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Dear Commissioner Smith and State Board of Behavioral Health and Developmental Services Members:
On behalf of the Treatment and Recovery Allies (“TARA”) which is an advocacy group representing Virginia small and independent operators within the substance abuse treatment and recovery industry, we thank you for the opportunity to comment on the Department of Behavioral Health and Developmental Services’ Office of Human Rights’ announced intent to adopt regulations related to Chapter 115 – Regulations to Assure the Rights of Individuals Receiving Services from Providers Licensed, Funded, or Operated by the Department of Behavioral Health and Developmental Services.
Members of the Treatment and Recovery Allies are committed to providing quality recovery support services to Virginians recovering from substance abuse disorders. As such, our members participate in state and national trade groups and have worked to develop best management practices and implement a hierarchy of controls to protect our clients.
I. Summation of Treatment and Recovery Allies’ (TARA’s) Comments
Virginia businesses need certainty and consistency in any regulatory program. This ensures that the regulated community understands the requirements of the program, and that all parties can work together to satisfy the regulatory requirements. Below is a summary of the comments related to these recommended changes in regulatory requirements.
TARA’s highest concern is the recommendation in 12VAC35-115-150 and 12VAC35-115-175 which permits individuals to file complaints against providers up to one year after the alleged incident or when they have been discharged from services. TARA asserts that adopting this language would be overly burdensome and costly for small providers to implement. While we understand the intention behind offering extended time for complaints, we believe that this provision could create unintended consequences, such as the potential for delays in resolving issues and the difficulty of gathering accurate information or evidence after such a long period.
Currently, private providers face expense legal costs which can range from $10,000 to $50,000 per incident depending on the severity of the complaint. Exposing small providers to a year of possible filings will not only increase their legal costs but will jeopardize their ability to procure affordable liability insurance. In fact, independent operators are already experiencing an increased risk of being dropped by their insurance provider as more insurance companies are not covering liability policies for behavioral health services.
Given these concerns, Treatment and Recovery Allies (TARA), would recommend shortening the time frame for filing complaints to one month after departure from services. This would ensure timely investigations; help maintain the integrity of the complaint process and better protect the interests of all stakeholders involved.
Below are additional comments and recommendations TARA believes would ensure continued safety for clients as well as providing small providers with a reasonable framework of regulations to compile with.
TARA encourages the Board to reconsider the proposed change to reduce the timeframe for an A/N/E investigation from 20 days to 10 days found in E.6. of 12VAC35-115-175. Ten days is a very short time period to complete a thorough investigation and determine corrective actions. We are already required to put precautionary measures in place to protect the individual upon receipt of the allegation, so shortening the timeframe for the full investigation does not add any protective benefit to the individual, nor does it reduce the regulatory burden on providers. If anything, this increases the burden by hastening an already quick timeline. Also, it diminishes the spirit of the investigation process, which can often involve many staff interviews, documentation reviews, and meetings with program and department leadership to determine an action plan that will prevent recurrence. The purpose of an investigation should not just be a simple yes/no on whether it's founded or not but also provide quality improvement. We request the Board keeps the current 20-day timeframe.
Also in Section F.3, while resolving complaints quickly is ideal, requiring investigations for all complaints—regardless of whether they rise to the level of abuse, neglect, or exploitation—creates unnecessary delays and administrative burdens.
(12VAC35-115-175 and 12VAC35-115-230)
TARA recommends extending the timeframes for beginning to investigate a compliant (as soon as possible but within 24 hours) and the reporting of a complaint (by the end of the next business day) be extended to provide programs the opportunity to remain compliant. It’s very possible that complaints could be filed when staff may be out of the office or must address other higher and immediate priority needs. TARA recommends these regulations should be extended to 72 hours/three business days.
(12VAC35-115-90)
While we agree that the release of medical or mental health information to an individual should be done, as a private provider we are not able to enforce this upon any licensed medical professional or licensed mental health professional. The provisions for such release of documents are managed by and regulated by HIPAA. HIPAA is federal law and a federal standard therefore OHR would not be able to enforce such requirements on medical or mental health professionals either. TARA recommends removing this requirement.
Currently, private providers are required to provide competency-based training initially and annually thereafter in several areas. However, for the purpose of this comment, abuse and neglect investigations are covered in the annual human rights training. Per the regulation staff are required to achieve a score of 80% or higher as evidenced by testing and certification in order to successfully complete said training. The proposed requirement to have competency-based training initially and annually provided by DBHDS is not attainable. The department does not have the bandwidth to sustain such training and only provides a certain amount of training; has limited trainers (one currently); and does not allow for the appropriate number of staff to be trained at hire and annually thereafter.
Each private provider organization is required to have designated staff complete OHR approved investigation training. As such, the Director or designee has the ability and knowledge to conduct all investigations and determine findings related to those investigations. These findings are then reported into the CHRIS system within the allotted 10-day timeframe at which point OHR reviews and is able to determine appropriate next steps based on each individual case. Citations are then issued related to the review of OHR. Private providers are required to create and implement their own internal policies and procedures regarding investigations as set forth in DBHDS OHR regulation. These internal policies and procedures are reviewed and approved by DBHDS thus there is no additional necessity for the Director or designee to maintain any additional file. The request to have Directors or designees maintain an additional file is not aligned with the Governor’s request to reduce regulatory burden by 25% but would rather increase this burden. TARA requests this requirement be eliminated.
The proposed changes in this section imply that an organization should exhaust all aspects of an individual’s familial relations prior to looking at a next friend as an option for an authorized representative appointment. This will create an onerous requirement on providers since this information is often not provided or available. It will also negatively impact clients who are likely to have complicated relationships with family members as well as significantly delay the process in determining a next friend appointment. Finally, this is likely to conflict with one’s power of attorney designations and raise HIPPA issues if providers are calling family members informing them of a relative’s situation and inadvertently releasing protected information under HIPPA.
While the intent of these provisions is to remind providers of their mandated reporter responsibilities, there is a lack of clarity regarding expectations. This is particularly evident given the differing thresholds for classifying events as potential abuse, neglect, or exploitation across the Office of Human Rights (OHR), Adult Protective Services (APS), and Child Protective Services (CPS). OHR classifies a broader range of incidents as potential maltreatment requiring investigation than APS and CPS.
If the intent is to require providers to contact APS or CPS whenever an allegation is made under these Human Rights regulations, it may result in an excessive number of unnecessary reports to social services. However, if the expectation is that providers should only report founded allegations to social services, this would cause compliance issues with mandated reporter requirements by delaying reporting until after an internal investigation. To enhance clarity and streamline the process, OHR should collaborate with APS and CPS to better align notification expectations and thresholds for determining potential abuse, neglect, or exploitation.
In Section A.7, which would require providers to provide written communication about any actions taken by the provider outside of the complaint resolution process to correct or remediate a violation of this chapter that directly involved the individual would not simplify or streamline the process. In fact, this is typically included in the Complaint Action Plan (CPA).
In Section B.1. requiring all staff members to read this entire chapter is an unrealistic administrative burden. The regulations include complex details, such as variance and appeals processes, that are not relevant to most staff members. The existing requirement for competency-based training is more effective. Instead, DBHDS should consider developing a standardized training module for general staff to ensure consistent and accessible training across all levels of a provider’s organization.
II. Conclusion
We appreciate the opportunity to provide comments on the Office of Human Rights’ recommended changes to Chapter 115 - Regulations to Assure the Rights of Individuals Receiving Services from Providers Licensed, Funded, or Operated by the Department of Behavioral Health and Developmental Services. As you deliberate on the comments submitted by the private provider community, we respectfully request you give strong consideration to our comments and specifically to TARA’s recommendation that the Board reject the recommendation of a one-year period for complaints to be filed after services and adopt a one-month period instead.
Sincerely,
Nicole Riley, Representative
Treatment and Recovery Allies (TARA)
Richmond, VA