Titles of Regulations: 22VAC40-60. Standards and Regulations for Licensed Adult Day Care Centers (repealing 22VAC40-60-10 through 22VAC40-60-1020).

22VAC40-61. Standards and Regulations for Licensed Adult Day Care Centers (adding 22VAC40-61-10 through 22VAC40-61-560).

Statutory Authority: § 63.2-1733 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: September 8, 2017.

Agency Contact: Annette Kelley, Licensing Consultant, Department of Social Services, 801 East Main Street, Room 1507, Richmond, VA 23219, telephone (804) 726-7632, FAX (804) 726-7132, or email annette.kelley@dss.virginia.gov.

Basis: The State Board of Social Services has the authority to promulgate the regulation under § 63.2-217 of the Code of Virginia, which states that board shall adopt regulations as may be necessary or desirable to carry out the purpose of Title 63.2 of the Code of Virginia. Section 63.2-1733 of the Code of Virginia addresses the board's overall authority to adopt regulations for adult day care centers to protect the health, safety, welfare, and individual rights of participants of adult day care centers and to promote the participants highest level of functioning.

Purpose: The State Board of Social Services requested at the previous periodic review that a comprehensive revision be completed for these regulations within the next review period, as the last comprehensive revision became effective in 2000. The regulation is essential to protect the health, safety, and welfare of adult day care center participants. The new regulation will allow for changes based on better practices, the latest research and improved technology, as well as meeting the increased needs of a population of elderly, infirm, or disabled persons that has become more vulnerable over the years. Current technology and medical practice have allowed individuals to stay in their own homes, or to live with family members, longer, and as a result, there is an increased need for this level of care and socialization.

Substance: New substantive provisions in the regulation include:

22VAC40-61-40: Provides for the development and implementation of an internal quality assurance program.

22VAC40-61-50: Adds to the participant rights and responsibilities to enhance protection for participants.

22VAC40-61-80: Allows for the use of and appropriate management of electronic records.

22VAC40-61-90: Requires incident reporting for any major incidents that may impact the health, safety and welfare of the participants.

22VAC40-61-120: Requires staff to report suspected abuse, neglect, or exploitation.

22VAC40-61-140: Establishes training criteria for staff that provide direct care to participants.

22VAC40-61-150: Increases the number of hours of training for staff to 12 hours per year.

22VAC40-61-160: Adds a requirement for all staff to be certified in first aid and cardiopulmonary resuscitation.

22VAC40-61-180: Removes the tuberculosis testing requirement and establishes the tuberculosis screening requirements established by the Virginia Department of Health.

22VAC40-61-220: Adds requirements for the completion of the participant assessment.

22VAC40-61-230: Adds requirements for the completion of the participant plan of care and items to be included on the plan of care.

22VAC40-61-240: Adds to the information required to be included in the plan of care.

22VAC40-61-250: Adds to the information required to be included in the participant's record.

22VAC40-61-260: Removes the tuberculosis testing requirement and establishes the tuberculosis screening requirements established by the Virginia Department of Health.

22VAC40-61-270: Condenses three discharge related standards into one and clarifies the role of the center, participant, and family in the discharge process.

22VAC40-61-280: Provides for appropriate health monitoring requirements for participants.

22VAC40-61-290: Provides for evidence based infection control practices to be established within the center.

22VAC40-61-300: Provides for supervisory oversight for medication aides and establishes current medication management practices.

22VAC40-61-310: Establishes that chemical and physical restraints are not allowed in adult day care centers.

22VAC40-61-320: Removes extraneous language and clarifies assistance to be provided for activities of daily living.

22VAC40-61-330: Provides for a list of activity categories to be provided for participants and adds that a staff person must be designated to develop activities.

22VAC40-61-340: Adds a provision requiring 45 minutes to consume a meal and extra time to be allowed if a participant requires it.

22VAC40-61-360: Provides for meal planning and menu development requirements.

22VAC40-61-370: Adds a provision that religious dietary practices will be respected.

22VAC40-61-380: Adds that supervision and safety needs of participants are maintained at all times and that all vehicles will have operable heating and air conditioning systems.

22VAC40-61-390: Adds that staff on a field trip will have a means of communicating with staff at the center and that medications will be administered according to regulatory requirements.

22VAC40-61-400: Provides that the center environment must ensure safety of the participant but not inhibit physical, intellectual, emotional, or social stimulation.

22VAC40-61-430: Establishes temperature requirements to be maintained inside the center and adds provisions for emergency heating.

22VAC40-61-460: Clarifies the requirement of maintaining one restroom for every 10 participants that can accommodate human assistance or specialize equipment for toileting.

22VAC40-61-520: Adds requirements for developing and implementing an emergency preparedness and response plan.

22VAC40-61-530: Adds a provision for developing a written plan for fire and emergency evacuation and having such plan approved by the local fire official.

22VAC40-61-540: Provides for additional information to be collected on fire and emergency evacuation drills.

22VAC40-61-550: Removes syrup of ipecac and activated charcoal from the first aid supplies.

22VAC40-61-560: Provides for initial and semi-annual review of the plan for participant emergencies.

Issues: The primary advantage of the proposed regulatory action is the increased protection it provides to participants in adult day care centers. The action is needed to protect the health, safety, and welfare of an increasingly vulnerable population of aged, infirm, or disabled adults. The regulation addresses the care, services, and environment provided by adult day care centers. Additionally, the last comprehensive revision of the adult day care center regulations became effective in 2000.

The new regulation also provides clear criteria for licensees to follow to maintain their licensure and for licensing staff to use in determining compliance with standards and in the implementation of any necessary enforcement action.

In the proposed regulatory action, a fair and reasonable balance has been attempted to ensure adequate protection of participants while considering the cost to centers. Although some requirements have been increased, others have been eliminated or reduced.

Several areas of the proposed regulations have been of particular interest to adult day care center providers, provider associations, advocacy groups, licensing staff, and the general public. These areas have been addressed and include: (1) eliminating some requirements relating to personnel practices that are internal business practices of a center, (2) adding a requirement for an internal review process, (3) expanding participant's rights and responsibilities, (3) allowance for electronic recordkeeping, (4) development of an incident reporting system, (5) addition of training requirements for direct care staff, (6) defining parameters for completion of participant assessments and plans of care, (7) removing requirements for tuberculosis testing and replacing them with requirements for tuberculosis screening, (8) enhancement of the infection control program, (9) adding a provision for a designated staff person to develop activities, and (10) enhanced emergency preparedness requirements.

The regulation takes into consideration differences in care need requirements of those served, that is, those who are ambulatory, nonambulatory, and those needing assistance with activities of daily living.  The regulation addresses the needs of the cognitively impaired population, physically disabled participants, and elderly persons. In addition, it takes into consideration the cost constraints of smaller centers.

Because the adult day care industry is so diverse in respect to size, population in care, types of services offered, form of sponsorship, etc., the standards must be broad enough to allow for these differences, while at the same time be specific enough so that providers know what is expected of them.

The new regulation was prepared based on multiple regulatory advisory panel input, recommendations and feedback and recommendations from two adult day care center provider organizations.

The regulatory action poses no disadvantages to the public or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The State Board of Social Services (Board) proposes to reorganize and amend its regulation that governs licensure of adult day care centers. Specifically, the Board proposes to:

1) Require a tuberculosis (TB) screening rather than requiring a TB antibody test,

2) Remove activated charcoal and syrup of ipecac from the list of required emergency equipment and supplies,

3) Require a new quality self-assessment,

4) Allow facilities to keep electronic records and allow electronic signatures on forms,

5) Require incident reports for any major incidents that negatively affect or threaten the life, health, safety or welfare of day care participants and require a written report of any incident to be sent to the regional licensing office within seven days,

6) Allow individuals who are licensed as assisted living facility administrators to work as adult day care center directors,

7) Require the list of participant rights and responsibilities to be signed by participants or their representatives and also require that a copy of the list be posted in the day care center,

8) Change the length of notification when day care centers are discharging participants from 14 days to 30 days,

9) Prohibit physical and chemical restraints,

10) Require all vehicles used to transport participants to have working heating and cooling systems,

11) Remove the specific number of hours of staff orientation and initial training while retaining the training requirement,

12) Require at least 40 hours of additional training for all direct care staff,

13) Require first aid and CPR training for all direct care staff,

14) Increase annual in-service training required of direct care staff from eight hours to 12 hours,

15) Require medication management training for adult day care center directors unless the center has a staff person who is licensed to administer medication (such as a nurse),

16) Increase continuing training that is required for individuals who administer medication (from a three-hour refresher course every three years to four hours of additional training every year),

17) Require that center activities be managed by a designated person with required training,

18) Require that all adult day care centers have meal and snack menus posted and available for participants and require that menus be retained for two years (rather than the currently required three months),

19) Require that snacks be made available at all times either in plain view or upon request of day care participants and that second helpings of meals and snacks be provided at no extra charge and

20) Require that the religious dietary practices of the participants be respected and followed unless the participant and care provider mutually agree that the "religious dietary practices of the director, staff or licensees" may be imposed.

Result of Analysis. Benefits likely outweigh costs for most proposed regulatory changes. For some proposed regulatory changes, there is insufficient information to ascertain whether benefits outweigh costs. For several proposed changes, costs likely outweigh benefits.

Estimated Economic Impact. Most changes that the Board proposes for this regulation will not change any substantive requirement for regulated entities but, instead, are aimed at reorganizing regulatory requirements in a more logical order and changing language to clarify regulatory requirements. No affected entities will incur costs on account of changes such as these. Interested parties will benefit from the changed structure of the regulation as it will make it both easier to find and read any particular standard. Benefits likely outweigh costs for all reorganizing and clarifying changes.

Current regulation requires employees of adult day care centers to have a TB antibody test no earlier than 30 days before employment and no later than seven days after employment. Because there has been a shortage of serum to conduct antibody tests for several years now, the Virginia Department of Health guidelines now call for a TB screening that assesses risk factors for, and possible exposure to, TB. The Board now proposes to require that employees undergo TB screening instead of requiring a TB antibody test. This change will allow employees undergoing screening (or their employers) to save at least the lab costs that they would have incurred for the antibody test. Additionally, Board staff reports that adult day care centers that have employee medical staff can have those staff perform the TB screenings for newly hired employees thus saving the cost of an office visit to a doctor. Board staff reports that all adult day care centers that receive funds from either the Elderly or Disabled with Consumer Direction (EDCD) waiver program or the Programs of All-Inclusive Care for the Elderly (PACE) program are required to have medical staff (usually a nurse) and that all but 15 of the 73 adult day care centers in the Commonwealth receive funds from one or both of those two programs. Although there is likely a slightly higher risk of missing a non-symptomatic TB case when employees are screened rather than tested, the shortage of serum makes the changing policy necessary. Nonetheless, risk is likely mitigated by screening to the extent that the benefits to this change likely outweigh its costs.

Current regulation requires adult day care centers to have a list of emergency equipment and supplies so that they can render first aid to center participants. The Board now proposes to remove syrup of ipecac and activated charcoal from the list of required supplies. Board staff reports that both of these items¹  are difficult to administer correctly and that Poison Control no longer recommends that they be kept in first aid supplies. This change will save some small initial and ongoing costs for adult day care centers as these items expire and would need to be periodically replaced. The benefits of this change likely outweigh its costs.

Current regulation has provision for adult day care centers to be inspected. The Board now proposes to add a requirement that all centers perform an annual self-assessment. Board staff reports that the proposed regulation is not prescriptive as to how the self-assessment is produced and that the self-assessment will not be used as part of the inspection process. The self-assessment will involve center staff as well as participants and their families or legal representatives and can take many forms from a formal written survey to informal discussions with participants and their families to ask how well the center is providing services. The Board does propose to require that centers prepare and keep a written record of the results of their self-assessments. There will likely be some time costs for staff as well as copying costs associated with this proposed change. Those costs would need to be measured against any improvements in quality of care that might arise as a result of the self-assessment. There is insufficient information to ascertain whether benefits will outweigh costs.

Current regulation requires centers to keep many types of records and reports but does not have provision for any records to be kept in electronic form. The Board now proposes to allow facilities to keep electronic records and allow electronic signatures on forms. These changes will benefit centers as they will be able to store reports and participant records electronically rather that assigning (or paying for) space to physically store them. Centers will also likely save some time costs not spent on copying reports for physical storage and forms to be signed by center participants. There may be some small costs to purchase electronic memory if centers have a large volume of records that they wish to store electronically. Centers will likely not choose to store records electronically unless they expect the costs of doing so to be less than physically storing the same records, thus the benefits of this proposed change likely outweigh its costs for all centers that choose to store records electronically and/or have forms signed electronically.

Current regulation requires that centers keep a written report of all incidents that involve fire, natural disaster or criminal activity; centers are also required to report such incidents to the State Department of Social Services' Division of Licensing Programs within 24 hours. The Board now proposes to require centers to additionally report any major medical incidents and to send a written report of any major incidents of any sort to the Division of Licensing Programs within seven days. Board staff reports that there is no bright line (such as transport of a center participant to a hospital) that would trigger the necessity for reporting. Instead, center directors and staff will have to use their judgment to decide what medical issues would constitute a major incident. Board staff reports that medical incidents that include heart attack, severe head injury or death would qualify as major incidents. This change will presumably benefit center participants as requiring the additional reporting will allow licensing staff to be aware of incidents that might indicate that there are problems with standards of care that might need to be investigated. Centers may incur some time costs because they will have to report a greater number of incidents and because they will have to newly submit reports to the Division of Licensing Programs. Those costs are likely to be minimal since reports can be submitted electronically. Benefits likely outweigh costs for this proposed change.

Current regulation lays out what qualifications the director of an adult day care center must have. The Board now proposes to expand the kinds of qualifications that are allowed for directors to include licensure as an assisted living facility (ALF) administrator. Board staff reports that licensed ALF administrators have training and education requirements that are at least as stringent as other qualification paths. Expanding the list of individuals who may work as a director for an adult day care center will likely benefit center owners as it expands the pool of potential applicants for positions and allows owners a greater range of choices. Because owners will not be forced to hire ALF administrators, they will likely only take advantage of their additional choice if they judge that benefits of doing so will outweigh the costs.

Current regulation lists participant rights and responsibilities. The Board now proposes to require that centers prominently post a copy of participant rights and responsibilities in the center and get participants or their legal representatives to read and sign a copy of the participant rights and responsibilities. Centers will likely incur some small time costs for meeting this requirement and will also incur some copying costs. These costs would need to be measured against any benefit that might accrue to center participants on account of greater understanding of, and access to, their regulatory rights and responsibilities. There is insufficient information to ascertain whether benefits that may accrue to participants would outweigh the small costs that centers would incur.

Currently regulation requires that centers that, for whatever reason, intend to discharge a participant, and no longer offer them care, give that participant (or their legal representative) 14 days' notice of the intended discharge. Current regulation also allows that notification period to be waived and a participant to be discharged immediately if a "participant's condition presents an immediate and serious risk to the health, safety or welfare of the participant or others."² The Board now proposes to extend the notification requirement to 30 days. The Board also proposes to revise the language that allows the notification period to be waived to reflect that extension. This change will likely benefit participants who are being discharged for reasons that do not present and immediate and serious risk to anyone's health or safety, and their representatives, as it will give them longer to make alternate arrangements for care. Centers that are discharging participants whose conditions or behaviors do not present an immediate and serious risk, however, will likely be adversely impacted by this change as it will lengthen the time that they have to care for participants when presumably they feel unable or unwilling to provide that care. There is insufficient information to ascertain whether the benefits that would likely accrue to participants outweigh the adverse impact on centers.

The Board proposes to add definitions for chemical restraint³ and physical restraint⁴ and prohibit both in adult day care centers. This change will likely benefit center participants as the regulatory prohibition will help ensure that they are not chemically or physically restrained to their detriment. Adult day care centers may incur some costs for modifying the adult day care environment on account of this proposed change. Board staff reports that any physical barrier to free movement, even such things as recliners if they restrict a participant's ability to get up, can constitute a physical restraint. That being the case, owners of adult day care centers will likely have to reexamine their center's physical environment to ensure that any furniture meant to increase the comfort of participants does not constitute a physical restraint. There is insufficient information to ascertain whether the benefits of this change will outweigh its costs.

Current regulation includes rules for vehicles that are used to transport participants. The Board proposes to add to these rules a requirement that any vehicle used for transport have working heat and air conditioning. This change may benefit participants, who tend to be older and may be in fragile health, by ensuring that they are not exposed to temperature extremes. Owners of adult day care centers who may have vehicles used for transport that do not have working heat or air conditioning will have to pay to get those systems repaired or installed. Such heating and air conditioning repairs can costs as little as $50 or as much as over $4,000.⁵ Alternately, an adult day care center owner could choose to not allow field trips or otherwise provide transportation for participants if he judges the costs of repair too high. There is insufficient information to ascertain whether the benefits of this proposed change would outweigh its costs.

Changes to Training Requirements:

Current regulation requires that new employees of adult day care centers complete 24 hours of staff orientation and initial training that cover specific topics. The Board now proposes to retain the requirement that specific topics be covered in staff orientation and initial training but proposes to remove the hours of training requirement. This change will benefit all adult day care centers as it will give them greater flexibility to accomplish training on the specified topics as efficiently as possible. These centers will likely save costs in staff time if they are able to complete training on required topics in less than 24 hours. No entity is likely to incur costs on account of this proposed change because new staff will still have to be trained on all required topics. Benefits likely outweigh costs for this proposed change.

The Board proposes to newly require that direct care staff complete additional training. This training can take the form of:

1. Certification as a nurse aide issued by the Virginia Board of Nursing (100 hours),

2. Successful completion of Virginia Board of Nursing approved nurse aide education program (100 hours),

3. Successful completion of a personal care aide program that meets EDCD waiver program requirements (40 hours),

4. Successful completion of certain Board approved out-of-state training as a geriatric assistant, home health aide or nurse aide,

5. Successful completion of a 40-hour Assisted Living Facility Direct Care Training curriculum or

6. Successful completion of at least 40 hours of training that covers specified topics listed in the proposed regulation and taught by a licensed health care professional or, if online, accredited by a national association.

Board staff reports that this change is being made at the behest of advisory panel participants from the industry. Board staff further reports that this training is already required for adult day care centers that participate in the EDCD waiver or PACE programs. This means that the 15 adult day care centers that do not participate in those programs would be the only ones affected. Board staff does not have actual enrollment information but does report that impacted centers have a rated participant capacity of between eight and 65 (with 80% having a rated capacity of 45 participants or lower). This means that if these centers only used full time employees at the staff to participant ratios required by regulation, and assuming enrollment matched capacity,⁶ approximately 84 direct care staff would have to undergo at least 40 hours of training. If centers employ part time direct care staff, more staff might need this training than is indicated by full time staff analysis. Additionally, any staff turnover that brings in new direct care staff will necessitate those staff also receiving this training.

Board staff reports that the fee for training option 6 in the list above would be $300. Owners of centers or their employees will incur fee costs as well as time costs for time spent in training. Board staff reports that direct care staff may earn between $7.25 per hour and about $12.50 per hour (depending on experience). Using a rough average of $10 per hour, either owners or employees would incur about $400 in time costs in addition to the $300 fee for training. Other training options would be at least as expensive in time and fee costs and might be much more expensive. These costs will have to be borne by either owners of adult day care centers or by the new employees themselves. For owners, particularly owners of small adult day care centers, these costs will constitute a fairly large burden and may be passed on to participants in the form of higher day care prices. If employees have to pay for training, such training will constitute a considerable disincentive to take employment in an adult day care center when other, similarly low paying, jobs are available and would not require the purchase of training. Absent some showing that current training standards are inadequate to protect the health and safety of center participants, the costs for this proposed change likely outweigh its benefits.

Current regulation requires that at least one direct care staff member trained in cardiopulmonary resuscitation (CPR) and first aid be on premises at all times. The Board now proposes to require all direct care staff be trained in CPR and first aid. To the extent that the current requirement does not allow staff to adequately respond in a timely fashion to participant emergencies, this change may provide a benefit of increased protection of health and safety for center participants. Either center owners or employees who are not currently receiving CPR and first aid training will incur increased costs. Board staff reports that CPR and first aid certification training each cost approximately $50 every three years and that each would require about four hours of staff time. Using a rate of $10 per hour, this means that costs every three years would equal $180 times the number of direct care staff that would newly be required to complete training. Benefits would likely outweigh these costs only if there are incidents where participant health has suffered because there was only one person required to be in the facility that had CPR and first aid training at any given time.

Current regulation requires adult day care center direct care staff to complete eight hours of in-service training per year. The Board does not currently dictate topics for this training but instead requires that it be "relevant to the needs of the population in care." The Board now proposes to require two hours of training in infection control and four hours of training on center participants' mental impairments. The Board also proposes to raise the total number of in-service training hours to 12. Board staff reports that adult day care centers are seeing an increasing number of participants who suffer from age related mental impairments and also report that infection control training is inadequate right now. Given this, training on these topics would likely be beneficial to both center participants and direct care staff who might feel more adequately prepared to meet participant needs. No additional costs are likely to be incurred solely on account of specifying these training topics. Accordingly, benefits likely outweigh costs for those two changes.

The same may not be true, however, for the proposed increase in total in-service hours. Since current training is undirected, training on these two topics could be accomplished within the currently required eight hours of training (which would leave two additional hours for training on topics directed by center owners or directors). Board staff reports that eight hours of training may be inadequate to cover the two proposed topics and general training. Without a showing of other necessary training that would be getting short shrift, however, there may be little benefit to raising total hours of training to 12. The total costs of this change will be mainly time costs but may also include fees if adult day care owners contract with individuals outside of their center to provide specific training. The costs for direct care staff time will be equal the number of extra hours of in-service training required (four) times the wage rate of the employees completing the training (which likely roughly averages about $10 per hour) times the number of direct care staff statewide.⁷ Costs for extra training may also include time costs for other center employees who may provide training. The costs associated with adding additional required training hours will likely exceed any benefit if specified training can be completed in the currently required eight total hours without any loss of staff effectiveness.

Current regulation requires:

1. That adult day care centers have a medication management plan,

2. That staff who will be dispensing medication either successfully complete a medication training program developed by the State Department of Social Services and approved by the Board of Nursing or be licensed in Virginia to administer medication and

3. That staff who dispense medication after successfully completing the program developed by the State Department Social Services complete a three-hour refresher course every three years.

The Board now proposes to require the directors of adult day care centers complete medication management training unless they have medical personnel on staff. Board staff reports that adult day care centers that participate in the EDCD waiver or PACE programs are required to have medical personnel (usually a nurse) on staff so only directors of the 15 centers that do not participate in either of these programs, and do not have medical personnel in their employ separate from any reimbursement requirements, will be required to complete medication management training. Board staff reports that the medication management course consists of 32 hours of training and the fee for the course is $300. Owners of affected adult day care centers, or the directors themselves, will incur training costs that include the $300 fee plus the hourly equivalent of their salary times 32. Board staff reports that directors of adult day care centers likely receive rather low compensation but does not have sufficient information to quantify what the average salary would be. Even without salary information it is likely safe to conclude that time costs for each director will likely be at least several hundred dollars.

The Board also proposes to increase periodic retraining for direct care staff who administer medication from three hours every three years to four hours every year. Board staff reports that the medication administration retraining will cost $50 plus time costs of approximately $40 for each person taking the course. Board staff reports that the increased retraining requirement mimics what is required for registered medication aides. Board staff further reports that medication administration and management are areas where many violations are found during inspections of adult day care centers. To the extent that the additional training that the Board proposes to require decreases the number of times that medications are mishandled or administered incorrectly, center participants are likely to benefit from these changes. However, there is insufficient information to measure those benefits or ascertain whether they would outweigh quantifiable costs.

Current regulation requires that activities of various sorts be planned and that the planning occur under the supervision of the director. Board staff reports that any employee under the supervision of the director can currently plan and manage activities. The Board now proposes to require that activities be managed by a designated staff person who is:

1. A qualified therapeutic recreation specialist or an activities professional,

2. Eligible for certification as therapeutic recreation specialist or activities professional by a recognized accrediting body,

3. A qualified occupational therapist or an occupational therapy assistant or

4. An individual who has one year of full time experience within the last five years in an activities program in an adult care setting.

Board staff reports that this change is being proposed at the behest of advisory panel participants from the industry. This change will limit the flexibility of centers to assign activities planning tasks in the way they best see fit and may additionally cause them to incur costs for obtaining the services of an individual who has one of the listed qualifications (if they do not have such a person employed as direct care staff now). Absent some empirical evidence that current activity planning is deficient in some way that this requirement would address, costs likely outweigh benefits for this proposed change.

Changes to Nutrition Requirements:

Current regulation requires that adult day care centers post menus for snacks and meals and that menus be retained for three months. An exception to this rule is currently allowed for centers that have meals and snacks catered or contract for food services if the contractor refuses to provide menus. The Board proposes to remove this exception. This change will provide a benefit to participants at centers that currently do not post menus as it will allow participants to know which foods will be available to them and plan accordingly (for instance, packing a lunch if they dislike what is being served on any given day). There should be minimal copying costs for contractors attached to this change. There is a possibility, however, that contractors would continue to refuse to provide menus. If this happens, centers may incur additional costs for searching out and hiring a new food service contractor.

The Board also proposes to require that menus be retained for two years. Board staff reports that this change is proposed as part of an effort to harmonize all record retention requirements. Centers may incur some additional storage costs on account of this requirement.

Current regulation requires that centers serve scheduled snacks and meals. The Board now proposes to also require that snacks be available at all times throughout the day and that second servings of meal and snacks be made available at no additional charge to participants. These changes may benefit some center participants who are still hungry after eating meals or snacks but it also might harm some participants who might fill up on additional snacks and then refuse to eat a meal that might provide more balanced nutrition to them. These changes taken together will likely increase food costs for centers and have the potential to more than double those costs. While the Board plans to prohibit centers from charging for additional food beyond the planned meals and snacks, additional food costs will have to be priced into the costs of day care and day care rates are likely to rise. The magnitude of price increases that can be attributed to these changes will likely be dictated by the magnitude of food cost increases that centers experience. Unless current required meals and snacks are leaving participants underfed, costs likely outweigh benefits for these proposed changes.

Finally, the Board proposes to newly require that the religious dietary practices of center participants be "respected and followed" unless the participants and the care provider mutually agree that "the religious dietary practices of the director, staff or licensees" may be imposed. Although Board staff reports that the Board's intention with this change is to ensure that center participants are not forced to eat food that is prohibited by their religion's dietary restrictions, the proposed language as written appears to require that either centers provide food that meets the strictures of any participant's religious dietary restrictions or that participant must agree to have the religious dietary restrictions of the director, staff or licensee imposed on them. As written, this requirement has the potential to increase costs for centers that do not currently consider participants' religions when planning and preparing meals or choosing a food service or caterer. This is particularly true if participants follow religious dietary restrictions that dictate not only what food may be eaten but also how meat animals may be killed, which cuts of meat from those animals may and may not be eaten and how food must be prepared.⁸ On the other hand, participants with religious dietary restrictions who have reached an agreement with the center they attend⁹ that does not involve the center providing food compliant with their religion or them signing an agreement that allows any diet to be imposed on them will also be worse off on account of this proposed change. This change may also make it more difficult for individuals who have religious dietary restrictions to find placements in secular adult day care centers that do not currently supply meals compliant with the individuals' particular religion. As written the costs of this proposed change likely outweigh its benefits.

Considered in total, increased costs that adult day care centers will likely incur on account of all of these proposed changes may affect the profitability of these businesses. Owners of centers that are currently only marginally profitable may choose to close their centers if they judge that their capital and effort can be more profitably spent on other endeavors.

Businesses and Entities Affected. These proposed regulatory changes will affect all adult day care centers licensed by the Board as well as all of their staff and all individuals enrolled in those centers. Board staff reports that there are currently 73 such centers in the Commonwealth. Board staff reports that most centers likely qualify as small businesses.

Localities Particularly Affected. No localities are likely to be particularly affected by these proposed regulatory changes.

Projected Impact on Employment. Increased training requirements in this proposed regulation may marginally increase employment for trainers. Proposed requirements for specific certification or experience for designated activities staff will likely allow individuals with specified certifications or experience a competitive advantage over other candidates for employment at adult day care centers. These proposed requirements are unlikely to increase total employment at adult day care centers, however. 

Effects on the Use and Value of Private Property. These proposed regulatory changes are unlikely to affect the use or value of private property in the Commonwealth.

Real Estate Development Costs. These proposed regulatory changes are unlikely to affect real estate development costs in the Commonwealth.

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. Small business adult day care centers will likely incur increased food costs on account of these proposed changes. Centers, or their employees, will incur increased costs for various types of training. Several training costs will fall disproportionately on centers that do not participate in the EDCD waiver or PACE programs or on their employees.

Alternative Method that Minimizes Adverse Impact. The adverse impacts of this proposed regulation may be further minimized if increased training and credential requirements that are not specifically addressing identified deficiencies are eliminated. Allowing greater flexibility for providers and participants to mutually agree on provision of food in participant agreements may lower costs and minimize adverse impacts for all parties. For instance, a provider and participant could agree that the participant will bring food that meets religious dietary requirements from home, that the provider will plan on not providing food for that participant and that the provider will decrease day care fees to account for the decreased care costs for that participant.

Adverse Impacts:

Businesses. Adult day care centers will likely incur increased food costs on account of these proposed changes. Centers, or their employees, will incur increased costs for various types of training. Several training costs will fall disproportionately on centers that do not participate in the EDCD waiver or PACE programs or on their employees.

Localities. Localities in the Commonwealth are unlikely to see any adverse impacts on account of these proposed regulatory changes.

Other Entities. No other entities are likely to be adversely affected by these proposed changes.

_______________________________

¹ Both syrup of ipecac and activated charcoal are used to counteract poisoning.

² This waiver language is in 22 VAC 40-60-660 (C) in the regulation to be repealed and in 22 VAC 40-61-270 (E) in the new regulation.

³ Chemical restraint is defined as a psychopharmacologic drug that is used for discipline or convenience and not required to treat the participant's medical symptoms or symptoms from mental illness or intellectual disability and that prohibits an individual from reaching his highest level of functioning.

⁴ Physical restraint is defined as any manual method or physical or mechanical device, material, or equipment attached or adjacent to the participant's body that the participant cannot remove easily, which restricts freedom of movement or access to his body.

⁵ Cost estimates obtained from http://cars.costhelper.com/car-air-conditioning.html and http://www.autotrader.com/car-news/common-problems-and-typical-repair-costs-33197

⁶ Enrollment may be lower than capacity at some affected centers.

⁷ Board staff does not know how many people are employed statewide as adult day care center direct care staff but does report that, as of October 7, 2016, all adult day care centers statewide had a combined rated participant capacity of 3,991. Using the direct care staff to participant ratio of one to six, there would be slightly over 665 full time equivalent (FTE) direct care staff if enrollment was equal to capacity. In reality enrollment is unlikely to be as high as capacity. If enrollment number are below capacity, fewer than 665 FTE direct care staff would be affected. To the extent that centers have part time direct care staff, a greater number of individuals may be subject to the increased training requirement than the number of FTEs would indicate.

⁸ See http://www.jewfaq.org/kashrut.htm for rules for kosher dietary practices. See https://en.wikipedia.org/wiki/Halal for rules for observant Muslim dietary practices.  See https://en.wikipedia.org/wiki/Diet_in_Hinduism for an explanation of various Hindu dietary restrictions.

⁹ If these participants are bringing meals and snacks from home that comply with their religious dietary restrictions, for instance.

Agency's Response to Economic Impact Analysis:

The Department of Social Services reviewed the economic impact analysis prepared by the Department of Planning and Budget. The agency does not completely concur with the analysis and provides the following comments:

1. Training for direct care staff and medication administration training. The use of the term "additional" in relation to direct care staff training and medication aide annual training can be misinterpreted. The direct care staff training is a new training requirement and the medication aide training is an enhancement of a current training requirement.

2. Participant rights and responsibilities. Currently, adult day care centers (ADCC) providers are not required to inform participants that they have rights and responsibilities as a care recipient. This requirement will allow participants and families to know that they are guaranteed certain, specific protections while they are in care. The cost for printing the rights and responsibilities is minimal, as it should only require one piece of paper front and back. From a practice perspective, the protection afforded the participant and his family outweighs the cost of the printing.

3. Discharge of participants. The increase of the discharge notification period from 14 days to 30 days will not adversely impact the centers by forcing them to care for individuals that "they feel unable or unwilling to provide that care." 22VAC40-61-270 E allows the provider the ability to forgo the 30-day requirement if the participant's condition presents an immediate and serious risk to the health, safety or welfare of the participant or others. In nonemergency situations, this increase in time allows for better planning and service accessibility for the participant/family. Additionally, it protects the participant from being "dumped" from care without an appropriate plan in place. If alternate care is secured and all parties are in agreement, the discharge can take place prior to the 30th day.

4. Restraints. This standard prohibits any use of chemical or physical restraint and thereby requires the provider to address the care needs of each participant and to determine if anything within the center environment poses a restriction to the freedom of movement to an individual.  It is not requiring that major changes be made to the center furniture; rather, the provider needs to address the care needs of participants and determine if something presents a physical restraint to an individual participant. For example, if an individual is able to sit in a recliner and get up from the recliner on his own, then the recliner does not present as a physical restraint. However, if the individual cannot get up from the recliner on his own, then the recliner becomes a physical restraint for that individual. The provider would not need to remove all their recliners and replace them with other furniture, they would simply need to ensure that this individual is seated someplace other than the recliner. Prohibiting chemical and physical restraints is a protection for the participant and is part of their participant's rights.

5. Direct care staff qualifications. This standard is attempting to close a care provision gap that is paramount to the protection and safety of the participants in care. Adult day care exists as an alternative to nursing home placement, with a majority of participants meeting nursing home placement criteria. The nursing home requirement for direct care staff is a CNA level trained individual. Currently, in an adult day care center, an individual with no training in providing assistance with care needs to elderly or disabled individuals can be employed as direct care staff. This means that individuals in some ADCCs who meet nursing home level of care are being cared for by staff who are not required to have any training. By not requiring all ADCCs to meet the same training requirement, we are, in effect, allowing some centers to operate at a lower standard than others, regardless if it is a DSS requirement or a DMAS requirement.

6. Staff training. The increase in training hours allows for the fulfillment (in part) of the required topics of training (two-infection control; four-cognitive impairment). Without this minimal increase, staff may be limited to only completing the same required six hours of training every year, with little opportunity to access other training that could vary significantly in topics related to care provision. This would limit staff in expanding their care knowledge base.

7. Activities. One of the main purposes of attending adult day care is to provide activity stimulation throughout the day. The standard does not limit who can fulfill this requirement, but instead, serves to increase the appropriateness and conduct of activities for the center. It also allows for a dedicated staff person to plan, design and implement activities and gives credibility to that individual's knowledge base.

8. Menu and nutrition requirements. In regards to allowing seconds, the standard is not requiring providers to create meals (either by cooking or catered/contracted meal service) that would serve two portions to every individual. However, if there is extra food and an individual requests seconds, the provider should allow the second portion. The same goes for snacks: the standard is not requiring an open snack bar, to be accessed whenever and however a participant chooses. Staff is responsible for monitoring dietary intake and practices of the participants. If a participant is consistently accessing snacks and then not eating his lunch or gaining significant weight, this would be addressed on the care plan and with that participant.

9. Observance of religious dietary practices. This standard is stating that a provider cannot violate a participant's religious dietary practices by forcing them to consume food that they otherwise would not eat. This standard is not intended to address anything past that (such as how meals are prepared, the manner in which animals are killed, or the parts of the animals being consumed). If this is an issue between the center and the participant, it will need to be addressed and an agreement made between the two parties. This standard is about choice. For example, if an individual does not eat pork, and that is on the menu, the center cannot force the individual to eat the pork. The center can choose to provide an alternate meal, the participant can choose to bring their lunch, the participant can choose not to attend that day, the participant can choose not to attend the center altogether, or the center can choose not to accept the participant. If necessary, technical assistance can be provided to adult day care centers to assist in meeting the intent of the standard.

Summary:

The proposed regulatory action repeals the existing Standards and Regulations for Licensed Adult Day Care Centers (22VAC40-60) and replaces it with a new regulation, Standards and Regulations for Licensed Adult Day Care Centers (22VAC40-61). The proposed new regulation updates standards to (i) reflect changed practices and procedures, (ii) reflect current federal and state law and regulation, and (iii) improve the organization of the regulation and increase clarity and consistency.

CHAPTER 61
STANDARDS AND REGULATIONS FOR LICENSED ADULT DAY CARE CENTERS

Part I
General Provisions

22VAC40-61-10. Definitions.

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

"Activities of daily living" or "ADLs" means bathing, dressing, toileting, transferring, bowel control, bladder control, eating, and feeding. A person's degree of independence in performing these activities is a part of determining required care needs and necessary services.

"Administer medication" means to open a container of medicine or to remove the ordered dosage and to give it to the participant for whom it is ordered in such a manner as is ordered or is appropriate.

"Adult" means any person 18 years of age or older.

"Adult day care center" or "center" means any facility that is either operated for profit or that desires licensure and that provides supplementary care and protection during only a part of the day to four or more aged, infirm, or disabled adults who reside elsewhere, except (i) a facility or portion of a facility licensed by the State Board of Health or the Department of Behavioral Health and Developmental Services and (ii) the home or residence of an individual who cares for only persons related to him by blood or marriage. Included in this definition are any two or more places, establishments, or institutions owned, operated, or controlled by a single entity and providing such supplementary care and protection to a combined total of four or more aged, infirm, or disabled adults.

"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 is diagnosed as suffering from a terminal condition and in accordance with the provisions of § 54.1-2983 of the Code of Virginia.

"Ambulatory" means the condition of a participant who is physically and mentally capable of self-preservation by evacuating in response to an emergency to a refuge area as described in 13VAC5-63, the Virginia Uniform Statewide Building Code, without the assistance of another person, or from the structure itself without the assistance of another person if there is no such refuge area within the structure, even if such participant may require the assistance of a wheelchair, walker, cane, prosthetic device, or a single verbal command to evacuate.

"Business entity" means an individual or sole proprietor, association, partnership, limited liability company, business trust, corporation, public agency, or religious organization.

"Chapter" or "this chapter" means these regulations, that is, Standards and Regulations for Licensed Adult Day Care Centers, 22VAC40-61, unless noted otherwise.

"Chemical restraint" means a psychopharmacologic drug that is used for discipline or convenience and not required to treat the participant's medical symptoms or symptoms from mental illness or intellectual disability and that prohibits an individual from reaching his highest level of functioning.

"Communicable disease" means an illness that spreads from one person to another or from an animal to a person.

"CPR" means cardiopulmonary resuscitation.

"Department" means the Virginia Department of Social Services.

"Dietary supplement" means a product intended for ingestion that supplements the diet, is labeled as a dietary supplement, is not represented as a sole item of a meal or diet, and contains a dietary ingredient, for example, vitamins, minerals, amino acid, herbs or other botanicals, dietary substances (such as enzymes), and concentrates, metabolites, constituents, extracts, or combinations of the preceding types of ingredients. "Dietary supplements" may be found in many forms, such as tablets, capsules, liquids, or bars.

"Direct care staff" means supervisors, assistants, aides, or other staff of a center who assist participants in the performance of personal care or ADLs.

"Director" means the qualified person who has been delegated responsibility for the programmatic and administrative functions of the adult day care center.

"Electronic record" means a record created, generated, sent, communicated, received, or stored by electronic means.

"Electronic signature" means an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.

"Good character and reputation" means findings have been established that the individual (i) maintains business or professional and community relationships that are characterized by honesty, fairness, truthfulness, and dependability and (ii) has a history or pattern of behavior that demonstrates the individual is suitable and able to administer a program for the care, supervision, and protection of adults.

"Legal representative" means a person legally responsible for representing or standing in the place of the participant for the conduct of his affairs. "Legal representative" 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 participant as his agent 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 participant for the function or functions for which he has legal authority to act. A participant is presumed competent and is responsible for making all health care, personal care, financial, and other personal decisions that affect his life unless a representative with legal authority has been appointed by a court of competent jurisdiction or has been appointed by the participant in a properly executed and signed document. A participant may have different legal representatives for different functions. For any given standard, the term "legal representative" applies solely to the legal representative with the authority to act in regard to the function or functions relevant to that particular standard.

"Licensed health care professional" means any health care professional currently licensed by the Commonwealth of Virginia to practice within the scope of his profession, such as a nurse practitioner, registered nurse, licensed practical nurse (nurses may be licensed or hold multistate licensure pursuant to § 54.1-3000 of the Code of Virginia), clinical social worker, dentist, occupational therapist, pharmacist, physical therapist, physician, physician assistant, psychologist, and speech-language pathologist. Responsibilities of physicians referenced in this chapter may be implemented by nurse practitioners or physician assistants in accordance with their protocols or practice agreements with their supervising physicians and in accordance with the law.

"Licensee" means the business entity to whom a license is issued and who is legally responsible for compliance with the laws and regulations related to the center. A license may not be issued in the name of more than one business entity.

"Mandated reporter" means a person specified in § 63.2-1606 of the Code of Virginia who is required to report matters giving reason to suspect abuse, neglect, or exploitation of an adult.

"Mental impairment" means a disability characterized by the display of an intellectual defect, as manifested by diminished cognitive, interpersonal, social, and vocational effectiveness.

"Nonambulatory" means the condition of a participant who by reason of physical or mental impairment is not capable of self-preservation without the assistance of another person.

"Participant" means an adult who takes part in the program of care and receives services from the center.

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

"Physician" means an individual licensed to practice medicine or osteopathic medicine in any of the 50 states or the District of Columbia.

"Qualified" means 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.

"Significant change" means a change in a participant's condition that is expected to last longer than 30 days. "Significant change" does not include short-term changes that resolve with or without intervention, a short-term acute illness or episodic event, or a well-established, predictive, cyclic pattern of clinical signs and symptoms associated with a previously diagnosed condition where an appropriate course of treatment is in progress.

"Staff" or "staff person" means personnel working at a center who are compensated or have a financial interest in the center, regardless of role, service, age, function, or duration of employment at the center. "Staff" or "staff person" also includes those individuals hired through a contract with the center to provide services for the center.

"Standard precautions" means a set of basic infection prevention practices intended to prevent transmission of infectious diseases from one person to another. These practices are applied to every person at every contact to assure that transmission of disease does not occur.

"Volunteer" means a person who works at the center who is not compensated. "Volunteer" does not include a person who, either as an individual or as part of an organization, is only present at or facilitates group activities on an occasional basis or for special events. 

22VAC40-61-20. Requirements of law and applicability.

A. Chapter 17 (§ 63.2-1700 et seq.) of Title 63.2 of the Code of Virginia includes requirements of law relating to licensure, including licensure of adult day care centers.

B. This chapter applies to adult day care centers as defined in § 63.2-100 of the Code of Virginia and in 22VAC40-61-10.

C. All programs, processes, plans, policies, or procedures required by this chapter must be in writing and must be implemented.

22VAC40-61-30. Program of care.

There shall be a program of care that:

1. Meets the participants' physical, intellectual, emotional, psychological, and spiritual needs;

2. Promotes the participants' highest level of functioning;

3. Provides protection, guidance, and supervision;

4. Promotes a sense of security, self-worth, and independence;

5. Promotes the participants' involvement with activities and services; and

6. Reduces risk in the caregiving environment.

22VAC40-61-40. Quality assurance.

At least annually, the center shall conduct an internal evaluation of its operation and services. A written report of the evaluation shall be kept on file and shall include:

1. Involvement of the licensee, program director, staff, participants, family members, legal representative, center's advisory body, if any, and other relevant agencies or organizations.

2. Review of the extent to which the program assisted participants and their families or legal representatives.

3. Measurement of the achievement of the program of care as described in 22VAC40-61-30.

4. Outcome measures as designed by the center, which may include client satisfaction and caregiver surveys.

5. Assessment of the relationship of the program to the rest of the community service network.

6. Recommendations for improvement, corrective action of problem areas, and future program directions.

22VAC40-61-50. Participant rights and responsibilities.

A. All participants shall be guaranteed the following:

1. The right to be treated as an adult, with consideration, respect, and dignity, including privacy in treatment and care of personal needs.

2. The right to participate in a program of services and activities designed to interest and engage the participant and encourage independence, learning, growth, awareness, and joy in life.

3. The right to self-determination within the center setting, including the opportunity to:

a. Participate in developing or changing one's plan of care;

b. Decide whether or not to participate in any given activity;

c. Be involved to the extent possible in program planning and operation;

d. Refuse treatment and be informed of the consequences of such refusal; and

e. End participation at the center at any time.

4. The right to a thorough initial assessment, development of an individualized participant plan of care, and a determination of the required care needs and necessary services.

5. The right to be cared for in an atmosphere of sincere interest and concern in which needed support and services are provided.

6. The right to a safe, secure, and clean environment.

7. The right to receive nourishment and assistance with meals as necessary to maximize functional abilities and quality and enjoyment of life.

8. The right to confidentiality and the guarantee that no personal or medical information or photographs will be released to persons not authorized under law to receive it without the participant's written consent.

9. The right to voice or file grievances about care or treatment and to make recommendations for changes in the policies and services of the center, without coercion, discrimination, threats, or reprisal for having voiced or filed such grievances or recommendations.

10. The right to be fully informed, as documented by the participant's written acknowledgment, of all participant rights and responsibilities and of all rules and regulations regarding participant conduct and responsibilities.

11. The right to be free from harm or fear of harm, including physical or chemical restraint, isolation, excessive medication, and abuse or neglect.

12. The right to be fully informed, at the time of acceptance into the program, of services and activities available and related charges.

13. The right to communicate with others and be understood by them to the extent of the participant's capability.

B. The rights of participants shall be printed in at least 14-point type and posted conspicuously in a public place in the center.

C. The center shall make its policies and procedures available and accessible to participants, relatives, agencies, and the general public.

D. Each center shall post the name and telephone number of the appropriate regional licensing administrator of the department; the Adult Protective Services toll-free telephone number; the toll-free telephone number of the Virginia Long-Term Care Ombudsman Program and any local ombudsman program servicing the area; and the toll-free telephone number of the disAbility Law Center of Virginia.

E. The rights and responsibilities of participants shall be reviewed annually with each participant, or, if a participant is unable to fully understand and exercise his rights and responsibilities, the annual review shall include his family member or his legal representative. Evidence of this review shall include the date of the review and the signature of the participant, family member, or legal representative and shall be included in the participant's file.

F. A participant shall be assumed capable of understanding and exercising these rights and responsibilities unless a physician determines otherwise and documentation is contained in the participant's record.

Part II
Administration

22VAC40-61-60. Requirements for licensee.

A. The licensee shall ensure compliance with all regulations for licensed adult day care centers and terms of the license issued by the department; with relevant federal, state, or local laws; with other relevant regulations; and with the center's own policies and procedures.

B. The licensee shall:

1. Be of good character and reputation;

2. Protect the physical and mental well-being of the participants;

3. Keep such records and make such reports as required by this chapter for licensed adult day care centers. Such records and reports may be inspected by the department's representative at any reasonable time in order to determine compliance with this chapter;

4. Meet the qualifications of the director if he assumes those duties;

5. Act in accordance with General Procedures and Information for Licensure (22VAC40-80);

6. Ensure that the current license is posted in the center in a place conspicuous to the participants and the public; and

7. Be responsible for the overall planning of the program and services to be provided by the center, including the following:

a. Develop and keep current a statement of the purpose and scope of the services to be provided by the center, a description of adults who may be accepted into the program as well as those whom the program cannot serve, and policies and procedures under which the center will operate.

b. Appoint and identify in writing a qualified director to be responsible for the day-to-day operation and management of the center. When the business entity is an individual who serves as the director, this shall also be noted in writing.

c. Provide an adequate number of qualified staff capable of carrying out the operation of the program and to develop a staffing plan that includes a staffing schedule.

d. Develop policies and procedures for the selection and supervision of volunteers.

e. Develop a written organizational chart indicating chain of command.

f. Make certain that when it is time to discard records, the records are disposed of in a manner that ensures confidentiality.

22VAC40-61-70. Liability insurance.

The center shall maintain public liability insurance for bodily injury with a minimum limit of at least $1 million for each occurrence or $1 million aggregate. Evidence of insurance coverage shall be made available to the department's representative upon request.

22VAC40-61-80. Electronic records and signatures.

A. Use of electronic records or signatures shall comply with the provisions of the Uniform Electronic Transactions Act (§ 59.1-479 et seq. of the Code of Virginia).

B. In addition to the requirements of the Uniform Electronic Transactions Act, the use of electronic signatures shall be deemed to constitute a signature and have the same effect as a written signature on a document as long as the licensee:

1. Develops and maintains specific policies and procedures for the use of electronic signatures;

2. Ensures that each electronic signature identifies the individual signing the document by name and title;

3. Ensures that the document cannot be altered after the signature has been affixed;

4. Ensures that access to the code or key sequence is limited;

5. Ensures that all users have signed statements that they alone have access to and use the key or computer password for their signature and will not share their key or password with others; and

6. Ensures that strong and substantial evidence exists that would make it difficult for the signer or the receiving party to claim the electronic representation is not valid.

C. A back-up and security system shall be utilized for all electronic documents. 

22VAC40-61-90. Incident reports.

A. Each center shall report to the regional licensing office within 24 hours of the occurrence of any major incident that has negatively affected or that threatens the life, health, safety, or welfare of any participant.

B. The report required in subsection A of this section shall include (i) the name of the center, (ii) the name of the participant or participants involved in the incident, (iii) the name of the person making the report, (iv) the date of the incident, (v) a description of the incident, and (vi) the actions taken in response to the incident.

C. The center shall submit a written report of each incident specified in subsection A of this section to the regional licensing office within seven days from the date of the incident. The report shall be signed and dated by the director or his designee and include the following information:

1. Name and address of the center;

2. Name of the participant or participants involved in the incident;

3. Date and time of the incident;

4. Description of the incident, the circumstances under which it happened, and when applicable, extent of injury or damage;

5. Location of the incident;

6. Actions taken in response to the incident;

7. The outcome of the incident;

8. Actions to prevent recurrence of the incident if applicable;

9. Name of staff person in charge at the time of the incident;

10. Names, telephone numbers, and addresses of witnesses to the incident if any; and

11. Name, title, and signature of the person making the report, if other than the director or his designee.

D. The center shall submit to the regional licensing office amendments to the written report when circumstances require, such as when substantial additional actions are taken, when significant new information becomes available, or when there is resolution of the incident after the submission of the report.

E. A copy of the written report of each incident shall be maintained by the center for at least two years.

F. All reports, such as but not limited to, adult protective services, medical, or police, shall be maintained in the participant's record. 

Part III
Personnel

22VAC40-61-100. General qualifications.

All staff members shall:

1. Be of good character and reputation;

2. Be competent, qualified, and capable of carrying out assigned responsibilities;

3. Be considerate, understanding, and respectful of the rights, dignity, and sensitivities of persons who are aged, infirm, and disabled;

4. Be clean and well groomed;

5. Be able to speak, read, understand, and write in English as necessary to carry out their job responsibilities;

6. Be able to understand and apply the standards in this chapter as they relate to their respective responsibilities; and

7. Meet the requirements specified in the Regulation for Background Checks for Assisted Living Facilities and Adult Day Care Centers (22VAC40-90). 

22VAC40-61-110. Staff orientation and initial training.

A. Prior to working directly with participants, all staff shall receive training in:

1. Participant rights and responsibilities;

2. Their individual responsibilities in the event of fire, including the location and operation of any fire extinguishers, fire alarm boxes, and approved exits;

3. Their individual responsibilities in the event of illness or injuries, including the location and use of the first aid kit and emergency supplies;

4. Their individual responsibilities in the event of emergencies, such as a lost or missing participant, severe weather, and loss of utilities;

5. Infection control;

6. Requirements and procedures for detecting and reporting suspected abuse, neglect, or exploitation of participants and for the mandated reporters, the consequences for failing to make a required report (§ 63.2-1606 of the Code of Virginia); and

7. Confidential treatment of personal information about participants and their families.

B. Staff who work with participants shall receive training in the following areas or topics no later than three weeks after their starting date of employment; part-time staff shall receive the training no later than six weeks after their starting date of employment. The areas or topics to be covered in the staff training shall include:

1. The purpose and goals of the adult day care center;

2. The policies and procedures of the center as they relate to the staff member's responsibilities;

3. Required compliance with regulations for adult day care centers as it relates to their duties and responsibilities;

4. The physical, emotional, and cognitive needs of the center's population;

5. The current participants' strengths and preferences, their individualized plans of care, and their service needs and supports;

6. The schedule of activities;

7. Behavioral interventions, behavior acceptance and accommodation, and behavior management techniques;

8. Interdisciplinary team approach;

9. Implementation of advance directives and Do Not Resuscitate Orders;

10. Risk management; and

11. The needs of participants' family members or caregivers.

C. A supervisor or designated trained staff shall be on the premises and closely oversee the individual's work with participants until training required in subsection B of this section is complete. 

22VAC40-61-120. Reports of abuse, neglect, and exploitation.

A. All staff who are mandated reporters under § 63.2-1606 of the Code of Virginia shall report suspected abuse, neglect, or exploitation of participants in accordance with that section.

B. The center shall notify the participant's contact person or legal representative when a report is made as referenced in subsection A of this section, without identifying any confidential information.

22VAC40-61-130. Director.

A. The director, or a designated assistant director who meets the qualifications of the director, shall be responsible for the center's program and day-to-day operations of the center and shall be present at least 51% of the center's weekly hours of operation. The responsibilities of the director shall include the following areas:

1. The content of the program offered to the participants in care.

2. Programmatic functions, including orientation, training, and scheduling of all staff.

3. Management of the supervision provided to all staff.

4. Assignment of a sufficient number of qualified staff to meet the participants' needs for:

a. Adequate nutrition;

b. Health supervision and maintenance;

c. Personal care;

d. Socialization, recreation, activities, and stimulation; and

e. Supervision, safety, and protection.

5. The duties and responsibilities required by this chapter.

B. The director shall meet the following qualifications:

1. Be at least 21 years of age.

2. Have completed, at a minimum, a bachelor's degree from an accredited college or university and two years of experience working with older adults or persons with disabilities. This may be paid full-time employment or its equivalent in part-time employment, volunteer work, or internship. The following qualifications are also acceptable for the director:

a. Current licensure as a nursing home administrator or assisted living facility administrator from the Board of Long-Term Care Administrators; or

b. Current licensure in Virginia as a registered nurse. The requirement for two years of experience working with older adults or persons with disabilities also must be met.

Exception: Any person continuously employed in an adult day care center licensed prior to July 1, 2000, as either a director or assistant director shall have completed at least 48 semester hours or 72 quarter hours of postsecondary education from an accredited college or institution and shall have completed at least two years experience working with older adults or persons with disabilities. This may be paid full-time employment or its equivalent in part-time employment or in volunteer work.

3. The director shall demonstrate knowledge, skills, and abilities in the administration and management of the adult day care program including (i) knowledge and understanding of the population being served by the center, (ii) supervisory and interpersonal skills, (iii) ability to plan and implement the program, and (iv) knowledge of financial management sufficient to ensure program development and continuity.

C. The director shall complete 24 hours of continuing education training annually to maintain and develop skills. At least two of the required hours of training shall focus on infection control and prevention. When adults with mental impairments participate at the center, at least four of the required hours shall focus on topics related to participants' mental impairments. This training shall be in addition to first aid, CPR, orientation, or initial or refresher medication aide training. Documentation of attendance shall be retained at the center and shall include type of training, name of the entity that provided the training, and date and number of hours of training.

22VAC40-61-140. Direct care staff qualifications.

A. All staff persons who work directly with participants and who are counted in the staff-to-participant ratio shall be at least 18 years of age unless certified in Virginia as a nurse aide.

B. Direct care staff shall meet one of the requirements in this subsection. If the staff does not meet the requirement at the time of employment, he shall successfully meet one of the requirements in this subsection within two months of employment. Licensed health care professionals practicing within the scope of their profession are not required to complete the training in this subsection.

1. Certification as a nurse aide issued by the Virginia Board of Nursing.

2. Successful completion of a Virginia Board of Nursing-approved nurse aide education program.

3. Successful completion of a personal care aide training program that meets the requirements of the Elderly or Disabled with Consumer Direction Waiver program for adult day health care as required by the Department of Medical Assistance Services.

4. Successful completion of an educational program for geriatric assistant or home health aide or for nurse aide that is not covered under subdivision 2 of this subsection. The program shall be provided by a hospital, nursing facility, or educational institution and may include out-of-state training. The program must be approved by the department. To obtain department approval:

a. The center shall provide to the department's representative an outline of course content, dates and hours of instruction received, the name of the entity that provided the training, and other pertinent information.

b. The department will make a determination based on the information in subdivision 4 a of this subsection and provide written confirmation to the center when the educational program meets department requirements.

5. Successful completion of the department-approved 40-hour Assisted Living Facility Direct Care Staff Training curriculum.

6. Successful completion of at least 40 hours of training as taught by a licensed health care professional or, if online training is accessed, accredited by a national association. Topics for this training shall include the following:

a. Participant rights;

b. Physical, biological, and psychological aspects of aging;

c. Health care needs such as hypertension, arthritis, diabetes, heart disease, osteoporosis, stroke, incontinence, skin care, etc.;

d. Functional needs, limitations, and disabilities including sensory, physical, and developmental disabilities; mental illness; substance abuse; and aggressive behavior;

e. Dementia and other cognitive impairment;

f. Assistance with activities of daily living;

g. Body mechanics, ambulation, and transfer;

h. Infection control;

i. Meals and nutrition;

j. Activities; and

k. Safety and accident prevention.

C. The center shall obtain a copy of the certificate issued or other documentation indicating that the person has met one of the requirements of subsection B of this section, which shall be part of the staff member's record in accordance with 22VAC40-61-180.

D. All direct care staff who do not meet one of the requirements in subsection B of this section on the date that this chapter becomes effective shall do so within one year after the effective date of this chapter. 

22VAC40-61-150. Staff training.

A. Staff who provide direct care to participants shall attend at least 12 hours of training annually.

B. The training shall be relevant to the population in care and shall be provided by a qualified individual through in-service training programs or institutes, workshops, classes, or conferences.

C. At least two of the required hours of training shall focus on infection control and prevention. When adults with mental impairments participate at the center, at least four of the required hours shall focus on topics related to participants' mental impairments.

D. Documentation of the type of training received, the entity that provided the training, number of hours of training, and dates of the training shall be kept by the center in a manner that allows for identification by individual staff person and is considered part of the staff member's record.

E. The required hours of training shall be in addition to first aid, CPR, orientation, or initial or refresher medication aide training.

22VAC40-61-160. First aid and CPR certification.

A. First aid.

1. Each direct care staff member who does not have current certification in first aid as specified in subdivision 2 of this subsection shall receive certification in first aid within 60 days of employment from the American Red Cross, American Heart Association, National Safety Council, American Safety and Health Institute, community college, hospital, volunteer rescue squad, or fire department. The certification must either be in adult first aid or include adult first aid.

2. Each direct care staff member shall maintain current certification in first aid from an organization listed in subdivision 1 of this subsection. To be considered current, first aid certification from community colleges, hospitals, volunteer rescue squads, or fire departments shall have been issued within the past three years. The certification must either be in adult first aid or include adult first aid.

3. A direct care staff member who is a registered nurse or licensed practical nurse does not have to meet the requirements of subdivisions 1 and 2 of this subsection. With current certification, an emergency medical technician, first responder, or paramedic does not have to meet the requirements of subdivisions 1 and 2 of this subsection.

4. There shall be at least one staff person on the premises at all times who has current certification in first aid that meets the specifications of this section, unless the center has an on-duty registered nurse or licensed practical nurse.

B. Cardiopulmonary resuscitation.

1. Each direct care staff member who does not have current certification in CPR as specified in subdivision 2 of this subsection shall receive certification in CPR within 60 days of employment from the American Red Cross, American Heart Association, National Safety Council, American Safety and Health Institute, community college, hospital, volunteer rescue squad, or fire department. The certification must either be in adult CPR or include adult CPR.

2. Each direct care staff member shall maintain current certification in CPR from an organization listed in subdivision 1 of this subsection. To be considered current, CPR certification from community colleges, hospitals, volunteer rescue squads, or fire departments shall have been issued within the past two years. The certification must either be in adult CPR or include adult CPR.

3. There shall be at least one staff person on the premises at all times who has current certification in CPR that meets the specifications of this section.

C. A staff person with current certification in first aid and CPR shall be present for the duration of center-sponsored activities off the center premises.

22VAC40-61-170. Volunteers.

A. Individuals who volunteer at the center shall:

1. Have qualifications appropriate to the services they render; and

2. Be subject to laws and regulations governing confidential treatment of personal information.

B. No volunteer shall be permitted to serve in an adult day care center without the permission or unless under the supervision of a person who has received a criminal record clearance pursuant to § 63.2-1720 of the Code of Virginia.

C. Duties and responsibilities of all volunteers shall be clearly defined in writing.

D. At least one staff member shall be assigned responsibility for overall selection, supervision, and orientation of volunteers.

E. All volunteers shall be under the supervision of a designated staff person when participants are present.

F. Prior to beginning volunteer service, all volunteers shall attend an orientation including information on their duties and responsibilities, participant rights, confidentiality, emergency procedures, infection control, the name of their supervisor, and reporting requirements. All volunteers shall sign and date a statement that they have received and understood this information.

G. Volunteers may be counted in the staff-to-participant ratio if both of the following criteria are met:

1. These volunteers meet the qualifications and training requirements for staff; and

2. For each volunteer, there shall be at least one staff also counted in the staff-to-participant ratio.

22VAC40-61-180. Staff records and health requirements.

A. A record shall be established for each staff member and shall be kept in a locked cabinet or area, or secured electronically, and retained at the center for currently employed staff and for two years after termination of employment, unless otherwise required by other state or federal regulations.

B. All staff records shall be kept confidential.

C. Records shall be updated and kept current as changes occur.

D. Personal and social data to be maintained on staff are as follows:

1. Name;

2. Birth date;

3. Current address and telephone number;

4. Position title and date employed;

5. Last previous employment;

6. An original criminal record report and a sworn disclosure statement;

7. Previous experience or training or both;

8. Documentation of qualifications for employment related to the staff person's position, including any specified relevant information;

9. Verification of current professional license, certification, registration, or completion of a required approved training course;

10. Name and telephone number of a person to contact in an emergency;

11. Documentation of attendance of formal training received after employment, including title of course, location, date, number of contact hours, and name of the entity that provided the training; and

12. Date of termination of employment.

E. The following required health information shall be maintained at the center and be included in the staff record for each staff member and each volunteer who comes in contact with participants.

1. Initial tuberculosis (TB) examination and report.

a. Each staff person shall obtain an evaluation by a qualified licensed practitioner that completes an assessment for tuberculosis in a communicable form no earlier than 30 days before or no later than seven days after employment or contact with participants.

b. The tuberculosis evaluation shall be consistent with the TB risk assessment as published by the Virginia Department of Health, with additional testing, singly or in combination, as deemed necessary.

c. Documentation of this evaluation shall include all pertinent information contained on the "Report of Tuberculosis Screening" form recommended by the Virginia Department of Health. This documentation shall be maintained at the facility.

d. An evaluation shall not be required for an individual who (i) has separated from employment with a facility or center licensed or certified by the Commonwealth of Virginia, (ii) has had a break in service of six months or less, and (iii) submits the original statement of tuberculosis screening to the new employer.

2. Subsequent evaluations for tuberculosis.

a. All staff shall be screened annually in accordance with subsection 1 of this section, with the exception that annual chest x-rays are not required in the absence of symptoms for those with prior positive test results for TB infection (tuberculin skin test or interferon gamma release assay blood test).

b. Any staff person who develops chronic respiratory symptoms of three weeks duration shall be evaluated immediately for the presence of infectious tuberculosis. Any staff suspected of having infectious tuberculosis shall not be allowed to return to work or have any contact with the participants and staff of the center until a physician has determined that the staff person is free of infectious tuberculosis.

c. Any staff person who comes in contact with a known case of infectious tuberculosis shall be screened as determined appropriate based on consultation with the local health department.

3. The center shall report any active case of tuberculosis developed by a staff member to the local health department. 

Part IV
Supervision

22VAC40-61-190. General supervision.

A. During the center's hours of operation, one staff person on the premises shall be in charge of the administration of the center. This person shall be either the director or a staff member appointed by the licensee or designated by the director. This person may not be a volunteer.

B. At least two staff persons shall be on duty at the center and on field trips at all times when one or more participants are present. The use of volunteers as staff shall be in accordance with 22VAC40-61-170 G.

C. The center shall maintain a daily participant attendance log, documenting the name of the participant and his arrival and departure time.

22VAC40-61-200. Staff-to-participant ratio.

A. There shall be at least one staff person on duty providing direct care and supervision for every six participants in care, or portion thereof, whether at the center or on field trips.

B. The staff-to-participant ratio is to be calculated for the center rather than for a room or activity.

C. The number of any additional staff persons required shall depend upon:

1. The program and services the center provides;

2. The assessed functional levels and current needs of the participants; and

3. The size and physical layout of the building.

Part V
Admission, Retention, and Discharge

22VAC40-61-210. Admission policies.

A. The center shall have admission policies, to include admission criteria, that shall be discussed with each person entering the program, his family members, legal representative, or the public, as appropriate. A copy of the admission policies shall be available upon request.

B. Only those persons who meet the admission criteria shall be admitted to the center.

C. All participants shall be 18 years of age or older.

22VAC40-61-220. Assessment procedures.

A. A written assessment of a participant shall be secured or conducted prior to admission by the director, a staff person who meets the qualifications of the director, or a licensed health care professional employed by the center.

B. The assessment shall be based upon the information presented by the participant, family members, friends, legal representative, the report of the required physical examination, and from other care providers.

C. The assessment shall identify the person's abilities and needs to determine if and how the program can serve the participant.

D. The assessment shall include at minimum a description of the participant's:

1. Medical and functional condition, including:

a. Ambulatory ability;

b. Ability to perform activities of daily living; and

c. Health status to include diagnoses and medications.

2. Mental status, including any intellectual, cognitive, and behavioral impairment and known psychiatric or emotional problems;

3. Social environment, including living arrangements and the availability of family, friends, and other people and organizations in the community to provide services to the participant;

4. Economic conditions;

5. Nutrition needs;

6. Communication limitations;

7. Hobbies and interests; and

8. Personal preferences that would enhance the participant's experience at the center.

E. The assessment shall be reviewed and updated at least every six months.

F. A reassessment shall also be made when there are changes to indicate that a participant's needs may no longer be met by the current plan of care or the center's program of care.

G. The initial assessment and any reassessments shall be in writing and completed, signed, and dated by the staff person identified in subsection A of this section. The assessment or reassessment shall also indicate any other individuals who contributed to the development of the plan with a notation of the date of the contribution.

22VAC40-61-230. Participant plan of care.

A. Prior to or on the date of admission, a preliminary multidisciplinary plan of care based upon the assessment shall be developed for each participant. The plan shall be reviewed and updated, if necessary, within 30 days of admission.

B. The plan shall be developed by the director, a staff person who meets the qualifications of the director, or a licensed health care professional employed by the center.

C. The plan shall be developed in conjunction with the participant and, as appropriate, with the participant's family members, legal representative, direct care staff members, case manager, or health care provider.

D. The plan shall be developed to maximize the participant's level of functional ability and to support the principles of individuality, personal dignity, and freedom of choice. Whenever possible, participants shall be given a choice of options regarding the type and delivery of services. The plan shall include:

1. A description of the identified needs and the date identified;

2. The expected outcome or goal to be achieved in meeting those needs;

3. The activities and services that will be provided to meet those outcomes or goals, who will provide them, and when they will be provided;

4. If appropriate, the time by which the outcome or goals should be achieved; and

5. Date outcome or goal achieved.

E. The plan of care shall be reviewed and updated as significant changes occur and at least every six months.

F. The preliminary plan of care and any updated plans shall be in writing and completed, signed, and dated by the staff person identified in subsection B of this section. The participant, family member, or legal representative shall also sign the plan of care. The plan shall indicate any other individual who contributed to the development of the plan, with a notation of the date of contribution.

22VAC40-61-240. Participant agreement with the center.

A. At or prior to the time of admission, there shall be a written agreement between the participant and the center. The agreement shall be signed and dated by the participant or legal representative and the center representative.

B. The agreement shall specify the following:

1. Services and care to be provided to the participant by the center. Any additional fees for specific services and care shall be identified.

2. Financial arrangement to include:

a. The amount to be paid, frequency of payments, and rules relating to nonpayment.

b. The amount and purpose of an advance payment or deposit payment and the refund policy for such payment.

c. The policy with respect to increases in charges and the length of time for advance notice of intent to increase charges.

d. The refund policy to apply when transfer of ownership, closing of center, or participant discharge occurs.

e. The fee or notification requirement, if any, associated with participant discharge.

f. The provision of a monthly statement or itemized receipt of the participant’s account.

3. Conditions for discharge.

C. A copy of the signed agreement shall be given to the participant or to the legal representative, as appropriate, and a copy shall be kept in the participant's record at the center.

D. The agreement shall be reviewed and updated whenever there is any change in the services or the financial arrangements. The updated agreement shall be signed and dated by the participant or his legal representative and the center representative.  

22VAC40-61-250. Participant record.

A. The center shall establish policies and procedures for documentation and recordkeeping to ensure that the information in participant records is accurate, clear, and well organized. The record shall contain all information, reports, and documents required by this chapter and other information relevant to the plan of care.

B. The following personal information shall be kept current for each participant:

1. Full name of participant, address, and telephone number;

2. Date of admission;

3. Birth date;

4. Marital status;

5. Names, addresses, and telephone numbers of at least two family members, friends, or other designated people to be contacted in the event of illness or an emergency;

6. Names, addresses, and telephone numbers of the participant's local primary care provider, personal physician, any other health or social service provider and the name of the preferred hospital in the event of an emergency;

7. Name, address, and telephone number of any legal representative and documentation regarding the scope of their representation;

8. Known allergies, if any;

9. Information regarding an advance directive or Do Not Resuscitate Order, if applicable;

10. Mental health, substance abuse, or behavioral concerns; and

11. A current photograph or narrative physical description of the participant, which shall be updated annually.

C. Participant records shall be retained at the center and kept in a locked area.

D. The center shall assure that all records are kept confidential and that information shall be made available only when needed for care of the participant and in accordance with applicable federal and state laws. All records shall be made available for inspection by the department's representative.

E. If the participant or legal representative consents in writing, records shall be shared with other centers or agencies for a specific purpose such as care coordination, referral for other services, or upon discharge.

F. Participants shall be allowed access to their own records. A legal representative of a participant shall be provided access to the participant's record or part of the record only as allowed within the scope of his legal authority.

G. The complete participant record shall be retained for at least two years after the participant leaves the center.

22VAC40-61-260. Physical examinations and report.

A. Within the 30 days preceding admission, a participant shall have a physical examination by a licensed physician.

B. The report of the required physical examination shall be on file at the center and shall include:

1. The person's name, address, and telephone number.

2. The date of the physical examination.

3. Height, weight, and blood pressure.

4. Significant medical history.

5. General physical condition, including a systems review as is medically indicated.

6. All diagnoses and significant medical problems.

7. Any known allergies and description of the person's reactions.

8. Any recommendations for care including:

a. A list of all medications including dosages, route, and frequency of administration;

b. Any special diet or any food intolerances;

c. Any therapy, treatments, or procedures the individual is undergoing or should receive and by whom; and

d. Any restrictions or limitations on physical activities or program participation.

9. The participant shall obtain an evaluation by a qualified licensed practitioner that completes an assessment for tuberculosis (TB) in a communicable form no earlier than 30 days before admission. The evaluation for tuberculosis shall be consistent with the TB risk assessment as published by the Virginia Department of Health, with additional testing, singly or in combination, as deemed necessary. Documentation of the TB evaluation is required, which includes the information contained on the form "Report of Tuberculosis Screening" recommended by the Virginia Department of Health. The form shall be signed by the qualified licensed practitioner who performs the evaluation.

10. A statement that specifies whether the individual is considered to be ambulatory or nonambulatory.

11. A statement that specifies whether the individual is or is not capable of self-administering medication.

12. The signature of the examining physician or his designee.

C. Subsequent medical evaluations.

1. Each participant shall annually submit a report of physical examination by a physician including the information required in subdivisions B 1 through B 8 and B 10, B 11, and B 12 of this section.

2. At the request of the licensee or director of the center or the Department of Social Services, a report of examination by a physician shall be obtained when there are indications that the center can no longer provide appropriate or safe care because of changes in the participant's physical or mental health. The written report of the physical examination shall be:

a. Dated;

b. Signed by a physician or the physician's designee; and

c. Used in evaluating the participant's continued suitability for adult day care.

D. Subsequent evaluations for tuberculosis.

1. Any participant who comes in contact with a known case of infectious tuberculosis shall be screened as deemed appropriate in consultation with the local health department.

2. Any participant who develops respiratory symptoms of three or more weeks duration shall be evaluated immediately for the presence of infectious tuberculosis. Any such participant shall not be allowed to return to the program until a physician has determined that the individual is free of infectious tuberculosis.

3. If a participant develops an active case of tuberculosis, the center shall report this information to the local health department.

22VAC40-61-270. Discharge of participants.

A. When actions, circumstances, conditions, or care needs occur that will result in the discharge of a participant, discharge planning shall begin immediately.

B. A written discharge notice shall identify the reasons for discharge and outline the services needed by the participant upon discharge. The discharge notice shall be provided to and discussed with the participant and family members or legal representative.

C. The center shall notify the participant and family members or legal representative at least 30 calendar days prior to the actual discharge date.

D. The center shall develop a policy regarding the number of days notice that is required when a participant wishes to leave the center. Any required notice of intent to leave shall not exceed 30 calendar days.

E. When a participant's condition presents an immediate and serious risk to the health, safety, or welfare of the participant or others and immediate discharge is necessary, the 30-day notification of planned discharge does not apply.

F. The center shall assist the participant, his family members or legal representative, if any, in the discharge or transfer process. The center shall prepare a transfer report for the new program, if requested.

G. The center shall have a process by which participants, family members, or legal representatives can appeal a center-initiated discharge. 

Part VI
Programs and Services

22VAC40-61-280. Health care supervision.

A. The center shall develop a policy and procedure for monitoring the health status of participants consistent with the particular characteristics and needs of the population served by the center.

B. The center shall provide supervision of participant schedules, care, and activities including attention to specialized needs, such as prevention of falls and wandering.

C. Each participant shall be continually observed and monitored for changes in health status including physical, social, emotional, and mental functioning. Changes shall be discussed with the participant, family, legal representative, physician, or others as appropriate. Documentation of the change and any notifications shall be made in the participant's record.

D. Measures of health status include:

1. Vital signs;

2. Weight;

3. Meal and fluid intake;

4. Elimination;

5. Skin integrity;

6. Behavior;

7. Cognition;

8. Functional ability; and

9. Special needs.

E. When the center identifies a need for a change in health care services, this shall be discussed with the participant, family, legal representative, physician, or others as appropriate and documented in the participant's record. The care plan shall be updated if necessary.

F. If the participant requires skilled or rehabilitative services, the center shall assist the participant and family in securing such services if necessary.

G. If skilled health care and rehabilitative services are provided at the center, the center shall ensure that such providers are licensed, certified, or registered as required by law. These services shall be provided in accordance with the physician or other health care professional's order.

22VAC40-61-290. Infection control program.

A. The center shall develop and maintain an infection prevention and occupational health program compliant with Occupational Safety and Health Administration regulations designed to provide a safe, sanitary, and comfortable environment for participants, staff, and the public.

B. The center shall develop infection prevention policies and procedures appropriate for the services provided by the center and including the physical plant and grounds. These shall be based upon evidence-based guidelines such as those published by the Centers for Disease Control and Prevention or the Virginia Department of Health and updated as recommendations change and shall include:

1. Standard precautions to include:

a. Hand hygiene;

b. Use of personal protective equipment such as gloves and masks;

c. Safe injection and blood glucose monitoring practices;

d. Safe handling of potentially contaminated equipment or surfaces in the center environment; and

e. Respiratory hygiene and cough etiquette.

2. Specific methods and timeframes to monitor infection prevention practices by staff and volunteers.

3. Parameters for ensuring that staff, volunteers, and participants with communicable disease or infections are prohibited from direct contact with others if contact may transmit disease, in accordance with applicable local, state, and federal regulations.

4. Handling, storing, processing, and transporting linens, supplies, and equipment consistent with current infection prevention methods.

5. Handling, storing, and transporting medical waste in accordance with applicable regulations.

6. Maintaining an effective pest control program.

C. The center shall ensure that at least one staff person with training in infection prevention specific to this setting is employed by or regularly available (e.g., by contract) to manage the center's infection prevention program.

D. All staff and volunteers shall be trained on requirements of the center's infection prevention program according to their job duties during the orientation period and at least annually. Competencies shall be documented following each training and may include a written test, skills demonstration, or other method as appropriate.

E. The center shall ensure that sufficient and appropriate supplies to maintain standard precautions are available at all times, such as gloves, hand hygiene and cleaning products, and any other supplies needed specific to center services.

F. The director shall be responsible for ensuring that any outbreak of disease as defined by the Virginia Department of Health is immediately reported to the local health department and to the regional licensing office.

22VAC40-61-300. Medication management.

A. The center shall have, keep current, and implement a plan for medication management. The center's medication management plan shall address procedures for administering medication and shall include:

1. Standard operating procedures and any general restrictions specific to the center;

2. Methods to ensure an understanding of the responsibilities associated with medication management including the following:

a. Determining that staff who are responsible for administering medications meet the qualification requirements of subdivisions E 7 a and E 7 b of this section;

b. Ensuring that staff who are responsible for administering medications are trained on requirements of the center's medication management plan; and

c. Ensuring that staff who are responsible for administering medications are adequately supervised, including periodic direct observation of medication administration. Supervision shall be provided by (i) an individual employed by the center who is licensed by the Commonwealth of Virginia to administer medications or (ii) the director who has successfully completed a training program as required in subdivisions E 7 a and E 7 b of this section.

3. Methods to ensure that authorizations for the administration of medications are current;

4. Methods to secure and maintain supplies of each participant's prescription medications and any over-the-counter drugs and supplements in a timely manner to avoid missed dosages;

5. Methods for verifying that medication orders have been accurately transcribed to medication administration records (MARs), including within 24 hours of receipt of a new order or a change in an order;

6. Methods for monitoring medication administration and the effective use of the MARs for documentation;

7. Methods to ensure that participants do not receive medications or dietary supplements to which they have known allergies;

8. Methods to ensure accurate accounting for all controlled substances whenever received by center staff, returned to participant, or whenever assigned medication administration staff changes;

9. Procedures for proper disposal of medication; and

10. Procedures for preventing, detecting, and investigating suspected or reported drug diversion.

B. The center shall have readily accessible as reference materials for medication aides, at least one pharmacy reference book, drug guide, or medication handbook for nurses that is no more than two years old.

C. Prescription and nonprescription medications, including sample medications, shall be given to a participant according to the center's medication policies and only with written or verbal authorization from the physician or prescriber, or the physician's authorized agent. For the purposes of this section, an "authorized agent" means an employee of the physician who is under his immediate and personal supervision. Verbal orders shall be reviewed and signed by the physician or prescriber within 10 working days.

D. The center shall maintain a list of all medications, including those taken at home and at the center, for each participant. The center shall attempt to verify and update the list of center-administered medications with the prescribing health care professional at least twice a year. Unsuccessful attempts to verify shall be documented.

E. The following standards shall apply when medications are administered to participants at the adult day care center:

1. All medication shall be in the original container with the prescription label or direction label attached and legible. Sample medications shall remain in the original packaging, labeled by a physician or other prescriber or pharmacist with the participant's name, the name of the medication, the strength, dosage, and route and frequency of administration, until administered.

2. All medication shall be labeled with the participant's name, the name of the medication, the strength and dosage amount, the route of administration, and the frequency of administration.

3. The medication shall be kept in a locked compartment or area, not accessible to participants. The locked compartment or area shall be free from direct sunlight and high temperatures and free from dampness and shall remain darkened when closed.

4. The area in which the medication is prepared shall have sufficient light so that the labels can be read accurately and the correct dosage can be clearly determined.

5. Medication shall be refrigerated, if required. When medication is stored in a refrigerator used for food, the medications shall be stored together in a locked container in a clearly defined area. If a refrigerator is used for medication only, it is permissible to store dietary supplements and foods and liquids used for medication administration.

6. Unless it is contrary to the center's policy, a participant may take his own medication provided that:

a. A physician has deemed the participant capable of administering medication to himself;

b. The physician has given written authorization for the participant to self-administer his medication; and

c. Medications are kept in a safe manner inaccessible to other participants.

7. When the center staff administers medications to participants, the following standards shall apply:

a. Each staff person who administers medication shall be authorized by § 54.1-3408 of the Code of Virginia. All staff responsible for medication administration shall:

(1) Be licensed by the Commonwealth of Virginia to administer medications;

(2) Be a registered medication aide;

(3) Successfully complete a training program approved by the Board of Nursing and accepted in adult day care centers; or

(4) Successfully complete a training program approved by the Board of Nursing for the registration of medication aides that consists of 68 hours of student instruction and training.

b. All staff who administer medications, except those licensed by the Commonwealth, shall complete, on an annual basis, four hours of medication management refresher training on topics specific to the administration of medications in the adult day care center setting.

c. Medications shall remain in the original or pharmacy issued container until administered to the participant by the qualified medication staff. All medications shall be removed from the pharmacy container and be administered by the same qualified person within one hour of the individual's scheduled dosing time.

d. Documentation shall be maintained on the MAR of all medications, including prescription, nonprescription, and sample medication, administered to a participant while at the center. This documentation shall become part of the participant's permanent record and shall include:

(1) Name of participant;

(2) All known allergies;

(3) Diagnosis, condition, or specific indications for which the medication is prescribed;

(4) Date medication prescribed;

(5) Drug product name;

(6) Dosage and strength of medication;

(7) Route of administration;

(8) Frequency of administration;

(9) Date and time given and initials of staff administering the medication;

(10) Date the medication is discontinued or changed;

(11) Any medication errors or omissions;

(12) Notation of any adverse effects or unusual reactions that occur; and

(13) The name, signature, and initials of all staff administering medications. A master list may be used in lieu of this documentation on individual MARs.

F. In the event of an adverse drug reaction or a medication error, the following applies:

1. Action shall be taken as directed by a physician, pharmacist, or a poison control center;

2. The participant's physician and family member or other legal representative shall be notified as soon as possible; and

3. Medication administration staff shall document actions taken in the participant's record.

G. The use of PRN (as needed) medications is prohibited unless one or more of the following conditions exist:

1. The participant is capable of determining when medication is needed;

2. A licensed health care professional administers the medication;

3. The participant's physician has provided detailed written instructions, including symptoms that might indicate the need for the medication, exact dosage, exact timeframes the medication is to be given in a 24-hour period, and directions for what to do if symptoms persist; or

4. The center staff has telephoned the participant's physician prior to administering the medication and explained the symptoms and received a documented verbal order that includes the information in subdivision 3 of this subsection.

H. Any physician ordered treatment provided by staff shall be documented and shall be within the staff's scope of practice.  

22VAC40-61-310. Restraints.

The use of chemical or physical restraints is prohibited.

22VAC40-61-320. Assistance with activities of daily living.

A. Dignity, privacy, and confidentiality shall be maintained for participants whenever assistance with activities of daily living (ADLs) is provided.

B. When providing assistance with ADLs, staff shall ensure all necessary supplies and equipment are available and organized to aid in assistance and to maximize the participant's safety.

C. Assistance with eating and feeding.

1. Dining areas shall be supervised by staff whenever meals or snacks are served.

2. Additional staff shall be present in the dining areas to assist participants who cannot eat independently.

3. Self-feeding skills of participants shall be continuously observed and evaluated so that meals and snacks are not missed because of a participant's inability to feed himself.

4. Appropriate adapted utensils, including adapted plates, bowls, and cups with straws and handles, shall be provided for those participants who need them. Information about effective eating adaptations shall be shared with the participant's family. Assistance such as, but not limited to, opening containers and cutting food shall be provided to those participants who need it.

5. Low-stimulus dining areas shall be provided for participants with cognitive deficits or other conditions that impair concentration.

6. Changes in food and liquid intake shall be documented in the participant's record, and changes shall be made to the care plan to ensure adequate intake. The participant's family shall be notified of such changes.

D. Assistance with ambulation and transfer.

1. The ability of the participant to safely transfer and ambulate shall be continually monitored. Any changes shall be documented in the participant's record and noted on the plan of care.

2. There shall be adequate staff to provide individualized assistance to participants to ambulate to activities, meals, and the restroom if such assistance is needed.

3. The center shall have at least one wheelchair available for emergency use, even if all participants are ambulatory or have their own wheelchairs.

4. Staff shall identify unmet ambulation and transfer needs, including equipment needs and repairs, and shall discuss such needs with the participant, family, legal representative, or physician, as appropriate.

5. Participants who use wheelchairs shall be offered other seating options throughout the day if appropriate.

E. Assistance with toileting.

1. Staff shall develop and follow appropriate toileting procedures for each participant who requires assistance according to that individual's abilities and plan of care.

2. Participants who are at risk of falling or who have other safety risks shall not be left alone while toileting.

3. Staff shall arrange for coverage of program responsibilities when they must leave the group to assist with toileting a participant.

F. Assistance with bathing.

1. A shower chair, bench, or other seating; safety equipment such as grab bars; and nonslip surfaces shall be provided.

2. The participant shall not be left unattended in the shower or bath. If the bathing area is not in sight or sound of other occupied parts of the building, there shall be an emergency call system to summon additional assistance.

G. Assistance with dressing.

1. Assistance shall be provided according to that individual's abilities and plan of care.

2. Extra clothing shall be available for participants who need to change during the day. Each participant may keep a change of clothing at the center, or the center may keep a supply to use as needed.

3. Participants' clothing, equipment, and supplies kept at the center shall be properly labeled and stored to prevent loss.

4. Special attention shall be given to footwear of participants who are at risk of falling. Staff shall encourage family members to provide appropriate shoes and shall document those recommendations in the participant's record.

22VAC40-61-330. Activities.

A. Activities shall be planned to support the plans of care for the participants and shall be consistent with the program statement and the admission policies.

B. Activities shall:

1. Support the physical, social, mental, and emotional skills and abilities of participants in order to promote or maintain their highest level of independence or functioning;

2. Accommodate individual differences by providing a variety of types of activities and levels of involvement; and

3. Offer participants a varied mix of activities including the following categories: physical; social; cognitive, intellectual, or creative; productive; sensory; reflective or contemplative; outdoor; and nature or the natural world. Community resources as well as center resources may be used to provide activities. Any given activity may fall under more than one category.

C. Participation in activities.

1. Participants shall be encouraged but not forced to participate in activity programs offered by the center and the community.

2. During an activity, each participant shall be encouraged but not coerced to join in the activity at his level of functioning, which may include his observation of the activity.

3. If appropriate to meet the needs of the participant with a short attention span, multiple short activities shall be provided.

4. Any restrictions on participation imposed by a physician shall be followed and documented in the participant's record and the plan of care.

D. There shall be a designated staff person who is routinely present in the center and who shall be responsible for managing or coordinating the structured activities program. This staff person shall maintain personal interaction with the participants and familiarity with their needs and interests and shall meet at least one of the following qualifications:

1. Be a qualified therapeutic recreation specialist or an activities professional;

2. Be eligible for certification as a therapeutic recreation specialist or an activities professional by a recognized accrediting body;

3. Be a qualified occupational therapist or an occupational therapy assistant; or

4. Have one year full-time work experience within the last five years in an activities program in an adult care setting.

E. Participants, staff, and family members shall be encouraged to be involved in the planning of the activities.

F. Schedule of activities.

1. There shall be planned activities and programs throughout the day whenever the center is in operation.

2. A written schedule of activities shall be developed on a monthly basis.

3. The schedule shall include:

a. Group activities for all participants or small groups of participants; and

b. The name, type, date, and hour of the activity.

4. If one activity is substituted for another, the change shall be noted on the schedule.

5. The current month's schedule shall be posted in a readily accessible location in the center and also may be made available to participants and their families.

6. The schedule of activities for the preceding two years shall be kept at the center.

7. If a participant requires an individual schedule of activities, that schedule shall be a part of the plan of care.

G. During an activity, when needed to ensure that each of the following is adequately accomplished, there shall be staff persons or volunteers to:

1. Lead the activity;

2. Assist the participants with the activity;

3. Supervise the general area;

4. Redirect any individuals who require different activities; and

5. Protect the health, safety, and welfare of the participants involved in the activity.

H. The staff person or volunteer leading the activity shall have a general understanding of the following:

1. Attention spans and functional levels of each of the participants;

2. Methods to adapt the activity to meet the needs and abilities of the participants;

3. Various methods of engaging and motivating individuals to participate; and

4. The importance of providing appropriate instruction, education, and guidance throughout the activity.

I. Adequate supplies and equipment appropriate for the program activities shall be available in the center.

J. All equipment and supplies used shall be accounted for at the end of the activity so that a safe environment can be maintained.

K. In addition to the required scheduled activities, there shall be unscheduled staff and participant interaction throughout the day that fosters an environment that promotes socialization opportunities for participants. 

22VAC40-61-340. Food service.

A. Meals and snacks shall be provided by the center. The center shall (i) prepare the food, (ii) have the food catered, or (iii) utilize a contract food service.

B. When any portion of an adult day care center is subject to inspection by the Virginia Department of Health, the center shall be in compliance with those regulations, as evidenced by an initial and subsequent annual report from the Virginia Department of Health. The report shall be retained at the center for a period of at least two years.

C. If a catering service or contract food service is used, the service shall be approved by the local health department. The center shall be responsible for monitoring continued compliance by obtaining a copy of the Virginia Department of Health approval.

D. The center shall encourage, but not require, participants to eat the meals and snacks provided by the center. If a participant brings food from home, the food shall be labeled with the participant's name, dated, and stored appropriately until meal or snack time. The fact that the participant brought food does not relieve the center of its responsibility to provide meals and snacks.

E. A minimum of 45 minutes shall be allowed for each participant to complete a meal. If a participant needs additional time to finish his meal due to special needs, such additional time shall be provided.  

22VAC40-61-350. Serving of meals and snacks.

A. Centers shall serve meals and snacks at appropriate times, depending on the hours of operation. For example, a center open during the hours of 7 a.m. to 1 p.m. must serve a morning snack and a mid-day meal; a center open during the hours of 8 a.m. to 5 p.m. must serve a morning snack, a mid-day meal, and an afternoon snack; a center open during the hours of 2 p.m. to 6 p.m. must serve an afternoon snack; a center open after 6 p.m. must serve an evening meal. Centers open after 9 p.m. shall serve an evening snack. Snacks shall also be available throughout the day.

B. There shall be at least two hours between scheduled snacks and meals.

C. Adequate kitchen facilities and equipment shall be provided for preparation and serving of meals and snacks or for the catering of meals.

D. Sufficient working refrigeration shall be available to store perishable food and medicine.  

22VAC40-61-360. Menu and nutrition requirements.

A. Food preferences of participants shall be considered when menus are planned.

B. Menus for meals and snacks for the current week shall be dated and posted in an area conspicuous to participants.

1. Any menu substitutions or additions shall be recorded on the posted menu.

2. Menus shall be kept at the center for two years.

C. Minimum daily menu.

1. Unless otherwise ordered in writing by the participant's physician, the daily menu, including snacks, for each participant shall meet the current guidelines of the U.S. Department of Agriculture food guidance system or the dietary allowances of the Food and Nutritional Board of the National Academy of Sciences, taking into consideration the age, sex and activity of the participant.

2. Other foods may be added to enhance the meals or meet individual participant needs.

3. Second servings and snacks shall be available at no additional charge.

4. Drinking water shall be available at all times.

D. When a diet is prescribed for a participant by his physician or other prescriber, it shall be prepared and served according to the physician's or other prescriber's orders.

E. A current copy of a diet manual containing acceptable practices and standards for nutrition shall be available to staff responsible for food preparation and meal planning.

22VAC40-61-370. Observance of religious dietary practices.

A. The participant's religious dietary practices shall be respected and followed.

B. Religious dietary practices of the director, staff, or licensee shall not be imposed upon participants unless mutually agreed upon in the admission agreement.

22VAC40-61-380. Transportation services.

A. Centers that provide participant transportation directly or by contract shall ensure that the following requirements are met:

1. The vehicle shall be accessible and appropriate for the participants being transported. Vehicles shall be equipped with a ramp or hydraulic lift to allow entry and exit if there are participants who remain in their wheelchairs during transport.

2. The vehicle's seats shall be attached to the floor, and wheelchairs shall be secured when the vehicle is in motion.

3. Arrangement of wheelchairs and other equipment in the vehicle shall not impede access to exits.

4. The vehicle shall be insured for at least the minimum limits established by law and regulation.

5. All vehicles shall have working heat and air conditioning systems.

6. The vehicle shall meet the safety standards set by the Department of Motor Vehicles and shall be kept in satisfactory condition to ensure the safety of participants.

B. Centers that provide participant transportation directly or by contract shall ensure that during transportation the following requirements are met:

1. The driver has a valid Virginia driver's license to operate the type of vehicle being used.

2. Virginia statutes regarding safety belts are followed.

3. Every person remains seated while the vehicle is in motion.

4. Doors are properly closed and locked while the vehicle is in motion.

5. Supervision and safety needs of participants are maintained at all times.

6. The following information is maintained in vehicles used for transportation:

a. The center's name, address, and phone number;

b. A list of the names of the participants being transported;

c. A list of the names, addresses, and telephone numbers of participants' emergency contact persons; and

d. A first aid kit containing the supplies as listed in 22VAC40-61-550.

7. The driver, another staff person, or a volunteer in the vehicle is current in first aid and CPR training.

8. There shall be a means of communication between the driver and the center.

C. If staff or volunteers supply personal vehicles, the center shall be responsible for ensuring that the requirements of subsections A and B of this section are met. 

22VAC40-61-390. Field trips.

A. Any center that takes participants on field trips shall develop a policy that addresses the following:

1. A communication plan between staff at the center and staff who are accompanying participants on a field trip;

2. Maintenance of staff-to-participant ratio at both the center and on the field trip as required by 22VAC40-61-200;

3. Provision of adequate food and water for participants during field trips;  

4. Safe storage of food to prevent food-borne illnesses; and

5. Medication administration that meets the requirements of 22VAC40-61-300.

B. Before leaving on a field trip, a list of participants taking the trip and a schedule of the trip's events and locations shall be left at the center and shall be accessible to staff.

C. A wheelchair that is available for emergency use shall be taken on field trips.

D. The requirements of 22VAC40-61-380 apply when participants are transported on field trips.

Part VII
Buildings and Grounds

22VAC40-61-400. Physical environment.

A center must provide an environment that ensures the safety and well-being of the participants but is not so restrictive as to inhibit physical, intellectual, emotional, or social stimulation.

22VAC40-61-410. Maintenance of buildings and grounds.

A. The interior and exterior of all buildings shall be maintained in good repair, kept clean and free of rubbish, and free from safety hazards.

B. All buildings shall be well-ventilated and free from foul, stale, and musty odors.

C. Adequate provisions for the collection and legal disposal of garbage, ashes, and waste material shall be made.

D. Buildings shall be kept free of infestations of insects and vermin. The grounds shall be kept free of insect and vermin breeding places.

E. Cleaning products, pesticides, and all poisonous or harmful materials shall be stored separately from food and shall be kept in a locked place when not in use.

F. All furnishings, fixtures, and equipment, including furniture, window coverings, sinks, toilets, bathtubs, and showers, shall be kept clean and in good repair and condition.

G. Grounds shall be properly maintained to include mowing of grass and removal of snow and ice.

H. A safe area for participant discharge and pick-up shall be available.

I. Adequate outdoor lighting shall be provided to ensure safe ambulation and the safety of participants during arrival and departure.

J. All interior and exterior stairways and ramps shall have a nonslip surface or carpet that shall be secured to the stairways or ramps.

K. Sturdy handrails shall be provided on all stairways, ramps, and elevators and at all changes in floor level.

L. All interior and exterior stairways, changes in floor level, and ramps shall be indicated by a warning strip or contrast in color. 

22VAC40-61-420. Lighting.

A. All areas of the center shall be adequately lighted for the safety and comfort of the participants.

B. Artificial lighting shall be powered by electricity.

C. Glare shall be kept at a minimum in rooms used by participants. When necessary to reduce glare, coverings shall be used for windows and lights.

D. If used, fluorescent lights shall be replaced if they flicker or make noise.

F. Flashlights or battery lanterns in working order shall be available at all times for emergency lighting. 

G. Open flame lighting is prohibited. 

22VAC40-61-430. Heating and cooling.

A. Heat shall be supplied from a central heating plant or an electrical heating system in accordance with the Virginia Uniform Statewide Building Code (13VAC5-63).

B. Provided their installation or operation has been approved by the state or local building or fire authorities, space heaters, such as but not limited to gas stoves, wood burning stoves, coal burning stoves, and oil heaters, or portable heating units either vented or unvented may be used only to provide or supplement heat in the event of a power failure or similar emergency. These appliances shall be used in accordance with the manufacturer's instructions. When any of these heating sources are used, care shall be taken to protect participants from injuries.

C. The temperature of the center shall be maintained at a level safe and suitable for the participants in accordance with the following:

1. The inside temperature shall be between 70°F and 84°F. This standard applies unless otherwise mandated by federal or state authorities.

2. Fans and air conditioners shall be placed to avoid direct drafts on participants and to prevent safety hazards. Any electric fans shall be screened and placed for the protection of the participants.

3. The center shall develop a plan to protect participants from heat-related and cold-related illnesses in the event of a loss of heat or cooling due to emergency situations or malfunctioning or broken equipment.

4. At least one movable thermometer shall be available in each building for measuring temperatures in individual rooms that do not have a fixed thermostat that shows the temperature in the room.

22VAC40-61-440. General areas.

A. Any center licensed after July 1, 2000, shall provide at least 50 square feet of indoor floor space for each participant, in addition to hallways, office space, bathrooms, storage space, or other rooms or areas that are not normally used for program activities; otherwise the square footage shall be 40 square feet.

B. There shall be sufficient and suitable space for planned program activities that may be interchangeable or adaptable for a variety of activities, including meals.

1. There shall be at least one room with sufficient space for the participants to gather together for large group activities.

2. There shall be rooms or areas appropriate for small group activities and individual activities.

3. An area shall be available and accessible so that participants shall have opportunities for supervised outdoor activities. The area shall be equipped with appropriate seasonal outdoor furniture.

C. Furnishings.

1. The furniture shall be sturdy, safe, and appropriate for participants in care.

2. All centers shall have:

a. At least one chair for each participant and each staff person, excluding any people who remain in wheelchairs throughout the day;

b. Table space adequate for all participants to take part in activities at the same time; and

c. Recliners, lounge chairs, rockers, or other seating to allow participants to relax and rest.

22VAC40-61-450. Privacy space.

Space shall be available to allow privacy for participants during interviews, visits, telephone conversations, counseling, therapy, and other similar activities.

22VAC40-61-460. Restroom facilities.

A. There shall be a minimum of one toilet that is suitable to accommodate a participant who needs human assistance or specialized equipment available for every 10 participants, or portion thereof. For restrooms that have multiple stalls, only the toilets that accommodate a person who needs human assistance or specialized equipment shall be counted in the total required number of toilets.

B. Restrooms that are equipped with only one toilet may be used by either men or women.

C. Restrooms equipped with more than one toilet shall have each toilet enclosed.

D. Restrooms that are equipped with multiple stalls must be designated for men or for women.

E. Sturdy grab bars or safety frames shall be installed beside all toilets used by participants.

F. There shall be a minimum of one sink for every two toilets and the sinks shall be located close enough to toilets to encourage washing of hands after each toileting procedure.

G. There shall be an ample supply of hot and cold running water from an approved source available to the participants at all times.

H. Hot water at taps available to participants shall be maintained within a temperature range of 105°F to 120°F.

I. There shall be an adequate supply of toilet tissue, liquid soap, disposable hand towels, or air dryers and disposable gloves in each restroom at all times.

J. If bathing facilities are provided there shall be:

1. Handrails by bathtubs;

2. Handrails in stall showers; and

3. A bench for use in the shower and a bench for use in dressing, if necessary.

22VAC40-61-470. Dining area.

A. Dining areas shall have a sufficient number of sturdy tables and chairs to serve all participants, either all at one time or in shifts.

B. If the center is licensed for nonambulatory participants, the dining area shall be large enough to provide sufficient table space and floor space to accommodate participants in wheelchairs or other assistive equipment. 

22VAC40-61-480. Rest area.

A. A separate room or area shall be available for participants who become ill, need to rest, or need to have privacy. The separate room or area shall be equipped with one bed, comfortable cot, or recliner for every 12 participants.

B. Additional beds, comfortable cots, or recliners shall be available based on participant needs to accommodate rest periods. In centers that are open for evening or night care, beds shall be available for participants who need them.

C. A minimum of one pillow covered with (i) a pillow case, (ii) two sheets, and (iii) one blanket, spread, or covering per bed or cot shall be provided.

D. All sheets and pillow cases shall be laundered after each use.

E. Additional covering or blankets and pillows shall be available as necessary for recliners.

22VAC40-61-490. Storage.

A. Sufficient space shall be provided to store coats, sweaters, umbrellas, toilet articles, and other personal possessions of participants and staff.

B. Sufficient space shall be available for equipment, materials, and supplies used at the center.

22VAC40-61-500. Telephones.

A. Each building shall have at least one operable, nonpay telephone easily accessible to staff. There shall be additional telephones or extensions as may be needed to summon help in an emergency, including one that will operate during power outages.

B. Participants shall have reasonable access to a nonpay telephone on the premises.

22VAC40-61-510. Fire safety: compliance with state regulations and local fire ordinances.

A. The center shall comply with the Virginia Statewide Fire Prevention Code (13VAC5-51) as determined by at least an annual inspection by the appropriate fire official. Reports of the inspections shall be retained at the center for at least two years.

B. An adult day care center shall comply with any local fire ordinance.  

Part VIII
Emergency Preparedness

22VAC40-61-520. Emergency preparedness and response plan.

A. The center shall develop an emergency preparedness and response plan that shall address:

1. Documentation of initial and annual contact with the local emergency coordinator to determine (i) local disaster risks, (ii) community wide plans to address different disasters and emergency situations, and (iii) assistance, if any, that the local emergency management office will provide to the center in an emergency.

2. Analysis of the center's potential hazards, including severe weather, biohazard events, fire, loss of utilities, flooding, work place violence or terrorism, severe injuries, or other emergencies that would disrupt normal operation of the center.

3. Emergency management policies and procedures for the provision of:

a. Administrative direction and management of response activities;

b. Coordination of logistics during the emergency;

c. Communications;

d. Life safety of participants, staff, volunteers, and visitors;

e. Property protection;

f. Continued services to participants;

g. Community resource accessibility; and

h. Recovery and restoration.

4. Emergency response procedures for assessing the situation; protecting participants, staff, volunteers, visitors, equipment, medications, and vital records; and restoring services. Emergency response procedures shall address:

a. Alerting emergency personnel and center staff;

b. Warning and notification of participants, including sounding of alarms when appropriate;

c. Providing emergency access to secure areas and opening locked doors;

d. Conducting evacuations and sheltering in place, as appropriate, and accounting for all participants;

e. Locating and shutting off utilities when necessary;

f. Maintaining and operating emergency equipment effectively and safely;

g. Communicating with staff and community emergency responders during the emergency;

h. Conducting relocations to emergency shelters or alternative sites when necessary and accounting for all participants; and

i. Strategies for reunification of participants with their family or legal representative.

5. Supporting documents that would be needed in an emergency, including emergency call lists, building and site maps necessary to shut off utilities, and as applicable, memoranda of understanding with relocation sites and list of major resources such as suppliers of emergency equipment.

B. Staff and volunteers shall be knowledgeable in and prepared to implement the emergency preparedness plan in the event of an emergency.

C. The center shall develop and implement an orientation and semi-annual review on the emergency preparedness and response plan for all staff, participants, and volunteers with emphasis placed on an individual's respective responsibilities, except that for participants, the orientation and review may be limited to only subdivisions 1 and 2 of this subsection. The review shall be documented by signing and dating. The orientation and review shall cover responsibilities for:

1. Alerting emergency personnel and sounding alarms;

2. Implementing evacuation, shelter in place, and relocation procedures;

3. Using, maintaining, and operating emergency equipment;

4. Accessing emergency medical information, equipment, and medications for participants;

5. Locating and shutting off utilities; and

6. Utilizing community support services.

D. The center shall review the emergency preparedness plan annually or more often as needed, document the review by signing and dating the plan, and make necessary revisions. Such revisions shall be communicated to staff, participants, and volunteers and incorporated into the orientation and semi-annual review.

E. In the event of a disaster, fire, emergency, or any other condition that may jeopardize the health, safety, and welfare of participants, the center shall take appropriate action to protect the participants and to remedy the conditions as soon as possible.

F. After the disaster or emergency is stabilized, the center shall:

1. Notify family members and legal representatives; and

2. Report the disaster or emergency to the regional licensing office as specified in 22VAC40-61-90.

22VAC40-61-530. Fire and emergency evacuation plan.

A. The center shall have a plan for fire and emergency evacuation that is to be followed in the event of a fire or other emergency. The plan shall be approved by the appropriate fire official.

B. A fire and emergency evacuation drawing showing primary and secondary escape routes, areas of refuge, assembly areas, telephones, fire alarm boxes, and fire extinguishers shall be posted in a conspicuous place.

C. The telephone numbers for the fire department, rescue squad or ambulance, police, and Poison Control Center shall be posted by each telephone shown on the fire and emergency evacuation plan.

D. Staff and volunteers shall be fully informed of the approved fire and emergency evacuation plan, including their duties, and the location and operation of fire extinguishers, fire alarm boxes, and any other available emergency equipment.

22VAC40-61-540. Fire and emergency evacuation drills.

A. Fire and emergency evacuation drill frequency and participation shall be in accordance with the current edition of the Virginia Statewide Fire Prevention Code (13VAC5-51).

B. Additional fire and emergency evacuation drills shall be held when there is any reason to question whether the requirements of the approved fire and emergency evacuation plan can be met.

C. Each required fire and emergency evacuation drill shall be unannounced.

D. Immediately following each required fire and emergency evacuation drill, there shall be an evaluation of the drill by the staff in order to determine the effectiveness of the drill. The licensee or director shall immediately correct any problems identified in the evaluation and document the corrective action taken.

E. A record of the required fire and emergency evacuation drills shall be kept in the center for two years. Such record shall include:

1. Identity of the person conducting the drill;

2. The date and time of the drill;

3. The method used for notification of the drill;

4. The number of staff participating;

5. The number of participants participating;

6. Any special conditions simulated;

7. The time it took to complete the drill;

8. Weather conditions; and

9. Problems encountered, if any.

22VAC40-61-550. Emergency equipment and supplies.

A. Each building of the center and all vehicles being used to transport participants shall contain a first aid kit which shall include:

1. Scissors;

2. Tweezers;

3. Gauze pads;

4. Adhesive tape;

5. Adhesive bandages in assorted sizes;

6. Triangular bandages;

7. Flexible gauze;

8. Antiseptic cleansing solution;

9. Antibacterial ointment;

10. Bee sting swabs or preparation;

11. Ice pack or ice bag;

12. Thermometer;

13. Small operable flashlight;

14. Single use gloves, such as surgical or examining gloves; and

15. The first aid instructional manual.

B. The first aid kit shall be located in a designated place that is easily accessible to staff but not accessible to participants.

C. The first aid kit shall be checked at least annually and contents shall be replaced before expiration dates and as necessary.

D. Emergency equipment shall be available for use in the event of loss of utilities such as, but not limited to, a working flashlight, extra batteries, a portable radio, and a telephone or other communication device.

E. A plan shall be in place to provide an emergency meal and a supply of water to all participants in the event that meals are not able to be prepared or participants are required to shelter in place for a period of time.

22VAC40-61-560. Plan for participant emergencies.

A. The center shall have a plan for participant emergencies that includes:

1. Procedures for handling medical emergencies, including identifying the staff person responsible for (i) calling the rescue squad, ambulance service, participant's physician, or Poison Control Center and (ii) providing first aid and CPR when indicated.

2. Procedures for handling mental health emergencies such as, but not limited to, catastrophic reaction or the need for a temporary detention order.

3. Procedures for making pertinent medical information and history available to the rescue squad and hospital, including a copy of the current medical administration record, advance directives, and Do Not Resuscitate Orders.

4. Procedures to be followed in the event that a participant is missing, including (i) involvement of center staff, appropriate law-enforcement agency, and others as needed; (ii) areas to be searched; (iii) expectations upon locating the participant such as medical attention; and (iv) documentation of the event.

5. Procedures to be followed in the event of a vehicle emergency to include notifying the center or emergency personnel, telephone numbers for vehicle repair, and options for alternate transportation. Procedures to be followed in the event that a participant's scheduled transportation does not arrive or the participant is stranded at the center shall also be developed. The center shall ensure that these procedures are in place for transportation provided by both the center and contracted services if appropriate.

6. Procedures for notifying the participant's family, and legal representative.

7. Procedures for notifying the regional licensing office as specified in 22VAC40-61-90.

B. If the center serves participants who wander, a door bell or alarm shall be installed or attached to alert staff to wandering participants.

C. Staff shall be trained on all requirements of subsection A of this section during orientation and during a semi-annual review.

D. The plan for participant emergencies shall be readily available to all staff, family members, and legal representatives.

FORMS (22VAC40-61)

Report of Tuberculosis Screening, Virginia Department of Health (rev. June 2017)