TITLE 12. HEALTH

STATE BOARD OF HEALTH

Fast-Track Regulation

Title of Regulation: 12VAC5-391. Regulations for the Licensure of Hospice (amending 12VAC5-391-440).

Statutory Authority: §§ 32.1-12 and 32.1-162.5 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: April 22, 2026.

Effective Date: May 7, 2026.

Agency Contact: Geoff Garner, Senior Policy Analyst, Virginia Department of Health, 9960 Mayland Drive, Suite 401, Richmond, VA 23233, telephone (804) 685-9690, fax (804) 527-4502, or email regulatorycomment@vdh.virginia.gov.

Basis: Section 32.1-12 of the Code of Virginia authorizes the State Board of Health to make, adopt, promulgate, and enforce regulations necessary to carry out the provisions of Title 32.1 of the Code of Virginia. Section 32.1-162.5 of the Code of Virginia requires the board to promulgate regulations governing the activities and services provided by hospices, including the establishment of minimum standards for design and construction of hospice facilities consistent with the current edition of the Facility Guidelines Institute (FGI) Guidelines for Design and Construction of Hospital and Health Care Facilities.

Purpose: This action is essential to protect the health, safety, and welfare of the citizens of the Commonwealth because it standardizes space and equipment requirements and promotes safe practices and methods in planning, design, and construction. The goal of this regulatory change is to update the regulation to incorporate the 2022 edition of the FGI Guidelines for Design and Construction of Hospital and Health Care Facilities.

Rationale for Using Fast-Track Rulemaking Process: This rulemaking is expected to be noncontroversial and therefore appropriate for the fast-track rulemaking process because the proposed amendments are nondiscretionary and only update references to the FGI guidelines from the 2018 edition to the 2022 edition.

Substance: The amendments (i) update the edition of the FGI guidelines incorporated by reference, (ii) incorporate by reference errata to the 2022 edition of the guidelines, and (iii) update references to the guidelines within the chapter.

Issues: The primary advantage to the public is reduced confusion among regulants regarding which edition of the FGI guidelines is the controlling edition. The primary advantage to the agency is conformity with the legal mandates set forth by the Code of Virginia. There are no disadvantages to the public or the Commonwealth.

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. Pursuant to the Code of Virginia, the State Board of Health (board) is updating this regulation to reflect the current edition of the Guidelines for Design and Construction of Hospital and Health Care Facilities issued by the Facility Guidelines Institute (FGI).

Background. Section 32.1-162.5 B of the Code of Virginia requires hospice facility regulations to include minimum standards for the design and construction of hospices that are consistent with the current edition of the Guidelines for Design and Construction of Hospital and Health Care Facilities issued by American Institute of Architects Academy of Architecture for Health.² The Virginia Department of Health (VDH) has clarified that, the design and construction standards were published by the American Institute of Architects Academy of Architecture for Health (AIA-AAH) from 1987 to 2006. The AIA-AAH no longer releases its own guidelines for the design and construction of health care facilities and instead develops these guidelines with the FGI, the nonprofit successor.³ The regulation currently references the 2018 Guidelines for Design and Construction of Residential Health, Care, and Support Facilities. These guidelines are revised and updated every four years. Accordingly, the board seeks to update the regulation to replace references to parts of the 2018 Guidelines with the corresponding parts of the 2022 Guidelines as well as Errata to the 2022 Edition.⁴ The corresponding documents incorporated by reference would also be updated. In addition, the agency is making a few minor nonsubstantive style and form changes to the text of regulation.

Estimated Benefits and Costs. To comply with Virginia statute, hospice facility construction, renovation, or alterations must comply with the applicable sections of the 2022 FGI Guidelines. As a result, VDH anticipates that there may be a quantifiable indirect cost equal to a 0.2% increase in construction costs for a model facility that is multiple stories of non-combustible construction and a 0.4% increase in construction costs for a model facility that is a single story of combustible construction, based on projections developed by FGI.⁵ The proposed changes would benefit readers of the regulation by providing updated and accurate references.

Businesses and Other Entities Affected. VDH reports that there are 88 licensed hospice facilities in Virginia, 20 of which are estimated to meet the definition of small business.⁶ Only hospices that undertake renovations or alterations would be affected by the proposed changes. VDH is unable to quantify the number of entities that will construct a hospice facility, or the number of current facilities that will alter or renovate their facilities. The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁷ 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. Although the updates to the Guidelines are expected to increase construction costs as described above, the board does not propose to make any discretionary changes that would increase net costs or reduce net revenues. Because any increase in costs results directly from the statutory mandate, an adverse impact from the regulatory change itself is not indicated.

Small Businesses⁸ Affected.⁹ VDH estimates that 20 of the licensed hospices meet the definition of small business. These businesses may face additional costs if they choose to renovate or alter their hospice facilities. New hospices that may be established by small businesses would also be affected. However, any additional costs would result from the statutory mandate to comply with the current version of the Guidelines.

Localities¹⁰ Affected.¹¹ The proposed changes would not disproportionately affect any particular localities and would not affect costs for local governments. Chesapeake Reginal Medical Center, which is governed by the Chesapeake Hospital Authority¹² operates a licensed hospice program but does not have a hospice facility; they would be impacted if they were to open a hospice facility.¹³

Projected Impact on Employment. The proposed regulation would not affect employment.

Effects on the Use and Value of Private Property. The updates to the FGI Guidelines are expected to marginally increase the construction costs of hospice facilities; thus, the value of entities that operate hospice facilities and choose to renovate or alter the facility structures would marginally decrease. Similarly, real estate development costs for hospice facilities would be increased. However, these effects accrue from the statutory mandate to implement the current Guidelines and not directly from the proposed changes.

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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 See https://law.lis.virginia.gov/vacode/title32.1/chapter5/section32.1-162.5/.

³ Email from VDH dated January 18, 2024.

⁴ See https://fgiguidelines.org and https://fgiguidelines.org/guidelines/errata-addenda/. More detail about the specific differences between the 2108 and 2022 editions may be found at https://fgiguidelines.org/wp-content/uploads/2022/10/2022-RES-Major-additions-and-revisions.pdf.

⁵ See page 5 Agency Background Document (ABD) at https://townhall.virginia.gov/l/ GetFile.cfm?File=58\6326\10137\AgencyStatement_VDH_10137_v2.pdf.

⁶ ABD, page 5.

⁷ 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.

⁸ 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."

⁹ 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.

¹⁰ "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.

¹¹ Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

¹² The City of Chesapeake city council appoints members of the Authority; the Authority operates Chesapeake Regional Medical Center. See https://law.lis.virginia.gov/authorities/chesapeake-hospital-authority/.

¹³ See https://chesapeakeregional.com/services-specialties/home-health-hospice/hospice.

Agency Response to Economic Impact Analysis: The Virginia Department of Health has reviewed the economic impact analysis prepared by the Department of Planning and Budget and believes the contents to be substantively complete and accurate.

Summary:

As required by § 32.1-162.5 B of the Code of Virginia, the amendments update the version of the Guidelines for Design and Construction of Hospital and Health Care Facilities issued by the Facility Guidelines Institute incorporated by reference into the regulation to the 2022 edition, which were published May 2022.

12VAC5-391-440. General facility requirements.

A. All construction of new buildings and additions, renovations or alterations of existing buildings for occupancy as a hospice facility shall conform to state and local codes, zoning and building ordinances and the Uniform Statewide Building Code.

In addition, hospice facilities shall be designed and constructed according to section Part 1, Part 2, and Chapter 3.2 of Part 3 of the 2018 Guidelines for Design and Construction of Residential Health, Care, and Support Facilities of the, 2022 Edition (The Facility Guidelines Institute), as amended by the December 2023 Errata for Guidelines for Design and Construction of Residential Health, Care, and Support Facilities, 2022 Edition (The Facility Guidelines Institute).

B. All buildings shall be inspected and approved as required by the appropriate regional state fire marshal's office or building and fire regulatory official. Approval shall be a Certificate of Use and Occupancy indicating the building is classified for its proposed licensed purpose.

C. The facility must shall have space for private patient family visiting and accommodations for family members after a patient's death. Patients shall be allowed to receive guests, including small children, at any hour.

D. Patient rooms shall not exceed two beds per room and must be at grade level or above, enclosed by four ceiling-high walls. Each room shall be equipped for adequate nursing care, the comfort and privacy of patients, and with a device for calling the staff member on duty.

E. Designated guest rooms for a patient's family members or patient guests and beds for use by employees of the facility shall not be included in the bed capacity of a hospice facility provided such beds and locations are identified and used exclusively by staff, volunteers or patient guests.

Employees shall An employee may not utilize patient rooms nor shall and patients may not use bedrooms for employees be used by patients.

F. Waste storage shall be located in a separate area outside or easily accessible to the outside for direct pickup or disposal. The use of an incinerator shall require permitting from the nearest regional permitting office for the Department of Environmental Quality.

G. The facility shall provide or arrange for under written agreement, laboratory, x-ray, and other diagnostic services, as ordered by the patient's physician.

H. There shall be a plan implemented to assure ensure the continuation of essential patient support services in case of power outages, water shortage, or in the event of the absence from work of any portion of the workforce resulting from inclement weather or other causes.

I. No part of a hospice facility may be rented, leased, or used for any purpose other than the provision of hospice care at the facility.

J. A separate and distinct entrance shall be provided if the program intends to administer and provide its community-based hospice care from the facility so that such traffic and noise shall be diverted away from patient care areas.

K. The hospice 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.

DOCUMENTS INCORPORATED BY REFERENCE (12VAC5-391)

2018 Guidelines for Design and Construction of Residential Health, Care, and Support Facilities, The Facility Guidelines Institute.

Errata for Guidelines for Design and Construction of Residential Health, Care, and Support Facilities, The Facility Guidelines Institute, 2022 Edition, https://fgiguidelines.org/guidelines/errata-addenda/ (eff. 12/2023)

Guidelines for Design and Construction of Residential Health, Care, and Support Facilities, The Facility Guidelines Institute., 2022 Edition, https://fgiguidelines.org