TITLE 12. HEALTH

STATE BOARD OF HEALTH

Fast-Track Regulation

Title of Regulation: 12VAC5-371. Regulations for the Licensure of Nursing Facilities (amending 12VAC5-371-30, 12VAC5-371-40; adding 12VAC5-371-41).

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

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: November 4, 2026.

Effective Date: November 19, 2026.

Agency Contact: Geoff Garner, Senior Policy Analyst, Virginia Department of Health, 9960 Mayland Drive, Suite 401, Richmond, VA 23233, telephone (804) 367-2157, fax (804) 527-4502, or email regulatorycomment@vdh.virginia.gov.

Basis: This regulation is promulgated under the authority of §§ 32.1-12 and 32.1-127 of the Code of Virginia, which grant the State Board of Health the legal authority to make, adopt, promulgate, and enforce regulations necessary to carry out the provisions of Title 32.1 of the Code of Virginia and other laws of the Commonwealth administered by the board, the Commissioner of Health, or the Virginia Department of Health.

Purpose: The specific reason the regulatory change is essential to protect the health, safety, or welfare of citizens is that normal state controls on the nursing home bed inventory in the Commonwealth have proven to be inflexible during certain public health emergencies where demand for beds outstrips both the current inventory and the mandated processes by which additional inventory can be authorized. These amendments will allow nursing homes to temporarily increase bed inventory in response to disasters and other public health emergencies, while still allowing the commissioner sufficient oversight to ensure the beds are being operated and staffed safely.

Rationale for Using the Fast-Track Rulemaking Process: It is anticipated that this action will be noncontroversial and therefore appropriate for the fast-track rulemaking process because the minimum information required when requesting temporary beds and the process described in the regulatory action is consistent with the minimum information that was requested of nursing homes and the process that was used during the COVID-19 pandemic.

Substance: The amendments (i) clarify information required to appear on the face of the nursing home license and where the new exemption process is located in the Virginia Administrative Code; (ii) update exemption specifications pursuant to the new process that allows nursing homes to temporarily increase bed inventory during disasters or other public health emergencies; and (iii) add a new form required by the regulation.

Issues: The primary advantages to the public of implementing the amended provisions is the ability to rapidly and temporarily increase nursing home bed inventory during disasters or other public health emergencies while preserving life safety code protections and safe staffing. The primary advantages to the Commonwealth of implementing the amended provisions is a new exemption process that grants more discretion and flexibility to the board and commissioner in responding to public health emergencies for which additional bed inventory is needed without needing either a legislative amendment to the Code of Virginia or an executive order from the Governor. 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 Chapters 712 and 772 of the 2022 Acts of Assembly, the State Board of Health (board) proposes to incorporate in this nursing home licensure regulation an exemption from the certificate of public need rules for facilities that may request a temporary increase in their bed capacity to respond to public health emergencies and to specify the information needed to evaluate such requests.

Background. Prior to the COVID-19 pandemic, § 32.1-102.2 A 6 of the Code of Virginia provided the board or the Commissioner of Health with limited authority to grant an exemption from the requirement for a certificate of public need for a temporary increase in the total number of beds in an existing hospital or nursing home for no more than 30 days when a natural or man-made disaster has caused the evacuation of a hospital or nursing home and a public health emergency exists due to a shortage of hospital or nursing home beds. Section 32.1-127 B 24 of the Code of Virginia, which applies to hospital and nursing home licensure and inspection, provided the same authority to grant exemptions for licenses for temporary increases in bed capacity. However, this authority was insufficient for the board or the commissioner to grant an exemption from the certificate of public need rules for a temporary increase in nursing home or hospital beds in order to respond to the COVID-19 pandemic. Instead, during the pandemic, the Virginia Department Health (VDH) utilized an alternative authorization process pursuant to Executive Orders 52 (2020), 84 (2022), 11 (2022), and 16 (2022). According to VDH, normal state controls (i.e., existing certificate of need and licensing statutes and regulations) on the hospital and nursing home bed inventory in the Commonwealth have proven to be too inflexible during certain public health emergencies where demand for beds outstrips both the existing inventory and the mandated processes by which additional inventory can be authorized. In order to address these concerns, the 2022 Session of the General Assembly passed Chapters 712 and 772, which amended §§ 32.1-102 and 32.1-127 of the Code of Virginia. This legislation requires the board to amend its regulation about exemptions for certificates of public need and hospital and nursing home licenses for a temporary increase in the total number of beds in an existing hospital or nursing home to include a temporary increase in the total number of beds resulting from the addition of beds at a temporary structure or satellite location operated by the hospital or nursing home, provided that the ability remains to safely staff services across the existing hospital or nursing home. These Acts also allowed the exemption to be triggered by an emergency order pursuant to § 32.1-13 or 32.1-20 of the Code of Virginia for the purpose of suppressing a nuisance dangerous to public health or a communicable, contagious, or infectious disease or other danger to the public life and health.² Lastly, the duration of this exemption was amended to be either a period of no more than the duration of the commissioner's determination plus 30 days when the commissioner has determined that a natural or man-made disaster has caused the evacuation of a hospital or nursing home and that a public health emergency exists due to a shortage of hospital or nursing home beds or a period of no more than the duration of the emergency order entered pursuant to § 32.1-13 or 32.1-20 of the Code of Virginia plus 30 days. Consequently, the board has initiated an action to implement the mandated changes in the certificate of public need regulations.³ However, this regulation on nursing home licensure must also be amended to reflect the same changes as licenses are issued for a specific capacity which may be temporarily increased as directed by the legislation. In short, this regulatory action would amend this nursing home licensure regulation to align it with the legislation and with the proposed changes to the certificate of public need regulations in 12VAC5-220.

Estimated Benefits and Costs. The main impact of the proposed change is to amend the regulatory text to incorporate board or commissioner authority and discretion to grant temporary nursing home bed capacity and collect the information required for temporary bed increase requests as per the certificate of public need regulations so that there is consistency among regulations as well as the legislation. As with the regulatory action to amend the certificate of public need regulations, the main benefit of the changes proposed here would be to implement a legislative mandate to create an expeditious process by which hospitals and nursing homes can request temporary beds in responding to public health emergencies while ensuring that the Commissioner and VDH have sufficient information to take action on the request. There does not appear to be any significant costs associated with the proposed regulatory changes as the authority and discretion provided to the commissioner or the board to grant exemption from the licensing rules for a temporary bed capacity are mandated by the legislation and the information to be provided with an application is the same as what had been requested in the process utilized under executive orders.

Businesses and Other Entities Affected. The proposed changes apply to existing nursing homes. According to VDH, there are 287 nursing homes. Between 2020 and 2022, 57 facilities (49% of all inpatient hospitals and one percent of all nursing homes) added over 3,700 temporary beds under the executive orders in response to COVID-19 pandemic. None of the affected entities appear to be disproportionately affected. The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁴ 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.⁵ The impact of the proposed changes is to align the regulatory text in this licensure regulation with other regulations and statute. Thus, no adverse impact is indicated.

Small Businesses⁶ Affected.⁷ VDH does not have any data to estimate how many nursing homes may, if any, meet the definition of small business. However, the proposed amendments do not appear to adversely affect small businesses.

Localities⁸ Affected.⁹ The County of Bedford operates a nursing home. However, the proposed amendments do not appear to introduce costs for local governments.

Projected Impact on Employment. The proposed amendments do not appear to affect total employment.

Effects on the Use and Value of Private Property. No impact on the use and value of private property or real estate development costs is expected from promulgation of the proposed regulatory amendments.

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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/chapter1/section32.1-13/ and https://law.lis.virginia.gov/vacode/title32.1/chapter1/section32.1-20/.

³ https://townhall.virginia.gov/L/ViewAction.cfm?actionid=5982.

⁴ 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.

⁵ 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.

⁶ 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."

⁷ 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.

⁸ "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.

⁹ Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency Response to Economic Impact Analysis: The Virginia Department of Health has reviewed the economic impact analysis (EIA) prepared by the Department of Planning and Budget and believes the contents of the analysis to be substantively complete and accurate as of the date of the EIA, and no modification of the EIA is warranted.

Summary:

The amendments add a new section to the regulation that consolidates the requirements for a nursing home to add temporary beds and adds an exemption for nursing homes from obtaining a Certificate of Public Need or extending a license to add such beds. The requirements include (i) conditions under which a nursing home may activate this exemption, (iii) what information the nursing home must provide to qualify for the exemption, (iii) the process via which the nursing home will be informed regarding approval, and (iv) notification requirements for the nursing home.

12VAC5-371-30. License.

A. This chapter is not applicable to:

1. Those entities listed in § 32.1-124 of the Code of Virginia; or

2. Facilities established or operated for the practice of religious tenets pursuant to § 32.1-128 of the Code of Virginia, except that such facilities shall comply with the statutes and regulations on environmental protection and life safety.

B. A license to operate a nursing facility shall be issued to a person.

C. Each license shall expire at 11:59 p.m. on December 31 of the year issued. A nursing facility shall operate within the terms of its license, which include the Each license issued by the commissioner shall specify:

1. Name of the nursing facility;

2. Name of the operator;

3. Physical location of the nursing facility;

4. Maximum number of beds allowed, except as provided in 12VAC5-371-40 G excluding temporary beds added pursuant to 12VAC5-371-45; and

5. Date the license expires.

D. A separate license shall be required for nursing facilities maintained on separate premises, even if the facilities are owned or operated under the same management.

E. Every nursing facility shall be designated by a permanent and unique name.

F. The number of resident beds allowed in a nursing facility shall be determined by the commissioner.

G. Long-term care nursing units located in and operated by hospitals shall be licensed under Regulations for the Licensure of Hospitals in Virginia (12VAC5-410). Approval for such units shall be included on the annual license issued to each hospital.

H. Any person establishing, conducting, maintaining, or operating a nursing facility without a license shall be guilty of a Class 6 felony.

I. The licensee shall at all times:

1. Maintain an active and accurate license; and

2. Post its current license in a place readily visible and accessible to the public at the nursing facility.

12VAC5-371-40. Licensing process.

A. Upon request, the OLC will provide consultation to any person seeking information about obtaining a license. The purpose of such consultation is to:

1. Explain the standards and the licensing process;

2. Provide assistance in locating other sources of information;

3. Review the potential applicant's proposed program plans, forms, and other documents, as they relate to standards; and

4. Alert the potential applicant regarding the need to meet other state and local ordinances, such as fire and building codes and environmental health standards, where applicable.

B. Licensees and applicants shall obtain licensure applications from the OLC.

C. The OLC shall consider the application complete when all requested information and the application fee is submitted with the form required. If the OLC finds the application incomplete, the applicant will be notified of receipt of the incomplete application.

D. The applicant shall complete and submit the initial application to the OLC at least 30 days prior to a planned opening date to allow the OLC time to act on the application. An application for a license may be withdrawn at any time.

E. A nursing facility may not be licensed without first complying with the requirements for a Certificate of Public Need as required by Article 1.1. (§ 32.1-102.1 et seq.) of Chapter 4 of Title 32.1 of the Code of Virginia.

1. Application for initial license of a nursing facility shall include a statement of any agreement made with the commissioner as a condition for Certificate of Public Need approval to provide a level of care at a reduced rate to indigents or accept patients requiring specialized care.

2. Any initial license issued to any nursing facility that made such agreement as a condition of its Certificate of Public Need approval shall not be renewed without demonstrating prior to or at the time of applying for renewal that it is substantially complying with its agreement.

F. The renewal of a nursing facility license shall be conditioned upon the up-to-date payment of any civil penalties owed as a result of willful refusal, failure, or neglect to honor certain conditions established in their award of a Certificate of Public Need pursuant to § 32.1-102.4 B of the Code of Virginia.

G. Nursing facilities shall be exempt, for a period of no more than 30 days, from the requirement to obtain a license to add temporary beds when the commissioner has determined that a natural or man-made disaster has caused the evacuation of a hospital or nursing home and that a public health emergency exists due to a shortage of hospital or nursing home beds.

H. G. The licensee shall submit the completed renewal application form along with any required attachments and the application fee by the date indicated in the cover letter.

I. H. It is the licensee's responsibility to complete and return the application to assure timely processing. Should a current license expire before a new license is issued, the current license shall remain in effect provided the complete and accurate application was filed on time.

12VAC5-371-41. Exemption from licensure.

A. A nursing home shall be exempt from the requirement to obtain a Certificate of Public Need or a license to add temporary beds, including beds located in a temporary structure or satellite location operated by a nursing home:

1. If the commissioner has determined that a natural disaster or man-made disaster has caused the evacuation of a hospital or nursing home and that a public health emergency exists due to a shortage of nursing home beds; or

2. If the board has entered an emergency order pursuant to § 32.1-13 of the Code of Virginia or if the commissioner has entered an emergency order pursuant to §§ 32.1-13 and 32.1-20 of the Code of Virginia for the purpose of suppressing:

a. A nuisance dangerous to public health;

b. A communicable, contagious, or infectious disease; or

c. Other danger to the public life and health.

B. A nursing home may request temporary beds by filing a Request for Temporary Beds, OLC-1009-F Form (eff. 6/2022), with the OLC that includes:

1. The nursing home's name;

2. The nursing home's license number;

3. The nursing home administrator's or the administrator's designee's name;

4. The nursing home administrator’s or the administrator's designee's name telephone number;

5. The nursing home administrator’s or the administrator's designee's name email address;

6. The number and type of temporary beds the nursing home anticipates adding;

7. The planned use of the temporary beds;

8. The plans for staffing the temporary beds;

9. The efforts undertaken or to be undertaken to reduce or eliminate the number of temporary beds needed;

10. The address of the building, temporary structure, or satellite location where the nursing home intends to locate the temporary beds;

11. The specific locations within the building, temporary structure, or satellite location where the nursing home intends to locate the temporary beds;

12. Whether the locations identified in subdivision B 11 of this section meet life safety code requirements for the type of residents expected to occupy those temporary beds;

13. If life safety code requirements are not currently met for the locations identified in subdivision B 11 of this section, what action the nursing home will take to meet life safety code requirements; and

14. Any other information that the board or commissioner may request.

C. The nursing home shall provide additional information as may be requested or required by the commissioner to evaluate the temporary bed request.

D. The commissioner shall notify the nursing home in writing of the commissioner's decision on the temporary bed request. If granted, the commissioner may attach conditions to the approval that, in the sole judgment of the commissioner, protects public or resident health, safety, or welfare.

E. The nursing home may not add temporary beds unless its request has been granted and may not operate temporary beds more than 30 days after the expiration of:

1. The commissioner’s determination pursuant to subdivision A 1 of this section; or

2. The board's or the commissioner's emergency order pursuant to subdivision A 2 of this section.

F. The nursing home shall notify the OLC in writing within 24 hours of opening a temporary bed and within 24 hours of closing a temporary bed.

G. The OLC shall promptly inform the Department of Medical Assistance Services and the Centers for Medicare and Medicaid Services of the identity of any nursing home certified as a Medicare provider, Medicaid provider, or both that fails to comply with subsection E of this section.

H. The commissioner may rescind or modify the approval of a temporary bed request if:

1. Additional information becomes known that alters the basis for the original approval, including if the nursing home added temporary beds prior to receiving the approval; or

2. The nursing home fails to meet any conditions attached to the approval.

FORMS (12VAC5-371)

Application for License Renewal: Nursing Homes (rev. 9/2006)

Application for License Renewal: Nursing Homes; Mid Year, Initial and Changes (rev. 9/2006)

Request for Temporary Beds, OLC-1009-F (eff. 6/2022)