Title of Regulation: 12VAC5-371. Regulations for the Licensure of Nursing Facilities (amending 12VAC5-371-410; repealing 12VAC5-371-420).

Statutory Authority: §§ 32.1-127 and 32.1-127.001 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: May 6, 2016.

Agency Contact: Erik Bodin, Director, Office of Licensure and Certification, Department of Health, 9960 Mayland Drive, Suite 401, Richmond, VA 23233, telephone (804) 367-2109, FAX (804) 527-4502, or email erik.bodin@vdh.virginia.gov.

Basis: 12VAC5-371 is promulgated under the authority of §§ 32.1-127 and 32.1-127.001 of the Code of Virginia. Section 32.1-127 requires the board to promulgate regulations including minimum standards for (i) the construction and maintenance of hospitals, nursing homes, and certified nursing facilities to ensure the environmental protection and the life safety of its patients, employees, and the public; (ii) the operation, staffing, and equipping of hospitals, nursing homes, and certified nursing facilities; (iii) qualifications and training of staff of hospitals, nursing homes, and certified nursing facilities, except those professionals licensed or certified by the Department of Health Professions; (iv) conditions under which a hospital or nursing home may provide medical and nursing services to patients in their places of residence; and (v) policies related to infection prevention, disaster preparedness, and facility security of facilities. Section 32.1-127.001 states, "Notwithstanding any law or regulation to the contrary, the Board of Health shall promulgate regulations pursuant to § 32.1-127 for the licensure of hospitals and nursing homes that shall include minimum standards for the design and construction of hospitals, nursing homes, and certified nursing facilities consistent with the current edition of the Guidelines for Design and Construction of Hospital and Health Care Facilities issued by the American Institute of Architects Academy of Architecture for Health." The American Institute of Architects Academy of Architecture for Health has become the Facility Guidelines Institute (FGI) and the latest edition of guidelines for nursing facilities published by the FGI is the 2014 edition of Guidelines for the Design and Construction of Residential Health, Care, and Support Facilities.

Purpose: This regulatory action is in response to a petition for rulemaking. This action will bring the regulations into conformance with the provisions of § 32.1-127.001 of the Code of Virginia, which states that "Notwithstanding any law or regulation to the contrary, the Board of Health shall promulgate regulations for the licensure of hospitals and nursing homes that include minimum standards for design and construction that are consistent with the current edition of the Guidelines for Design and Construction of Hospital and Health Care Facilities issued by the American Institute of Architects Academy of Architecture for Health." The American Institute of Architects Academy of Architecture for Health has become the FGI and the latest edition of Guidelines published by the Facility Guidelines Institute is the 2014 edition of Guidelines for Residential Health, Care, and Support Facilities. However, the regulations currently state that the Virginia Uniform Statewide Building Code takes precedence over the guidelines and the edition of the guidelines listed within the regulations is outdated. This regulatory provision is contrary to the requirements of § 32.1-127.001.

The Virginia Department of Health (VDH) plans to amend 12VAC5-371-410 pertaining to building and construction codes for nursing facilities. The purpose of the amendment is to specify that nursing facilities' design and construction must be consistent with certain parts of the 2014 edition of the guidelines and remove language stating that the Virginia Uniform Statewide Building Code takes precedence, thus bringing the regulations into compliance with the Code of Virginia and promoting the public health, welfare, and safety.

Substance: VDH intends to amend 12VAC5-371-410 to specify that nursing facilities shall be designed and constructed consistent with Parts 1 and 2 and sections 3.1 and 3.2 of Part 3 of the 2014 edition of the guidelines and remove language that states the Virginia Uniform Statewide Building Code takes precedence over the guidelines, thus bringing the regulations into compliance with the Code of Virginia. Further, the action will repeal the unnecessary12VAC5-371-420.

Issues: The primary advantages of the proposed regulatory action to the public are increased facility and construction safety protections in new nursing facilities. The primary disadvantage to the public associated with the proposed action is the increased cost some facilities may incur to construct their facility in order to comply with the regulations. This increased cost may be passed on to the patient. VDH does not foresee any additional disadvantages to the public. The primary advantage to the agency and the Commonwealth is the promotion of public health and safety. There are no disadvantages associated with the proposed regulations in relation 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 Health (Board) proposes to specify that nursing facilities be designed and constructed consistent with the 2014 Guidelines for Residential Health, Care, and Support Facilities of the Facility Guidelines Institute. Additionally, the Board proposes to amend other language for improved clarity.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. Section § 32.1-127.001 of the Code of Virginia states that the Board shall promulgate regulations for the licensure of nursing homes that include minimum standards for design and construction that are consistent with the current edition of the Guidelines for Design and Construction of Hospital and Health Care Facilities issued by the American Institute of Architects Academy of Architecture for Health. The American Institute of Architects Academy of Architecture for Health has become the Facility Guidelines Institute (FGI). Consequently the Board proposes to amend this regulation to specify that construction be consistent with the 2014 Guidelines for Residential Health, Care, and Support Facilities of the Facility Guidelines Institute.¹ The current regulation references the 2010 Guidelines.

The Facility Guidelines Institute published a study³ that estimates the change in costs of applying the 2014 Guidelines rather than the 2010 Guidelines for hospitals and outpatient facilities. The study breaks up hospitals and outpatient facilities into five facility types, and lists the estimated percentage cost changes for each. Licensed Virginia architects² have determined that the changes affecting nursing facilities are most comparable to the category for rehab hospitals as they both are similar in nature of design. The study estimates a net change of approximately zero for the rehab hospital facility type. Some of the proposed changes moderately add to cost, while others moderately reduce cost. Consequently, the best available estimate for the net cost impact of requiring that new nursing facilities be designed and constructed consistent with the 2014 Guidelines rather than the 2010 Guidelines would be zero. The Board and the architects and engineers associated with the Facility Guidelines Institute believe that adopting the 2014 edition will increase patient and staff health and safety. Thus, the proposal to specify that renovation or construction of hospitals be consistent with the 2014 Guidelines will likely produce a net benefit.

Businesses and Entities Affected. There are 266 licensed nursing facilities in operation in the Commonwealth. However, the proposal to amend this regulation to specify that the design and construction of nursing facilities be consistent with the 2014 Guidelines would only apply to facilities built after this proposed amendment is put into effect.

Localities Particularly Affected. The proposed amendments do not disproportionately affect particular localities.

Projected Impact on Employment. The proposed amendments are unlikely to significantly affect employment.

Effects on the Use and Value of Private Property. The proposed amendments are unlikely to significantly affect the use and value of private property.

Real Estate Development Costs. Depending on the specific attributes of the project, the proposed adoption of the 2014 Guidelines may increase or decrease total real estate development costs. In any case, the change is not likely to be large.

Small Businesses:

Definition. Pursuant 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."

Costs and Other Effects. Depending on the specific attributes of the project, the proposed adoption of the 2014 Guidelines may increase or decrease the cost of nursing facility construction. In net, the proposed amendments are unlikely to significantly increase costs for small businesses.

Alternative Method that Minimizes Adverse Impact. The proposed amendments are unlikely to significantly adversely affect small businesses.

Adverse Impacts:

Businesses: The proposed amendments are unlikely to significantly adversely affect businesses.

Localities: The proposed amendments are unlikely to significantly adversely affect localities.

Other Entities: The proposed amendments are unlikely to significantly adversely affect other entities.

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¹The 2014 Guidelines for Residential Health, Care, and Support Facilities is the current edition.

²Gormley T, Garland J, Jones W. "Estimated Cost of Applying the 2014 vs. the 2010 FGI Guidelines for Design and Construction Requirements to Hospitals and Outpatient Facilities."

³The Department of Planning and Budget contacted licensed architects for their expert opinion.

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

Summary:

The proposed amendments conform the regulation to § 32.1-127.001 of the Code of Virginia, which requires the State Board of Health to adopt minimum standards for design and construction that are consistent with the current edition of the Guidelines for Design and Construction of Hospital and Health Care Facilities issued by the American Institute of Architects Academy of Architecture for Health. The American Institute of Architects Academy of Architecture for Health has become the Facility Guidelines Institute (FGI). The latest edition of guidelines published by the FGI for nursing facilities is the 2014 edition of Guidelines for Design and Construction of Residential Health, Care, and Support Facilities.

Part V
Physical Environment

12VAC5-371-410. Architectural drawings and specifications.

A. All construction of new buildings and additions, renovations or, alterations, or repairs of existing buildings for occupancy as a nursing facility shall conform to state and local codes, zoning and building ordinances, and the Virginia Uniform Statewide Building Code (13VAC5-63).

In addition, nursing facilities shall be designed and constructed according to Part consistent with Parts 1 and 2 and sections 4.1—1 through 4.2—8 3.1 and 3.2 of Part 4 3 of the 2010 2014 Guidelines for Design and Construction of Residential Health, Care, and Support Facilities of the Facilities Facility Guidelines Institute (formerly of the American Institute of Architects). However, the requirements of the Uniform Statewide Building Code and local zoning and building ordinances shall take precedence pursuant to § 32.1-127.001 of the Code of Virginia.

B. Architectural drawings and specifications for all new construction or for additions, alterations or renovations to any existing building, shall be dated, stamped with licensure professional seal, and signed by the architect. The architect shall certify that the drawings and specifications were prepared to conform to building code requirements the Virginia Uniform Statewide Building Code and be consistent with Parts 1 and 2 and sections 3.1 and 3.2 of Part 3 of the 2014 Guidelines for Design and Construction of Residential Health, Care, and Support Facilities of the Facility Guidelines Institute. The certification shall be forwarded to the OLC.

C. Additional approval may include a Certificate of Public Need.

D. Upon completion of the construction, the nursing facility shall maintain a complete set of legible "as built" drawings showing all construction, fixed equipment, and mechanical and electrical systems, as installed or built.

12VAC5-371-420. Building inspection and classification. (Repealed.)

All buildings shall be inspected and approved as required by the appropriate building regulatory entity. Approval shall be a Certificate of Use and Occupancy indicating the building is classified for its proposed licensed purpose.

DOCUMENTS INCORPORATED BY REFERENCE (12VAC5-371)

Guidelines for Design and Construction of Residential Health, Care, and Support Facilities, 2014 Edition, Facilities Guideline Facility Guidelines Institute (formerly of the American Institute of Architects Academy of Architecture), 2010 Edition, http://www.fgiguidelines.org

Guidelines for Preventing Health Care-Associated Pneumonia, 2003, MMWR 53 (RR03), Advisory Committee on Immunization Practices, Centers for Disease Control and Prevention

Prevention and Control of Influenza, MMWR 53 (RR06), Advisory Committee on Immunization Practices, Centers for Disease Control and Prevention