TITLE 22. SOCIAL SERVICES

DEPARTMENT FOR AGING AND REHABILITATIVE SERVICES

Fast-Track Regulation

Title of Regulation: 22VAC30-80. Auxiliary Grants Program (amending 22VAC30-80-45).

Statutory Authority: §§ 51.5-131 and 51.5-160 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: September 10, 2025.

Effective Date: September 25, 2025.

Agency Contact: Charlotte Arbogast, Senior Policy Analyst and Regulatory Coordinator, Department for Aging and Rehabilitative Services, 8004 Franklin Farms Drive, Henrico, VA 23229, telephone (804) 662-7093, fax (804) 662-7663, TDD (804) 464-9950, or email charlotte.arbogast@dars.virginia.gov.

Basis: Section 51.5-131 of the Code of Virginia authorizes the Commissioner of the Department for Aging and Rehabilitative Services (DARS) to promulgate regulations necessary to carry out the provisions of the laws of the Commonwealth administered by the department. Section 51.5-160 of the Code of Virginia authorizes DARS to promulgate regulations necessary for the administration of the auxiliary grants (AG) Program. Section 63.2-1804 of the Code of Virginia requires DARS to promulgate regulations related to the assessment of individuals for assisted living facility (ALF) placement.

Purpose: This action ensures successful ongoing operation of the AG Program, which supports AG Program participants who rely on the program to meet daily and long-term care needs. ALFs are required to provide notices of resident deaths and discharges to the local department of social services (LDSS) for any residents that participate in the AG Program. If the resident has a LDSS caseworker or assessor, the notice (i) lets the caseworker or assessor know that the resident has experienced a change in status (e.g., hospitalization, transfer to another facility, death), which is essential to ensuring that the resident's health, safety, and welfare is protected, and (ii) notifies the LDSS to pause or stop future AG Program payments, ensuring the proper expenditure of public funds.

Rationale for Using Fast-Track Rulemaking Process: This action is expected to be noncontroversial because it simply clarifies the expectation for discharge and death notices by ALFs to LDSS for AG Program participants. The proposed changes bring conflicting expectations into alignment. These changes will help stakeholders and the public better understand the notice requirements.

Substance: The amendments ensure ALFs provide written notification of the date and place of an individual's discharge or the date of an individual's death to the LDSS determining the individual's AG eligibility and to the qualified assessor within the timeframe specified in 22VAC30-110-40 A.

Issues: The primary advantages of this regulatory action are that the amendments (i) improve the clarity of the requirements for notices by streamlining two conflicting provisions into one, which benefits the ALFs who participate in the AG Program; (ii) ensure that LDSS caseworkers or assessors receive timely notices about AG Program participants, which benefits the AG Program participants and LDSS through continuity of communications; and (iii) ensure that LDSS issue AG Program payments only when AG Program participants are eligible to receive them, which supports the proper expenditures of public funds. There are no disadvantages to state agencies, ALFs, LDSS, AG Program participants, or the public.

Department of Planning and Budget 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 and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. The Department for Aging and Rehabilitative Services (DARS) proposes to align the notification of the time frame for death or discharge of Auxiliary Grant recipients residing at Assisted Living Facilities (ALF) with another DARS regulation.

Background. The Auxiliary Grant is a financial assistance program in Virginia that provides supplemental income to recipients of federal supplemental security income and certain other individuals who reside in ALFs or approved adult foster care homes. This program helps individuals cover the cost of care and housing in these facilities. DARS requires ALFs to provide written notice of deaths or discharges involving Auxiliary Grant recipients to the local department of social services (LDSS) within 14 days of the death or discharge. The requirement exists so that LDSS caseworkers or assessors are notified in the event that one of their residents is no longer residing in the ALF. In addition, once the LDSS is notified it can pause or stop future Auxiliary Grant payments. While working with the Department of Social Services (DSS) on a DSS regulatory action to add an appeals process for ALF discharges, DARS realized that this regulation stipulates a ten-day notification rather than the 14-day notification it follows in practice and that is established in another DARS regulation entitled Assessment in Assisted Living Facilities (i.e., 22VAC30-110-40). In order to eliminate the conflict, DARS now proposes to repeal the ten-day notification requirement and replace it with a reference to 22VAC30-110-40.

Estimated Benefits and Costs. According to DARS, this proposal is strictly a housekeeping measure in that the conflicting ten-day notification has never been enforced in practice. DARS has always relied on the 14-day notification period. Thus, no economic impact is expected from this proposal other than eliminating a potential confusion for the readers of the regulation.

Businesses and Other Entities Affected. There are approximately 560 ALFs in the Commonwealth. However, only 240 of these facilities currently participate in the Auxiliary Grant program. No regulated entity appears to be disproportionately affected. The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.² An adverse impact is indicated if there is any increase in net cost or reduction in net benefit for any entity, even if the benefits exceed the costs for all entities combined.³ The proposal does not reduce benefits or increase costs for regulated ALFs. Thus, no adverse impact is indicated.

Small Businesses⁴ Affected.⁵ DARS believes all 240 ALFs participating in the Auxiliary Grant program meet the definition of a small business. However, the proposed amendments do not to adversely affect small businesses.

Localities⁶ Affected.⁷ The proposal neither introduces costs or other effects on localities nor disproportionally affects them.

Projected Impact on Employment. No impact on employment is expected.

Effects on the Use and Value of Private Property. No effects on the use and value of private property nor on real estate development costs are expected.

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¹ Section 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.

² Pursuant to § 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.

³ 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. As a result, DPB has adopted a definition of adverse impact that assesses changes in net costs and benefits for each affected Virginia entity that directly results from discretionary changes to the regulation.

⁴ Pursuant 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."

⁵ If 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.

⁶ "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.

⁷ Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency Response to the Economic Impact Analysis: The Department for Aging and Rehabilitative Services concurs with the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

The amendments defer the notice timeframes in the regulation to those already required for public pay residents in 22VAC30-110-40.

22VAC30-80-45. Conditions of participation in the program.

A. Provider agreement for ALF.

1. As a condition of participation in the AG, the ALF provider is required to complete and submit to the department a signed provider agreement as stipulated in this section. The agreement is to be submitted prior to the ALF accepting AG payment for qualified individuals. A copy of the ALF's current license must be submitted with the provider agreement.

2. The ALF provider shall agree to the following conditions in the provider agreement to participate in the AG:

a. Provide services in accordance with all laws, regulations, policies, and procedures that govern the provision of services in the facility;

b. Submit an annual certification form by October 1 of each year;

c. Care for individuals with AG in accordance with the requirements in this chapter at the current established rate;

d. Refrain from charging the individual, his the individual's family, or his the individual's authorized personal representative a security deposit or any other form of compensation as a condition of admission or continued stay in the facility;

e. Accept the established rate as payment in full for services rendered;

f. Account for the personal needs allowances in a separate bank account and apart from other facility funds and issue a statement to each individual regarding his the individual's account balance that includes any payments deposited or withdrawn during the previous calendar month;

g. Provide a 60-day written notice to the regional licensing office in the event of the facility's closure or ownership change;

h. Provide written notification of the date and place of an individual's discharge or the date of an individual's death to the local department of social services determining the individual's AG eligibility and to the qualified assessor within 10 days of the individual's discharge or death notifications as required in 22VAC30-110-40 A; and

i. Return to the local department of social services determining the individual's AG eligibility, all AG funds received after the death or discharge date of an individual in the facility.

B. As a condition of participation in the AG, the AFC provider shall be approved by a local department of social services and comply with the requirements set forth in 22VAC30-120.

C. Provider agreement for SH.

1. As a condition of participating in the AG, the SH provider shall enter an agreement with DBHDS pursuant to § 37.2-421.1 of the Code of Virginia.

2. The SH provider shall submit a copy of the executed agreement and a copy of its current DBHDS license prior to the SH provider receiving payments from the AG on behalf of qualified individuals.

3. The SH provider shall provide SH services for each individual in accordance with § 37.2-421.1 of the Code of Virginia and all other applicable laws, regulations, and policies and procedures.

D. ALFs, AFC homes, or SH providers providing services to AG recipients may accept third-party payments made by persons or entities for the actual costs of goods or services that have been provided to the AG recipient. The department shall not include such payments as income for the purpose of determining eligibility for or calculating the amount of an AG, provided that the payment is made:

1. Directly to the ALF, AFC home, or SH provider by the third party on behalf of the individual after the goods or services have been provided;

2. Voluntarily by the third party, and not in satisfaction of a condition of admission, continued stay, or provision of proper care and services, unless the AG recipient's physical needs exceed the services required to be provided by the ALF, AFC, or SH provider as a condition of participation in the AG; and

3. For specific goods or services provided to the individual other than food, shelter, or other specific goods or services required to be provided by the ALF, AFC home, or SH provider as a condition of participation in the AG.

E. Third-party payments shall not be used to pay for a private room in an ALF or AFC home.

F. ALFs, AFC homes, and SH providers shall document all third-party payments received on behalf of an individual, including the source, amount, and date of the payment, and the goods or services for which such payments were made. Documentation related to the third-party payments shall be provided to the department upon request.

G. ALFs, AFC homes, and SH providers shall provide each AG recipient and his the AG recipient's authorized representative with a written list of the goods and services that shall be covered by the AG as defined in this chapter, including a clear statement that the facility shall not charge an individual or the individual's family or authorized representative additional amounts for goods or services included on such list. This statement shall be signed by the AG recipient or authorized representative as acknowledgment of receipt and shall be made available to the department upon request.