115-50.D.5, 115-230.B.3

While the intent is to remind providers of mandated reporter responsibilities, there is a concurrent lack of clarity on expectations. In no small part, this relates to the distinctly different thresholds for viewing an event as potential abuse, neglect, or exploitation across OHR, APS, and CPS, with the foremost classifying more events as potential maltreatment requiring investigation. If the intent of the added standards is to encourage providers to contact APS or CPS whenever an allegation is made based on these Human Rights regulations, a significant number of unnecessary reports may be made to social services. However, if the expectation is for providers to report founded allegations to social services (as a finding indicates a person is the victim of abuse, neglect, or exploitation), then providers will be out of compliance with their mandated reporter requirements both by being late and by having investigated prior to this notification. It is highly recommended that to truly streamline, OHR consult with APS and CPS and increase alignment in expectations for notification to APS and CPS and thresholds for considering an event to be potential abuse, neglect, or exploitation.

115-90 Thank you for using this opportunity to better align with other, similar regulations regarding access to records.

115-145

Unfortunately, changes make an already complex requirement more difficult to implement and are less clear than before. The specification in 145.B that an “attending physician” shall both conduct a capacity evaluation (i, ii, iii) AND obtain written certification from a capacity reviewer who conducted an evaluation (iv) is confusing and implies the following:

• A new requirement - two people need to assess the individual as lacking capacity, not just one
• That a provider has an attending physician on staff OR that the individual’s PCP (if a physician, not a physician extender) will both conduct this evaluation and provide the information as specified in H. However, B.2 clearly states that the evaluator is not otherwise currently involved in the treatment of the individual, meaning that a PCP, or attending physician is not allowed to conduct this evaluation under typical circumstances. Of note, few of the services licensed by DBHDS involve having a physician on staff.
• That a provider has ready access not only to an attending physician, but also that the attending physician has ready access to capacity reviewers.

115-145 also does not simply or clarify other, long-standing issues:

• B.2 is inconsistent with expectations set forth by APS when a capacity evaluation is sought. APS prefers the person conducting a capacity evaluation be someone who does work with the individual.
• Does not speak to responsibility to pay for capacity evaluation(s). While the burden to obtain the evaluation is on the provider, most providers do not have these persons on staff. Health insurance may not cover these evaluations.
• While the content of capacity evaluations specified in H makes sense, providers rarely have input into the format of assessments; the content is driven by the evaluator. A provider might create a form for this purpose (which does not serve to streamline), however, evaluators are not obliged to use such forms. Increasingly, there are charges affiliated with such administrative requests, and they are not covered by insurance.
• While the clarification that Co-ARs are not allowed provides a path to resolve differences of opinions, it does not respect roles such as parents of adult service recipients where both had equal say when their child was a minor.

115-175

C.8 - while the investigation timeline is not overtly changed, requiring the final decision and action plan be provided to the individual and authorized representative in writing within ten business days shortens the time available for the investigation. Post-investigation time continues to be required for the distribution of the outcome information. This applies to E.6.d as well.

F.3 - while it is desirable to resolve a complaint as quickly as possible, doing so may be impeded by the requirement to investigate complaints that do not rise to the level of allegations of abuse, neglect, or exploitation.

Thank you for the requirements outlined in 115-180.G and 115-210.F

115-260

A.7 This additional requirement is unclear and does not appear to serve to simplify or streamline requirements.

A.9 Also does not simplify or streamline requirements. Rather, it adds requirements for both providers and DBHDS. As the training provided by DBHDS is the only one accepted by the Department, it is the Department’s responsibility to ensure it is competency based. Similarly, OHR’s training may need to be offered more than four times per year to accommodate the need. Expecting providers to develop this training ignores the reality that most providers have only one or two trained investigators; these would also be the people to develop a competency-based training. A better alternative may be for the OHR’s Look Behind process to include an evaluation of investigator competency, with technical assistance offered or recommendations for remedial training if indicated.

A.12 - specify that this notification is done via updating contacts in the current web-based application and ensure CHRIS or CONNECT are able to be used for this purpose.

B.1 - it is an unrealistic additional burden for all staff members to “read” this entire chapter. This does not simplify the process and is not likely to result in notable improvement in understanding of the Human Rights requirement as applied in day-to-day service delivery. The regulations include information about rarely encountered events (e.g., variances, appeals) and the information is not written in language that is accessible to many staff members. There is already a requirement for competency-based training. This new requirement increases administrative burden and will not serve to streamline, clarify, or simplify knowledge of Human Rights regulations and related requirements. Perhaps DBHDS could develop a training module viewed appropriate for the majority of staff members to standardize information presented to staff at all levels within a provider’s structure.