TITLE 22. SOCIAL SERVICES
Title of Regulation: 22VAC40-73. Standards for Licensed Assisted Living Facilities (amending 22VAC40-73-10, 22VAC40-73-430; adding 22VAC40-73-435).
Statutory Authority: §§ 63.2-217, 63.2-1732, 63.2-1802, 63.2-1805, and 63.2-1808 of the Code of Virginia.
Public Hearing Information: No public hearing is currently scheduled.
Public Comment Deadline: September 27, 2023.
Effective Date: November 27, 2023.
Agency Contact: Sharon Lindsay, Associate Director, Department of Social Services, 801 East Main Street, Richmond, VA 23219, telephone (804) 972-0676, FAX (804) 726-7132, or email sharon.lindsay@dss.virginia.gov.
Basis: The State Board of Social Services has the legal authority to adopt regulations and requirements for licensing assisted living facilities (ALFs) in accordance with §§ 63.2-217, 63.2-217.1, 63.2-1732, 63.2-1805, and 63.2-1808 of the Code of Virginia. The Code of Virginia mandates promulgation of regulations to address involuntary discharge of ALF residents, including timeframes, notification requirements, conditions, and the process for appeal. This regulatory action will provide direction for involuntary discharge pursuant to § 63.2-1805 of the Code of Virginia as required by amendments made by Chapter 706 of the 2022 Acts of Assembly.
Purpose: This regulatory change is essential to protect the health, safety, and welfare of residents residing in an ALF by clearly describing conditions for involuntary discharge from an ALF, and requirements to notify residents of their right to appeal an involuntary discharge. This action will ensure that ALF residents are not discharged inappropriately, and allow residents a legal remedy to appeal the discharge if discharge requirements are not followed.
Rationale for Using Fast-Track Rulemaking Process: This rulemaking action is expected to be noncontroversial as it is required by § 63.2-1805 of the Code of Virginia and therefore appropriate for the fast-track rulemaking process. This action provides ALF and residents requirements for involuntary discharge situations and creates a discharge appeal process to follow should one be needed. This action is intended to expand protections and offer clarification for facilities and residents.
Substance: The amendments add a definition of "involuntary discharge" and clarify the terms and conditions for when and how this type of discharge is permitted, including timeframes and the option for a resident to appeal the facility's decision to discharge as well as providing requirements for an ALF resident to appeal certain discharge decisions should that resident choose to do so.
Issues: The primary advantage of this action for the public is allowing residents in an ALF to appeal an involuntary discharge, which has not previously been permitted. There are no disadvantages to the public from this action. There are no advantages or disadvantages to the agency or Commonwealth, as this action is required by § 63.2-1805 of the Code of Virginia. There could be disadvantages to the regulated programs (ALFs) if the programs do not follow requirements when involuntarily discharging residents, as the residents can now appeal the discharge, and there is a legal remedy for residents that previously did not exist.
Department of Planning and Budget's Economic Impact Analysis:
The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia (Code) and Executive Order 19. The analysis presented represents DPB's best estimate of these economic impacts.1
Summary of the Proposed Amendments to Regulation. As a result of a 2022 legislative mandate, the State Board of Social Services (Board) is proposing to update the regulation governing assisted living facilities (ALFs) to add requirements that address the involuntary discharge of a resident, including an appeals process.2
Background. ALFs are nonmedical residential settings that provide or coordinate personal and health care services, 24-hour supervision, and assistance for the care of four or more adults who are aged, infirm or disabled.3 Chapter 706 of the 2022 Acts of Assembly created specific requirements for the regulation governing ALFs with respect to the circumstances in which residents may be involuntarily discharged, the opportunity to appeal an involuntary discharge, and the process for such an appeal.4 The legislation specifies that residents may only be involuntarily discharged in accordance with Board regulations, provided that the ALF has met the regulatory requirements and has made reasonable efforts to meet the needs of the resident. Further, an involuntary discharge may only occur for one of the following reasons: (i) nonpayment of contracted charges, provided that the resident has been given at least thirty days to cure the delinquency after notice was provided to the resident and the resident's legal representative or designated contact person; (ii) for the resident's failure to substantially comply with the terms and conditions of the resident agreement between the resident and the ALF; (iii) if the ALF closes in accordance with the regulations;5 or (iv) when the resident develops a condition or care need that the Code of Virginia or regulation indicate ALFs are not licensed to handle.6
Chapter 706 also requires ALFs to "make reasonable efforts, as appropriate, to resolve any issues with the resident upon which the decision to discharge is based and document such efforts in the resident's file" except when "an emergency discharge is necessary due to an immediate and serious risk to the health, safety, or welfare of the resident or others." Further, the legislation requires an ALF to provide a written discharge notice to the resident and the resident's legal representative/designated contact person, as well as a copy of that notice to the Department of Social Services (DSS) and the State Long-Term Care Ombudsman at least 30 days prior to the involuntary discharge.7 This notice is required to include the ALF's decision to discharge the resident, the reasons for the discharge, the date on which the discharge will occur, and information regarding the resident's right to appeal within the 30-day notice period.8 Additionally, the legislation provides that the ALF shall provide relocation assistance to the resident prior to the involuntary discharge.9 Lastly, the legislation directs the Board to "adopt regulations that establish a process for appeals filed pursuant to this [legislation]."
Accordingly, the proposed changes include adding a definition in 22VAC40-73-10 for "involuntary discharge" as "when a facility requires a resident to move out of the [ALF] and not be allowed to return." 22VAC40-73-430 (Discharge of residents) would be revised significantly to reorder current requirements and incorporate the changes required by Chapter 706. These changes are summarized as follows:
The current requirement that the ALF adopt and conform to a written policy that provides for a general notice of an intent to move within a certain timeframe would be replaced with the more specific requirement that the ALF provide written notice 30 days prior to discharge. The written notice must include the decision to discharge, the reason for discharge, discharge date, and the place the resident will be discharged to.
Reasons for involuntary discharge would be added, identical to those listed in statute, as well as the requirement that the written notice inform residents and their legal representatives of their right to file an appeal within the 30-day notice period.
Language stating that "the responsibility of moving the resident's belongings would rest with the resident or his legal representative" would be removed since the regulation does not otherwise address residents' responsibilities.10
Emergency discharge requirements would be updated to conform to the changes to § 63.2-1805 of the Code of Virginia pursuant to Chapter 706, including that the ALF shall provide a copy of the department's discharge notice form to the regional licensing office and the State Long-Term Ombudsman within five days after the emergency discharge. The emergency discharge notice would also have to include information regarding the resident's right to appeal within 30 days from the emergency discharge date, plus the additional five days granted to the ALF to provide the discharge notice following an emergency.
References to "eligibility worker" would be changed to "assigned staff at the local department of social services" to reflect current terminology. A current requirement that such staff be informed at least 14 days prior to the discharge date, as well as current exemptions from this requirement for emergencies, would be preserved as is.
Lastly, 22VAC40-73-435 would be added to incorporate requirements promulgated by Chapter 706 relating to appeals of emergency or involuntary discharge. This section contains the following requirements for ALFs: (i) ALFs shall "assist the resident and the resident's legal representative, if any, when the resident is filing an appeal";11 (ii) ALFs shall allow the resident to continue to reside in the facility, free from retaliation, until the appeal has reached its final department case decision, except in the case of emergency discharges or if the resident has developed a condition or care need prohibited by § 63.2-1805 D; (iii) the ALF must inform the resident of their continued right to reside in accordance with this requirement; and (iv) the ALF shall provide a postage prepaid envelope addressed to the department to use if the appeal is mailed, if requested by the resident. This section would also state that residents who have been removed pursuant to an emergency discharge can still file an appeal, and note that appeals are considered filed upon receipt by the agency's Division of Appeals and Fair Hearings.
Estimated Benefits and Costs. The proposed changes would primarily benefit residents of ALF by clarifying the grounds for involuntary discharge, providing them with 30-day written notice of an involuntary discharge (or within five days after an emergency discharge), establishing a process to appeal the involuntary discharge with DSS during the 30-day advance notice period (or following an emergency discharge), as well as the right to remain in the ALF until the DSS Commissioner has made a final case decision (unless an emergency discharge has already occurred).12 These changes broadly serve to help residents and their families better plan for the residents' accommodation and care needs post-discharge. However, these changes would create new costs for DSS as well as for ALFs.
DSS reports that their Division of Appeals and Fair Hearings would need two staff, a Senior Hearing Officer and an Administrative Technician, to process ALF involuntary discharge appeals. The reported cost for the staff is $198,034 for fiscal year (FY) 2023 and $187,708 each year thereafter; DSS reports that appropriations for these positions have been provided in the state budget.13 In addition, DSS Licensing would need to upgrade the licensing information system to track and monitor ALF discharges and appeals. The estimated one-time cost is $500,000 for FY2023; this amount has also been appropriated in the state budget.
ALFs would incur initial costs relating to updating their documentation procedures for involuntary and emergency discharges to comply with the written notice and recordkeeping requirements. Costs relating to the appeals may arise from helping the resident or resident's legal representative compile the appeal and send it to DSS. Most of these costs would depend on the number of involuntary and emergency discharges, and the number of such decisions that are appealed.14 An ALF could be particularly impacted if a resident appealed an involuntary discharge that was based on nonpayment and remained in the facility until DSS made a final case determination, while continuing not to pay.15 However, the likelihood of this happening is unknown; thus, while it does not directly create a cost for ALFs, it increases the financial risk that they are subject to.
Generally, ALFs would face reduced flexibility and increased oversight in determining whether residents need to be discharged. Currently, ALF decisions to discharge individuals can only be appealed with the facility, if they have an appeals process. The proposed changes may reduce the number of discharges if ALFs were discharging individuals on grounds that would not meet the new criteria for involuntary or emergency discharges or would be likely to face an appeal. Essentially, ALFs' ability to turnover residents that were expensive to accommodate or care for would be reduced. To this extent this occurs it could affect the composition of payors in the ALF's resident pool, or the mix of residents' care needs, such that the ALFs revenues are decreased or operating costs (mainly staffing needs) are increased. However, these costs are unavoidable and can be attributed to the legislation requiring these changes.
Businesses and Other Entities Affected. DSS reports that there are currently 564 licensed ALFs. Most are considered small businesses. As of March 2022, four ALFs were operated by community services boards and one ALF is operated by a locality health center commission.
The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.16 An adverse 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. As noted, the new requirements would create new costs for DSS and for ALFs. Thus, an adverse impact is indicated.
Small Businesses17 Affected.18 The proposed amendments do appear to adversely affect small businesses.
Types and Estimated Number of Small Businesses Affected: As indicated, DSS reports that most of the 564 licensed ALFs would be considered small businesses. DSS does not collect information on whether individual licensees meet the criteria for small businesses.
Costs and Other Effects: The proposed amendments create direct costs in terms of required documentation and procedural changes. ALFs may incur costs depending on the number of involuntary or emergency discharges they make and the number of such discharges that are appealed, as well as face additional financial risk since the number and nature of appeals may be difficult to predict. ALFs may also incur other indirect economic impacts by being restricted in their ability to discharge residents. Thus, an adverse economic impact is indicated for ALFs.
Alternative Method that Minimizes Adverse Impact: There are no clear alternative methods that both reduce adverse impact and implement the requirements of Chapter 706 or the 2022 Acts of Assembly.
Localities19 Affected.20 As mentioned previously, four ALFs are operated by community services boards and one ALF is operated by a locality health center commission. These local governments would be affected to the extent that any higher costs incurred by the ALF are passed on to them.
Projected Impact on Employment. The proposed amendments are unlikely to impact total employment.
Effects on the Use and Value of Private Property. The proposed amendments would increase costs and financial risks for ALFs, thereby making them less profitable and reducing the value of these businesses. The proposed amendment would not affect real estate development costs.
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1Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.
2See https://townhall.virginia.gov/L/viewmandate.cfm?mandateid=1299.
3See https://www.dss.virginia.gov/facility/alf.cgi. The website further specifies that, "Assisted living facilities are not nursing homes. A nursing home is a facility in which the primary function is the provision, on a continuing basis, of nursing services and health-related services for the treatment and inpatient care of two or more non-related individuals. Nursing homes are regulated by the Virginia Department of Health."
4See https://leg1.state.va.us/cgi-bin/legp504.exe?221+ful+CHAP0706.
5The legislation states that a resident may appeal any of the discharge decisions based on the other factors, but that an involuntary discharged based on a facility's closure is not appealable.
6Some of these include ventilator dependency, certain types of ulcers, intravenous therapy or injections, airborne infectious disease, and individuals who present an imminent physical threat or danger to self or others. The list of these conditions appears in § 63.2-1805 D of the Code of Virginia. See https://law.lis.virginia.gov/vacode/title63.2/chapter18/section63.2-1805/.
7The legislation provides an exception for emergency discharges and requires that notice be "provided as soon as possible but not later than five days" after the emergency discharge. According to the legislation, these residents retain the right to appeal even if they no longer reside in the facility.
8DSS is required to furnish a discharge notice form that includes information regarding the process for initiating an appeal, the number for a toll-free information line, a hearing request form, the facility's obligation to assist the resident in filing an appeal and provide, upon request, a postage prepaid envelope addressed to the agency, and a statement of the resident's right to continue to reside in the facility, free from retaliation, until the appeal has a final department case decision, subject to an emergency discharge or development of a certain type of condition or care need.
9DSS reports that this requirement appears in the current regulation at 22VAC40-73-430, and that it does not mean the ALF has to find the resident another placement. Rather, the requirement applies to situational assistance such as packing belongings, providing a list of possible alternative accommodations, working with the family to help the person transition to another level of care, and preparing copies of records.
10See Agency Background Document (ABD), page 7: https://townhall.virginia.gov/l/GetFile.cfm?File=73\6132\9853\AgencyStatement_DSS_9853_v4.pdf.
11DSS does not believe that this requirement is a conflict of interest, since residents "commonly need at least minimal support for instrumental activities of daily living," and that this assistance could include contacting family members or connecting the resident with an advocate.
12This decision may be further appealed in court, and it is unclear if the resident's right to remain in the ALF would extend through any subsequent court proceedings.
13ABD, page 4.
14DSS reports that they do not have data on the number of involuntary decisions in recent years or how many may be appealed going forward.
15DSS reports that the Division of Appeals and Fair Hearings has a procedure to hold hearings within 90 days of the appeal. Involuntary discharge based on nonpayment requires that residents and their representatives be given 30-days' notice of nonpayment. Thus, it is possible that a resident may stay for up to five months without the ALF receiving payment.
16Pursuant to Code § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.
17Pursuant to § 2.2-4007.04, 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."
18If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.
19"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.
20Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.
Agency's Response to Economic Impact Analysis: The Department of Social Services concurs with the economic impact analysis prepared by the Department of Planning and Budget.
Summary:
Pursuant to Chapter 706 of the 2022 Acts of Assembly, the amendments (i) add a definition of "involuntary discharge"; (ii) provide the terms and conditions for an involuntary discharge; and (iii) outline an appeal process for an assisted living facility resident to appeal certain discharge decisions should a resident choose to do so.
22VAC40-73-10. Definitions.
The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:
"Activities of daily living" or "ADLs" means bathing, dressing, toileting, transferring, bowel control, bladder control, and eating/feeding. A person's degree of independence in performing these activities is a part of determining appropriate level of care and services.
"Administer medication" means to open a container of medicine or to remove the ordered dosage and to give it to the resident for whom it is ordered.
"Administrator" means the licensee or a person designated by the licensee who is responsible for the general administration and management of an assisted living facility and who oversees the day-to-day operation of the facility, including compliance with all regulations for licensed assisted living facilities.
"Admission" means the date a person actually becomes a resident of the assisted living facility and is physically present at the facility.
"Advance directive" means, as defined in § 54.1-2982 of the Code of Virginia, (i) a witnessed written document, voluntarily executed by the declarant in accordance with the requirements of § 54.1-2983 of the Code of Virginia or (ii) a witnessed oral statement, made by the declarant subsequent to the time he the declarant is diagnosed as suffering from a terminal condition and in accordance with the provisions of § 54.1-2983 of the Code of Virginia.
"Ambulatory" means the condition of a resident who is physically and mentally capable of self-preservation by evacuating in response to an emergency to a refuge area as defined by 13VAC5-63, the Virginia Uniform Statewide Building Code, without the assistance of another person, or from the structure itself without the assistance of another person if there is no such refuge area within the structure, even if such resident may require the assistance of a wheelchair, walker, cane, prosthetic device, or a single verbal command to evacuate.
"Assisted living care" means a level of service provided by an assisted living facility for adults who may have physical or mental impairments and require at least moderate assistance with the activities of daily living. Included in this level of service are individuals who are dependent in behavior pattern (i.e., abusive, aggressive, disruptive) as documented on the uniform assessment instrument.
"Assisted living facility" means, as defined in § 63.2-100 of the Code of Virginia, any congregate residential setting that provides or coordinates personal and health care services, 24-hour supervision, and assistance (scheduled and unscheduled) for the maintenance or care of four or more adults who are aged, infirm, or disabled and who are cared for in a primarily residential setting, except (i) a facility or portion of a facility licensed by the State Board of Health or the Department of Behavioral Health and Developmental Services, but including any portion of such facility not so licensed; (ii) the home or residence of an individual who cares for or maintains only persons related to him that individual by blood or marriage; (iii) a facility or portion of a facility serving infirm or disabled persons between the ages of 18 and 21 years, or 22 years if enrolled in an educational program for the handicapped pursuant to § 22.1-214 of the Code of Virginia, when such facility is licensed by the department as a children's residential facility under Chapter 17 (§ 63.2-1700 et seq.) of Title 63.2 of the Code of Virginia, but including any portion of the facility not so licensed; and (iv) any housing project for persons 62 years of age or older or the disabled that provides no more than basic coordination of care services and is funded by the U.S. Department of Housing and Urban Development, by the U.S. Department of Agriculture, or by the Virginia Housing Development Authority. Included in this definition are any two or more places, establishments, or institutions owned or operated by a single entity and providing maintenance or care to a combined total of four or more aged, infirm, or disabled adults. Maintenance or care means the protection, general supervision, and oversight of the physical and mental well-being of an aged, infirm, or disabled individual.
"Attorney-in-fact" means strictly, one who is designated to transact business for another: a legal agent.
"Behavioral health authority" means the organization, appointed by and accountable to the governing body of the city or county that established it, that provides mental health, developmental, and substance abuse services through its own staff or through contracts with other organizations and providers.
"Board" means the State Board of Social Services.
"Building" means a structure with exterior walls under one roof.
"Cardiopulmonary resuscitation" or "CPR" means an emergency procedure consisting of external cardiac massage and artificial respiration; the first treatment for a person who has collapsed, has no pulse, and has stopped breathing; and attempts to restore circulation of the blood and prevent death or brain damage due to lack of oxygen.
"Case management" means multiple functions designed to link clients to appropriate services. Case management may include a variety of common components such as initial screening of needs, comprehensive assessment of needs, development and implementation of a plan of care, service monitoring, and client follow-up.
"Case manager" means an employee of a public human services agency who is qualified and designated to develop and coordinate plans of care.
"Chapter" or "this chapter" means these regulations, that is, Standards for Licensed Assisted Living Facilities, 22VAC40-73, unless noted otherwise.
"Chemical restraint" means a psychopharmacologic drug that is used for discipline or convenience and not required to treat the resident's medical symptoms or symptoms from mental illness or intellectual disability and that prohibits the resident from reaching his highest level of functioning.
"Commissioner" means the commissioner of the department, his the commissioner's designee, or authorized representative.
"Community services board" or "CSB" means a public body established pursuant to § 37.2-501 of the Code of Virginia that provides mental health, developmental, and substance abuse programs and services within the political subdivision or political subdivisions participating on the board.
"Companion services" means assistance provided to residents in such areas as transportation, meal preparation, shopping, light housekeeping, companionship, and household management.
"Conservator" means a person appointed by the court who is responsible for managing the estate and financial affairs of an incapacitated person and, where the context plainly indicates, includes a "limited conservator" or a "temporary conservator." The term includes (i) a local or regional program designated by the Department for Aging and Rehabilitative Services as a public conservator pursuant to Article 6 (§ 51.5-149 et seq.) of Chapter 14 of Title 51.5 of the Code of Virginia or (ii) any local or regional tax-exempt charitable organization established pursuant to § 501(c)(3) of the Internal Revenue Code to provide conservatorial services to incapacitated persons. Such tax-exempt charitable organization shall not be a provider of direct services to the incapacitated person. If a tax-exempt charitable organization has been designated by the Department for Aging and Rehabilitative Services as a public conservator, it may also serve as a conservator for other individuals.
"Continuous licensed nursing care" means around-the-clock observation, assessment, monitoring, supervision, or provision of medical treatments provided by a licensed nurse. Individuals requiring continuous licensed nursing care may include:
1. Individuals who have a medical instability due to complexities created by multiple, interrelated medical conditions; or
2. Individuals with a health care condition with a high potential for medical instability.
"Days" means calendar days unless noted otherwise.
"Department" means the Virginia Department of Social Services.
"Department's representative" means an employee or designee of the Virginia Department of Social Services, acting as an authorized agent of the Commissioner of Social Services.
"Dietary supplement" means a product intended for ingestion that supplements the diet, is labeled as a dietary supplement, is not represented as a sole item of a meal or diet, and contains a dietary ingredient or ingredients, (e.g., vitamins, minerals, amino acids, herbs or other botanicals, dietary substances (such as enzymes), and concentrates, metabolites, constituents, extracts, or combinations of the preceding types of ingredients). Dietary supplements may be found in many forms, such as tablets, capsules, liquids, or bars.
"Direct care staff" means supervisors, assistants, aides, or other staff of a facility who assist residents in the performance of personal care or daily living activities.
"Discharge" means the movement of a resident out of the assisted living facility.
"Electronic record" means a record created, generated, sent, communicated, received, or stored by electronic means.
"Electronic signature" means an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.
"Emergency placement" means the temporary status of an individual in an assisted living facility when the person's health and safety would be jeopardized by denying entry into the facility until the requirements for admission have been met.
"Emergency restraint" means a restraint used when the resident's behavior is unmanageable to the degree an immediate and serious danger is presented to the health and safety of the resident or others.
"General supervision and oversight" means assuming responsibility for the well-being of residents, either directly or through contracted agents.
"Guardian" means a person appointed by the court who is responsible for the personal affairs of an incapacitated person, including responsibility for making decisions regarding the person's support, care, health, safety, habilitation, education, therapeutic treatment, and, if not inconsistent with an order of involuntary admission, residence. Where the context plainly indicates, the term includes a "limited guardian" or a "temporary guardian." The term includes (i) a local or regional program designated by the Department for Aging and Rehabilitative Services as a public guardian pursuant to Article 6 (§ 51.5-149 et seq.) of Chapter 14 of Title 51.5 of the Code of Virginia or (ii) any local or regional tax-exempt charitable organization established pursuant to § 501(c)(3) of the Internal Revenue Code to provide guardian services to incapacitated persons. Such tax-exempt charitable organization shall not be a provider of direct services to the incapacitated person. If a tax-exempt charitable organization has been designated by the Department for Aging and Rehabilitative Services as a public guardian, it may also serve as a guardian for other individuals.
"Habilitative service" means activities to advance a normal sequence of motor skills, movement, and self-care abilities or to prevent avoidable additional deformity or dysfunction.
"Health care provider" means a person, corporation, facility, or institution licensed by this Commonwealth to provide health care or professional services, including a physician or hospital, dentist, pharmacist, registered or licensed practical nurse, optometrist, podiatrist, chiropractor, physical therapist, physical therapy assistant, clinical psychologist, or health maintenance organization.
"Household member" means any person domiciled in an assisted living facility other than residents or staff.
"Imminent physical threat or danger" means clear and present risk of sustaining or inflicting serious or life threatening injuries.
"Independent clinical psychologist" means a clinical psychologist who is chosen by the resident of the assisted living facility and who has no financial interest in the assisted living facility, directly or indirectly, as an owner, officer, or employee or as an independent contractor with the facility.
"Independent living status" means that the resident is assessed as capable of performing all activities of daily living and instrumental activities of daily living for himself without requiring the assistance of another person and is assessed as capable of taking medications without the assistance of another person. If the policy of a facility dictates that medications are administered or distributed centrally without regard for the residents' capacity, this policy shall not be considered in determining independent status.
"Independent physician" means a physician who is chosen by the resident of the assisted living facility and who has no financial interest in the assisted living facility, directly or indirectly, as an owner, officer, or employee or as an independent contractor with the facility.
"Individualized service plan" or "ISP" means the written description of actions to be taken by the licensee, including coordination with other services providers, to meet the assessed needs of the resident.
"Instrumental activities of daily living" or "IADLs" means meal preparation, housekeeping, laundry, and managing money. A person's degree of independence in performing these activities is a part of determining appropriate level of care and services.
"Intellectual disability" means disability, originating before the age of 18 years, characterized concurrently by (i) significantly subaverage intellectual functioning as demonstrated by performance on a standardized measure of intellectual functioning, administered in conformity with accepted professional practice, that is at least two standard deviations below the mean and (ii) significant limitations in adaptive behavior as expressed in conceptual, social, and practical adaptive skills.
"Intermittent intravenous therapy" means therapy provided by a licensed health care professional at medically predictable intervals for a limited period of time on a daily or periodic basis.
"Involuntary discharge" means when a facility requires a resident to move out of the assisted living facility and not be allowed to return.
"Legal representative" means a person legally responsible for representing or standing in the place of the resident for the conduct of his affairs. This may include a guardian, conservator, attorney-in-fact under durable power of attorney ("durable power of attorney" defines the type of legal instrument used to name the attorney-in-fact and does not change the meaning of attorney-in-fact), trustee, or other person expressly named by a court of competent jurisdiction or the resident as his the resident's agent in a legal document that specifies the scope of the representative's authority to act. A legal representative may only represent or stand in the place of a resident for the function or functions for which he the legal representative has legal authority to act. A resident is presumed competent and is responsible for making all health care, personal care, financial, and other personal decisions that affect his the resident's life unless a representative with legal authority has been appointed by a court of competent jurisdiction or has been appointed by the resident in a properly executed and signed document. A resident may have different legal representatives for different functions. For any given standard, the term "legal representative" applies solely to the legal representative with the authority to act in regard to the function or functions relevant to that particular standard.
"Licensed health care professional" means any health care professional currently licensed by the Commonwealth of Virginia to practice within the scope of his that health care professional's profession, such as a nurse practitioner, registered nurse, licensed practical nurse (nurses may be licensed or hold multistate licensure pursuant to § 54.1-3000 of the Code of Virginia), clinical social worker, dentist, occupational therapist, pharmacist, physical therapist, physician, physician assistant, psychologist, and speech-language pathologist. Responsibilities of physicians referenced in this chapter may be implemented by nurse practitioners or physician assistants in accordance with their protocols or practice agreements with their supervising physicians and in accordance with the law.
"Licensee" means any person, association, partnership, corporation, company, or public agency to whom the license is issued.
"Manager" means a designated person who serves as a manager pursuant to 22VAC40-73-170 and 22VAC40-73-180.
"Mandated reporter" means persons specified in § 63.2-1606 of the Code of Virginia who are required to report matters giving reason to suspect abuse, neglect, or exploitation of an adult.
"Maximum physical assistance" means that an individual has a rating of total dependence in four or more of the seven activities of daily living as documented on the uniform assessment instrument. An individual who can participate in any way with performance of the activity is not considered to be totally dependent.
"Medical/orthopedic restraint" means the use of a medical or orthopedic support device that has the effect of restricting the resident's freedom of movement or access to his the resident's body for the purpose of improving the resident's stability, physical functioning, or mobility.
"Medication aide" means a staff person who has current registration with the Virginia Board of Nursing to administer drugs that would otherwise be self-administered to residents in an assisted living facility in accordance with the Regulations Governing the Registration of Medication Aides (18VAC90-60). This definition also includes a staff person who is an applicant for registration as a medication aide in accordance with subdivision 2 of 22VAC40-73-670.
"Mental illness" means a disorder of thought, mood, emotion, perception, or orientation that significantly impairs judgment, behavior, capacity to recognize reality, or ability to address basic life necessities and requires care and treatment for the health, safety, or recovery of the individual or for the safety of others.
"Mental impairment" means a disability that reduces an individual's ability to reason logically, make appropriate decisions, or engage in purposeful behavior.
"Minimal assistance" means dependency in only one activity of daily living or dependency in one or more of the instrumental activities of daily living as documented on the uniform assessment instrument.
"Moderate assistance" means dependency in two or more of the activities of daily living as documented on the uniform assessment instrument.
"Nonambulatory" means the condition of a resident who by reason of physical or mental impairment is not capable of self-preservation without the assistance of another person.
"Nonemergency restraint" means a restraint used for the purpose of providing support to a physically weakened resident.
"Physical impairment" means a condition of a bodily or sensory nature that reduces an individual's ability to function or to perform activities.
"Physical restraint" means any manual method or physical or mechanical device, material, or equipment attached or adjacent to the resident's body that the resident cannot remove easily, which restricts freedom of movement or access to his the resident's body.
"Physician" means an individual licensed to practice medicine or osteopathic medicine in any of the 50 states or the District of Columbia.
"Premises" means a building or group of buildings, under one license, together with the land or grounds on which located.
"Prescriber" means a practitioner who is authorized pursuant to §§ 54.1-3303 and 54.1-3408 of the Code of Virginia to issue a prescription.
"Private duty personnel" means an individual hired, either directly or through a licensed home care organization, by a resident, family member, legal representative, or similar entity to provide one-on-one services to the resident, such as a private duty nurse, home attendant, personal aide, or companion. Private duty personnel are not hired by the facility, either directly or through a contract.
"Private pay" means that a resident of an assisted living facility is not eligible for an auxiliary grant.
"Psychopharmacologic drug" means any drug prescribed or administered with the intent of controlling mood, mental status, or behavior. Psychopharmacologic drugs include not only the obvious drug classes, such as antipsychotic, antidepressants, and the antianxiety/hypnotic class, but any drug that is prescribed or administered with the intent of controlling mood, mental status, or behavior, regardless of the manner in which it is marketed by the manufacturers and regardless of labeling or other approvals by the U.S. Food and Drug Administration.
"Public pay" means that a resident of an assisted living facility is eligible for an auxiliary grant.
"Qualified" means having appropriate training and experience commensurate with assigned responsibilities, or if referring to a professional, possessing an appropriate degree or having documented equivalent education, training, or experience. There are specific definitions for "qualified assessor" and "qualified mental health professional" in this section.
"Qualified assessor" means an individual who is authorized to perform an assessment, reassessment, or change in level of care for an applicant to or resident of an assisted living facility. For public pay individuals, a qualified assessor is an employee of a public human services agency trained in the completion of the uniform assessment instrument (UAI). For private pay individuals, a qualified assessor is an employee of the assisted living facility trained in the completion of the UAI or an independent private physician or a qualified assessor for public pay individuals.
"Qualified mental health professional" means a behavioral health professional who is trained and experienced in providing psychiatric or mental health services to individuals who have a psychiatric diagnosis, including (i) a physician licensed in Virginia; (ii) a psychologist: an individual with a master's degree in psychology from a college or university accredited by an association recognized by the U.S. Secretary of Education, with at least one year of clinical experience; (iii) a social worker: an individual with at least a master's degree in human services or related field (e.g., social work, psychology, psychiatric rehabilitation, sociology, counseling, vocational rehabilitation, or human services counseling) from a college or university accredited by an association recognized by the U.S. Secretary of Education, with at least one year of clinical experience providing direct services to persons with a diagnosis of mental illness; (iv) a registered psychiatric rehabilitation provider (RPRP) registered with the International Association of Psychosocial Rehabilitation Services (IAPSRS); (v) a clinical nurse specialist or psychiatric nurse practitioner licensed in the Commonwealth of Virginia with at least one year of clinical experience working in a mental health treatment facility or agency; (vi) any other licensed mental health professional; or (vii) any other person deemed by the Department of Behavioral Health and Developmental Services as having qualifications equivalent to those described in this definition. Any unlicensed person who meets the requirements contained in this definition shall either be under the supervision of a licensed mental health professional or employed by an agency or organization licensed by the Department of Behavioral Health and Developmental Services.
"Rehabilitative services" means activities that are ordered by a physician or other qualified health care professional that are provided by a rehabilitative therapist (e.g., physical therapist, occupational therapist, or speech-language pathologist). These activities may be necessary when a resident has demonstrated a change in his the resident's capabilities and are provided to restore or improve his the resident's level of functioning.
"Resident" means any adult residing in an assisted living facility for the purpose of receiving maintenance or care. The definition of resident also includes adults residing in an assisted living facility who have independent living status. Adults present in an assisted living facility for part of the day for the purpose of receiving day care services are also considered residents.
"Residential living care" means a level of service provided by an assisted living facility for adults who may have physical or mental impairments and require only minimal assistance with the activities of daily living. Included in this level of service are individuals who are dependent in medication administration as documented on the uniform assessment instrument, although they may not require minimal assistance with the activities of daily living. This definition includes the services provided by the facility to individuals who are assessed as capable of maintaining themselves in an independent living status.
"Respite care" means services provided in an assisted living facility for the maintenance or care of aged, infirm, or disabled adults for a temporary period of time or temporary periods of time that are regular or intermittent. Facilities offering this type of care are subject to this chapter.
"Restorative care" means activities designed to assist the resident in reaching or maintaining his the resident's level of potential. These activities are not required to be provided by a rehabilitative therapist and may include activities such as range of motion, assistance with ambulation, positioning, assistance and instruction in the activities of daily living, psychosocial skills training, and reorientation and reality orientation.
"Restraint" means either "physical restraint" or "chemical restraint" as these terms are defined in this section.
"Safe, secure environment" means a self-contained special care unit for residents with serious cognitive impairments due to a primary psychiatric diagnosis of dementia who cannot recognize danger or protect their own safety and welfare. There may be one or more self-contained special care units in a facility or the whole facility may be a special care unit. Nothing in this definition limits or contravenes the privacy protections set forth in § 63.2-1808 of the Code of Virginia.
"Sanitizing" means treating in such a way to remove bacteria and viruses through using a disinfectant solution (e.g., bleach solution or commercial chemical disinfectant) or physical agent (e.g., heat).
"Serious cognitive impairment" means severe deficit in mental capability of a chronic, enduring, or long-term nature that affects areas such as thought processes, problem-solving, judgment, memory, and comprehension and that interferes with such things as reality orientation, ability to care for self, ability to recognize danger to self or others, and impulse control. Such cognitive impairment is not due to (i) acute or episodic conditions, nor (ii) conditions arising from treatable metabolic or chemical imbalances, or caused by (iii) reactions to medication or toxic substances. For the purposes of this chapter, serious cognitive impairment means that an individual cannot recognize danger or protect his the individual's own safety and welfare.
"Significant change" means a change in a resident's condition that is expected to last longer than 30 days. It does not include short-term changes that resolve with or without intervention, a short-term acute illness or episodic event, or a well-established, predictive, cyclic pattern of clinical signs and symptoms associated with a previously diagnosed condition where an appropriate course of treatment is in progress.
"Skilled nursing treatment" means a service ordered by a physician or other prescriber that is provided by and within the scope of practice of a licensed nurse.
"Skills training" means systematic skill building through curriculum-based psychoeducational and cognitive-behavioral interventions. These interventions break down complex objectives for role performance into simpler components, including basic cognitive skills such as attention, to facilitate learning and competency.
"Staff" or "staff person" means personnel working at a facility who are compensated or have a financial interest in the facility, regardless of role, service, age, function, or duration of employment at the facility. "Staff" or "staff person" also includes those individuals hired through a contract with the facility to provide services for the facility.
"Substance abuse" means the use of drugs enumerated in the Virginia Drug Control Act (§ 54.1-3400 et seq. of the Code of Virginia), without a compelling medical reason, or alcohol that (i) results in psychological or physiological dependence or danger to self or others as a function of continued and compulsive use or (ii) results in mental, emotional, or physical impairment that causes socially dysfunctional or socially disordering behavior; and (iii) because of such substance abuse, requires care and treatment for the health of the individual. This care and treatment may include counseling, rehabilitation, or medical or psychiatric care. All determinations of whether a compelling medical reason exists shall be made by a physician or other qualified medical personnel.
"Systems review" means a physical examination of the body to determine if the person is experiencing problems or distress, including cardiovascular system, respiratory system, gastrointestinal system, urinary system, endocrine system, musculoskeletal system, nervous system, sensory system, and the skin.
"Transfer" means movement of a resident to a different assigned living area within the same licensed facility.
"Trustee" means one who stands in a fiduciary or confidential relation to another; especially, one who, having legal title to property, holds it in trust for the benefit of another and owes a fiduciary duty to that beneficiary.
"Uniform assessment instrument" or "UAI" means the department designated assessment form. There is an alternate version of the form that may be used for private pay residents. Social and financial information that is not relevant because of the resident's payment status is not included on the private pay version of the form.
"Volunteer" means a person who works at an assisted living facility who is not compensated. An exception to this definition is a person who, either as an individual or as part of an organization, is only present at or facilitates group activities on an occasional basis or for special events.
22VAC40-73-430. Discharge of residents.
A. The facility shall adopt and conform to a written policy regarding the number of days' notice that is required when a resident wishes to move from the facility. The policy shall not require more than 30 days' notice for a resident-initiated discharge.
B. When actions, circumstances, conditions, or care needs, or resident's preferences occur that will result in the discharge of a resident, discharge planning shall begin immediately, and there shall be documentation of such, including the beginning date of discharge planning. The resident shall be moved within 30 days, except that if persistent efforts have been made and the time frame is not met, the facility shall document the reason and the efforts that have been made. The date that discharge planning began shall be documented.
1. The facility shall assist the resident and resident's legal representative, if any, in the discharge or transfer process. The facility shall help the resident prepare for relocation, including discussing the resident's destination.
2. The facility shall notify the resident, the resident's legal representative, and designated contact person, if any, of the reason of the discharge and the plan for the discharge to take place.
3. The facility shall provide written discharge notice to the resident, the resident's legal representative, and contact person, if any, at least 30 days preceding the actual discharge date.
4. The discharge notice shall be dated and include the following:
a. Facility's decision to discharge the resident;
b. Reasons for discharge;
c. Date on which the discharge will occur; and
d. Place the resident will be discharged to.
5. If the discharge timeframe is not met, although persistent efforts have been made, the facility shall document the reason.
B. As soon as discharge planning begins, the assisted living facility shall notify the resident, the resident's legal representative and designated contact person if any, of the planned discharge, the reason for the discharge, and that the resident will be moved within 30 days unless there are extenuating circumstances relating to inability to place the resident in another setting within the time frame referenced in subsection A of this section. Written notification of the actual discharge date and place of discharge shall be given to the resident, the resident's legal representative and contact person, if any, and additionally for public pay residents, the eligibility worker and assessor, C. The assigned staff at the local department of social services and the assessor for public pay residents shall be notified at least 14 days prior to the date that the resident will be discharged.
C. The assisted living facility shall adopt and conform to a written policy regarding the number of days notice that is required when a resident wishes to move from the facility. Any required notice of intent to move shall not exceed 30 days.
D. The facility shall assist the resident and his legal representative, if any, in the discharge or transfer process. The facility shall help the resident prepare for relocation, including discussing the resident's destination. Primary responsibility for transporting the resident and his possessions rests with the resident or his legal representative.
E. When a resident's condition presents an immediate and serious risk to the health, safety, or welfare of the resident or others and emergency discharge is necessary, the 14-day advance notification of planned discharge does not apply, although the reason for the relocation shall be discussed with the resident and, when possible, his legal representative prior to the move.
F. Under emergency conditions, the D. Emergency discharge of residents.
1. The resident's legal representative, designated contact person, family, caseworker, social worker, or any other persons, as appropriate, shall be informed as rapidly as possible, but no later than the close of the day following discharge, of the reasons reason for the move. For public pay residents, the eligibility worker and assessor shall also be so informed of the emergency discharge within the same time frame. No
2. When an emergency discharge is necessary due to an immediate and serious risk to the health, safety, or welfare of the resident or others, the department's discharge notice form shall be provided as soon as possible, but no later than five days after the emergency discharge, the information shall be provided in writing to all those notified. The department's discharge notice form for emergency discharge shall be dated and include the:
a. Facility's decision to discharge the resident;
b. Reasons for discharge;
c. Date on which the discharge will occur;
d. Place the resident will be discharged to; and
e. Information regarding the resident's right to appeal within 30 days from the emergency discharge date. An additional five days is permitted for the resident to appeal to allow time for the assisted living facility to provide the department's discharge notice form pursuant to § 63.2-1805 A 5 of the Code of Virginia.
3. For public pay residents, the assigned staff at the local department of social services and assessor shall be informed as rapidly as possible of the reason to move. The 14-day advance notice of planned discharge described in subsection C of this section does not apply when a resident's condition presents an immediate and serious risk to the health, safety, or welfare to the resident or others, necessitating an emergency discharge.
4. The assisted living facility shall provide a copy of the department's discharge notice form to the regional licensing office and the State Long-Term Care Ombudsman within five days after the emergency discharge.
E. Involuntary discharge of residents may occur under the following circumstances:
1. For nonpayment of contracted charges, provided that the resident has been given at least 30 days to cure the delinquency after notice of such nonpayment was provided to the resident and the resident's legal representative or designated contact person.
2. For the resident's failure to substantially comply with the terms and conditions, as allowed by this chapter, of the resident agreement between the resident and assisted living facility.
3. The facility closes in accordance with regulations.
4. The resident develops a condition or care need that is prohibited pursuant to § 63.2-1805 D of the Code of Virginia and 22VAC40-73-310 H.
5. The assisted living facility has met the following requirements and the facility has made reasonable efforts to meet the needs of the resident:
a. The facility administrator or designated staff member shall ensure that an evaluation of the individual is or has been conducted by a qualified mental health professional as defined in 22VAC40-73-10 if there are observed behaviors or patterns of behavior indicative of mental illness, intellectual disability, substance abuse, or behavioral disorders, as documented in the uniform assessment instrument completed pursuant to § 63.2-1804 of the Code of Virginia.
b. If the evaluation indicates a need for mental health, developmental, substance abuse, or behavioral disorder services, the facility shall provide a notification of the resident's need for such services to the designated contact person of record when available and a notification of the resident's need for such services to the community services board or behavioral health authority established pursuant to Title 37.2 of the Code of Virginia that serves the city or county in which the facility is located or other appropriate licensed provider.
c. Unless an emergency discharge is necessary due to an immediate and serious risk to the health, safety, or welfare of the resident or others, the facility shall, prior to involuntarily discharge of a resident, make reasonable efforts, as appropriate, to resolve any issues with the resident upon which the decision to discharge is based. The decision and such efforts shall be documented in the resident's file.
d. The department shall not take adverse action against a facility that has demonstrated and documented a continual good faith effort to meet the requirements of this subsection.
6. The department's discharge notice form for involuntary discharges shall include all requirements of subdivisions B 3 and B 4 of this section and shall include information regarding the resident's right to appeal within the 30-day notice period.
7. The assisted living facility shall provide a copy of the department's discharge notice form to the regional licensing office and the State Long-Term Care Ombudsman at least 30 days prior to an involuntary discharge.
G. F. For public pay residents, in the event of a resident's death, the assisted living facility shall provide written notification to the eligibility worker assigned staff at the local department of social services and assessor within five days after the resident's death.
H. G. Discharge statement.
1. At the time of discharge, the assisted living facility shall provide to the resident and, as appropriate, his the resident's legal representative and designated contact person a dated statement signed by the licensee or administrator that contains the following information:
a. The date on which the resident, his the resident's legal representative, or designated contact person was notified of the planned discharge and the name of the legal representative or designated contact person who was notified;
b. The reason or reasons for the discharge;
c. The actions taken by the facility to assist the resident in the discharge and relocation process; and
d. The date of the actual discharge from the facility and the resident's destination.
2. A copy of the written discharge statement shall be retained in the resident's record.
I. H. When the resident is discharged and moves to another caregiving facility, the assisted living facility shall provide to the receiving facility such information related to the resident as is necessary to ensure continuity of care and services. Original information pertaining to the resident shall be maintained by the assisted living facility from which the resident was discharged. The assisted living facility shall maintain a listing of all information shared with the receiving facility.
J. I. Within 60 days of the date of discharge, each resident or his resident's legal representative shall be given a final statement of account, any refunds due, and return of any money, property, or things of value held in trust or custody by the facility.
22VAC40-73-435. Appeal of an emergency or involuntary discharge.
A. A resident may appeal any involuntary or emergency discharge other than discharges resulting from the assisted living facility closing in accordance with this chapter.
B. The facility shall provide the resident with the department’s discharge notice form describing the resident’s right to appeal and the appeal process pursuant to § 63.2-1805 of the Code of Virginia. The form shall state that the appeal notice shall be sent to the department’s Division of Appeals and Fair Hearings.
1. In the event of an emergency discharge, the facility shall provide the department's discharge notice form as soon as possible, but no later than five days after the emergency discharge.
2. In the event of an involuntary discharge, the facility shall provide the department's discharge notice form at least 30 days prior to an involuntary discharge.
C. The facility shall assist the resident and resident’s legal representative, if any, when the resident is filing an appeal.
D. The facility shall provide a postage prepaid envelope addressed to the department to use if the appeal is mailed, if requested by the resident.
E. The facility shall inform the resident of the resident's rights to continue to reside in the facility, free from retaliation, until the appeal has a final department case decision unless the discharge is an emergency discharge or the resident has developed a condition or care need that is prohibited by 22VAC40-73-310 H in accordance with § 63.2-1805 D of the Code of Virginia.
F. Any appeal of an involuntary discharge must be filed within the 30-day discharge notice period.
G. A resident removed under an emergency discharge and who no longer resides in the facility retains the right to file an appeal pursuant to § 63.2-1805 of the Code of Virginia and 22VAC40-73-430 D.
H. An appeal is considered filed upon receipt by the department's Division of Appeals and Fair Hearings.
NOTICE: The following forms used in administering the regulation have been filed by the agency. Amended or added forms are reflected in the listing and are published following the listing. Online users of this issue of the Virginia Register of Regulations may also click on the name to access a form. The forms are also available from the agency contact or may be viewed at the Office of Registrar of Regulations, 900 East Main Street, 11th Floor, Richmond, Virginia 23219.
FORMS (22VAC40-73)
Report of Tuberculosis Screening (eff. 10/2011)
Virginia Department of Health Report of Tuberculosis Screening Form (undated)
Virginia Department of Health TB Control Program Risk Assessment Form, TB 512 (eff. 9/2016)
Assisted Living Facilities Discharge Notice (eff. 8/2023)
VA.R. Doc. No. R23-7391; Filed July 24, 2023