and how do they propose we explain this inhumanity/cruelty to the individuals that we serve. RECOMMENDATIONs: 1) delete the offending inclusions; 2) provide an exemption for barn cats out of respect for rural culture, traditions and the welfare of the animals; or 3) Limit the application of these provisions to areas that receive NOVA payment rates were the intent and cultural sensitivity of the provisions may be more appropriate.

CommentID: 116740

11/26/21  11:56 am
Commenter: john humphreys

Administrative concerns

12 VAC 35 – 107 – 90 – C2 and 12 VAC 35 – 108 – 80 – C2 – both create an affirmative duty to make sure the ISP is "distributed to the individual and others authorized to receive it, prior to implementation". While I have no difficulty with the intent of the regulatory change, the language is too vague/broad and the locus of responsibility is unclear. The phrase "others authorized to receive it" is overly broad and would presumably include those agencies (other providers, other CSB's, police and emergency personnel, hospitals, day support programs, supported employment etc.) that are authorized to receive it under exemptions in the confidentiality regulations; when clearly there is no need and they do not desire a copy distributed to them. The focus on the ISP creates the appearance that this would be the responsibility of the support coordinator who develops, reviews and implements the ISP; however, unclear if it is the support coordinator’s role to implement and document this regulation for the entire plan, including the part V, or will individual residential providers be required to independently document distribution of the plan? Finally, we always provide a full copy of the plan to all signatories during the final review, informed consent/options supports and signature; however, the other parties involved consistently decline to keep their copy and asked that it be filed with other records held by the provider – if the provider complies is the plan still considered "distributed"; or will the provider be required to make them keep their copy whether they wanted it or not and thus create a source of insecure private and HIPAA protected information about the individual. RECOMMENDATION: keep the intent but clarify the language to reduce the affirmative duty of the individual provider to providing a full copy of their plan to those individuals who are authorized, that are signatories and/or request a copy, clarify the locus of responsibility for regulatory compliance and permit the provider to take back and store the copy if the individual or other authorized participants so desire.

12 VAC 35 – 106 – 110 – B – compliance – establishes determination categories for levels of compliance which for the most part are reasonable; however, B3 Not Determined (ND) creates an affirmative duty for the provider to forward additional information when it uses the word "must", which may be impossible for the provider if the information simply does not exist at the time of the determination. For example, during our most recent review we received 2 determinations of ND associated with discharge documentation, as we have not had an individual discharged from our services in almost 10 years in the group home and there's never been a discharge in the shorter history of the sponsored placement home; thus information necessary to demonstrate compliance with the new regulations in effect had no opportunity to ever exist. RECOMMENDATION: the use of the word "must" should be replaced or at the very least qualified to limit the affirmative duty of the provider in responding to an ND rating to that information requested by the reviewer and in the possession (or should be given events) of the provider; as is this regulation would create an affirmative duty that in some cases would be impossible for the provider to meet.

12 VAC 35 – 105 – 170 and 12 VAC 35 – 106 – 120 – corrective action plans provide a required timeframe for the provider's CAP response to the issuance of a violation, but it provides no equivalent nor any required timeframe for the departments/licensing agents response to the CAP – whats good for the goose is good for the gander and simple fairness, efficiency and health/safety concerns dictates that the state should be required to respond in a timely manner. RECOMMENDATION: include a 10 – 15 day response time frame for the department/licensing agent to a provider submitted CAP


12 VAC 35 – 107 – 100 – B5 – requires that daily/per shift narrative log notes each include "next steps related to treatment or care of the individual"; in a similar vein

12 VAC 35 – 108 – 100 – B5 – requires that these daily/shift notes "describe follow-up care need that is needed or note which objective within the ISP will be the focused on the next time the individual receives services"– Neither of these provisions are appropriate for residential service where the individual receives daily services often across 3 different shifts in the same 24 hour period for a variety of reasons:

1) inclusion of these items in the individual narrative log is unnecessary/fruitless – any ongoing monitoring needs due to the possible emergence of health, behavioral or other concerns; as well as, any follow-on services the individual has expressed a preference for and/or require a focus for health reasons are typically indicated during shift contact meeting, significant concerns are indicated in the shift contact log and this system has been consistently effective in ensuring continuity of needed services making the change unnecessary. Even if this change were implemented and the information included in the narrative log it would be fruitless as no one has the time nor interest in going back and reading other people's entries, so the change would have no real impact except for increasing the documentation burden.

2) hourly paid DSPs lack the training, qualifications and authorization to make any changes that would "include next steps related to treatment"; as they are required to consistently and unerringly follow the treatment steps prescribed by the licensed medical practitioner and/or as outlined in the ISP/plan of supports, so anything that they record in regards to this regulatory requirement would simply be a repeat of information that all staff have already been informed of and trained on, with any variations being a violation of rights at multiple levels.

3) the proposed requirement makes an impossible demand for precognition, as "which objective within the ISP will be the focus on the next time the individual receive services" is typically impossible to know into the future. Whether the ISP objective is related to health and safety, where the required focus/timing is regulated by physician orders, medical protocols, the plan of supports and the emergence of health/safety concerns that were not apparent on the prior shift or the ISP objective is related to community/daily living supports, where the ISP objective focus is determined by the individuals expressed preference/request and/or activity choices in real time; neither of these areas can be predicted in advance with any reliability – making the proposed requirement and exercise in futility or a directive that undermines the individual's ability to control the implementation of their own ISP objective focus.

RECOMMENDATIONS: While the utility of these inclusions or dubious at best, if the state/department can clarify their intent and they still need to be included, they would best be included under reassessments based on events and/or quarterly reviews, where a qualified supervisor could collect the entire range of relevant information, establish context and make recommendations/changes that follow appropriate procedures, provide for professional direction and better serve whatever intent is envisioned by the proposed change.


 12 VAC 35 – 105 – 1210 – 5; 12 VAC 35 – 107 – 100 and 12 VAC 35 – 107 – 830 – collectively place a burden on group homes and/or sponsors to include a daily log and once per shift log of progress notes to be completed on the date of service delivery. While this requirement is reasonable and the typical practice in most homes, we recommend one exemption to this requirement when the individual served is engaged in supported extended travel away from the home on vacation or weekend getaways. We have traditionally taken people on a weeklong vacation at least annually and several weekend trips to various venues/events they have expressed an interest in, where the individual stay in motels, order from restaurants, sightsee, attend shows and shop for souvenirs. During these travels the individual is supported with a staff ratio of either 1:1 or 1:2 and the same staff person is primarily responsible for the them, their services and documentation throughout a long and typically arduous day. Currently, health related information is documented on a daily basis but the vast majority of the community integration supports, which are very repetitive across days, activity and venue types are recorded for several days at a time, with individual notations for days where significant differences were noted. This approach allows staff to make a very short notation, usually very late in the day (1030 – 11 PM), before they get up to start the process again very early in the morning (6 – 7 AM) to facilitate positive service provision. This approach typically leads to a more detailed note that compares/contrasts responses, changes and growth in abilities in the same support area across several days which makes the information more informative and better suited to informing development of the individual's supports. RECOMMENDATION: creating exemption when the individual engages and supported travel outside the home for several days in a row to allow for summary notes that address supports that are not health related


12 VAC – 107 – 220 – F – documented annual contact with local emergency managers – this provision clearly fails the necessity criteria for review, what exactly is the intent of this provision and how will it contribute to the health, safety, welfare of the individual served – in almost all cases it will not at all. Specifically, in our area the local emergency manager is situated in the largest city in the county and any changes in their offerings are typically limited to the city; in fact, in our periodic contacts to date we've been specifically told that there was nothing new for the "rural areas" and the threats/risk, locations of emergency shelters and recommendations have remained unchanged for 20 years – what exactly do they expect us to talk about during contact and what positive results/changes do they perceive could possibly come from it – there are none. This provision merely makes another unproductive administrative burden/documentation requirement that provides no value and serves no realistic purpose for those of us in rural areas; creating an additional unfunded mandate that will not be included in the most recent Burns analysis of rates. RECOMMENDATIONS:1) remove the requirement for annual contact; 2) amend the contact requirement to have it initiated only when significant changes in emergency risk, programs and/or services are indicated in the local news media; or 3) exempt small businesses in nonurban (non-nova rate)or rural areas from the annual requirement


12 VAC 35 – 107 – 220 – I – requiring medical professional approval of standard precautions for infection control – perhaps this requirement is just worded in an unclear manner given the context of the overall regulation –

  • if the intent is for the provider to develop and implement written policies and procedures when an individual with a communicable and contagious medical condition is going to be admitted to the service and the policies and procedures for that individual have to be approved by a medical professional that appears reasonable, but the regulatory section should be reworked to make it clear that only applies to that individual and the circumstances they create.
  • If the intent of the regulatory change is to require that the written policies and procedures for implementation of the "standard precautions" for infection control for the overall organization as contained in the policy and procedures manual be approved by a medical professional that requirement would be unwarranted, unnecessarily burdensome and constitute another unfunded mandate not included in the Burns analysis. Specifically, the "standard precautions for infection control" or just that standard and I'm sure other providers like me took them directly from the standard precautions published by the medical professions and they are therefore in compliance without the need for additional approval. Even if the state/department felt there was too much possibility for variations in what people consider the "standard precautions", they could simply publish a list and of the standard precautions that must be included in the overall organization's policy and procedure manual that would be preapproved and provide a template that could be used by licensing specialist to evaluate their adequacy/implementation without any variation across providers. If the regulation is applied in this manner as written it would create an onerous (and perhaps impossible) burden on the individual provider as they would have to find a medical professional who was willing to take the time to review their "standard precautions" and accept the liability for their approval when they are in no way associated with the organization, which is extremely unlikely; and even if possible would be unnecessarily burdensome of time and possibly cost to the organization.

 RECOMMENDATION: clarify the intent to limit approval to an individual who presents with these concerns and their specific PCP or other medical professional or eliminate the approval provision completely


12 VAC 35 – 106 – 600 – B4 – has a new inclusion requiring security measures that protect records from "fire damage or water damage" which fails all 3 of the criteria relevant to this review: 1st – the provision is not clear nor easily understandable, in fact it is extremely vague and provides no standards or thresholds for the degree of protection required, no indication of what would be considered sufficient protection and opens each individual provider up to the capricious, inconsistent and/or arbitrary interpretations by individual licensing reviewers that ensures unequal/unfair application across the state. 2nd – the provision has no demonstrated necessity for the health, safety or welfare of the individual served, in fact it is totally unrelated to these specific areas for the individual and only serves a regulatory function; but even if it is considered a necessity for that regulatory function there is no indication that the provision is a necessity to accomplish the objective (how many records have been rendered unreviewable due to fire/water damage during the past year?, Past 5 years?). 3rd – the provision fails to minimize the impact on small businesses, as it provides no small business exclusion and depending on how it is eventually interpreted could entail a significant unfunded mandate that would drive some small businesses out of existence. A review of available fire proof storage systems provides clear evidence that this cabinetry is very expensive and given the significant volume of records we are required to retain/store the initial cost of just meeting the fire provision could well be in the tens of thousands of dollars, if the cabinetry has to be waterproof as well we could be looking at $100,000 or more and we (and I suspect many other small businesses) simply do not have those resources available, given the low reimbursement rates and rising staffing cost that exceeds those rates or changes in them; forcing us and others to close, while still confronting the cost of meeting the standard for long-term storage for the prescribed period even after closure. There are additional concerns with this inclusion as well, for example, what about the records where multiple recurrent daily access, quick availability and/or continuous use on the service floor are required. While these records are currently locked in a specially built cabinet that was designed to fit into the decor of the home seamlessly, this requirement, depending on how it is interpreted could force the inclusion of a large hulking metal fire/waterproof cabinet in the middle of the living room, which would further institutionalize the home creating the appearance of the facility and undermining efforts to create a positive home environment like that enjoyed by individuals not receiving HCBS services as envisioned by the federal HCBS service/setting rights. RECOMMENDATIONS: 1) remove the new inclusions completely; 2) amend the inclusions to require providers address known increased risk to the utility of records in storage (i.e. additional precautions if the records are to be stored in a basement that has a history of flooding); 3) clarify and include specific standards for fire/water protection that are affordable and can be implemented in a fair and consistent manner across licensing specialist; or 4) exempt small businesses from this provision to avoid their extinction.


Although I can see the argument that each one of these items individually may not be all that significant, they are not being adopted individually, they are not being considered in the current calculations for the rate rebase and they slowly, incrementally, unnecessarily and inevitably add to the administrative burden/cost of the unfunded mandates that have already become the straw that broke the back of many providers who have had to recently close locations – this just makes it worse and worse. While many of these closures have been blamed on staff availability due to the low reimbursement rates and that is surely a significant factor, the exponentially increased administrative burden of the new regulations have also been a significant factor as they take money away from what could go to pay increases, take time away from supervisory supports to develop and retain good staff, reduce the availability of supervisory staff for service provision and foster high turnover rates in supervisory staff. When I first began operating group homes the entire administrative burden took approximately 25 – 30% time and the rest was spent on direct provision service, now the administrative burden takes 80 – 90% of my time, even though we now serve less people, which leaves very little time for service provision and staff retention supports and really makes the job frustrating, unrewarding and negative which is also contributing to closures




CommentID: 116741

11/26/21  11:58 am
Commenter: john humphreys

Staffing Concerns

12 VAC 35 – 105 – 440 requires that all DSPs receive a full regimen of orientation trainings within 15 days of hire and the proposed 12 VAC 35 – 106 – 290 – B1 – further restricts the training period to only 14 days. While this is often more than sufficient time for individuals who accept a full-time position and have no other job, this provision occasionally creates barriers to hiring part-time individuals and to starting the training for full-time hires while they work out their notice at their previous job. For example, we have had to decline part-time hires (who would have been very good at the job) because their existing full-time position, family and other responsibilities only made them available for training on the weekends or for a reduced number of hours on a reduced number of days during the week, that would not have permitted them to complete the initial training within the 2 week timeframe required by the regulations; the same factors prevent a jumpstart on training efforts for individuals while they work out their notice at the job they're leaving, creating unnecessary delays in their availability once their notice at their old job is complete. Hiring is extremely difficult and the available pool of applicants are very weak, artificial provisions that serve no realistic function, provide no additional benefit to individual protections/services and deter the hiring of individuals because they have other things going on in her life need to be corrected to address this growing concern. RECOMMENDATIONS: 1) remove the strict time requirement and replace it with a provision that does not permit new hires from being a part of the staffing plan, having independent contact with individuals served and/or providing any supports until they have completed the full introductory training regimen; 2) exempt small businesses and/or part-time/working out notice hires from the provision.

12 VAC 35 – 107 – 80 – E2 and 12 VAC 35 – 108 – 80 – E – both contain provisions that would require a written competency test for each annual ISP/part 5 plan and additionally for each addendum to that plan throughout the year based on emerging circumstances, reassessment and/or quarterly review. These provisions fail several of the review criteria, as they are completely unnecessary, excessively burdensome and failed to minimize the impact on small businesses. 1st – these provisions are completely unnecessary to protect the health, safety or welfare of the individual served, as a written test provides no additional evidence of a competent understanding of the material beyond that which could be established by verbal interaction and verbal verification of a competent understanding (what we do now); the test alone would be insufficient to verify competency (as the actual implementation of the elements is where competency verification can be done most effectively) and ongoing supervision of individual DSP efforts to implement the plan, maintain DBHDS competencies and meet the needs of the individual provide superior evidence of competency for implementation that render a written test superfluous. 2nd – a written test requirement creates another unnecessary, significant and unfunded mandate not considered in the current Burns rebase analysis; not only is there the additional administrative time in creating, printing, proctoring and grading the test, there is also the fact that because of personnel limits most training for full-time individuals has to be done on overtime hours which greatly increases the cost of any additions to the training time and these problems are magnified considerably when the proposed regulation requires written test not only annually for each individual, but multiple times throughout the year whenever reassessment, tweaks and/or minor addendum's to the plan are made to keep them up-to-date; resulting in a very real time and money resource drain for no net benefit; 3rd – this requirement would be particularly onerous for small businesses that have very limited administrative staff/time/resources, very few part-time employees and frequent/close staff supervision. In fact, the provision could have a negative impact on staff training for new plans/elements, if the provider created a very simple/obvious answer test and administered it in lieu of training to document the competency. If the provider is more diligent/dedicated than this to begin with then they would already be doing the training, verbal verification of competency and follow-on supervisory observation that makes the written test meaningless. This provision does nothing for the services of the individuals, it just provides another mechanism for bureaucrats to set at their desk in Richmond, conduct remote reviews and check all the boxes regardless of what the provider is actually doing. RECOMMENDATIONS: 1) delete the written test provision and require training with verbal verification of competency; 2) provide an option for verbal verification of competency if it is documented by the supervisor post training; 3) exempt small businesses from the onerous burden of the requirement.

12 VAC 35 – 106 – 240 –D1- requiring annual disclosure statements on convictions across all employees –The annual disclosure statement documentation requirement in D1 of this regulation is rendered unnecessary by B2, fails to efficiently reduce risk to individuals due to delayed reporting, creates another additional drain on resources not included in the Burns analysis and fails to minimize the impact on small businesses. The regulatory requirement in B2 creates an affirmative burden for each employee to report any conviction of a barrier crime and/or found registry complaint for abuse or neglect; which would accomplish the objective of an annual disclosure statement with more immediacy than waiting till their one-year date arrives and requesting information then. If an individual decides to omit this information from their reporting when it becomes relevant, then that same individual would appear to have no qualms whatsoever about lying on the annual disclosure statement as well – rendering the annual disclosure statement useless when it's actually needed. The regulation creates an additional time delay in reporting, as it is dependent upon "convictions" and "founded", which would delay any reporting until after the investigation and in the case of convictions possibly for several years as the case worked its way through the courts. We require immediate reporting of any arrest for a barrier crime and/or the initiation of any DSS/CPS/APS investigation, while we may not take immediate action and wait for the case to be resolved, this early reporting requirement permits increased observation/supervision, internal investigation and a timely opportunity to protect individuals if the specific circumstances appear to warrant action. Again, this approach renders the regulatory requirement for an annual disclosure statement useless for the protection of individuals, it just provides another mechanism for bureaucrats to set at their desk in Richmond, conduct remote reviews and check all the boxes regardless of what the provider is actually doing. As a result, this provision merely represents another incremental increase in resource cost for both administrative time and money that is not included in the Burns analysis won't be reimbursed and becomes another straw that may be the one that breaks the camel’s back. Of course, once again no effort is made to apply the applicable law and minimize the impact on small businesses where both the administrative time and cost will have the maximum impact and any additional benefit is much more unlikely as the small provider in a small community is much more likely to be able to monitor these concerns through the local media and internal grapevine given the gravity of the offenses and their particular circumstance. RECOMMENDATIONS: 1) delete the annual disclosure statement; 2) Strengthen the B2 requirement to include arrest and/or the initiation of an investigation; 3) exempt small businesses from the onerous burden of the requirement.

12 VAC 35 – 106 – 250 – A2- verified education history for all hires – While this may make some sense for college degrees, advanced certifications and other supervisory/professional staff education claimed on their resume, it is an unnecessary, problematic and resource draining inclusion for basic DSP hires where only elementary/high school education is indicated in their application. 1st – given the dramatic decline in elementary/high school education to achieve even basic progress standards, grade inflation and the focus on social indoctrination over actual academic skills in elementary/high school education even if verified this is no longer an indication of relevant skills and direct provider verification of the basic skills necessary for the DSP position during the DSPs early probationary period is the only way to adequately verify that they have sufficient academic background to meet the job requirements – making these verifications useless. 2nd – while transcripts, certificates, continuing education credits etc. are verifiable with some effort, verifying someone's elementary/high school attendance and graduation is extremely more difficult and given the increased focus on privacy may not be possible to accomplish – how does the state suggest we verify education at these levels. 3rd – this represent yet another additional unfunded mandate not considered in the Burns analysis that will be costly in terms of both time and other resources and this impact will fall disproportionately on small providers who have more limited resources, given that no effort is made in the regulatory inclusion to minimize the impact on small businesses. RECOMMENDATIONS: 1) Delete A2; 2) exclude elementary and high school education verifications from the requirement; 3) Provide a good faith exception if the provider documents that they attempted to verify elementary/high school but were unable to do so; 4) provide an exemption for small businesses to reduce the disproportionate burden on them from this requirement.


12 VAC 35 106 – 560 – B - Driving records – this section includes several unnecessary elements that in no way contribute to the health, safety or welfare of individuals served, the requirement in B 2 makes the random sample annually in B1 unnecessary, creates an additional administrative time and resource drain, creates a disincentive to accept an offer of hire and again contains no elements to minimize the impact on small businesses who would be disproportionately affected by the administrative time/cost. 1st – the B1 requirement that the provider obtain driving records from all employees and contractors at the time of employment is unnecessarily broad; if the employee/contractor will never be used to transport individuals served and it is not a part of their job description then there is no reason whatsoever to have a copy of their driving record to accomplish the intent of the proposed regulatory inclusion. 2nd – the affirmative duty for all employees to immediately report any conviction of driving or operating a vehicle under the influence or reckless driving in B2 is sufficient to accomplish the intent of the regulation without the random sample annual checks included in B1, making the required annual checks duplicative and unnecessary. 3rd – the annual random sample of driving record checks is also rendered unnecessary by the existence of liability/vehicle insurance which includes a driver's list, as when anyone on the company driver's list is convicted of these offenses, the insurance company (that regularly monitors for changes in individuals on the driving list) will notify you immediately and change your insurance rate; a process that would accomplish the intent of the proposed regulation much more efficiently and timely than the inclusion of an annual driving record check. 4th – a reliance on convictions and the annual requirement create the same time delay flaws as the annual requirement for a background check disclosure statement and they should cross apply here. 5th – obtaining a driving record creates an additional drain on administrative time and has an associated cost, the increased administrative burden is unavoidable if the regulation remains and the cost of the driving record would either have to be paid by the provider or the individual employee (who would also have the time/inconvenience burden of going to the DMV to obtain the record) further dis-incentivizing accepting/maintaining employment in our field. RECOMMENDATIONS: 1) Change the requirement for an initial driving record check in B1 to only apply to those individuals whose job description includes transporting individuals served; 2) Delete the requirement to obtain a random cross-section of driving records annually; 3) Provide an exception if the provider documents that they have all employees/contractors who will transport individuals served on a drivers list filed with an Insurance company; 4) provide an exemption for small businesses to reduce the disproportionate burden on them from this requirement.


12 VAC 35 – 106 – 290 – C – annual repetitions all employee training, represents an unnecessary expansion of employee training requirements, that significantly increases the resource drain on providers and has a disproportionate impact on small businesses that is not addressed in the regulation. 1st – the increased requirement for annual repetition of all initial employee trainings is unnecessary and provides no benefit to the health, safety or welfare of individuals served for a variety of reasons: ongoing supervision and the continuous observation/lapses documentation of the required competencies, renders these retrainings superfluous as any lapse in the employees/contractors knowledge (which the retraining's are designed to prevent) would be detected in real time rather than waiting to the end of a full year. Additionally, the requirement in C2 would require retraining of the offending individual and all other staff in the event that a knowledge, service or other lapse was detected/observed in the actual provision of services, which again makes the annual retraining not only unnecessary but also duplicative when actual concerns exist. This approach is actually more beneficial as it avoids the time delay of waiting until the annual date to address knowledge lapses, making this a much better way to address the concern that the regulation tends to address. These inclusions only serve to punish diligent/dedicated providers, who use ongoing supervision to instill a corporate culture which adequately addresses all of the elements which would be included in the retraining’s and provide real-time training whenever knowledge lapses appear, while having no impact whatsoever on less diligent providers who will simply pencil whip through the training requirement providing no real value in addressing the intended concerns – so it's unnecessary in most cases and useless in those cases where it would be beneficial. Finally, even if they wanted to keep the existing annual requirements there is no demonstrated necessity to increase these into new areas as done in the proposed regulation. 2nd –The annual training requirements represent a significant increase in cost of administrative time and other resources. In order to be comprehensive each of these trainings would require significant amount of time both administratively to develop, type, print, administer and grade the training effort and a significant increase in employee cost as they expect to be paid for the time spent in training. It is important to note that just like the previous Burns analysis, none of these expanded requirements will be included in the current Burns analysis for the rate rebase and again all of these cost become another unfunded mandate adding to the already excessive burden on provider resources. 3rd – the impact of this substantially increased resource burden would fall disproportionately on small businesses, as they have much more limited administrative staff to eat the increased time requirement and they are reliant on mostly full-time employees with very few part-timers which assures that most of these additional trainings are typically provided to employees/contractors at the overtime rate significantly increasing the cost from both concerns to small business providers; which is not addressed in the regulations. RECOMMENDATIONS: 1) Delete the blanket approach to annual retraining's and replace the requirement with a stronger C2 requirement to provide retraining across staff to address specific incidents where knowledge, service or other lapses have been demonstrated; 2) reduce the number of areas where annual retraining's are required to reduce the cost; 3) provide an exemption for small businesses to most of the annual requirements to accommodate the disproportionate impact that these regulations would have on their resources


12 VAC 35 – 106 – 310 – B – annual tuberculosis training is yet another unnecessary, costly/burdensome requirement that disproportionately impacts on small businesses. 1st – the annual requirement serves no function as the necessary information is limited, does not change over time and is unlikely to impact on the basic knowledge base of anyone more than the initial training. This requirement is also rendered unnecessary if the provider includes a provision in their policies and procedures which requires immediate reporting, as a condition of employment, of either contact with a known case of active TB or the development of TB symptoms lasting 3 weeks. Active supervision/observation of staff also makes the annual training requirement unnecessary – if any employee reported to work demonstrating the symptomologies listed a diligent provider would develop a concern in the 1st few days much less 3 weeks that would require them to directly address the concerns with the individual and create an opportunity to provide symptoms retraining in real time that would be far superior to waiting for the annual training date to arrive; making the annual training duplicative, superfluous and unnecessary. 2nd – the annual requirement represents yet another increased drain on resources both in terms of administrative time and payroll cost that is not included in the Burns analysis and just becomes another additional unfunded mandate added to the already excessive onerous burden. 3rd – the resource drain in terms of administrative time and cost would fall disproportionately on small businesses due to the factors indicated above and no provision to alleviate this increase burden for small businesses has been included. RECOMMENDATIONS: 1) Delete the annual retraining for TB; 2) replace the annual training requirement with a requirement for all employees/contractors to immediately report any of the events included in C; 3) provide an exemption for small businesses to the annual requirement to accommodate the disproportionate impact that these regulations would have on their resources



CommentID: 116742

11/26/21  12:00 pm
Commenter: john humphreys

experience as a substitute for degrees in residential settings

12 VAC 35 – 105 – 590 – C7; 12 VAC 35 – 107 – 160-C7 and 12 VAC 35 – 108 – 120-C7 All include the phrase "experience may be substituted for the educational requirement"-this phrase and its prior equivalents have been an extremely problematic inclusion in the regulations for many years, which has been addressed in repeated comments by this writer and more recently expressed as a concern by other regulatory commenters; however, the regulatory inclusions listed above represent the 1st substantive change in this regulatory concern that I am aware of after all these years. Unfortunately, the change is insufficient, counterproductive and creates new unintended concerns: 1st – the change fails to address any of the concerns, possible benefits and negative impacts of this inclusion which have been addressed repeatedly and are reposted below. 2nd – the primary difference of the recent change is removal of the QDD/IDP title association within the section, which is counterproductive both for the regulations protects for individuals served and in addressing the concerns previously noted. By removing the association of the QDDP title from this section of the regulation it divorces the educational substitute from the knowledge, skills and abilities that are essential for providing DD/ID services/supervision, and would presumably allow more generalized experience which neither serves the intent of the regulation nor the health, safety and welfare of the individual served. This is also counterproductive for individuals who wish to employ the educational substitute for their career advancement as in addition to the concerns noted below, it reduces their ability to provide a recognizable, accepted and germane addition to the alphabet soup post sign off on any official documentation, which the regulators appear to value so highly. 3rd – the recent change, perhaps inadvertently (perhaps not), would exclude a registered nurse who is in good standing with the Commonwealth but used one of several other avenues (besides a bachelor’s degree) to obtain their registered nursing certificate from automatic qualification. Given the dedication to care, knowledge, skills and abilities necessary for obtaining a registered nursing qualification, whether they have a bachelor’s degree are not these individuals should surely not be excluded as they currently are due to the change.


Significant additional consideration needs to be given to greatly improving the implementation of this phrase in the regulations not only to prevent grave injustices, but also, to improve individual services and alleviate our severe and growing staffing concerns; given the insufficient reimbursement rates as outlined in this reposting:

Experience may be substituted for the educational requirement.” This sentence adds an entire class of individuals to the regulations without providing any clarity whatsoever as to their title, roles, rights and privileges. The guidance document for determining functional equivalency provided some standards but is wholly inadequate by itself for the effective identification, verification and use of this class of individuals – functional equivalents. Overreliance, on this single sentence in the regulations has had a negative impact on utilization of this class of individuals.

  1. Devalues an entire class of individuals who have demonstrated exemplary professional performance in serving this role. The current regulation permits the existence of functionally equivalent individuals without any direct recognition (title) or inclusion in the regulatory rights/privileges implied for QDDP’s (holding a license, independently operating a home, training/supervision at upper levels etc.). Individuals in this class, who have clearly met the standard and are performing the function well, are reminded daily when they sign off on paperwork and are unable to know what letters to include after their name to meet the requirement/current vogue for establishing their bona fides on each document. These individuals also find themselves in a regulatory limbo as to what duties they can legitimately perform, as the areas required in the guidance document for establishing functional equivalency appear far broader than the regulatory inclusion (or maybe not, really no way to know). This regulatory limbo is destructive to the morale of individuals who fulfill this function, excessively limits their career advancement opportunities and represents a basic unfairness to the individual who is dedicated a lifetime of work to serving individuals in the population.
  2. Disincentivizes the development and utilization of functional equivalents. The current regulation permits the existence of functional equivalent individuals but provides no verification process that would formalize the acceptability of and Individual in that role. Licensing agents will not review the material that establishes equivalency and/or provide written verification that an individual has been determined to meet the standard and neither they nor the department can point you to anyone who will verify that an individual meets the standard. As a result, the Individual and the provider can never be sure if the individuals work product will actually be acceptable to the state, since there are no objective standards nor verification process, any one individual can retroactively be declared unqualified by the state and all of the work/billing they’ve been responsible for disallowed. This regulatory limbo provides a clear barrier to providers investing in the development of functional equivalents. Additionally, this factor coupled with the regulatory limbo for acceptable roles for the functional equivalent incentivizes underutilization of individuals who have developed the knowledge, skills and abilities on their own through decades of experience, limiting the utility of a potentially significant staff resource.


Both individually and collectively these factors significantly hinder the interest in and development of this potentially valuable staff resource and makes the use of functional equivalents much less prevalent in the current service environment.

Reduced utilization of functional equivalents has negative impacts on the employee class, service quality and business operations that fall disproportionately on small businesses.

  1. Individuals in the functional equivalency class of employees are treated unfairly. Remember here that we are talking about individuals who through decades of service, training and experience have empirically verified their ability to demonstrate and implement all of the knowledge, skills and abilities required of a QDDP in the provision of their services. However, the system devalues their contribution, creates barriers to professional growth and prohibits them from obtaining the recognition they duly deserve; seemingly dismissing all the hard work they endured to achieve the status and making it an apparent dead-end.
  2. Exacerbates the staffing crisis reducing overall service quality. Service quality is impacted in 2 ways 1st the quality of the overall labor pool is reduced; by dis-incentivizing the use of functional equivalents these individuals are excluded from inclusion in the available supervisory labor pool up front and over the long-term quality employees will leave our services in search of employment that recognizes and rewards their empirical knowledge, skills and abilities (they have lots of options for this). Underutilization of functional equivalents also inflates the wages that have to be dedicated to supervisory staff, as a result of college graduates seeking/feeling entitled to a more significant wage, which directly draws from the overall allocation to wages in the organizational budget and results in lower wages for all DSPs making the direct service positions less attractive to quality individuals. 2ndoverreliance on college graduates reduces service quality –individuals with college degrees who we can hire at the currently low pay rates are seldom if ever superior to the individual with decades of experience and given the wages that we can pay these positions are frequently filled by new graduates or existing graduates who exhibit frequent job hopping, both of which introduce significant turnover in these vital roles undermining the familiarity, stability and continuity of services for individuals served. The use of new graduates is particularly problematic when they are put in charge of DSPs with years of experience, generating resentment among seasoned DSPs who believe that you can’t lead the charge unless you’ve been in the trenches; resulting in decreased morale, supervisory dismissiveness and tensions, all of which impact negatively on service quality. Even more problematic is when the season DSP has to perform roles/functions for the individual with the new or existing college degree, because they simply lack the understanding that can only be gained from years of experience with the population and in providing the services and all of these concerns become significantly exacerbated; decreasing service quality.
  3. Business operations, particularly that of small businesses are significantly hampered by a labor shortage/crisis. At the simplest level, forcing reliance on college graduates significantly increases the labor cost for that position, which is a cost that will fall disproportionately on small businesses because they lack the economies of scale, double dipping and multiple career paths that are enjoyed by large bureaucratic businesses. Additionally, the inability to identify and hire qualified college graduates particularly in rural areas has become a significant constraint on our ability to maintain much less expand service provision in the Commonwealth. Reduction in the regulatory disincentives to the development of functional equivalent individuals to fill these vital roles would significantly increase the availability of qualified supervisory personnel who could help fill a significant labor shortage in our field. The refusal of the state to include cost-of-living adjustments and/or regularly scheduled rate refurbishments in the regulations, ensure that the labor crisis in our services will only get worse as inflation and more competitive wages elsewhere draw individuals away from our agencies and the state disincentivizing the development of this potential labor pool makes the crisis more acute; ignoring a potentially significant source of relief.

Recommendation: recognize these individuals formally in the regulation by providing them a title (suggest QDDP functional equivalent), provide a regulatory mechanism which permits verification of their status by DBHDS and recognize regulatory rights for the individual who has achieved that status (i.e. qualifies to hold a license, preform all QDDP functions explicit or implicit for that service and establishes equivalency by regulation).

CommentID: 116743

11/28/21  1:32 pm
Commenter: john humphreys

Small business demise

Small business extinction - the department has been increasingly hostile to small businesses, this is not an opinion, it's not the way I "feel" it's a demonstrable fact for which there is ample evidence; consider: 1) the Burns rate setting analysist stated during the question and answer session that the rate setting formula only permitted a profit for the business if they exercised "economies of scale" which is impossible for very small businesses; 2) the current criteria for reimbursement used by the department to implement these rates also significantly disadvantage small businesses, in 2 independent ways: a) the incrementally increased penalties for group home size via the reimbursement rates disproportionately fell on single location small businesses and required expansion into multiple locations and a larger bureaucratic organization to avoid the penalties. b) The use of a "day" as the only billing unit allowed large bureaucratic organizations that offer day support services to double dip each day into the reimbursement pool for each individual in their care, an opportunity denied to small providers focused solely on providing  residential services, unless they were to become larger and more bureaucratic to include day support services – Interestingly, when Covid closed day support programs large providers (who were double dippers) were quoted in the Richmond Times Dispatch lamenting that the day rate for residential supports alone was insufficient to cover the cost of the services; something very small providers said at the outset and have been battling since; 3) when making regulatory changes the department has repeatedly attempted to use pretext to dis-incentivize or prohibit successful business models for small providers (i.e. several efforts to eliminate the shared residence group home model, which so far have been unsuccessful and 4) regulations that have been adopted and proposed uniquely, disproportionately and unfairly have a significant negative impact on very small businesses. While several examples are included in other comments, multiple examples in response to every proposed regulation can be found in those comments and the most damning fact of all in this regard is that the department, to my knowledge, has never in their history adopted are proposed regulations including any exemption or accommodation for small businesses as is required by Virginia state law; Section 2.2 – 4007.1 provides clear requirements “to minimize the economic impact on small businesses”, “consider utilizing alternative regulatory methods” for small businesses (listing 5), avoid regulations that “overlaps, duplicates… federal or state law or regulation” and “minimizing the adverse impact on small businesses”.

This continues:


12 VAC 35 – 106 – 20 – definitions – sows the seeds of small business extinction, specifically: the definition for a change of ownership is unclear in 2 respects;

  • number 3 the division of one entity into 2 or more would require the issuance of a conditional license (12 VAC 35 – 106 – 80 – D3) with a limitation of only one four-person or less group home (12 VAC 35 – 106 – 50 – G); it appears that all of the new entities including the parent organization that is being divided up would have start with a conditional license and a limit on the number of homes/persons; which prevents a small business from divesting of a portion of the business but retaining the remaining portion (if it exceeds one group home or 4 persons) – It is also important to note that this provision would apply to almost any change of ownership initiated by small business owner as the requirement of a conditional license with location/person restrictions would require all but the most tiny of operators to divide the locations up into separate offerings for different persons and preclude the transfer of the small business intact, which greatly diminishes its value .
  • The definition for a change of ownership does not include the death of the business owner/license holder and it appears that this would be considered a succession under the definition of succession plan; however, it is extremely unclear as outlined below if the exclusion from the definition of a change of ownership also includes exclusion from the conditional license/other requirements that apply to a change of ownership.

RECOMMENDATIONS: 1) the regulation should clarify that if an organization is split into 2 or more entities, then the parent organization which holds a full license in good standing can retain that license and need not move to a conditional license; 2) the regulation should include an exemption that allows a small business to change ownership as an intact entity to retain its value and avoid extinction


12 VAC 35 – 106 – 50 – definitions – "succession plan" – requires a written signed statement "by the license holder which identifies a new license holder in the event of the current license holder's death". What is not made clear by this definition is the meaning of the "new" in the identification of a different license holder; depending upon the interpretation, it could be restricted to organizations that currently hold a full organizational license or it could allow identification of someone who would be a 1st time (i.e. new) license holder who would then have to make an application and be subject to those rules. Regardless of which interpretation eventually emerges, the extinction of the small business would be guaranteed when the current owner dies. Simply there would be one of 2 choices, either identify an existing holder of a full organizational license who could then subsume the small business intact (see below) into their larger organization and small businesses is dead or you could identify a new person who had to apply for a new license but they could only receive a conditional license and operate one location of 4 or fewer persons, meaning that only the tiniest businesses could be transferred intact, that any economies of scale they had developed for survival would be lost and a thriving/successful small business would die. Probably doesn't matter to most people, but in either case to get the new license the name of the business would have to disappear and all the years of dedication, sweat and tears that went into building a respected business name would simply die with the original owner/license holder, which I find heartbreaking and sad. Perhaps, there's an outside chance that there's a 3rd choice and the owner could identify a new person to take over the existing license, who could then inherit the business intact and continue its operations under the same name/reputation but this would appear to run afoul of the prohibition on the transfers of licenses found elsewhere in the regulations (12 VAC – 106 – 50 – C). Finally, I would note that other than this definition and a requirement to have one (12 VAC 35 – 106 – 470), the regulations do not address directly nor indirectly any requirements/ restrictions/rules or other clarifying inclusions that are specific to a succession plan; since they are not included in the change of ownership definition which is further defined, there appear to be no other applicable provisions making this requirement extremely vague and subject to the arbitrary/capricious interpretation. RECOMMENDATIONS: 1) Definition should be clarified and the body of the regulations should directly clarify the process/requirements of succession; 2) the regulation should include an exemption that allows a small business to change ownership as an intact entity to retain its value and avoid extinction.


12 VAC 35- 105-50; 12 VAC 35 – 106 – 40; 12 VAC 35 – 106 – 50; 12 VAC 35 – 106 – 80 – taken collectively, these provisions cemented into stone the following conditions:

1) A conditional license is the only one that will be issued whenever a person who does not hold a current license, a change of ownership and/or a desire to transfer and a current license holder who subsumes the operations from another license holder.

2) conditional license holders are limited to one group home with 4 or fewer persons during the conditional license period; while there is no mention of sponsored placement homes but it appears, the same logic would be operational there as well.

3) The one exception to the conditional license limits, are also limited as 106 – 50 A1f – states "once a provider holds a full organizational license, the provider may have more than one additional service on a conditional license". However, this does not appear to include more than one group home location and this would limit the choices for intact moves in succession/change of ownership to those entities which already held a full organizational license.

The inevitable result of these 3 conditions would ensure the extinction of small businesses as it precludes any choices that would allow the small business to continue intact, economically viable and under the same name. Consider the choices available:

  1. the small business goes to an entity that currently holds a organizational license – if the small business had more than one group home location or one that served more than 4 individuals that it does not appear even that entity could subsume the small business intact and even if it could that's exactly what would happen – it would be subsumed, the name disappear and the small business would die, while the parent organization would grow into an even larger more bureaucratic entity.  


2) the small business goes to new license holders – again if the business had more than one group home location, one that served more than 4 persons or offered more than one service, the small business would have to be broken up into several component parts so that each of the new license holders could hold a small enough piece to qualify with their conditional license, which would require several business names, lose the economy of scale necessary for profitability and again the small business would die.


Either of these choices and/or a combination of the 2 would have the exact same outcome the small business would cease to exist as a separate entity and large bureaucratic businesses would continue to feast on their remains and grow even larger, more bureaucratic and further removed from the Individuals served.

Consider the circumstance of our very small business, regulatory burdens and reimbursement penalties forced us to reduce from 2 group homes (with plans for a 3rd where the property was purchased, the blueprints drawn up and initial contractors secured) down to only one 4 person group home and 1 sponsored residential home; but even for a business that small these rules would make it impossible to transfer the business intact and keep its name. While not perfect, over the past 19 and a half years, it has consistently demonstrated substantial compliance with the regulations (1 founded human rights violation – confidentiality breach in 2009 without harm; only 4 licensing citations with CAPs – 3 for med error without harm/ER or physician visit and one for the designated smoking area when licensing agents/ interpretation changed) and when these concerns did appear the corrective action that was eventually accepted had already been completed prior to the citation and in the others, the propose corrective action was completed before it was accepted/approved. In addition to substantial compliance with the state regulations, the organization has never received a violation nor recommendation of change from a DMAS review, 2 rounds of HSAG/PDQR reviews and has been the deemed as in compliance with the final rule HCBS rights requirements. This clearly establishes that the policies and procedures, practices, administration supervision and services/protections of the organization are sufficient to justify continued full licensing of the organization. We had a succession plan in the event of the owner/license holder death, that provided for the House Manager, who has been with the organization since inception and one of 2 administrators/supervisors, thus qualified and an integral part of the organization compliance, to take over and all of the corporations stocks, assets and accounts were set to transfer to her in the will. Under this regulatory set that will not be able to be possible, she will be cheated out of all that she has work for to build the organization, the individuals served (2 of them for over 18 years) will lose their home and a successful small business with a good reputation will simply die. This should not be an acceptable result, the problem is further magnified for businesses that are slightly larger than ours, but as this example indicates even very small businesses will be on the chopping block and their extinction assured.

RECOMMENDATION: change these provisions to prevent this injustice and the extinction of small businesses, through either an expanded clarification of succession that allows for the transfer of the business intact to an involved individual who qualifies or create a small business exemption which accomplishes the same function

12 VAC 35 – 106 – 40 – B1 applications and 12 VAC 35 – 106 – 470 – 1 - policies – both have a required inclusion of 3 words "a succession plan", again leaving its parameters unclear and undefined. This truly represents the final slap in the face for the small business owner/license holder, as it would require them to make the cruel choice of how their small business they have poured years of their life, blood, sweat and tears into is going to die and become extinct. Also, it is extremely unclear how this provision would operate in the real world, several concerns readily appear and there is no guidance in the rest of the regulations about how they could be resolved; for example:

1) identifying the new license holder – if the new license holder identified has to be an existing organizational license holder, then it would appear to create an obligation on the provider to obtain agreement from an existing organizational license holder to be the new license holder identified in the providers succession plan (or does the state just suggest we name without informing). Obtaining agreement to become the new license holder may well be problematic, the low reimbursement rates, onerous regulatory burdens and staffing shortages have led to the closure of many homes; why would individuals closing homes within their own organization be willing to take on the burden of someone else's organization? This problem becomes even more significant when the small business has more than one group home or one that is larger than 4 persons, as identification of multiple organizations/individuals would be required in order to assign responsibility for the individual pieces. If no one agrees to be identified as the new license holder what is the responsibility of the provider at that point?

2) workability – I'm not exactly sure on the intent of this provision, if it is to have operations subsumed into that organization to provide continuity of services, several problems have the potential to prevent that intent from working out in the real world. For example, what if the property/home where the deceased license holder conducted operations, was not the property of the business, would the new license holder identified be required to purchase a property, if the owner of the property no longer wanted operations there but had other uses for the home. Also, when identified in the succession plan as the new license holder what exactly goes along with that upon the death of the license holder; surely, the department can't be suggesting an automatic trade-off of the individuals served, as they are not the providers to assign, it would require informed consent protections. Does this provision assume in succession planning that other company assets, staffing or funds/line of credit moved to the identified new holder and if not why would they take on the additional burden with no benefit? What if the entity identified as the new license holder changes their mind once the current license holder is deceased and declines to accept the responsibility?  What if the identified lack the financial resources to meet the 90 day emergency requirement or to continue the operation? There are simply a lot of unanswered questions here that would need to be addressed in the regulations to make a succession plan practical.

3) Misplaces the burden for continuity of services – the individual provider has no effective mechanism for vetting other license holders or most others who may be willing to accept being identified as the new license holder in the succession plan; however, the state/department has an entire apparatus that is designed for vetting license holders and others, making them the most qualified to secure new placements on the event of a license holders death. The current license holder may not want the organization/license to continue on or they may not be able to find anyone to identify who meets their standards – does this create an obligation to choose blindly just to meet the regulation. More importantly, this requirement is a simple passing of the buck for all the negative consequences/concerns that the conditional license requirements/restrictions introduce into the smooth transition of a small business upon the death of the owner/license holder. If the business owner is precluded from transferring the property, business and operations to the individual of their choosing due to the regulations, why should they then become responsible for finding a variety of entities willing to be identified as the new license holder in their succession plan? To force the individual provider to clean up the mess created by these restrictions is completely unreasonable, unworkable and indefensible.

RECOMMENDATION: withdraw this provision and give this concern a more thorough analysis that identifies pitfalls and unintended consequences and propose at a later date a greatly expanded clarification/requirements/exceptions regulatory set for succession plans

CommentID: 116744