Title of Regulation: 22VAC40-80. General Procedures and Information for Licensure (amending 22VAC40-80-160, 22VAC40-80-180, 22VAC40-80-510).

Statutory Authority: §§ 63.2-217 and 63.2-1734 of the Code of Virginia.

Effective Date: February 16, 2011.

Agency Contact: Karen Cullen, Program Consultant, Department of Social Services, 801 East Main Street, Richmond, VA 23219, telephone (804) 726-7152, FAX (804) 726-7132, or email karen.cullen@dss.virginia.gov.

Summary:

In conformance with Chapter 603 of the 2010 Acts of Assembly, the amendments (i) require applicants and licensees to afford the department's representatives reasonable opportunity to inspect all of the facility's buildings at all times; (ii) set forth conditions under which the applicant or licensee must allow department representatives to interview the facility's or agency's agents, employees, residents, participants, and any person under its custody, control, direction, or supervision; and (iii) require at least one unannounced inspection each year of an assisted living facility issued a license or renewal for a one-, two-, or three-year period, and provide for additional inspections as needed based on compliance with applicable laws and regulations. In addition, a Code of Virginia citation is corrected.

22VAC40-80-160. The investigation.

A. At the time of the initial application and annually thereafter, the applicant or licensee shall be responsible for obtaining inspection reports from appropriate fire and health agencies to determine compliance with applicable regulations.

EXCEPTION: Subsection A of this section does not apply to child placing agencies or family day systems.

1. All buildings shall be inspected and approved by the local building official when required. This approval shall be documented by a Certificate of Use and Occupancy indicating that the building is classified for its proposed licensed purpose.

2. At the time of the initial application and at least annually thereafter, the applicant or licensee shall obtain an inspection report from state or local fire authorities, as applicable, to determine compliance of the building or buildings with the Virginia Statewide Fire Prevention Code.

3. At the time of the initial application and at least annually thereafter, the applicant or licensee shall obtain an inspection report from state or local health authorities that shall include approval of general sanitation and, if applicable, water supply, sewage disposal systems, and food service operations for the building or buildings in which the facility is operated.

B. The department's representative will make an on-site inspection of the proposed facility or agency and an investigation of the proposed services, as well as an investigation of the character, reputation, and financial responsibility of the applicant. Compliance with all standards will be determined by the Department of Social Services. The licensee is responsible for correcting any areas of noncompliance found during any on-site inspection.

NOTE: See 22VAC40-90, 22VAC40-190 or 22VAC15-50, as applicable.

C. The applicant or licensee shall make available to at all times afford the department's representative reasonable opportunity to inspect all of the facility's or agency's buildings, books and records. The applicant or licensee shall also allow the department's representative to interview the facility's or agency's agents, employees, residents, participants, and any person under its custody, control, direction, or supervision.

EXCEPTION: Section 63.2-1702 of the Code of Virginia provides for an exception in regard to inspection of financial records of child welfare agencies under specified conditions.

D. The applicant or licensee shall also allow the department's representative to interview the facility's or agency's agents, employees, residents, participants, and any person under its custody, control, direction, or supervision. Interviews with residents, participants, and any person under the facility's or agency's custody, control, direction, or supervision shall be:

1. Authorized by the person to be interviewed or his legally authorized representative; and

2. Limited to discussion of issues related to the applicant's or licensee's compliance with applicable laws and regulations, including ascertaining if assessments and reassessments of residents' cognitive and physical needs are performed as required under regulations for licensure of the facility or agency.

D. E. After the on-site inspection the licensing representative will discuss the findings of the investigation with the administrator, licensee or designee. As applicable, the applicant shall submit an acceptable plan for correcting any areas of noncompliance following these discussions.

E. F. At any time during the investigation, an applicant or licensee may request an allowable variance to any standard that creates a special hardship. (See Part V (22VAC40-80-230 et seq.) of this chapter Allowable Variances (22VAC40-80-220 et seq.).)

22VAC40-80-180. Determination of continued compliance (renewal and monitoring inspections).

A. In order to determine continued compliance with standards during the effective dates of the license, the department's licensing representative will make announced and unannounced inspections of the facility or agency during the hours of its operation. The licensee is responsible for correcting any areas of noncompliance found during renewal or monitoring inspections.

B. All licensed child welfare agencies shall be inspected at least twice a year. At least one unannounced inspection of each licensed facility shall be made each year.

C. All adult care facilities Adult day care centers issued a license for a period of six months shall be inspected at least two times during the six-month period, and at least one of those inspections shall be unannounced. All adult care facilities Adult day care centers issued a license for a period of one year shall be inspected at least three times each year, and at least two of those inspections shall be unannounced. All adult care facilities Adult day care centers issued a license for a period of two years shall be inspected at least two times each year, and at least one of those inspections shall be unannounced. All adult care facilities Adult day care centers issued a license for a period of three years shall be inspected at least one time each year, and that visit inspection shall be unannounced.

D. Assisted living facilities issued a license for a period of six months shall be inspected at least two times during the six-month period, and at least one of those inspections shall be unannounced.

E. Assisted living facilities issued a license for a period of one, two, or three years shall be:

1. Inspected at least once each year, and that inspection shall be unannounced; and

2. Inspected as needed based on compliance with applicable laws and regulations.

D. F. The department's representative may also make such inspections of any homes or facilities that are approved by the licensee for the placement or care of children as one of the licensed services of the agency.

E. G. For any licensed assisted living facility, adult day care center, or child welfare agency, the department may conduct such other announced or unannounced inspections as are considered appropriate.

NOTE: When necessary to respond to excessive workloads or to give priority to higher risk situations, the department may use its discretion to increase or decrease the frequency of announced and unannounced inspections made to licensed facilities during the year.

22VAC40-80-510. Recommendations of the hearing officer.

A. By statute, the hearing officer shall recommend findings of fact and a decision upon the preponderance of the evidence presented by the record and relevant to the basic law under which the agency is operating (§§ 2.2-4020 and 2.2-4021 of the Code of Virginia.). The recommended decision of the hearing officer shall be made upon consideration and review of the record as a whole or such portions of the record as may be cited by any party to the proceedings. The findings of fact shall be based exclusively on admissible evidence or matters that are officially noticed. The recommendation shall be in writing and shall include specific findings on all the major facts in issue.

B. The hearing officer shall provide a recommendation within 90 days from the date the agency record is closed (that is, the date of the final hearing or the date by which the hearing officer prescribes that all evidence shall be submitted) or from a later date if agreed to by the aggrieved party and the agency (§ 2.2-4024 of the Code of Virginia). If the hearing officer does not render a recommended decision within 90 days, the named party to the case decision may provide written notice to the hearing officer and the Executive Secretary of the Supreme Court that a decision is due. If no recommended decision is made by the hearing officer within 30 days from receipt of the notice, then the Executive Secretary of the Supreme Court, pursuant to § 2.2-4024 of the Code of Virginia, shall remove the hearing officer from the hearing officer list and report the hearing officer to the Virginia State Bar for possible disciplinary action, unless good cause can be shown for the delay.

C. The available remedies offered by the hearing officer shall be to (i) uphold the decision of the department; (ii) recommend reversing the decision; or (iii) recommend issuance of a different sanction as provided in § 63.2-1709 D 63.2-1709.2 B of the Code of Virginia.

D. The findings, conclusions and recommended decision shall be provided to the parties and thereafter either party has 10 days to submit any exceptions in writing to the hearing coordinator for review by the commissioner regarding the recommended decision of the hearing officer. The hearing officer may incorporate the procedure for making exceptions to his recommended decision within the text of his report and recommendation.

E. The hearing officer shall forward the agency record, including the recommendation; all documents submitted by the parties; a listing of all exhibits presented, received and rejected; and the transcript of the hearing to the hearing coordinator.