Title of Regulation: 12VAC5-371. Regulations for the Licensure of Nursing Facilities (amending 12VAC5-371-10, 12VAC5-371-30, 12VAC5-371-40, 12VAC5-371-60, 12VAC5-371-70, 12VAC5-371-80, 12VAC5-371-110 through 12VAC5-371-191, 12VAC5-371-210, 12VAC5-371-260, 12VAC5-371-300, 12VAC5-371-330, 12VAC5-371-360, 12VAC5-371-380, 12VAC5-371-390; adding 12VAC5-371-75; repealing 12VAC5-371-400).

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

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: May 12, 2021.

Effective Date: May 27, 2021.

Agency Contact: Rebekah E. Allen, Senior Policy Analyst, Virginia Department of Health, 9960 Mayland Drive, Suite 401, Richmond, VA 23233, telephone (804) 367-2102, FAX (804) 527-4502, or email regulatorycomment@vdh.virginia.gov.

Basis: Section 32.1-12 of the Code of Virginia gives the board the responsibility to make, adopt, promulgate, and enforce such regulations as may be necessary to carry out the provisions of Title 32.1 of the Code of Virginia. Section 32.1-127 of the Code of Virginia requires the board to adopt regulations that include minimum standards for (i) the construction and maintenance of hospitals, nursing homes, and certified nursing facilities to ensure the environmental protection and the life safety of its patients, employees, and the public; (ii) the operation, staffing, and equipping of hospitals, nursing homes, and certified nursing facilities; (iii) qualifications and training of staff of hospitals, nursing homes, and certified nursing facilities, except those professionals licensed or certified by the Department of Health Professions; (iv) conditions under which a hospital or nursing home may provide medical and nursing services to patients in their places of residence; and (v) policies related to infection prevention, disaster preparedness, and facility security of hospitals, nursing homes, and certified nursing facilities.

Purpose: The rationale or justification for this regulatory change is that regulations should be clearly written, up to date, conform to the law, and should be the least burdensome means of protecting the health, safety, and welfare of citizens. The regulatory change is essential to protect the health, safety, and welfare of citizens because unclear regulations hamper licensees' ability to comply, out of date regulations may make reference to standards and practices that are not current, and reducing regulatory burden on nursing facilities allows them to redirect resources to resident care. The goals of this regulatory change are to improve consistency across the sections of this regulatory text, bring the regulatory text into alignment with the statutes, and update references to current medical guidelines.

Rationale for Using Fast-Track Rulemaking Process: The rulemaking is expected to be noncontroversial because it is being utilized to conform to the statutes and existing regulatory definitions, and no new requirements are being developed that did not already exist in statute. Additionally, the agency's subject matter experts believe that proposed changes would not jeopardize the protection of public health, safety, and welfare. Further, the additional updates to the regulation do not alter the intent of the regulation or the requirements placed on regulated entities.

Substance: 12VAC5-371-10, Definitions: Added definitions for barrier crime, criminal record report, legal representative, and sworn disclosure. Removed definitions for guardian and responsible person or party. Revised definition for facility-managed.

12VAC5-371-30, License: Added language about the nonapplicability of the chapter to certain entities and facilities. Revised text regarding what constitutes an appropriate name and removed text about notifying OLC about name changes. Revised text to more closely align with definitions in 12VAC5-371-10.

12VAC5-371-40, Licensing process: Revised text to clarify that all nursing facilities must have a Certificate of Public Need prior to receiving a license. Removed text about modifications to the nursing facility that may impact the terms of a license.

12VAC5-371-60, On-site inspections: Revised text to more closely align with definitions.

12VAC5-371-70, Complaint investigation: Revised text to more closely align with definitions.

12VAC5-371-75, Criminal records check: Created new section to include statutorily mandated criminal records check, including language on how nursing facilities satisfy this requirement when utilizing staff from temporary staffing agencies.

12VAC5-371-80, Variances: Revised text to reflect the commissioner grants variances and to more closely align with definitions.

12VAC5-371-110, Management and administration: Added language about a nursing facility's requirement to inform the VDH Office of Licensure and Certification (OLC) of changes impacting its license. Updated references to documents incorporated by reference. Revised text to more closely align with definitions.

12VAC5-371-120, Governing body: Removed text about notifying OLC about changes impacting a nursing facility license.

12VAC5-371-130, Administrator: Revised text to more closely align with definitions.

12VAC5-371-140, Policies and procedures: Revised text to more closely align with definitions.

12VAC5-371-150, Resident rights: Revised text to more closely align with definitions.

12VAC5-371-160, Financial controls and resident funds: Revised text to more closely align with definitions.

12VAC5-371-170, Quality assessment and assurance: Revised text to more closely align with definitions.

12VAC5-371-180, Infection control: Revised text to more closely align with definitions.

12VAC5-371-190, Safety and emergency procedures: Revised text to more closely align with definitions.

12VAC5-371-191, Electronic monitoring in resident rooms: Revised text to more closely align with definitions.

12VAC5-371-210, Nurse staffing: Revised text to more closely align with definitions.

12VAC5-371-260, Staff development and inservice training: Revised text to more closely align with definitions.

12VAC5-371-300, Pharmaceutical services: Revised text to more closely align with definitions.

12VAC5-371-330, Restraint usage: Revised text to more closely align with definitions.

12VAC5-371-360, Clinical records: Revised text to more closely align with definitions.

12VAC5-371-380, Laundry services: Revised text to more closely align with definitions.

12VAC5-371-390, Transportation: Revised text to more closely align with definitions.

12VAC5-371-400, Unique design solutions: Repealed this section.

DOCUMENTS INCORPORATED BY REFERENCE (12VAC5-371): Updated to reflect the changes in the proposed text and to reference the most current edition of each relevant document.

Issues: The primary advantages to the public is removal of language that was unclear, inconsistent, or outdated. There are no primary disadvantages to the public. There are no primary advantages to the agency or the Commonwealth. There are no primary disadvantages to the agency or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The State Board of Health (Board) seeks to update the regulation governing the licensure of nursing facilities following a periodic review. The Board proposes to update references to outdated vaccination protocols, remove duplicative requirements, update the Documents Incorporated by Reference (DIBR), and add a section to address the statutorily mandated criminal background check.

Background. The Board undertook a periodic review of this regulation in 2017, more than a decade after the last major revisions were made. Thus, the Board proposes a number of amendments that would serve to comprehensively update the regulation. The most substantive changes are summarized as follows:

1. The Board seeks to add a new section 12VAC5-371-75 titled Criminal records check detailing the background checks that nursing homes are statutorily required to conduct for employees.¹ Accordingly, the Board seeks to add definitions of (i) barrier crime referring the reader to the definition of the term in §19.2-392.02 of the Code of Virginia,² (ii) criminal record report meaning either the criminal record clearance with respect to convictions for barrier crimes or the criminal history record from the Central Criminal Records Exchange of the Virginia Department of State Police and (iii) sworn disclosure as a written statement or affirmation disclosing any criminal convictions or any pending criminal charges, whether within or outside the Commonwealth, by an applicant for compensated employment with a nursing facility.

The new section mirrors the language in statute, except to provide additional clarity with regard to employees who may be hired via temporary staffing agencies. In general, nursing facilities may not hire individuals who have been convicted of a barrier crime, unless it was a single misdemeanor that did not involve abuse or neglect and occurred at least five years previously. Nursing facilities must obtain both a sworn disclosure as defined above from the employee and a criminal record report from the Virginia State Police, no more than 30 days after the employment begins.

For staff hired through temporary staffing agencies, the section would clarify that the staffing agency must screen for barrier crimes, and obtain a sworn disclosure and a criminal record report within 30 days of employing the temporary staffer. Subsequently, any nursing facility hiring a temporary staffer would only require a letter from the staffing agency stating the name of the worker, the date of initial employment, and a statement verifying that the staffer has provided a sworn disclosure and that a criminal records report has been obtained by the staffing agency within 30 days of employment.

1. The Board also proposes to add a definition of legal representative as a person legally responsible for representing or standing in the place of the resident for the conduct of his affairs. This may include a guardian, conservator, attorney-in-fact under the durable power of attorney, trustee, or other person expressly named by a court of competent jurisdiction or the resident as his agency in a legal document that specifies the scope of the representative's authority to act. A legal representative may only represent or stand in the place of a resident for the function or functions for which he has legal authority to act. Accordingly, the Board seeks to remove the existing definitions of guardian and responsible person or party since their meaning would be subsumed under the definition of legal representative.

2. The Board seeks to clarify that certain entities licensed by the Department of Behavioral Health and Developmental Services or the Department of Social Services, or owned and operated by the federal government or the state are exempt from this regulation (unless they wish to participate in Medicare or Medicaid). Moreover, facilities established or operated for the practice of religious tenets pursuant to § 32.1-128 of the Code of Virginia are only required to comply with the statutes and regulations on environmental protection and health safety.

3. The Board seeks to change the requirement that every nursing facility be designated by a permanent and appropriate name to a permanent and unique name in order to prevent consumer confusion that could result from facilities using identical or similar names. According to the Virginia Department of Health (VDH), nursing facilities owned and operated by the same organization may often have the same name but also include the name of the city or county they are located in so that consumers can identify the facility easily, especially when filing a complaint with VDH.

4. The Board proposes to clarify the current requirement that a nursing facility may not be licensed without first complying with the requirements for a Certificate of Public Need (COPN) as required by the Code of Virginia.³ Accordingly, it also seeks to remove a stipulation preventing nursing facilities from operating more beds than the number for which it is licensed; the stipulation being moot given that number is set by the COPN.

5. The Board seeks to require that nursing facilities provide the director of the VDH Office of Licensure and Certification (OLC) with written notification of any changes to the name, address, ownership, bed capacity, or other details that would affect the accuracy of the license at least 30 calendar days in advance of the change.

6. The Board seeks to repeal the section governing unique design solutions since the language appears to be obsolete.

In addition to the changes listed above, the board is proposing to update the references to outdated vaccination protocols and to revise the DIBR list to reflect the most current versions. The two DIBRs that the Board seeks to update are guidelines put forth by the Centers for Disease Control: (i) a set of guidelines pertaining to Health-Care-Associated Pneumonia for which the only change would be to the website address, and (ii) a set of guidelines for the 2019-2020 flu season, which would replace the guidelines from 2004.

Estimated Benefits and Costs. The proposed amendments would reduce ambiguity arising from outdated references or requirements conflicting with other regulations, which may have been promulgated or revised more recently. According to VDH the proposed amendments do not impose any new requirements that were not already being implemented to comply with statute. Thus, although the revisions to the regulation are comprehensive in nature, the proposed changes do not introduce any new costs to nursing facilities, their employees, or consumers at large.

Businesses and Other Entities Affected. The proposed amendments would affect licensed nursing facilities, applicants for nursing facility licensure, current and prospective nursing facility residents, as well as current and prospective nursing facility employees. Per VDH, there were 291 licensed nursing facilities with 32,371 nursing facility beds in Virginia as of November 1, 2019.

Small Businesses⁴ Affected Types and Estimated Number of Small Businesses Affected

As of November 1, 2019, 12 of the 291 licensed nursing facilities were believed to be small businesses, as per VDH.

Costs and Other Effects. Since the proposed amendments do not impose any additional costs, current or prospective nursing facilities that may be small businesses would not face any additional costs arising from the proposed amendments.

Alternative Method that Minimizes Adverse Impact. The proposed amendments do not create an adverse impact for any nursing facilities, including any that are small businesses.

Localities⁵ Affected.⁶ The proposed amendments do not disproportionately affect any specific localities, nor do they introduce new costs for local governments. Projected Impact on Employment

The proposed amendments are unlikely to affect employment by nursing facilities or temporary staffing agencies that serve nursing facilities since the background check requirements have been in place for over a decade, even if they have not been specifically included in the regulation.

Effects on the Use and Value of Private Property. To proposed amendments would not affect the value of private property. Real estate development costs would not be affected.

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¹See https://law.lis.virginia.gov/vacode/title32.1/chapter5/section32.1-126.01/. The statute has required some form of background checks for compensated employees at nursing homes since at least 1999.

²See https://law.lis.virginia.gov/vacode/19.2-392.02/. The definition of barrier crime as it applies to this regulation includes only the first clause (i) of the definition in statute.

³See Article 1.1 in https://law.lis.virginia.gov/vacode/title32.1/chapter4/

⁴Pursuant 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.

⁵Locality can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

⁶§ 2.2-4007.04 defines particularly affected as bearing disproportionate material impact.

Agency's Response to Economic Impact Analysis: The Virginia Department of Health has reviewed and concurs with the Department of Planning and Budget's economic impact analysis.

Summary:

As result of a periodic review of the regulation, the amendments (i) update vaccination protocols and the associated documents incorporated by reference, (ii) remove duplicative requirements, (iii) add requirements of statutorily mandated criminal background checks, and (iv) make text consist with statute and within the regulation.

12VAC5-371-10. Definitions.

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

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

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

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

"Advance directive" means (i) a witnessed written document, voluntarily executed by the declarant in accordance with the requirements of § 54.1-2983 of the Code of Virginia, or (ii) a witnessed oral statement, made by the declarant subsequent to the time he is diagnosed as suffering from a terminal condition and in accordance with the provision of § 54.1-2983 of the Code of Virginia.

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

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

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

"Board" means the Board of Health.

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

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

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

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

"Commissioner" means the State Health Commissioner.

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

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

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

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

"Department" means the Virginia Department of Health.

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

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

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

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

"Electronic monitoring" means an unmanned video recording system with or without audio capability installed in the room of a resident.

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

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

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

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

"Guardian" means a person legally invested with the authority and charged with the duty of taking care of the resident, managing his property, and protecting the rights of the resident who has been declared by the circuit court to be incapacitated and incapable of administering his own affairs. The powers and duties of the guardian are defined by the court and are limited to matters within the areas where the resident in need of a guardian has been determined to be incapacitated.

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

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

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

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

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

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

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

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

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

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

"Qualified" means meeting current legal requirements of licensure, registration or certification in Virginia; having appropriate training and experience commensurate with assigned responsibilities; or, if referring to a professional, possessing an appropriate degree or having documented equivalent education, training or experience.

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

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

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

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

"Responsible person or party" means an individual authorized by the resident to act for him as an official delegate or agent. The responsible person may be a guardian, payee, family member or any other individual who has arranged for the care of the resident and assumed this responsibility. The responsible person or party may or may not be related to the resident. A responsible person or party is not a guardian unless so appointed by the court.

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

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

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

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

12VAC5-371-30. License.

A. This chapter is not applicable to:

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

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

B. A license to operate a nursing facility is issued to a person or organization. An organization may be a partnership, association, corporation, or public entity.

B. C. Each license and renewal thereof shall be issued for one year. A nursing facility shall operate within the terms of its license, which include the:

1. Name of the nursing facility;

2. Name of the operator;

3. Physical location of the nursing facility;

4. Maximum number of beds allowed; and

5. Date the license expires.

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

D. E. Every nursing facility shall be designated by a permanent and appropriate unique name. The name shall not be changed without first notifying the OLC.

E. F. The number of resident beds allowed in a nursing facility shall be determined by the department. Requests to increase beds must be made in writing and must include an approved Certificate of Public Need, except as provided in 12VAC5-371-40 J G.

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

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

12VAC5-371-40. Licensing process.

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

1. Explain the standards and the licensing process;

2. Provide assistance in locating other sources of information;

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

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

B. Upon request, the OLC will provide an application form for a license to operate a nursing facility. Licensees and applicants shall obtain licensure applications from the OLC.

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

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

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

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

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

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

G. Prior to changes in operation which would affect the terms of the license, the licensee must secure a modification to the terms of the license from the OLC.

H. Requests to modify a license must be submitted in writing, 30 working days in advance of any proposed changes, to the Director of the Office of Licensure and Certification.

I. The license shall be returned to the OLC following a correction or reissuance when there has been a change in:

1. Address;

2. Operator;

3. Name; or

4. Bed capacity.

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

K. The OLC will evaluate written information about any planned changes in operation which would affect either the terms of the license or the continuing eligibility for a license. A licensing representative may visit the facility during the process of evaluating a proposed modification.

L. If a modification can be granted, the OLC shall respond in writing with a modified license. In the event a new application is needed, the licensee will receive written notification. When the modification cannot be granted, the licensee shall be advised by letter.

M. The department shall send an application for renewal of the license to the licensee prior to the expiration date of the current license.

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

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

12VAC5-371-60. On-site inspections.

A. The licensing representative shall make unannounced on-site inspections of the nursing facility. The licensee shall be responsible for correcting any deficiencies found during any on-site inspection. Compliance with all standards will be determined by the OLC.

B. The licensee shall make available to the licensing representative any necessary records.

C. The licensee shall also allow the licensing representative to interview the agents, employees, residents, family members, and any person under its custody, control, direction or supervision.

D. After the on-site inspection, the licensing representative shall discuss the findings of the inspection with the administrator of record or designee.

E. As applicable, the administrator of record shall submit an acceptable plan for correcting any deficiencies found during an on-site inspection.

F. The administrator of record will be notified whenever any item in the plan of correction is determined to be unacceptable.

G. The administrator of record shall be responsible for assuring the plan of correction is implemented and monitored so that compliance is maintained.

12VAC5-371-70. Complaint investigation.

A. The OLC has the responsibility to investigate any complaints regarding alleged violations of the standards or statutes and complaints of the abuse or neglect of persons in care. The Department of Social Services and the State Ombudsman are notified of complaints received.

B. Complaints may be received in written or oral form and may be anonymous.

C. When the investigation is complete, the licensee and the complainant, if known, will be notified of the findings of the investigation.

D. As applicable, the facility's administrator of record shall submit an acceptable plan for correcting any deficiencies found during a complaint investigation.

E. The administrator of record will be notified whenever any item in the plan of correction is determined to be unacceptable.

F. The administrator of record shall be responsible for assuring the plan of correction is implemented and monitored so that compliance is maintained.

12VAC5-371-75. Criminal records check.

A. A nursing facility may not hire for compensated employment a person who has been convicted of a barrier crime, unless:

1. The person has been convicted of a single barrier crime punishable as a misdemeanor;

2. The conviction does not involve abuse or neglect; and

3. Five years have elapsed since the conviction.

B. A nursing facility shall:

1. Obtain from an applicant for compensated employment a sworn disclosure;

2. Attach the sworn disclosure to and file it with the criminal record report; and

3. Obtain a criminal record report on applicants for compensated employment from the Virginia Department of State Police no more than 30 calendar days after employment begins.

C. A nursing facility may not accept:

1. A criminal record report dated more than 90 calendar days prior to the start date of employment; or

2. Duplicates or copies of the original criminal record report, except as provided in subsection D of this section.

D. If a nursing facility uses a temporary staffing agency for substitute staff, a nursing facility shall obtain a letter from the temporary staffing agency that includes:

1. The name of the substitute staffing person;

2. The date of employment by the temporary staffing agency; and

3. A statement verifying that the criminal record report:

a. Has been obtained within 30 calendar days of employment at the temporary staffing agency;

b. Is on file at the temporary staffing agency; and

c. Does not contain a conviction for a barrier crime, or indicates the substitute staffing person has been convicted of a single barrier crime punishable as a misdemeanor that does not involve abuse or neglect and five years have elapsed since the conviction.

E. A nursing facility may not permit a compensated employee to work in a position that involves direct contact with a patient until an original criminal record report has been received by the nursing facility or temporary staffing agency, unless the employee works under the direct supervision of another compensated employee for whom a background check has been completed in accordance with subsection B of this section.

F. A nursing facility shall obtain a new criminal record report and a new sworn disclosure if an individual:

1. Terminates compensated employment at one nursing facility and begins compensated employment at another nursing facility, unless the nursing facilities are owned by the same entity. The employee's file shall contain a statement indicating the original criminal record report has been transferred or forwarded to the new work location; or

2. Takes a leave of absence exceeding six consecutive months.

G. A nursing facility shall provide a copy of the criminal record report to an applicant denied compensated employment because of convictions appearing on his criminal record report.

H. A nursing facility shall maintain the confidentiality of criminal record reports and store criminal record reports in locked files accessible only to the administrator or designee.

I. A nursing facility may not disseminate the criminal record report and sworn disclosure except to a federal or state authority or court as may be required to comply with an express requirement of law for such further dissemination.

12VAC5-371-80. Variances.

A. The OLC can commissioner may authorize variances only to its own licensing standards, not to regulations of another agency or to any requirements in federal, state, or local laws.

B. A nursing facility may request a variance to a particular standard or requirement contained in this chapter when the standard or requirement poses a special hardship and when a variance to it would not endanger the safety or well-being of residents, employees, or the public.

C. Upon finding that the enforcement of one or more of the standards would be clearly impractical, the OLC commissioner shall have the authority to waive, either temporarily or permanently, the enforcement of one or more of these standards, provided safety, resident care and services are not adversely affected.

D. The OLC commissioner may rescind or modify a variance if (i) conditions change; (ii) additional information becomes known which alters the basis for the original decision; (iii) the nursing facility fails to meet any conditions attached to the variance; or (iv) results of the variance jeopardize the safety, comfort, or well-being of residents, employees and the public.

E. Consideration of a variance is initiated when a written request is submitted to the Director director of the Office of Licensure and Certification OLC. The OLC may provide consultation in the development of the written request and throughout the variance process.

F. The request for a variance must describe the special hardship to the existing program or to a planned innovative or pilot program caused by the enforcement of the requirements. When possible, the request should include proposed alternatives to meet the purpose of the requirements which will ensure the protection and well-being of residents, employees, and the public.

G. The OLC shall notify the nursing facility of the receipt of the request for a variance. The OLC commissioner may attach conditions to the granting of the variance in order to protect persons in care.

H. When the decision is to deny a request for a variance, the reason shall be provided in writing to the licensee.

I. When a variance is denied, expires, or is rescinded, routine enforcement of the standard or portion of the standard shall be resumed. The nursing facility may at any time withdraw a request for a variance.

12VAC5-371-110. Management and administration.

A. No person shall own, establish, conduct, maintain, manage, or operate any nursing facility, as defined in § 32.1-123 of the Code of Virginia, without having obtained a license.

B. The nursing facility must comply with:

1. These regulations (12VAC5-371);

2. Other applicable federal, state or local laws and regulations; and

3. Its own policies and procedures.

C. The nursing facility shall submit, or make available, reports and information necessary to establish compliance with these regulations and applicable statutes.

D. The nursing facility shall submit, in a timely manner as determined by the OLC, and implement a written plan of action to correct any noncompliance with these regulations identified during an inspection. The plan shall include:

1. Description of the corrective action or actions to be taken;

2. Date of completion for each action; and

3. Signature of the person responsible for the operation.

E. The nursing facility shall permit representatives from the OLC to conduct inspections to:

1. Verify application information;

2. Determine compliance with this chapter;

3. Review necessary records; and

4. Investigate complaints.

F. The current license from the department shall be posted in a place clearly visible to the general public. A nursing facility shall give written notification 30 calendar days in advance of implementation of changes affecting the accuracy of the license. Changes affecting the accuracy of the license are:

1. Address;

2. Operator;

3. Name of the nursing facility;

4. Any proposed change in management contract or lease agreement to operate the nursing facility;

5. Implementing any proposed addition, deletion, or change in nursing facility services whether or not licensure is required;

6. A change in ownership; or

7. Bed capacity.

Notices shall be sent to the attention of the director of the OLC.

G. The nursing facility shall not operate more resident beds than the number for which it is licensed The current license from the commissioner shall be posted in a place clearly visible to the general public.

H. The nursing facility shall fully disclose its admission policies, including any preferences given, to applicants for admission.

I. The nursing facility shall identify its operating elements and programs, the internal relationship among these elements and programs, and the management or leadership structure.

J. The nursing facility shall provide, or arrange for, the administration to its residents of an annual influenza vaccination and a pneumonia vaccination according to the most recent recommendations for "Prevention and Control of Influenza" (www.cdc.gov/mmwr/preview/mmwrhtml/rr5306a1.htm), MMWR 53 (RR06), "Prevention and Control of Seasonal Influenza with Vaccines: Recommendations of the Advisory Committee on Immunization Practices — United States, 2020–21 Influenza Season" and "Guidelines for Preventing Health Care-Associated Pneumonia, 2003" (www.cdc.gov/mmwr/preview/mmwrhtml/rr5303a1.htm), MMWR 53 (RR03), of "Guidelines for Preventing Health-Care-Associated Pneumonia" from the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention, unless the vaccination is medically contraindicated or the resident declines the vaccination offer.

K. Upon request of the nursing facility's family council, the nursing facility shall send notices and information about the family council mutually developed by the family council and the administration of the nursing home facility, and provided to the nursing facility for such purpose, to the listed responsible party legal representative or a contact person of the resident's choice up to six times a year. Such notices may be included together with a monthly billing statement or other regular communication. Notices and information shall also be posted in a designated location within the nursing facility.

12VAC5-371-120. Governing body.

A. The nursing facility shall have a governing body that is legally responsible for the management of the operation.

B. The governing body shall adopt written bylaws that describe the organizational structure and establish authority and responsibility in accordance with applicable laws, including a:

1. Statement of purpose;

2. Description of the functions of the governing body members, officers and committees;

3. Description of the method of adoption, implementation, and periodic review of policies and procedures; and

4. Description of the methods to be utilized to assure compliance with this chapter.

C. The governing body shall disclose the names and addresses of any individual or entity that holds 5.0% or more ownership interest in the operation of the nursing facility.

D. When the governing body is not the owner of the physical plant, the governing body shall disclose the name and address of the individual or entity responsible for the alterations, modifications, maintenance and repairs to the building.

E. The governing body shall notify the OLC in writing 30 days in advance of changes affecting the accuracy of the license. Changes affecting the accuracy of the license are:

1. Any proposed change in management contract or lease agreement to operate the nursing facility;

2. Implementing any proposed addition, deletion, or change in nursing facility services whether or not licensure is required;

3. Selling the facility; or

4. A change in ownership.

12VAC5-371-130. Administrator.

A. The governing body shall appoint an individual, on a full-time basis, to serve as its on-site agent, responsible for the day-to-day administration and management.

B. The governing body shall provide the OLC with evidence that the individual appointed as administrator is:

1. Currently licensed by the Virginia Board of Long-Term Care Administrators; or

2. Holds a current administrator's license in another state and has filed an application for license with the Virginia Board of Long-Term Care Administrators.

C. Within five working days of the effective date of termination of the administrator's employment, the governing body shall notify the OLC, in writing, of the name and qualifications of the replacement administrator of record or the acting administrator.

D. The governing body shall appoint a qualified administrator within 90 days of the effective date of the termination of the previously qualified administrator, and shall provide the OLC with written notification of the administrator's name, license number, and effective date of employment.

An additional 30-day extension may be granted if a written request provides documentation that the individual designated as administrator is awaiting the final licensing decision of the Virginia Board of Long-Term Care Administrators.

E. The governing body shall assure that administrative direction is provided at all times. The governing body, the administrator, or the chief executive officer shall designate, in writing, a qualified individual to act as the alternate nursing home administrator in the absence of the administrator of record.

12VAC5-371-140. Policies and procedures.

A. The nursing facility shall implement written policies and procedures approved by the governing body.

B. All policies and procedures shall be reviewed at least annually, with recommended changes submitted to the governing body for approval.

C. A written record of the annual policy review, including at least the review dates, participants, recommendations and action dates of the governing body, shall be maintained.

D. Administrative and operational policies and procedures shall include, but are not limited to:

1. Administrative records;

2. Admission, transfer and discharge;

3. Medical direction and physician services;

4. Nursing direction and nursing services;

5. Pharmaceutical services, including drugs purchased outside the nursing facility;

6. Dietary services;

7. Social services;

8. Activities services;

9. Restorative and rehabilitative resident services;

10. Contractual services;

11. Clinical records;

12. Resident rights and grievances;

13. Quality assurance and infection control and prevention;

14. Safety and emergency preparedness procedures;

15. Professional and clinical ethics, including:

a. Confidentiality of resident information;

b. Truthful communication with residents;

c. Observance of appropriate standards of informed consent and refusal of treatment; and

d. Preservation of resident dignity, with special attention to the needs of the aged, the cognitively impaired, and the dying; and

16. Facility Nursing facility security.

E. Personnel policies and procedures shall include, but are not limited to:

1. Written job descriptions that specify authority, responsibility, and qualifications for each job classification;

2. An on-going plan for employee orientation, staff development, in-service training and continuing education;

3. An accurate and complete personnel record for each employee including:

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

b. Criminal record check;

c. Verification that the employee has reviewed or received a copy of the job description;

d. Orientation to the nursing facility, its policies and to the position and duties assigned;

e. Completed continuing education program approved for the employee as determined by the outcome of the annual performance evaluation;

f. Annual employee performance evaluations; and

g. Disciplinary action taken; and

4. Employee health-related information retained in a file separate from personnel files.

F. Financial policies and procedures shall include, but not be limited to:

1. Admission agreements;

2. Methods of billing:

a. Services not included in the basic daily or monthly rate;

b. Services delivered by contractors of the nursing facility; and

c. Third party payers;

3. Resident or designated representative notification of changes in fees and charges;

4. Correction of billing errors and refund policy;

5. Collection of delinquent resident accounts; and

6. Handling of resident funds.

G. Policies shall be made available for review, upon request, to residents and their designated representatives.

H. Policies and procedures shall be readily available for staff use at all times.

12VAC5-371-150. Resident rights.

A. The nursing facility shall develop and implement policies and procedures that ensure resident's rights as defined in §§ 32.1-138 and 32.1-138.1 of the Code of Virginia.

B. The procedures shall:

1. Not restrict any right a resident has under law;

2. Provide staff training to implement resident's rights; and

3. Include grievance procedures.

C. The name and telephone number of the complaint coordinator of the OLC, the Adult Protective Services toll-free telephone number, and the toll-free telephone number for the State Ombudsman shall be conspicuously posted in a public place.

D. Copies of resident rights shall be given to residents upon admittance to the nursing facility and made available to residents currently in residence, to any guardians legal representatives, next of kin, or sponsoring agency or agencies, and to the public.

E. The nursing facility shall have a plan to review resident rights with each resident annually, or with the responsible family member or responsible agent legal representative at least annually, and have a plan to advise each staff member at least annually.

F. The nursing facility shall certify, in writing, that it is in compliance with the provisions of §§ 32.1-138 and 32.1-138.1 of the Code of Virginia, relative to resident rights, as a condition of license issuance or renewal.

G. The nursing facility shall register with the Department of State Police to receive notice of the registration or reregistration of any sex offender within the same or a contiguous zip code area in which the nursing facility is located pursuant to § 9.1-914 of the Code of Virginia.

H. Prior to admission, each nursing facility shall determine if a potential resident is a registered sex offender when the potential resident is anticipated to have a length of stay:

1. Greater than three days; or

2. In fact stays longer than three days.

I. The nursing facility shall not restrict the rights of a nursing home resident's family and resident's legal representative to meet in the nursing facility with the families and legal representatives of other residents of the facility.

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

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

B. Each nursing facility shall maintain liability insurance coverage in a minimum of $1 million and professional liability coverage in an amount at least equal to the recovery limit set forth in § 8.01-581.15 of the Code of Virginia to compensate residents or individuals for injuries and losses resulting from the negligent or criminal acts of the nursing facility. Failure to maintain minimum insurance shall result in revocation of the nursing facility's license.

C. Nursing facilities choosing to handle resident funds shall:

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

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

3. Provide for separate accounting for resident funds.

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

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

12VAC5-371-170. Quality assessment and assurance.

A. The nursing facility shall maintain a quality assessment and assurance committee consisting of at least the following individuals:

1. The director of nursing services;

2. A physician designated by the nursing facility; and

3. At least three other members of the nursing facility staff, one of whom demonstrates an ability to represent the rights and concerns of residents.

B. The quality assessment and assurance committee shall:

1. Meet at least quarterly to identify issues which would improve quality of care and services provided to residents; and

2. Develop and implement appropriate plans of action to correct identified deficiencies.

C. The nursing facility shall document compliance with these requirements.

12VAC5-371-180. Infection control.

A. The nursing facility shall establish and maintain an infection control program designed to provide a safe, sanitary, and comfortable environment and to prevent the development and transmission of disease and infection.

B. The infection control program shall encompass the entire physical plant and all services.

C. The infection control program addressing the surveillance, prevention and control of facility wide infections in the nursing facility shall include:

1. Procedures to isolate the infecting organism;

2. Access to handwashing equipment for staff;

3. Training of staff in proper handwashing techniques, according to accepted professional standards, to prevent cross contamination;

4. Implementation of universal precautions by direct resident care staff;

5. Prohibiting employees with communicable diseases or infections from direct contact with residents or their food, if direct contact will transmit disease;

6. Monitoring staff performance of infection control practices;

7. Handling, storing, processing and transporting linens, supplies and equipment in a manner that prevents the spread of infection;

8. Handling, storing, processing and transporting regulated medical waste in accordance with applicable regulations;

9. Maintaining an effective pest control program; and

10. Staff education regarding infection risk-reduction behavior.

D. The nursing facility shall report promptly to its local health department diseases designated as "reportable" according to 12VAC5-90-80 when such cases are admitted to or are diagnosed in the nursing facility and shall report any outbreak of infectious disease as required by 12VAC5-90. An outbreak is defined as an increase in incidence of any infectious disease above the usual incidence at the nursing facility.

12VAC5-371-190. Safety and emergency procedures.

A. A written emergency preparedness plan shall be developed, reviewed, and implemented when needed. The plan shall address responses to natural disasters, as well as fire or other emergency which disrupts the normal course of operations. The plan shall address provisions for relocating residents and also address staff responsibilities for:

1. Alerting emergency personnel and sounding alarms;

2. Implementing evacuation procedures including the evacuation of residents with special needs;

3. Using, maintaining and operating emergency equipment;

4. Accessing resident emergency medical information; and

5. Utilizing community support services.

B. All staff shall participate in periodic emergency preparedness training.

C. Staff shall have documented knowledge of, and be prepared to implement, the emergency preparedness plan in the event of an emergency.

D. At least one telephone shall be available in each area to which residents are admitted and additional telephones or extensions as are necessary to ensure availability in case of need.

E. In the event of a disaster, fire, emergency or any other condition that may jeopardize the health, safety and well-being of residents, the organization nursing facility shall notify the OLC of the conditions and status of the residents and the licensed facility physical plant as soon as possible.

F. The nursing facility shall have a policy on smoking.

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

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

B. Only electronic monitoring in accordance with this section is permitted.

C. A nursing facility shall not refuse to admit an individual and shall not discharge or transfer a resident due to a request to conduct authorized electronic monitoring.

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

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

F. Facilities Nursing facilities shall designate one staff person to be responsible for managing the electronic monitoring program.

G. Facilities Nursing facilities may designate custodial ownership of any recordings from monitoring devices to the resident or the resident's responsible party legal representative. Facility Nursing facility retained recordings shall be considered part of the resident's medical record and shall be retained for no less than two years or as required by state and federal laws.

H. If a nursing facility chooses to retain ownership of recordings, the nursing facility shall not permit viewings of recordings without consent of the resident or the resident's responsible party legal representative except to the extent that disclosure is required by law through a court order or pursuant to a lawful subpoena duces tecum. Should a the resident or a resident's responsible party legal representative approve viewing, the nursing facility shall accommodate viewing of any recordings in a timely manner, including providing:

1. Appropriate playing or viewing equipment;

2. Privacy during viewing; and

3. Viewing times convenient to the resident or the resident's responsible party legal representative.

If unauthorized viewing is discovered, the nursing facility shall report any such violation to the Office of Long-Term Care Ombudsman and to the OLC.

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

J. A nursing facility shall have no obligation to seek access to a recording in its possession or to have knowledge of a recording's content, unless the nursing facility is aware of a recorded incident of suspected abuse, neglect, accident, or injury, or the resident, the resident's responsible party legal representative, or a government agency seeks to use a recording. Facilities Nursing facilities shall immediately report suspected abuse and neglect discovered as a result of using monitoring devices, as required by law.

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

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

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

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

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

2. Providing access to power sources for the device.

O. A nursing facility may require a resident or a resident's responsible party legal representative to pay for all costs, other than the cost of electricity, associated with installing electronic monitoring equipment. Such costs shall be reasonable and may include equipment, recording media and installation, compliance with life safety and building and electrical codes, maintenance or removal of the equipment, posting and removal of any public notices, or structural repairs to the building resulting from the removal of the equipment. Facilities Nursing facilities shall give 45 days' notice of an increase in monthly monitoring fees.

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

Q. The informed consent of all residents, or if a resident is incapable, a resident's responsible party, or residents' legal representatives assigned to the monitored room shall be obtained prior to any electronic monitoring equipment being installed.

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

S. Any resident or the resident's responsible party legal representative of a resident of a monitored room may condition consent for use of monitoring devices. Such conditions may include pointing the camera away or limiting or prohibiting the use of certain devices. If conditions are placed on consent, then electronic monitoring shall be conducted according to those conditions.

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

U. Facilities Nursing facilities shall notify all staff and their the long-term care division of the OLC Long-Term Care Supervisor that electronic monitoring is in use.

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

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

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

Y. A nursing facility shall prohibit staff from tampering with electronic monitoring in violation of this chapter. Facilities Nursing facilities shall instruct the resident or the resident's responsible party legal representative of this prohibition and shall provide the resident or the resident's responsible party legal representative with the OLC's complaint hotline telephone number.

12VAC5-371-210. Nurse staffing.

A. A nursing supervisor, designated by the director of nursing, shall be responsible for all nursing activities in the nursing facility, or in the section to which assigned, including:

1. Making daily visits to determine resident physical, mental, and emotional status and implementing any required nursing intervention;

2. Reviewing medication records for completeness, accuracy in the transcription of physician orders, and adherence to stop-order policies;

3. Reviewing resident plans of care for appropriate goals and approaches, and making revisions based on individual needs;

4. Assigning to the nursing staff responsibility for nursing care;

5. Supervising and evaluating performance of all nursing personnel on the unit; and

6. Keeping the director of nursing services, or director of nursing designee, informed of the status of residents and other related matters.

B. The nursing facility shall provide qualified nurses and certified nurse aides on all shifts, seven days per week, in sufficient number to meet the assessed nursing care needs of all residents.

C. Nursing personnel, including registered nurses, licensed practical nurses, and certified nurse aides shall be assigned duties consistent with their education, training and experience.

D. Weekly time schedules shall be maintained and shall indicate the number and classification of nursing personnel who worked on each unit for each shift. Schedules shall be retained for one year.

E. All nursing services shall be directly provided by an appropriately qualified registered nurse or licensed practical nurse, except for those nursing tasks that may be delegated by a registered nurse according to 18VAC90-20-420 through 18VAC90-20-460 Part IV (18VAC19-20-240 et seq.) of the regulation of the Virginia Board Regulations Governing the Practice of Nursing and with a plan developed and implemented by the nursing facility.

F. Before allowing a nurse aide to perform resident care duties, the nursing facility shall verify that the individual is:

1. A certified nurse aide in good standing;

2. Enrolled full-time in a nurse aide education program approved by the Virginia Board of Nursing; or

3. Has completed a nurse aide education program or competency testing, but has not yet been placed on the nurse aide registry.

G. Any person employed to perform the duties of a nurse aide on a permanent full-time, part-time, hourly, or contractual basis must be registered as a certified nurse aide within 120 days of employment.

H. Nurse aides employed or provided by a temporary personnel agency shall be certified to deliver nurse aide services.

I. The services provided or arranged with a temporary personnel agency shall meet professional standards of practice and be provided by qualified staff according to each resident's comprehensive plan of care.

12VAC5-371-260. Staff development and inservice training.

A. All full-time, part-time, and temporary personnel shall receive orientation to the nursing facility commensurate with their function or job-specific responsibilities.

B. All resident care staff shall receive annual inservice training commensurate with their function or job-specific responsibilities in at least the following:

1. Special needs of residents as determined by the nursing facility staff;

2. Prevention and control of infections;

3. Fire prevention or control and emergency preparedness;

4. Safety and accident prevention;

5. Restraint use, including alternatives to physical and chemical restraints;

6. Confidentiality of resident information;

7. Understanding the needs of the aged and disabled;

8. Resident rights, including personal rights, property rights and the protection of privacy, and procedures for handling complaints;

9. Care of the cognitively impaired;

10. Basic principles of cardiopulmonary resuscitation for licensed nursing staff and the Heimlich maneuver for nurse aides; and

11. Prevention and treatment of pressure sores.

C. The nursing facility shall have an ongoing training program that is planned and conducted for the development and improvement of skills of all personnel.

D. The nursing facility shall maintain written records indicating the content of and attendance at each orientation and inservice training program.

E. The nursing facility shall provide inservice programs, based on the outcome of annual performance evaluations, for nurse aides.

F. Nurse aide inservice training shall consist of at least 12 hours per anniversary year.

G. The nursing facility shall provide training on the requirements for reporting adult abuse, neglect, or exploitation and the consequences for failing to make such a required report to all its employees who are licensed to practice medicine or any of the healing arts, serving as a hospital resident or intern, engaged in the nursing profession, working as a social worker, mental health professional or law-enforcement officer and any other individual working with residents of the nursing facility.

12VAC5-371-300. Pharmaceutical services.

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

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

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

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

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

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

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

2. Registered with the Board of Pharmacy.

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

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

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

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

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

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

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

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

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

12VAC5-371-330. Restraint usage.

A. A resident shall be free from any physical or chemical restraints imposed for purposes of discipline or convenience, and not required to treat the resident's medical symptoms.

B. Restraints shall only be used:

1. In accordance with the comprehensive assessment and plan of care, which includes a schedule or plan of rehabilitation training enabling the progressive removal or the progressive use of less restrictive restraints when appropriate; and

2. As a last resort, after completing, implementing, and evaluating the resident's comprehensive assessment and plan of care, when the nursing facility has determined that less restrictive means have failed.

C. If a restraint is used in a nonemergency, the nursing facility shall:

1. Explain the use of the restraint, including potential negative outcomes of restraint use, to the resident or his legal representative, as appropriate;

2. Explain the resident's right to refuse the restraint;

3. Obtain written consent of the resident. If the resident has been legally declared incompetent, obtain written consent from the legal representative; and

4. Include the use of restraint in the plan of care.

D. Restraints shall not be ordered on a standing or PRN basis.

E. Restraints shall be applied only by staff trained in their use.

F. At a minimum, for a resident placed in a restraint, the nursing facility shall:

1. Check the resident at least every 30 minutes;

2. Provide an opportunity for motion, exercise and elimination for not less than 10 minutes each hour in which a restraint is administered; and

3. Document restraint usage, including outcomes, in accordance with nursing facility policy.

G. Emergency orders for restraints shall not be in effect for longer than 24 hours and must be confirmed by a physician within one hour of administration. Each application of emergency restraint shall be considered a single event and shall require a separate physician's order.

H. Temporary restraints may be used for a brief period to allow a medical or surgical procedure, but shall not be used to impose a medical or surgical procedure which the resident has previously refused.

I. The nursing facility shall notify a resident's legal representative, if any, or designated family member as soon as practicable, but no later than 12 hours after administration of a restraint.

J. Chemical restraint shall only be ordered in an emergency situation when necessary to ensure the physical safety of the resident or other individuals.

K. Orders for chemical restraint shall be in writing, signed by a physician, specifying the dose, frequency, duration and circumstances under which the chemical restraint is to be used. Verbal orders for chemical restraints shall be implemented when an emergency necessitates parenteral administration of psychopharmacologic drugs, but only until a written order can reasonably be obtained.

L. Emergency orders for chemical restraints shall:

1. Not be in effect for more than 24 hours; and

2. Be administered only if the resident is monitored continually for the first 15 minutes after each parenteral administration (or 30 minutes for nonparenteral administration) and every 15 minutes thereafter, for the first hour, and hourly for the next eight hours to ensure that any adverse side effects will be noticed and appropriate action taken as soon as possible.

12VAC5-371-360. Clinical records.

A. The nursing facility shall maintain an organized clinical record system in accordance with recognized professional practices. Written policies and procedures shall be established specifying content and completion of clinical records.

B. Clinical records shall be confidential. Only authorized personnel shall have access as specified in §§ 8.01-413 and 32.1-127.1:03 of the Code of Virginia.

C. Records shall be safeguarded against destruction, fire, loss, or unauthorized use.

D. Overall supervisory responsibility for assuring that clinical records are maintained, completed and preserved shall be assigned to an employee of the nursing facility. The individual shall have work experience or training which that is consistent with the nature and complexity of the record system and be capable of effectively carrying out the functions of the job.

E. An accurate and complete clinical record shall be maintained for each resident and shall include, but not be limited to:

1. Resident identification;

2. Designation of attending physician;

3. Admitting information, including resident medical history, physical examination, and diagnosis;

4. Physician orders, including all medications, treatments, diets, restorative, and special medical procedures required;

5. Progress notes written at the time of each visit;

6. Documented evidence of assessment of resident's needs, establishment of an appropriate treatment plan, and interdisciplinary plan of care;

7. Nurse's notes written in chronological order and signed by the individual making the entry;

8. All symptoms and other indications of illness or injury, including date, time, and action taken on each shift;

9. Medication and treatment record, including all medications, treatments and special procedures performed;

10. Copies of radiology, laboratory and other consultant reports; and

11. Discharge summary.

F. Verbal orders shall be immediately documented in the clinical record by the individual authorized to accept the orders, and shall be countersigned.

G. Clinical records of discharged residents shall be completed within 30 days of discharge.

H. Clinical records shall be kept for a minimum of five years after discharge or death, unless otherwise specified by state or federal law.

I. Permanent information kept on each resident shall include:

1. Name;

2. Social security number;

3. Date of birth;

4. Date of admission and discharge; and

5. Name and address of guardian legal representative, if any.

J. Clinical records shall be available to residents and legal representatives, if they wish to see them.

K. When a nursing facility closes, the owners shall make provisions for the safekeeping and confidentiality of all clinical records.

12VAC5-371-380. Laundry services.

A. A quantity of linens shall be available at all times to provide for proper care and comfort of residents.

B. Linens and other laundry must be handled, stored, and processed to control the spread of infection.

C. Clean linen shall be stored in a clean and dry area accessible to the nursing unit.

D. Soiled linen shall be stored in covered containers in separate, well ventilated areas and shall not accumulate in the nursing facility.

E. Soiled linen shall not be sorted, laundered, rinsed, or stored in bathrooms, resident rooms, kitchens, or food storage areas.

F. Soiled linen shall not be placed on the floor.

G. Arrangement for laundering resident's personal clothing shall be provided. If laundry facilities are not provided on premises, commercial laundry services shall be utilized.

12VAC5-371-390. Transportation.

A. Provisions shall be made to obtain appropriate transportation in cases of emergency.

B. The nursing facility shall assist in obtaining transportation when it is necessary to obtain medical, psychiatric, dental, diagnostic or other services outside the nursing facility.

12VAC5-371-400. Unique design solutions. (Repealed.)

A. All unique design solutions shall be described with outcome measures. This shall be reviewed in cooperation with the OLC.

B. The description and outcome measures shall be a part of the material used to review the design solution at the time of the facility survey.

C. All unique design solutions, unless specifically excluded by contract, shall comply with Parts II (12VAC5-371-110 et seq.) and III (12VAC5-371-200 et seq.) of this chapter.

DOCUMENTS INCORPORATED BY REFERENCE

Guidelines for Design and Construction of Health Care Facilities, Facilities Guideline Institute (formerly of the American Institute of Architects Academy of Architecture), 2010 Edition.

Guidelines for Preventing Health Care-Associated Pneumonia, 2003, MMWR 53 (RR03), Advisory Committee on Immunization Practices, Centers for Disease Control and Prevention.

Prevention and Control of Influenza, MMWR 53 (RR06), Advisory Committee on Immunization Practices, Centers for Disease Control and Prevention.

Guidelines for Preventing Health-Care-Associated Pneumonia, 2003, MMWR 53 (RR-3), Advisory Committee on Immunization Practices, Centers for Disease Control and Prevention.

Prevention and Control of Seasonal Influenza with Vaccines: Recommendations of the Advisory Committee on Immunization Practices — United States, 2020–21 Influenza Season, 2020, MMWR 69 (RR-8), Centers for Disease Control and Prevention.