I think reporting improper behavior, when it occurs, to DBHDS is appropriate. My concern is that employers may sabotage employees efforts to find employment.  If the individual is a current employee, will the employer be expected to dismiss the current employee if they give a bad character reference? How will the employee counter false claims by current or previous employers?  I understand the signed consent is much like asking for a reference from your employer.  A current employee may fear retaliation if their current employer gets a request.  

Character, ability and fitness for employment are all items which can be very subjective in nature and live in the 'gray' area. Regardless of the permission granted by an individual for this information to be obtained, this certainly feels like a lawsuit waiting to happen. An individual may not be a good fit for one organization or serving a certain group of people but may be very successful in a different capacity.

So if the comment is that the person was unsatisfactory and therefore they do not get the position for which they applied and then they sue me or my agency, what protections or assistance is DBHDS offering? No way is anyone going to give a negative statement without protection from lawsuit. Likewise, if a positive statement is given and the person gets the job then later acts badly and claims the previous provider allowed it, what then? This is unenforceable and feels like lip service to show DOJ compliance. DBHDS needs to create a confidential database where contractors or employees terminated for cause can be listed without being attached to any one agency or employer if what they are concerned about is client safety, and DBHDS needs to staff it. 

I thought background ground checks where mandatory for all Virginia employees working in the field of Direct Support professionals or any field where one is working in close contact with disabled individuals. So why would the providers be expected to police this? 

Why is there no registry of abuse/ and neglect of disabled individuals? I'm not understanding the lack of this data being kept since the state is constantly updating CHRIS reporting methods and giving out citations for suspected abuse/ neglect etc.? Why would we share background checks with other agencies when they are supposed to be doing their own background checks especially since we pay for all of our background checks unless they are going to all of the sudden become free. Then are we not required to complete our own background checks and we can use another providers? If so is there a timeline for when we can use and ask for it form another provider? If another provider asks for a background check that costs us money to get can we charge them the money?

Couple things about this regulation... the intent makes sense and is greatly appreciated, but the language dances around that intent and puts all the pressure in the wrong places.

My first concern was immediately that businesses will be sued by former employees who are denied a new position and then request the statement required by this regulation (perhaps via the Freedom of Information Act).  

But the following excerpt from Virginia Code eases that concern a little:

"§ 8.01-46.1. Disclosure of employment-related information; presumptions; causes of action; definitions.

I like the idea of getting a report from the past employer, but frequently you are asked not to call them for fear of being fired from where they are currently working.  Rarely, will the former employer give a detrimental report.

The better way to handle this is to have DSS handle the reports and check for IDD employees as they now check for CPS.  This would be a third party evaluating the complaints from the employer vs employee.  This system hopefully would keep everyone honest in their reports.

The CHRIS system keeps information of abuse, neglect and Human Rights infractions, this would also be an excellent back-up or beginning in forming this list.   

Now we can retaliate against former employees behind public policy. I'm thinking of names as I am typing. Thank you!

There are already inherent legal risks of negligent referral as well as liability incurred with negligent hiring.  That said, this opens an organization up to greater liability. 

Too often supervisors working in licensed facilities do not appropriately and accurately document performance and conduct issues in poor performing staff.  This continues to be a struggle in both small organizations as well as larger organizations.  The additional requirement of a written statement of "character, ability and fitness for employment" is an escalation of that struggle in the event the written statement is challenged and/or subpoenaed. 

Beyond founded cases of abuse, neglect or exploitation, a personnel file may not have sufficient documentation to defend a negative statement in court that implicated the staff person in personnel issues for which they were retrained or moved to another work environment.  Ultimately this means the employee would then have greater option to seek civil penalties from a former employer despite protections in Virginia Code.

Even with a signed release, an organization cannot give an honest assessment of a poor performing employee if they do not have the supporting documentation, so instead organizations provide a neutral reference under current circumstances (dates of higher, current standing or eligibility for rehire). 

Clarification is needed as to what would be included in a statement of "character, ability and fitness for duty."

How does a licensed provider go about requesting such information from another provider?  

How is the written consent obtained, documented and shared between the acquiring organization, current/former organization and potential employee?  Is the written consent of the employee requested by the acquiring provider and forwarded to the current or former employer?

Does the current VA code protecting organizations from civil liability (unless the employer acted in bad faith) extend to protecting specific human resources and/or the manager/supervisor as well?  

It seems that ultimately the language of this regulation will just force organizations to make broad, general statements unless there was a finding of adult abuse.  It will not achieve a goal of providing an honest to goodness statement on "character, ability and fitness for duty. "

This is very concerning to us as a small, private provider. We only give limited information for references to avoid any chance of a lawsuit. How will DBHDS support providers if giving information causes an applicant to not get a position and they sue? 

For those staff who have been terminated for things like Abuse, Neglect or Human Rights violations, the state should have some type of database for those individuals and they should be found ineligible to work by the department just as they are if they have certain criminal offenses on their record.

Also, I think many providers are not calling and talking to the appropriate staff to get reference checks from past employers. With the turnover that is common in the field, we should be regularly getting reference checks but don't get them very often. How will we ensure that the appropriate information is even getting disseminated? 

Our concern is for the lack of standardization or clear definition of "character, ability and fitness for employment".  Even with a signed release by a prospective employee, without adequate documentation of any performance issues that may fall under those areas of concern, the employer would be at increased liability to offer such an impression.

Certainly employees with founded allegations of abuse, neglect or exploitation, or grievous performance issues, should not be able to transfer from one provider to another.  However, could not the CHRIS system provide a mechanism for this information?

DBHDS has said they don't want sponsored residential providers from moving to other organizations if they are closed by one organization for regulatory noncompliance... why should this be any different?

They have the ability to track this information already in place.  This additional work (and potential liability) should not needlessly be put on private providers when DBHDS has the capability and authority to manage this task themselves.  

Unlike DBHDS, most private providers don't have the luxury of hiring scores of people to handle administrative burdens.

Don't pass the buck, just take care of this yourselves.  

Requesting that DBHDS defines or develops some standardization for “Character, ability, and fitness for employment” these statements are subjective in nature. Further guidance is needed in order for an agency to give accurate information to another agency. One person’s thoughts/views will not be the same as another’s.

We are concerned with the liability and potential of a lawsuit if we provide this information on current/former employees. Currently, we provide facts not subjective information for references as suggested by our legal counsel.

A possible solution as stated in other comments may be utilizing the CHRIS system or other reporting agency in addition to the background checks that we currently complete on new/potential hires. I have heard that the CHRIS system may be changing software by the end of the year. Could the new system provide a database that would be searchable for employee information?

There needs to be more clarification on what would need to be included in the statement of character, ability and fitness for duty, this is vague and needs more clarification. 

How would a licensed provider request this information from another provider, what is the procedure? Also is there a time frame that would be required?

Comment on Fast-Track Regulatory Action Affecting 12VAC35-105

Character, ability, and fitness for employment are all items which can be very subjective in nature and live in the “gray” area.  Additionally, what one employer considers good and bad may not be another’s employer’s definition.  So, there needs to be more definition and an independent party involved if you really want to accomplish this thought in reality.  Also, a basic tenant of applicant behavior is not thought through in this process that will be explained shortly.  The solution to all of these process flaws as written is for DBHDS to determine through CHRIS reporting and an added background check to DBHDS is a requirement prior to hire to determine whether, for example:

• An applicant was terminated from another licensed provider for violation of abuse, or.
• An applicant was terminated from another licensed provider for violation of human rights,
• An applicant was terminated from another licensed provider for exploitation, or
• An applicant was terminated in a founded case of neglect, abuse, and/or exploitation.

Next, why is the thought process flawed from a basic need of the applicant?  Please keep in mind that applicants do not want a “potential” future employer to check their reference with a current employer until a firm job offer contingent on a good reference from a current employer is required.  This tenant is not considered in what this regulation is trying to accomplish.  It is trying to “weed” out the bad from the good, not protect the current employment status of an applicant to another provider and this is a severe mistake with the regulation as written.  Applicants of a future employer will not want to sign this for fear of some type of retaliation (e.g., being terminated) if a candidate is looking to make a move from one employer to another.  The only way to ensure the protection of the applicant from such happenings if for DBHDS to be the conduit and part of the background process since they are the holders of the information and have agreed with the provider’s findings as to abuse, neglect, exploitation, etc.  Good idea to want “bad” employees not to be reemployed elsewhere, but flawed process otherwise that will keep an applicant from moving from one employer to another because they will not feel comfortable signing away their right and involving their current employer.  Please reconsider from a “good to great” applicant perspective and do not implement a flawed process where there is no DBHDS involvement. 

Finally, from the employer perspective, while there is an immunity clause, my reading is it states the entity has immunity. There are at least two issues with this that are not clarified:  (1) First, does the regulation protect fully the responding individual (e.g., the Human Resources responder, the manager/supervisor who documented the performance) from civil liability for example (there is only mention of the entity and (2) since this is at the State level I am not sure if it would prevail in federal court thus increasing liability for employers, etc.  For the sake of brevity, I’ll conclude by saying that I believe this will create greater liability for employers, etc., and as currently designed the process is a flawed process for “good to great” applicants.  DBHDS needs involvement and to be the conduit within the background check process, not contacting a current employer or past employer.  Please consider process and all stakeholders as redesign is required. 

We appreciate the various concerns expressed about this regulatory change, and want to acknowledge that VNPP had a pivotal role in the initial legislation upon which this regulation is based.  For a number of years the General Assembly has grappled with how to prevent “bad actors” from simply moving around from one provider to another.  JCHC looked at the issue as have others.  Each proposed solution was not a solution:

• Having DBHDS create a registry based on the CHRIS system might be possible, but would not capture all of the information and would require other identifying data about the employee to be maintained in the system
• Creating a roster of eligible staff based upon their application (and no doubt a fee) would still require that current and former employers provide information and that if there was cause to remove someone from the roster, the employer would have to provide the justification and information
• Utilizing a CPS type system (there is yet another bill this year to create that kind of data set) would be ideal, but expensive and a major shift in how APS approaches findings (the individual is in need of protection vs an individual is at fault for abuse/neglect etc)

The protections for employers who provide references is already in the Code of Virginia at §8.01-46.1, but most providers are unaware and are generally cautioned by their attorney to say as little as possible.  The concept of placing the “permission” in regulations is to address that issue. 

This is certainly not the perfect fix and may be replaced in the future with something better, but it seemed at the time to be the best alternative that would not impose greater cost, or be a barrier to recruitment.  It is, of course, still true that it is a challenge to know if a prospective employee lists all of their current or previous positions.  Unlike some careers, DSPs often have multiple positions and therefore a “gap” is not detectable.  And, yes, some do not want their current employer to know they are looking for another position; given that regulation already requires reference checks, this should not pose a greater barrier. This will not solve all of the issues, but we hope you have a better grasp of the intent.

These comments are submitted on behalf of Metro Treatment of Virginia, L.P., an operator of outpatient opioid addiction treatment clinics in Virginia, in response to the proposed regulation set forth in 12 VAC35-105. 

In short, this proposed regulation wrongfully and needlessly exposes facilities to liability stemming from a requirement that each and every facility make a "statement regarding the character, ability and fitness for employment of a current or past employee."  As a prelimiary matter, amy negative assessment of an employee necessarily invities litigation, as such assessments require a factual interpretation that reasonable parties may perceive differently.  In particular, assessments involving "character" and "fitness" are inherently subjective and, as such, provide an employee (whether current or former) with a predicate to file suit should the employee perceive the assessment as negative, uniformed or otherwise unfair.  Even if such claims are utlimately deemed frivolous, the time, expense and effort required of facilities to respond to such legal actions will be disruptive, debilitating and, most important, distract facilities from their essential mission of caring for patients. 

In response to Ms. Fidura's comments in support of this proposed regulation, I respectfully disagree that Code of Virginia s. 8.01-46.1 provides complete immunity to facilities compelled to provide employee assessments of "character" and "fitness" to state regulatory agencies.  A plain reading of this law indicates that this immunity is limited and does not necessarily extend to this proposed reporting requirement.  Specifically, a current or former employee who disagrees with a negative assessment could simply allege that the assessment was done in "bad faith" , thereby allowing the employee to proceed with a lawsuit against his/her current or former employer.    In other words, by merely alleging "bad faith", the employee can easily avoid the law's prohibitions against suits predicated on employement-related information.  Further, the statute is limited to information furnished to a "prospective or current employer" - it says nothing about information furnished to government agencies including, but not limited to, State of Virginia agencies.  

The State of Virginia should not be in the business of compelling providers to engage in activities that invite and increase a facility's litigation risk.  The state has ample tools at its disposal to determine whether a particular individual is fit to work in healthcare facilities falling under the state's regulatory oversight.  Moreover, the state enjoys sovereign protections (none of which are available to the facilities on whom the state wishes to imposed these new, risk-enhancing obligations) that shield it from actions by the person alleged to be unfit to work in a healthcare facility.  Simply stated, the State of Virginia should require nothing more from a facility other than: (i) verification of whether a particular employee worked at the facility; (ii) what the employee's job and/or duties are or were at the facility; and (iii) the time frame during wihich the employee worked at the facility.  Absent any specific, unequivocal statutory grant of immunity (which s. 8.01-46.1 does not provide), an assessment of an employee's fitness to work in a healthcare facility should exclusively remain within the province of the state.  For these reasons, this proposed regulation should be retracted and vacated.  Thank you for your consideration.   

Prince William County CS is opposed to the proposed regulations for several reasons. 

1. The terms "character, ability and fitness for duty" are extremely subjective and mean different things to different organizations.  Unless there is clarity as to the definitions of these terms provided by DBHDS they are meaningless from one organization to another. 
2. Our County policy is to stay away from providing any information as part of a reference that is subjective in nature and only provide facts in relation to a person's prior employment to avoid potential arguments that a reference was provided in bad faith
3. DBHDS should have the information available to them if an employee was involved in a human rights violation or abuse, neglect, exploitation event per the CHRIS database.  It seems to us that a potential employer could run that name through DBHDS to see if the employee is flagged in some why without putting the onus on prior employers.  There are numerous new employees within the incident management section of licensing who should be able to quickly provide this information to prior employers.  This seems as if DBHDS is yet again pushing an activity that they should do (maintaining a list of employees unable to work for a licenses provider in the state of Virginia -- similar to the federal LEIE database).
4. While VA code says employers are immune from civil liability for furnishing information regarding professional conduct that  doesn't stop former employees from attempting to sue a former employer for not getting a job based on a "written" reference and then claiming that it was provided in bad faith especially if the litigant sees deep pockets such as with a County entity. Additionally, while the code indicates that organizations are exempt from immunity it is not clear as to whether the exemptions cover the individual tasked with the reference and or the potential use of federal statutes to pursue litigation. 

PLEASE SUPPORT THE NEED FOR PROVIDERS TO SHARE EMPLOYEE INFORMATION so that we don't continue to employ people who shouldn't be. 

The proposed text indicates a provider’s written statement shall pertain to “the character, ability, and fitness for employment in or to otherwise fill the role for which the person has applied.”  We believe implementation of this provision will negatively impact providers by adding both an administrative burden and unnecessary litigation risks.  The Legislative intent behind the addition was to fill the information gap created by the lack of a state registry for those with founded cases of abuse and neglect.  The required written statement of character, ability, and fitness fails to satisfy that intent in the following ways:

1. The provision as written fails to mention abuse or neglect and rather asks providers to weigh in on aspects of an individual’s performance with is subjective in nature and challenging to collect;
2. As there is a lack of comprehensive regulations regarding abuse and neglect investigation related methodologies and definitions, the provision fails to acknowledge the inconsistencies in standards utilized across providers and the impact such variation has on information shared between providers.

Furthermore, the subjectivity of the information being requested places providers at an increased risk of litigation.  While the regulation addresses civil liability at the State level for the provider, it fails to address the risks associated at the Federal level and for individual staff members. 

Realizing the language in the provision directly mirrors what is required by the Virginia Legislature, we ask that DHBDS provide written guidance indicating draft statement language which will both satisfy a written assessment of character, ability, and fitness for employment AND reduce any litigation risks for the provider.  We ask that any guidance provided by DBHDS provide uniform definitions and methodologies as they relate to investigations into allegations of abuse and neglect.  We further ask that DBHDS provide guidance to assist providers in communicating requests for information to staff and informing as to options of recourse for staff who dispute the information provided.

In regards to the proposed changes we would like to request an opportunity to submit written comments on the changes.

The intent and goal behind the proposed regulations are positive, though the execution is unclear, subjective and costly to providers. There is little in the regulation that would ensure that it is being carried out in a consistent manner. If there was a uniform template with clear measures and objectives for all providers to use this may assist in establishing consistency. This may also help in addressing “character, ability and fitness” which may be defined and measured differently between providers. Another option in establishing consistency and objectivity would be to utilize a registry system or the current CHRIS system in providing feedback to providers about potential employees focused primarily on founded abuse/neglect cases.

Further there is concern that some could use this as an avenue for retaliation against a past employee or someone could claim that this is preventing them from gaining employment. It further seems that when asked specifically to address questions about a previous employee’s character- any response that identifies negative character traits could be identified as defamation of character. These scenarios could lead to legal action against providers and the cost and time could be tremendous to providers. What reassurance can be provided that the release will provide sufficient protection from such legal action?

Lastly, the language in the proposed regulation states “shall” and is taken in that this will be a requirement for all agencies. Will there be an option to not provide this information if the provider is experiencing limited manpower, has received standing legal advice against providing such information or other concerns? What will the implications be for providers if they do not comply with this regulation from the state?

• The description of an employee’s “character, ability, and fitness for employment” can be described differently and will vary from provider to provider. A standardized means of describing and employee’s character, ability and fitness for employment should be developed so that all providers are using the same tool/scale.
• Employer liability would limit the information to what can be consistently documented. Subjective use of this information and categorization of “character, ability, and fitness for duty” would open employers up to liability suits.
• Clarify “or other individual currently or previously associated with the provider in a capacity that requires a criminal history background check to any other licensed provider.” The other individuals should be clearly stated so that providers can meet the expectation.

• Although the Fast-Track Regulation Agency Background Document consistently states there is not economic impact, this is an additional administrative requirement being placed on the provider and therefor a staff must perform the work and the provider must pay the staff to complete this additional work.
• Although the Fast-Track Regulation Agency Background Document states there is not an alternative to this regulatory change, that is not true. Instead of placing additional requirements on providers, the Department should use resources currently in place to capture this data to meet this need.

• Define a timeframe as this creates additional administrative demands on providers without providing additional resources or increases in reimbursement rates.
• Clarify the role of the referenced written statement in the hiring process.

• The VA Code limits employer disclosures to the following: job performance, reasons for separation, performance evaluation or opinion, knowledge, qualifications, skills, or abilities, job description and duties, attendance, effort, and productivity, awards, promotions, or demotions, disciplinary actions and professional conduct. Although § 8.01-46.1. includes in the definition of job performance, ‘ability’; character nor fitness for employment is included. Providers should not be asked to do something that is not in language supported by the code of Virginia even if the intent is the same.

• As the stated intent of the legislative mandate is ‘to protect individuals receiving services from unfit direct care staff as there currently is not a state registry for those with founded cases of abuse and neglect against adults”; however, the question of if an employee has been the focus of a founded allegation of abuse or neglect is not being asked. This information already is available in the CHRIS system. The State Board should use tools already in place to share the findings instead of placing new requirements on providers.

On behalf of the disAbility Law Center of Virginia (dLCV) and the people we serve, I write to comment on the new regulation found in § 12VAC-35-105, “Provision of Provider Statement to Any Other Provider.”  As the designated Protection and Advocacy system for individuals with disabilities in Virginia, dLCV supports the spirit of the new regulation as it may serve as a mechanism to prevent caregivers who have abused, neglected or exploited vulnerable individuals from moving into a new position in which they would again have access to vulnerable individuals. While dLCV’s position is that the Commonwealth should host an electronic registry of such individuals and we advocate for the state to develop such a registry, the new regulation is a good step in the right direction of ensuring protection of vulnerable adults.

We are concerned, however, that because the regulation requires that the individual for whom the statement is being requested give their express written approval to their employer to release the statement, the positive impact of the new regulation may be diminished.  We recommend that DBHDS develop and disseminate a process for determining the effectiveness of the new regulation, and study the impact over the next several years to determine benefit.  In addition, we note that requiring the individual to give written approval, as opposed to providing approval in the format best understood or expressed by the individual, could negatively impact individuals who have disabilities that limit their ability to use that format.

dLCV has reviewed the public comments submitted on this regulation to date, and agrees with the commenters who expressed concern about the lack of definition in the new regulation.  Until employers and staff have clear guidance they can follow, the lack of clarity will undermine the point of the regulation and will not fully protect Virginians with disabilities.  We recommend that DBHDS work with stakeholders, including service participants, providers and advocates, to further flesh out the content of the statement required from employers in the new regulation to ensure the most protection for vulnerable adults.

Sincerely,

Colleen Miller, Executive Director

The development and insertion of this proposed language is problematic for a number of reasons. Requiring a provider to produce a written statement regarding subjective parameters (e.g., character, fit) related to a candidate’s employment with a new employer is creating the potential for far reaching, negative ramifications for the previous employer and, possibly, the Department of Behavioral Health. A previous employer adequately satisfies their obligations by reporting to applicable entities (e.g., APS, CMS) and, at a minimum, verifying dates of employment, indicating whether an employee is eligible for rehire, etc. Any provision of information beyond this could result in complaints/grievances and legal action against the previous employer, as well as potentially jeopardizing a former employee’s chances at future employment. While there is certainly the need to ensure the most qualified workforce is recruited, this proposed regulatory update does not assist in this process.