Initially, it is important to note that the risk management, quality improvement and serious incident reporting requirements contained in these regulations were not included in the original Burns analysis for establishing the current reimbursement rate; thus, they represent a significant unfunded mandate. The state rightly considers this a major change; however, fails to recognize that it also generates a major expense in time, resources and payroll, both initially and ongoing. This unfunded mandate, like the litany of others imposed after the Burns rate setting analysis was conducted (2014), creates a unique hardship for small businesses, because the original Burns analysis excluded any provision for profit that would make additional funds (above 2013 operating cost) available for implementing changes, much less for inflation in cost and wages over the past 6 years. When asked about profit inclusions during the Burns call, they openly laughed and indicated with economies of scale you could probably “find some somewhere”; however, small businesses do not enjoy economies of scale and as a result are uniquely and seriously burdened by each additional unfunded mandate. The state should give serious consideration to providing some relief consistent with the provisions and requirements of section 2.2 – 4007.1 of the Administrative Process Act, for this and all other unfunded mandates implement since the Burns analysis was conducted.

 

105 – 170 – E – corrective action plans – should include a deadline (number of business days) for the DBHDS response and require the department response be in writing, this is necessary to prevent providers from being held in limbo and to provide the documentation they need to address licensing agent change (either personnel or evolving standard) and to prepare for implementation of the appeals process.

 

105 – 440 – 15 days to complete orientation – there are a host of factors that could make meeting this requirement extremely problematic 1^st – trainings scheduled outside of the providers control may be available early on with medication management and CPR/1^st aid taking over half of these days to complete before orientation could even begin; 2^nd – an individual who is working out their notice at their previous employer may have only limited, but some, availability to their new employer during the transition period, limiting their availability and thus ability to complete all of the training in 15 days; 3^rd – part-time hires typically have other jobs and family responsibilities that may require them to stretch the initial training out more than the 15 days permitted. 4^th – small providers would be uniquely burdened by this requirement as often there is frequently only one individual who typically provides the orientation training (and that individual may well be covering the shifts that are being hired for in addition to their regular duties and responsibilities). Even if any one of these factors did not make meeting the training deadline impossible, a combination of these factors surely would, for many applicants. As a result, this requirement would further shrink an already diminishing available labor pool and in some cases force the provider to forgo a qualified, motivated and good candidate, simply because they were unavailable in time frames sufficient to meet the 15 day requirement. Recommendations: 1^st – eliminate the burden and remove the 15 day completion requirement entirely; if they feel it necessary, language could you be included which prevents the provision of independent/billable/direct or some other word for services/contact with individuals served until the orientation has been completed, which would appear to resolve any of the state’s concerns without imposing the burden. 2^nd – exempt small businesses from the requirement and/or utilize other mechanisms contained in section 2.2 – 4007.1 of the Administrative Process Act to reduce the burden on small business or 3^rd failing all of that at least change the requirement to 30 days which would reduce the burden.

 

105 – 520 – A – qualifications for risk manager – the phrase “training and expertise in conducting investigations, root cause analysis and data analysis” is too vague, overly restrictive, creates significant unfunded mandates and is a significant unique and unnecessary burden for small businesses. 1^st – too vague, there is no indication of how “expertise” would be established and it is a phrase which is subject to widely varying interpretations; for example, many professions would assert that a 4 year degree and experience are the minimum requirements to indicate expertise in “data analysis” and police departments have very high standards for expertise in conducting investigations – this creates the potential for wide variations in licensing agent requirements/citations, creating unequal treatment across providers; prevents providers from objectively verifying they have met the standard prior to citation (or post), leaving them defenseless in the event of a citation and creates a potentially huge unfunded mandate (tens of thousands of dollars) if persons with true “expertise” in investigations or data analysis had to be hired in order to meet this requirement. 2^nd – overly restrictive – as written it would require specific training in each of these areas when all of the knowledge, skills and abilities necessary to accomplish these functions can be obtained from a wide variety of other education, training and experiential sources – this creates the potential to disqualify individuals who have clearly and empirically demonstrated all of these abilities but cannot demonstrate that they’ve had these narrowly focused trainings and it creates a significant unfunded mandate as an already qualified individual has to take additional specific trainings just to meet the standard in the regulations. 3^rd – unnecessary small business burden – the requirement for training and expertise in data analysis, assumes some large data set, multiple inputs and a complicated interrelationship of variables that simply does not occur in small businesses. The data analysis for our current risk program only requires an individual to be able to analyze less than or greater than (thresholds) and calculate percentages (for some data), which does not require any more training and/or expertise in data than is typically found in an individual graduating elementary school.

 

Recommendations: 1^st – exempt small businesses from the requirement and/or utilize

other mechanisms contained in section 2.2 – 4007.1 of the Administrative Process Act to reduce the burden on small business or 2^nd – Include language that indicates the training and expertise required is relative to the size/complexity of the operations of the business and the data sets they develop or 3^rd – indicate in the regulation that completion of a state-sponsored training in these areas (individually or in conjunction) is sufficient to meet the requirement and then provide that training to assure a standardized process that provides equal treatment across providers and reduces the onerous burden of the unfunded mandate.

 

105 – 59 – C7 – this section provides the QDDP definition and then adds “Experience may be substituted for the educational requirement.” This final 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 was 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; in that it:

 

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 has 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 an 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, especially small businesses.

    

3. 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.
4. Exacerbates the staffing crisis reducing overall service quality. Service quality is impacted in 2 ways 1^st – 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. 2^nd – overreliance 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 seasoned 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/services and all of these concerns become significantly exacerbated; decreasing service quality.

5. 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).

    

   Regardless of how it looks in Richmond or other NOVA rate areas, the labor crisis confronting our services in much of the Commonwealth is real, growing and exacerbated by these regulations which fail to justly recognize functional equivalents and implement additional unfunded mandates; where each and every individual unfunded mandate uniquely and linearly decreases the compensation we can provide to support staff. The unfunded mandates continue to increase and each  seemingly small cost of $2000 represents a dollar per hour for a single full time DSP or $.10 an hour for 10 full time DSPs for a year and more than double that impact for part-timers; given the limited line items in our budget these funds are subtracted directly from the available entry wage and our subsequent raises to individuals across service categories, which have made our employment offerings increasingly noncompetitive –the current average wage in Virginia is already below the average wage at fast food outlets – how can the state justify calling them professionals (but refuse to recognize the status officially, when it is earned), require we trained them up to professional standards but only make it possible to pay them unskilled labor rates. Change is needed before the crisis becomes a catastrophe for individuals in the population served.

    

    

Since 2014, Licensed Behavior Analysts (LBA) have been providing services to Medicaid recipients (under 21) under their licenses issued by the Department of Health Professions (per 12VAC35-105-20, the definition of “Provider”) rather than a specific license from DBHDS. This works well for those providing services based in Applied Behavior Analysis (ABA) in the individual’s home or the community. However, when the LBA owns a clinic, it is difficult to determine which rules and regulations to follow for the building itself and services provided in the building. For instance, there is nothing dictating how many hours a day the child can be receiving services at the clinic, or anything regulating how hot the water can be. There are licenses offered by the Department of Education and the Department of Social Services that do not align with the services typically delivered by LBAs. Therefore, to best serve the individuals receiving ABA services in a clinic setting, I respectfully ask that DBHDS bring back the Outpatient ABA license.

This issue may be resolved by added the definition of Applied Behavior Analysis (ABA) into the definitions and adding the following as #4 under

“Outpatient service.”
4. Applied Behavior Analysis (ABA) services provided in a clinic setting in accordance with the provisions of 18VAC85-150-10 et seq. to children under 18 years of age when no parent or caretaker is present. The ABA outpatient clinic provider assumes all responsibility for the care of the child or person over the age of 18 who has a legal guardian who is attending the clinic without the presence of a caregiver.

In addition, currently, LBAs are delivering services through Behavioral Therapy. This service does not completely align with how services based in ABA should be practiced and some abuses stem from the forced fit including inadequate supervision and the assignment of tasks to non-licensed persons that should be completed by licensed persons. Adding ABA to the definitions in these regulations and assigning it as an outpatient service would assist in safeguarding individuals who receive the service. In addition, it would be imperative to tier the rates that LBAs, LABAs (Licensed Assistant Behavior Analysts), and unlicensed persons (such as Registered Behavior Technicians – RBTs) receive.

Thank you for your consideration.

Nikia Dower, MS, CCC-SLP, BCBA, LBA

Dower and Associates, Inc.

Since 2014, Licensed Behavior Analysts (LBA) have been providing services to Medicaid recipients (under 21) under their licenses issued by the Department of Health Professions (per 12VAC35-105-20, definition of “Provider”) rather than a specific license from DBHDS. This works well for those providing services based in Applied Behavior Analysis (ABA) in the individual’s home or the community. However, when the LBA owns a clinic, it is difficult to determine which rules and regulations to follow for the building itself and services provided in the building. For instance, there is nothing dictating how many hours a day the child can be receiving services at the clinic, or anything regulating how hot the water can be. There are licenses offered by the Department of Education and the Department of Social Services that do not align with the services typically delivered by LBAs. Therefore, to best serve the individuals receiving services based in ABA in a clinic setting, I respectfully ask that DBHDS bring back the Outpatient ABA license.

This issue may be resolved by added the definition of Applied Behavior Analysis (ABA) into the definitions and adding the following as #4 under

“Outpatient service.”
4. Applied Behavior Analysis (ABA) services provided in a clinic setting in accordance with the provisions of 18VAC85-150-10 et seq. to children under 18 years of age when no parent or caretaker is present. The ABA outpatient clinic provider assumes all responsibility for the care of the child or person over the age of 18 who has a legal guardian who is attending the clinic without the presence of a caregiver.

In addition, currently LBAs are delivering services through Behavioral Therapy. This service does not completely align with how services based in ABA should be practiced and some abuses stem from the forced fit including inadequate supervision and the assignment of tasks to non-licensed persons that should be completed by licensed persons. Adding ABA to the definitions in these regulations and assigning it as an outpatient service would go a long way to safeguarding individuals who receive the service. In addition, it would be necessary to tier the rates that LBAs, LABAs (Licensed Assistant Behavior Analysts), and unlicensed persons (such as Registered Behavior Technicians – RBTs) receive.

Thank you for your consideration.

Since 2014, Licensed Behavior Analysts (LBA) have been providing services to Medicaid recipients (under 21) under their licenses issued by the Department of Health Professions (per 12VAC35-105-20, definition of “Provider”) rather than a specific license from DBHDS. This works well for those providing services based in Applied Behavior Analysis (ABA) in the individual’s home or the community. However, when the LBA owns a clinic, it is difficult to determine which rules and regulations to follow for the building itself and services provided in the building. For instance, there is nothing dictating how many hours a day the child can be receiving services at the clinic, or anything regulating how hot the water can be. There are licenses offered by the Department of Education and the Department of Social Services that do not align with the services typically delivered by LBAs. Therefore, to best serve the individuals receiving services based in ABA in a clinic setting, I respectfully ask that DBHDS bring back the Outpatient ABA license.

This issue may be resolved by added the definition of Applied Behavior Analysis (ABA) into the definitions and adding the following as #4 under

“Outpatient service.”
4. Applied Behavior Analysis (ABA) services provided in a clinic setting in accordance with the provisions of 18VAC85-150-10 et seq. to children under 18 years of age when no parent or caretaker is present. The ABA outpatient clinic provider assumes all responsibility for the care of the child or person over the age of 18 who has a legal guardian who is attending the clinic without the presence of a caregiver.

In addition, currently LBAs are delivering services through Behavioral Therapy. This service does not completely align with how services based in ABA should be practiced and some abuses stem from the forced fit including inadequate supervision and the assignment of tasks to non-licensed persons that should be completed by licensed persons. Adding ABA to the definitions in these regulations and assigning it as an outpatient service would go a long way to safeguarding individuals who receive the service. In addition, it would be necessary to tier the rates that LBAs, LABAs (Licensed Assistant Behavior Analysts), and unlicensed persons (such as Registered Behavior Technicians – RBTs) receive.

Thank you for your consideration.

Comments on DBHDS Licensing Regulations for Compliance with Virginia’s Settlement Agreement – Proposed Permanent Regs

 

12 VAC 35-105

400	The statement should read “C. The provider shall submit all information required by the department to comply with the Code of Virginia to complete . . . “
400	Add “D. 2. . . . memoranda from the department transmitting the results to the provider, if applicable, . . . “
520	The language requires that the provider “incorporate uniform risk triggers and thresholds as defined by the department;”  to the best of my knowledge these have not been published
	In general, many of the issues identified in the implementation of the Emergency Regulations have been addressed

 

 

12VAC35-105-20 Definitions: An amendment was made to the Level II serious incident definition that removed "urgent care facility visit" from the list of serious incidents that should be reported. The previous regulation stated the following under Level II serious incidents, "An emergency room visit; or urgent care facility visit when not used in lieu of a primary care physician visit". With the amendment, the statement is now "an emergency room visit". There are injuries that an individual can sustain that can be treated at an urgent care and may not necessitate an emergency room visit. Removing urgent care visit from the list makes it unclear as to whether providers should report incidents that necessitate such a visit.

12VAC35-105-160.D.2: The requirement is for providers to report "the consequences or risk of harm" for Level II and III incidents. Requiring providers to report the 'risk of harm' is putting the undue burden upon them to speculate on what could have occurred or may have occurred. Information provided will be subjective and can be incorrect if the person providing the information does not have a medical background.

105 – 170 – E – corrective action plans – should include a deadline (number of business days) for the DBHDS response and require the department response be in writing, this is necessary to prevent providers from being held in limbo and to provide the documentation they need to address licensing agent change (either personnel or evolving standard) and to prepare for implementation of the appeals process.

105 – 440 – 15 days to complete orientation – there are multiple factors that could make meeting this requirement extremely problematic Recommendations: 1st – eliminate the burden and remove the 15 day completion requirement entirely; if they feel it necessary, language could you be included which prevents the provision of independent/billable/direct or some other word for services/contact with individuals served until the orientation has been completed, which would appear to resolve any of the state’s concerns without imposing the burden. 2nd – exempt small businesses from the requirement and/or utilize other mechanisms contained in section 2.2 – 4007.1 of the Administrative Process Act to reduce the burden on small business or 3rd failing all of that at least change the requirement to 30 days which would reduce the burden. 4^th- Include language that indicates the training and expertise required is relative to the size/complexity of the operations of the business and the data sets they develop or indicate in the regulation that completion of a state-sponsored training in these areas (individually or in conjunction) is sufficient to meet the requirement and then provide that training to assure a standardized process that provides equal treatment across providers and reduces the onerous burden of the unfunded mandate.

 

400 -The statement should read “C. The provider shall submit all information required by the department to comply with the Code of Virginia to complete . . . “

And Add “D. 2. . . . memoranda from the department transmitting the results to the provider, if applicable, . . . “

 

 

105 – 520 – The language requires that the provider “incorporate uniform risk triggers and thresholds as defined by the department;”   have these been published ?

A – qualifications for risk manager – the phrase “training and expertise in conducting investigations, root cause analysis and data analysis” is too vague, overly restrictive, creates significant unfunded mandates and is a significant unique and unnecessary burden for small businesses. 1st – too vague, there is no indication of how “expertise” would be established and it is a phrase which is subject to widely varying interpretations;  2nd – overly restrictive – as written it would require specific training in each of these areas when all of the knowledge, skills and abilities necessary to accomplish these functions can be obtained from a wide variety of other education, training and experiential sources – this creates the potential to disqualify individuals who have clearly and empirically demonstrated all of these abilities but cannot demonstrate that they’ve had these narrowly focused trainings and it creates a significant unfunded mandate as an already qualified individual has to take additional specific trainings just to meet the standard in the regulations. 3rd – unnecessary small business burden – the requirement for training and expertise in data analysis, assumes some large data set, multiple inputs and a complicated interrelationship of variables that simply does not occur in small businesses. The data analysis for our current risk program only requires an individual to be able to analyze less than or greater than (thresholds) and calculate percentages (for some data), which does not require any more training and/or expertise in data than is typically found in an individual graduating elementary school.

105 – 59 – C7 – this section provides the QDDP definition and then adds “Experience may be substituted for the educational requirement.” This final 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 was wholly inadequate by itself for the effective identification, verification and use of this class of individuals – functional equivalents.

ServiceSource Comments on Chapter 105 Licensure Regulations

While ServiceSource does not propose any specific edits to the language of these regulations, we do propose a significant recommendation (that we have previously offered) to improve consistency and clarity among all relevant regulatory language.

We support an alignment of various regulatory documents to ensure efficiency and effectiveness for service delivery and to focus on health, safety and person centeredness.

Since various current regulations have unique cycles for review and revision, often one set of regulations is updated with language that does not align with other existing regulations.  This inconsistency is not necessarily a conflict, but even minor inconsistencies in language create significant barriers for compliance in staff training and service delivery.

As an example, in these Chapter 105 Licensure regulations, there is an emphasis on serious incident reporting, and we have noted that the requirements for compliance are not aligned with requirements published in the Human Rights (Chapter 115) Regulations from a few years ago, in terms of reporting abuse, neglect and exploitation.

As an overall recommendation, (which we supported as a member of the Providers Issue Resolution Workgroup--PIRW) we strongly recommend the development of a crosswalk among Licensure, Human Rights, Medicaid Waiver and the HCBS Virginia Transition Plan. 

To support providers who elect for CARF accreditation, we also propose that DBHDS accept CARF accreditation in lieu of Virginia regulations already included in CARF standards. 

We further propose that providers who receive the full 3-year CARF accreditation be awarded “Deemed Status” by DBHDS which would exempt these providers from DBHDS regulatory requirements.  This would enable DBHDS to focus its limited compliance resources on smaller and newer providers which have not completed a full external independent accreditation by CARF.

These improvements would provide a significant benefit for providers in terms of reducing redundant procedure development and implementation as well as staff training and development, not to mention the personnel resources expended by providers for numerous redundant regulatory reviews.

12VAC35-15-160 D 2:  “For all other Level II and Level III serious incidents, the reported information shall also include the consequences or risk of harm that resulted from the serious incident.” 

Consequences can be clearly identified because they actually happen.  But “risk of harm” is speculative and open to interpretation.  A recent webinar regarding this regulation as it applies to the CHRIS system gave examples of complete versus incomplete responses to this specific issue.  The concern here is that with more scrutiny of CHRIS reports there will be a greater use of administrative time sending CHRIS reports back and forth for revisions based on who has the stronger speculative imagination.  For example, medical incidents have risks far beyond the grasp of staff members who don't have medical backgrounds.  However, one can assume that death is always a risk in any medical situation.  Is it the expectation that the provider determine all the avenues to that possible conclusion or will that conclusion suffice?

12VAC35-15-160 E: 

Very much agree with language that excludes Level III incidents that do not occur on provider premises or during the provision of services.  Far too many Root Cause Analyses are being completed as the language currently stands (all Level II and Level III incidents).  Even a simple RCA where the contributing factors are beyond the scope of the provider (seizure activity, family crises, etc.) takes administrative time to complete and review.  

However, the phrase:  “A more detailed root cause analysis, including convening a team, collecting and analyzing data, mapping processes, and charting causal factors should be considered based upon the circumstances of the incident” is not regulatory language and should be kept in guidance documents and/or training materials.  By including this suggestion in regulations, the state risks inconsistent interpretations between providers and specialists of when “a more detailed RCA” should be conducted.  It also implies that the current RCA requirement is not ideal.  This language is suggestive of an unfunded mandate as providers (especially small businesses) simply do not have the resources to “convene a team” to complete what DBHDS is implying is an adequate Root Cause Analysis whenever an incident meeting the undefined criteria presents itself. 

 

12VAC35-105-520 A:  “who has training and expertise in conducting investigations, root cause analysis, and data analysis”

This language is overly restrictive without providing enough information to determine what “training and expertise” really is.  The concern is another opportunity for inconsistency in interpretation.  It also creates an unfunded mandate and undue burden to providers (primarily small providers) to obtain some formal documentation of this undefined “training and expertise.” 

There are a number of options out there for half-day courses in “Conducting Investigations” “Root Cause Analysis” and “Data Analysis” developed and presented by professionals familiar with and/or in the field whose qualification to do so is about as clear as this regulation. 

Essentially, we’ll have more providers paying for their staff to attend training seminars either designed by other providers or any other outside entity that can put together a decent Power Point presentation and print off a certificate.  And even then, there's no clarity as to whether or not this will suffice.

12VAC35-105-460. Emergency medical or first aid training.

There shall be at least one employee or contractor on duty at each location who holds a current certificate (i) issued by the American Red Cross, the American Heart Association, or comparable authority in standard first aid and cardiopulmonary resuscitation (CPR) or (ii) as an emergency medical technician. A licensed medical professional who holds a current professional license shall be deemed to hold a current certificate in first aid, but not in CPR. The certification process shall include a hands-on, in-person demonstration of first aid and CPR competency.

There is the potential that between the release of this regulation and the new chapter 106 that both of the organizations listed above will stop the requirement of “in-person” meaning at the same location due to the prevalence and growth of video conferencing. Some systems are already using video conferencing as the “in-person” part of the process. Will this language allow that to be used as “in-person” as these programs grow and change between now and the next release of regulations. We do not want to be stuck without the ability to use these trainings if they should evolve beyond the language we have placed in regulations.  

 

 

12VAC35-105-320. Fire inspections.

The provider shall document at the time of its original application and annually thereafter that buildings and equipment in residential service locations serving more than eight individuals are maintained in accordance with the Virginia Statewide Fire Prevention Code (13VAC5-51). This section does not apply to correctional facilities or home and noncenter-based or sponsored residential home services. The provider shall evaluate each individual and, based on that evaluation, shall provide appropriate environmental supports and adequate staff to safely evacuate all individuals during an emergency.

 

This change for Sponsored Residential (marked out) was unfortunately missed when the Emergency Regulations were initially released for comment. Since the release we have found differences in interpretation across the state between licensing specialists related to the new addition of Sponsored Residential. Some specialists were requiring a visit from a Fire Marshal before a Sponsored Home could be licensed. Fire Marshals will often refuse to visit a family home, when there is an actual Fire Marshal for a locality. In many areas of the state there may be one for several counties.

 

The classification of all service settings within this single regulation does not appear to be appropriate. Sponsored Residential services have been excluded from this section in the past and should continue to be.

 

There is an additional requirement of evaluation required for each individual; however there is no notation regarding what is acceptable in terms of this evaluation to allow for clear guidance in the responsibilities of service providers upholding this requirement.

 

12VAC35-105-520. Risk management.

1. The provider shall designate a person responsible for the risk management function who has training and expertise in conducting investigations, root cause analysis, and data analysis.

The above noted regulation is vague in that it does not provide a basis of what is considered acceptable “training and expertise”. This could result in the inconsistency in the adherence and enforcement of this regulation.

 

12VAC35-105-320. Fire inspections.

The provider shall document at the time of its original application and annually thereafter that buildings and equipment in residential service locations serving more than eight individuals are maintained in accordance with the Virginia Statewide Fire Prevention Code (13VAC5-51). This section does not apply to correctional facilities or home and noncenter-based or sponsored residential home services. The provider shall evaluate each individual and, based on that evaluation, shall provide appropriate environmental supports and adequate staff to safely evacuate all individuals during an emergency.

 

This change for Sponsored Residential (marked out) was unfortunately missed when the Emergency Regulations were initially released for comment. Since the release we have found differences in interpretation across the state between licensing specialists related to the new addition of Sponsored Residential. Some specialists were requiring a visit from a Fire Marshal before a Sponsored Home could be licensed. Fire Marshalls will often refuse to visit a family home, when there is an actual Fire Marshall for a locality. In many areas of the state there may be one for several counties.

 

The classification of all service settings within this single regulation does not appear to be appropriate. Sponsored Residential services have been excluded from this section in the past and should continue to be.

 

There is an additional requirement of evaluation required for each individual; however there is no notation regarding what is acceptable in terms of this evaluation  to allow for clear guidance in the responsibilities of service providers upholding this requirement.

12VAC35-105-320. Fire inspections.

The provider shall document at the time of its original application and annually thereafter that buildings and equipment in residential service locations serving more than eight individuals are maintained in accordance with the Virginia Statewide Fire Prevention Code (13VAC5-51). This section does not apply to correctional facilities or home and noncenter-based or sponsored residential home services. The provider shall evaluate each individual and, based on that evaluation, shall provide appropriate environmental supports and adequate staff to safely evacuate all individuals during an emergency.

 

This change for Sponsored Residential (marked out) was unfortunately missed when the Emergency Regulations were initially released for comment. Since the release we have found differences in interpretation across the state between licensing specialists related to the new addition of Sponsored Residential. Some specialists were requiring a visit from a Fire Marshal before a Sponsored Home could be licensed. Fire Marshalls will often refuse to visit a family home, when there is an actual Fire Marshall for a locality. In many areas of the state there may be one for several counties.

 

The classification of all service settings within this single regulation does not appear to be appropriate. Sponsored Residential services have been excluded from this section in the past and should continue to be.

 

There is an additional requirement of evaluation required for each individual; however there is no notation regarding what is acceptable in terms of this evaluation  to allow for clear guidance in the responsibilities of service providers upholding this requirement.

12VAC35-105-320. Fire inspections.

The provider shall document at the time of its original application and annually thereafter that buildings and equipment in residential service locations serving more than eight individuals are maintained in accordance with the Virginia Statewide Fire Prevention Code (13VAC5-51). This section does not apply to correctional facilities or home and noncenter-based or sponsored residential home services. The provider shall evaluate each individual and, based on that evaluation, shall provide appropriate environmental supports and adequate staff to safely evacuate all individuals during an emergency.

 

This change for Sponsored Residential (marked out) was unfortunately missed when the Emergency Regulations were initially released for comment. Since the release we have found differences in interpretation across the state between licensing specialists related to the new addition of Sponsored Residential. Some specialists were requiring a visit from a Fire Marshal before a Sponsored Home could be licensed. Fire Marshalls will often refuse to visit a family home, when there is an actual Fire Marshall for a locality. In many areas of the state there may be one for several counties.

 

The classification of all service settings within this single regulation does not appear to be appropriate. Sponsored Residential services have been excluded from this section in the past and should continue to be.

 

There is an additional requirement of evaluation required for each individual; however there is no notation regarding what is acceptable in terms of this evaluation  to allow for clear guidance in the responsibilities of service providers upholding this requirement.

 

12VAC35-105-460. Emergency medical or first aid training.

There shall be at least one employee or contractor on duty at each location who holds a current certificate (i) issued by the American Red Cross, the American Heart Association, or comparable authority in standard first aid and cardiopulmonary resuscitation (CPR) or (ii) as an emergency medical technician. A licensed medical professional who holds a current professional license shall be deemed to hold a current certificate in first aid, but not in CPR. The certification process shall include a hands-on, in-person demonstration of first aid and CPR competency.

There is the potential that between the release of this regulation and the new chapter 106 that both of the organizations listed above will stop the requirement of “in-person” meaning at the same location due to the prevalence and growth of video conferencing. Some systems are already using video conferencing as the “in-person” part of the process. Will this language allow that to be used as “in-person” as these programs grow and change between now and the next release of regulations. We do not want to be stuck without the ability to use these trainings if they should evolve beyond the language we have placed in regulations. 

 

 

12VAC35-105-320. Fire inspections.

The provider shall document at the time of its original application and annually thereafter that buildings and equipment in residential service locations serving more than eight individuals are maintained in accordance with the Virginia Statewide Fire Prevention Code (13VAC5-51). This section does not apply to correctional facilities or home and noncenter-based or sponsored residential home services. The provider shall evaluate each individual and, based on that evaluation, shall provide appropriate environmental supports and adequate staff to safely evacuate all individuals during an emergency.

 

This change for Sponsored Residential (marked out) was unfortunately missed when the Emergency Regulations were initially released for comment. Since the release we have found differences in interpretation across the state between licensing specialists related to the new addition of Sponsored Residential. Some specialists were requiring a visit from a Fire Marshal before a Sponsored Home could be licensed. Fire Marshalls will often refuse to visit a family home, when there is an actual Fire Marshall for a locality. In many areas of the state there may be one for several counties.

 

The classification of all service settings within this single regulation does not appear to be appropriate. Sponsored Residential services have been excluded from this section in the past and should continue to be.

 

There is an additional requirement of evaluation required for each individual; however there is no notation regarding what is acceptable in terms of this evaluation, can this be observed, how is this to be documented, how often should this review and evaluation be completed, etc. to allow for clear guidance in the responsibilities of service providers upholding this requirement.

 

12VAC35-105-520. Risk management.

1. The provider shall designate a person responsible for the risk management function who has training and expertise in conducting investigations, root cause analysis, and data analysis.

The above noted regulation is vague in that it does not provide a basis of what is considered acceptable “training and expertise”. This could result in the inconsistency in the adherence and enforcement of this regulation.

 

12VAC35-105-460. Emergency medical or first aid training.

There shall be at least one employee or contractor on duty at each location who holds a current certificate (i) issued by the American Red Cross, the American Heart Association, or comparable authority in standard first aid and cardiopulmonary resuscitation (CPR) or (ii) as an emergency medical technician. A licensed medical professional who holds a current professional license shall be deemed to hold a current certificate in first aid, but not in CPR. The certification process shall include a hands-on, in-person demonstration of first aid and CPR competency.

There is the potential that between the release of this regulation and the new chapter 106 that both of the organizations listed above will stop the requirement of “in-person” meaning at the same location due to the prevalence and growth of video conferencing. Some systems are already using video conferencing as the “in-person” part of the process. Will this language allow that to be used as “in-person” as these programs grow and change between now and the next release of regulations. We do not want to be stuck without the ability to use these trainings if they should evolve beyond the language we have placed in regulations. 

 

 

12VAC35-105-320. Fire inspections.

The provider shall document at the time of its original application and annually thereafter that buildings and equipment in residential service locations serving more than eight individuals are maintained in accordance with the Virginia Statewide Fire Prevention Code (13VAC5-51). This section does not apply to correctional facilities or home and noncenter-based or sponsored residential home services. The provider shall evaluate each individual and, based on that evaluation, shall provide appropriate environmental supports and adequate staff to safely evacuate all individuals during an emergency.

 

This change for Sponsored Residential (marked out) was unfortunately missed when the Emergency Regulations were initially released for comment. Since the release we have found differences in interpretation across the state between licensing specialists related to the new addition of Sponsored Residential. Some specialists were requiring a visit from a Fire Marshal before a Sponsored Home could be licensed. Fire Marshalls will often refuse to visit a family home, when there is an actual Fire Marshall for a locality. In many areas of the state there may be one for several counties.

 

The classification of all service settings within this single regulation does not appear to be appropriate. Sponsored Residential services have been excluded from this section in the past and should continue to be.

 

There is an additional requirement of evaluation required for each individual; however there is no notation regarding what is acceptable in terms of this evaluation, can this be observed, how is this to be documented, how often should this review and evaluation be completed, etc. to allow for clear guidance in the responsibilities of service providers upholding this requirement.

 

12VAC35-105-520. Risk management.

1. The provider shall designate a person responsible for the risk management function who has training and expertise in conducting investigations, root cause analysis, and data analysis.

The above noted regulation is vague in that it does not provide a basis of what is considered acceptable “training and expertise”. This could result in the inconsistency in the adherence and enforcement of this regulation.

 

12VAC35-105-320:  Fire Inspections

The reference to sponsored residential services were originally missed with the initial emergency regs (and are now marked through, previously omitted).  Adding this requirement for sponsored residential services is problematic.  We are finding the addition of sponsored residential services is interpreted differently across the state.  Some licensing specialists are requiring a visit from the Fire Marshal prior to licensing a service site.  Many Fire Marshals are refusing to visit family homes, and in rural areas, a marshal is stretched over several localities. 

Classifying all services under this regulation does not appear to be an appropriate measure, as sponsored residential has been omitted in the past. 

Additionally an evaluation of each individual is listed as required, yet there is no specification as to what type of evaluation is required or acceptable.  Therefore there is no clear guidance related to the ways in which a provider would uphold responsibilities. 

12VAC35-105-320. Fire inspections.

The provider shall document at the time of its original application and annually thereafter that buildings and equipment in residential service locations serving more than eight individuals are maintained in accordance with the Virginia Statewide Fire Prevention Code (13VAC5-51). This section does not apply to correctional facilities or home and noncenter-based or sponsored residential home services. The provider shall evaluate each individual and, based on that evaluation, shall provide appropriate environmental supports and adequate staff to safely evacuate all individuals during an emergency.

 

This change for Sponsored Residential (marked out) was unfortunately missed when the Emergency Regulations were initially released for comment. Since the release we have found differences in interpretation across the state between licensing specialists related to the new addition of Sponsored Residential. Some specialists were requiring a visit from a Fire Marshal before a Sponsored Home could be licensed. Fire Marshalls will often refuse to visit a family home, when there is an actual Fire Marshall for a locality. In many areas of the state there may be one for several counties.

 

The classification of all service settings within this single regulation does not appear to be appropriate. Sponsored Residential services have been excluded from this section in the past and should continue to be.

 

There is an additional requirement of evaluation required for each individual; however there is no notation regarding what is acceptable in terms of this evaluation  to allow for clear guidance in the responsibilities of service providers upholding this requirement.

12VAC35-105-460. Emergency medical or first aid training.

There shall be at least one employee or contractor on duty at each location who holds a current certificate (i) issued by the American Red Cross, the American Heart Association, or comparable authority in standard first aid and cardiopulmonary resuscitation (CPR) or (ii) as an emergency medical technician. A licensed medical professional who holds a current professional license shall be deemed to hold a current certificate in first aid, but not in CPR. The certification process shall include a hands-on, in-person demonstration of first aid and CPR competency.

There is the potential that between the release of this regulation and the new chapter 106 that both of the organizations listed above will stop the requirement of “in-person” meaning at the same location due to the prevalence and growth of video conferencing. Some systems are already using video conferencing as the “in-person” part of the process. Will this language allow that to be used as “in-person” as these programs grow and change between now and the next release of regulations. We do not want to be stuck without the ability to use these trainings if they should evolve beyond the language we have placed in regulations. 

 

 

12VAC35-105-320. Fire inspections.

The provider shall document at the time of its original application and annually thereafter that buildings and equipment in residential service locations serving more than eight individuals are maintained in accordance with the Virginia Statewide Fire Prevention Code (13VAC5-51). This section does not apply to correctional facilities or home and noncenter-based or sponsored residential home services. The provider shall evaluate each individual and, based on that evaluation, shall provide appropriate environmental supports and adequate staff to safely evacuate all individuals during an emergency.

 

This change for Sponsored Residential (marked out) was unfortunately missed when the Emergency Regulations were initially released for comment. Since the release we have found differences in interpretation across the state between licensing specialists related to the new addition of Sponsored Residential. Some specialists were requiring a visit from a Fire Marshal before a Sponsored Home could be licensed. Fire Marshalls will often refuse to visit a family home, when there is an actual Fire Marshall for a locality. In many areas of the state there may be one for several counties.

 

The classification of all service settings within this single regulation does not appear to be appropriate. Sponsored Residential services have been excluded from this section in the past and should continue to be.

 

There is an additional requirement of evaluation required for each individual; however there is no notation regarding what is acceptable in terms of this evaluation, can this be observed, how is this to be documented, how often should this review and evaluation be completed, etc. to allow for clear guidance in the responsibilities of service providers upholding this requirement.

 

12VAC35-105-520. Risk management.

1. The provider shall designate a person responsible for the risk management function who has training and expertise in conducting investigations, root cause analysis, and data analysis.

The above noted regulation is vague in that it does not provide a basis of what is considered acceptable “training and expertise”. This could result in the inconsistency in the adherence and enforcement of this regulation.

Lutheran Family Services of VA Comments on Proposed Compliance with Virginia’s Settlement Agreement with US DOJ

1. 12VAC35-105-170. Corrective action plan – Often times we receive citations months after events occur.  Could OL have deadlines to provide citations?  Also, sometimes we don’t hear back in a timely manner as to whether or not a Corrective Action Plan has been accepted. Could OL have deadlines to approve or disapprove?
2. Serious Incident Level II definition – the proposed change is for all ER visits to be categorized as Level II instead of ER visits in lieu of PCP.  Instead of making this change can there be clarification or guidelines for providers to better determine what in lieu of means?  This will have an increased burden on providers and the state.
3. There is a proposed definition for “direct care position” though this term only appears to be used in 12VAC35-105-400 and is something that is proposed to be deleted. 
4. 12VAC35-105-620 reference to “statewide performance measures” though these have not been published yet.  Can this be removed until the time that they are published, to limit confusion. 

 

12VAC35-105-460. Emergency medical or first aid training.

There shall be at least one employee or contractor on duty at each location who holds a current certificate (i) issued by the American Red Cross, the American Heart Association, or comparable authority in standard first aid and cardiopulmonary resuscitation (CPR) or (ii) as an emergency medical technician. A licensed medical professional who holds a current professional license shall be deemed to hold a current certificate in first aid, but not in CPR. The certification process shall include a hands-on, in-person demonstration of first aid and CPR competency.

There is the potential that between the release of this regulation and the new chapter 106 that both of the organizations listed above will stop the requirement of “in-person” meaning at the same location due to the prevalence and growth of video conferencing. Some systems are already using video conferencing as the “in-person” part of the process. Will this language allow video conferencing to be used as “in-person” as these programs grow and change between now and the next release of regulations? We do not want to be stuck without the ability to use these trainings if they should evolve beyond the language we have placed in regulations. 

 

 

12VAC35-105-320. Fire inspections.

 

The provider shall document at the time of its original application and annually thereafter that buildings and equipment in residential service locations serving more than eight individuals are maintained in accordance with the Virginia Statewide Fire Prevention Code (13VAC5-51). This section does not apply to correctional facilities or home and noncenter-based or sponsored residential home services. The provider shall evaluate each individual and, based on that evaluation, shall provide appropriate environmental supports and adequate staff to safely evacuate all individuals during an emergency.

 

This change for Sponsored Residential (marked out) was unfortunately missed when the Emergency Regulations were initially released for comment. Since the release we have found differences in interpretation across the state between licensing specialists related to the new addition of Sponsored Residential. Some specialists were requiring a visit from a Fire Marshal before a Sponsored Home could be licensed. Fire Marshalls will often refuse to visit a family home, when there is an actual Fire Marshall for a locality. In many areas of the state there may be one for several counties.

 

The classification of all service settings within this single regulation does not appear to be appropriate. Sponsored Residential services have been excluded from this section in the past and should continue to be.

 

12VAC35-105-520. Risk management.

 

1. The provider shall designate a person responsible for the risk management function who has training and expertise in conducting investigations, root cause analysis, and data analysis.

 

The above noted regulation is vague in that it does not provide a basis of what is considered acceptable “training and expertise”. This could result in the inconsistency in the adherence and enforcement of this regulation.

 

12VAC35-105-460. Emergency medical or first aid training.

There shall be at least one employee or contractor on duty at each location who holds a current certificate (i) issued by the American Red Cross, the American Heart Association, or comparable authority in standard first aid and cardiopulmonary resuscitation (CPR) or (ii) as an emergency medical technician. A licensed medical professional who holds a current professional license shall be deemed to hold a current certificate in first aid, but not in CPR. The certification process shall include a hands-on, in-person demonstration of first aid and CPR competency.

 

There is the potential that between the release of this regulation and the new chapter 106 that both of the organizations listed above will stop the requirement of “in-person” meaning at the same location due to the prevalence and growth of video conferencing. Some systems are already using video conferencing as the “in-person” part of the process. Will this language allow that to be used as “in-person” as these programs grow and change between now and the next release of regulations. We do not want to be stuck without the ability to use these trainings if they should evolve beyond the language we have placed in regulations. 

 

 

12VAC35-105-320. Fire inspections.

The provider shall document at the time of its original application and annually thereafter that buildings and equipment in residential service locations serving more than eight individuals are maintained in accordance with the Virginia Statewide Fire Prevention Code (13VAC5-51). This section does not apply to correctional facilities or home and noncenter-based or sponsored residential home services. The provider shall evaluate each individual and, based on that evaluation, shall provide appropriate environmental supports and adequate staff to safely evacuate all individuals during an emergency.

 

This change for Sponsored Residential (marked out) was unfortunately missed when the Emergency Regulations were initially released for comment. Since the release we have found differences in interpretation across the state between licensing specialists related to the new addition of Sponsored Residential. Some specialists were requiring a visit from a Fire Marshal before a Sponsored Home could be licensed. Fire Marshalls will often refuse to visit a family home, when there is an actual Fire Marshall for a locality. In many areas of the state there may be one for several counties.

 

The classification of all service settings within this single regulation does not appear to be appropriate. Sponsored Residential services have been excluded from this section in the past and should continue to be.

 

There is an additional requirement of evaluation required for each individual; however there is no notation regarding what is acceptable in terms of this evaluation, can this be observed, how is this to be documented, how often should this review and evaluation be completed, etc. to allow for clear guidance in the responsibilities of service providers upholding this requirement.

 

12VAC35-105-520. Risk management.

1. The provider shall designate a person responsible for the risk management function who has training and expertise in conducting investigations, root cause analysis, and data analysis.

The above noted regulation is vague and does not describe what is considered acceptable “training and expertise”. This could result in the inconsistency in the adherence and enforcement of this regulation.

 

12VAC35-105-460. Emergency medical or first aid training.

There shall be at least one employee or contractor on duty at each location who holds a current certificate (i) issued by the American Red Cross, the American Heart Association, or comparable authority in standard first aid and cardiopulmonary resuscitation (CPR) or (ii) as an emergency medical technician. A licensed medical professional who holds a current professional license shall be deemed to hold a current certificate in first aid, but not in CPR. The certification process shall include a hands-on, in-person demonstration of first aid and CPR competency.

There is the potential that between the release of this regulation and the new chapter 106 that both of the organizations listed above will stop the requirement of “in-person” meaning at the same location due to the prevalence and growth of video conferencing. Some systems are already using video conferencing as the “in-person” part of the process. Will this language allow that to be used as “in-person” as these programs grow and change between now and the next release of regulations. We do not want to be stuck without the ability to use these trainings if they should evolve beyond the language we have placed in regulations. 

 

 

12VAC35-105-320. Fire inspections.

The provider shall document at the time of its original application and annually thereafter that buildings and equipment in residential service locations serving more than eight individuals are maintained in accordance with the Virginia Statewide Fire Prevention Code (13VAC5-51). This section does not apply to correctional facilities or home and noncenter-based or sponsored residential home services. The provider shall evaluate each individual and, based on that evaluation, shall provide appropriate environmental supports and adequate staff to safely evacuate all individuals during an emergency.

 

This change for Sponsored Residential (marked out) was unfortunately missed when the Emergency Regulations were initially released for comment. Since the release we have found differences in interpretation across the state between licensing specialists related to the new addition of Sponsored Residential. Some specialists were requiring a visit from a Fire Marshal before a Sponsored Home could be licensed. Fire Marshalls will often refuse to visit a family home, when there is an actual Fire Marshall for a locality. In many areas of the state there may be one for several counties.

 

The classification of all service settings within this single regulation does not appear to be appropriate. Sponsored Residential services have been excluded from this section in the past and should continue to be.

 

There is an additional requirement of evaluation required for each individual; however there is no notation regarding what is acceptable in terms of this evaluation, can this be observed, how is this to be documented, how often should this review and evaluation be completed, etc. to allow for clear guidance in the responsibilities of service providers upholding this requirement.

 

12VAC35-105-520. Risk management.

1. The provider shall designate a person responsible for the risk management function who has training and expertise in conducting investigations, root cause analysis, and data analysis.

The above noted regulation is vague in that it does not provide a basis of what is considered acceptable “training and expertise”. This could result in the inconsistency in the adherence and enforcement of this regulation.

 

12VAC35-105-460. Emergency medical or first aid training.

There shall be at least one employee or contractor on duty at each location who holds a current certificate (i) issued by the American Red Cross, the American Heart Association, or comparable authority in standard first aid and cardiopulmonary resuscitation (CPR) or (ii) as an emergency medical technician. A licensed medical professional who holds a current professional license shall be deemed to hold a current certificate in first aid, but not in CPR. The certification process shall include a hands-on, in-person demonstration of first aid and CPR competency.

There is the potential that between the release of this regulation and the new chapter 106 that both of the organizations listed above will stop the requirement of “in-person” meaning at the same location due to the prevalence and growth of video conferencing. Some systems are already using video conferencing as the “in-person” part of the process. Will this language allow that to be used as “in-person” as these programs grow and change between now and the next release of regulations. We do not want to be stuck without the ability to use these trainings if they should evolve beyond the language we have placed in regulations. 

12VAC35-105-320. Fire inspections.

The provider shall document at the time of its original application and annually thereafter that buildings and equipment in residential service locations serving more than eight individuals are maintained in accordance with the Virginia Statewide Fire Prevention Code (13VAC5-51). This section does not apply to correctional facilities or home and noncenter-based or sponsored residential home services. The provider shall evaluate each individual and, based on that evaluation, shall provide appropriate environmental supports and adequate staff to safely evacuate all individuals during an emergency.

This change for Sponsored Residential (marked out) was unfortunately missed when the Emergency Regulations were initially released for comment. Since the release we have found differences in interpretation across the state between licensing specialists related to the new addition of Sponsored Residential. Some specialists were requiring a visit from a Fire Marshal before a Sponsored Home could be licensed. Fire Marshalls will often refuse to visit a family home, when there is an actual Fire Marshall for a locality. In many areas of the state there may be one for several counties.

The classification of all service settings within this single regulation does not appear to be appropriate. Sponsored Residential services have been excluded from this section in the past and should continue to be.

There is an additional requirement of evaluation required for each individual; however there is no notation regarding what is acceptable in terms of this evaluation, can this be observed, how is this to be documented, how often should this review and evaluation be completed, etc. to allow for clear guidance in the responsibilities of service providers upholding this requirement.

12VAC35-105-520. Risk management.

1. The provider shall designate a person responsible for the risk management function who has training and expertise in conducting investigations, root cause analysis, and data analysis.

The above noted regulation is vague in that it does not provide a basis of what is considered acceptable “training and expertise”. This could result in the inconsistency in the adherence and enforcement of this regulation.

 

12VAC35-105-460. Emergency medical or first aid training.

There shall be at least one employee or contractor on duty at each location who holds a current certificate (i) issued by the American Red Cross, the American Heart Association, or comparable authority in standard first aid and cardiopulmonary resuscitation (CPR) or (ii) as an emergency medical technician. A licensed medical professional who holds a current professional license shall be deemed to hold a current certificate in first aid, but not in CPR. The certification process shall include a hands-on, in-person demonstration of first aid and CPR competency.

There is the potential that between the release of this regulation and the new chapter 106 that both of the organizations listed above will stop the requirement of “in-person” meaning at the same location due to the prevalence and growth of video conferencing. Some systems are already using video conferencing as the “in-person” part of the process. Will this language allow that to be used as “in-person” as these programs grow and change between now and the next release of regulations. We do not want to be stuck without the ability to use these trainings if they should evolve beyond the language we have placed in regulations. 

12VAC35-105-320. Fire inspections.

The provider shall document at the time of its original application and annually thereafter that buildings and equipment in residential service locations serving more than eight individuals are maintained in accordance with the Virginia Statewide Fire Prevention Code (13VAC5-51). This section does not apply to correctional facilities or home and noncenter-based or sponsored residential home services. The provider shall evaluate each individual and, based on that evaluation, shall provide appropriate environmental supports and adequate staff to safely evacuate all individuals during an emergency.

This change for Sponsored Residential (marked out) was unfortunately missed when the Emergency Regulations were initially released for comment. Since the release we have found differences in interpretation across the state between licensing specialists related to the new addition of Sponsored Residential. Some specialists were requiring a visit from a Fire Marshal before a Sponsored Home could be licensed. Fire Marshalls will often refuse to visit a family home, when there is an actual Fire Marshall for a locality. In many areas of the state there may be one for several counties.

The classification of all service settings within this single regulation does not appear to be appropriate. Sponsored Residential services have been excluded from this section in the past and should continue to be.

There is an additional requirement of evaluation required for each individual; however there is no notation regarding what is acceptable in terms of this evaluation, can this be observed, how is this to be documented, how often should this review and evaluation be completed, etc. to allow for clear guidance in the responsibilities of service providers upholding this requirement.

12VAC35-105-520. Risk management.

1. The provider shall designate a person responsible for the risk management function who has training and expertise in conducting investigations, root cause analysis, and data analysis.

The above noted regulation is vague and does not describe what is considered acceptable “training and expertise”. This could result in the inconsistency in the adherence and enforcement of this regulation.

12VAC35-15-160 D 2:  “For all other Level II and Level III serious incidents, the reported information shall also include the consequences or risk of harm that resulted from the serious incident.”  It is relatively easy to identify consequences resulting from the incident.  However, “risk of harm” is open to interpretation.  The concern here is that medical incidents have risks beyond the training of staff who do not have medical backgrounds.  It is impossible for a provider to determine all the possible risks.

12VAC35-105-460. Emergency medical or first aid training:  Requiring in person training is restrictive when there are many excellent online trainings available.  Request that the in person requirement be removed.

12VAC35-105-320. Fire inspections:  Sponsored residential should not be included in the requirement to have an inspection from a fire marshal.  Fire marshals will often refuse to visit a family home.  This could significantly delay homes being able to open, thus preventing individuals from having access to less restrictive housing options.  Standard fire precautions such as requiring fire extinguishers is sufficient.

The classification of all service settings within this single regulation is not reasonable. Sponsored Residential services should be excluded from this requirement.

12VAC35-15-160 D 2:  “For all other Level II and Level III serious incidents, the reported information shall also include the consequences or risk of harm that resulted from the serious incident.”  It is reasonable to present consequences that occurred, however, potential risks are difficult to identify without medical training.  It is also highly suggestive.  Recommend eliminating the language “or risk of harm.”

12VAC105 – 440:  “15 days to complete orientation”:  This is an extremely tight time frame that will be impossible to meet in many instances.  Medication training, for example, can take four full days and is scheduled through a nurse – this can take time.  Having a requirement this stringent will limit the pool of available workers to provide impotant services.  Recommend removing the requirement for completion within 15 days and putting in place a more realistic time frame such as 45 days.

 

12VAC35-105-460. Emergency medical or first aid training.

There shall be at least one employee or contractor on duty at each location who holds a current certificate (i) issued by the American Red Cross, the American Heart Association, or comparable authority in standard first aid and cardiopulmonary resuscitation (CPR) or (ii) as an emergency medical technician. A licensed medical professional who holds a current professional license shall be deemed to hold a current certificate in first aid, but not in CPR. The certification process shall include a hands-on, in-person demonstration of first aid and CPR competency.

There is the potential that between the release of this regulation and the new chapter 106 that both of the organizations listed above will stop the requirement of “in-person” meaning at the same location due to the prevalence and growth of video conferencing. Some systems are already using video conferencing as the “in-person” part of the process. Will this language allow that to be used as “in-person” as these programs grow and change between now and the next release of regulations. We do not want to be stuck without the ability to use these trainings if they should evolve beyond the language we have placed in regulations. 

 

 

12VAC35-105-320. Fire inspections.

The provider shall document at the time of its original application and annually thereafter that buildings and equipment in residential service locations serving more than eight individuals are maintained in accordance with the Virginia Statewide Fire Prevention Code (13VAC5-51). This section does not apply to correctional facilities or home and noncenter-based or sponsored residential home services. The provider shall evaluate each individual and, based on that evaluation, shall provide appropriate environmental supports and adequate staff to safely evacuate all individuals during an emergency.

 

This change for Sponsored Residential (marked out) was unfortunately missed when the Emergency Regulations were initially released for comment. Since the release we have found differences in interpretation across the state between licensing specialists related to the new addition of Sponsored Residential. Some specialists were requiring a visit from a Fire Marshal before a Sponsored Home could be licensed. Fire Marshalls will often refuse to visit a family home, when there is an actual Fire Marshall for a locality. In many areas of the state there may be one for several counties.

 

The classification of all service settings within this single regulation does not appear to be appropriate. Sponsored Residential services have been excluded from this section in the past and should continue to be.

 

There is an additional requirement of evaluation required for each individual; however there is no notation regarding what is acceptable in terms of this evaluation, can this be observed, how is this to be documented, how often should this review and evaluation be completed, etc. to allow for clear guidance in the responsibilities of service providers upholding this requirement.

 

12VAC35-105-520. Risk management.

1. The provider shall designate a person responsible for the risk management function who has training and expertise in conducting investigations, root cause analysis, and data analysis.

The above noted regulation is vague in that it does not provide a basis of what is considered acceptable “training and expertise”. This could result in the inconsistency in the adherence and enforcement of this regulation.

12VAC35-105-320. Fire inspections.

The provider shall document at the time of its original application and annually thereafter that buildings and equipment in residential service locations serving more than eight individuals are maintained in accordance with the Virginia Statewide Fire Prevention Code (13VAC5-51). This section does not apply to correctional facilities or home and noncenter-based or sponsored residential home services. The provider shall evaluate each individual and, based on that evaluation, shall provide appropriate environmental supports and adequate staff to safely evacuate all individuals during an emergency.

 

This change for Sponsored Residential (marked out) was unfortunately missed when the Emergency Regulations were initially released for comment. Since the release we have found differences in interpretation across the state between licensing specialists related to the new addition of Sponsored Residential. Some specialists were requiring a visit from a Fire Marshal before a Sponsored Home could be licensed. Fire Marshals will often refuse to visit a family home, when there is an actual Fire Marshal for a locality. In many areas of the state there may be one for several counties.

 

The classification of all service settings within this single regulation does not appear to be appropriate. Sponsored Residential services have been excluded from this section in the past and should continue to be.

 

There is an additional requirement of evaluation required for each individual; however there is no notation regarding what is acceptable in terms of this evaluation  to allow for clear guidance in the responsibilities of service providers upholding this requirement.

 

Previously QIDP had option for 5 years experience in lieu of degree.  QDDP does not have this as an documented option under definitions.  This is an important part of professional development for our team that might not have resources or ability to obtain degree.

105-160, Reviews by the department; requests for information; required reporting. “D. 2. For all other Level II and Level II serious incidents, the reported information shall also include the consequences or risk of harm that resulted from the serious incident.” – The level of detail being requested of the reporter at the incident reporting period seems excessive. Providers have only 24-hours to gather all required information to submit to the Department. This proposed requirement in encroaching on the territory of the Root Cause Analysis (RCA) and can be more adequately addressed there. The incident report already requires information about outcome, discharge status, disposition, etc. The proposed, required information may not be available and/or the most accurate at the time of incident reporting.

 

105-520, Risk Management. “C. The provider shall conduct systemic risk assessment ….This process shall incorporate uniform risk triggers and thresholds as defined by the department.” – The proposed revision suggests that the department has offered guidance, instruction and/or training sufficient for providers to implement sufficient Risk Management programs to address the noted expectations. To our knowledge, there has been limited guidance and no substantive training, offered by the Department, on how to develop and maintain such a system. Requirements in the absence of resources and definitive standards would be setting providers up for failure.

 

We disagree with the assertion that the emergency regulatory changes have had little impact on providers as “there is already staff in place to support this work”.  Specifically, many providers have needed to increase staff doing work related to Serious Incident reporting and follow up.  This work has not been absorbed without additional cost.  With the past few years, our agency has more than doubled the number of staff members completing work related to changes enacted due to the DOJ Settlement and have had to make difficult decisions when there is a need decrease our efforts in other areas.  From the broader perspective of an agency, this detracts from our ability to hire more staff for direct service provision.  In addition, program supervisors and staff have been tasked with spending time providing more information about incidents and participating in the root cause analysis process.  While more recent guidance and some listed herein have, indeed, allowed for more targeted reporting, gathering the additional information and conducting a greater degree of follow up is accounts for much of the theoretically “freed up” time.  The financial cost for ensuring appropriate training occurs is not small and we encourage the Office of Licensing to support the provision of regular, high-quality training across the Commonwealth on topics such as root cause analysis, risk management, data analysis, and investigation skills.

 

In addition, there has been an impact on staffing within our Developmental Services division, particularly the Case Management unit.  Increased responsibilities for Developmental Services Case Managers/Support Coordinators is straining the system as the additional work justifies smaller caseloads, while positions remain difficult to fill and as there are increasing difficulties in retaining staff members. 

 

We request confirmation that unplanned psychiatric hospitalization is synonymous with psychiatric hospitalization under a Temporary Detention Order and that voluntary hospitalization is exempt from the Level III reporting requirements.

 

We request inclusion of timeframe allotted to Licensing Specialists to provide feedback about whether proposed corrective action plans are or are not acceptable.  When there is a lack of feedback providers will, either begin to implement changes in good faith or will delay implementation of systemic changes unduly, while awaiting confirmation that the action steps are acceptable.  Similarly, when providers do not receive approval of corrective action plans, it is difficult to feel confident in adding this information to a quality improvement plan, as required in 105-620.

 

There are several changes for which we are appreciative.  Specifically, thank you for the removal of the concept of a Level III serious incident involving the possibility of permanent impairment. Incidents of these types that occur during service provision or on provider property will be captured under Level II reporting and review requirements.  Similarly, thank you for shifting the focus of RCAs for Level III events to those that occur during service provision or on provider property.  It has, indeed, been difficult to complete a meaningful RCA for events occurring outside of these times.  In addition, we appreciate efforts to ensure alignment of Licensing and Human Rights definitions, such as “Informed consent” and for including exemptions of reporting information about individuals who receive no services from a provider other than Emergency Services.

 

In review of the proposed regulation updates the following areas have been noted to be of concern, resulting in the comments outlined;

12VAC35-105-320. Fire inspections.

The provider shall document at the time of its original application and annually thereafter that buildings and equipment in residential service locations serving more than eight individuals are maintained in accordance with the Virginia Statewide Fire Prevention Code (13VAC5-51). This section does not apply to correctional facilities or home and noncenter-based or sponsored residential home services. The provider shall evaluate each individual and, based on that evaluation, shall provide appropriate environmental supports and adequate staff to safely evacuate all individuals during an emergency.

The classification of all service settings within this single regulation does not appear to be appropriate. Sponsored Residential services have been excluded from this section in the past (prior to recent emergency regulation updates), as these settings take place within a family home dwelling and mirrors that of true community placement. In this agency’s experience, this additional requirement has been interpreted as having a Fire Marshall conduct a visit and grant approval at the service setting, which does not often occur due to the inability of the Fire officials to actually conduct this type of visit and approval for a residential home setting. Additionally, there is an additional requirement of evaluation required for each individual; however there is no notation regarding what is acceptable in terms of this evaluation, can this be observed, how is this to be documented, how often should this review and evaluation be completed, etc. to allow for clear guidance in the responsibilities of service Providers upholding this requirement.

12VAC35-105-520. Risk management.

A. The provider shall designate a person responsible for the risk management function who has training and expertise in conducting investigations, root cause analysis, and data analysis.

The above noted regulation is vague in that it does not provide a basis of what is considered acceptable “training and expertise”. This vagueness will result in the inconsistency in the adherence and enforcement of this regulation.

12VAC35-105-460. Emergency medical or first aid training.

There shall be at least one employee or contractor on duty at each location who holds a current certificate (i) issued by the American Red Cross, the American Heart Association, or comparable authority in standard first aid and cardiopulmonary resuscitation (CPR) or (ii) as an emergency medical technician. A licensed medical professional who holds a current professional license shall be deemed to hold a current certificate in first aid, but not in CPR. The certification process shall include a hands-on, in-person demonstration of first aid and CPR competency.

There is the potential that between the release of this regulation and the new chapter 106 that both of the organizations listed above will stop the requirement of “in-person” meaning at the same location due to the prevalence and growth of video conferencing. Some systems are already using video conferencing as the “in-person” part of the process. Will this language allow that to be used as “in-person” as these programs grow and change between now and the next release of regulations. We do not want to be stuck without the ability to use these trainings if they should evolve beyond the language we have placed in regulations. 

12VAC35-105-460. Emergency medical or first aid training.

There shall be at least one employee or contractor on duty at each location who holds a current certificate (i) issued by the American Red Cross, the American Heart Association, or comparable authority in standard first aid and cardiopulmonary resuscitation (CPR) or (ii) as an emergency medical technician. A licensed medical professional who holds a current professional license shall be deemed to hold a current certificate in first aid, but not in CPR. The certification process shall include a hands-on, in-person demonstration of first aid and CPR competency.

There is the potential that between the release of this regulation and the new chapter 106 that both of the organizations listed above will stop the requirement of “in-person” meaning at the same location due to the prevalence and growth of video conferencing. Some systems are already using video conferencing as the “in-person” part of the process. Will this language allow that to be used as “in-person” as these programs grow and change between now and the next release of regulations. We do not want to be stuck without the ability to use these trainings if they should evolve beyond the language we have placed in regulations. 

 

 

12VAC35-105-320. Fire inspections.

The provider shall document at the time of its original application and annually thereafter that buildings and equipment in residential service locations serving more than eight individuals are maintained in accordance with the Virginia Statewide Fire Prevention Code (13VAC5-51). This section does not apply to correctional facilities or home and noncenter-based or sponsored residential home services. The provider shall evaluate each individual and, based on that evaluation, shall provide appropriate environmental supports and adequate staff to safely evacuate all individuals during an emergency.

 

This change for Sponsored Residential (marked out) was unfortunately missed when the Emergency Regulations were initially released for comment. Since the release we have found differences in interpretation across the state between licensing specialists related to the new addition of Sponsored Residential. Some specialists were requiring a visit from a Fire Marshal before a Sponsored Home could be licensed. Fire Marshalls will often refuse to visit a family home, when there is an actual Fire Marshall for a locality. In many areas of the state there may be one for several counties.

 

The classification of all service settings within this single regulation does not appear to be appropriate. Sponsored Residential services have been excluded from this section in the past and should continue to be.

 

There is an additional requirement of evaluation required for each individual; however there is no notation regarding what is acceptable in terms of this evaluation, can this be observed, how is this to be documented, how often should this review and evaluation be completed, etc. to allow for clear guidance in the responsibilities of service providers upholding this requirement.

 

12VAC35-105-520. Risk management.

1. The provider shall designate a person responsible for the risk management function who has training and expertise in conducting investigations, root cause analysis, and data analysis.

The above noted regulation is vague in that it does not provide a basis of what is considered acceptable “training and expertise”. This could result in the inconsistency in the adherence and enforcement of this regulation.

105-160, Reviews by the department; requests for information; required reporting. “D. 2. For all other Level II and Level II serious incidents, the reported information shall also include the consequences or risk of harm that resulted from the serious incident.” – The level of detail being requested of the reporter at the incident reporting period seems excessive. Providers have only 24-hours to gather all required information to submit to the Department. This proposed requirement in encroaching on the territory of the Root Cause Analysis (RCA) and can be more adequately addressed there. The incident report already requires information about outcome, discharge status, disposition, etc. The proposed, required information may not be available and/or the most accurate at the time of incident reporting. 12VAC35-105-160 D 2: “For all other Level II and Level III serious incidents, the reported information shall also include the consequences or risk of harm that resulted from the serious incident.” Determining risk of harm is very subjective and medical incidents can have variety of short and long-term risks. In addition, based on the example provided in the recent DBHDS Office of Licensure training on the CHRIS system, program staff are not equipped/trained to make such detailed assessments of risk of harm. Staff should not be expected to make speculative comments. Requiring program staff to do so will cause them to function outside of their scope of practice/expertise increasing the risk to all involved, provider and the Department. Recommend elimination of the language/requirement from the regulation-“or risk of harm that resulted from the serious incident.”A subsequent removal of this section from the CHRIS report is also recommended. 105-520, Risk Management. “C. The provider shall conduct systemic risk assessment ….This process shall incorporate uniform risk triggers and thresholds as defined by the department.” – The proposed revision suggests that the department has offered guidance, instruction and/or training sufficient for providers to implement sufficient Risk Management programs to address the noted expectations. To our knowledge, there has been limited guidance and no substantive training, offered by the Department, on how to develop and maintain such a system. Requirements in the absence of resources and definitive standards would be setting providers up for failure.

In regards to the description that “there is already staff in place to support this work,” referring to the significant increases in recent years for QA and risk management for each provider, we disagree.  Our agency has had to restructure and add administrative staff to accomplish the consistently increasing range of oversight requirements, such as, but not limited to: 24/7 incident reporting; increased oversight and quick turnaround with mortality reviews; documenting Root Cause Analysis (RCA) for every level II and III; the DOJ Settlement agreement oversight and reporting requirements; increasing performance contract and CCS3 reporting; and responding to multiple DBHDS staff from licensing, human rights, incident management, and mortality review (as opposed to focusing on collaboration with our local licensing specialist and human rights advocate); there also appears to be  increased demands to complete corrective actions at the time of the outcome of a human rights investigation, as opposed to working through a CAP process. We are faced with having to add more administrative staff who do not generate revenue, but whose costs are also not included in reimbursement rates, while also pulling more clinical or supervisory staff from direct work or supervision of direct work to complete increased quality management tasks. Although this is a comment on proposed regulation changes from DBHDS, please include that the context is one of managed care and the drastic increase in sources of oversight and lack of consistency across MCOs in order for providers to get reimbursement and be in compliance.  The whole context has a significant impact on providers--increased licensing and reporting requirements which require more unfunded staff time, decreases in authorizations (aka revenue), and decreased General funds.  

In relation to language proposed regarding reporting of serious incidents, please note that reverting back to prior language regarding reporting all ER visits in CHRIS will significantly overwhelm provider and DBHDS with unnecessary CHRIS reports and RCAs.  

Lastly, in relation to regulations requiring annual fire inspection by a local fire marshal, please note that it is not feasible for local fire marshals to inspect all provider sites across localities annually, if they are willing and understand the regulation to require their involvement.

105-20  Definition of Serious Incident. An emergency room visit; or urgent care facility visit when not used in lieu of a primary care physician visit. The change back to all emergency room visits increases the amount of incident reports submitted as well as the amount of staff time in writing and reviewing the incident for the root cause analysis. 

12VAC35-105-320. Fire inspections. The provider shall document at the time of its original application and annually thereafter that buildings and equipment in residential service locations serving more than eight individuals are maintained in accordance with the Virginia Statewide Fire Prevention Code (13VAC5-51). This change for Sponsored Residential has caused confusion across the state  related to the new addition of Sponsored Residential in this regulation. Fire Marshalls will often refuse to visit a family home. Please consider making Sponsored Residential Homes exempt from this regulation. 

105-520 - Risk Management. The wording in the regulations “incorporate uniform risk triggers and thresholds as defined by the department”, recommend to be removed or better defined for clarification. 

105-650 - Assessment Policy. A comprehensive assessment shall update and finalize the initial assessment. There are questions regarding this requirement and Same Day Access process.  There has been confusion if two separate assessments are required (the initial assessment and the comprehensive assessment.) This needs clarification as it relates to the SDA process.

12 VAC35-105-160-E: "A root cause analysis shall be conducted by the provider within 30 days of discovery of Level II serious incidents and any Level III serious incidents that occur during the provision of a service or on the provider's premises." Clarification on the language of "during provision of service." Often times the injury/illness itself does not occur on the provider's premises but the provider assists with accessing medical care if needed. These require root cause analysis, but the injury/illness did not originate during service provision and is not related to the service provided.

12 VAC35-105-20:  "Missing" means a circumstance in which an individual is not physically present when and where he should be and his absence cannot be accounted for or explained by his supervision needs or pattern of behavior.    Additional clarification on the definition of missing. Possible addition that this applies to residential programs  or if an individual elopes during the provision of services. 

12 VAC35- 103- 320:  "The provider shall document at the time of its original application and annually thereafter that buildings and equipment in residential service locations serving more than eight individuals are maintained in accordance with the Virginia Statewide Fire Prevention Code (13VAC5-51)."  With the inclusion of Sponsored Residential, more clarification on the qualifications needed to perform these inspections, specifically if the fire marshall must be performing the annual inspections for sponsor homes.

 

 

 

 

 

12VAC35-105-20. Definitions	The information in the definition of “unplanned psychiatric or unplanned medical hospital admission” under the definition of a Level II incident  presents challenges and may be interpreted differently among providers and licensing specialists. In order to avoid citations, we support clarifying this definition.   For example, there are circumstances where an individual may be ECO’ed, but decide to voluntarily admit themselves to the hospital.
12VAC35-105-160. Reviews by the Department; requests for information; required reporting.	We appreciate the change made to Section E to require a root cause analysis only for those serious incidents which occur on a provider’s premises or during provision of service. We continue to have concern that the required components of the root cause analysis described in Section E. One of the requirements is to include identified solutions to mitigate its reoccurrence when applicable. We suggest clarification that an individual has the right to indicate they do not want the identified solutions implemented.  It must be clear that individuals have the right to choice and dignity of risk. We suggest “identified solutions to mitigate its reoccurrence when applicable and at the choice of the individual.
12VAC35-105-320. Fire Inspections	The requirement to have annual fire inspections for all residential service locations regardless of the number of beds is costly and burdensome. Local fire departments/Fire Marshals may not have the ability or resources to complete this mandate. Additionally, there are many interpretations of what a fire inspection must include and who has the authority to conduct them. We suggest revising this section to have the providers complete the fire inspection with a standardized fire inspection checklist.  Additionally, the requirement: “The provider shall evaluate each individual and, based on that evaluation, shall provide appropriate environmental supports and adequate staff to safely evacuate all individuals during an emergency” does not specify what is adequate and appropriate. We suggest adding further definition (i.e., what type of evaluation is needed, where is it maintained, what is meant by “appropriate environmental supports”) to avoid misinterpretation and citations.
12VAC-105-660. Individualized services plan (ISP)	Section D. We respectfully request this section to be omitted or at least revised to clarify the minimum required documentation of risk, benefits and alternatives within the ISP for the following reasons: Health Record systems may not provide a way to add this information in the ISP.  Implementation would require time and money for modifications.  Assessing for appropriateness for a service is part of the required assessment process.   Services such as Case Management do not have alternative services to offer. Thus, providers cannot meet this requirement.   What are expected alternatives that must be discussed? Are providers to consider only ones that are available for the person in the area they want to live? Only those the individual qualifies for? Only other licensed services?   What are the specific risks individuals must be informed about services?  What specifically is expected?
	We suggest adding timeframes for the Department’s response to items received (e.g., service modifications) to promote positive collaboration between the Department and licensed providers. We support having timeframes for when actions by providers need to be completed and also support timeframes for when an anticipated response by the Department to licensed providers.

In additions to agreeing with the concerns already mentioned about 1) fire inspections; 2) risk manager qualifications; 3) fire marshall inspections for all levels of residential programs; 4) lack of DBHDS training around risk thresholds; 4) QDDP qualifications and 5) the addition of ABAs, the VACSB regulatory committee makes the following comments:

The impact stated in the NOIRA is not representative of the true impact to CSBs. DBHDS has increased regulatory oversight through all their Departments.  The impact providers feel from OL, OHR, and Disability Program areas is significant.  The system changes - whether as a result of DOJ settlement, STEP-VA, Medicaid MCOs,, etc are affecting administrative infrastructure in all CSBs. 

There is a lack of consistency in the interpretation of these regulations by DBHDS staff in various regions which leads to increased confusion and misinformation.  Recommend continued guidance documents and written responses to CSB questions be published when there is a discrepancy noted.

CSBs have increased staff in their QA and Admin Departments to meet current expectations and continuously evaluate workload based upon regulatory requirements.  CSBs and private providers consider very carefully the impact of service delivery by adding administrative positions vs. adding positions that provide direct client care.  Mandated reporting time frames take precedent over other duties to include: 24 hour CHRIS reporting, 10 day mortality review response, 30 day RCA, licensing citation response - all of which are examples of what is required to be managed.  The system has seemed to evolve to responding to citations and less about quality improvement.  Requiring all ER visits, for example, will add undue burden to the system. 

While timeframes exist in earnest for CSBs, the heavy administrative burden for DBHDS is affecting their ability to respond to requests in a timely manner to include accuracy of licenses.

We have the following concerns/comments on the proposed changes

1.The proposed definition of abuse is too vague and open to frequent misinterpretation. It is not possible to accurately predict whether an action "might cause psychological harm" now or in the future.

2.We have previously shared our concerns about sexual assault being classified as a Level III serious incident. We agree that if a sexual assault occurs on premises or during the provision of services, it should be reported but requiring reporting of sexual assault to DBHDS disrespects the preference of the individual and may inhibit reporting and treatment.

3.We also feel that while all deaths can be reported, expected deaths should not be classified as Level III serious incidents requiring root cause analysis. This encumbers a significant amount of staff time for an outcome that was expected and adds no value to the process.

4. While we support the requirement that case managers serving individuals with  developmental disability shall complete the DBHDS core competency-based curriculum within 30 days of hire no allowance is made for when the DBHDS training system is unavailable.

 

 

Continued from comment 1:

Recommend that timeframes be established regarding when DBHDS responds to CAPs, questions, applications. Recommend that responses from DBHDS are in writing and can be shared among CSBs. 

In regards to inaccuracies on licenses, MCOs rely on published license addendums.  Inaccuracies result in financial impact to CSBs.  License updates need to be expedited to support a more rigorous preauthorization and billing process from MCOs.

Program staff , those providing direct services, are spending more time reporting incidents, involved in RCAs, responding to various investigative units, DBHDS licensure specialists, as well as submitting various review documents as requested and which has a direct impact on actual service delivery.  The reporting and monitoring for providers is significant.  In light of these regulations and other initiatives a coordinated study of the full impact of requirements by OL, OHR and program specific areas on providers is recommended.

Thank you for providing opportunity to review and comment to improve regulations used by the Commonwealth to take care of its residents who need behavioral and developmental health and at the same time protect everyone.

1. Just for future regulatory actions, it is unclear from the document posted online as http://www.dbhds.virginia.gov/assets/QMD/licensing/Ch105.Compliance.forComment.2018.03.05.pdf as to whether all of “DEPARTMENT OF BEHAVIORAL HEALTH AND DEVELOPMENTAL SERVICES“ “Ch 105 Rules and Regulations for Licensing Facilities and Providers” are being reviewed and revised, or just certain articles and paragraphs, as the posted document makes no mention of this.  Hopefully the review can include the full regulation.  The document posted just seems to contain certain sections http://www.dbhds.virginia.gov/quality-management/Office-of-Licensing states “Each state agency must ensure that its regulations are reviewed at least once every four years through a ‘periodic review.’ Agencies must then decide if the regulation will be amended, retained as is, or repealed. After conducting the most recent periodic review of the Licensing Regulations, the agency filed a decision to amend the regulations.”  It goes on to say “There will be additional opportunities for public comment prior to the regulation becoming permanent.”

 

2. Revised document for comment has term "Serious incident" which “means any happening which is not consistent with the routine operation of a service provider or the routine care of an individual that is likely to lead to adverse effects upon an individual. The term serious incident includes death and serious injury. "Level I serious incident" means a serious incident that occurs or originates during the provision of a service or on the premises of the provider and does not meet the definition of a Level II or Level III serious incident. "Level II serious incident" means a serious incident that occurs or originates during the provision of a service or on the premises of the provider that results in a threat to the health and safety of an individual that does not meet the definition of a Level III serious incident. "Level II serious incident" also includes a threat to the health or safety of others caused by an individual. "Level II serious incidents" include:

 

1. A serious injury of an individual caused by the use of a physical restraint;

2. A serious injury caused by another individual or person;

3. An individual who is missing for any period of time;

4. An emergency room or urgent care facility visit when not used in lieu of a primary care physician visit;

5. A hospital admission;

6. Allegation of financial exploitation of an individual or theft of their property or funds;

7. A disaster, fire, emergency, or any other condition that may jeopardize the health, safety, or welfare of individuals;

8. Choking incidents that require direct physical intervention by another person;

9. Ingestion of any hazardous material.

10. A diagnosis of: a. A decubitus ulcer or an increase in severity of level of previously diagnosed decubitus ulcer; b. A bowel obstruction; or c. Aspiration pneumonia."

 

Level III serious incident" means a serious incident whether or not the incident occurs while in the provision of a service or on the provider’s premises and results in:

1) Any death of an individual;

2) A sexual assault of an individual;

3) A serious injury of an individual that results in or likely will result in permanent physical or psychological impairment;

4) A suicide attempt by an individual admitted for services that results in a hospital admission”

Revised document for comment also defines “Abuse” to include “Use  of  language  that  demeans,  threatens,  intimidates,  or  humiliates  the  individual;.”

There is some confusion however, when looking at the term “adverse effects upon an individual” or  “Use  of  language  that  demeans,  threatens,  intimidates,  or  humiliates  the  individual” in that the Definitions section defines "Individual" or "individual receiving services" = “means a current direct recipient of public or private mental health, developmental, or substance abuse treatment, rehabilitation, or habilitation services, and includes the terms "consumer," "patient," "resident," "recipient," or "client." When the term is used in this chapter, the requirement applies to every individual receiving licensed services from the provider.”

12VAC35-105-325 states “Each residential service shall designate a staff person  as  a  community  liaison  responsible  for  facilitating cooperative  relationships  with  neighbors,  local  law-enforcement  personnel,  local  government officials,  and  the community at large.” So clearly neighbors (including children), local law-enforcement personnel,  emergency responders, and  the community at large are part of the environment of the license providers whereby any injury or death or abuse to any one of them needs to be covered. And so are the provider staff, the men and women who provide the services.

Request the regulations be revised before finalization to make it clear that any death, sexual assault, or serious injury of any person; any disaster, fire, emergency, or any other condition that may jeopardize the health, safety, or welfare of any person or persons; or any use  of  language  that  demeans,  threatens,  intimidates,  or  humiliates  any person; with any of the all aforementioned that results from the actions of "individual receiving services" ("patient," "resident," "recipient," or "client") are included in the “Serious incident” and ideally prevented from ever occurring through risk management and individualized  services  plan, and if they do occur, that crisis stabilization, behavior intervention, and / or corrective action occurs to prevent recurrence. The term “individual”

Unfortunately,  group home situations exist that for example included at least six calls to the police because of incidents at the home or in the street outside the home and with neighbors as young children who enjoyed playing outside and reportedly could  no longer do so while the parents worried about what could happen with the group home residents and even to the extent of frightening young children to the point of not feeling safe in their own home.  (This even seems to meet the definition of "abuse" as defined in the document for review - use of language (including screams) that demeans, threatens, intimidates, or humiliates ) So the regulations need to be clear so these situations are addressed.  Thankfully the situation I am aware of seems to have improved as a result of community and law enforcement involvement.

Our Virginia Constitution’s Article I. Bill of Rights makes it clear “That all men [human beings] are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.” and “That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community; of all the various modes and forms of government, that is best which is capable of producing the greatest degree of happiness and safety […].” Therefore, the regulations need to ensure that the term “individual” is defined in ways that match its intended use in the regulation and not do so as it does now in a way to exclude certain persons.  Virginia’s Register of Regulations guidance “Form, Style and Procedure Manual for Publication of Virginia Regulations” as  http://register.dls.virginia.gov/documents/agency_resources/stylemanual.pdf § 3.10 says the “Definitions section” “definitions provide clarification for terms used within a regulation and allow the regulation writer to control the meaning of a word.”

 

The Virginia Sponsored Residential Provider Group (VaSRPG) is a collaboration of 30 agencies throughout Virginia who provide Sponsored Residential Services with an active membership of 73 participants.  VaSRGP is grateful for the opportunity to respond as a group to recent guidance documents for Direct Support Professional and Direct Support Professional Supervisor competencies and appreciates the consideration of our feedback.  For any questions related to this document, you may contact either of the following members: 

 

Meneika Chandler, Family Sharing, Inc., familysharingmlc@gmail.com, 540-414-4561

John Weatherspoon, Wall Residences, JWeatherspoon@wallresidences.com, 540-250-8928

 

VaSRPG would like to put for the following comments on guidance documents related to Proposed Changes for Rules and Regulations For Licensing Providers by the Department of Behavioral Health and Developmental Services

 

Generally VaSRPG is in support of language changes and clarification that has been made to processes and appreciates the time invested in the revision and development of the regulations.  The group collectively wishes to make note of the following items:

 

320 Fire code

Inclusion of SR services to have fire marshals inspection and documentation has been historically excluded from this requirement because was not an institutional setting but the private residence of a host family.  VaSRPG requests SR services to continue to be excluded from this change.

 

20 – Direct Care Position

This definition reads vaguely and seems to include all positions as direct care positions including supervisors who may or may not provide direct care.

Family Sharing, Inc. Response to Proposed Changes for Rules and Regulations For Licensing Providers by the Department of Behavioral Health and Developmental Services

 

 

Family Sharing, Inc. would like to submit the following comments in response to the Open Comment.  For any questions related to this document, you may contact either of the following members: 

 

Meneika Keith, Family Sharing, Inc., familysharingmk@gmail.com, 540-414-4561

Deborah Brinkley, Family Sharing, Inc., familysharingdb@gmail.com, 540-414-5552

 

 

12VAC35-105-691. Transition of individuals among service.

Family Sharing, Inc. requests consideration to add language related to transitioning individuals due to an emergency, such as the death of a caregiver, abuse investigations, or termination of contract for serious violations to regulations.  During such times, providers attempt to contact decision makers and support coordinators/supervisors/directors but may not be able to reach them due to the timing of the incidents, such as weekends/holidays.  The current provider of residential services is responsible for the residential provision and safety of the individual in services and must, during these times, take action to secure a temporary placement within the provider’s agency that can provide residential support until transitional planning can be implemented.  Currently, a provider who is faced with the need to place someone temporarily into an emergency placement licensed within their agency can be cited for moving an individual without following proper protocol but is also at risk of being cited for neglect of individuals that they either (a) do not move from such an emergency situation or (b) abandon to another agency the responsibility for finding alternate residential supports.

 

Family Sharing, Inc. suggests the provision of emergency transition protocols which include acknowledgment of the responsibility of the current provider of residential supports to assure safe residential placement during an emergency which dictates a requirement for a move from their current location, requirement that the provider be able to document attempts to contact team members and decision makers for collaboration, and a time line for returning to the normal transition protocols of touring homes and assuring vendor choice and transitional meetings while the individual is in an emergency placement within the same provider service. 

Comment on Proposed Licensing Regs 12VAC35-105

Many of our concerns identified in the implementation of the Emergency Regulations have been addressed.  However, we continue to have the following concerns.   

General
Unfunded mandates
The requirement of Risk management, quality improvement and serious incident reporting requirements proposed and included in the proposed recommendations are not included in the DD rate methodology and subsequent rates developed by Burns & Associates.

Crosswalk among Licensure, Human Rights, Medicaid Waiver and HCBS to provide consistency.
We have continued to recommend the development of a crosswalk among Licensure, Human Rights, Medicaid Waiver and the HCBS site requirements/transition plan during various work groups.  It was also a recommendation of the DBHDS Provider Issues Resolution Workgroup (PIRW) of which we are an active member.  

Deemed Status for CARF Accreditation
We have consistently recommended that providers who receive a full 3-year CARF accreditation be granted “deemed status” by the DBHDS and be exempt from licensing regulatory requirements.  This would allow the DBHDS to focus its limited licensing resources on new providers or troublesome providers. This would provide a significant benefit in terms of reducing onerous and redundant procedure development and implementation by providers.

105-160.D.2
The requirement is for providers to report “the consequences or risk of harm” for Level 11 and Level 111.  Requiring providers to meet the “risk of harm” is putting a unique burden upon them to speculate on what could have been occurred or may have occurred.  

105-170.E – Corrective Action Plans –
There is no deadline for the DBHDS response and no requirement for the response to be in writing.  Deadline = number of business days?  A stated deadline is necessary so that providers are not held in limbo – especially when there is a licensing personnel change or an evolving standard. Also provides written documentation that providers need to prepare for any appeals process.

105-140 – Orientation
Is the specific 15 days to complete orientation necessary?  Recommend deletion of specific reference to 15 days.  Is it “work days” or “calendar days” – a difference of whether 2 or 3 weeks.  Recommend language that specifies that providers can not bill for services until orientation has been completed and documented, etc. This is the goal of the requirement.  15 days is burdensome.  If requirement is kept to specifying number of days – please change to 30 “work days”. 

400.C
The statement should read “C. The provider shall submit all information required by the department to comply with the Code of Virginia to complete…….”

400
Add “D.2……”memoranda from the department transmitting the results to the provider, if applicable, ……

105-520
The language requires that the provider “incorporate uniform risk triggers and thresholds as defined by the department”.  Have these been published?

105-520.A Qualifications for Risk Manager
Has the term “expertise” in the phrase “training and expertise in conducting investigations, root cause analysis and data analysis” been defined?  The term is vague and subjective.  Also, burdensome in that it implies that someone has received specific training to acquire this expertise.  Experience supporting expertise should be considered for an individual to satisfy requirements.