Title of Regulation: 12VAC35-105. Rules and Regulations for Licensing Providers by the Department of Behavioral Health and Developmental Services (adding 12VAC35-105-435).

Statutory Authority: §§ 37.2-100 and 37.2-203 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: October 14, 2020.

Effective Date: October 30, 2020.

Agency Contact: John Cimino, Licensing Legal and Regulatory Coordinator, Department of Behavioral Health and Developmental Services, 1220 Bank Street, P.O. Box 1797, Richmond, VA 23218, telephone (804) 298-3279, FAX (804) 692-0066, TTY (804) 371-8977, or email john.cimino@dbhds.virginia.gov.

Basis: Section 37.2-203 of the Code of Virginia authorizes the board to adopt regulations that may be necessary to carry out the provisions of Title 37.2 and other laws of the Commonwealth administered by the commissioner and the department.

Purpose: The intent of the legislative mandate is to protect the safety of individuals receiving services from unfit direct care staff as there currently is not a state registry for those with founded cases of abuse and neglect against adults.

Rationale for Using Fast-Track Rulemaking Process: This regulatory action is necessary to comply with Chapter 776 of the 2019 Acts of Assembly and therefore is noncontroversial.

Substance: This action is a mandate from the General Assembly, with specific language. The new section text closely tracks the language of the bill, except that it would require the statement to be "in writing," which is an act of discretion by the department. The new language is in its own new section, 12VAC35-105-435, which follows immediately after 12VAC35-105-430, a section regarding employee or contractor personnel records.

Issues: The primary advantage to the public, specifically individuals receiving services, is better protection of those individuals from unfit direct care staff as there currently is not a state registry for those with founded cases of abuse and neglect against adults.

This regulatory requirement creates an opportunity for providers to learn of employee work history, which may include founded cases of abuse or neglect, that may render a prospective employee unfit for employment and thereby reduce risk to individuals receiving services.

There are no disadvantages to the public. This language could potentially increase service quality based on the fact that providers are receiving references related to character, ability, and fitness of potential employees providing direct care services.

There is no specific advantage or disadvantage to the agency or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The State Board of Behavioral Health and Developmental Services (Board) seeks to add a new section to the regulation (12VAC35-105-435) titled Provision of provider statement to any other provider. This section, as proposed, seeks to protect adult individuals receiving developmental services from caregiver abuse, in the absence of a registry for adult abuse in the context of personal care services. The proposed change would require employers of caregivers to provide a written statement addressing the "character, ability, and fitness for employment" of their current or former employees at the request of such information from another organization/provider seeking to employ that caregiver, provided the caregiver in question consents to the disclosure of this information in writing.

Background. The 2019 Acts of Assembly (Chapter 776) directs the Board to amend the regulations governing licensed providers to include a requirement that licensed providers (could be an individual or organization) are to provide a character reference for a current or former employee to another licensed provider who may be considering hiring that caregiver. Specifically, this requirement would apply when all of the following conditions are met.

i. The person in question, who would be the subject of this statement, is a current or former employee or other individual currently or previously associated with the provider in a capacity that requires a criminal background check pursuant to § 37.2-416 or § 37.2-506 of the Code of Virginia.

ii. The person in question has applied for employment or to fill a role that requires a criminal background check with a licensed provider.

iii. The provider writing the statement receives a request for the statement from the other licensed provider.

iv. The provider writing the statement receives written consent for the disclosure of such information, executed by the person who would be the subject of the statement.

The proposed new section of the regulation matches the language of the statute mandating it, almost verbatim. The only difference is that the proposed addition specifies that the statement be written.

Estimated Benefits and Costs. In the absence of a registry for workers who have been convicted of abuse or neglect toward adults in their care, any measure that provides greater information about a potential employee's propensity to engage in abuse or neglect would certainly benefit prospective employers as well as the adults under their care. Although the proposed addition does not require prospective employers to request a letter, they may feel encouraged to do so knowing that licensed providers would be required to provide a statement, if asked, provided the employee consents. To the extent that providers may have been reluctant to ask for a reference previously and are now more likely to request a statement, they and the people they serve may be benefited by this new requirement.¹

Requiring a statement is a useful addition to the extent that it can provide information that would not already be available to the prospective employer. The first two conditions imply that the employee has to be moving from a role that required a background check to another role that requires a background check, so the provider statement would only be adding information to the extent that it could provide more information than the background check. According to the Department of Behavioral Health and Developmental Services (DBHDS), a background check would only reveal a history of abuse if charges had been filed against the individual and would not reveal the results of any internal investigations that did not involve law enforcement. Hence, the statements are intended to capture information that is likely to be sensitive in nature.

However, requiring that they be written may impose certain indirect costs that could reduce their effectiveness in this regard. In particular, the terms "character, ability, and fitness" are not defined in the regulation and are thus open to the provider's interpretation. DBHDS staff clarified that the statement is intended to include the details and outcomes of any internal investigation into reported abuse involving the employee that had been conducted by the former employer. The third and fourth conditions would protect employers by requiring that statements only be provided in response to a request initiated by the prospective employer with the documented consent of the former employee. To the extent that applicants rejected from jobs may respond by requesting a copy of the statement, requiring a written statement exposes the writer to some risk of legal action, even if it is by a very small degree. This may be more likely to occur if the one or more of the parties involved is a state or local agency, to which the employee could submit a Freedom of Information Act request to obtain their statement. Further, providers may bear some potential risk to their licensure status, or reputation, if the statement's contents were disclosed following a request and details of internal investigations or other information about any abuse that occurred were more broadly known as a result.

Businesses and Other Entities Affected. The proposed amendment affects licensed providers of behavioral health and developmental services to adults, and their current, former, or prospective employees or associates, in positions that require criminal history background checks. DBHDS licenses approximately 1,100 providers in Virginia, and they estimate that more than 100,000 people are served by the providers.² Many of these providers are likely to be small businesses, but the exact number is unknown.

Localities³ Affected.⁴ The proposed requirements do not appear to affect particular localities disproportionately or introduce new costs for local governments.

Projected Impact on Employment. The proposed amendments are unlikely to affect total employment; any increase in caregivers' unemployment due to negative provider statements is likely to be marginal, in part because of the shortage of caregivers.

Effects on the Use and Value of Private Property. The proposed amendment has no effect on the use and value of private property, nor does it affect real estate development costs.

Adverse Effect on Small Businesses.⁵

Types and Estimated Number of Small Businesses Affected: DBHDS licenses approximately 1,100 providers in Virginia, many of whom are likely to be small businesses, although the exact number is unknown.

Costs and Other Effects: As discussed, the proposal does not impose any direct costs, over and above the marginal time cost of preparing a statement. To the extent that some providers may have concerns about sharing the details of internal investigations, they may not provide substantive information in their written statements.

Alternative Method that Minimizes Adverse Impact: In keeping with the language of the legislative mandate, the Board could remove the requirement that the statement be provided in writing. The requesting licensed provider could confirm to DBHDS that the character reference has been provided, even if it is verbal, so that the state agency would know that the proposed requirement has been met.

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¹Adverse impact is indicated if there is any increase in net cost or reduction in net revenue for any entity, even if the benefits exceed the costs for all entities combined.

²If the prospective employer requests a statement and the applicant does not consent, that too could be informative.

³See Table 2 in https://rga.lis.virginia.gov/Published/2017/RD552/PDF for details on individuals served by Community Service Boards or State Facilities.

⁴"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

⁵§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

⁶Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

Agency's Response to Economic Impact Analysis: The agency concurs with the Department of Planning and Budget's economic impact analysis.

Summary:

Pursuant to Chapter 776 of the 2019 Acts of Assembly, the action establishes a requirement that employers of caregivers provide a written statement addressing the "character, ability, and fitness for employment" of current or former employees at the request of such information from another organization or provider seeking to employ that caregiver, provided the caregiver in question consents to the disclosure of this information in writing.

12VAC35-105-435. Provision of provider statement to any other provider.

Providers shall give a statement in writing regarding a current or past employee or other individual currently or previously associated with the provider in a capacity that requires a criminal history background check pursuant to § 37.2-416 or 37.2-506 of the Code of Virginia to any other licensed provider with which the current or past employee has applied for employment or to fill a role that requires a criminal history background check pursuant to § 37.2-416 or 37.2-506 of the Code of Virginia. The statement shall address the character, ability, and fitness for employment in or to otherwise fill the role for which the person has applied and shall be provided upon:

1. Receipt of a request for such information from the other licensed provider; and

2. Written consent to the disclosure of such information executed by the current or past employee or other individual currently or previously associated with the provider in a capacity that requires a criminal history background check pursuant to § 37.2-416 or 37.2-506 of the Code of Virginia.

Nothing in this provision shall require disclosure of information subject to privilege or confidentiality pursuant to § 8.01-581.16, 8.01-581.17, or 32.1-127.1:03 of the Code of Virginia or federal law.