TITLE 12. HEALTH

STATE BOARD OF HEALTH

Final Regulation

Title of Regulation: 12VAC5-371. Regulations for the Licensure of Nursing Facilities (amending 12VAC5-371-10, 12VAC5-371-160, 12VAC5-371-191, 12VAC5-371-300).

Statutory Authority: §§ 32.1-12 and 32.1-127 of the Code of Virginia.

Effective Date: November 19, 2025.

Agency Contact: Val Hornsby, Policy Analyst, Virginia Department of Health, 9960 Mayland Drive, Henrico, VA 23233, telephone (804) 875-1089, or email val.hornsby@vdh.virginia.gov.

Summary:

The amendments conform the regulation to statutory changes (i) pursuant to Chapter 330 of the 2025 Acts of Assembly to specify the minimum amount of professional liability coverage and general liability coverage required for nursing homes and certified nursing facilities and to require nursing homes and certified nursing facilities to provide proof of such coverage; (ii) pursuant to Chapter 432 of the 2025 Acts of Assembly to permit residents of nursing facilities to have electronic monitoring devices placed in their rooms and to establish requirements for the placement and utilization of any such electronic monitoring device; and (iii) pursuant to Chapter 277 of the 2025 Acts of Assembly to allow advanced registered medication aides to administer drugs to long-term care residents who do not have a clinical condition that requires evaluation by a registered nurse or licensed practical nurse for the administration of medications and to limit the practice of advanced registered medication aides to nursing homes licensed by the Virginia Department of Health.

12VAC5-371-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Abuse" means the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish, or deprivation by an individual, including caretaker, of goods or services that are necessary to attain or maintain physical, mental, and psychosocial well-being. This includes verbal, sexual, physical, or mental abuse.

"Administrator" means the individual licensed by the Virginia Board of Long-Term Care Administrators and who has the necessary authority and responsibility for management of the nursing facility.

"Admission" means the process of acceptance into a nursing facility, including orientation, rules and requirements, and assignment to appropriate staff. Admission does not include readmission to the facility after a temporary absence.

"Advance directive" means (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 provision of § 54.1-2983 of the Code of Virginia.

"Assessment" means the process of evaluating a resident for the purpose of developing a profile on which to base services. Assessment includes information gathering, both initially and on an ongoing basis, designed to assist the multi-disciplinary staff in determining the resident's need for care, and the collection and review of resident-specific data.

"Attending physician" means a physician currently licensed by the Virginia Board of Medicine and identified by the resident, or legal representative, as having the primary responsibility in determining the delivery of the resident's medical care.

"Barrier crime" means any offense set forth in clause (i) of the definition of barrier crime in § 19.2-392.02 of the Code of Virginia.

"Board" means the State Board of Health.

"Cannabidiol oil" means the same as the term is defined in subsection A of § 54.1-3408.3 A of the Code of Virginia.

"Certified nurse aide" means the title that can only be used by individuals who have met the requirements to be certified, as defined by the Virginia Board of Nursing, and who are listed in the nurse aide registry.

"Chemical restraint" means a psychopharmacologic drug (a drug prescribed to control mood, mental status, or behavior) that is used for discipline or convenience and not required to treat medical symptoms or symptoms from mental illness or mental retardation that prohibit an individual from reaching his highest level of functioning.

"Clinical record" means the documentation of health care services, whether physical or mental, rendered by direct or indirect resident-provider interactions. An account compiled by physicians and other health care professionals of a variety of resident health information, such as assessments and care details, including testing results, medicines, and progress notes.

"Commissioner" means the State Health Commissioner.

"Complaint" means any allegation received by the Virginia Department of Health other than an incident reported by the facility staff. Such allegations include abuse, neglect, exploitation, or violation of state or federal laws or regulations.

"Comprehensive plan of care" means a written action plan, based on assessment data, that identifies a resident's clinical and psychosocial needs, the interventions to meet those needs, treatment goals that are measurable and that documents the resident's progress toward meeting the stated goals.

"Construction" means the building of a new nursing facility or the expansion, remodeling, or alteration of an existing nursing facility and includes the initial and subsequent equipping of the facility.

"Criminal record report" means either the criminal record clearance with respect to convictions for barrier crimes or the criminal history record from the Central Criminal Records Exchange of the Virginia Department of State Police.

"Department" means the Virginia Department of Health.

"Dignity" means staff, in their interactions with residents, carry out activities which that assist a resident in maintaining and enhancing the resident's self-esteem and self-worth.

"Discharge" means the process by which the resident's services, delivered by the nursing facility, are terminated.

"Discharge summary" means the final written summary of the services delivered, goals achieved, and post-discharge plan or final disposition at the time of discharge from the nursing facility. The discharge summary becomes a part of the clinical record.

"Drug" means (i) articles or substances recognized in the official United States "Drug" Pharmacopoeia National Formulary or official Homeopathic Pharmacopoeia of the United States, or any supplement to any of them; (ii) articles or substances intended for the use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animal; (iii) articles or substances, other than food, intended to affect the structure or any function of the body of man or other animal; and (iv) articles or substances intended for use as a component of any article specified in clause (i), (ii), or (iii). This does not include devices or their components, parts or accessories.

"Electronic monitoring" means an unmanned the use of a surveillance device with a fixed position video camera or recording system with or without audio capability installed in the device, or a combination thereof, that is installed in a resident's room of a resident and broadcasts or records activities or sounds occurring within the confines of the room. Electronic monitoring does not include use of a device that enables audio communication into the resident's room from another source.

"Emergency preparedness plan" means a component of a nursing facility's safety management program designed to manage the consequences of natural disasters or other emergencies that disrupt the nursing facility's ability to provide care.

"Employee" means a person who performs a specific job function for financial remuneration on a full-time or part-time basis.

"Facility-managed" means an electronic monitoring system that is installed, controlled, and maintained by the nursing facility with the knowledge of the resident or legal representative in accordance with the facility's policies.

"Family member" means the resident's spouse, parent, stepparent, child, stepchild, brother, sister, half-brother, half-sister, grandparent, or grandchild.

"Full-time" means a minimum of 35 hours or more worked per week in the nursing facility.

"Intelligent personal assistant" means a combination of an electronic device and a specialized software application designed to assist users with basic tasks using a combination of natural language processing and artificial intelligence, including such combinations known as digital assistants or virtual assistants.

"Legal representative" means a person legally responsible for representing or standing in the place of the resident for the conduct of his the resident's affairs. This may include a guardian, conservator, attorney-in-fact under durable power of attorney, trustee, or other person expressly named by a court of competent jurisdiction or the resident as his the resident's agency 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 for which he the representative has legal authority to act.

"Medication" means any substance, whether prescription or over-the-counter drug, that is taken orally or injected, inserted, topically applied, or otherwise administered.

"Neglect" means a failure to provide timely and consistent services, treatment, or care to a resident necessary to obtain or maintain the resident's health, safety, or comfort or a failure to provide timely and consistent goods and services necessary to avoid physical harm, mental anguish, or mental illness.

"Nursing facility" means any nursing home as defined in § 32.1-123 of the Code of Virginia.

"OLC" means the Office of Licensure and Certification of the Virginia Department of Health.

"Person" means any individual, corporation, partnership, association, trust, or other legal entity, whether governmental or private, owning, managing, or operating a nursing facility.

"Physical restraint" means any manual method or physical or mechanical device, material, or equipment attached or adjacent to the resident's body that the individual cannot remove easily which restricts freedom of movement or normal access to one's own body.

"Policy" means a written statement that describes the principles and guides and governs the activities, procedures, and operations of the nursing facility.

"Procedures" means a series of activities designed to implement program goals or policy, which may or may not be written, depending upon the specific requirements within this chapter. For inspection purposes, there must be evidence that procedures are actually implemented.

"Progress note" means a written statement, signed and dated by the person delivering the care, consisting of a pertinent, chronological report of the resident's care. A progress note is a component of the clinical record.

"Qualified" means meeting current legal requirements of licensure, registration, or certification in Virginia; 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.

"Quality assurance" means systematic activities performed to determine the extent to which clinical practice meets specified standards and values with regard to such things as appropriateness of service assignment and duration, appropriateness of facilities and resources utilized, adequacy, and clinical soundness of care given. Such activities should also assure ensure changes in practice that do not meet accepted standards. Examples of quality assurance activities include the establishment of facility-wide goals for resident care, the assessment of the procedures used to achieve the goals, and the proposal of solutions to problems in attaining those goals.

"Readmission" means a planned return to the nursing facility following a temporary absence for hospitalization, off-site visit or therapeutic leave, or a return stay or confinement following a formal discharge terminating a previous admission.

"Resident" means the primary service recipient, admitted to the nursing facility, whether that person is referred to as a client, consumer, patient, or other term.

"Resident-managed" means an electronic monitoring system that is installed, controlled, and maintained by the resident with the knowledge of the nursing facility.

"Supervision" means the ongoing process of monitoring the skills, competencies, and performance of the individual supervised and providing regular, face-to-face guidance and instruction.

"Sworn disclosure" means a written statement or affirmation disclosing any criminal convictions or any pending criminal charges, whether within or outside the Commonwealth, by an applicant for compensated employment with a nursing facility.

"THC-A oil" means the same as the term is defined in subsection A of § 54.1-3408.3 A of the Code of Virginia.

"Volunteer" means a person who, without financial remuneration, provides services to the nursing facility.

12VAC5-371-160. Financial controls and resident funds.

A. All financial records, including resident funds, shall be kept according to generally accepted accounting principles (GAAP).

B. Each nursing facility shall maintain, per facility, noneroding general liability insurance coverage in a minimum amount of $1 million per occurrence, and professional liability coverage in an amount at least equal to the recovery limit set forth in § 8.01-581.15 of the Code of Virginia per patient occurrence, to compensate residents or individuals for injuries and losses resulting from the negligent or criminal acts of the nursing facility. Failure to maintain minimum insurance limits under this section shall result in revocation of the nursing facility's license. Each nursing facility shall provide at licensure renewal or have available to the board proof of the insurance coverages as required by this subsection.

C. Nursing facilities choosing to handle resident funds shall:

1. Comply with § 32.1-138 A 7 of the Code of Virginia regarding resident funds;

2. Purchase a surety bond or otherwise provide assurance for the security of all personal funds deposited with the nursing facility; and

3. Provide for separate accounting for resident funds.

D. In the event the nursing facility is sold, the nursing facility shall provide written verification that all resident funds have been transferred and shall obtain a signed receipt from the new owner. Upon receipt, the new owner shall provide an accounting of resident funds.

E. Each nursing facility shall be required to provide a full refund of any unexpended patient funds on deposit with the nursing facility following the discharge or death of a patient, other than entrance related fees, within 30 days of a written request for such funds by the discharged patient or, in the case of the death of a patient, the person administering the patient's estate in accordance with the Virginia Small Estate Act (§ 64.2-600 et seq. of the Code of Virginia).

12VAC5-371-191. Electronic monitoring in resident rooms.

A. All requests for electronic monitoring shall be made in writing and signed by the resident or, if the resident has been legally deemed incompetent, the resident's legal representative if the resident has been properly assessed incapable of requesting and authorizing the monitoring.

B. Only electronic Electronic monitoring in accordance with this section is shall be permitted only:

1. Upon the informed consent of the resident or resident's legal representative, which shall be obtained prior to the installation or use of any electronic monitoring device. Consent for electronic monitoring shall be kept in the resident's medical record;

2. If the resident resides:

a. In a room with no roommates; or

b. In a room with roommates and obtains written consent to visual recording from the roommates or, if a roommate has been legally deemed incompetent, the roommate's legal representative. If a resident resides with roommates, only video electronic monitoring shall be permitted pursuant to this subsection;

3. Upon execution of an agreement for the sharing and release of medical data and information protected by the federal Health Insurance Portability and Accountability Act of 1996 (42 USC § 1320d et seq.) signed by the resident or resident's legal representative or, if applicable, any such agreement signed by a roommate or roommate's legal representative shall be kept in all consenting individuals' medical records; and

4. If the nursing facility has secured and password-protected wireless Internet access or other means available to operate the electronic monitoring device without modification to the nursing facility or a change in level or capacity of Internet access.

C. A nursing facility shall allow electronic monitoring of a resident of a nursing facility if the electronic monitoring is conducted in accordance with this section. A nursing facility shall not refuse to admit an individual and shall not discharge or transfer a resident due to a request to conduct authorized electronic monitoring.

D. Family members cannot obtain No family member may implement or activate electronic monitoring over the objections of or contrary to the instructions of the resident, the resident's roommate, or the resident's legal representative. No electronic monitoring equipment may be installed pursuant to subsection Q of this section over the objections of or contrary to the instructions of the resident or resident's legal representative. Nursing facilities shall not use monitoring equipment in violation of the law based solely on a family member's request or approval.

E. Consent for electronic monitoring shall be kept in the resident's medical record.

F. Nursing facilities E. A nursing facility shall designate one or more staff person persons to be responsible for managing the point of contact for electronic monitoring program requests and for providing information and policies upon request during normal business hours.

G. Nursing facilities may designate custodial ownership of any recordings from monitoring devices to the resident or legal representative. F. Nursing facility retained recordings shall be considered part of the resident's medical record and shall be retained for no less a time period than two years or as required by state and federal laws. Except as provided in subsection O of this section, a nursing facility may assume custodial ownership of any recordings from electronic monitoring devices from the resident or resident's legal representative. Recordings from electronic monitoring devices shall not be considered part of the resident's medical record.

H. G. If a nursing facility chooses to retain assume ownership of recordings from electronic monitoring devices pursuant to subsection F of this section, the nursing facility shall not permit viewings of recordings without consent of the resident or legal representative except to the extent that disclosure is required by law through a court order or pursuant to a lawful subpoena duces tecum. Should the resident or legal representative approve viewing, the nursing facility shall accommodate viewing of any recordings in a timely manner, including providing: 1. Appropriate playing or viewing equipment; 2. Privacy during viewing; and 3. Viewing times convenient to the resident or legal representative for quality assurance purposes. If unauthorized viewing is discovered, the nursing facility shall report any such violation to the Office of Long-Term Care Ombudsman and to the OLC.

H. No nursing facility shall be held liable for any breach of data or privacy related to the presence of the electronic monitoring device.

I. A nursing facility shall require its facility staff to immediately report any incidents regarding safety or quality of care discovered or reported to staff as a result of viewing a recording immediately from an electronic monitoring device to the administrator of the nursing facility and to the OLC. Nursing facilities shall instruct the resident or legal representative of this reporting requirement and shall provide the resident or the resident's legal representative with the OLC's complaint hotline telephone number.

J. A nursing facility shall have no obligation to seek access to a recording in its possession for which the nursing facility has not assumed custodial ownership or to have knowledge of a recording's content, unless (i) the nursing facility is aware of a recorded incident of suspected abuse, or neglect, or an accident, or injury, or the resident, based upon a report received by the facility of such incident, accident, or injury or (ii) the resident, the resident's legal representative, or a government agency seeks to use a recording. Nursing facilities shall immediately report suspected abuse and neglect discovered as a result of using monitoring devices, as required by law.

K. A Unless a nursing facility may require the resident or legal representative to be responsible for all aspects of the operation of the chooses to assume ownership of any recordings from an monitoring equipment device, the resident or resident's legal representative shall be responsible for all aspects of the operation of the electronic monitoring device, including the removal and replacement of recordings; adherence to local, state, and federal privacy laws; and for firewall protections to prevent images that would violate obscenity laws from being inadvertently shown on the Internet.

L. A nursing facility shall prohibit assigned staff from refusing to enter a resident's room solely because of electronic monitoring.

M. Any electronic monitoring equipment shall be installed in a manner that is safe for residents, employees, or visitors who may be moving about the resident's room.

N. M. A nursing facility shall make reasonable physical accommodation accommodations for electronic monitoring equipment devices, including:

1. Providing a reasonably secure place to mount the device; and

2. Providing reasonable access to power sources for if already in proximity to the device.

O. N. A nursing facility may shall require a resident or resident's legal representative to pay for all costs, other than the cost of electricity, associated with installing the purchase and installation of the electronic monitoring equipment. Such costs shall be reasonable and may include equipment, recording media and installation device. In addition, a nursing facility offering facility-managed electronic monitoring may charge a one-time fee not to exceed $150 when the electronic monitoring device is installed along with a security deposit not to exceed $250. A nursing facility may charge a monthly fee not to exceed $10 to cover costs associated with the electronic monitoring device. Such costs may include equipment, secured and password-protected wireless Internet and server capabilities, compliance with life safety and building and electrical codes, maintenance or removal of the equipment, posting and removal of any public notices, or structural repairs to the building resulting from the removal of the equipment. Nursing facilities shall give 45 days' days of notice of an increase in monthly monitoring fees.

P. Any equipment installed for the purpose of monitoring a resident's room shall be fixed and unable to rotate.

Q. The informed consent of all residents or residents' legal representatives assigned to the monitored room shall be obtained prior to any electronic monitoring equipment being installed.

R. A copy of any signed consent form shall be kept in the resident's medical record as well as on file with the nursing facility's designated electronic monitoring coordinator.

S. Any O. The resident of a room with an electronic monitoring device or the resident's legal representative of a resident of a monitored room may verbally or in writing condition consent for the installation or use of the electronic monitoring devices device. Such The conditions on consent may include pointing the camera away or limiting or prohibiting the use of (i) the ability of the resident, a roommate, or staff at the request of the resident or any roommate, to turn off or disable the audio or video electronic monitoring device during certain devices periods of time and (ii) a prohibition on the ability of the nursing facility to, pursuant to subsection F of this section, choose to assume custodial ownership of recordings from the electronic monitoring device after the electronic monitoring device has been installed and is operational. If the resident or resident's legal representative or any roommate or roommate's legal representative places conditions are placed on consent, then electronic monitoring the nursing facility and staff shall ensure that the installation, use, and operation of the electronic monitoring device and electronic monitoring or other activities be conducted according to those in connection with the electronic monitoring are conducted in compliance with the conditions.

T. P. The nursing facility shall conspicuously post and maintain a notice at the entrance to the resident's room stating that an electronic monitoring device is in operation.

U. Nursing facilities Q. A nursing facility shall notify all assigned staff for the resident and the long-term care division of the OLC that when electronic monitoring is in use in a resident's room pursuant to this section.

V. R. A nursing facility shall prohibit staff from covert monitoring in violation of this chapter. Nursing facilities shall instruct the resident or legal representative of this prohibition and shall provide the resident or the resident's legal representative with the OLC's complaint hotline telephone number.

W. S. If covert monitoring is discovered, the nursing facility shall report any such violation to the Office of Long-Term Care Ombudsman and OLC, and the nursing facility may require a resident or a resident's legal representative to meet all the requirements for authorized monitoring, if permitted by the nursing facility.

X. Each nursing facility, including those that choose not to offer electronic monitoring, shall adopt policies and procedures for electronic monitoring. These policies and procedures shall address all the elements of this section.

Y. A nursing facility shall prohibit staff from tampering with electronic monitoring in violation of this chapter. T. Nursing facilities shall instruct the resident or the resident's legal representative of this prohibition and shall provide the resident or the resident's legal representative with the OLC's complaint hotline telephone number.

U. A nursing facility shall adopt policies and procedures for electronic monitoring consistent with this section.

V. A nursing facility shall adopt a policy prohibiting staff from willfully tampering with electronic monitoring devices in violation of this section. Adjusting or disabling an electronic monitoring device during the provision of patient care shall not constitute willful tampering if the adjusting or disabling is done in order to protect the dignity of a resident or at the direction of the resident or resident's legal representative.

W. If the placement or position of the electronic monitoring device creates risk to a nursing facility employee, resident, or roommate or if the resident or resident's legal representative or family member violates the nursing facility's policies and procedures for electronic monitoring, the equipment may be disabled and removed and the nursing facility shall notify the resident, resident's legal representative, or family member responsible for the camera of the removal.

12VAC5-371-300. Pharmaceutical services.

A. Provision shall be made for the procurement, storage, dispensing, and accounting of drugs and other pharmacy products in compliance with 18VAC110-20. This may be by arrangement with an off-site pharmacy, but must include provisions for 24-hour emergency service.

B. Each nursing facility shall develop and implement policies and procedures for the handling of drugs and biologicals, including procurement, storage, administration, self-administration, and disposal of drugs.

C. Each nursing facility shall have a written agreement with a qualified pharmacist to provide consultation on all aspects of the provision of pharmacy services in the nursing facility.

D. The consultant pharmacist shall make regularly scheduled visits, at least monthly, to the nursing facility for a sufficient number of hours to carry out the function of the agreement.

E. Excluding cannabidiol oil and THC-A oil, no drug or medication shall be administered to any resident without a valid verbal order or a written, dated and signed order from a physician, dentist, podiatrist, nurse practitioner, or physician assistant, licensed in Virginia.

F. Nursing facility employees who are authorized to possess, distribute, or administer medications to residents may store, dispense, or administer cannabidiol oil or THC-A oil to a resident who has:

1. Been issued a valid written certification for the use of cannabidiol oil or THC-A oil in accordance with subsection B of § 54.1-3408.3 B of the Code of Virginia; and

2. Registered with the Board of Pharmacy.

G. Advanced medication aides registered by the Board of Nursing pursuant to Article 7 (§ 54.1-3041 et seq.) of Chapter 30 of Title 54.1 of the Code of Virginia may administer drugs that would be administered by a registered medication aide pursuant to § 54.1-3408 M of the Code of Virginia in an assisted living facility licensed by the Department of Social Services, in addition to drugs determined permissible by the Board of Nursing, in a nursing home licensed by the Virginia Department of Health. Advanced medication aides shall administer drugs pursuant to this section:

1. In accordance with the prescriber's instructions pertaining to dosage, frequency, and manner of administration;

2. In accordance with regulations promulgated by the Board of Pharmacy relating to security and recordkeeping;

3. In accordance with the licensed nursing home's policies and procedures; and

4. In accordance with such other regulations promulgated by the Board of Nursing governing the practice of medication aides.

H. Verbal orders for drugs or medications shall only be given to a licensed nurse, pharmacist, or physician.

H. I. Drugs and medications not limited as to time or number of doses when ordered shall be automatically stopped, according to the written policies of the nursing facility, and the attending physician shall be notified.

I. J. Each resident's medication regimen shall be reviewed by a pharmacist licensed by the Virginia Board of Pharmacy. Any irregularities identified by the pharmacist shall be reported to the physician and the director of nursing, and their response documented.

J. K. Medication orders shall be reviewed at least every 60 days by the attending physician, nurse practitioner, or physician's assistant.

K. L. Prescription and nonprescription drugs and medications may be brought into the nursing facility by a resident's family, friend, or other person provided:

1. The individual delivering the drugs and medications assures ensures timely delivery, in accordance with the nursing facility's written policies, so that the resident's prescribed treatment plan is not disrupted;

2. Each drug or medication is in an individual container; and

3. Delivery is not allowed directly to an individual resident.

In addition, prescription medications shall be obtained and labeled as required by law.