Title of Regulation: 2VAC5-336. Regulations for Enforcement of the Virginia Tree and Crop Pests Law - Spotted Lanternfly Quarantine (amending 2VAC5-336-50).

Statutory Authority: § 3.2-703 of the Code of Virginia.

Effective Date: March 30, 2021.

Agency Contact: David Gianino, Program Manager, Office of Plant Industry Services, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 786-3515, FAX (804) 371-7793, or email david.gianino@vdacs.virginia.gov.

Background: Expansion of the areas regulated for lanternfly became necessary after surveys conducted by the Virginia Department of Agriculture and Consumer Services (VDACS) indicated that populations of the spotted lanternfly had become established in the Counties of Clarke and Warren when eradication efforts targeted to these populations became no longer feasible. Once established, the spotted lanternfly has the potential to spread to noninfested areas, either through natural means or through the movement of infested articles (artificial spread). The Regulations for the Enforcement of the Virginia Tree and Crop Pests Law - Spotted Lanternfly Quarantine is intended to prevent the artificial spread of this pest and establishes steps that businesses and individuals not conducting business can take to ensure that spotted lanternfly is not being artificially spread out of the regulated areas.

2VAC5-336-40 establishes the regulated articles, which are articles that pose a risk for spreading the spotted lanternfly and are, therefore, subject to the provisions of the regulation. 2VAC5-336-80 requires any person conducting business to obtain a permit from the Commissioner of the Department of Agriculture and Consumer Services prior to moving a regulated article out of a regulated area. In order to obtain the permit, a person must complete agency-approved training related to complying with the regulation and identification of the spotted lanternfly. The permit requires businesses to maintain applicable training records and ensure that regulated articles are inspected and free of spotted lanternfly prior to moving such articles from a regulated area to a nonregulated area.

The spotted lanternfly is an invasive pest that feeds on more than 100 plant species, including grapes, pome and stone fruits, maple and walnut trees, hops, and Ailanthus altissima (Tree of Heaven) and is therefore a threat to Virginia's grape, apple, hops, and forestry industries. The lanternfly can be spread long distances by people who move articles containing spotted lanternfly egg masses, nymphs, or adults. If allowed to spread, this pest could impact Virginia's agricultural and forestry industries. The spotted lanternfly was initially detected in Winchester in January 2018 and has subsequently spread into Frederick, Clarke, and Warren Counties.

Section 3.2-703 of the Code requires that, prior to an extension or reduction of a quarantine, the commissioner must provide notice in a newspaper with general circulation in the affected area or direct written notice to those concerned. Legal notices were published in local newspapers covering the Counties of Clarke, Frederick, and Warren on March 17, 2021. In addition, notification letters regarding expansion of the regulated area were mailed to a variety of businesses in Clarke and Warren Counties in February 2021.

Summary:

The amendments expand the regulated area of the Regulations for the Enforcement of the Virginia Tree Crop and Pests Law - Spotted Lanternfly Quarantine (2VAC5-336) to include the Counties of Clarke and Warren due to an increase in spotted lanternfly populations in these localities.

2VAC5-336-50. Regulated areas.

The following areas in Virginia are quarantined for Spotted Lanternfly:

1. The entire County of following counties:

a. Clarke;

b. Frederick; and

c. Warren.

2. The entire City of Winchester.

Title of Regulation: 4VAC20-380. Pertaining to Grey Trout (Weakfish) (amending 4VAC20-380-20, 4VAC20-380-60; adding 4VAC20-380-31 through 4VAC20-380-36; repealing 4VAC20-380-30, 4VAC20-380-40, 4VAC20-380-50).

Statutory Authority: § 28.2-201 of the Code of Virginia.

Effective Date: April 1, 2021.

Agency Contact: Jennifer Farmer, Regulatory Coordinator, Marine Resources Commission, 380 Fenwick Road, Fort Monroe, VA 23551, telephone (757) 247-2248, or email jennifer.farmer@mrc.virginia.gov.

Summary:

The amendments reorganize and clarify existing requirements for commercial and recreational grey trout fishery equipment seasons and size and landing limitations.

4VAC20-380-20. Definitions.

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

"Fishing season year" means the time period of April 1 through March 31.

"Grey trout" means any fish of the species Cynoscion regalis.

"Snout" means the most forward projection from a fish's head that includes the upper and lower jaw.

"Total length" means the length of a fish measured from the most forward projection of the snout, with the mouth closed, to the tip of the longer lobe of the tail (caudal) fin, measured with the tail compressed along the midline, using a straight-line measure, not measured over the curve of the body.

4VAC20-380-30. Commercial minimum size limits. (Repealed.)

A. For any person fishing with pound net or haul seine, there shall be no minimum size limit on grey trout.

B. It shall be unlawful for any person fishing with gill nets to possess any grey trout less than 12 inches in total length.

C. It shall be unlawful for any trawl boat to land any grey trout in Virginia that are less than 12 inches in total length, except that up to 100 grey trout less than 12 inches in total length may be landed by trawl but shall not be sold.

D. It shall be unlawful for any person fishing with commercial hook and line to possess any grey trout less than 12 inches in total length.

E. It shall be unlawful for any person using any gear type not specified in subsection A, B, C, or D of this section to possess any grey trout less than nine inches in total length.

F. During a closed season it shall be unlawful for any person using any gear type which is regulated by a closed season to possess any grey trout less than 12 inches in total length.

4VAC20-380-31. Grey trout harvested by commercial pound net.

A. The open seasons on grey trout harvested by pound net shall be April 1 through April 30 and May 23 through September 12. The restricted seasons on grey trout harvested by pound net shall be May 1 through May 22 and September 13 through March 31 except as provided in subdivision 1 of this subsection.

1. Any pound net fisherman who holds two or three pound net licenses in accordance with the provisions of 4VAC20-600 may forfeit only one of those licenses to operate under the rules for an open season as established in this section during a restricted season in the current fishing year. Any pound net fisherman who holds four, five, or six pound net licenses in accordance with the provisions of 4VAC20-600 may forfeit only two of those licenses to operate under the rules for an open season as established in this section during a restricted season in the current fishing year. Any pound net fisherman who holds seven, eight, or nine pound net licenses in accordance with the provisions of 4VAC20-600 may forfeit only three of those licenses to operate under the rules for an open season as established in this section during a restricted season in the current fishing year. Forfeiture of any license shall be through March 31 of each fishing year and shall occur prior to May 1 of each fishing year.

2. Any pound net licensee who forfeits a license pursuant to subdivision 1 of this subsection shall retain his priority rights to such locations for future licensing until April 1 of the following fishing year. Any pound net fisherman who forfeits one or more pound net licenses may reclaim such licenses during the period of March 15 of the current fishing year through April 1 of the following fishing year but shall not set or fish any pound nets provided for by such licenses prior to April 1.

3. Those pound net licensees who hold multiple gear licenses and satisfy the requirement of subdivision 1 of this subsection may transfer an unused license to a licensee who holds a single pound net license.

B. During any open season described in this section, there shall be no minimum size limit on grey trout for any person fishing with a pound net.

C. During any restricted season described in this section, it shall be unlawful for any person fishing with a pound net to land or possess any grey trout less than 12 inches in total length.

D. During any open season described in this section, it shall be unlawful for any person fishing with a pound net to exceed the vessel possession limit for grey trout of 100 pounds per day or trip, whichever is the longer period of time.

E. During any restricted season described in this section, it shall be unlawful for any person fishing with a pound net to exceed the vessel possession limit for grey trout of 100 pounds per day or trip, whichever is the longer period of time. Also, during any restricted season described in this section, it shall be unlawful for any person to land or possess any quantity of grey trout that is more than the total weight of all other species on board the vessel.

4VAC20-380-32. Grey trout harvested by commercial gill net.

A. The open seasons on grey trout harvested by gill net shall be April 1 through May 13, October 21 through December 30, and March 16 through March 31. The restricted seasons on grey trout harvested by gill net shall be May 14 through October 20 and December 31 through March 15.

B. It shall be unlawful for any person fishing with gill nets at any time to land or possess any grey trout less than 12 inches in total length.

C. During any open season described in this section, it shall be unlawful for any person fishing with a gill net to exceed the vessel possession limit for grey trout of 100 pounds per day or trip, whichever is the longer period of time.

D. During any restricted season described in this section, it shall be unlawful for any person fishing with a gill net to exceed the vessel possession limit for grey trout of 100 pounds per day or trip, whichever is the longer period of time. Also, during any restricted season, it shall be unlawful for any person to land or possess any quantity of grey trout that is more than the total weight of all other species on board the vessel.

4VAC20-380-33. Grey trout harvested by commercial trawl.

A. The open season on landing grey trout harvested by trawl shall be April 1 through September 25. The restricted season on landing grey trout harvested by trawl shall be September 26 through March 31.

B. During any open season described in this section, it shall be unlawful for any trawl boat to land or possess more than 100 grey trout less than 12 inches in total length, and it shall be unlawful to sell or purchase any grey trout less than 12 inches in total length from a commercial trawl vessel.

C. During any restricted season described in this section, it shall be unlawful for any trawl boat to land or possess any grey trout less than 12 inches in total length.

D. During any open season described in this section, it shall be unlawful for any trawl vessel to exceed the vessel possession limit for grey trout of 100 pounds per day or trip, whichever is the longer period of time.

E. During any restricted season described in this section, it shall be unlawful to exceed the vessel possession limit for grey trout of 100 pounds per day or trip, whichever is the longer period of time. Also, during any restricted season, it shall be unlawful for any trawl vessel to land or possess any quantity of grey trout that is more than the total weight of all other species on board the vessel.

F. It shall be unlawful for any trawl boat to land grey trout in Virginia while possessing on board any trawl net having a cod-end mesh less than three inches, stretched measure.

4VAC20-380-34. Grey trout harvested by commercial haul seine.

A. The open seasons on grey trout harvested by haul seine shall be April 16 through June 10 and August 21 through September 24. The restricted seasons on grey trout harvested by haul seine shall be April 1 through April 15, June 11 through August 20, and September 25 through March 31.

B. During any open season described in this section, there shall be no minimum size limit on grey trout for any person fishing with haul seine.

C. During any restricted season described in this section, it shall be unlawful for any person fishing with a haul seine to land or possess any grey trout less than 12 inches in total length.

D. During any open season described in this section, it shall be unlawful for any person fishing with a haul seine to exceed the vessel possession limit for grey trout of 100 pounds per day or trip, whichever is the longer period of time.

E. During any restricted season described in this section, it shall be unlawful for any person fishing with a haul seine to exceed the vessel possession limit for grey trout of 100 pounds per day or trip, whichever is the longer period of time. Also, during any restricted season, it shall be unlawful for any person to land or possess any quantity of grey trout that is more than the total weight of all other species on board the vessel.

4VAC20-380-35. Grey trout harvested by commercial hook-and-line.

A. It shall be unlawful for any person fishing with commercial hook-and-line to land or possess any grey trout less than 12 inches in total length.

B. It shall be unlawful for any person fishing with commercial hook-and-line to exceed the vessel possession limit for grey trout of 100 pounds per day or trip, whichever is the longer period of time.

4VAC20-380-36. Grey trout harvested by other commercial gears.

A. It shall be unlawful for any person using any gear type other than pound net, gill net, trawl, haul seine, or commercial hook-and-line to land or possess any grey trout less than nine inches in total length.

B. It shall be unlawful for any person fishing with any gear type other than pound net, gill net, trawl, haul seine, or commercial hook-and-line to exceed the vessel possession limit for grey trout of 100 pounds per day or trip, whichever is the longer period of time.

4VAC20-380-40. Gear restrictions. (Repealed.)

It shall be unlawful for any trawl boat to land grey trout in Virginia while possessing on board any trawl net having a cod-end mesh less than three inches, stretched measure.

4VAC20-380-50. Commercial fishing season. (Repealed.)

A. The open seasons on grey trout harvested by pound net shall be April 1 through April 30 and May 23 through September 12. The closed seasons on grey trout harvested by pound net shall be May 1 through May 22 and September 13 through March 31 except as provided in subdivision 1 of this subsection.

1. Any pound net fisherman who holds 2 or 3 pound net licenses in accordance with the provisions of 4VAC20-600 may forfeit only one of those licenses to be exempt from the closed seasons as established in this subsection. Any pound net fisherman who holds 4, 5, or 6 pound net licenses in accordance with the provisions of 4VAC20-600 may forfeit only two of those licenses to be exempt from the closed seasons as established in this subsection. Any pound net fisherman who holds 7, 8, or 9 pound net licenses in accordance with the provisions of 4VAC20-600 may forfeit only three of those licenses to be exempt from the closed seasons as established in this subsection. Forfeiture of any license shall be through March 31, of each fishing season, and shall occur prior to May 1 of each fishing season.

2. Any pound net licensee who forfeits a license pursuant to subdivision 1 of this subsection shall retain his priority rights to such locations for future licensing until April 1 of the following fishing season. Any pound net fisherman who forfeits one or more pound net licenses may reclaim such licenses during the period of March 15 of the current fishing season through April 1 of the following fishing season, but shall not set or fish any pound nets provided for by such licenses prior to April 1.

3. Those pound net licensees who hold multiple gear licenses and satisfy the requirement of subdivision 1 of this subsection may transfer an unused license to a licensee who holds a single pound net license.

B. The open seasons on grey trout harvested by gill net shall be April 1 through May 13, October 21 through December 30, and March 16 through March 31. The closed seasons on grey trout harvested by gill net shall be May 14 through October 20 and December 31 through March 15.

C. The open seasons on grey trout harvested by haul seine shall be April 16 through June 10 and August 21 through September 24. The closed seasons on grey trout harvested by haul seine shall be April 1 through April 15, June 11 through August 20, and September 25 through March 31.

D. The open season on landing grey trout harvested by trawl shall be April 1 through September 25. The closed season on landing grey trout harvested by trawl shall be September 26 through March 31.

E. During any open season described in subsections A, B, C, and D of this section, the boat or vessel possession limit for grey trout shall be 100 pounds per day or trip, whichever is the longer period of time.

F. During any closed season described in subsections A, B, C, and D of this section, the boat or vessel possession limit for grey trout taken as bycatch in other directed fisheries shall be 100 pounds per day or trip, whichever is the longer period of time. Further, during any closed season described in subsections A, B, C, and D of this section, it shall be unlawful for any person to do any of the following:

1. Possess any grey trout less than 12 inches in total length.

2. Possess aboard any vessel or land any quantity of grey trout that is more than the total weight of species other than grey trout on board the vessel.

G. For any gear type not subject to a closed season, nor described in subsections A, B, C, or D of this section, the vessel possession limit shall be 100 pounds per day or trip, whichever is the longer period of time.

4VAC20-380-60. Recreational fishing seasons, minimum size limits, and possession limits.

A. It shall be unlawful for any person fishing recreationally with hook and line, rod and reel or hand line to possess more than one grey trout and the minimum size limit shall be 12 inches in total length.

B. When fishing from a boat or vessel where the entire catch is held in a common hold or container, the The recreational vessel possession limit shall be for the boat or vessel and shall be equal to the number of persons on board legally eligible to fish multiplied by one. The captain or operator of the boat or vessel shall be responsible for any boat or vessel possession limit. Any grey trout taken after the possession limit has been reached shall be returned to the water immediately.

Title of Regulation: 4VAC20-1370. Pertaining to Atlantic Croaker (adding 4VAC20-1370-10 through 4VAC20-1370-60).

Statutory Authority: § 28.2-201 of the Code of Virginia.

Effective Date: April 15, 2021.

Agency Contact: Jennifer Farmer, Regulatory Coordinator, Marine Resources Commission, 380 Fenwick Road, Fort Monroe, VA 23551, telephone (757) 247-2248, or email jennifer.farmer@mrc.virginia.gov.

Summary:

The amendments establish a commercial season, a 50-fish recreational bag limit, and an additional live bait allowance for charter or for-hire captains for Atlantic croaker.

Chapter 1370

Pertaining to Atlantic Croaker

4VAC20-1370-10. Purpose.

The purpose of this chapter is to conserve and protect Atlantic croaker stocks in Virginia waters and to be consistent with federal and interstate management measures.

4VAC20-1370-20. Definitions.

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

"Atlantic croaker" means any fish of the species Micropogonias undulatus.

"Captain" means the person licensed by the U.S. Coast Guard to carry passengers for hire who operates the charter boat or head boat.

"Charter vessel" or "for-hire vessel" means a vessel operating with a captain who possesses either a Class A Fishing Guide License, Class B Fishing Guide License, or Fishing Guide Reciprocity Permit.

"Mate" means any person designated to assist on the charter vessel or for-hire vessel.

"Recreational vessel" means any vessel, kayak, charter vessel, or headboat fishing recreationally.

4VAC20-1370-30. Recreational harvest limit.

A. It shall be unlawful for any person fishing recreationally with any gear type to harvest or possess more than 50 Atlantic croaker per day.

B. When fishing from a recreational vessel, the possession limit shall be equal to the number of persons on board who are legally eligible to fish multiplied by the personal possession limits as described in subsection A of this section. The operator of the recreational vessel shall be responsible for any recreational vessel possession limit.

4VAC20-1370-40. Charter and for-hire live bait limit.

When intended for use as live bait for a charter or for-hire vessel, it shall be unlawful to possess more than 50 live Atlantic croaker for bait per day, multiplied by the customer capacity of the charter or for-hire vessel.

1. The customer capacity of the charter vessel shall not include any person who is the captain or a mate.

2. The captain of the charter or for-hire vessel shall be responsible for any charter or for-hire live bait limit.

4VAC20-1370-50. Commercial fishery.

It shall be unlawful for any person fishing commercially with any gear type to harvest or land any Atlantic croaker before January 15 of the current calendar year.

4VAC20-1370-60. Penalty.

As set forth in § 28.2-903 of the Code of Virginia, any individual violating any provision of this chapter shall be guilty of a Class 3 misdemeanor, and a second or subsequent violation of any provision of this chapter committed by the same individual within 12 months of a prior violation is a Class 1 misdemeanor.

Title of Regulation: 4VAC20-1380. Pertaining to Spot (adding 4VAC20-1380-10 through 4VAC20-1380-60).

Statutory Authority: § 28.2-201 of the Code of Virginia.

Effective Date: April 15, 2021.

Agency Contact: Jennifer Farmer, Regulatory Coordinator, Marine Resources Commission, 380 Fenwick Road, Fort Monroe, VA 23551, telephone (757) 247-2248, or email jennifer.farmer@mrc.virginia.gov.

Summary:

The amendments establish a commercial season, a 50-fish recreational bag limit, and an additional live bait allowance for charter or for-hire captains for spot.

Chapter 1380

Pertaining to Spot

4VAC20-1380-10. Purpose.

The purpose of this chapter is to conserve and protect spot stocks in Virginia waters and to be consistent with federal and interstate management measures.

4VAC20-1380-20. Definitions.

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

"Captain" means the person licensed by the U.S. Coast Guard to carry passengers for hire who operates the charter boat or head boat.

"Charter vessel" or "for-hire vessel" means a vessel operating with a captain who possesses either a Class A Fishing Guide License, Class B Fishing Guide License, or Fishing Guide Reciprocity Permit.

"Mate" means any person designated to assist on the charter vessel or for-hire vessel.

"Recreational vessel" means any vessel, kayak, charter vessel, or headboat fishing recreationally.

"Spot" means any fish of the species Leiostomus xanthurus.

4VAC20-1380-30. Recreational harvest limit.

A. It shall be unlawful for any person fishing recreationally with any gear type to harvest or possess more than 50 spot per day.

B. When fishing from a recreational vessel, the possession limit shall be equal to the number of persons on board who are legally eligible to fish multiplied by the personal possession limits as described in subsection A of this section. The operator of the recreational vessel shall be responsible for any recreational vessel possession limit.

4VAC20-1380-40. Charter and for-hire live bait limit.

When intended for use as live bait for a charter or for-hire vessel, it shall be unlawful to possess more than 50 live spot for bait per day, multiplied by the customer capacity of the charter or for-hire vessel.

1. The customer capacity of the charter vessel shall not include any person who is the captain or a mate.

2. The captain of the charter or for-hire vessel shall be responsible for any charter or for-hire live bait limit.

4VAC20-1380-50. Commercial fishery.

It shall be unlawful for any person fishing commercially with any gear type to harvest or land any spot before April 15 or after December 8 of the current calendar year.

4VAC20-1380-60. Penalty.

As set forth in § 28.2-903 of the Code of Virginia, any individual violating any provision of this chapter shall be guilty of a Class 3 misdemeanor, and a second or subsequent violation of any provision of this chapter committed by the same individual within 12 months of a prior violation is a Class 1 misdemeanor.

Title of Regulation: 11VAC15-50. Texas Hold'em Poker Tournament Regulations (adding 11VAC15-50-10 through 11VAC15-50-170).

Statutory Authority: §§ 18.2-340.19 and 18.2-340.28:2 of the Code of Virginia.

Agency Contact: Michael Menefee, Program Manager, Charitable and Regulatory Programs, Department of Agriculture and Consumer Services, 102 Governor Street, Richmond, VA 23219, telephone (804)786-3983, FAX (804)371-7479, or email michael.menefee@vdacs.virginia.gov.

Effective Date: March 23, 2021.

Summary:

Pursuant to Chapter 982 of the 2020 Acts of Assembly, the action establishes regulations for Texas Hold'em poker tournaments, including requirements for (i) a qualified organization to obtain a permit to conduct a Texas Hold'em poker tournament; (ii) an operator to obtain a registration to administer a Texas Hold'em poker tournament on behalf of a qualified organization; (iii) recordkeeping, use of proceeds, and fees to be paid by a qualified organization to an operator; and (iv) participation in Texas Hold'em poker tournaments, such as conduct of poker games, use of mechanical equipment, and penalties.

Changes to the proposed regulation include: (i) stipulating that, in the event of a conflict between the house rules and Robert's Rules of Poker, the house rules shall prevail; (ii) requiring that the department be named as the obligee on bonds; (iii) removing the provision that granted the board authority to adjust, outside of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia), the amount of operator compensation that may be counted toward a qualified organization's minimum use of proceeds; (iv) generally reducing restrictions on tournament operators and charitable organizations; and (v) allowing the use of electronic poker tables if such devices are preapproved by the Department of Agriculture and Consumer Services.

Chapter 50

Texas Hold'em Poker Tournament Regulations

11VAC15-50-10. Definitions.

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

"Administer" means the activities by an operator that are associated with production of a poker tournament.

"Agent" means any person authorized by an operator, supplier, or landlord to act for or in place of such operator, supplier, or landlord.

[ "Board" means the Virginia Charitable Gaming Board. ]

"Charitable Gaming Statute" means Article 1.1:1 (§ 18.2-340.15 et seq.) of Chapter 8 of Title 18.2 of the Code of Virginia.

"Charitable host representative" means a person who (i) is a bona fide member, as defined in § 18.2-340.16 of the Code of Virginia, of the qualified organization; (ii) meets all other requirements for bona fide members set forth in the Charitable Gaming Statute and this chapter; and (iii) is responsible for the oversight and execution of the written contract between the qualified organization and operator during the poker tournament.

"Conduct" means the actions by a qualified organization associated with the provision of a poker tournament during and immediately before or after the permitted activity, which may include (i) dealing playing cards, (ii) distributing poker chips, (iii) distributing prizes, and (iv) any other services provided by a volunteer game worker or volunteer dealer.

[ "Department" means the Virginia Department of Agriculture and Consumer Services. ]

"Fiscal year" means the 12-month period beginning January 1 and ending December 31 of any given year.

"Game manager" means a person who (i) is a bona fide member, as defined in § 18.2-340.16 of the Code of Virginia, of the qualified organization that is managing, operating, and conducting the poker tournament; (ii) meets all other requirements for bona fide members set forth in the Charitable Gaming Statute and this chapter; and (iii) is responsible for the operation of the qualified organization's poker tournament.

"Immediate family" means a person's spouse, parent, child, sibling, grandchild, grandparent, mother or father-in-law, or stepchild.

"Interested person" means (i) the president or chief executive officer, treasurer or chief financial officer, an officer, a game manager, or charitable host representative of any qualified organization that is exempt or is a permit applicant or holds a permit to conduct Texas Hold'em poker tournaments; (ii) the owner, partner, president or chief executive officer, treasurer or chief financial officer, or tournament manager of any operator; or (iii) the owner, director, officer, or partner of an entity engaged in supplying charitable gaming supplies to a qualified organization.

"IRS" means the U.S. Internal Revenue Service or its successor.

"Landlord" means any person or such person's agent, firm, association, organization, partnership, corporation, employee, or immediate family member thereof, who owns or leases any premises devoted in whole or in part for use to hold a poker tournament and any person residing in the same household as a landlord.

"Manufacturer" means a person that assembles from raw materials or subparts a completed piece of charitable gaming equipment or supplies. "Manufacturer" also means a person who or an entity that modifies, converts, adds, or removes parts to or from charitable gaming equipment or supplies.

"Operator" means a person [ not affiliated with a qualified organization ] that has registered with the department in accordance with 11VAC15-50-40 to administer poker tournaments.

"Poker game" means a Texas Hold'em poker game as defined in § 18.2-340.16 of the Code of Virginia.

"Poker tournament" means a Texas Hold'em poker tournament as defined in § 18.2-340.16 of the Code of Virginia.

"Remuneration" means payment in cash or the provision of anything of value for goods provided or services rendered.

"Tournament manager" means a person who is employed or contracted by an operator to administer poker tournaments for a qualified organization.

"Use of proceeds" means the use of funds derived by a qualified organization from its charitable gaming activities that are disbursed for those lawful religious, charitable, community, or educational purposes. "Use of proceeds" includes expenses relating to the acquisition, construction, maintenance, or repair of any interest in the real property involved in the operation of the qualified organization and used for lawful religious, charitable, community, or educational purposes.

11VAC15-50-20. Organization eligibility; permit requirements.

A. The conduct of charitable gaming is a privilege that may be granted or denied by the department. Except as provided in § 18.2-340.23 of the Code of Virginia, every eligible organization with anticipated gross gaming receipts that exceed the amount set forth in § 18.2-340.23 of the Code of Virginia in any 12-month period shall obtain a permit from the department prior to the commencement of a poker tournament. To be eligible for a permit an organization must meet all of the requirements of § 18.2-340.24 of the Code of Virginia.

B. In accordance with § 18.2-340.19 A 1 of the Code of Virginia, as a condition of receiving a poker tournament permit, a qualified organization shall use a minimum of 2.5% of gross receipts from its poker tournaments for (i) those lawful religious, charitable, community, or educational purposes for which the organization is specifically chartered or organized; (ii) those expenses relating to the acquisition, construction, maintenance, or repair of any interest in real property involved in the operation of the organization and used for lawful religious, charitable, community, or educational purposes; or (iii) the cost of compensating an operator who is contracted by the qualified organization to administer its poker tournament. However, the amount from this compensation that may be counted toward the minimum use of proceeds shall not exceed 0.25% of the gross receipts generated from the poker tournament [ , and it may be adjusted by the board at its discretion on an annual basis ].

C. If an organization fails to meet the minimum use of proceeds requirement, its permit may be suspended or revoked. However, the department shall not suspend or revoke the permit of any organization solely because of its failure to meet the required percentage without having first provided the organization with an opportunity to implement a remedial business plan.

D. An organization may request a temporary reduction in the predetermined percentage specified in subsection B of this section from the department. In reviewing such a request, the department shall consider such factors appropriate to and consistent with the purpose of charitable gaming, which may include (i) the organization's overall financial condition, (ii) the length of time the organization has conducted charitable gaming, (iii) the extent of the deficiency, and (iv) the progress that the organization has made in attaining the minimum percentage in accordance with a remedial business plan.

E. [ An organization must meet all requirements related to the conduct of charitable gaming established in the Charitable Gaming Regulations (11VAC15-40).

F. ] An organization whose permit is revoked for failure to comply with provisions of subsection B of this section shall be eligible to reapply for a permit at the end of one year from the date of revocation. The department, at its discretion, may issue the permit if it is satisfied that the organization has made substantial efforts toward meeting its remedial business plan.

11VAC15-50-30. Permit application process for an organization.

A. Any organization anticipating gross gaming receipts that exceed the amount set forth in § 18.2-340.23 of the Code of Virginia shall complete a form prescribed by the department to request issuance or renewal of an annual permit to conduct charitable gaming. Organizations shall submit a nonrefundable fee payable to the Treasurer of Virginia in the amount of $200 with the application unless the organization is exempt from such fee pursuant to § 18.2-340.23 of the Code of Virginia or holds a charitable gaming permit issued pursuant to 11VAC15-40-30.

B. The department may initiate action against any organization exempt from permit requirements when the department reasonably believes the organization is not in compliance with the provisions of the Charitable Gaming Statute or this chapter.

C. A permit shall be valid for a period of one year from the date of issuance or for a period specified on the permit. The department may issue permits for periods of less than one year.

D. The department shall complete a background investigation of an organization or interested persons to ensure public safety and welfare as required by § 18.2-340.25 of the Code of Virginia. Investigations shall consider the nature, the age and severity, and the potential harm to public safety and welfare of any criminal offense. The investigation may include the following:

1. A search of criminal history records for the president or chief executive officer, treasurer or chief financial officer, game manager, or charitable host representative of the organization. Information and authorization to conduct these records checks shall be provided in the permit application. In addition, the department shall require that the organization provide assurances that all other individuals, excluding an operator, involved in the management, operation, or conduct of charitable gaming meet the requirements of subdivision 12 of § 18.2-340.33 of the Code of Virginia. The department may deny an application if:

a. Any person participating in the management of any charitable gaming has ever been:

(1) Convicted of a felony; or

(2) Convicted of any misdemeanor involving fraud, theft, or financial crimes within the preceding five years.

b. Any person participating in the conduct of charitable gaming has been:

(1) Convicted of any felony in the preceding 10 years; or

(2) Convicted of any misdemeanor involving fraud, theft, or financial crimes within the preceding five years;

2. An inquiry as to whether the organization has been granted tax-exempt status pursuant to § 501(c) of the Internal Revenue Code by the IRS and is in compliance with IRS annual filing requirements;

3. An inquiry as to whether the organization has entered into any contract with, or has otherwise employed for compensation, any person for the purpose of organizing or managing, operating, or conducting any charitable gaming activity outside of a written contract with an operator to administer the organization's poker tournament;

4. Inquiries into the finances and activities of the organization and the sources and uses of funds;

5. Inquiries into the level of community or financial support to the organization and the level of community involvement in the membership and management of the organization; and

6. Inquiries into the percentage of members who are residents of the Commonwealth for a membership-based organization to determine compliance with the membership requirement of § 18.24-340.24 A of the Code of Virginia.

E. The permit application for an organization that has not previously held a permit shall include:

1. A copy of the articles of incorporation, bylaws, charter, constitution, or other appropriate organizing document;

2. A copy of the determination letter issued by the IRS under § 501(c) of the Internal Revenue Code, if appropriate, or a letter from the national office of an organization indicating the applicant organization is in good standing and is currently covered by a group exemption ruling. A letter of good standing is not required if the applicable national or state office has furnished the department with a listing of member organizations in good standing in the Commonwealth as of January 1 of each year and has agreed to promptly provide the department any changes to the listing as those changes occur;

3. A copy of the written lease or proposed written lease agreement and all other written agreements between an organization and the landlord if the organization rents or intends to rent a facility where a poker tournament is or will be conducted. Information on the lease shall include name, address, and phone number of the landlord; maximum occupancy of the building; and rental amount [ ; If the landlord is an entity, then the identity of such entity's owners, members, manager, officers, and directors shall be listed in the lease ];

4. An authorization by an officer or other appropriate official of the organization to permit the department to determine whether the organization has been investigated or examined by the IRS in connection with charitable gaming activities during the previous three years;

5. A statement whether the organization will manage, operate, and conduct its own poker tournament or will contract with an operator to administer its poker tournament. If the organization contracts with an operator, then the identity of the operator shall be disclosed, a copy of the written contract with the operator shall accompany the application, and the written contract shall comply with the provisions of 11VAC15-50-140;

6. If the organization uses or intends to use an operator to administer its poker tournament, the identity of the organization's charitable host representative and a copy of a current identification of the charitable host representative, such as a driver's license or other government issued identification;

7. If the organization intends to manage, operate, and conduct or manages, operates, and conducts its own poker tournament, the designation and identity of the organization's game manager, who shall be a person and shall be responsible for the operation and conduct of the poker tournament for the qualified organization, and a copy of a current identification of the game manager, such as a driver's license or other government issued identification;

8. If the organization intends to manage, operate, and conduct a poker tournament, then a copy of written internal control policies and procedures that includes segregation of duties, cash security, and cash controls based on generally accepted standards;

9. Written [ disclosure ] statement as to whether (i) the president or chief executive officer, treasurer or chief financial officer, an officer, a game manager, or charitable host representative; (ii) an immediate family member of an individual listed in clause (i) of this subdivision; or (iii) persons residing in the same household as an individual listed in clause (i) of this subdivision has directly or indirectly any interest or ownership in an operator; and

10. A sample of the badge to be worn by the game manager and other game workers during the operation and conduct of the qualified organization's poker tournament, which shall include the following:

a. A recent photo of the person;

b. The first name and last name of the person;

c. The name of the qualified organization; and

d. The date the badge was issued to the person.

F. An organization applying to renew a permit previously issued by the department shall submit articles of incorporation, bylaws, charter, constitution, or other organizing document; IRS determination letter; or any other document or information specified in subsection E of this section only if there are any amendments or changes to these documents or information that are directly related to the management, operation, or conduct of charitable gaming.

G. The department may request copies of minutes of meetings of the organization and any contracts with landlords, suppliers, or operators to which the organization is or may be a party.

H. If any information on the permit application changes or is found to be inaccurate, then the qualified organization shall notify the department and provide the updated or corrected information within three business days of the change or the discovery of the inaccuracy.

I. A qualified organization wishing to change the date, time, location, or operator of its poker tournament shall request an amendment to its permit. Amendment requests shall be made in writing on a form prescribed by the department in advance of the proposed effective date.

J. A qualified organization may cancel its poker tournament due to inclement weather, a disaster, or other circumstances outside the organization's control without an amendment to its permit.

K. Any qualified organization that ceases to conduct poker tournaments shall immediately notify the department in writing and provide the department a report as to the disposition of all unused charitable gaming supplies on a form prescribed by the department.

[ L. No qualified organization or its members or any persons affiliated or associated with the qualified organization, their immediate family members, or persons residing in their household shall directly or indirectly receive any payment from the qualified organization's landlord, agents, employees, their immediate family members, or persons residing in their household unless such payment from the landlord is directly related to a written contract for the facility leased for use to hold a poker tournament as required by 11VAC15-50-90 A and such a payment is made by check from the landlord directly to the qualified organization's charitable gaming account.

M. No qualified organization or its members or any persons affiliated or associated with the qualified organization, their immediate family members, or persons residing in their household shall directly or indirectly receive any loan from a landlord, operator, or supplier of charitable gaming supplies or the agents, employees, immediate family members, or persons residing in the household of the landlord, operator, or supplier of charitable gaming supplies. ]

11VAC15-50-40. Operator registration.

A. No person shall administer a poker tournament on behalf of a qualified organization without an operator registration. A person seeking to administer a poker tournament on behalf of a qualified organization shall apply to the department for an operator registration on a form prescribed by the department. The application fee for an operator registration is $1,000.

B. The department shall conduct a background investigation prior to the issuance of a registration to any operator. The investigation may include the following:

1. Verification that the operator is authorized to conduct business in the Commonwealth, which may include registration with the State Corporation Commission, the Department of Taxation, or the Virginia Employment Commission.

2. Verification of current compliance with Commonwealth's tax laws.

3. A search of criminal history records on the owner, partner, president or chief executive officer, treasurer or chief financial officer, and the operator's tournament manager. If the owner, partner, president or chief executive officer, treasurer or chief financial officer, or the operator's tournament manager is domiciled outside of the Commonwealth or has resided in the Commonwealth for fewer than five years, a criminal history search conducted by the appropriate authority in any state in which that individual has resided during the previous five years shall be provided by the applicant. Appropriate information and authorizations shall be provided to the department to verify this information.

C. An operator registration shall be valid for a period of one year from the date of issuance or for a period specified on the registration. The department may issue a registration for a period of less than one year.

D. The department may refuse to issue a registration or may suspend or revoke a registration if an operator [ , officer, director, employee, agent, or owner or any of its officers, directors, employees, agents, or owners ]:

1. Is operating without a valid license, permit, certificate, registration, or other similar authority related to gambling in any state, territory, or possession of the United States; the District of Columbia; or any political subdivision thereof;

2. Uses or continues to use a product that has been recalled by the manufacturer;

3. Administers poker tournaments for unauthorized persons or entities, such as [ qualified ] organizations not permitted by the department pursuant to 11VAC15-50-30 or otherwise exempted from obtaining or possessing a permit pursuant to § 18.2-340.23 of the Code of Virginia; engages or participates in illegal gambling; or is not authorized to conduct business in the Commonwealth;

4. Fails to notify the department within 20 days of the occurrence, knowledge, or receipt of the filing of any administrative or legal action relating to gambling or the administration of poker tournaments involving or concerning the operator, any officer, director, employee, agent, or owner during the term of the operator's registration;

5. [ Is involved directly or indirectly with another operator whose registration was denied, suspended, or revoked by the department Breaches the operator's contract with a qualified organization entered into pursuant to 11VAC15-50-140 ];

6. Fails to provide the report required by subsection I of this section;

7. [ Fails to maintain a surety bond in accordance with this section;

8. ] Has [ been found by the department to have ] violated any provision of the Charitable Gaming Statute or this chapter [ or has been involved in another operator's violation of any provisions of the Charitable Gaming Statute or an operator's denial, suspension, or revocation of a registration ]; or

[ 8. 9. ] Has been engaged in activities that would compromise the department's objective of maintaining the highest level of integrity in charitable gaming.

E. The registration application for an operator that has not previously held a registration shall include:

1. A copy of the articles of incorporation, bylaws, charter, constitution, or other appropriate organizing document;

2. A copy of written internal control policies and procedures that includes segregation of duties, cash security, and cash controls based on generally accepted standards;

3. [ Written evidence of a surety bond made payable to the department in accordance with the terms of subsection K of this section;

4. ] A list of all qualified organizations on whose behalf the applicant intends to administer a poker tournament, the locations at which the applicant intends to administer a poker tournament, and any other information deemed necessary by the department;

[ 4. 5. ] A copy of each written contract with a qualified organization;

[ 5. 6. ] The identity of the operator's tournament managers, dealers, and other game workers. A copy of a current identification, such as a driver's license or other government issued identification, of the operator's tournament managers, dealers, and other game workers; and

[ 6. 7. ] A sample of the badge to be worn by the operator's poker tournament manager, charitable host representative, dealer, and other game workers during the administering of the qualified organization's poker tournament. A badge shall include the following:

a. A recent photo of the person;

b. The first name and last name of the person;

c. The name of the operator; and

d. The date the badge was issued to the person.

F. If any information on the registration application changes or is found to be inaccurate, then the operator shall notify the department and provide the updated or corrected information within three business days of the change or the discovery of the inaccuracy.

G. Operators applying to renew a registration previously issued by the department shall submit articles of incorporation, bylaws, charter, constitution, or other organizing document or any other document or information specified in subsection E of this section only if there are any amendments or changes to these documents or information that are directly related to the administering of a poker tournament.

H. Operators shall ensure that a copy of a detailed invoice is provided to the qualified organization for each [ poker tournament day ] it administers [ one or more poker tournaments ] on behalf of the qualified organization. The invoice shall reflect the following:

1. Name, address, and the organization number of the qualified organization;

2. Date and location of the poker tournament; and

3. All information needed to calculate the fee owed to the operator, including gross receipts, net receipts, and prize disbursement.

I. Each operator shall provide a report to the department by March 1 of each year for the fiscal year ending December 31 of the previous year for each qualified organization it contracted with to administer a poker tournament in the Commonwealth of Virginia. This report shall be provided to the department via a department-approved electronic medium. The report shall include the name, address, and organization number of each qualified organization and the following information for each poker tournament:

1. The total amount of gross receipts generated from each poker tournament;

2. The total amount of prizes disbursed to players for each poker tournament;

3. The total number of players at each poker tournament;

4. The total amount charged by the operator to the qualified organization for administering the poker tournament; and

5. Any other information deemed necessary by the department.

J. An operator that administers a poker tournament for a qualified organization exempt from obtaining or possessing a permit pursuant to § 18.2-340.23 of the Code of Virginia shall ensure the qualified organization is and remains exempted from obtaining or possessing such a permit prior to any poker tournament. The operator shall also obtain a written and signed statement from the president or chief executive officer and treasurer or chief financial officer, or another officer or director if the president or chief executive officer and treasurer or chief financial officer are filled by the same person, confirming that gross receipts are expected to be less than or equal to the amount set forth in § 18.2-340.23 of the Code of Virginia. Such statements shall be dated and kept on file for a minimum of three years from the close of a fiscal year.

K. [ An operator shall have and maintain an annual surety bond from a surety company entitled to do business in this Commonwealth. The surety bond shall be payable to the department and be in an amount deemed necessary by the department to secure the faithful discharge of the duties of the operator to the organization for whom the operator administers poker tournaments and to participants and players in its poker tournaments, including payment of expenses and prizes payable. However, the amount of the surety bond shall not be less than $200 and not more than the typical prize payable in any given poker tournament administered by the operator during the period for which the surety bond applies.

L. ] The operator shall maintain training records related to poker tournaments and 11VAC15-50-50 C for all of its tournament managers, dealers, and other game workers. Such records shall be available for inspection by the department, its employees, or its agents at their request.

[ L. M. ] The operator shall disclose to the department whether (i) any of its directors, officers, owners, partners, employees, independent contractors, or agents; (ii) an immediate family member of an individual listed in clause (i) [ or of ] this subdivision; or (iii) persons residing in the same household as an individual listed in clause (i) [ or of ] this subdivision is affiliated or associated with any qualified organization that is authorized pursuant to §§ 18.2-340.23 and 18.2-340.24 of the Code of Virginia to manage, operate, and conduct a poker tournament or to contract with an operator to administer its poker tournament [ or has made or received a payment from a qualified organization for which it administers a poker tournament ].

[ M. N. ] An operator shall not prepare or submit a permit application or a financial report on behalf of a qualified organization.

11VAC15-50-50. Suspension, revocation, or denial of permit for organization.

A. Pursuant to § 18.2-340.20 of the Code of Virginia, the department may suspend, revoke, or deny the permit of any qualified organization to manage, operate, or conduct poker tournaments or to contract with an operator to administer the qualified organization's poker tournaments for cause, including any of the following reasons:

1. The qualified organization is found to be in violation of or has failed to meet any of the requirements of the statutes or regulations governing the operation, management, and conduct of charitable gaming in the Commonwealth.

2. The qualified organization is found to be not in good standing with its state or national organization.

3. The IRS revokes or suspends the qualified organization's tax-exempt status.

4. The qualified organization willfully and knowingly provides false information in its application for a permit to conduct charitable gaming.

5. The qualified organization is found to have a member involved in the management, operation, or conduct of its charitable gaming who has been convicted of any felony or any misdemeanor as follows:

a. For any person participating in the management or operation of any charitable gaming:

(1) Convicted of a felony; or

(2) Convicted of any misdemeanor involving fraud, theft, or financial crimes within the preceding five years.

b. For any person participating in the conduct of charitable gaming:

(1) Convicted of any felony within the preceding 10 years; or

(2) Convicted of any misdemeanor involving fraud, theft, or financial crimes within the preceding five years.

6. The qualified organization fails to report a violation as required by 11VAC15-50-170.

7. The qualified organization is found to have managed, operated, or conducted a poker tournament or contracted, whether written or verbal, with an operator or others that administered a poker tournament on its behalf without a permit issued to the qualified organization to do so unless the qualified organization did so in compliance with § 18.2-340.23 A of the Code of Virginia.

8. The qualified organization fails to comply with the disclosure requirement pursuant to 11VAC15-50-30 E 9.

9. If the qualified organization uses or intends to use an operator to administer its poker tournament, the qualified organization fails to submit or provide to the department a written contract that complies with 11VAC15-50-140; fails to submit or provide to the department a new or amended written contract with its operator within 20 days after the contract is signed by all parties to the contract; or fails to submit or provide to the department a new or amended written contract with its operator that complies with 11VAC15-50-140.

10. The qualified organization or its members or any persons affiliated or associated with the qualified organization, their immediate family members, or persons residing in their household directly or indirectly received a loan from a landlord, operator, or supplier of charitable gaming supplies, its agents, its employees, their immediate family members, or persons residing in their household.

[ 11. The operator fails to fulfill any of the conditions of the written contract with the qualified organization as identified under 11VAC15-50-140. ]

B. The failure to meet any of the requirements of § 18.2-340.24 of the Code of Virginia shall be cause for the denial of the permit, and no qualified organization shall manage, operate, and conduct any poker tournaments or contract with an operator to administer the qualified organization's poker tournaments until the requirements are met and a permit is obtained.

C. Except when an qualified organization fails to meet any of the requirements of § 18.2-340.24 of the Code of Virginia, in lieu of suspending, revoking, or denying a permit to manage, operate, and conduct poker tournaments or to contract with an operator to administer the qualified organization's poker tournaments, the department may afford a qualified organization an opportunity to enter into a compliance agreement specifying additional conditions or requirements as it may deem necessary to ensure a qualified organization's compliance with the statute and regulations governing the conduct of charitable gaming activities and may require that a qualified organization participates in such training as is directed or offered by the department.

D. If a permit is suspended, the department shall set the terms of the suspension, which shall include the length of the suspension and a requirement that, prior to reinstatement of the permit, the organization shall submit a remedial business plan to address the conditions that resulted in the suspension.

11VAC15-50-60. Operation and conduct of Texas Hold'em poker tournaments.

A. A Texas Hold'em poker tournament is a competition at which:

1. Players shall pay a fixed fee for entry into the competition and for a certain amount of poker chips for use in the competition;

2. Players may be allowed to pay an additional fee during set preannounced times of the competition to receive additional poker chips for use in the competition;

3. Players may be seated at one or more tables simultaneously playing Texas Hold'em poker games;

4. Players shall, upon running out of poker chips, be eliminated from the competition; and

5. A set preannounced number of players shall be awarded prizes of value according to how long such players remain in the competition.

B. Any competition that does not meet the requirements established in subsection A of this section is not permissible. A qualified organization or operator shall ensure its Texas Hold'em poker tournament meets the requirements established in subsection A of this section.

C. Operations of poker tournaments.

1. Participation in poker tournaments.

a. Qualified organizations shall (i) only manage, operate, and conduct a poker tournament after a permit has been issued by the department unless the qualified organization is exempted from obtaining or possessing a permit pursuant to § 18.2-340.23 of the Code of Virginia; or (ii) obtain a permit pursuant to 11VAC15-50-30 and contract with an operator that is registered pursuant to 11VAC15-50-40 to administer its poker tournament.

b. An operator shall only administer a poker tournament for a qualified organization (i) permitted by the department pursuant to 11VAC15-50-30, or (ii) exempted from obtaining or possessing a permit pursuant to § 18.2-340.23 of the Code of Virginia, and an operator shall only administer a poker tournament after it is registered pursuant to 11VAC15-50-40.

c. All persons participating as a player in a poker tournament shall be 18 years of age or older.

d. [ The A ] qualified organization's game managers, volunteer game workers, volunteer dealers, charitable host representatives, their immediate family members, or persons residing in their household shal [ not be permitted to ] participate [ in ] or otherwise play in [ any of the qualified organization's poker tournaments a poker tournament only as permitted in the applicable house rules ].

e. [ The An ] operator's directors, officers, owners, partners, tournament managers, employees, independent contractors, agents, their immediate family members, or persons residing in their household shall [ not be permitted to ] participate [ in ] or otherwise play in [ any a ] poker [ tournaments administered by the operator tournament only as permitted in the applicable house rules ].

f. The qualified organization is responsible for all actions performed by its game managers, volunteer game workers, volunteer dealers, and charitable host representatives [ , and if the qualified organization contracted with an operator to administer its poker tournament, then the qualified organization is responsible for the operator's actions during its poker tournament ].

2. Operations of tournaments.

a. During a poker tournament, if the qualified organization is managing, operating, and conducting its own poker tournament, then a game manager must be physically present during the entire duration of the poker tournament. If an operator is administering the poker tournament, then the operator's tournament manager [ and charitable host representative ] must be physically present during the entire duration of the poker tournament [ and the charitable host representative must be present for a portion of the poker tournament and be physically or remotely available for all times a tournament is in play ].

b. During a poker tournament, the qualified organization or operator shall provide badges for each of its game manager, operator's tournament manager, charitable host representative, dealers, and other game workers that shall be worn in a manner in which the badges are visible to players and to the department, its employees, or its agents during the duration of the poker tournament. A game manager, operator's tournament manager, charitable host representative, dealers, and other game workers shall also possess a current photo identification, such as a driver's license or other government issued identification. The game manager, tournament manager, charitable host representative, dealers, and other game workers shall provide the badge, current photo identification, or both upon request by the department, its employees, or its agents to do so. These badges shall meet the criteria set forth in 11VAC15-50-30 and 11VAC15-50-40.

c. If the qualified organization is managing, operating, and conducting its own poker tournament, then a game manager shall complete and sign a poker tournament reconciliation form within 48 hours of the end of the poker tournament as required by 11VAC15-50-110. If an operator is administering the poker tournament, then the operator's tournament manager and charitable host representative shall complete and sign a poker tournament reconciliation form within 48 hours of the end of the poker tournament as required by 11VAC15-50-110.

d. All persons involved in managing, operating, conducting, or administering a poker tournament shall be 18 years or age or older.

e. During the poker tournament, a qualified organization or operator may award players participating in the poker tournament prizes of value, the value of which may be determined by the game manager or the operator's tournament manager, under the following conditions, including:

(1) A player, within a specific period of time as determined by the game manager or the operator's tournament manager, wins the highest ranked hand;

(2) A player sitting on the seat randomly determined by the game manager or operator's tournament manager, at a specific period of time as determined by the game manager or the operator's tournament manager;

(3) Every player sitting at a single table that is randomly determined by the game manager or operator's tournament manager, at a specific period of time as determined by the game manager or the operator's tournament manager;

(4) A player that loses a hand that is the highest losing ranking hand, within a specific period of time as determined by the game manager or the operator's tournament manager;

(5) The last player who remains in the poker tournament who participated in the last man standing bet;

(6) An amount of poker chips, as determined by the game manager or operator's tournament manager, that are placed into the pot at a randomly selected table by the game manager or the operator's tournament manager before the hand begins, before any players place forced bets, commonly referred to as "blinds"; or

(7) Those players who pay an additional fee to receive additional poker chips at the set preannounced times for use in the poker tournament may be awarded prizes based on how long such player remains in the tournament, as determined by the game manager or the operator's tournament manager.

f. The game manager or the operator's tournament manager shall:

(1) Adhere to the definition of Texas Hold'em poker game as stated in § 18.2-340.16 of the Code of Virginia;

(2) Apply the ranking of hands and the rules of the poker tournament as governed by the official rules of the Poker Tournament Directors Association; and

(3) Apply the code of conduct and etiquette as governed by Robert's Rules of Poker.

g. For the purposes of maintaining integrity of the poker tournament, the dealer shall only be responsible for dealing playing cards and handling poker chips at the poker table during the poker tournament and not assigned any other duties or responsibilities not directly related to such activities.

h. If the charitable host representative is involved in any portion of the cash handling during a poker tournament administered by an operator, then the charitable host representative shall adhere to the operator's internal control policies and procedures that were submitted to the department by the operator pursuant to 11VAC15-50-40 E.

[ i. The poker tournament shall include a live dealer, physical playing cards, and physical poker chips. ]

3. A qualified organization shall display prominently its charitable gaming permit during the poker tournament, and if the qualified organization uses an operator to administer its poker tournament, then the operator shall display its operator registration.

4. A game manager or, if a qualified organization uses an operator to administer its poker tournament, the qualified organization's charitable host representative and the operator's tournament manager shall display prominently a poster advising the public of a phone number where complaints relating to the poker tournament may be made. Such posters shall be in a format prescribed by the department, as required by 11VAC15-50-170.

5. A game manager or, if a qualified organization uses an operator to administer its poker tournament, the qualified organization's charitable host representative and the operator's tournament manager shall display prominently a poster that bears a toll-free telephone number for "Gamblers Anonymous" or other organization that provides assistance to compulsive gamblers.

6. A game manager or, if a qualified organization uses an operator to administer its poker tournament, the qualified organization's charitable host representative and the operator's tournament manager shall display prominently any house rules, which shall govern the poker tournament beyond the official rules for poker tournaments established by the Poker Tournament Directors Association, and the code of conduct and etiquette as governed by Robert's Rules of Poker. Any house rules shall be consistent with the Charitable Gaming Statute, this chapter, [ and ] the official rules for poker tournaments established by the Poker Tournament Directors Association [ , and the code of conduct and etiquette as governed by Robert's Rules of Poker ].

7. A game manager or, if a qualified organization uses an operator to administer its poker tournament, the qualified organization's charitable host representative and the operator's tournament manager shall ensure any poker chips, playing cards, or mechanical poker equipment used to conduct the poker tournament are not counterfeit, tampered with, or otherwise affect the integrity of the poker tournament prior to, during, and after the poker tournament. Any poker chips found to be counterfeit or playing cards or mechanical equipment found to be tampered with shall be removed immediately from the poker tournament. Such incidents shall be reported by the qualified organization or jointly by the qualified organization and operator to the department pursuant to 11VAC15-50-170.

8. A game manager or, if a qualified organization uses an operator to administer its poker tournament, the qualified organization's charitable host representative and the operator's tournament manager shall ensure all mechanical poker equipment is fully functional and maintains the integrity of the poker tournament prior to, during, and after the poker tournament. Any mechanical poker equipment not meeting these particular standards shall be removed immediately from the poker tournament by the game manager, or if the qualified organization uses an operator to administer its poker tournament, then the charitable host representative and the operator's tournament manager.

9. A qualified organization shall not manage, operate, or conduct its poker tournament or have its poker tournament administered by an operator in a facility or [ on ] premises that conducts gambling [ or gaming ] activities, unless such activities are authorized by Article 1.1:1 (§ 18.2-340.15 et seq.) of Chapter 8 of Title 18.2 of the Code of Virginia; Charitable Gaming Regulations (11VAC15-40); [ or ] this chapter [ ; Chapter 40 (§ 58.1-4000 et seq.) of Title 58.1 of the Code of Virginia; and Chapter 29 (§ 59.1-364 et seq.) of Title 59.1 of the Code of Virginia ].

10. Only qualified organizations, registered operators, and permitted charitable gaming suppliers shall advertise a poker tournament. Any printed advertisement is permitted, provided the name of the qualified organization shall be in a type size equal to or larger than the name of the premises used for the poker tournament, name of the operator, or any word referring to the poker tournament.

11VAC15-50-70. Charitable gaming supplies; approval of mechanical card shuffler and dealer shoes and other electronic and mechanical equipment.

A. [ Operators and organizations shall purchase charitable gaming supplies, including cards, chips, and electronic and mechanical devices, only from a charitable gaming supplier permitted pursuant to § 18.2-340.34 of the Code of Virginia.

B. Electronic and mechanical devices, including electronic poker tables, may be used to conduct poker games or tournaments, provided that such electronic or mechanical equipment or device is preapproved by the department in accordance with and subject to this section and such technical standards adopted by the department.

C. ] The department shall set testing criteria for all mechanical card shuffler and dealer shoes and other [ electronic and ] mechanical equipment used during a poker tournament. A mechanical card shuffler and dealer shoe or other [ electronic and ] mechanical equipment used during a poker tournament shall not be sold, leased, or otherwise furnished to any person in the Commonwealth of Virginia for use during a poker tournament until an identical sample card shuffler and dealer shoes or equipment containing identical software has been certified by a testing facility that has been formally recognized by the department as a testing facility that upholds the standards of integrity established by the department. The testing facility must certify that the mechanical card shuffler and dealer shoe, other mechanical equipment, associated hardware, and associated software conform, at a minimum, to the requirements of this chapter. Once the testing facility reports the test results to the department, the department will either approve or reject the mechanical card shuffler and dealer shoe or other mechanical equipment and inform the manufacturer of the results. If any such system or equipment does not meet the department's criteria, that system or equipment shall be recalled and shall not be distributed in the Commonwealth. The cost of testing shall be borne by the manufacturer of such equipment.

[ B. D. ] Notwithstanding any other testing criteria established by the department, the mechanical card shuffler and dealer shoe shall be tested to the standards established by Gaming Laboratories International for card shufflers and dealer shoes.

11VAC15-50-80. Rules of play.

Qualified organizations and operators shall adhere to the official rules of the Poker Tournament Directors Association and the code of conduct and etiquette from Robert's Rules of Poker. [ To the extent any house rules are inconsistent with the rules established by Robert's Rules of Poker, the applicable house rules shall prevail. ]

11VAC15-50-90. Requirements regarding renting premises, agreements, and landlord participation.

A. No qualified organization [ or operator ] shall rent or use any leased premises to be used for poker tournaments unless all terms for rental or use are set forth in a written contract and signed by the parties thereto prior to the issuance of a permit to conduct charitable gaming.

B. Qualified organizations shall not make any payments to a landlord except by check drawn directly from the qualified organization's charitable gaming account and in accordance with the conditions set forth in the written contract described in subsection A of this section.

C. [ No Subject to a qualified organization's conflict of interest policies and related IRS regulations, a ] landlord, its agents, its employees, their immediate family members, or persons residing in their household [ shall may ] directly or indirectly make any loan to any qualified organization, operator, or supplier of [ charitable poker ] gaming supplies, its members, any persons affiliated or associated with the qualified organization, their immediate family members, or persons residing in their household.

D. [ No Subject to a qualified organization's conflict of interest policies and related IRS regulations, a ] landlord, its agents, its employees, their immediate family members, or persons residing in their household [ shall may ] directly or indirectly make any payment to any qualified organization, operator, supplier of [ charitable poker ] gaming supplies, its members, any persons affiliated or associated with the qualified organization, their immediate family members, or persons residing in their household [ unless such payment from the landlord to the qualified organization is directly related to a written contract and the facility leased for use to hold a poker tournament as required by subsection A of this section and such a payment is made by check from the qualified organization's charitable gaming account directly to the landlord ].

E. [ No Subject to a qualified organization's conflict of interest policies and related IRS regulations, a ] landlord, its agent, its employees, their immediate family members, or persons residing in their household [ shall may ], at a poker tournament operated, conducted, or administered on the landlord's premises:

1. Participate in the management, operation, conduct, or administration of any poker tournament;

2. Sell, lease, or otherwise provide any charitable gaming supplies, including playing cards, poker chips, or other game pieces [ , provided that such person is a charitable gaming supplier permitted pursuant to § 18.2-340.34 of the Code of Virginia ];

3. Require as a condition of the [ written contract lease ] that a particular supplier of charitable gaming supplies [ or operator ] is used by the qualified organization; or

4. Provide, advise, or direct the qualified organization or operator to use any particular person for the purposes of the management, operation, conduct, or administration of a poker tournament that is to be held in the landlord's facility.

F. [ No Subject to a qualified organization's conflict of interest policies and related IRS regulations, a ] member of a qualified organization involved in the management, operation, or conduct of a poker tournament [ shall may ] provide [ any ] services to a landlord or be remunerated in any manner by the landlord of the facility that a qualified organization is using to operate and conduct its poker tournament.

[ G. A qualified organization or an operator shall disclose to the department any payment or loan made, directly or indirectly, to one of its members or any person affiliated or associated with the qualified organization or operator, their immediate family member, or a person residing in their household by a landlord with whom the qualified organization has entered into a written contract pursuant to subsection A of this section. ]

11VAC15-50-100. Bank accounts.

A. A qualified organization shall maintain a charitable gaming bank account that is separate from any other bank account, and all gaming receipts shall be deposited into the charitable gaming bank account.

B. Disbursements for expenses by the qualified organization other than prizes and reimbursement of meal expenses shall be made by check directly from its charitable gaming account. However, the expenses incurred by an operator administering a poker tournament may be disbursed from the qualified organization's charitable gaming account through an electronic fund transfer to the operator provided that such an arrangement is agreed upon by both the qualified organization and the operator. A written agreement specifying the terms of this arrangement shall be required prior to any electronic fund transfer occurring between the two parties.

C. All charitable gaming bank account records, including monthly bank statements, canceled checks or facsimiles thereof, and reconciliations, shall be maintained for a minimum of three years following the close of a fiscal year.

D. All receipts from the poker tournament shall be deposited by the second business day following the tournament at which they were received. However, receipts received by an operator for administering a poker tournament for a qualified organization may be deposited through an electronic fund transfer into the qualified organization's charitable gaming account provided that such an arrangement is agreed upon by both the qualified organization and the operator. A written agreement specifying the terms of this arrangement shall be required prior to any electronic fund transfer occurring between the two parties.

11VAC15-50-110. Recordkeeping.

A. In addition to the records required by § 18.2-340.30 D of the Code of Virginia, qualified organizations managing, operating, and conducting poker tournaments or contracting with an operator to administer poker tournaments shall maintain a system of records for a minimum of three years from the close of the fiscal year for each poker tournament on forms prescribed by the department or reasonable facsimiles of those forms approved by the department that include:

1. Charitable gaming supplies purchased and used for poker tournaments;

2. If the qualified organization is managing, operating, and conducting its own poker tournament, then a game manager shall complete and sign a poker tournament reconciliation form within 48 hours of the end of the poker tournament. If an operator is administering the poker tournament, then the operator's tournament manager and charitable host representative shall complete and sign a poker tournament reconciliation form within 48 hours of the end of the poker tournament;

3. All discounts provided;

4. A reconciliation to account for cash received from workers who received payment from players for entry into the poker tournament;

5. An admissions control system that provides a cross-check on the number of players in attendance and sales. This may include a ticket control system, cash register, or any similar system;

6. An itemized record of all receipts and disbursements associated with a poker tournament, including written contracts with an operator, rent, advertisement, and security as well as use of proceeds disbursements. Copies of invoices and other documentation for all such disbursements shall also be maintained;

7. All other operating expenses, for which receipts from a poker tournament were used to pay such expenses. Copies of invoices and other documentation for all such other expenses shall also be maintained;

8. A record of the name and address of each tournament winner who was awarded a prize during or after the conclusion of the poker tournament; and

9. For any prize or jackpot of a value that meets or exceeds the reporting requirements in the IRS's Publication 3079, the name and address of each individual to whom any such prize or jackpot is awarded and the amount of the award.

B. The qualified organization and their contracted operator shall each maintain independent records from one another on each poker tournament. The qualified organization shall not have its records managed, maintained, or stored by an operator.

C. All unused charitable gaming supplies shall either be returned for refund to the supplier in unopened original packaging in resalable condition as determined by the supplier or destroyed following notification to the department on a form prescribed by the department. The qualified organization shall maintain a receipt for all such charitable gaming supplies returned to the supplier or destroyed.

11VAC15-50-120. Financial reporting, penalties, inspections, and audits.

A. Each qualified organization shall file an annual report of receipts and disbursements by March 15 of each year on a form prescribed by the department. The annual report shall cover the activity for the fiscal year. The qualified organization may combine this report with its report for other forms of charitable gaming into a single report to satisfy 11VAC15-40-90 and this section.

B. The annual report shall be accompanied by the audit and administration fee as established by the department for the fiscal year unless the fee has been remitted with quarterly reports or the qualified organization is exempt from payment of the fee pursuant to § 18.2-340.23 of the Code of Virginia.

C. A qualified organization desiring an extension to file its annual report for good cause shall request the extension in writing on a form prescribed by the department and shall pay the projected audit and administration fee, unless exempt from payment of the fee pursuant to § 18.2-340.23 of the Code of Virginia. The extension request and payment of projected fees shall be made in accordance with the provisions of § 18.2-340.30 of the Code of Virginia.

D. Unless exempted by § 18.2-340.23 of the Code of Virginia, qualified organizations realizing any gross gaming receipts in any calendar quarter shall file a quarterly report of receipts and disbursements on a form prescribed by the department as follows:

Qualified organizations shall submit quarterly reports with the appropriate audit and administration fee unless the qualified organization is exempt from payment of the fee pursuant to § 18.2-340.23 of the Code of Virginia. The qualified organization may combine this report with other forms of charitable gaming into a single report to satisfy 11VAC15-40-90 and this section. An annual financial report may substitute for a quarterly report if the qualified organization has no further charitable gaming income during the remainder of the reporting period and the annual report is filed by the due date for the applicable calendar quarter.

E. A qualified organization desiring an extension to file its quarterly report for good cause shall request the extension in writing on a form prescribed by the department and shall pay the projected audit and administration fee unless exempt from payment of the fee pursuant to § 18.2-340.23 of the Code of Virginia. The extension request and payment of projected fees shall be made in accordance with the provisions of § 18.2-340.30 of the Code of Virginia.

F. Qualified organizations failing to file required reports, request an extension, or make fee payments when due shall be charged a penalty of $25 per day from the due date until such time as the required report is filed.

G. Qualified organizations failing to file a quarterly report or annual report on or before the due date as specified in subsections A and D of this section, unless an extension was granted by the department in accordance with subsections C and E of this section, shall have their permit automatically revoked by the department as required by § 18.2-340.30 of the Code of Virginia.

H. Any qualified organization in possession of funds derived from charitable gaming (including those who have ceased operations), regardless of when such funds may have been received or whether it has a valid permit from the department, shall file an annual financial report on a form prescribed by the department on or before March 15 of each year until such funds are depleted. If a qualified organization ceases the conduct of charitable gaming, it shall provide the department with the name of an individual who shall be responsible for filing financial reports. If no such information is provided, the president or the chief executive officer of an organization shall be responsible for filing reports until all charitable gaming proceeds are depleted.

I. If a qualified organization has been identified through inspection, audit, or other means as having deficiencies in complying with statutory or regulatory requirements or having ineffective internal controls, the department may impose restrictions or additional recordkeeping and financial reporting requirements.

J. Any records deemed necessary to complete an inspection, audit, or investigation may be collected by the department, its employees, or its agents from the premises of an organization or any location where charitable gaming is conducted or any location where the records are located or stored by the organization. The department shall provide a written receipt of such records at the time of collection.

11VAC15-50-130. Use of proceeds.

A. All payments by a qualified organization intended as use of proceeds must be made by check written from the qualified organization's charitable gaming account.

B. Use of proceeds payments may be made for scholarship funds or the future acquisition, construction, remodeling, or improvement of real property or the acquisition of other equipment or vehicles to be used for religious, charitable, educational, or community purposes. In addition, a qualified organization may obtain department approval to establish a special fund account or an irrevocable trust fund for special circumstances. Transfers to such an account or an irrevocable trust fund from the qualified organization's charitable gaming account may be included as a use of proceeds if the payment is authorized by the qualified organization's board of directors.

No payments made to such a special fund account shall be withdrawn for other than the specified purpose unless prior notification is made to the department.

C. Expenditures of charitable gaming funds for social or recreational activities or for events, activities, or programs that are open primarily to an organization's members and their families shall not qualify as use of proceeds unless substantial benefit to the community is demonstrated.

D. Payment made to or on behalf of (i) indigent, sick, or deceased members or (ii) the immediate family of an individual listed in clause (i) of this subdivision shall be allowed as use of proceeds provided they are approved by the qualified organization's board of directors and the need is documented.

E. Payments made directly for the benefit of an individual member, member of an individual member's family, or person residing in an individual member's household shall not be allowed as a use of proceeds unless authorized by law or elsewhere in this chapter.

F. Use of proceeds payments by a qualified organization shall not be made for any activity that is not permitted by federal, state, or local laws or for any activity that attempts to influence or finance directly or indirectly political persons or committees or the election or reelection of any person who is or has been a candidate for public office.

G. [ Organizations Qualified organizations ] shall maintain details of all use of proceeds disbursements for a minimum of three years from the close of the fiscal year and shall make this information available to the department upon request.

H. The department may disallow a use of proceeds payment to be counted against the minimum percentage referred to in 11VAC15-50-20 D. If any payment claimed as use of proceeds is subsequently disallowed, a qualified organization may be allowed additional time as specified by the department to meet minimum use of proceeds requirements.

I. The department may publish the amount of fees paid by a qualified organization to an operator for administering its poker tournaments.

J. The department may publish:

1. The amount of proceeds generated by the qualified organization's poker tournaments used for (i) lawful religious, charitable, community, or educational purposes for which the organization is specifically chartered or (ii) those expenses relating to the acquisition, construction, maintenance, or repair of any interest in real property involved in the operation of the organization and used for lawful religious, charitable, community, or educational purposes; and

2. Any [ other financial ] information [ deemed necessary by the department already available to the public ].

11VAC15-50-140. Requirements regarding contracts.

A. If the qualified organization decides to use an operator to administer its poker tournament, then it shall enter into a written contract with the operator.

B. The written contract between the qualified organization and operator shall identify the conditions and cost for the operator to administer the poker tournaments for the qualified organization. This written contract shall:

1. Require the operator to provide assurances to the qualified organization and the department that its owner, partner, president or chief executive officer, treasurer or chief financial officer, and the operator's tournament manager, employees, independent contractors, or agents have never been convicted or pleaded nolo contendere to any felony or any misdemeanor as follows:

a. For any person serving as the operator's tournament manager for the qualified organization's poker tournament:

(1) Convicted of a felony; or

(2) Convicted of any misdemeanor involving fraud, theft, or financial crimes within the preceding five years.

b. For any person serving as a dealer or any other game worker for the qualified organization's poker tournament:

(1) Convicted of any felony within the preceding 10 years; or

(2) Convicted of any misdemeanor involving fraud, theft, or financial crimes within the preceding five years.

c. For any owner, partner, president or chief executive officer, and treasurer or chief financial officer of the operator:

(1) Convicted of or pleaded nolo contendere to a felony in any state or federal court or has been convicted of any offense that, if committed in the Commonwealth, would be a felony; or

(2) Convicted of or pleaded nolo contendere to a crime involving gambling.

2. Require the operator to report to the qualified organization and the department within 20 days if there is any action taken against any valid license, permit, certificate, registration, or other similar documents related to gambling held by the operator in any state, territory, a possession of the United States, the District of Columbia, or any political subdivision thereof.

3. Require the operator to report to the qualified organization and the department within 20 days if it failed to file or has failed to file or has been delinquent in excess of one year in the filing of any tax returns or the payment of any taxes due the Commonwealth or has failed to establish a registered office or registered agent in the Commonwealth if so required by § 13.1-634 or 13.1-763 of the Code of Virginia.

4. Require the operator to provide the qualified organization and the department with access to the operator's financial record for each poker tournament administered on its behalf for at least the past three fiscal years and if necessary, to provide the qualified organization with copies or the department with the originals of such records or any other records deemed necessary to complete an inspection, audit, or investigation without hindrance from the operator. The department shall provide a written receipt for the originals of such records at the time of collection.

5. Require the operator to provide the qualified organization with a copy of a detailed invoice for each poker tournament it administers on behalf of the qualified organization, which the invoice shall meet the requirements specified in subsection H of 11VAC15-50-40.

6. Require the operator to retain all bank account records, including monthly bank statements, canceled checks or facsimiles thereof, and reconciliations, which shall be maintained for a minimum of three years following the close of a fiscal year.

7. [ Require the operator to purchase any mechanical card shuffler or other mechanical equipment approved pursuant to 11VAC15-50-70 from a charitable gaming supplier permitted pursuant to § 18.2-340.34 of the Code of Virginia and require any purchase of playing cards or poker chips from a nonpermitted charitable gaming supplier to be reported to the department.

8. ] Require the operator's tournament manager, dealers, and other game workers to wear badges that meet the requirements set forth in subsection E of 11VAC15-50-40 and for each of them to possess a current photo identification, such as a driver's license or other government issued identification while they administer the qualified organization's poker tournament. The operator's tournament manager, dealers, and other game workers shall provide the badge, current photo identification, or both upon request by the department, its employees, or its agents.

[ 9. 8. ] Require the operator to display prominently its operator's registration during each poker tournament administered on the qualified organization's behalf.

[ 10. 9. ] Require the operator to display prominently any house rules, which shall govern the poker tournament [ beyond the official rules for poker tournaments established by the Poker Tournament Directors Association, and the code of conduct and etiquette as governed by Robert's Rules of Poker, ] during each poker tournament administered on the qualified organization's behalf. [ Any house rules shall be consistent with the charitable gaming statutes, this chapter, the official rules for poker tournaments established by the Poker Tournament Directors Association, and the code of conduct and etiquette as governed by Robert's Rules of Poker. ]

[ 11. 10. ] Require the operator to display prominently a poster, which bears a toll-free telephone number for "Gamblers Anonymous" or other organization that provides assistance to compulsive gamblers, during each poker tournament administered on the qualified organization's behalf.

[ 12. 11. ] Require the operator to provide the qualified organization with a copy of written internal control policies and procedures, which will be used during each poker tournament administered on the qualified organization's behalf.

[ 13. 12. ] Require the operator to refrain from administering poker tournaments for unauthorized persons or entities, such as [ qualified ] organizations not duly permitted by the department pursuant to 11VAC15-50-30, unless it is exempted from obtaining or possessing a permit pursuant to § 18.2-340.23 of the Code of Virginia; engages or participates in illegal gambling; or is not authorized to conduct business in the Commonwealth.

[ 14. Require the operator to obtain a surety or surety bond payable to the qualified organization if the operator fails to perform its contractual obligation. The amount of the surety or surety bond shall (i) be agreed upon between both the qualified organization and the operator and (ii) be sufficient to cover any liability resulting from the administration of the qualified organization's poker tournaments. The written contract shall contain specific information, including the name and contact information on the provider of the surety or surety bond on how the qualified organization shall make a claim against the surety, surety bond, or another form of guaranty. The operator shall inform the qualified organization on any changes related to this subsection.

15. 13. ] Require the operator to comply with any restrictions or additional recordkeeping and financial reporting requirements imposed upon the qualified organization by the department due to deficiencies identified through inspection, audit, or other means.

[ 16.14. ] Require no more than 50% of the gross receipts [ net of prizes payable ] from the poker tournament shall go to the operator as payment to the operator for the expense of administering the qualified organization's poker tournament. Such payment may include a fixed fee, but such a fee shall not exceed 50% of the gross receipts [ net of prizes payable ] from the poker tournament. Any fee, up to the allowable amount shall be specified within the written contract.

[ 17. Require the operator to pay all expenses, other than prizes, to be made by check directly from its account.

18. Require the operator to prohibit its directors, officers, owners, partners, tournament managers, employees, independent contractors, and agents from participating in or otherwise playing in any poker tournaments it administers for the qualified organization.

19. A 15. Subject to the other provisions of this section, include provisions specifying the parties' respective obligations related to expenses incurred in connection with the hosting, management, conduct, or administration of a poker tournament.

16. Include a ] provision relating to any negotiated expenses associated with the administration of the poker tournament. These expenses shall be specifically identified in the written contract with a specified amount. The total amount of expenses related to the administration of the poker tournament shall not exceed the allowable expense identified in subdivision [ 16 14 ] of this subsection.

[ 20. A 17. Include a ] provision prohibiting the operator from charging, assessing, levying, collecting, or otherwise requesting the payment of any fees, charges, or any other assessments against the qualified organization for administering its poker tournament except, for the fee allowed in subdivision [ 16 14 ] of this subsection.

[ 21. A 18. Include a ] provision specifying the duration of the written contract period, and the termination rights for the qualified organization and operator.

[ 22. If agreed upon by both the qualified organization and the operator, the receipts received by an operator due to the operator's administering of a poker tournament for a qualified organization may be deposited through an electronic fund transfer into the qualified organization's charitable gaming account provided that such an arrangement is agreed upon by both the qualified organization and the operator. 19. Specify the terms of any arrangement agreed upon by the qualified organization and the operator regarding the deposit of the receipts received by an operator due to the operator's administering of a poker tournament for a qualified organization through an electronic fund transfer into the qualified organization's charitable gaming account. ] A written agreement specifying the terms of this arrangement shall be required prior to any electronic fund transfer occurring between the two parties.

[ 23. If agreed upon by both the qualified organization and the operator, the expenses incurred by an operator administering a poker tournament may be disbursed from the qualified organization's charitable gaming account through an electronic fund transfer to the operator provided that such an arrangement is agreed upon by both the qualified organization and the operator. 20. Specify the terms of any arrangement agreed upon by the qualified organization and the operator regarding the disbursement through an electronic fund transfer from the qualified organization's charitable gaming account of expenses incurred by the operator administering a poker tournament. ] A written agreement specifying the terms of this arrangement shall be required prior to any electronic fund transfer occurring between the two parties.

[ 24. If the operator leases a facility for the purposes of administering the qualified organization's poker tournament, then the written contract shall prohibit the landlord from serving as an operator and meets the conditions set forth in 11VAC15-50-90. ]

C. Qualified organizations shall only contract with those operators that adhere to the provisions of the Charitable Gaming Statute and this chapter.

D. An organization shall provide a copy of all written contracts between the qualified organizations and the operator to the department upon application for a permit or upon the entering into any contract subsequent to the application.

11VAC15-50-150. Suppliers of charitable gaming supplies.

For purposes of this chapter, a supplier shall be subject to the provisions of 11VAC15-40-120.

11VAC15-50-160. Procedural rules for informal fact-finding conferences and hearings.

A. Informal fact-finding conference; notification, appearance, and conduct.

1. Unless automatic revocation or immediate suspension is required by law, no permit issued to a qualified organization to manage, operate, and conduct poker tournaments or registration issued to an operator to administer poker tournaments shall be denied, suspended, or revoked except (i) after review and approval of such proposed denial, suspension, or revocation action by the board and (ii) upon notice stating the basis for such proposed action and the time and place for an informal fact-finding conference as set forth in § 2.2-4019 of the Code of Virginia unless waived by both the named party and the department.

2. If a basis exists for a refusal to renew, suspend, or revoke a permit or registration, the department shall notify by certified mail or by hand delivery to the interested persons at the address of record maintained by the department.

3. Notification shall include the basis for the proposed action and afford interested persons the opportunity to present written and oral information to the department that may have a bearing on the proposed action at an informal fact-finding conference. If there is no withdrawal, an informal fact-finding conference shall be scheduled at the earliest mutually agreeable date, but no later than 60 days from the date of the notification. Qualified organizations or operators that wish to waive their right to a conference shall notify the department at least 14 days before the scheduled conference.

4. If, after consideration of evidence presented during an informal fact-finding conference, a basis for action still exists, the interested persons shall be notified in writing within 90 days of the informal fact-finding conference via certified or hand-delivered mail of the decision and the right to a formal hearing. Parties to the conference may agree to extend the report deadline if more time is needed to consider relevant evidence.

B. Hearing; notification, appearance, and conduct.

1. If, after an informal fact-finding conference, a sufficient basis still exists to deny, suspend, or revoke a permit or registration, interested persons shall be notified by certified or hand-delivered mail of the proposed action and of the opportunity for a hearing on the proposed action. If a qualified organization or operator desires to request a hearing, it shall notify the department within 14 days of receipt of a report on the conference. Parties may enter into a consent agreement to settle the issues at any time prior to or subsequent to an informal fact-finding conference.

2. Unless otherwise provided by law, if a party without good cause fails to attend or appear at a formal hearing conducted in accordance with § 2.2-4020 of the Code of Virginia, or at an informal fact-finding proceeding conducted pursuant to § 2.2-4019 of the Code of Virginia, the presiding officer may issue a default order in accordance with § 2.2-4020.2 of the Code of Virginia.

3. Oral and written arguments may be submitted to and limited by the hearing officer. Oral arguments shall be recorded in an appropriate manner.

C. Hearing location. Hearings before a hearing officer shall be held, insofar as practicable, in the county or city in which the qualified organization or operator is located. If the parties agree, hearing officers may conduct hearings at locations convenient to the greatest number of persons or by telephone conference, video conference, or similar technology in order to expedite the hearing process.

D. Hearing decisions.

1. Recommendations of the hearing officer shall be a part of the record and shall include a written statement of the hearing officer's findings of fact and recommendations as well as the reasons or basis for the recommendations. Recommendations shall be based upon all the material issues of fact, law, or discretion presented on the record.

2. The department shall review the recommendation of the hearing officer and render a decision on the recommendation within 30 days of receipt. The decision shall cite the appropriate rule, relief, or denial thereof as to each issue.

E. Agency representation. The commissioner's designee may represent the department in an informal fact-finding conference or at a hearing.

11VAC15-50-170. Reporting violations.

A. Unless otherwise required by law, the identity of any individual who provides information to the department or its agents regarding alleged violations shall be held in strict confidence.

B. Any officer, director, or game manager of a qualified organization or any officer or director of an operator shall immediately report to the department any information pertaining to the suspected misappropriation or theft of funds or any other violation of the Charitable Gaming Statutes or this chapter, including counterfeit poker chips or playing cards or mechanical poker equipment that appear to have been tampered with.

C. Failure to report the information required by subsection B of this section may result in the denial, suspension, or revocation of a permit or registration.

D. Any officer, director, or game manager of a qualified organization involved in the management, operation, or conduct of charitable gaming shall immediately notify the department upon being convicted of a felony or a crime involving fraud, theft, or financial crimes.

E. Any officer, director, partner, or owner of an operator shall immediately notify the department upon being convicted of or pleading nolo contendere to a felony or a crime involving gambling or an action against any valid license, permit, certificate, registration, or other similar documents related to gambling held by the operator in any state, territory, a possession of the United States, any political subdivision thereof, or the District of Columbia.

F. Failure to report information required by subsection D or E of this section by any officer, director, or game manager of a qualified organization or by any operator may result in the denial, suspension, or revocation of a permit or registration.

G. Any officer, director, or game manager of a qualified organization shall immediately report to the department any change the IRS makes in the tax status of the organization, or if the organization is a chapter of a national organization covered by a group tax exempt determination, the tax status of the national organization.

H. All qualified organizations permitted by the department or operators registered by the department shall display prominently a poster advising the public of a phone number where complaints relating to poker tournaments may be made. Such posters shall be in a format prescribed by the department.

FORMS (11VAC15-50)

[ Annual Financial Report, Form 101 (eff.2020)

Charitable Gaming Permit Application – New Applicants, Form 201-N (eff.2020)

Charitable Gaming Permit Application – Renewal Applicants, Form 201-R (eff.2020)

Annual Financial Report, Form 101 (rev. 3/21)

Charitable Gaming Permit Application – New Applicants, Form 201-N (rev. 3/21)

Charitable Gaming Permit Application – Renewal Applicants, Form 201-R (rev. 3/21) ]

Destruction of Unused Charitable Gaming Supplies, Form 112 (rev. 3/2014)

Permit Amendment (rev. 8/2013)

[ Quarterly Financial Report Form, Form 102 (eff.2020)

Quarterly Financial Report Form, Form 102 (rev. 3/21) ]

Report of Game Termination (rev. 7/2013)

[ Texas Hold'em Game Operator Registration, Form 307 (eff. 2020)

Texas Hold'em Tournament Reconciliation Summary, Form 114 (eff. 2020)

Texas Hold'em Game Operator Registration, Form 307 (eff. 3/21)

Texas Hold'em Tournament Reconciliation Summary, Form 114 (eff. 3/21)

Texas Hold'em Poker Tournament Operator Registration – Personal Information Form, Form 307a (eff. 3/21)

Texas Hold'em Poker Tournament Operator's Surety Bond, Form 309 (eff. 3/21) ]

DOCUMENTS INCORPORATED BY REFERENCE (11VAC15-50)

Poker Tournament Directors Association Rules, 2019, September 17, 2019, Poker Tournament Directors Association, https://www.pokertda.com/

Robert's Rules of Poker, Version 11, 2012, Robert Ciaffone

Title of Regulation: 12VAC5-191. State Plan for the Children with Special Health Care Needs Program (amending 12VAC5-191-40; adding 12VAC5-191-330, 12VAC5-191-340).

Statutory Authority: §§ 32.1-12 and 32.1-77 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: Robin Buskey, Policy Analyst, Office of Family Health Services, Virginia Department of Health, 109 Governor Street, Richmond, VA 23219, telephone (804) 863-7253, or email robin.buskey@vdh.virginia.gov.

Basis: The State Board of Health is authorized to make, adopt, promulgate, and enforce regulations by § 32.1-12 of the Code of Virginia. Chapter 503 of the 2020 Acts of Assembly requires the board to adopt regulations to implement an adult comprehensive sickle cell clinic network.

Purpose: The purpose of this regulation is to be in compliance with the Code of Virginia and to implement an adult comprehensive sickle cell clinic network. Sickle cell disease (SCD) is a group of inherited, lifelong blood disorders that affects the red blood cells. In the United States, SCD disproportionately affects African Americans and those with a Hispanic background. Throughout the world, the disease affects those from the Middle East, Italy, and Greece. Sickle cell affects every organ in the body. Complications include severe pain, stroke, acute chest syndrome, organ damage, and in some cases premature death. Increased sickle cell-related mortality has been shown in persons 18 to 30 years of age, with the highest rate of acute care encounters and re-hospitalizations in this age group compared to the older group of patients who would be expected to have increased illness and complications due to advancing age. According to Virginia Department of Health data, the rate of emergency department (ED) visits for sickle cell disease in Virginia was highest among persons 18 to 30 years of age at 53.8 ED visits per 10,000 ED visits and 53.1 ED visits per 10,000 ED visits in 2018 and 2019 respectively.

This regulatory action is essential to protect the health, safety, and welfare of Virginians with sickle cell disease. There is a need to improve the coordination of care and transition of young adults with sickle cell from pediatric to adult medical care. Virginia has only one comprehensive adult sickle cell center, which is located at Virginia Commonwealth University. Barriers to a successful transition include lack of comprehensive care programs for adults, lack of adult providers with skills or interest in caring for people with sickle cell, lack of insurance coverage, and poor communication and follow-up between pediatric and adult providers.

The short-term goal of this regulatory change is the establishment of an adult comprehensive sickle cell clinic network. The long-term goal is a reduction in the rate of ED visits for adults with sickle cell among persons 18 to 30 years of age and an increase in the number of adults who continue into specialty care and establish a medical home with a specialty care provider.

Rationale for Using Fast-Track Rulemaking Process: The mandate for this regulatory change is Chapter 503 of the 2020 Acts of Assembly, which directs the board to adopt regulations to implement an adult comprehensive sickle cell clinic network, so this action seems noncontroversial.

Substance: The State Plan for the Children with Special Health Care Needs Program is amended as follows:

12VAC5-191-40 is amended to include language that describes the adult sickle cell population.

12VAC5-191-330 is added to provide language that describes the Adult Comprehensive Sickle Cell Network.

12VAC5-191-340 is added to provide language that describes the scope of the Adult Comprehensive Sickle Cell Network.

Issues: The primary advantage of the proposed regulatory action to the public is that implementing an adult comprehensive sickle cell clinic network will establish the ability for the adult regional network to work with the pediatric network to ensure successful transition of persons with sickle cell disease. The intended result is continuity of services and treatment for this population of the public. There is no known disadvantage to the public associated with this regulatory change.

A primary advantage of the proposed regulatory action to the Commonwealth is that the action aligns with the recommendation from the American Society of Hematology to improve the pediatric to adult transition by ensuring qualified physicians in adult care are available to treat sickle cell disease. The primary disadvantage to the Commonwealth is the resulting cost of establishing and maintaining an adult regional network. Federal funding for sickle cell centers ended in 2008, and third-party reimbursement for clinical services is generally low, requiring existing SCD comprehensive centers to rely on institutional support. The General Assembly approved funding in the amount of $305k to support implementation of the Adult Comprehensive Sickle Cell Clinic Network.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. As directed by legislation, the State Board of Health (Board) proposes to establish provisions for a new Adult Comprehensive Sickle Cell Clinic Network. The proposed text mostly mirrors the existing text for the current Pediatric Comprehensive Sickle Cell Clinic Network.

Background. Sickle cell disease (SCD) is a group of inherited, lifelong blood disorders that affects the red blood cells. SCD affects every organ in the body. Complications include severe pain, stroke, acute chest syndrome, organ damage, and in some cases premature death.

Over the last several decades, pediatric care and medical advances have increased life expectancy for persons with SCD. However, according to the Virginia Department of Health (VDH), health care delivery systems and public health initiatives supporting the optimal transfer from pediatric to adult care have not kept pace with the growing adult population. Increased sickle cell-related mortality has been shown in 18 to 30 year olds, with the highest rate of acute care encounters and re-hospitalizations in this age group compared to the older group of patients who would be expected to have increased illness and complications due to advancing age.¹ VDH believes this demonstrates a need to improve the coordination of care and the transition of young adults with sickle cell from pediatric to adult medical care.

Chapter 503 of the 2020 Acts of Assembly² mandates that the Board adopt regulations to implement an adult and pediatric comprehensive sickle cell clinic network. The current regulation already includes provisions for the Board to work with comprehensive pediatric sickle cell centers to assure early entry into care within the first several months of life to prevent life threatening conditions. This is the Pediatric Comprehensive Sickle Cell Clinic Network (pediatric network). The proposed action would add text to the regulation that mostly mirrors the existing text, but would apply to adults with SCD, and would enable the creation of an Adult Comprehensive Sickle Cell Clinic Network (adult network).

The proposed text describes the adult network as a statewide group of clinics and subspecialty providers that provide comprehensive medical and support services that are collaborative, family centered, culturally competent, community based and outcome oriented for individuals age 18 and older living with sickle cell disease. Further, the proposed text states that the adult network provides the following direct health care services and enabling services:

1. Multidisciplinary evaluation and treatment from a team of professionals that may include a physician, nurse, social worker, community health worker or patient navigator.

2. Partnering with pediatric sickle cell providers to help facilitate and coordinate the transition of adolescents and young adults with sickle cell disease from pediatric to adult care and services.

3. Assistance in linking patients with primary care practitioners, a medical home, and subspecialists.

4. Educational genetic counseling to explain the inheritance pattern of the variants of sickle cell disease and diagnostic studies to ensure the accurate diagnosis of sickle cell disease.

5. Patient and family education related to all aspects of the diagnosis consistent with cultural and language needs.

6. Collaborative care between primary and subspecialty care providers.

7. Information, referral, and partnership with community-based sickle cell support programs.

8. Promotion of peer or family support that may include postsecondary education and vocational assistance.

9. Training and technical assistance to educate community and health care providers about best practices and evidence-informed standards of care for individuals with sickle cell disease.

10. Collection of surveillance data to monitor incidence, prevalence, demographics, morbidity, mortality, health care utilization, and costs in order to identify disease burden in the Commonwealth.

According to VDH, the short-term goal of the proposed regulatory change is the establishment of an adult network. The long-term goals are a reduction in the rate of emergency department visits for adults with sickle cell in the 18 to 30 age group, and an increase in the number of adults who continue into specialty care and establish a medical home with a specialty care provider.

Estimated Benefits and Costs. VDH currently contracts with health care systems to run four regional centers for the pediatric network. Chapter 1289 from the 2020 Acts of Assembly includes $305,000 annually for the adult network.³ VDH would be responsible for overseeing the allocation of the $305,000 to support the cost of implementing the proposed adult network through contracts for adult regional centers. The agency plans to issue a Request for Proposal for this purpose.

While VDH would oversee implementation of the proposed adult network through contracts with health care systems to create and run the regional centers, the health care systems would be responsible for operating the regional centers and the full associated costs beyond the allocated funds. The agency estimates that a total of $2,471,891 annually would be required to fully staff four regional centers.⁴ As currently occurs with the existing pediatric network, costs would be supported by health insurance, as well as sliding scale fees and other resources.⁵

VDH believes that the development of the adult network would substantively improve the care of adult sickle cell patients. In particular, it is expected to increase the likelihood of successful transfer of care from pediatric to adult providers. Improved care coordination within the clinic network can potentially decrease emergency room visits, hospitalizations and readmission rates. Thus, in addition to potentially improved health outcomes for adults with SCD, health care system costs may potentially decrease as well.

Businesses and Other Entities Affected. The proposed regulation would affect people who have SCD, as well as health care systems and providers who deliver health care services to individuals living with SCD. There are approximately 4,909 individuals living with SCD in the Commonwealth.⁶ VDH has indicated that four regional centers are anticipated for the adult network.

Small Businesses Affected. The proposed amendments would not likely adversely affect small businesses.

Localities⁷ Affected.⁸ The proposed regulation would not likely create costs for local governments. Although the proposed adult network would likely have four regional centers intended to cover SCD patients throughout the Commonwealth, it is not yet known in which localities the regional centers would be located.

Projected Impact on Employment. The proposal would likely increase total employment. VDH believes each of four adult regional centers would need to hire a hematologist, a nurse practitioner, a nurse, and a social worker, resulting in 16 additional jobs.

Effects on the Use and Value of Private Property. If private health care systems are among the entities with which VDH contracts for the adult network, their values may increase with the associated increase in business. The proposal would not affect real estate development costs.

__________________________________________

¹Source: VDH

²See https://lis.virginia.gov/cgi-bin/legp604.exe?201 ful CHAP0503

³It is not included as a separate earmark, but VDH states that it is included as part of Item 301 State Health Services. See https://budget.lis.virginia.gov/item/2020/1/HB30/Chapter/1/301/

⁴VDH's estimate is based on assuming that each regional center would employ one hematologist, one nurse practitioner, one nurse, and one social worker. See page six of the Agency Background Document for more detail. https://townhall.virginia.gov/L/GetFile.cfm?File=58\5664\9164\AgencyStatement_VDH_9164_v2.pdf

⁵Source: VDH

⁶Ibid

⁷Locality 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.

⁸§ 2.2-4007.04 defines particularly affected as bearing disproportionate material impact.

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

Summary:

Pursuant to Chapter 503 of the 2020 Acts of Assembly, the amendments implement an adult comprehensive sickle cell clinic network including (i) providing that the State Board of Health work with comprehensive pediatric sickle cell centers to ensure individuals' early entry into care within the first several months of life to prevent life threatening conditions, (ii) creating an adult regional network that mirrors the current Pediatric Comprehensive Sickle Cell Clinic Network, and (iii) ensuring better coordination in transition from pediatric to adult sickle cell treatment.

12VAC5-191-40. Scope and content of the Children with Special Health Care Needs Program.

A. Mission. The Children with Special Health Care Needs Program promotes the optimal health and development of individuals living in the Commonwealth with special health care needs by working in partnership with families, service providers, and communities.

B. Scope. The scope of the Children with Special Health Care Needs Program includes the following:

1. Direct health care services.

2. Enabling services.

3. Population-based services.

4. Assessment of community health status and available resources.

5. Policy development to support and encourage better health.

C. Networks and Services. The Children with Special Health Care Needs Program administers the following networks and services:

1. Care Connection for Children.

2. Child Development Services.

3. Virginia Bleeding Disorders Program.

4. Genetics and Newborn Screening Services.

a. Virginia Newborn Screening System.

b. Virginia Congenital Anomalies Reporting and Education System.

5. Virginia Sickle Cell Awareness Program.

6. Pediatric Comprehensive Sickle Cell Clinic Network.

7. Adult Comprehensive Sickle Cell Clinic Network.

D. Target population. The target population to receive services from the networks and programs within the Children with Special Health Care Needs Program are the following:

1. Residents of the Commonwealth.

2. Individuals between the ages of birth and their twenty-first 21st birthday except that the Virginia Bleeding Disorders Program and the Virginia Sickle Cell Awareness Program serve individuals of all ages, and the Adult Comprehensive Sickle Cell Clinic Network serves individuals 18 years of age and older.

3. Individuals diagnosed as having, or are at increased risk for having, a chronic physical, developmental, behavioral, or emotional condition and who also require health and related services of a type or amount beyond that required by children generally.

Each network and program within the CSHCN Program has its own specific eligibility criteria.

E. Goals. The Title V national performance measures, as required by the federal Government Performance and Results Act (GPRA-Pub. L. 103-62), are used to establish the program goals.

12VAC5-191-330. Description of the Adult Comprehensive Sickle Cell Clinic Network.

The Adult Comprehensive Sickle Cell Clinic Network is a statewide group of clinics and subspecialty providers that provide comprehensive medical and support services that are collaborative, family centered, culturally competent, community based, and outcome oriented for individuals 18 years of age and older living with sickle cell disease.

12VAC5-191-340. Scope and Content of the Adult Comprehensive Sickle Cell Clinic Network.

A. Mission. The Adult Comprehensive Sickle Cell Clinic Network delivers accessible services to provide access to specialty care and promotes the optimal health of adults living in the Commonwealth with sickle cell disease by working in partnership with individuals, families, service providers, community-based sickle cell programs, and the Virginia Sickle Cell Awareness Program.

B. Scope. The Adult Comprehensive Sickle Cell Clinic Network provides the following direct health care services and enabling services:

1. Multidisciplinary evaluation and treatment from a team of professionals, which may include a physician, nurse, social worker, community health worker, or patient navigator.

2. Partnering with pediatric sickle cell providers to help facilitate and coordinate the transition of adolescents and young adults with sickle cell disease from pediatric to adult care and services.

3. Assistance in linking patients with primary care practitioners, a medical home, and subspecialists.

4. Educational genetic counseling to explain the inheritance pattern of the variants of sickle cell disease and diagnostic studies to ensure the accurate diagnosis of sickle cell disease.

5. Patient and family education related to all aspects of the diagnosis consistent with cultural and language needs.

6. Collaborative care between primary and subspecialty care providers.

7. Information, referral, and partnership with community-based sickle cell support programs.

8. Promotion of peer or family support that may include postsecondary education and vocational assistance.

9. Training and technical assistance to educate community and health care providers about best practices and evidence-informed standards of care for individuals with sickle cell disease.

10. Collection of surveillance data to monitor incidence, prevalence, demographics, morbidity, mortality, health care utilization, and costs in order to identify disease burden in the Commonwealth.

C. Criteria to receive services from the Adult Comprehensive Sickle Cell Clinic Network. Individuals are eligible to receive services from the Adult Comprehensive Sickle Cell Clinic Network if they are:

1. Residents of the Commonwealth.

2. 18 years of age and older.

3. Diagnosed with sickle cell disease.

No financial eligibility criteria are required for clients to receive the enabling services. However, clients receiving direct health care services who meet the criteria in this subsection must also meet the financial requirements based on a sliding scale charge schedule of the providers.

D. Goals. The Title V national performance measures, National Institutes of Health and American Society of Hematology standards are used to establish the following program goals:

1. Individuals and families with sickle cell disease will partner in decision making at all levels and will be satisfied with the services they receive.

2. All individuals with sickle cell disease will receive coordinated, ongoing, comprehensive care within a medical home.

3. All individuals with sickle cell disease will have adequate private or public insurance or both to pay for the services they need.

4. Community-based services will be organized so individuals and families can use them easily.

5. All young adults with sickle cell disease will receive the services necessary to make transitions to all aspects of adult life, including adult health care, work and independence.

6. All adults with sickle cell disease will receive proper health maintenance care, management of complications, and chronic pain management.

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.

__________________________________

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.

Title of Regulation: 12VAC30-20. Administration of Medical Assistance Services (amending 12VAC30-20-540, 12VAC30-20-550, 12VAC30-20-560).

Statutory Authority: § 32.1-325 of the Code of Virginia; 42 USC § 1396 et seq.

Expiration Date Extended Through: November 12, 2021.

The Governor has approved the request of the Department of Medical Assistance Services to extend the expiration date of the emergency regulation for 12VAC30-20 for six months as provided for in § 2.2-4011 D of the Code of Virginia. Therefore, the emergency regulation is continued in effect through November 12, 2021. This extension is required to continue to address administrative settlement agreements in a timely fashion. The regulation describes the process for settlement agreement discussions between a Medicaid provider and the Department of Medical Assistance Services and how it affects the time periods currently set forth in the existing informal and formal appeal regulations. The emergency regulation was published in 36:4 VA.R. 315-318 October 14, 2019.

Agency Contact: Emily McClellan, Regulatory Supervisor, Policy Division, Department of Medical Assistance Services, 600 East Broad Street, Suite 1300, Richmond, VA 23219, telephone (804) 371-4300, FAX (804) 786-1680, or email emily.mcclellan@dmas.virginia.gov.

Title of Regulation: 12VAC30-30. Groups Covered and Agencies Responsible for Eligibility Determination (amending 12VAC30-30-70).

Statutory Authority: § 32.1-325 of the Code of Virginia; 42 USC § 1396 et seq.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: August 18, 2021.

Effective Date: September 2, 2021.

Agency Contact: Emily McClellan, Regulatory Supervisor, Policy Division, Department of Medical Assistance Services, 600 East Broad Street, Suite 1300, Richmond, VA 23219, telephone (804) 371-4300, FAX (804) 786-1680, or email emily.mcclellan@dmas.virginia.gov.

Basis: Section 32.1 325 of the Code of Virginia grants to the Board of Medical Assistance Services the authority to administer and amend the Plan for Medical Assistance and to promulgate regulations. Section 32.1-324 of the Code of Virginia authorizes the Director of the Department of Medical Assistance Services (DMAS) to administer and amend the Plan for Medical Assistance and to promulgate regulations according to the board's requirements.

Item 303 SS 4a of Chapter 2 of the 2018 Acts of Assembly and Chapter 854 of the 2019 Acts of Assembly and Item 313 QQ 3a(1) of Chapter 1289 of the 2020 Acts of Assembly direct DMAS to amend the State Plan for Medical Assistance to implement coverage for newly eligible individuals.

Purpose: This regulation is essential to protect the health, safety, and welfare of citizens in that it implements the General Assembly mandate to expand Medicaid coverage to new populations.

Rationale for Using Fast-Track Rulemaking Process: This regulatory package is expected to be noncontroversial because it describes changes that were approved by the Centers for Medicare and Medicaid Services and that went into effect on January 1, 2019. As of October 18, 2019, over 331,000 individuals had enrolled in Medicaid expansion, and no formal or informal complaints or comments had been received about these changes from any Medicaid member, Medicaid provider, or member of the public.

Substance: Medicaid expansion amended mandatory eligibility categories to include adults aged 19 years or older and younger than 65 years of age, with household incomes below 138% of the federal poverty level. In accordance with federal requirements, individuals in this covered group must be considered for possible hospital presumptive eligibility. This action accomplishes that objective.

Issues: The primary advantage of this regulatory action is that additional individuals will have access to comprehensive health insurance, which should help improve health measures and outcomes across the Commonwealth. There are no disadvantages to the agency or the public.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Director of the Department of Medical Assistance Services (DMAS) proposes to clarify that existing Medicaid hospital presumptive eligibility rules also apply to adults 19 years of age or older, but younger than 65 years of age, who became eligible for coverage under the eligibility expansion that was authorized by the 2018 General Assembly.

Summary of the Proposed Amendments to Regulation. The Director of the Department of Medical Assistance Services (DMAS) proposes to clarify that existing Medicaid hospital presumptive eligibility rules also apply to adults 19 years of age or older, but younger than 65 years of age, who became eligible for coverage under the eligibility expansion that was authorized by the 2018 General Assembly.

Background. Starting on January 1, 2019, Virginia expanded Medicaid eligibility to adults 19 years of age or older, but younger than 65 years of age, with household incomes below 138 percent of the federal poverty level. Both the 2018 and 2019 Appropriation Acts (Item 303.SS 4a) authorized DMAS to effectuate changes needed to implement the expansion. Likewise, both Appropriation Acts (Item 303.SS 4f) allowed DMAS to promulgate emergency regulations to implement the expansion related changes which became effective on October 15, 2019.¹ As of October 18, 2019, over 331,000 individuals had enrolled in the expanded category.

Federal regulations in 42 CFR 435.1101 and 1102 outline the details regarding the implementation of hospital presumptive eligibility rules by the states, and note that Medicaid recipients are presumed eligible for hospital services subject to certain conditions. However, this regulation which was adopted to comply with the federal hospital presumptive eligibility rules currently do not include the expanded eligibility category as one of the groups that are subject to hospital presumptive eligibility. The changes proposed by DMAS would permanently add the eligibility category of adults 19 years of age or older, but younger than 65 years of age, with household incomes below 138% of the federal poverty level to the groups that are subject to hospital presumptive eligibility rules.

Under the presumptive eligibility rules previously adopted by Virginia Medicaid, eligibility determinations are made by trained hospital staff based on an assessment of the individual's status as a member of a group (i.e. pregnant women, infants and children under age 19, parents and other caretaker relatives, individuals eligible for family planning services, former foster care children, individuals needing treatment for breast and cervical cancer), their income, state residency, and citizenship status.

The hospital then assists the individual in completing and submitting a full Medicaid application for future Medicaid coverage. If the individual is found presumptively eligible, he or she is temporarily enrolled in Medicaid and health care providers receive payment for services provided during this interim period. A full application for Medicaid coverage may follow, with the determination of eligibility completed by a local department of social services, or DMAS. The presumptive eligibility begins on the date the determination is made and ends on the earlier of the day on which a decision is made on a full Medicaid application, or the last day of the month following the month that the hospital's presumptive eligibility determination was made and no full Medicaid application was filed. Payment for services covered is guaranteed during the presumptive eligibility period. There is no recoupment for Medicaid services provided during that period resulting from erroneous determinations made by qualified entities.

Estimated Benefits and Costs. The primary advantages that would result from this regulatory action are that it would: enable DMAS to comply with federal requirements; assure individuals in the expanded category timely access to care; promote Medicaid enrollment among individuals who are eligible for Medicaid but not enrolled; and permit hospitals to receive Medicaid reimbursement for covered services rendered. However, it should be noted that these effects are the result of the enabling legislation and cannot be directly attributed to the proposed regulatory language by themselves.

Also, the proposed changes have already been implemented effective October 15, 2019 under emergency regulations pursuant to 2018 and 2019 General Assembly mandates. Thus, the proposed changes are not expected to create any new economic impact following promulgation of these permanent rules, other than clarifying the regulatory text regarding the applicability of existing hospital presumptive eligibility rules to the expansion population.

Businesses and Other Entities Affected. There are 169 hospitals in Virginia enrolled in Medicaid and 63 of them are conducting presumptive eligibility determinations. In 2020, there were 2,338 individuals who enrolled through hospital presumptive eligibility rules in the expanded category. As noted above, the proposed amendments mandated by the legislation are beneficial for both hospitals and recipients as they allow recipients to receive Medicaid services and providers to receive reimbursement for covered services rendered, but these amendments are not directly responsible for such impacts. Also, the proposed changes are not expected to create any economic effect upon promulgation of these permanent rules other than providing clarification for the regulatory text. Thus, no adverse economic impact² on any entity is indicated.

Small Businesses³ Affected:

According to DMAS, none of the 169 hospitals that are subject to the hospital presumptive eligibility rules are small businesses. Thus, the proposed amendments do not affect small businesses.

Localities⁴ Affected.⁵ The proposed amendments do not introduce costs for local governments.

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

Effects on the Use and Value of Private Property. The proposed amendments do not directly affect the use and value of private property nor real estate development costs.

__________________

¹https://townhall.virginia.gov/l/ViewStage.cfm?stageid=8501

²Adverse impact is indicated if there is any increase in net cost or reduction in net revenue for any entity, even if the benefits exceed the costs for all entities combined.

³Pursuant 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."

⁴"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

⁵§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency's Response to Economic Impact Analysis: The agency has reviewed the economic impact analysis prepared by the Department of Planning and Budget. The agency raises no issues with this analysis.

Summary:

The amendments add a new adult coverage group to hospital presumptive eligibility, incorporating changes made to the Virginia State Plan in order to implement Medicaid Expansion.

12VAC30-30-70. Hospital presumptive eligibility.

A. Qualified hospitals shall administer presumptive eligibility in accordance with the provisions of this section. A qualified hospital is a hospital that meets the requirements of 42 CFR 435.1110(b) and that:

1. Has entered into a valid provider agreement with DMAS the Department of Medical Assistance Services (DMAS), participates as a Virginia Medicaid provider, notifies DMAS of its election to make presumptive eligibility determinations, and agrees to make presumptive eligibility determinations consistent with DMAS policies and procedures; and

2. Has not been disqualified by DMAS for failure to make presumptive eligibility determinations in accordance with applicable state policies and procedures as defined in subsections C, D, and E of this section or for failure to meet any standards established by the Medicaid agency.

B. The eligibility groups or populations for which hospitals determine eligibility presumptively are: (i) pregnant women; (ii) infants and children younger than age 19 years; (iii) parents and other caretaker relatives; (iv) individuals eligible for family planning services; (v) former foster care children; and (vi) individuals needing treatment for breast and cervical cancer; and (vii) adults 19 years of age or older but younger than 65 years of age.

C. The presumptive eligibility determination shall be based on:

1. The individual's categorical or nonfinancial eligibility for the group, as listed in subsection B of this section, for which the individual's presumptive eligibility is being determined;

2. Household income shall not exceed the applicable income standard for the group, as the groups are listed in subsection B of this section, for which the individual's presumptive eligibility is being determined if an income standard is applicable for this group;

3. Virginia residency; and

4. Satisfactory immigration status in accordance with 42 CFR 435.1102(d)(1) and as required in subdivision 3 of 12VAC30-40-10 and 42 CFR 435.406.

D. Qualified hospitals shall ensure that at least 85% of individuals deemed by the hospital to be presumptively eligible will file a full Medicaid application before the end of the presumptive eligibility period.

E. Qualified hospitals shall ensure that at least 70% of individuals deemed by the hospital to be presumptively eligible are determined eligible for Medicaid based on the full application that is submitted before the end of the presumptive eligibility period.

F. The presumptive eligibility period is determined in accordance with 42 CFR 435.1101 and shall begin on the date the presumptive eligibility determination is made. The presumptive eligibility period shall end on the earlier of:

1. The date the eligibility determination for regular Medicaid is made if an application for Medicaid is filed by the last day of the month following the month in which the determination of presumptive eligibility is made; or

2. The last day of the month following the month in which the determination of presumptive eligibility is made if no application for Medicaid is filed by last day of the month following the month in which the determination of presumptive eligibility is made.

G. Periods of presumptive eligibility are limited to one presumptive eligibility period per pregnancy and one per calendar year for all other covered groups.

Titles of Regulations: 12VAC30-70. Methods and Standards for Establishing Payment Rates; In-Patient Hospital Care (adding 12VAC30-70-411, 12VAC30-70-429).

12VAC30-80. Methods and Standards for Establishing Payment Rate; Other Types of Care (amending 12VAC30-80-20).

12VAC30-160. Hospital Assessment (adding 12VAC30-160-10).

Statutory Authority: § 32.1-325 of the Code of Virginia; 42 USC § 1396 et seq.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: June 11, 2021.

Agency Contact: Emily McClellan, Regulatory Supervisor, Policy Division, Department of Medical Assistance Services, 600 East Broad Street, Suite 1300, Richmond, VA 23219, telephone (804) 371-4300, FAX (804) 786-1680, or email emily.mcclellan@dmas.virginia.gov.

Basis: Section 32.1 325 of the Code of Virginia grants to the Board of Medical Assistance Services the authority to administer and amend the State Plan for Medical Assistance and to promulgate regulations. Section 32.1-324 of the Code of Virginia grants the Director of the Department of Medical Assistance Services (DMAS) the authority of the board when it is not in session.

Items 3-5.15 and 3-5.16 of the 2018 and 2019 Appropriation Acts instruct DMAS to levy a provider coverage assessment and a provider payment rate assessment beginning on or after October 1, 2018. In addition, the 2018 and 2019 Acts of Assembly, Item 303 XX 6 c states that supplemental payments for certain teaching hospitals shall sunset after the effective date of a statewide supplemental payment for private acute care hospitals authorized in Item 3-5.16.

Purpose: Each of the three items included in this regulatory package is required to fund new Medicaid coverage for adults as well as new Medicaid hospital supplemental payments. The provider coverage assessment will fund the nonfederal share of Medicaid coverage for newly-eligible adults while the provider payment rate assessment will fund the nonfederal share of an increase in inpatient and outpatient supplemental payments to qualifying private acute care hospitals. The private acute care hospitals required to pay the assessment will benefit from the new coverage as well as new supplemental hospital payments. These regulations establish these new supplemental payments and sunset ones that were previously authorized.

The new Medicaid coverage for adults is essential to protect, the health, safety, and welfare of citizens; to date, health care coverage has been expanded to more than 300,000 Virginians who did not have medical insurance (i.e., did not qualify for health insurance subsidies under the Affordable Care Act). The assessments also fund the nonfederal share of expansion instead of appropriating general funds. In addition, Medicaid expansion allows Virginia to draw down federal dollars for the expansion population, which avoids increased costs to the state.

Substance: This regulatory action (i) authorizes DMAS to levy a provider coverage assessment and a payment rate assessment upon private acute care hospitals operating in Virginia; (ii) establishes new supplemental inpatient and outpatient payments for qualifying private acute care hospitals in Virginia; and (iii) sunsets existing supplemental payments made to certain teaching hospitals to avoid overlapping supplemental payments.

(i) Provider Coverage Assessment and Payment Rate Assessment: The provider coverage assessment generates funds that will be used to cover the nonfederal share of the full cost of Medicaid coverage for newly eligible individuals, including the administrative costs of collecting the assessment and implementing and operating the coverage for newly eligible adults.

The provider payment rate assessment generates funds that will be used to fund (a) an increase in inpatient and outpatient rates paid to private acute care hospitals in Virginia up to the private hospital upper payment limit and managed care organization hospital payment gap and (b) the administrative costs of collecting the assessment and of implementing and operating the associated rate actions. Separate funds have been established; one for the coverage assessment, and one for the payment rate assessment.

(ii) New Supplemental Inpatient and Outpatient Payments for Qualifying Private Acute Care Hospitals in Virginia: The 2018 Appropriation Act directs DMAS to provide supplemental inpatient and outpatient hospital payments to qualifying hospitals up to the private hospital upper payment limit for payment to private hospitals. Qualifying hospitals are all private acute care hospitals excluding public hospitals, freestanding psychiatric and rehabilitation hospitals, children's hospitals, long stay hospitals, long-term acute care hospitals, and critical access hospitals. The total supplemental payment shall be based on the difference between the private hospital inpatient or outpatient upper payment limit (in 42 CFR 447.272, and 42 CFR 447.321, respectively) as approved by the Centers for Medicare and Medicaid Services and all other Medicaid payments subject to such limit. DMAS has amended the State Plan to make supplemental payments to all qualifying hospitals and has amended its contracts with managed care organizations to include a directed payment for qualifying hospitals consistent with the State Plan Amendment.

(iii) Sunsetting Other Supplemental Payments for Private Acute Care Hospitals: In order to avoid overlapping supplemental payments, supplemental payments made to a limited group of private hospitals are being terminated on the date the new payments are effective. Supplemental Inpatient Payments for Certain Teaching Hospitals (Sentara Norfolk General and Carilion Medical Center) will sunset in this regulatory action.

Issues: Each of the three items included in this regulatory package is required to fund new Medicaid coverage for adults as well as new Medicaid hospital supplemental payments. The primary advantage to the public and the Commonwealth of the new Medicaid coverage for adults is that, to date, it has provided health care coverage to over 300,000 Virginians who did not have medical insurance (i.e., did not qualify for health insurance subsidies under the Affordable Care Act), which is a primary advantage to the public.

The assessments fund the nonfederal share of expansion instead of appropriating general funds. In addition, Medicaid expansion allows Virginia to draw down federal dollars for the expansion population, which generates savings for the state, providing an advantage to the Commonwealth.

Hospitals will be affected by these assessments, but they agreed in advance to these regulatory changes so that Medicaid expansion could be accomplished.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Pursuant to multiple General Assembly mandates, this permanent regulatory action would: (1) authorize the Department of Medical Assistance Services (DMAS) to levy a provider coverage assessment and a payment rate assessment upon private acute care hospitals operating in Virginia, (2) establish new supplemental inpatient and outpatient payments for qualifying private acute care hospitals, and (3) sunset existing supplemental payments made to certain teaching hospitals to avoid overlapping payments.

The proposed permanent changes have already been in effect since October 2018 under emergency regulations.¹ This action would make the emergency regulations permanent.

Background. The three components of this regulatory package listed above were authorized by three budget items in the 2018 Appropriation Act. Items 3-5.15 and 3-5.16 authorized DMAS to expand Medicaid services in Virginia through the use of two types of assessments: a provider coverage assessment (coverage assessment) and a provider payment rate assessment (rate assessment). These assessments are required to fund new Medicaid coverage for adults, and were to be implemented on or after October 1, 2018, upon private acute care hospitals² operating in Virginia. In addition, Item 303.XX 6 c states that supplemental payments for certain teaching hospitals shall sunset after the effective date of the statewide supplemental payment for private acute care hospitals authorized in Item 3-5.16.³

These budget items collectively made it possible to expand Medicaid coverage to include an estimated 400,000 adult Virginians. In November 2019, more than 327,000 adults who did not have other forms of medical insurance were covered by Medicaid expansion.

The parameters determining the amounts of the assessments and supplemental payments were set out in the budget items in detail. The proposed regulation closely mirrors those parameters without materially changing those amounts. Instead, the regulation mainly adds definitions for the terminology used in the budget.

Estimated Benefits and Costs. The three components of this regulatory package are required to fund the full cost of expanded Medicaid coverage for adults as well as the new Medicaid hospital supplemental payments required by the legislative mandates. As discussed below, the coverage assessment funds the non-federal share of Medicaid coverage for newly-eligible adults, while the rate assessment funds the non-federal share of an increase in inpatient and outpatient supplemental payments to qualifying private acute care hospitals. The new supplemental payments enhance payments to private hospitals and provide incentives to serve the newly-eligible adults, while the sunset of certain supplemental payments is done to avoid overlapping payments. The analysis herein of these three components is based on several different data sources that may not be directly comparable, but represents the Department of Planning and Budget's best estimate of the benefits and costs.

Coverage Assessment and Rate Assessment. The two assessments fund the non-federal share of expansion and the new supplemental payments instead of appropriating general funds. Accordingly, no general funds are associated with these assessments. Separate funds have been established; one for the coverage assessment, and one for the rate assessment. More specifically, the coverage assessment generates funds to cover the non-federal share of the full cost of Medicaid coverage for newly eligible individuals, including the administrative costs of collecting the assessment and implementing and operating Medicaid expansion. In addition, the rate assessment generates funds to cover: (a) the increase in inpatient and outpatient rates paid to private acute care hospitals in Virginia up to the private hospital upper payment limit and managed care organization hospital payment gap, and (b) the administrative costs of collecting the assessment and of implementing and operating the associated rate actions.

The detailed mechanics of both assessments are set out in the budget items. Both are levied prospectively, and their magnitudes are determined by the following factors. For the coverage assessment, DMAS calculates each hospitals coverage assessment amount by multiplying the coverage assessment percentage by the net patient service revenue. The coverage assessment percentage is calculated as (i) 1.08 times the non-federal share of the full cost of expanded Medicaid coverage divided by (ii) the total net patient service revenue for hospitals subject to the assessment. Similarly, for the rate assessment each hospitals payment rate assessment amount is determined by multiplying the payment rate assessment percentage by the net patient service revenue. The payment rate assessment percentage for hospitals is calculated as (i) 1.08 times the non-federal share of funding the private acute care hospitals enhanced payments divided by (ii) the total net patient service revenue for hospitals subject to the assessment.

New Supplemental Inpatient and Outpatient Payments for Qualifying Private Acute Care Hospitals in Virginia. The 2018 Appropriation Act directs DMAS to provide supplemental inpatient and outpatient hospital payments to qualifying acute care hospitals up to the private hospital upper payment limit. The total supplemental payment is based on the difference between (a) the private hospital inpatient or outpatient upper payment limit (in 42 CFR 447.272, and 42 CFR 447.321, respectively) as approved by the Centers for Medicare and Medicaid Services and (b) all other Medicaid payments subject to such limit. DMAS has amended the State Plan for Medical Assistance to make supplemental payments to all qualifying hospitals.

Sunsetting Other Supplemental Payments for Private Acute Care Hospitals. In order to avoid overlapping supplemental payments, supplemental payments made to a limited group of private acute care hospitals were terminated on the date the new payments were effective. The supplemental payments that are sunset in this regulatory package were authorized by the 2017 Acts of Assembly, Chapter 836, Item 306.RRR.1. The hospitals affected are Sentara Norfolk General and Carilion Medical Center in Roanoke.

Fiscal Impact. In Fiscal Year (FY) 2019, $87.3 million and $143.7 million were collected from hospitals for coverage and rate assessments, respectively. Based on the most recent official forecast, and assuming $17.4 million in non-medical costs, the coverage assessments for FY 2020 through FY 2022 are estimated to be $278.3 million, $389.8 million, and $422.1 million, respectively.⁴ The rate assessment projections for the same time period are $444.7 million, $477.1 million, and $501 million.

While this regulatory action establishes the sole regulatory authority for the two assessments, it applies only to the fee-for-service portion of supplemental payments made to private acute care hospitals. The managed care portion of supplemental payment changes is addressed independently from this action, through amendments to contracts with managed care organizations that include a directed payment for qualifying hospitals. However, since the coverage and rate assessments are based on the total cost of expansion, including the services provided through both the fee-for-service and managed care delivery systems, an accurate assessment of the net impact on affected hospitals requires consideration of both the fee-for-service and managed care portions of the supplemental payments.

Including the managed care portion, the total supplemental payments made to these same hospitals were $292.6 million in FY 2019. This payment exceeds $231 million paid by private hospitals as a result of the coverage and rate assessments in FY 2019. Similarly, in FY 2020, affected hospitals are projected to pay an estimated $723 million for the coverage and rate assessments, but are projected to receive approximately $993.2 million in supplemental payments.⁵ Thus, it appears that the affected private acute care hospitals are better off with the proposed rules.

The sunset of supplemental payments for the two teaching hospitals would reduce the supplemental payments available specifically to those two hospitals by $101.8 million in FY 2019 and $135.7 million in FY 2020, in order to avoid overlapping with the payments newly available to them. However, according to DMAS, these two teaching hospitals saw the first and the second highest net gain in FY 2019 (i.e. payments received minus assessments paid were $36.6 and $22.9 million for the first and second places, respectively) of all hospitals statewide. Thus, these two hospitals also appear to be better off under the proposed rules despite the sunset of a portion of payments available to them.

Additionally, an intergovernmental transfer from Eastern Virginia Medical School and Virginia Tech was previously required to provide the non-state match for these teaching hospitals. Under the new rules, both hospitals can use the rate assessment funds to draw down the federal match, thereby eliminating the need for the intergovernmental transfer and the resulting dependency on another governmental entity.

Other Effects of Expansion. Generally available research finds that Medicaid expansion in other states is linked to: gains in coverage; improvements in access, financial security, and some measures of health status/outcomes; and economic benefits for states and providers.⁶

In Virginia, according to DMAS, more than 327,000 members are enrolled in expansion as of November 1, 2019, and more than 375,000 members have been enrolled at some point since the beginning of Medicaid expansion. In the year prior to enrolling in Medicaid, two-thirds of new members went without needed medical care such as primary care, prescriptions, mental health care, substance abuse disorder treatment, and dental care; one in four of new members used the emergency room as their primary source of care. After Medicaid expansion, 80 percent of these new members received at least one type of medical care; and the expansion population has been diagnosed with more chronic conditions than the non-expansion population.

The economic benefits of Medicaid expansion in other states include reductions in uncompensated care costs for hospitals and clinics, and also gains in employment as well as growth in the labor market (with a minority of studies showing neutral effects in this area).⁷ Also, an increase in labor force productivity could be expected from a healthier population.

One of the most significant statewide economic impacts is due to the net inflow of federal funds into the Commonwealth. Medicaid expansion allows Virginia to draw down federal dollars for the newly covered population and the higher supplemental payments, which avoids an increase in costs to the state. For example, the federal government covered 93 percent of the cost of the expansion in calendar year 2019 and will cover 90 percent thereafter. These new federal funds represent a net injection into the state's economy.⁸ In other words, after 2019, Virginia entities would pay for only 10 percent of the full cost of expansion while bringing the remaining 90 percent of federal funds into the Commonwealth, thereby creating new demand for medical services, goods, and labor.

An injection of new demand into the economy creates further expansionary effects beyond the initial increase in spending through what is known as the multiplier effect. The multiplier effect refers to the increase in final income arising from any new injection of spending. Further economic expansion occurs because the initial new spending creates extra income, which further boosts spending, which in turn creates more income, and so on. In the end, a dollar of extra spending leads to an increase of more than a dollar of final income. For example, actual expansion expenditures were $866.7 million in FY 2019.⁹ Projected expansion expenditures for the current and the next two years are $3.1 billion, $3.7 billion, and $4.1 billion.¹⁰ Approximately 90 percent of these amounts represents new spending which is expected to trigger further expansionary effects through the multiplier mechanism.

Businesses and Other Entities Affected. There are 69 private acute care hospitals subject to the provider and rate assessments and that are affected by the supplemental payment changes. These hospitals would also experience an increase in demand for their services and goods as well as their administrative costs due to serving a larger population. Similarly, DMAS would see an increase in its administrative costs driven by a larger population.

There are 400,000 Virginians estimated to be eligible under Medicaid expansion. Of these, more than 327,000 members were enrolled in expansion as of November 1, 2019 and more than 375,000 members have enrolled at some point since the beginning of Medicaid expansion.

Localities¹¹ Affected.¹² Although the expansion is statewide and encompasses all localities, it likely disproportionately affects those localities who have higher percentages of adults lacking health insurance. Medicaid expansion does not impose costs on localities.

Projected Impact on Employment. Medicaid expansion likely increases the size and the productivity of the labor force due to gains in Virginia's health outcomes. The net inflow of funds into the Commonwealth would likely cause an increase in demand for labor due to additional demand for services and goods to cover the expansion population.

Effects on the Use and Value of Private Property. The state's financial responsibility for the expansion population is funded by the private acute care hospitals via the provider assessment. These acute care hospitals also fund the state's share of the funds needed to receive the maximum amount of supplemental payments. The negative effects of the two assessments are offset by the increased demand for their services, their reduced uncompensated care costs, and the increase in supplemental payments they receive.

Adverse Effect on Small Businesses:¹³ The proposed regulation does not appear to adversely affect small businesses.

______________________________

¹https://townhall.virginia.gov/l/ViewStage.cfm?stageid=8352

²Public hospitals, freestanding psychiatric and rehabilitation hospitals, children's hospitals, long-term care hospitals and critical access hospitals are excluded from the definition of private acute care hospitals.

³The 2019 Appropriation Act, Items 3-5.15, 3-5.16, and Item 303.XX 6 c carried forward substantially the same instructions.

⁴Source: Official Consensus Medicaid Forecast, available at: https://rga.lis.virginia.gov/Published/2019/RD504/PDF.

⁵The payments in the first four months of FY 2019 are annualized to calculate the $993.2 million (i.e. $331.1 million times three.)

⁶https://www.kff.org/medicaid/issue-brief/the-effects-of-medicaid-expansion-under-the-aca-updated-findings-from-a-literature-review-august-2019/

⁷Ibid.

⁸The federal government may use a variety of strategies to fund the federal portion of the funding some of which may have a contractionary impact at the national level. However, potential nationwide economic effects are not considered in this analysis as the focus is on Virginia's economic activity.

⁹https://www.dmas.virginia.gov/files/links/4167/DMAS SFY19 FM 12 June Medical Accuracy Report.pdf

¹⁰Source: Official Consensus Medicaid Forecast.

¹¹Locality 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.

¹²§ 2.2-4007.04 defines particularly affected as bearing disproportionate material impact.

¹³Pursuant 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.

Agency's Response to Economic Impact Analysis: The agency has reviewed the economic impact analysis prepared by the Department of Planning and Budget and raises no issues with this analysis.

Summary:

The amendments (i) authorize the Department of Medical Assistance Services to levy assessments upon private acute care hospitals operating in Virginia to fund new Medicaid coverage for adults as well as new Medicaid hospital supplemental payments, (ii) establish new supplemental inpatient and outpatient payments for qualifying private acute care hospitals in Virginia, and (iii) sunset supplemental payments made to certain private teaching hospitals to avoid overlapping supplemental payments. The amendments are required by §§ 3-5.15 and 3-5.16 and Item 303 XX 6 c of the 2018 Appropriation Act (Chapter 2 of the 2018 Acts of Assembly, Special Session I).

12VAC30-70-411. Supplemental payments for certain teaching hospitals.

A. Effective for dates of service on or after July 1, 2017, quarterly supplemental payments will be issued to qualifying private hospitals for inpatient services rendered during the quarter. These quarterly supplemental payments will cease for dates of service on or after October 1, 2018.

B. Qualifying criteria. Qualifying hospitals are the primary teaching hospitals affiliated with a Liaison Committee on Medical Education (LCME) accredited medical school located in Planning District 23 that is a political subdivision of the Commonwealth and an LCME accredited medical school located in Planning District 5 that has a partnership with a public university.

C. Reimbursement methodology. Each qualifying hospital shall receive quarterly supplemental payments for the inpatient services rendered during the quarter equal to the difference between the hospital's Medicaid payments and the hospital's disproportionate share limit (Omnibus Budget Reconciliation Act 93 disproportionate share hospital limit) for the most recent year for which the disproportionate share limit has been calculated divided by four. The supplemental payment amount will be determined prior to the beginning of the fiscal year.

D. Limit. Maximum aggregate payments to all qualifying hospitals shall not exceed the available upper payment limit per state fiscal year (SFY). In SFY 2019, the upper payment limit shall be prorated for the time period these supplemental payments are in effect.

12VAC30-70-429. Supplemental payments for private acute care hospitals.

A. Starting October 1, 2018, supplemental payments will be issued to qualifying hospitals for inpatient services provided to Medicaid patients.

B. Definitions. The following words and terms when used in this section shall have the following meanings unless otherwise stated:

"Acute care hospital" means any hospital that provides emergency medical services on a 24-hour basis.

"Children's hospital" means a hospital (i) whose inpatients are predominantly younger than 18 years of age and (ii) that is excluded from the Medicare prospective payment system pursuant to the Social Security Act.

"Critical access hospital" means a facility that meets the requirements of the State Medicare Rural Hospital Flexibility Program, 42 USC § 1395i-4, for such designation.

"Freestanding psychiatric and rehabilitation hospital" means a freestanding psychiatric hospital, which means a hospital that provides services consistent with 42 CFR 482.60, or a freestanding rehabilitation hospital, which means a hospital that provides services consistent with 42 CFR 482.56.

"Hospital" means a medical care facility licensed as an inpatient hospital or outpatient surgical center by the Department of Health or as a psychiatric hospital by the Department of Behavioral Health and Developmental Services.

"Long-stay hospital" means specialty facilities that serve individuals receiving medical assistance who require a higher intensity of nursing care than that which is normally provided in a nursing facility and who do not require the degree of care and treatment that an acute care hospital is designed to provide.

"Long-term acute care hospital" or "LTACH" means an inpatient hospital that provides care for patients who require a length of stay greater than 25 days and is, or proposes to be, certified by CMS as a long-term care inpatient hospital pursuant to 42 CFR Part 412. A LTACH may be either a freestanding facility or located within an existing or host hospital.

"Public hospital" means a hospital that is solely owned by a government or governmental entity.

"Supplemental payment" or "private acute care enhanced payment" means an increased payment to a qualifying hospital up to the upper payment limit gap from the Health Care Provider Rate Assessment Fund as authorized in the 2018 and 2019 Appropriation Acts.

"Upper payment limit" means the limit on payment for inpatient services for recipients of medical assistance established in accordance with 42 CFR 447.272, and on payment for outpatient services for recipients of medical assistance pursuant to 42 CFR 447.321 for private hospitals. The limit applies only to fee-for-service claims.

"Upper payment limit gap" or "UPL gap" means the difference between the amount of the private acute care hospital upper payment limits estimated for the State Plan rate year using the latest available cost report data, and the amount estimated that would otherwise be paid for the same State Plan rate year pursuant to the State Plan reimbursement methodology for inpatient and outpatient services. The upper payment limit gap shall be updated annually for each rate year.

C. Qualifying criteria. Qualifying hospitals are all in-state private acute care hospitals, excluding public hospitals, freestanding psychiatric and rehabilitation hospitals, children's hospitals, long-stay hospitals, long-term acute care hospitals, and critical access hospitals.

D. Reimbursement methodology. The supplemental payment shall equal inpatient hospital claim payments times the UPL gap percentage.

1. The UPL gap percentage is the percentage calculated when the numerator is the upper payment limit gap for inpatient services for private hospitals and the denominator is Medicaid claim payments to all qualifying hospitals for inpatient hospital services provided to Medicaid patients in the same year used in the numerator.

2. The UPL gap percentage will be calculated annually.

E. Quarterly payments. After the close of each quarter, beginning with the quarter ending December 31, 2018, each qualifying hospital shall receive supplemental payments for the inpatient services paid during that quarter. The supplemental payments for each qualifying hospital for each quarter shall be calculated based on the Medicaid inpatient hospital payments paid in that quarter multiplied by the UPL gap percentage.

12VAC30-80-20. Services that are reimbursed on a cost basis.

A. Payments for services listed in this section shall be on the basis of reasonable cost following the standards and principles applicable to the Title XVIII Program with the exception provided for in subdivision D 1 e of this section. The upper limit for reimbursement shall be no higher than payments for Medicare patients in accordance with 42 CFR 447.321. In no instance, however, shall charges for beneficiaries of the program be in excess of charges for private patients receiving services from the provider. The professional component for emergency room physicians shall continue to be uncovered as a component of the payment to the facility.

B. Reasonable costs will be determined from the filing of a uniform Centers for Medicare and Medicaid Services-approved cost report by participating providers. The cost reports are due not later than 150 days after the provider's fiscal year end. If a complete cost report is not received within 150 days after the end of the provider's fiscal year, DMAS or its designee shall take action in accordance with its policies to assure that an overpayment is not being made. All cost reports shall be reviewed and reconciled to final costs within 180 days of the receipt of a completed cost report. The cost report will be judged complete when DMAS has all of the following:

1. Completed cost reporting form provided by DMAS, with signed certification;

2. The provider's trial balance showing adjusted journal entries;

3. The provider's financial statements including a balance sheet, a statement of income and expenses, a statement of retained earnings (or fund balance), and a statement of changes in financial position;

4. Schedules that reconcile financial statements and trial balance to expenses claimed in the cost report;

5. Depreciation schedule or summary;

6. Home office cost report, if applicable; and

7. Such other analytical information or supporting documents requested by DMAS when the cost reporting forms are sent to the provider.

C. Item 398 D of the 1987 Appropriation Act (as amended), effective April 8, 1987, eliminated reimbursement of return on equity capital to proprietary providers.

D. The services that are cost reimbursed are:

1. For dates of service prior to January 1, 2014, outpatient hospital services, including rehabilitation hospital outpatient services and excluding laboratory services.

a. Definitions. The following words and terms when used in this section shall have the following meanings when applied to emergency services unless the context clearly indicates otherwise:

"All-inclusive" means all emergency department and ancillary service charges claimed in association with the emergency room visit, with the exception of laboratory services.

"DMAS" means the Department of Medical Assistance Services consistent with Chapter 10 (§ 32.1-323 et seq.) of Title 32.1 of the Code of Virginia.

"Emergency hospital services" means services that are necessary to prevent the death or serious impairment of the health of the recipient. The threat to the life or health of the recipient necessitates the use of the most accessible hospital available that is equipped to furnish the services.

"Recent injury" means an injury that has occurred less than 72 hours prior to the emergency department visit.

b. Scope. DMAS shall differentiate, as determined by the attending physician's diagnosis, the kinds of care routinely rendered in emergency departments and reimburse for nonemergency care rendered in emergency departments at a reduced rate.

(1) With the exception of laboratory services, DMAS shall reimburse at a reduced and all-inclusive reimbursement rate for all services rendered in emergency departments that DMAS determines were nonemergency care.

(2) Services determined by the attending physician to be emergencies shall be reimbursed under the existing methodologies and at the existing rates.

(3) Services performed by the attending physician that may be emergencies shall be manually reviewed. If such services meet certain criteria, they shall be paid under the methodology for subdivision 1 b (2) of this subsection. Services not meeting certain criteria shall be paid under the methodology of subdivision 1 b (1) of this subsection. Such criteria shall include:

(a) The initial treatment following a recent obvious injury.

(b) Treatment related to an injury sustained more than 72 hours prior to the visit with the deterioration of the symptoms to the point of requiring medical treatment for stabilization.

(c) The initial treatment for medical emergencies including indications of severe chest pain, dyspnea, gastrointestinal hemorrhage, spontaneous abortion, loss of consciousness, status epilepticus, or other conditions considered life threatening.

(d) A visit in which the recipient's condition requires immediate hospital admission or the transfer to another facility for further treatment or a visit in which the recipient dies.

(e) Services provided for acute vital sign changes as specified in the provider manual.

(f) Services provided for severe pain when combined with one or more of the other guidelines.

(4) Payment shall be determined based on ICD diagnosis codes and necessary supporting documentation. As used here, the term "ICD" is defined in 12VAC30-95-5.

(5) DMAS shall review on an ongoing basis the effectiveness of this program in achieving its objectives and for its effect on recipients, physicians, and hospitals. Program components may be revised subject to achieving program intent, the accuracy and effectiveness of the ICD code designations, and the impact on recipients and providers. As used here, the term "ICD" is defined in 12VAC30-95-5.

c. Limitation of allowable cost. Effective for services on and after July 1, 2003, reimbursement of Type Two hospitals for outpatient services shall be at various percentages as noted in subdivisions 1 c (1) and 1 c (2) of this subsection of allowable cost, with cost to be determined as provided in subsections A, B, and C of this section. For hospitals with fiscal years that do not begin on July 1, outpatient costs, both operating and capital, for the fiscal year in progress on that date shall be apportioned between the time period before and the time period after that date, based on the number of calendar months in the cost reporting period, falling before and after that date.

(1) Type One hospitals.

(a) Effective July 1, 2003, through June 30, 2010, hospital outpatient operating reimbursement shall be at 94.2% of allowable cost and capital reimbursement shall be at 90% of allowable cost.

(b) Effective July 1, 2010, through September 30, 2010, hospital outpatient operating reimbursement shall be at 91.2% of allowable cost and capital reimbursement shall be at 87% of allowable cost.

(c) Effective October 1, 2010, through June 30, 2011, hospital outpatient operating reimbursement shall be at 94.2% of allowable cost and capital reimbursement shall be at 90% of allowable cost.

(d) Effective July 1, 2011, hospital outpatient operating reimbursement shall be at 90.2% of allowable cost and capital reimbursement shall be at 86% of allowable cost.

(2) Type Two hospitals.

(a) Effective July 1, 2003, through June 30, 2010, hospital outpatient operating and capital reimbursement shall be 80% of allowable cost.

(b) Effective July 1, 2010, through September 30, 2010, hospital outpatient operating and capital reimbursement shall be 77% of allowable cost.

(c) Effective October 1, 2010, through June 30, 2011, hospital outpatient operating and capital reimbursement shall be 80% of allowable cost.

(d) Effective July 1, 2011, hospital outpatient operating and capital reimbursement shall be 76% of allowable cost.

d. The last cost report with a fiscal year end on or after December 31, 2013, shall be used for reimbursement for dates of service through December 31, 2013, based on this section. Reimbursement shall be based on charges reported for dates of service prior to January 1, 2014. Settlement will be based on four months of runout from the end of the provider's fiscal year. Claims for services paid after the cost report runout period will not be settled.

e. Payment for direct medical education costs of nursing schools, paramedical programs, and graduate medical education for interns and residents.

(1) Direct medical education costs of nursing schools and paramedical programs shall continue to be paid on an allowable cost basis.

(2) Effective with cost reporting periods beginning on or after July 1, 2002, direct graduate medical education (GME) costs for interns and residents shall be reimbursed on a per-resident prospective basis. See 12VAC30-70-281 for prospective payment methodology for graduate medical education for interns and residents.

2. Rehabilitation agencies or comprehensive outpatient rehabilitation.

a. Effective July 1, 2009, rehabilitation agencies or comprehensive outpatient rehabilitation facilities that are operated by community services boards or state agencies shall be reimbursed their costs. For reimbursement methodology applicable to all other rehabilitation agencies, see 12VAC30-80-200.

b. Effective October 1, 2009, rehabilitation agencies or comprehensive outpatient rehabilitation facilities operated by state agencies shall be reimbursed their costs. For reimbursement methodology applicable to all other rehabilitation agencies, see 12VAC30-80-200.

3. Supplement payments to Type One hospitals for outpatient services.

a. In addition to payments for services set forth elsewhere in the State Plan, DMAS makes supplemental payments to qualifying state government owned or operated hospitals for outpatient services furnished to Medicare members on or after July 1, 2010. To qualify for a supplement payment, the hospital must be part of the state academic health system or part of an academic health system that operates under a state authority.

b. The amount of the supplemental payment made to each qualifying hospital shall be equal to the difference between the total allowable cost and the amount otherwise actually paid for the services by the Medicaid program based on cost settlement.

c. Payment for furnished services under this section shall be paid at settlement of the cost report.

4. Supplemental payments for private hospital partners of Type One hospitals. Effective for dates of service on or after October 25, 2011, quarterly supplemental payments shall be issued to qualifying private hospitals for outpatient services rendered during the quarter. These quarterly supplemental payments will cease for dates of service on or after the effective date of State Plan amendments authorizing increased payments to qualifying hospitals from the Health Care Provider Rate Assessment Fund established pursuant to § 32.1-331.02 of the Code of Virginia and approved by the Centers for Medicare and Medicaid Services.

a. In order to qualify for the supplemental payment, the hospital shall be enrolled currently as a Virginia Medicaid provider and shall be owned or operated by a private entity in which a Type One hospital has a nonmajority interest.

b. Reimbursement methodology.

(1) Hospitals not participating in the Medicaid disproportionate share hospital (DSH) program shall receive quarterly supplemental payments for the outpatient services rendered during the quarter. Each quarterly payment distribution shall occur not more than two years after the year in which the qualifying hospital's entitlement arises. The annual supplemental payments in a fiscal year shall be the lesser of:

(a) The difference between each qualifying hospital's outpatient Medicaid billed charges and Medicaid payments the hospital receives for services processed for fee-for-service Medicaid individuals during the fiscal year; or

(b) $1,894 per Medicaid outpatient visit for state plan rate year 2012. For future state plan rate years, this number shall be adjusted by inflation based on the Virginia moving average values as compiled and published by Global Insight (or its successor) under contract with the department.

(2) Hospitals participating in the DSH program shall receive quarterly supplemental payments for the outpatient services rendered during the quarter. Each quarterly payment distribution shall occur not more than two years after the year in which the qualifying hospital's entitlement arises. The annual supplemental payments in a fiscal year shall be the lesser of:

(a) The difference between each qualifying hospital's outpatient Medicaid billed charges and Medicaid payments the hospital receives for services processed for fee-for-service Medicaid individuals during the fiscal year;

(b) $1,894 per Medicaid outpatient visit for state plan rate year 2012. For future state plan rate years, this number shall be adjusted by inflation based on the Virginia moving average values as compiled and published by Global Insight (or its successor) under contract with the department; or

(c) The difference between the limit calculated under § 1923(g) of the Social Security Act and the hospital's DSH payments for the applicable payment period.

c. Limit. Maximum aggregate payments to all qualifying hospitals in this group shall not exceed the available upper payment limit per state fiscal year.

5. Supplemental outpatient payments for non-state-government-owned hospitals. Effective July 1, 2018, supplemental payments will be issued to qualifying non-state-government-owned hospitals for outpatient services provided to Medicaid patients.

a. Qualifying hospitals are all non-state-government-owned acute care hospitals.

b. The supplemental payment shall equal outpatient hospital claim payments times the upper payment limit (UPL) gap percentage.

(1) The annual UPL gap percentage is the percentage calculated where the numerator is the difference for each qualifying hospital between a reasonable estimate of the amount that would be paid under Medicare payment principles for outpatient hospital services provided to Medicaid patients, as calculated in accordance with 42 CFR 447.321, and what Medicaid paid for such services, and the denominator is Medicaid claim payments to all qualifying hospitals for outpatient hospital services provided to Medicaid patients in the same year used in the numerator.

(2) The annual UPL gap percentage will be calculated annually for each hospital using the most recent year for which comprehensive annual data are available and inflated to the state fiscal year for which payments are to be made.

6. Quarterly payments. After the close of each quarter, beginning with the July 1, 2018, to September 30, 2018, quarter, each qualifying hospital shall receive supplemental payments for the outpatient services paid during the prior quarter. The supplemental payments for each qualifying hospital for each quarter shall be calculated by multiplying the Medicaid outpatient hospital payments paid in that quarter by the annual UPL gap percentage for each hospital.

7. Supplemental outpatient payments for private acute care hospitals. Starting October 1, 2018, supplemental payments will be issued to qualifying private hospitals for outpatient services provided to Medicaid patients.

a. Definitions. See definitions in 12VAC30-70-429.

b. Qualifying criteria. Qualifying hospitals are all in-state private acute care hospitals, excluding public hospitals, freestanding psychiatric and rehabilitation hospitals, children's hospitals, long-stay hospitals, long-term acute care hospitals, and critical access hospitals. A qualifying hospital is the same as a "covered hospital" in § 32.1-331.02 of the Code of Virginia.

c. Reimbursement methodology. The supplemental payment shall equal outpatient hospital claim payments times the UPL gap percentage.

(1) The UPL gap percentage is the percentage calculated where the numerator is the UPL gap for outpatient services for private hospitals and the denominator is Medicaid claim payments to all qualifying hospitals for outpatient hospital services provided to Medicaid patients in the same year used in the numerator.

(2) The UPL gap percentage will be calculated annually.

d. Quarterly payments. After the close of each quarter, beginning with the quarter ending December 31, 2018, each qualifying hospital shall receive supplemental payments for the outpatient services paid during that quarter. The supplemental payments for each qualifying hospital for each quarter shall be calculated based on the Medicaid outpatient hospital payments paid in that quarter multiplied by the UPL gap percentage.

Chapter 160

Hospital Assessment

12VAC30-160-10. Hospital assessment.

A. Authority. The Department of Medical Assistance Services (DMAS) is authorized to levy a Health Care Coverage Assessment and a Health Care Provider Payment Rate Assessment upon private acute care hospitals operating in Virginia in accordance with §§ 32.1-331.01 and 32.1-331.02 of the Code of Virginia and §§ 3-5.15, 3-5.16, and 4-14 as revised by the 2019 Appropriation Act.

B. Definitions. The following words and terms when used in this section shall have the following meanings unless otherwise stated:

"Covered hospital" means any in-state private acute care hospital other than a hospital classified as a public hospital, freestanding psychiatric and rehabilitation hospital, children's hospital, long-stay hospital, long-term acute care hospital, or critical access hospital.

"Full cost of expanded Medicaid coverage" means (i) any and all Medicaid expenditures related to individuals eligible for Medicaid pursuant to 42 U.S.C. 1396d(y)(1) (2010) of the Patient Protection and Affordable Care Act, including any federal actions or repayments and (ii) all administrative costs associated with providing coverage, which includes the costs of administering the provisions of the 1115 waiver, and collecting the coverage assessment.

"Managed care organization," "MCO," or "Medicaid MCO" means an entity that meets the participation and solvency criteria defined in 42 CFR Part 438 and has an executed contractual agreement with DMAS to provide services covered under a mandatory managed care program.

"Managed care organization hospital payment gap" means the difference between the amount included in the capitation rates for inpatient and outpatient services for the contract year based on historical paid claims and the amount that would be included when the projected hospital services furnished by private acute care hospitals operating in Virginia are priced for the contract year equivalent to the fee-for-service upper payment limit subject to CMS approval under 42 CFR 438.6(c). The managed care organization hospital payment gap shall be updated annually for each contract year.

"Managed care organization supplemental hospital capitation payment adjustment" means the additional amount added to Medicaid MCO capitation rates to pay the Medicaid managed care organization hospital payment gap to qualifying private acute care hospitals for services to Medicaid recipients.

"Net patient service revenue" means the amount each hospital reported in the most recent Virginia Health Information Hospital Detail Report as of December 15 of each year excluding any nonhospital revenue that meets the requirements in subsection C of this section.

"Newly eligible individual" means an individual described in 42 USC § 1396a(a)(10)(A)(i)(VIII).

"Private acute care hospital" means acute care hospitals, excluding public hospitals, freestanding psychiatric and rehabilitation hospitals, children's hospitals, long-stay hospitals, long-term acute care hospitals, and critical access hospitals.

"Provider payment rate costs" means the upper payment limit gap and the managed care organization hospital payment gap.

"Upper payment limit" means the limit on payment for inpatient services for recipients of medical assistance established in accordance with 42 CFR 447.272 and on payment for outpatient services for recipients of medical assistance pursuant to 42 CFR 447.321 for private hospitals. This limit applies only to fee-for-service claims.

"Upper payment limit gap" means the difference between the amount of the private acute care hospital upper payment limits estimated for the State Plan rate year using the latest available cost report data and the amount estimated that would otherwise be paid for that same State Plan rate year pursuant to the State Plan for inpatient and outpatient services. The supplemental payment methodology from the Health Care Provider Payment Rate Fund to qualifying hospitals for inpatient services is described in 12VAC30-70-429 and for outpatient services is described in 12VAC30-80-20. The upper payment limit gap shall be updated annually for each State Plan rate year.

C. Nonhospital revenue that should be excluded from a hospital's net patient service revenue as reported to the Virginia Health Information (VHI) Hospital Detail Report must be reported to DMAS by April 1 of each year. The hospital's chief financial officer must certify any changes to the data reported to VHI.

D. Health care coverage assessment. Private acute care hospitals operating in Virginia shall pay a provider coverage assessment beginning on or after October 1, 2018.

1. DMAS will calculate each hospital's coverage assessment by multiplying the coverage assessment percentage times net patient service revenue.

2. The coverage assessment percentage is calculated as (i) 1.08 times the nonfederal share of the full cost of expanded Medicaid coverage for newly eligible individuals under 42 USC § 1396d(y)(1) (as inserted by § 2001 of the Patient Protection and Affordable Care Act (P.L. 111-148 as amended by P.L. 111-152)) divided by (ii) the total net patient service revenue for hospitals subject to the assessment.

3. DMAS shall, at a minimum, update the "coverage assessment amount" to be effective on January 1 of each year. DMAS is further authorized to update the "coverage assessment amount " on a quarterly basis to ensure amounts are sufficient to cover the full cost of expanded Medicaid coverage based on the latest estimate. Hospitals shall be given no less than 30 days' notice prior to a change in their coverage assessment amount, and shall be provided with associated calculations. Prior to any change to the coverage assessment amount, DMAS shall perform and incorporate a reconciliation of the Health Care Coverage Assessment Fund. Any estimated excess or shortfall of revenue since the previous reconciliation shall be deducted from or added to the "full cost of expanded Medicaid coverage" for the updated coverage assessment amount.

4. The "full cost of expanded Medicaid coverage" shall be updated (i) on November 1 of each year based on the official Medicaid forecast and latest administrative cost estimates developed by DMAS; (ii) no more than 30 days after the enactment of any Appropriation Act to reflect policy changes adopted by the latest session of the General Assembly; and (iii) on March 1 of any year in which DMAS estimates that the most recent non-federal share of the "full cost of expanded Medicaid coverage" multiplied by 1.08 will be insufficient to pay all expenses for the full cost of expanded Medicaid coverage.

5. The coverage assessment shall be used only to cover the nonfederal share of the full cost of expanded Medicaid coverage.

6. Hospitals subject to the coverage assessment shall make quarterly payments to DMAS equal to 25% of the annual coverage assessment amount. The assessment payments are due not later than the first day of each quarter. In the first year, the first coverage assessment payment shall be due on or after October 1, 2018. Hospitals that fail to make the coverage assessment payments within 30 days of the due date shall incur a 5.0% penalty that shall be deposited into the Virginia Health Care Fund. Any unpaid coverage assessment or penalty will be considered a debt to the Commonwealth, and DMAS is authorized to recover it as such.

E. Health care provider payment rate assessment. Private acute care hospitals operating in Virginia shall pay a provider payment rate assessment beginning on or after October 1, 2018.

Proceeds from the provider payment rate assessment shall be disbursed to fund an increase in inpatient and outpatient payment rates paid to private acute care hospitals operating in Virginia up to the upper payment limit and the managed care organization hospital payment gap for care provided to recipients of medical assistance services.

1. DMAS will calculate each hospital's payment rate assessment by multiplying the payment rate assessment percentage times net patient service revenue.

2. The payment rate assessment percentage for covered hospitals will be calculated as (i) 1.08 times the nonfederal share of funding the upper payment limit gap and the managed care organization hospital payment gap divided by (ii) the total net patient service revenue for covered hospitals.

3. DMAS is authorized to update the payment rate assessment amount on a quarterly basis to ensure amounts are sufficient to cover the full cost of the private acute care hospital enhanced payments based on the latest estimate. Hospitals shall be given no less than 30 days prior notice of the new assessment amount and be provided with calculations. Prior to any change to the payment rate assessment amount, DMAS shall perform and incorporate a reconciliation of the Health Care Provider Payment Rate Assessment Fund. Any estimated excess or shortfall of revenue since the previous reconciliation shall be deducted from or added to the calculation of the private acute care hospital enhanced payments.

4. As part of the development of the managed care capitation rates, DMAS shall calculate a managed care organization supplemental hospital capitation payment adjustment. This is a distinct additional amount added to Medicaid MCO capitation rates to pay the managed care organization hospital payment gap as supplemental payments to covered private acute care hospitals operating in Virginia for services to Medicaid recipients. DMAS shall make available quarterly a report of the additional capitation payments that are made to each MCO.

5. Hospitals subject to the assessment shall make quarterly payments to DMAS equal to 25% of the annual provider payment rate assessment amount. The assessment payments are due not later than the first day of each quarter. In the first year, the first assessment payment shall be due on or after October 1, 2018. Hospitals that fail to make the assessment payments within 30 days of the due date shall incur a 5.0% penalty that shall be deposited into the Virginia Health Care Fund. Any unpaid assessment or penalty will be considered a debt to the Commonwealth, and DMAS is authorized to recover it as such.

F. Collection of the assessments. DMAS is responsible for collecting the assessments.

1. All revenue from the coverage assessment, excluding penalties shall be deposited into a special nonreverting fund to be known as the Health Care Coverage Assessment Fund pursuant to § 32.1-331.01 of the Code of Virginia. Proceeds from the Health Care Coverage Assessment Fund shall not be used for any other purpose than to cover the nonfederal share of the full cost of enhanced Medicaid coverage.

2. All revenue from the provider payment rate assessment, excluding penalties, shall be deposited into a special nonreverting fund to be known as the Health Care Provider Payment Rate Assessment Fund pursuant to § 32.1-331.02 of the Code of Virginia. Proceeds from the Health Care Provider Payment Rate Assessment Fund shall not be used for any other purpose than to fund an increase in inpatient and outpatient payment rates paid to private acute care hospitals operating in Virginia up to the private hospital upper payment limit or managed care organization hospital payment gap for care provided to recipients of medical assistance services and the administrative costs of collecting the assessment and of implementing and operating the associated payment rate actions.

3. DMAS will submit reports as required by the Appropriations Act. The reports will include, for the most recently completed state fiscal year, the revenue collected from each assessment, expenditures for purposes covered by each assessment, and the year-end assessment balances in each special nonreverting fund. The report shall include a complete and itemized list of all administrative costs included in the coverage assessment.

G. Appeal. A covered hospital may appeal a DMAS action that falls within the definition of agency action under the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia), including DMAS's interpretation and application of assessment methodologies. The assessment methodologies cannot be appealed.

1. Appeals will be conducted in accordance with the provider appeal regulations (12VAC30-20).

2. A covered hospital shall be considered a "provider" for purposes of the appeal procedures set forth in the provider appeal regulations.

Titles of Regulations: 12VAC30-70. Methods and Standards for Establishing Payment Rates; In-Patient Hospital Care (adding 12VAC30-70-411, 12VAC30-70-429).

12VAC30-80. Methods and Standards for Establishing Payment Rate; Other Types of Care (amending 12VAC30-80-20).

12VAC30-160. Hospital Assessment (adding 12VAC30-160-10).

Statutory Authority: § 32.1-325 of the Code of Virginia; 42 USC § 1396 et seq.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: June 11, 2021.

Agency Contact: Emily McClellan, Regulatory Supervisor, Policy Division, Department of Medical Assistance Services, 600 East Broad Street, Suite 1300, Richmond, VA 23219, telephone (804) 371-4300, FAX (804) 786-1680, or email emily.mcclellan@dmas.virginia.gov.

Basis: Section 32.1 325 of the Code of Virginia grants to the Board of Medical Assistance Services the authority to administer and amend the State Plan for Medical Assistance and to promulgate regulations. Section 32.1-324 of the Code of Virginia grants the Director of the Department of Medical Assistance Services (DMAS) the authority of the board when it is not in session.

Items 3-5.15 and 3-5.16 of the 2018 and 2019 Appropriation Acts instruct DMAS to levy a provider coverage assessment and a provider payment rate assessment beginning on or after October 1, 2018. In addition, the 2018 and 2019 Acts of Assembly, Item 303 XX 6 c states that supplemental payments for certain teaching hospitals shall sunset after the effective date of a statewide supplemental payment for private acute care hospitals authorized in Item 3-5.16.

Purpose: Each of the three items included in this regulatory package is required to fund new Medicaid coverage for adults as well as new Medicaid hospital supplemental payments. The provider coverage assessment will fund the nonfederal share of Medicaid coverage for newly-eligible adults while the provider payment rate assessment will fund the nonfederal share of an increase in inpatient and outpatient supplemental payments to qualifying private acute care hospitals. The private acute care hospitals required to pay the assessment will benefit from the new coverage as well as new supplemental hospital payments. These regulations establish these new supplemental payments and sunset ones that were previously authorized.

The new Medicaid coverage for adults is essential to protect, the health, safety, and welfare of citizens; to date, health care coverage has been expanded to more than 300,000 Virginians who did not have medical insurance (i.e., did not qualify for health insurance subsidies under the Affordable Care Act). The assessments also fund the nonfederal share of expansion instead of appropriating general funds. In addition, Medicaid expansion allows Virginia to draw down federal dollars for the expansion population, which avoids increased costs to the state.

Substance: This regulatory action (i) authorizes DMAS to levy a provider coverage assessment and a payment rate assessment upon private acute care hospitals operating in Virginia; (ii) establishes new supplemental inpatient and outpatient payments for qualifying private acute care hospitals in Virginia; and (iii) sunsets existing supplemental payments made to certain teaching hospitals to avoid overlapping supplemental payments.

(i) Provider Coverage Assessment and Payment Rate Assessment: The provider coverage assessment generates funds that will be used to cover the nonfederal share of the full cost of Medicaid coverage for newly eligible individuals, including the administrative costs of collecting the assessment and implementing and operating the coverage for newly eligible adults.

The provider payment rate assessment generates funds that will be used to fund (a) an increase in inpatient and outpatient rates paid to private acute care hospitals in Virginia up to the private hospital upper payment limit and managed care organization hospital payment gap and (b) the administrative costs of collecting the assessment and of implementing and operating the associated rate actions. Separate funds have been established; one for the coverage assessment, and one for the payment rate assessment.

(ii) New Supplemental Inpatient and Outpatient Payments for Qualifying Private Acute Care Hospitals in Virginia: The 2018 Appropriation Act directs DMAS to provide supplemental inpatient and outpatient hospital payments to qualifying hospitals up to the private hospital upper payment limit for payment to private hospitals. Qualifying hospitals are all private acute care hospitals excluding public hospitals, freestanding psychiatric and rehabilitation hospitals, children's hospitals, long stay hospitals, long-term acute care hospitals, and critical access hospitals. The total supplemental payment shall be based on the difference between the private hospital inpatient or outpatient upper payment limit (in 42 CFR 447.272, and 42 CFR 447.321, respectively) as approved by the Centers for Medicare and Medicaid Services and all other Medicaid payments subject to such limit. DMAS has amended the State Plan to make supplemental payments to all qualifying hospitals and has amended its contracts with managed care organizations to include a directed payment for qualifying hospitals consistent with the State Plan Amendment.

(iii) Sunsetting Other Supplemental Payments for Private Acute Care Hospitals: In order to avoid overlapping supplemental payments, supplemental payments made to a limited group of private hospitals are being terminated on the date the new payments are effective. Supplemental Inpatient Payments for Certain Teaching Hospitals (Sentara Norfolk General and Carilion Medical Center) will sunset in this regulatory action.

Issues: Each of the three items included in this regulatory package is required to fund new Medicaid coverage for adults as well as new Medicaid hospital supplemental payments. The primary advantage to the public and the Commonwealth of the new Medicaid coverage for adults is that, to date, it has provided health care coverage to over 300,000 Virginians who did not have medical insurance (i.e., did not qualify for health insurance subsidies under the Affordable Care Act), which is a primary advantage to the public.

The assessments fund the nonfederal share of expansion instead of appropriating general funds. In addition, Medicaid expansion allows Virginia to draw down federal dollars for the expansion population, which generates savings for the state, providing an advantage to the Commonwealth.

Hospitals will be affected by these assessments, but they agreed in advance to these regulatory changes so that Medicaid expansion could be accomplished.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Pursuant to multiple General Assembly mandates, this permanent regulatory action would: (1) authorize the Department of Medical Assistance Services (DMAS) to levy a provider coverage assessment and a payment rate assessment upon private acute care hospitals operating in Virginia, (2) establish new supplemental inpatient and outpatient payments for qualifying private acute care hospitals, and (3) sunset existing supplemental payments made to certain teaching hospitals to avoid overlapping payments.

The proposed permanent changes have already been in effect since October 2018 under emergency regulations.¹ This action would make the emergency regulations permanent.

Background. The three components of this regulatory package listed above were authorized by three budget items in the 2018 Appropriation Act. Items 3-5.15 and 3-5.16 authorized DMAS to expand Medicaid services in Virginia through the use of two types of assessments: a provider coverage assessment (coverage assessment) and a provider payment rate assessment (rate assessment). These assessments are required to fund new Medicaid coverage for adults, and were to be implemented on or after October 1, 2018, upon private acute care hospitals² operating in Virginia. In addition, Item 303.XX 6 c states that supplemental payments for certain teaching hospitals shall sunset after the effective date of the statewide supplemental payment for private acute care hospitals authorized in Item 3-5.16.³

These budget items collectively made it possible to expand Medicaid coverage to include an estimated 400,000 adult Virginians. In November 2019, more than 327,000 adults who did not have other forms of medical insurance were covered by Medicaid expansion.

The parameters determining the amounts of the assessments and supplemental payments were set out in the budget items in detail. The proposed regulation closely mirrors those parameters without materially changing those amounts. Instead, the regulation mainly adds definitions for the terminology used in the budget.

Estimated Benefits and Costs. The three components of this regulatory package are required to fund the full cost of expanded Medicaid coverage for adults as well as the new Medicaid hospital supplemental payments required by the legislative mandates. As discussed below, the coverage assessment funds the non-federal share of Medicaid coverage for newly-eligible adults, while the rate assessment funds the non-federal share of an increase in inpatient and outpatient supplemental payments to qualifying private acute care hospitals. The new supplemental payments enhance payments to private hospitals and provide incentives to serve the newly-eligible adults, while the sunset of certain supplemental payments is done to avoid overlapping payments. The analysis herein of these three components is based on several different data sources that may not be directly comparable, but represents the Department of Planning and Budget's best estimate of the benefits and costs.

Coverage Assessment and Rate Assessment. The two assessments fund the non-federal share of expansion and the new supplemental payments instead of appropriating general funds. Accordingly, no general funds are associated with these assessments. Separate funds have been established; one for the coverage assessment, and one for the rate assessment. More specifically, the coverage assessment generates funds to cover the non-federal share of the full cost of Medicaid coverage for newly eligible individuals, including the administrative costs of collecting the assessment and implementing and operating Medicaid expansion. In addition, the rate assessment generates funds to cover: (a) the increase in inpatient and outpatient rates paid to private acute care hospitals in Virginia up to the private hospital upper payment limit and managed care organization hospital payment gap, and (b) the administrative costs of collecting the assessment and of implementing and operating the associated rate actions.

The detailed mechanics of both assessments are set out in the budget items. Both are levied prospectively, and their magnitudes are determined by the following factors. For the coverage assessment, DMAS calculates each hospitals coverage assessment amount by multiplying the coverage assessment percentage by the net patient service revenue. The coverage assessment percentage is calculated as (i) 1.08 times the non-federal share of the full cost of expanded Medicaid coverage divided by (ii) the total net patient service revenue for hospitals subject to the assessment. Similarly, for the rate assessment each hospitals payment rate assessment amount is determined by multiplying the payment rate assessment percentage by the net patient service revenue. The payment rate assessment percentage for hospitals is calculated as (i) 1.08 times the non-federal share of funding the private acute care hospitals enhanced payments divided by (ii) the total net patient service revenue for hospitals subject to the assessment.

New Supplemental Inpatient and Outpatient Payments for Qualifying Private Acute Care Hospitals in Virginia. The 2018 Appropriation Act directs DMAS to provide supplemental inpatient and outpatient hospital payments to qualifying acute care hospitals up to the private hospital upper payment limit. The total supplemental payment is based on the difference between (a) the private hospital inpatient or outpatient upper payment limit (in 42 CFR 447.272, and 42 CFR 447.321, respectively) as approved by the Centers for Medicare and Medicaid Services and (b) all other Medicaid payments subject to such limit. DMAS has amended the State Plan for Medical Assistance to make supplemental payments to all qualifying hospitals.

Sunsetting Other Supplemental Payments for Private Acute Care Hospitals. In order to avoid overlapping supplemental payments, supplemental payments made to a limited group of private acute care hospitals were terminated on the date the new payments were effective. The supplemental payments that are sunset in this regulatory package were authorized by the 2017 Acts of Assembly, Chapter 836, Item 306.RRR.1. The hospitals affected are Sentara Norfolk General and Carilion Medical Center in Roanoke.

Fiscal Impact. In Fiscal Year (FY) 2019, $87.3 million and $143.7 million were collected from hospitals for coverage and rate assessments, respectively. Based on the most recent official forecast, and assuming $17.4 million in non-medical costs, the coverage assessments for FY 2020 through FY 2022 are estimated to be $278.3 million, $389.8 million, and $422.1 million, respectively.⁴ The rate assessment projections for the same time period are $444.7 million, $477.1 million, and $501 million.

While this regulatory action establishes the sole regulatory authority for the two assessments, it applies only to the fee-for-service portion of supplemental payments made to private acute care hospitals. The managed care portion of supplemental payment changes is addressed independently from this action, through amendments to contracts with managed care organizations that include a directed payment for qualifying hospitals. However, since the coverage and rate assessments are based on the total cost of expansion, including the services provided through both the fee-for-service and managed care delivery systems, an accurate assessment of the net impact on affected hospitals requires consideration of both the fee-for-service and managed care portions of the supplemental payments.

Including the managed care portion, the total supplemental payments made to these same hospitals were $292.6 million in FY 2019. This payment exceeds $231 million paid by private hospitals as a result of the coverage and rate assessments in FY 2019. Similarly, in FY 2020, affected hospitals are projected to pay an estimated $723 million for the coverage and rate assessments, but are projected to receive approximately $993.2 million in supplemental payments.⁵ Thus, it appears that the affected private acute care hospitals are better off with the proposed rules.

The sunset of supplemental payments for the two teaching hospitals would reduce the supplemental payments available specifically to those two hospitals by $101.8 million in FY 2019 and $135.7 million in FY 2020, in order to avoid overlapping with the payments newly available to them. However, according to DMAS, these two teaching hospitals saw the first and the second highest net gain in FY 2019 (i.e. payments received minus assessments paid were $36.6 and $22.9 million for the first and second places, respectively) of all hospitals statewide. Thus, these two hospitals also appear to be better off under the proposed rules despite the sunset of a portion of payments available to them.

Additionally, an intergovernmental transfer from Eastern Virginia Medical School and Virginia Tech was previously required to provide the non-state match for these teaching hospitals. Under the new rules, both hospitals can use the rate assessment funds to draw down the federal match, thereby eliminating the need for the intergovernmental transfer and the resulting dependency on another governmental entity.

Other Effects of Expansion. Generally available research finds that Medicaid expansion in other states is linked to: gains in coverage; improvements in access, financial security, and some measures of health status/outcomes; and economic benefits for states and providers.⁶

In Virginia, according to DMAS, more than 327,000 members are enrolled in expansion as of November 1, 2019, and more than 375,000 members have been enrolled at some point since the beginning of Medicaid expansion. In the year prior to enrolling in Medicaid, two-thirds of new members went without needed medical care such as primary care, prescriptions, mental health care, substance abuse disorder treatment, and dental care; one in four of new members used the emergency room as their primary source of care. After Medicaid expansion, 80 percent of these new members received at least one type of medical care; and the expansion population has been diagnosed with more chronic conditions than the non-expansion population.

The economic benefits of Medicaid expansion in other states include reductions in uncompensated care costs for hospitals and clinics, and also gains in employment as well as growth in the labor market (with a minority of studies showing neutral effects in this area).⁷ Also, an increase in labor force productivity could be expected from a healthier population.

One of the most significant statewide economic impacts is due to the net inflow of federal funds into the Commonwealth. Medicaid expansion allows Virginia to draw down federal dollars for the newly covered population and the higher supplemental payments, which avoids an increase in costs to the state. For example, the federal government covered 93 percent of the cost of the expansion in calendar year 2019 and will cover 90 percent thereafter. These new federal funds represent a net injection into the state's economy.⁸ In other words, after 2019, Virginia entities would pay for only 10 percent of the full cost of expansion while bringing the remaining 90 percent of federal funds into the Commonwealth, thereby creating new demand for medical services, goods, and labor.

An injection of new demand into the economy creates further expansionary effects beyond the initial increase in spending through what is known as the multiplier effect. The multiplier effect refers to the increase in final income arising from any new injection of spending. Further economic expansion occurs because the initial new spending creates extra income, which further boosts spending, which in turn creates more income, and so on. In the end, a dollar of extra spending leads to an increase of more than a dollar of final income. For example, actual expansion expenditures were $866.7 million in FY 2019.⁹ Projected expansion expenditures for the current and the next two years are $3.1 billion, $3.7 billion, and $4.1 billion.¹⁰ Approximately 90 percent of these amounts represents new spending which is expected to trigger further expansionary effects through the multiplier mechanism.

Businesses and Other Entities Affected. There are 69 private acute care hospitals subject to the provider and rate assessments and that are affected by the supplemental payment changes. These hospitals would also experience an increase in demand for their services and goods as well as their administrative costs due to serving a larger population. Similarly, DMAS would see an increase in its administrative costs driven by a larger population.

There are 400,000 Virginians estimated to be eligible under Medicaid expansion. Of these, more than 327,000 members were enrolled in expansion as of November 1, 2019 and more than 375,000 members have enrolled at some point since the beginning of Medicaid expansion.

Localities¹¹ Affected.¹² Although the expansion is statewide and encompasses all localities, it likely disproportionately affects those localities who have higher percentages of adults lacking health insurance. Medicaid expansion does not impose costs on localities.

Projected Impact on Employment. Medicaid expansion likely increases the size and the productivity of the labor force due to gains in Virginia's health outcomes. The net inflow of funds into the Commonwealth would likely cause an increase in demand for labor due to additional demand for services and goods to cover the expansion population.

Effects on the Use and Value of Private Property. The state's financial responsibility for the expansion population is funded by the private acute care hospitals via the provider assessment. These acute care hospitals also fund the state's share of the funds needed to receive the maximum amount of supplemental payments. The negative effects of the two assessments are offset by the increased demand for their services, their reduced uncompensated care costs, and the increase in supplemental payments they receive.

Adverse Effect on Small Businesses:¹³ The proposed regulation does not appear to adversely affect small businesses.

______________________________

¹https://townhall.virginia.gov/l/ViewStage.cfm?stageid=8352

²Public hospitals, freestanding psychiatric and rehabilitation hospitals, children's hospitals, long-term care hospitals and critical access hospitals are excluded from the definition of private acute care hospitals.

³The 2019 Appropriation Act, Items 3-5.15, 3-5.16, and Item 303.XX 6 c carried forward substantially the same instructions.

⁴Source: Official Consensus Medicaid Forecast, available at: https://rga.lis.virginia.gov/Published/2019/RD504/PDF.

⁵The payments in the first four months of FY 2019 are annualized to calculate the $993.2 million (i.e. $331.1 million times three.)

⁶https://www.kff.org/medicaid/issue-brief/the-effects-of-medicaid-expansion-under-the-aca-updated-findings-from-a-literature-review-august-2019/

⁷Ibid.

⁸The federal government may use a variety of strategies to fund the federal portion of the funding some of which may have a contractionary impact at the national level. However, potential nationwide economic effects are not considered in this analysis as the focus is on Virginia's economic activity.

⁹https://www.dmas.virginia.gov/files/links/4167/DMAS SFY19 FM 12 June Medical Accuracy Report.pdf

¹⁰Source: Official Consensus Medicaid Forecast.

¹¹Locality 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.

¹²§ 2.2-4007.04 defines particularly affected as bearing disproportionate material impact.

¹³Pursuant 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.

Agency's Response to Economic Impact Analysis: The agency has reviewed the economic impact analysis prepared by the Department of Planning and Budget and raises no issues with this analysis.

Summary:

The amendments (i) authorize the Department of Medical Assistance Services to levy assessments upon private acute care hospitals operating in Virginia to fund new Medicaid coverage for adults as well as new Medicaid hospital supplemental payments, (ii) establish new supplemental inpatient and outpatient payments for qualifying private acute care hospitals in Virginia, and (iii) sunset supplemental payments made to certain private teaching hospitals to avoid overlapping supplemental payments. The amendments are required by §§ 3-5.15 and 3-5.16 and Item 303 XX 6 c of the 2018 Appropriation Act (Chapter 2 of the 2018 Acts of Assembly, Special Session I).

12VAC30-70-411. Supplemental payments for certain teaching hospitals.

A. Effective for dates of service on or after July 1, 2017, quarterly supplemental payments will be issued to qualifying private hospitals for inpatient services rendered during the quarter. These quarterly supplemental payments will cease for dates of service on or after October 1, 2018.

B. Qualifying criteria. Qualifying hospitals are the primary teaching hospitals affiliated with a Liaison Committee on Medical Education (LCME) accredited medical school located in Planning District 23 that is a political subdivision of the Commonwealth and an LCME accredited medical school located in Planning District 5 that has a partnership with a public university.

C. Reimbursement methodology. Each qualifying hospital shall receive quarterly supplemental payments for the inpatient services rendered during the quarter equal to the difference between the hospital's Medicaid payments and the hospital's disproportionate share limit (Omnibus Budget Reconciliation Act 93 disproportionate share hospital limit) for the most recent year for which the disproportionate share limit has been calculated divided by four. The supplemental payment amount will be determined prior to the beginning of the fiscal year.

D. Limit. Maximum aggregate payments to all qualifying hospitals shall not exceed the available upper payment limit per state fiscal year (SFY). In SFY 2019, the upper payment limit shall be prorated for the time period these supplemental payments are in effect.

12VAC30-70-429. Supplemental payments for private acute care hospitals.

A. Starting October 1, 2018, supplemental payments will be issued to qualifying hospitals for inpatient services provided to Medicaid patients.

B. Definitions. The following words and terms when used in this section shall have the following meanings unless otherwise stated:

"Acute care hospital" means any hospital that provides emergency medical services on a 24-hour basis.

"Children's hospital" means a hospital (i) whose inpatients are predominantly younger than 18 years of age and (ii) that is excluded from the Medicare prospective payment system pursuant to the Social Security Act.

"Critical access hospital" means a facility that meets the requirements of the State Medicare Rural Hospital Flexibility Program, 42 USC § 1395i-4, for such designation.

"Freestanding psychiatric and rehabilitation hospital" means a freestanding psychiatric hospital, which means a hospital that provides services consistent with 42 CFR 482.60, or a freestanding rehabilitation hospital, which means a hospital that provides services consistent with 42 CFR 482.56.

"Hospital" means a medical care facility licensed as an inpatient hospital or outpatient surgical center by the Department of Health or as a psychiatric hospital by the Department of Behavioral Health and Developmental Services.

"Long-stay hospital" means specialty facilities that serve individuals receiving medical assistance who require a higher intensity of nursing care than that which is normally provided in a nursing facility and who do not require the degree of care and treatment that an acute care hospital is designed to provide.

"Long-term acute care hospital" or "LTACH" means an inpatient hospital that provides care for patients who require a length of stay greater than 25 days and is, or proposes to be, certified by CMS as a long-term care inpatient hospital pursuant to 42 CFR Part 412. A LTACH may be either a freestanding facility or located within an existing or host hospital.

"Public hospital" means a hospital that is solely owned by a government or governmental entity.

"Supplemental payment" or "private acute care enhanced payment" means an increased payment to a qualifying hospital up to the upper payment limit gap from the Health Care Provider Rate Assessment Fund as authorized in the 2018 and 2019 Appropriation Acts.

"Upper payment limit" means the limit on payment for inpatient services for recipients of medical assistance established in accordance with 42 CFR 447.272, and on payment for outpatient services for recipients of medical assistance pursuant to 42 CFR 447.321 for private hospitals. The limit applies only to fee-for-service claims.

"Upper payment limit gap" or "UPL gap" means the difference between the amount of the private acute care hospital upper payment limits estimated for the State Plan rate year using the latest available cost report data, and the amount estimated that would otherwise be paid for the same State Plan rate year pursuant to the State Plan reimbursement methodology for inpatient and outpatient services. The upper payment limit gap shall be updated annually for each rate year.

C. Qualifying criteria. Qualifying hospitals are all in-state private acute care hospitals, excluding public hospitals, freestanding psychiatric and rehabilitation hospitals, children's hospitals, long-stay hospitals, long-term acute care hospitals, and critical access hospitals.

D. Reimbursement methodology. The supplemental payment shall equal inpatient hospital claim payments times the UPL gap percentage.

1. The UPL gap percentage is the percentage calculated when the numerator is the upper payment limit gap for inpatient services for private hospitals and the denominator is Medicaid claim payments to all qualifying hospitals for inpatient hospital services provided to Medicaid patients in the same year used in the numerator.

2. The UPL gap percentage will be calculated annually.

E. Quarterly payments. After the close of each quarter, beginning with the quarter ending December 31, 2018, each qualifying hospital shall receive supplemental payments for the inpatient services paid during that quarter. The supplemental payments for each qualifying hospital for each quarter shall be calculated based on the Medicaid inpatient hospital payments paid in that quarter multiplied by the UPL gap percentage.

12VAC30-80-20. Services that are reimbursed on a cost basis.

A. Payments for services listed in this section shall be on the basis of reasonable cost following the standards and principles applicable to the Title XVIII Program with the exception provided for in subdivision D 1 e of this section. The upper limit for reimbursement shall be no higher than payments for Medicare patients in accordance with 42 CFR 447.321. In no instance, however, shall charges for beneficiaries of the program be in excess of charges for private patients receiving services from the provider. The professional component for emergency room physicians shall continue to be uncovered as a component of the payment to the facility.

B. Reasonable costs will be determined from the filing of a uniform Centers for Medicare and Medicaid Services-approved cost report by participating providers. The cost reports are due not later than 150 days after the provider's fiscal year end. If a complete cost report is not received within 150 days after the end of the provider's fiscal year, DMAS or its designee shall take action in accordance with its policies to assure that an overpayment is not being made. All cost reports shall be reviewed and reconciled to final costs within 180 days of the receipt of a completed cost report. The cost report will be judged complete when DMAS has all of the following:

1. Completed cost reporting form provided by DMAS, with signed certification;

2. The provider's trial balance showing adjusted journal entries;

3. The provider's financial statements including a balance sheet, a statement of income and expenses, a statement of retained earnings (or fund balance), and a statement of changes in financial position;

4. Schedules that reconcile financial statements and trial balance to expenses claimed in the cost report;

5. Depreciation schedule or summary;

6. Home office cost report, if applicable; and

7. Such other analytical information or supporting documents requested by DMAS when the cost reporting forms are sent to the provider.

C. Item 398 D of the 1987 Appropriation Act (as amended), effective April 8, 1987, eliminated reimbursement of return on equity capital to proprietary providers.

D. The services that are cost reimbursed are:

1. For dates of service prior to January 1, 2014, outpatient hospital services, including rehabilitation hospital outpatient services and excluding laboratory services.

a. Definitions. The following words and terms when used in this section shall have the following meanings when applied to emergency services unless the context clearly indicates otherwise:

"All-inclusive" means all emergency department and ancillary service charges claimed in association with the emergency room visit, with the exception of laboratory services.

"DMAS" means the Department of Medical Assistance Services consistent with Chapter 10 (§ 32.1-323 et seq.) of Title 32.1 of the Code of Virginia.

"Emergency hospital services" means services that are necessary to prevent the death or serious impairment of the health of the recipient. The threat to the life or health of the recipient necessitates the use of the most accessible hospital available that is equipped to furnish the services.

"Recent injury" means an injury that has occurred less than 72 hours prior to the emergency department visit.

b. Scope. DMAS shall differentiate, as determined by the attending physician's diagnosis, the kinds of care routinely rendered in emergency departments and reimburse for nonemergency care rendered in emergency departments at a reduced rate.

(1) With the exception of laboratory services, DMAS shall reimburse at a reduced and all-inclusive reimbursement rate for all services rendered in emergency departments that DMAS determines were nonemergency care.

(2) Services determined by the attending physician to be emergencies shall be reimbursed under the existing methodologies and at the existing rates.

(3) Services performed by the attending physician that may be emergencies shall be manually reviewed. If such services meet certain criteria, they shall be paid under the methodology for subdivision 1 b (2) of this subsection. Services not meeting certain criteria shall be paid under the methodology of subdivision 1 b (1) of this subsection. Such criteria shall include:

(a) The initial treatment following a recent obvious injury.

(b) Treatment related to an injury sustained more than 72 hours prior to the visit with the deterioration of the symptoms to the point of requiring medical treatment for stabilization.

(c) The initial treatment for medical emergencies including indications of severe chest pain, dyspnea, gastrointestinal hemorrhage, spontaneous abortion, loss of consciousness, status epilepticus, or other conditions considered life threatening.

(d) A visit in which the recipient's condition requires immediate hospital admission or the transfer to another facility for further treatment or a visit in which the recipient dies.

(e) Services provided for acute vital sign changes as specified in the provider manual.

(f) Services provided for severe pain when combined with one or more of the other guidelines.

(4) Payment shall be determined based on ICD diagnosis codes and necessary supporting documentation. As used here, the term "ICD" is defined in 12VAC30-95-5.

(5) DMAS shall review on an ongoing basis the effectiveness of this program in achieving its objectives and for its effect on recipients, physicians, and hospitals. Program components may be revised subject to achieving program intent, the accuracy and effectiveness of the ICD code designations, and the impact on recipients and providers. As used here, the term "ICD" is defined in 12VAC30-95-5.

c. Limitation of allowable cost. Effective for services on and after July 1, 2003, reimbursement of Type Two hospitals for outpatient services shall be at various percentages as noted in subdivisions 1 c (1) and 1 c (2) of this subsection of allowable cost, with cost to be determined as provided in subsections A, B, and C of this section. For hospitals with fiscal years that do not begin on July 1, outpatient costs, both operating and capital, for the fiscal year in progress on that date shall be apportioned between the time period before and the time period after that date, based on the number of calendar months in the cost reporting period, falling before and after that date.

(1) Type One hospitals.

(a) Effective July 1, 2003, through June 30, 2010, hospital outpatient operating reimbursement shall be at 94.2% of allowable cost and capital reimbursement shall be at 90% of allowable cost.

(b) Effective July 1, 2010, through September 30, 2010, hospital outpatient operating reimbursement shall be at 91.2% of allowable cost and capital reimbursement shall be at 87% of allowable cost.

(c) Effective October 1, 2010, through June 30, 2011, hospital outpatient operating reimbursement shall be at 94.2% of allowable cost and capital reimbursement shall be at 90% of allowable cost.

(d) Effective July 1, 2011, hospital outpatient operating reimbursement shall be at 90.2% of allowable cost and capital reimbursement shall be at 86% of allowable cost.

(2) Type Two hospitals.

(a) Effective July 1, 2003, through June 30, 2010, hospital outpatient operating and capital reimbursement shall be 80% of allowable cost.

(b) Effective July 1, 2010, through September 30, 2010, hospital outpatient operating and capital reimbursement shall be 77% of allowable cost.

(c) Effective October 1, 2010, through June 30, 2011, hospital outpatient operating and capital reimbursement shall be 80% of allowable cost.

(d) Effective July 1, 2011, hospital outpatient operating and capital reimbursement shall be 76% of allowable cost.

d. The last cost report with a fiscal year end on or after December 31, 2013, shall be used for reimbursement for dates of service through December 31, 2013, based on this section. Reimbursement shall be based on charges reported for dates of service prior to January 1, 2014. Settlement will be based on four months of runout from the end of the provider's fiscal year. Claims for services paid after the cost report runout period will not be settled.

e. Payment for direct medical education costs of nursing schools, paramedical programs, and graduate medical education for interns and residents.

(1) Direct medical education costs of nursing schools and paramedical programs shall continue to be paid on an allowable cost basis.

(2) Effective with cost reporting periods beginning on or after July 1, 2002, direct graduate medical education (GME) costs for interns and residents shall be reimbursed on a per-resident prospective basis. See 12VAC30-70-281 for prospective payment methodology for graduate medical education for interns and residents.

2. Rehabilitation agencies or comprehensive outpatient rehabilitation.

a. Effective July 1, 2009, rehabilitation agencies or comprehensive outpatient rehabilitation facilities that are operated by community services boards or state agencies shall be reimbursed their costs. For reimbursement methodology applicable to all other rehabilitation agencies, see 12VAC30-80-200.

b. Effective October 1, 2009, rehabilitation agencies or comprehensive outpatient rehabilitation facilities operated by state agencies shall be reimbursed their costs. For reimbursement methodology applicable to all other rehabilitation agencies, see 12VAC30-80-200.

3. Supplement payments to Type One hospitals for outpatient services.

a. In addition to payments for services set forth elsewhere in the State Plan, DMAS makes supplemental payments to qualifying state government owned or operated hospitals for outpatient services furnished to Medicare members on or after July 1, 2010. To qualify for a supplement payment, the hospital must be part of the state academic health system or part of an academic health system that operates under a state authority.

b. The amount of the supplemental payment made to each qualifying hospital shall be equal to the difference between the total allowable cost and the amount otherwise actually paid for the services by the Medicaid program based on cost settlement.

c. Payment for furnished services under this section shall be paid at settlement of the cost report.

4. Supplemental payments for private hospital partners of Type One hospitals. Effective for dates of service on or after October 25, 2011, quarterly supplemental payments shall be issued to qualifying private hospitals for outpatient services rendered during the quarter. These quarterly supplemental payments will cease for dates of service on or after the effective date of State Plan amendments authorizing increased payments to qualifying hospitals from the Health Care Provider Rate Assessment Fund established pursuant to § 32.1-331.02 of the Code of Virginia and approved by the Centers for Medicare and Medicaid Services.

a. In order to qualify for the supplemental payment, the hospital shall be enrolled currently as a Virginia Medicaid provider and shall be owned or operated by a private entity in which a Type One hospital has a nonmajority interest.

b. Reimbursement methodology.

(1) Hospitals not participating in the Medicaid disproportionate share hospital (DSH) program shall receive quarterly supplemental payments for the outpatient services rendered during the quarter. Each quarterly payment distribution shall occur not more than two years after the year in which the qualifying hospital's entitlement arises. The annual supplemental payments in a fiscal year shall be the lesser of:

(a) The difference between each qualifying hospital's outpatient Medicaid billed charges and Medicaid payments the hospital receives for services processed for fee-for-service Medicaid individuals during the fiscal year; or

(b) $1,894 per Medicaid outpatient visit for state plan rate year 2012. For future state plan rate years, this number shall be adjusted by inflation based on the Virginia moving average values as compiled and published by Global Insight (or its successor) under contract with the department.

(2) Hospitals participating in the DSH program shall receive quarterly supplemental payments for the outpatient services rendered during the quarter. Each quarterly payment distribution shall occur not more than two years after the year in which the qualifying hospital's entitlement arises. The annual supplemental payments in a fiscal year shall be the lesser of:

(a) The difference between each qualifying hospital's outpatient Medicaid billed charges and Medicaid payments the hospital receives for services processed for fee-for-service Medicaid individuals during the fiscal year;

(b) $1,894 per Medicaid outpatient visit for state plan rate year 2012. For future state plan rate years, this number shall be adjusted by inflation based on the Virginia moving average values as compiled and published by Global Insight (or its successor) under contract with the department; or

(c) The difference between the limit calculated under § 1923(g) of the Social Security Act and the hospital's DSH payments for the applicable payment period.

c. Limit. Maximum aggregate payments to all qualifying hospitals in this group shall not exceed the available upper payment limit per state fiscal year.

5. Supplemental outpatient payments for non-state-government-owned hospitals. Effective July 1, 2018, supplemental payments will be issued to qualifying non-state-government-owned hospitals for outpatient services provided to Medicaid patients.

a. Qualifying hospitals are all non-state-government-owned acute care hospitals.

b. The supplemental payment shall equal outpatient hospital claim payments times the upper payment limit (UPL) gap percentage.

(1) The annual UPL gap percentage is the percentage calculated where the numerator is the difference for each qualifying hospital between a reasonable estimate of the amount that would be paid under Medicare payment principles for outpatient hospital services provided to Medicaid patients, as calculated in accordance with 42 CFR 447.321, and what Medicaid paid for such services, and the denominator is Medicaid claim payments to all qualifying hospitals for outpatient hospital services provided to Medicaid patients in the same year used in the numerator.

(2) The annual UPL gap percentage will be calculated annually for each hospital using the most recent year for which comprehensive annual data are available and inflated to the state fiscal year for which payments are to be made.

6. Quarterly payments. After the close of each quarter, beginning with the July 1, 2018, to September 30, 2018, quarter, each qualifying hospital shall receive supplemental payments for the outpatient services paid during the prior quarter. The supplemental payments for each qualifying hospital for each quarter shall be calculated by multiplying the Medicaid outpatient hospital payments paid in that quarter by the annual UPL gap percentage for each hospital.

7. Supplemental outpatient payments for private acute care hospitals. Starting October 1, 2018, supplemental payments will be issued to qualifying private hospitals for outpatient services provided to Medicaid patients.

a. Definitions. See definitions in 12VAC30-70-429.

b. Qualifying criteria. Qualifying hospitals are all in-state private acute care hospitals, excluding public hospitals, freestanding psychiatric and rehabilitation hospitals, children's hospitals, long-stay hospitals, long-term acute care hospitals, and critical access hospitals. A qualifying hospital is the same as a "covered hospital" in § 32.1-331.02 of the Code of Virginia.

c. Reimbursement methodology. The supplemental payment shall equal outpatient hospital claim payments times the UPL gap percentage.

(1) The UPL gap percentage is the percentage calculated where the numerator is the UPL gap for outpatient services for private hospitals and the denominator is Medicaid claim payments to all qualifying hospitals for outpatient hospital services provided to Medicaid patients in the same year used in the numerator.

(2) The UPL gap percentage will be calculated annually.

d. Quarterly payments. After the close of each quarter, beginning with the quarter ending December 31, 2018, each qualifying hospital shall receive supplemental payments for the outpatient services paid during that quarter. The supplemental payments for each qualifying hospital for each quarter shall be calculated based on the Medicaid outpatient hospital payments paid in that quarter multiplied by the UPL gap percentage.

Chapter 160

Hospital Assessment

12VAC30-160-10. Hospital assessment.

A. Authority. The Department of Medical Assistance Services (DMAS) is authorized to levy a Health Care Coverage Assessment and a Health Care Provider Payment Rate Assessment upon private acute care hospitals operating in Virginia in accordance with §§ 32.1-331.01 and 32.1-331.02 of the Code of Virginia and §§ 3-5.15, 3-5.16, and 4-14 as revised by the 2019 Appropriation Act.

B. Definitions. The following words and terms when used in this section shall have the following meanings unless otherwise stated:

"Covered hospital" means any in-state private acute care hospital other than a hospital classified as a public hospital, freestanding psychiatric and rehabilitation hospital, children's hospital, long-stay hospital, long-term acute care hospital, or critical access hospital.

"Full cost of expanded Medicaid coverage" means (i) any and all Medicaid expenditures related to individuals eligible for Medicaid pursuant to 42 U.S.C. 1396d(y)(1) (2010) of the Patient Protection and Affordable Care Act, including any federal actions or repayments and (ii) all administrative costs associated with providing coverage, which includes the costs of administering the provisions of the 1115 waiver, and collecting the coverage assessment.

"Managed care organization," "MCO," or "Medicaid MCO" means an entity that meets the participation and solvency criteria defined in 42 CFR Part 438 and has an executed contractual agreement with DMAS to provide services covered under a mandatory managed care program.

"Managed care organization hospital payment gap" means the difference between the amount included in the capitation rates for inpatient and outpatient services for the contract year based on historical paid claims and the amount that would be included when the projected hospital services furnished by private acute care hospitals operating in Virginia are priced for the contract year equivalent to the fee-for-service upper payment limit subject to CMS approval under 42 CFR 438.6(c). The managed care organization hospital payment gap shall be updated annually for each contract year.

"Managed care organization supplemental hospital capitation payment adjustment" means the additional amount added to Medicaid MCO capitation rates to pay the Medicaid managed care organization hospital payment gap to qualifying private acute care hospitals for services to Medicaid recipients.

"Net patient service revenue" means the amount each hospital reported in the most recent Virginia Health Information Hospital Detail Report as of December 15 of each year excluding any nonhospital revenue that meets the requirements in subsection C of this section.

"Newly eligible individual" means an individual described in 42 USC § 1396a(a)(10)(A)(i)(VIII).

"Private acute care hospital" means acute care hospitals, excluding public hospitals, freestanding psychiatric and rehabilitation hospitals, children's hospitals, long-stay hospitals, long-term acute care hospitals, and critical access hospitals.

"Provider payment rate costs" means the upper payment limit gap and the managed care organization hospital payment gap.

"Upper payment limit" means the limit on payment for inpatient services for recipients of medical assistance established in accordance with 42 CFR 447.272 and on payment for outpatient services for recipients of medical assistance pursuant to 42 CFR 447.321 for private hospitals. This limit applies only to fee-for-service claims.

"Upper payment limit gap" means the difference between the amount of the private acute care hospital upper payment limits estimated for the State Plan rate year using the latest available cost report data and the amount estimated that would otherwise be paid for that same State Plan rate year pursuant to the State Plan for inpatient and outpatient services. The supplemental payment methodology from the Health Care Provider Payment Rate Fund to qualifying hospitals for inpatient services is described in 12VAC30-70-429 and for outpatient services is described in 12VAC30-80-20. The upper payment limit gap shall be updated annually for each State Plan rate year.

C. Nonhospital revenue that should be excluded from a hospital's net patient service revenue as reported to the Virginia Health Information (VHI) Hospital Detail Report must be reported to DMAS by April 1 of each year. The hospital's chief financial officer must certify any changes to the data reported to VHI.

D. Health care coverage assessment. Private acute care hospitals operating in Virginia shall pay a provider coverage assessment beginning on or after October 1, 2018.

1. DMAS will calculate each hospital's coverage assessment by multiplying the coverage assessment percentage times net patient service revenue.

2. The coverage assessment percentage is calculated as (i) 1.08 times the nonfederal share of the full cost of expanded Medicaid coverage for newly eligible individuals under 42 USC § 1396d(y)(1) (as inserted by § 2001 of the Patient Protection and Affordable Care Act (P.L. 111-148 as amended by P.L. 111-152)) divided by (ii) the total net patient service revenue for hospitals subject to the assessment.

3. DMAS shall, at a minimum, update the "coverage assessment amount" to be effective on January 1 of each year. DMAS is further authorized to update the "coverage assessment amount " on a quarterly basis to ensure amounts are sufficient to cover the full cost of expanded Medicaid coverage based on the latest estimate. Hospitals shall be given no less than 30 days' notice prior to a change in their coverage assessment amount, and shall be provided with associated calculations. Prior to any change to the coverage assessment amount, DMAS shall perform and incorporate a reconciliation of the Health Care Coverage Assessment Fund. Any estimated excess or shortfall of revenue since the previous reconciliation shall be deducted from or added to the "full cost of expanded Medicaid coverage" for the updated coverage assessment amount.

4. The "full cost of expanded Medicaid coverage" shall be updated (i) on November 1 of each year based on the official Medicaid forecast and latest administrative cost estimates developed by DMAS; (ii) no more than 30 days after the enactment of any Appropriation Act to reflect policy changes adopted by the latest session of the General Assembly; and (iii) on March 1 of any year in which DMAS estimates that the most recent non-federal share of the "full cost of expanded Medicaid coverage" multiplied by 1.08 will be insufficient to pay all expenses for the full cost of expanded Medicaid coverage.

5. The coverage assessment shall be used only to cover the nonfederal share of the full cost of expanded Medicaid coverage.

6. Hospitals subject to the coverage assessment shall make quarterly payments to DMAS equal to 25% of the annual coverage assessment amount. The assessment payments are due not later than the first day of each quarter. In the first year, the first coverage assessment payment shall be due on or after October 1, 2018. Hospitals that fail to make the coverage assessment payments within 30 days of the due date shall incur a 5.0% penalty that shall be deposited into the Virginia Health Care Fund. Any unpaid coverage assessment or penalty will be considered a debt to the Commonwealth, and DMAS is authorized to recover it as such.

E. Health care provider payment rate assessment. Private acute care hospitals operating in Virginia shall pay a provider payment rate assessment beginning on or after October 1, 2018.

Proceeds from the provider payment rate assessment shall be disbursed to fund an increase in inpatient and outpatient payment rates paid to private acute care hospitals operating in Virginia up to the upper payment limit and the managed care organization hospital payment gap for care provided to recipients of medical assistance services.

1. DMAS will calculate each hospital's payment rate assessment by multiplying the payment rate assessment percentage times net patient service revenue.

2. The payment rate assessment percentage for covered hospitals will be calculated as (i) 1.08 times the nonfederal share of funding the upper payment limit gap and the managed care organization hospital payment gap divided by (ii) the total net patient service revenue for covered hospitals.

3. DMAS is authorized to update the payment rate assessment amount on a quarterly basis to ensure amounts are sufficient to cover the full cost of the private acute care hospital enhanced payments based on the latest estimate. Hospitals shall be given no less than 30 days prior notice of the new assessment amount and be provided with calculations. Prior to any change to the payment rate assessment amount, DMAS shall perform and incorporate a reconciliation of the Health Care Provider Payment Rate Assessment Fund. Any estimated excess or shortfall of revenue since the previous reconciliation shall be deducted from or added to the calculation of the private acute care hospital enhanced payments.

4. As part of the development of the managed care capitation rates, DMAS shall calculate a managed care organization supplemental hospital capitation payment adjustment. This is a distinct additional amount added to Medicaid MCO capitation rates to pay the managed care organization hospital payment gap as supplemental payments to covered private acute care hospitals operating in Virginia for services to Medicaid recipients. DMAS shall make available quarterly a report of the additional capitation payments that are made to each MCO.

5. Hospitals subject to the assessment shall make quarterly payments to DMAS equal to 25% of the annual provider payment rate assessment amount. The assessment payments are due not later than the first day of each quarter. In the first year, the first assessment payment shall be due on or after October 1, 2018. Hospitals that fail to make the assessment payments within 30 days of the due date shall incur a 5.0% penalty that shall be deposited into the Virginia Health Care Fund. Any unpaid assessment or penalty will be considered a debt to the Commonwealth, and DMAS is authorized to recover it as such.

F. Collection of the assessments. DMAS is responsible for collecting the assessments.

1. All revenue from the coverage assessment, excluding penalties shall be deposited into a special nonreverting fund to be known as the Health Care Coverage Assessment Fund pursuant to § 32.1-331.01 of the Code of Virginia. Proceeds from the Health Care Coverage Assessment Fund shall not be used for any other purpose than to cover the nonfederal share of the full cost of enhanced Medicaid coverage.

2. All revenue from the provider payment rate assessment, excluding penalties, shall be deposited into a special nonreverting fund to be known as the Health Care Provider Payment Rate Assessment Fund pursuant to § 32.1-331.02 of the Code of Virginia. Proceeds from the Health Care Provider Payment Rate Assessment Fund shall not be used for any other purpose than to fund an increase in inpatient and outpatient payment rates paid to private acute care hospitals operating in Virginia up to the private hospital upper payment limit or managed care organization hospital payment gap for care provided to recipients of medical assistance services and the administrative costs of collecting the assessment and of implementing and operating the associated payment rate actions.

3. DMAS will submit reports as required by the Appropriations Act. The reports will include, for the most recently completed state fiscal year, the revenue collected from each assessment, expenditures for purposes covered by each assessment, and the year-end assessment balances in each special nonreverting fund. The report shall include a complete and itemized list of all administrative costs included in the coverage assessment.

G. Appeal. A covered hospital may appeal a DMAS action that falls within the definition of agency action under the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia), including DMAS's interpretation and application of assessment methodologies. The assessment methodologies cannot be appealed.

1. Appeals will be conducted in accordance with the provider appeal regulations (12VAC30-20).

2. A covered hospital shall be considered a "provider" for purposes of the appeal procedures set forth in the provider appeal regulations.

Titles of Regulations: 12VAC30-70. Methods and Standards for Establishing Payment Rates; In-Patient Hospital Care (adding 12VAC30-70-411, 12VAC30-70-429).

12VAC30-80. Methods and Standards for Establishing Payment Rate; Other Types of Care (amending 12VAC30-80-20).

12VAC30-160. Hospital Assessment (adding 12VAC30-160-10).

Statutory Authority: § 32.1-325 of the Code of Virginia; 42 USC § 1396 et seq.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: June 11, 2021.

Agency Contact: Emily McClellan, Regulatory Supervisor, Policy Division, Department of Medical Assistance Services, 600 East Broad Street, Suite 1300, Richmond, VA 23219, telephone (804) 371-4300, FAX (804) 786-1680, or email emily.mcclellan@dmas.virginia.gov.

Basis: Section 32.1 325 of the Code of Virginia grants to the Board of Medical Assistance Services the authority to administer and amend the State Plan for Medical Assistance and to promulgate regulations. Section 32.1-324 of the Code of Virginia grants the Director of the Department of Medical Assistance Services (DMAS) the authority of the board when it is not in session.

Items 3-5.15 and 3-5.16 of the 2018 and 2019 Appropriation Acts instruct DMAS to levy a provider coverage assessment and a provider payment rate assessment beginning on or after October 1, 2018. In addition, the 2018 and 2019 Acts of Assembly, Item 303 XX 6 c states that supplemental payments for certain teaching hospitals shall sunset after the effective date of a statewide supplemental payment for private acute care hospitals authorized in Item 3-5.16.

Purpose: Each of the three items included in this regulatory package is required to fund new Medicaid coverage for adults as well as new Medicaid hospital supplemental payments. The provider coverage assessment will fund the nonfederal share of Medicaid coverage for newly-eligible adults while the provider payment rate assessment will fund the nonfederal share of an increase in inpatient and outpatient supplemental payments to qualifying private acute care hospitals. The private acute care hospitals required to pay the assessment will benefit from the new coverage as well as new supplemental hospital payments. These regulations establish these new supplemental payments and sunset ones that were previously authorized.

The new Medicaid coverage for adults is essential to protect, the health, safety, and welfare of citizens; to date, health care coverage has been expanded to more than 300,000 Virginians who did not have medical insurance (i.e., did not qualify for health insurance subsidies under the Affordable Care Act). The assessments also fund the nonfederal share of expansion instead of appropriating general funds. In addition, Medicaid expansion allows Virginia to draw down federal dollars for the expansion population, which avoids increased costs to the state.

Substance: This regulatory action (i) authorizes DMAS to levy a provider coverage assessment and a payment rate assessment upon private acute care hospitals operating in Virginia; (ii) establishes new supplemental inpatient and outpatient payments for qualifying private acute care hospitals in Virginia; and (iii) sunsets existing supplemental payments made to certain teaching hospitals to avoid overlapping supplemental payments.

(i) Provider Coverage Assessment and Payment Rate Assessment: The provider coverage assessment generates funds that will be used to cover the nonfederal share of the full cost of Medicaid coverage for newly eligible individuals, including the administrative costs of collecting the assessment and implementing and operating the coverage for newly eligible adults.

The provider payment rate assessment generates funds that will be used to fund (a) an increase in inpatient and outpatient rates paid to private acute care hospitals in Virginia up to the private hospital upper payment limit and managed care organization hospital payment gap and (b) the administrative costs of collecting the assessment and of implementing and operating the associated rate actions. Separate funds have been established; one for the coverage assessment, and one for the payment rate assessment.

(ii) New Supplemental Inpatient and Outpatient Payments for Qualifying Private Acute Care Hospitals in Virginia: The 2018 Appropriation Act directs DMAS to provide supplemental inpatient and outpatient hospital payments to qualifying hospitals up to the private hospital upper payment limit for payment to private hospitals. Qualifying hospitals are all private acute care hospitals excluding public hospitals, freestanding psychiatric and rehabilitation hospitals, children's hospitals, long stay hospitals, long-term acute care hospitals, and critical access hospitals. The total supplemental payment shall be based on the difference between the private hospital inpatient or outpatient upper payment limit (in 42 CFR 447.272, and 42 CFR 447.321, respectively) as approved by the Centers for Medicare and Medicaid Services and all other Medicaid payments subject to such limit. DMAS has amended the State Plan to make supplemental payments to all qualifying hospitals and has amended its contracts with managed care organizations to include a directed payment for qualifying hospitals consistent with the State Plan Amendment.

(iii) Sunsetting Other Supplemental Payments for Private Acute Care Hospitals: In order to avoid overlapping supplemental payments, supplemental payments made to a limited group of private hospitals are being terminated on the date the new payments are effective. Supplemental Inpatient Payments for Certain Teaching Hospitals (Sentara Norfolk General and Carilion Medical Center) will sunset in this regulatory action.

Issues: Each of the three items included in this regulatory package is required to fund new Medicaid coverage for adults as well as new Medicaid hospital supplemental payments. The primary advantage to the public and the Commonwealth of the new Medicaid coverage for adults is that, to date, it has provided health care coverage to over 300,000 Virginians who did not have medical insurance (i.e., did not qualify for health insurance subsidies under the Affordable Care Act), which is a primary advantage to the public.

The assessments fund the nonfederal share of expansion instead of appropriating general funds. In addition, Medicaid expansion allows Virginia to draw down federal dollars for the expansion population, which generates savings for the state, providing an advantage to the Commonwealth.

Hospitals will be affected by these assessments, but they agreed in advance to these regulatory changes so that Medicaid expansion could be accomplished.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Pursuant to multiple General Assembly mandates, this permanent regulatory action would: (1) authorize the Department of Medical Assistance Services (DMAS) to levy a provider coverage assessment and a payment rate assessment upon private acute care hospitals operating in Virginia, (2) establish new supplemental inpatient and outpatient payments for qualifying private acute care hospitals, and (3) sunset existing supplemental payments made to certain teaching hospitals to avoid overlapping payments.

The proposed permanent changes have already been in effect since October 2018 under emergency regulations.¹ This action would make the emergency regulations permanent.

Background. The three components of this regulatory package listed above were authorized by three budget items in the 2018 Appropriation Act. Items 3-5.15 and 3-5.16 authorized DMAS to expand Medicaid services in Virginia through the use of two types of assessments: a provider coverage assessment (coverage assessment) and a provider payment rate assessment (rate assessment). These assessments are required to fund new Medicaid coverage for adults, and were to be implemented on or after October 1, 2018, upon private acute care hospitals² operating in Virginia. In addition, Item 303.XX 6 c states that supplemental payments for certain teaching hospitals shall sunset after the effective date of the statewide supplemental payment for private acute care hospitals authorized in Item 3-5.16.³

These budget items collectively made it possible to expand Medicaid coverage to include an estimated 400,000 adult Virginians. In November 2019, more than 327,000 adults who did not have other forms of medical insurance were covered by Medicaid expansion.

The parameters determining the amounts of the assessments and supplemental payments were set out in the budget items in detail. The proposed regulation closely mirrors those parameters without materially changing those amounts. Instead, the regulation mainly adds definitions for the terminology used in the budget.

Estimated Benefits and Costs. The three components of this regulatory package are required to fund the full cost of expanded Medicaid coverage for adults as well as the new Medicaid hospital supplemental payments required by the legislative mandates. As discussed below, the coverage assessment funds the non-federal share of Medicaid coverage for newly-eligible adults, while the rate assessment funds the non-federal share of an increase in inpatient and outpatient supplemental payments to qualifying private acute care hospitals. The new supplemental payments enhance payments to private hospitals and provide incentives to serve the newly-eligible adults, while the sunset of certain supplemental payments is done to avoid overlapping payments. The analysis herein of these three components is based on several different data sources that may not be directly comparable, but represents the Department of Planning and Budget's best estimate of the benefits and costs.

Coverage Assessment and Rate Assessment. The two assessments fund the non-federal share of expansion and the new supplemental payments instead of appropriating general funds. Accordingly, no general funds are associated with these assessments. Separate funds have been established; one for the coverage assessment, and one for the rate assessment. More specifically, the coverage assessment generates funds to cover the non-federal share of the full cost of Medicaid coverage for newly eligible individuals, including the administrative costs of collecting the assessment and implementing and operating Medicaid expansion. In addition, the rate assessment generates funds to cover: (a) the increase in inpatient and outpatient rates paid to private acute care hospitals in Virginia up to the private hospital upper payment limit and managed care organization hospital payment gap, and (b) the administrative costs of collecting the assessment and of implementing and operating the associated rate actions.

The detailed mechanics of both assessments are set out in the budget items. Both are levied prospectively, and their magnitudes are determined by the following factors. For the coverage assessment, DMAS calculates each hospitals coverage assessment amount by multiplying the coverage assessment percentage by the net patient service revenue. The coverage assessment percentage is calculated as (i) 1.08 times the non-federal share of the full cost of expanded Medicaid coverage divided by (ii) the total net patient service revenue for hospitals subject to the assessment. Similarly, for the rate assessment each hospitals payment rate assessment amount is determined by multiplying the payment rate assessment percentage by the net patient service revenue. The payment rate assessment percentage for hospitals is calculated as (i) 1.08 times the non-federal share of funding the private acute care hospitals enhanced payments divided by (ii) the total net patient service revenue for hospitals subject to the assessment.

New Supplemental Inpatient and Outpatient Payments for Qualifying Private Acute Care Hospitals in Virginia. The 2018 Appropriation Act directs DMAS to provide supplemental inpatient and outpatient hospital payments to qualifying acute care hospitals up to the private hospital upper payment limit. The total supplemental payment is based on the difference between (a) the private hospital inpatient or outpatient upper payment limit (in 42 CFR 447.272, and 42 CFR 447.321, respectively) as approved by the Centers for Medicare and Medicaid Services and (b) all other Medicaid payments subject to such limit. DMAS has amended the State Plan for Medical Assistance to make supplemental payments to all qualifying hospitals.

Sunsetting Other Supplemental Payments for Private Acute Care Hospitals. In order to avoid overlapping supplemental payments, supplemental payments made to a limited group of private acute care hospitals were terminated on the date the new payments were effective. The supplemental payments that are sunset in this regulatory package were authorized by the 2017 Acts of Assembly, Chapter 836, Item 306.RRR.1. The hospitals affected are Sentara Norfolk General and Carilion Medical Center in Roanoke.

Fiscal Impact. In Fiscal Year (FY) 2019, $87.3 million and $143.7 million were collected from hospitals for coverage and rate assessments, respectively. Based on the most recent official forecast, and assuming $17.4 million in non-medical costs, the coverage assessments for FY 2020 through FY 2022 are estimated to be $278.3 million, $389.8 million, and $422.1 million, respectively.⁴ The rate assessment projections for the same time period are $444.7 million, $477.1 million, and $501 million.

While this regulatory action establishes the sole regulatory authority for the two assessments, it applies only to the fee-for-service portion of supplemental payments made to private acute care hospitals. The managed care portion of supplemental payment changes is addressed independently from this action, through amendments to contracts with managed care organizations that include a directed payment for qualifying hospitals. However, since the coverage and rate assessments are based on the total cost of expansion, including the services provided through both the fee-for-service and managed care delivery systems, an accurate assessment of the net impact on affected hospitals requires consideration of both the fee-for-service and managed care portions of the supplemental payments.

Including the managed care portion, the total supplemental payments made to these same hospitals were $292.6 million in FY 2019. This payment exceeds $231 million paid by private hospitals as a result of the coverage and rate assessments in FY 2019. Similarly, in FY 2020, affected hospitals are projected to pay an estimated $723 million for the coverage and rate assessments, but are projected to receive approximately $993.2 million in supplemental payments.⁵ Thus, it appears that the affected private acute care hospitals are better off with the proposed rules.

The sunset of supplemental payments for the two teaching hospitals would reduce the supplemental payments available specifically to those two hospitals by $101.8 million in FY 2019 and $135.7 million in FY 2020, in order to avoid overlapping with the payments newly available to them. However, according to DMAS, these two teaching hospitals saw the first and the second highest net gain in FY 2019 (i.e. payments received minus assessments paid were $36.6 and $22.9 million for the first and second places, respectively) of all hospitals statewide. Thus, these two hospitals also appear to be better off under the proposed rules despite the sunset of a portion of payments available to them.

Additionally, an intergovernmental transfer from Eastern Virginia Medical School and Virginia Tech was previously required to provide the non-state match for these teaching hospitals. Under the new rules, both hospitals can use the rate assessment funds to draw down the federal match, thereby eliminating the need for the intergovernmental transfer and the resulting dependency on another governmental entity.

Other Effects of Expansion. Generally available research finds that Medicaid expansion in other states is linked to: gains in coverage; improvements in access, financial security, and some measures of health status/outcomes; and economic benefits for states and providers.⁶

In Virginia, according to DMAS, more than 327,000 members are enrolled in expansion as of November 1, 2019, and more than 375,000 members have been enrolled at some point since the beginning of Medicaid expansion. In the year prior to enrolling in Medicaid, two-thirds of new members went without needed medical care such as primary care, prescriptions, mental health care, substance abuse disorder treatment, and dental care; one in four of new members used the emergency room as their primary source of care. After Medicaid expansion, 80 percent of these new members received at least one type of medical care; and the expansion population has been diagnosed with more chronic conditions than the non-expansion population.

The economic benefits of Medicaid expansion in other states include reductions in uncompensated care costs for hospitals and clinics, and also gains in employment as well as growth in the labor market (with a minority of studies showing neutral effects in this area).⁷ Also, an increase in labor force productivity could be expected from a healthier population.

One of the most significant statewide economic impacts is due to the net inflow of federal funds into the Commonwealth. Medicaid expansion allows Virginia to draw down federal dollars for the newly covered population and the higher supplemental payments, which avoids an increase in costs to the state. For example, the federal government covered 93 percent of the cost of the expansion in calendar year 2019 and will cover 90 percent thereafter. These new federal funds represent a net injection into the state's economy.⁸ In other words, after 2019, Virginia entities would pay for only 10 percent of the full cost of expansion while bringing the remaining 90 percent of federal funds into the Commonwealth, thereby creating new demand for medical services, goods, and labor.

An injection of new demand into the economy creates further expansionary effects beyond the initial increase in spending through what is known as the multiplier effect. The multiplier effect refers to the increase in final income arising from any new injection of spending. Further economic expansion occurs because the initial new spending creates extra income, which further boosts spending, which in turn creates more income, and so on. In the end, a dollar of extra spending leads to an increase of more than a dollar of final income. For example, actual expansion expenditures were $866.7 million in FY 2019.⁹ Projected expansion expenditures for the current and the next two years are $3.1 billion, $3.7 billion, and $4.1 billion.¹⁰ Approximately 90 percent of these amounts represents new spending which is expected to trigger further expansionary effects through the multiplier mechanism.

Businesses and Other Entities Affected. There are 69 private acute care hospitals subject to the provider and rate assessments and that are affected by the supplemental payment changes. These hospitals would also experience an increase in demand for their services and goods as well as their administrative costs due to serving a larger population. Similarly, DMAS would see an increase in its administrative costs driven by a larger population.

There are 400,000 Virginians estimated to be eligible under Medicaid expansion. Of these, more than 327,000 members were enrolled in expansion as of November 1, 2019 and more than 375,000 members have enrolled at some point since the beginning of Medicaid expansion.

Localities¹¹ Affected.¹² Although the expansion is statewide and encompasses all localities, it likely disproportionately affects those localities who have higher percentages of adults lacking health insurance. Medicaid expansion does not impose costs on localities.

Projected Impact on Employment. Medicaid expansion likely increases the size and the productivity of the labor force due to gains in Virginia's health outcomes. The net inflow of funds into the Commonwealth would likely cause an increase in demand for labor due to additional demand for services and goods to cover the expansion population.

Effects on the Use and Value of Private Property. The state's financial responsibility for the expansion population is funded by the private acute care hospitals via the provider assessment. These acute care hospitals also fund the state's share of the funds needed to receive the maximum amount of supplemental payments. The negative effects of the two assessments are offset by the increased demand for their services, their reduced uncompensated care costs, and the increase in supplemental payments they receive.

Adverse Effect on Small Businesses:¹³ The proposed regulation does not appear to adversely affect small businesses.

______________________________

¹https://townhall.virginia.gov/l/ViewStage.cfm?stageid=8352

²Public hospitals, freestanding psychiatric and rehabilitation hospitals, children's hospitals, long-term care hospitals and critical access hospitals are excluded from the definition of private acute care hospitals.

³The 2019 Appropriation Act, Items 3-5.15, 3-5.16, and Item 303.XX 6 c carried forward substantially the same instructions.

⁴Source: Official Consensus Medicaid Forecast, available at: https://rga.lis.virginia.gov/Published/2019/RD504/PDF.

⁵The payments in the first four months of FY 2019 are annualized to calculate the $993.2 million (i.e. $331.1 million times three.)

⁶https://www.kff.org/medicaid/issue-brief/the-effects-of-medicaid-expansion-under-the-aca-updated-findings-from-a-literature-review-august-2019/

⁷Ibid.

⁸The federal government may use a variety of strategies to fund the federal portion of the funding some of which may have a contractionary impact at the national level. However, potential nationwide economic effects are not considered in this analysis as the focus is on Virginia's economic activity.

⁹https://www.dmas.virginia.gov/files/links/4167/DMAS SFY19 FM 12 June Medical Accuracy Report.pdf

¹⁰Source: Official Consensus Medicaid Forecast.

¹¹Locality 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.

¹²§ 2.2-4007.04 defines particularly affected as bearing disproportionate material impact.

¹³Pursuant 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.

Agency's Response to Economic Impact Analysis: The agency has reviewed the economic impact analysis prepared by the Department of Planning and Budget and raises no issues with this analysis.

Summary:

The amendments (i) authorize the Department of Medical Assistance Services to levy assessments upon private acute care hospitals operating in Virginia to fund new Medicaid coverage for adults as well as new Medicaid hospital supplemental payments, (ii) establish new supplemental inpatient and outpatient payments for qualifying private acute care hospitals in Virginia, and (iii) sunset supplemental payments made to certain private teaching hospitals to avoid overlapping supplemental payments. The amendments are required by §§ 3-5.15 and 3-5.16 and Item 303 XX 6 c of the 2018 Appropriation Act (Chapter 2 of the 2018 Acts of Assembly, Special Session I).

12VAC30-70-411. Supplemental payments for certain teaching hospitals.

A. Effective for dates of service on or after July 1, 2017, quarterly supplemental payments will be issued to qualifying private hospitals for inpatient services rendered during the quarter. These quarterly supplemental payments will cease for dates of service on or after October 1, 2018.

B. Qualifying criteria. Qualifying hospitals are the primary teaching hospitals affiliated with a Liaison Committee on Medical Education (LCME) accredited medical school located in Planning District 23 that is a political subdivision of the Commonwealth and an LCME accredited medical school located in Planning District 5 that has a partnership with a public university.

C. Reimbursement methodology. Each qualifying hospital shall receive quarterly supplemental payments for the inpatient services rendered during the quarter equal to the difference between the hospital's Medicaid payments and the hospital's disproportionate share limit (Omnibus Budget Reconciliation Act 93 disproportionate share hospital limit) for the most recent year for which the disproportionate share limit has been calculated divided by four. The supplemental payment amount will be determined prior to the beginning of the fiscal year.

D. Limit. Maximum aggregate payments to all qualifying hospitals shall not exceed the available upper payment limit per state fiscal year (SFY). In SFY 2019, the upper payment limit shall be prorated for the time period these supplemental payments are in effect.

12VAC30-70-429. Supplemental payments for private acute care hospitals.

A. Starting October 1, 2018, supplemental payments will be issued to qualifying hospitals for inpatient services provided to Medicaid patients.

B. Definitions. The following words and terms when used in this section shall have the following meanings unless otherwise stated:

"Acute care hospital" means any hospital that provides emergency medical services on a 24-hour basis.

"Children's hospital" means a hospital (i) whose inpatients are predominantly younger than 18 years of age and (ii) that is excluded from the Medicare prospective payment system pursuant to the Social Security Act.

"Critical access hospital" means a facility that meets the requirements of the State Medicare Rural Hospital Flexibility Program, 42 USC § 1395i-4, for such designation.

"Freestanding psychiatric and rehabilitation hospital" means a freestanding psychiatric hospital, which means a hospital that provides services consistent with 42 CFR 482.60, or a freestanding rehabilitation hospital, which means a hospital that provides services consistent with 42 CFR 482.56.

"Hospital" means a medical care facility licensed as an inpatient hospital or outpatient surgical center by the Department of Health or as a psychiatric hospital by the Department of Behavioral Health and Developmental Services.

"Long-stay hospital" means specialty facilities that serve individuals receiving medical assistance who require a higher intensity of nursing care than that which is normally provided in a nursing facility and who do not require the degree of care and treatment that an acute care hospital is designed to provide.

"Long-term acute care hospital" or "LTACH" means an inpatient hospital that provides care for patients who require a length of stay greater than 25 days and is, or proposes to be, certified by CMS as a long-term care inpatient hospital pursuant to 42 CFR Part 412. A LTACH may be either a freestanding facility or located within an existing or host hospital.

"Public hospital" means a hospital that is solely owned by a government or governmental entity.

"Supplemental payment" or "private acute care enhanced payment" means an increased payment to a qualifying hospital up to the upper payment limit gap from the Health Care Provider Rate Assessment Fund as authorized in the 2018 and 2019 Appropriation Acts.

"Upper payment limit" means the limit on payment for inpatient services for recipients of medical assistance established in accordance with 42 CFR 447.272, and on payment for outpatient services for recipients of medical assistance pursuant to 42 CFR 447.321 for private hospitals. The limit applies only to fee-for-service claims.

"Upper payment limit gap" or "UPL gap" means the difference between the amount of the private acute care hospital upper payment limits estimated for the State Plan rate year using the latest available cost report data, and the amount estimated that would otherwise be paid for the same State Plan rate year pursuant to the State Plan reimbursement methodology for inpatient and outpatient services. The upper payment limit gap shall be updated annually for each rate year.

C. Qualifying criteria. Qualifying hospitals are all in-state private acute care hospitals, excluding public hospitals, freestanding psychiatric and rehabilitation hospitals, children's hospitals, long-stay hospitals, long-term acute care hospitals, and critical access hospitals.

D. Reimbursement methodology. The supplemental payment shall equal inpatient hospital claim payments times the UPL gap percentage.

1. The UPL gap percentage is the percentage calculated when the numerator is the upper payment limit gap for inpatient services for private hospitals and the denominator is Medicaid claim payments to all qualifying hospitals for inpatient hospital services provided to Medicaid patients in the same year used in the numerator.

2. The UPL gap percentage will be calculated annually.

E. Quarterly payments. After the close of each quarter, beginning with the quarter ending December 31, 2018, each qualifying hospital shall receive supplemental payments for the inpatient services paid during that quarter. The supplemental payments for each qualifying hospital for each quarter shall be calculated based on the Medicaid inpatient hospital payments paid in that quarter multiplied by the UPL gap percentage.

12VAC30-80-20. Services that are reimbursed on a cost basis.

A. Payments for services listed in this section shall be on the basis of reasonable cost following the standards and principles applicable to the Title XVIII Program with the exception provided for in subdivision D 1 e of this section. The upper limit for reimbursement shall be no higher than payments for Medicare patients in accordance with 42 CFR 447.321. In no instance, however, shall charges for beneficiaries of the program be in excess of charges for private patients receiving services from the provider. The professional component for emergency room physicians shall continue to be uncovered as a component of the payment to the facility.

B. Reasonable costs will be determined from the filing of a uniform Centers for Medicare and Medicaid Services-approved cost report by participating providers. The cost reports are due not later than 150 days after the provider's fiscal year end. If a complete cost report is not received within 150 days after the end of the provider's fiscal year, DMAS or its designee shall take action in accordance with its policies to assure that an overpayment is not being made. All cost reports shall be reviewed and reconciled to final costs within 180 days of the receipt of a completed cost report. The cost report will be judged complete when DMAS has all of the following:

1. Completed cost reporting form provided by DMAS, with signed certification;

2. The provider's trial balance showing adjusted journal entries;

3. The provider's financial statements including a balance sheet, a statement of income and expenses, a statement of retained earnings (or fund balance), and a statement of changes in financial position;

4. Schedules that reconcile financial statements and trial balance to expenses claimed in the cost report;

5. Depreciation schedule or summary;

6. Home office cost report, if applicable; and

7. Such other analytical information or supporting documents requested by DMAS when the cost reporting forms are sent to the provider.

C. Item 398 D of the 1987 Appropriation Act (as amended), effective April 8, 1987, eliminated reimbursement of return on equity capital to proprietary providers.

D. The services that are cost reimbursed are:

1. For dates of service prior to January 1, 2014, outpatient hospital services, including rehabilitation hospital outpatient services and excluding laboratory services.

a. Definitions. The following words and terms when used in this section shall have the following meanings when applied to emergency services unless the context clearly indicates otherwise:

"All-inclusive" means all emergency department and ancillary service charges claimed in association with the emergency room visit, with the exception of laboratory services.

"DMAS" means the Department of Medical Assistance Services consistent with Chapter 10 (§ 32.1-323 et seq.) of Title 32.1 of the Code of Virginia.

"Emergency hospital services" means services that are necessary to prevent the death or serious impairment of the health of the recipient. The threat to the life or health of the recipient necessitates the use of the most accessible hospital available that is equipped to furnish the services.

"Recent injury" means an injury that has occurred less than 72 hours prior to the emergency department visit.

b. Scope. DMAS shall differentiate, as determined by the attending physician's diagnosis, the kinds of care routinely rendered in emergency departments and reimburse for nonemergency care rendered in emergency departments at a reduced rate.

(1) With the exception of laboratory services, DMAS shall reimburse at a reduced and all-inclusive reimbursement rate for all services rendered in emergency departments that DMAS determines were nonemergency care.

(2) Services determined by the attending physician to be emergencies shall be reimbursed under the existing methodologies and at the existing rates.

(3) Services performed by the attending physician that may be emergencies shall be manually reviewed. If such services meet certain criteria, they shall be paid under the methodology for subdivision 1 b (2) of this subsection. Services not meeting certain criteria shall be paid under the methodology of subdivision 1 b (1) of this subsection. Such criteria shall include:

(a) The initial treatment following a recent obvious injury.

(b) Treatment related to an injury sustained more than 72 hours prior to the visit with the deterioration of the symptoms to the point of requiring medical treatment for stabilization.

(c) The initial treatment for medical emergencies including indications of severe chest pain, dyspnea, gastrointestinal hemorrhage, spontaneous abortion, loss of consciousness, status epilepticus, or other conditions considered life threatening.

(d) A visit in which the recipient's condition requires immediate hospital admission or the transfer to another facility for further treatment or a visit in which the recipient dies.

(e) Services provided for acute vital sign changes as specified in the provider manual.

(f) Services provided for severe pain when combined with one or more of the other guidelines.

(4) Payment shall be determined based on ICD diagnosis codes and necessary supporting documentation. As used here, the term "ICD" is defined in 12VAC30-95-5.

(5) DMAS shall review on an ongoing basis the effectiveness of this program in achieving its objectives and for its effect on recipients, physicians, and hospitals. Program components may be revised subject to achieving program intent, the accuracy and effectiveness of the ICD code designations, and the impact on recipients and providers. As used here, the term "ICD" is defined in 12VAC30-95-5.

c. Limitation of allowable cost. Effective for services on and after July 1, 2003, reimbursement of Type Two hospitals for outpatient services shall be at various percentages as noted in subdivisions 1 c (1) and 1 c (2) of this subsection of allowable cost, with cost to be determined as provided in subsections A, B, and C of this section. For hospitals with fiscal years that do not begin on July 1, outpatient costs, both operating and capital, for the fiscal year in progress on that date shall be apportioned between the time period before and the time period after that date, based on the number of calendar months in the cost reporting period, falling before and after that date.

(1) Type One hospitals.

(a) Effective July 1, 2003, through June 30, 2010, hospital outpatient operating reimbursement shall be at 94.2% of allowable cost and capital reimbursement shall be at 90% of allowable cost.

(b) Effective July 1, 2010, through September 30, 2010, hospital outpatient operating reimbursement shall be at 91.2% of allowable cost and capital reimbursement shall be at 87% of allowable cost.

(c) Effective October 1, 2010, through June 30, 2011, hospital outpatient operating reimbursement shall be at 94.2% of allowable cost and capital reimbursement shall be at 90% of allowable cost.

(d) Effective July 1, 2011, hospital outpatient operating reimbursement shall be at 90.2% of allowable cost and capital reimbursement shall be at 86% of allowable cost.

(2) Type Two hospitals.

(a) Effective July 1, 2003, through June 30, 2010, hospital outpatient operating and capital reimbursement shall be 80% of allowable cost.

(b) Effective July 1, 2010, through September 30, 2010, hospital outpatient operating and capital reimbursement shall be 77% of allowable cost.

(c) Effective October 1, 2010, through June 30, 2011, hospital outpatient operating and capital reimbursement shall be 80% of allowable cost.

(d) Effective July 1, 2011, hospital outpatient operating and capital reimbursement shall be 76% of allowable cost.

d. The last cost report with a fiscal year end on or after December 31, 2013, shall be used for reimbursement for dates of service through December 31, 2013, based on this section. Reimbursement shall be based on charges reported for dates of service prior to January 1, 2014. Settlement will be based on four months of runout from the end of the provider's fiscal year. Claims for services paid after the cost report runout period will not be settled.

e. Payment for direct medical education costs of nursing schools, paramedical programs, and graduate medical education for interns and residents.

(1) Direct medical education costs of nursing schools and paramedical programs shall continue to be paid on an allowable cost basis.

(2) Effective with cost reporting periods beginning on or after July 1, 2002, direct graduate medical education (GME) costs for interns and residents shall be reimbursed on a per-resident prospective basis. See 12VAC30-70-281 for prospective payment methodology for graduate medical education for interns and residents.

2. Rehabilitation agencies or comprehensive outpatient rehabilitation.

a. Effective July 1, 2009, rehabilitation agencies or comprehensive outpatient rehabilitation facilities that are operated by community services boards or state agencies shall be reimbursed their costs. For reimbursement methodology applicable to all other rehabilitation agencies, see 12VAC30-80-200.

b. Effective October 1, 2009, rehabilitation agencies or comprehensive outpatient rehabilitation facilities operated by state agencies shall be reimbursed their costs. For reimbursement methodology applicable to all other rehabilitation agencies, see 12VAC30-80-200.

3. Supplement payments to Type One hospitals for outpatient services.

a. In addition to payments for services set forth elsewhere in the State Plan, DMAS makes supplemental payments to qualifying state government owned or operated hospitals for outpatient services furnished to Medicare members on or after July 1, 2010. To qualify for a supplement payment, the hospital must be part of the state academic health system or part of an academic health system that operates under a state authority.

b. The amount of the supplemental payment made to each qualifying hospital shall be equal to the difference between the total allowable cost and the amount otherwise actually paid for the services by the Medicaid program based on cost settlement.

c. Payment for furnished services under this section shall be paid at settlement of the cost report.

4. Supplemental payments for private hospital partners of Type One hospitals. Effective for dates of service on or after October 25, 2011, quarterly supplemental payments shall be issued to qualifying private hospitals for outpatient services rendered during the quarter. These quarterly supplemental payments will cease for dates of service on or after the effective date of State Plan amendments authorizing increased payments to qualifying hospitals from the Health Care Provider Rate Assessment Fund established pursuant to § 32.1-331.02 of the Code of Virginia and approved by the Centers for Medicare and Medicaid Services.

a. In order to qualify for the supplemental payment, the hospital shall be enrolled currently as a Virginia Medicaid provider and shall be owned or operated by a private entity in which a Type One hospital has a nonmajority interest.

b. Reimbursement methodology.

(1) Hospitals not participating in the Medicaid disproportionate share hospital (DSH) program shall receive quarterly supplemental payments for the outpatient services rendered during the quarter. Each quarterly payment distribution shall occur not more than two years after the year in which the qualifying hospital's entitlement arises. The annual supplemental payments in a fiscal year shall be the lesser of:

(a) The difference between each qualifying hospital's outpatient Medicaid billed charges and Medicaid payments the hospital receives for services processed for fee-for-service Medicaid individuals during the fiscal year; or

(b) $1,894 per Medicaid outpatient visit for state plan rate year 2012. For future state plan rate years, this number shall be adjusted by inflation based on the Virginia moving average values as compiled and published by Global Insight (or its successor) under contract with the department.

(2) Hospitals participating in the DSH program shall receive quarterly supplemental payments for the outpatient services rendered during the quarter. Each quarterly payment distribution shall occur not more than two years after the year in which the qualifying hospital's entitlement arises. The annual supplemental payments in a fiscal year shall be the lesser of:

(a) The difference between each qualifying hospital's outpatient Medicaid billed charges and Medicaid payments the hospital receives for services processed for fee-for-service Medicaid individuals during the fiscal year;

(b) $1,894 per Medicaid outpatient visit for state plan rate year 2012. For future state plan rate years, this number shall be adjusted by inflation based on the Virginia moving average values as compiled and published by Global Insight (or its successor) under contract with the department; or

(c) The difference between the limit calculated under § 1923(g) of the Social Security Act and the hospital's DSH payments for the applicable payment period.

c. Limit. Maximum aggregate payments to all qualifying hospitals in this group shall not exceed the available upper payment limit per state fiscal year.

5. Supplemental outpatient payments for non-state-government-owned hospitals. Effective July 1, 2018, supplemental payments will be issued to qualifying non-state-government-owned hospitals for outpatient services provided to Medicaid patients.

a. Qualifying hospitals are all non-state-government-owned acute care hospitals.

b. The supplemental payment shall equal outpatient hospital claim payments times the upper payment limit (UPL) gap percentage.

(1) The annual UPL gap percentage is the percentage calculated where the numerator is the difference for each qualifying hospital between a reasonable estimate of the amount that would be paid under Medicare payment principles for outpatient hospital services provided to Medicaid patients, as calculated in accordance with 42 CFR 447.321, and what Medicaid paid for such services, and the denominator is Medicaid claim payments to all qualifying hospitals for outpatient hospital services provided to Medicaid patients in the same year used in the numerator.

(2) The annual UPL gap percentage will be calculated annually for each hospital using the most recent year for which comprehensive annual data are available and inflated to the state fiscal year for which payments are to be made.

6. Quarterly payments. After the close of each quarter, beginning with the July 1, 2018, to September 30, 2018, quarter, each qualifying hospital shall receive supplemental payments for the outpatient services paid during the prior quarter. The supplemental payments for each qualifying hospital for each quarter shall be calculated by multiplying the Medicaid outpatient hospital payments paid in that quarter by the annual UPL gap percentage for each hospital.

7. Supplemental outpatient payments for private acute care hospitals. Starting October 1, 2018, supplemental payments will be issued to qualifying private hospitals for outpatient services provided to Medicaid patients.

a. Definitions. See definitions in 12VAC30-70-429.

b. Qualifying criteria. Qualifying hospitals are all in-state private acute care hospitals, excluding public hospitals, freestanding psychiatric and rehabilitation hospitals, children's hospitals, long-stay hospitals, long-term acute care hospitals, and critical access hospitals. A qualifying hospital is the same as a "covered hospital" in § 32.1-331.02 of the Code of Virginia.

c. Reimbursement methodology. The supplemental payment shall equal outpatient hospital claim payments times the UPL gap percentage.

(1) The UPL gap percentage is the percentage calculated where the numerator is the UPL gap for outpatient services for private hospitals and the denominator is Medicaid claim payments to all qualifying hospitals for outpatient hospital services provided to Medicaid patients in the same year used in the numerator.

(2) The UPL gap percentage will be calculated annually.

d. Quarterly payments. After the close of each quarter, beginning with the quarter ending December 31, 2018, each qualifying hospital shall receive supplemental payments for the outpatient services paid during that quarter. The supplemental payments for each qualifying hospital for each quarter shall be calculated based on the Medicaid outpatient hospital payments paid in that quarter multiplied by the UPL gap percentage.

Chapter 160

Hospital Assessment

12VAC30-160-10. Hospital assessment.

A. Authority. The Department of Medical Assistance Services (DMAS) is authorized to levy a Health Care Coverage Assessment and a Health Care Provider Payment Rate Assessment upon private acute care hospitals operating in Virginia in accordance with §§ 32.1-331.01 and 32.1-331.02 of the Code of Virginia and §§ 3-5.15, 3-5.16, and 4-14 as revised by the 2019 Appropriation Act.

B. Definitions. The following words and terms when used in this section shall have the following meanings unless otherwise stated:

"Covered hospital" means any in-state private acute care hospital other than a hospital classified as a public hospital, freestanding psychiatric and rehabilitation hospital, children's hospital, long-stay hospital, long-term acute care hospital, or critical access hospital.

"Full cost of expanded Medicaid coverage" means (i) any and all Medicaid expenditures related to individuals eligible for Medicaid pursuant to 42 U.S.C. 1396d(y)(1) (2010) of the Patient Protection and Affordable Care Act, including any federal actions or repayments and (ii) all administrative costs associated with providing coverage, which includes the costs of administering the provisions of the 1115 waiver, and collecting the coverage assessment.

"Managed care organization," "MCO," or "Medicaid MCO" means an entity that meets the participation and solvency criteria defined in 42 CFR Part 438 and has an executed contractual agreement with DMAS to provide services covered under a mandatory managed care program.

"Managed care organization hospital payment gap" means the difference between the amount included in the capitation rates for inpatient and outpatient services for the contract year based on historical paid claims and the amount that would be included when the projected hospital services furnished by private acute care hospitals operating in Virginia are priced for the contract year equivalent to the fee-for-service upper payment limit subject to CMS approval under 42 CFR 438.6(c). The managed care organization hospital payment gap shall be updated annually for each contract year.

"Managed care organization supplemental hospital capitation payment adjustment" means the additional amount added to Medicaid MCO capitation rates to pay the Medicaid managed care organization hospital payment gap to qualifying private acute care hospitals for services to Medicaid recipients.

"Net patient service revenue" means the amount each hospital reported in the most recent Virginia Health Information Hospital Detail Report as of December 15 of each year excluding any nonhospital revenue that meets the requirements in subsection C of this section.

"Newly eligible individual" means an individual described in 42 USC § 1396a(a)(10)(A)(i)(VIII).

"Private acute care hospital" means acute care hospitals, excluding public hospitals, freestanding psychiatric and rehabilitation hospitals, children's hospitals, long-stay hospitals, long-term acute care hospitals, and critical access hospitals.

"Provider payment rate costs" means the upper payment limit gap and the managed care organization hospital payment gap.

"Upper payment limit" means the limit on payment for inpatient services for recipients of medical assistance established in accordance with 42 CFR 447.272 and on payment for outpatient services for recipients of medical assistance pursuant to 42 CFR 447.321 for private hospitals. This limit applies only to fee-for-service claims.

"Upper payment limit gap" means the difference between the amount of the private acute care hospital upper payment limits estimated for the State Plan rate year using the latest available cost report data and the amount estimated that would otherwise be paid for that same State Plan rate year pursuant to the State Plan for inpatient and outpatient services. The supplemental payment methodology from the Health Care Provider Payment Rate Fund to qualifying hospitals for inpatient services is described in 12VAC30-70-429 and for outpatient services is described in 12VAC30-80-20. The upper payment limit gap shall be updated annually for each State Plan rate year.

C. Nonhospital revenue that should be excluded from a hospital's net patient service revenue as reported to the Virginia Health Information (VHI) Hospital Detail Report must be reported to DMAS by April 1 of each year. The hospital's chief financial officer must certify any changes to the data reported to VHI.

D. Health care coverage assessment. Private acute care hospitals operating in Virginia shall pay a provider coverage assessment beginning on or after October 1, 2018.

1. DMAS will calculate each hospital's coverage assessment by multiplying the coverage assessment percentage times net patient service revenue.

2. The coverage assessment percentage is calculated as (i) 1.08 times the nonfederal share of the full cost of expanded Medicaid coverage for newly eligible individuals under 42 USC § 1396d(y)(1) (as inserted by § 2001 of the Patient Protection and Affordable Care Act (P.L. 111-148 as amended by P.L. 111-152)) divided by (ii) the total net patient service revenue for hospitals subject to the assessment.

3. DMAS shall, at a minimum, update the "coverage assessment amount" to be effective on January 1 of each year. DMAS is further authorized to update the "coverage assessment amount " on a quarterly basis to ensure amounts are sufficient to cover the full cost of expanded Medicaid coverage based on the latest estimate. Hospitals shall be given no less than 30 days' notice prior to a change in their coverage assessment amount, and shall be provided with associated calculations. Prior to any change to the coverage assessment amount, DMAS shall perform and incorporate a reconciliation of the Health Care Coverage Assessment Fund. Any estimated excess or shortfall of revenue since the previous reconciliation shall be deducted from or added to the "full cost of expanded Medicaid coverage" for the updated coverage assessment amount.

4. The "full cost of expanded Medicaid coverage" shall be updated (i) on November 1 of each year based on the official Medicaid forecast and latest administrative cost estimates developed by DMAS; (ii) no more than 30 days after the enactment of any Appropriation Act to reflect policy changes adopted by the latest session of the General Assembly; and (iii) on March 1 of any year in which DMAS estimates that the most recent non-federal share of the "full cost of expanded Medicaid coverage" multiplied by 1.08 will be insufficient to pay all expenses for the full cost of expanded Medicaid coverage.

5. The coverage assessment shall be used only to cover the nonfederal share of the full cost of expanded Medicaid coverage.

6. Hospitals subject to the coverage assessment shall make quarterly payments to DMAS equal to 25% of the annual coverage assessment amount. The assessment payments are due not later than the first day of each quarter. In the first year, the first coverage assessment payment shall be due on or after October 1, 2018. Hospitals that fail to make the coverage assessment payments within 30 days of the due date shall incur a 5.0% penalty that shall be deposited into the Virginia Health Care Fund. Any unpaid coverage assessment or penalty will be considered a debt to the Commonwealth, and DMAS is authorized to recover it as such.

E. Health care provider payment rate assessment. Private acute care hospitals operating in Virginia shall pay a provider payment rate assessment beginning on or after October 1, 2018.

Proceeds from the provider payment rate assessment shall be disbursed to fund an increase in inpatient and outpatient payment rates paid to private acute care hospitals operating in Virginia up to the upper payment limit and the managed care organization hospital payment gap for care provided to recipients of medical assistance services.

1. DMAS will calculate each hospital's payment rate assessment by multiplying the payment rate assessment percentage times net patient service revenue.

2. The payment rate assessment percentage for covered hospitals will be calculated as (i) 1.08 times the nonfederal share of funding the upper payment limit gap and the managed care organization hospital payment gap divided by (ii) the total net patient service revenue for covered hospitals.

3. DMAS is authorized to update the payment rate assessment amount on a quarterly basis to ensure amounts are sufficient to cover the full cost of the private acute care hospital enhanced payments based on the latest estimate. Hospitals shall be given no less than 30 days prior notice of the new assessment amount and be provided with calculations. Prior to any change to the payment rate assessment amount, DMAS shall perform and incorporate a reconciliation of the Health Care Provider Payment Rate Assessment Fund. Any estimated excess or shortfall of revenue since the previous reconciliation shall be deducted from or added to the calculation of the private acute care hospital enhanced payments.

4. As part of the development of the managed care capitation rates, DMAS shall calculate a managed care organization supplemental hospital capitation payment adjustment. This is a distinct additional amount added to Medicaid MCO capitation rates to pay the managed care organization hospital payment gap as supplemental payments to covered private acute care hospitals operating in Virginia for services to Medicaid recipients. DMAS shall make available quarterly a report of the additional capitation payments that are made to each MCO.

5. Hospitals subject to the assessment shall make quarterly payments to DMAS equal to 25% of the annual provider payment rate assessment amount. The assessment payments are due not later than the first day of each quarter. In the first year, the first assessment payment shall be due on or after October 1, 2018. Hospitals that fail to make the assessment payments within 30 days of the due date shall incur a 5.0% penalty that shall be deposited into the Virginia Health Care Fund. Any unpaid assessment or penalty will be considered a debt to the Commonwealth, and DMAS is authorized to recover it as such.

F. Collection of the assessments. DMAS is responsible for collecting the assessments.

1. All revenue from the coverage assessment, excluding penalties shall be deposited into a special nonreverting fund to be known as the Health Care Coverage Assessment Fund pursuant to § 32.1-331.01 of the Code of Virginia. Proceeds from the Health Care Coverage Assessment Fund shall not be used for any other purpose than to cover the nonfederal share of the full cost of enhanced Medicaid coverage.

2. All revenue from the provider payment rate assessment, excluding penalties, shall be deposited into a special nonreverting fund to be known as the Health Care Provider Payment Rate Assessment Fund pursuant to § 32.1-331.02 of the Code of Virginia. Proceeds from the Health Care Provider Payment Rate Assessment Fund shall not be used for any other purpose than to fund an increase in inpatient and outpatient payment rates paid to private acute care hospitals operating in Virginia up to the private hospital upper payment limit or managed care organization hospital payment gap for care provided to recipients of medical assistance services and the administrative costs of collecting the assessment and of implementing and operating the associated payment rate actions.

3. DMAS will submit reports as required by the Appropriations Act. The reports will include, for the most recently completed state fiscal year, the revenue collected from each assessment, expenditures for purposes covered by each assessment, and the year-end assessment balances in each special nonreverting fund. The report shall include a complete and itemized list of all administrative costs included in the coverage assessment.

G. Appeal. A covered hospital may appeal a DMAS action that falls within the definition of agency action under the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia), including DMAS's interpretation and application of assessment methodologies. The assessment methodologies cannot be appealed.

1. Appeals will be conducted in accordance with the provider appeal regulations (12VAC30-20).

2. A covered hospital shall be considered a "provider" for purposes of the appeal procedures set forth in the provider appeal regulations.

Title of Regulation: 12VAC35-225. Requirements for Virginia Early Intervention System (amending 12VAC35-225-240, 12VAC35-225-260, 12VAC35-225-280, 12VAC35-225-420).

Statutory Authority: § 2.2-5304 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: May 12, 2021.

Effective Date: May 28, 2021.

Agency Contact: Catherine Hancock, Part C Administrator, Department of Behavioral Health and Developmental Services, 1220 Bank Street, Richmond, VA 23218, telephone (804) 371-6592, FAX (804) 371-7959, TDD (804) 371-8977, or email catherine.hancock@dbhds.virginia.gov.

Basis: The department has the legal authority to promulgate these regulations under § 2.2-5304 of the Code of Virginia and in Item 322 H 1 and H 2 of Chapter 56 of the 2020Acts of Assembly, Special Session 1. In addition, these regulations implement Part C of the Individuals with Disabilities Education Act at 20 USC § 1435(a) and at 34 CFR Part 303 in Virginia.

Purpose: This action is part of the regular review cycle. Since the regulation was initially promulgated, it was determined that further clarity was needed to specify that the Medicaid appeals process is different from the Early Intervention Part C dispute resolution process. Additionally, since the Department of Medical Assistance Services included Early Intervention Part C services within managed care, procedures for provider enrollment with Medicaid and obtaining parental consent for billing Medicaid and the managed care entities were added. The intent of the regulatory revisions is to clarify processes and inform stakeholders of information necessary to provide services to infants, toddlers, and their families.

Rationale for Using Fast-Track Rulemaking Process: The regulatory changes are not expected to be controversial as the new language clarifies procedures currently in place. Beyond the new language, the regulation, in large part, implements federal code and regulations so there is limited ability to make amendments to the Virginia regulations.

Substance: Changes (i) add language to state that consent from the parent must be obtained for the Medicaid managed care entity in order to bill for services; (ii) add language that the parent has the right to withdraw consent to disclose the infant or toddler's personally identifiable information to Medicaid and the Medicaid managed care entity; (iii) clarify that providers must enroll with the Medicaid managed care entity; and (iv) add language that differentiates between the Medicaid appeals process and the Early Intervention Part C dispute resolution process.

Issues: The primary advantages of the changes to the public are that families, program providers, and other stakeholders will be clear about procedures for appeals with descriptions of both the Early Intervention Dispute Resolution process and the Medicaid appeals process. Since the Department of Medical Assistance Services recently included Early Intervention Part C services in managed, these changes help to ensure that the Commonwealth makes appropriate decisions regarding Part C funding while also receiving allowable appeals within the managed care framework.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The State Board of Behavioral Health and Developmental Services (Board) proposes to amend 12VAC35-225 Requirements for Virginia Early Intervention System (regulation) in order to implement changes pursuant to a periodic review.¹ In particular, the board seeks to include managed care organizations (MCOs) in the current regulatory requirements for obtaining parental consent to bill Medicaid for Early Intervention Part C services and supports, clarify that Part C service providers enroll with MCOs as well as DMAS, and to clarify the Medicaid appeals process. The requirements for providers arise from MCO contracts and have been implemented by the Virginia Interagency Coordinating Council for Early Intervention Services.²

Background. Early Intervention Part C provides infants and toddlers (up to age three) who are found to have developmental delays with a wide range of services and supports based on the needs of the child and family.³ These services are broadly authorized by the Individuals with Disabilities Education Act, which was enacted by Congress in 1990 to ensure that children with disabilities are provided with free appropriate public education that is tailored to their individual needs.⁴ As part of Medicaid reform, the Department of Medical Assistance Services (DMAS) brought Part C services under managed care.⁵ As a result, DMAS reports that most children currently receiving Part C services are insured by MCOs that are contracted by DMAS to provide Medicaid coverage.

Subsequent to its periodic review of the regulation, the Board proposes to update the regulation to include references to MCOs in places that previously only referred to DMAS. Specifically, in section 240 Use of public benefits or public insurance, the Board seeks to clarify that parental consent regarding (disclosure of) the child's personal information would be required to bill the MCO or, if the child is not enrolled in managed care, to bill DMAS. Similarly, section 260 Written notification would be amended to clarify that parents must receive written notification regarding their right to withdraw consent for disclosure of their child's personally identifiable information to the MCO or, if the child is not enrolled in managed care, to DMAS.

Section 280 Provider billing for early intervention services would be amended to clarify that early intervention practitioners and case managers would have to enroll with the MCO as well as DMAS in order to receive reimbursement for Part C services. Since Part C services are already covered under managed care, most providers are likely already aware of this requirement. The proposed changes would conform the text of the regulation to current practice.

Lastly, the board also seeks to update section 420 Appeal to the Department of Medical Assistance Services to clarify that appeals to DMAS or MCOs are only applicable to Medicaid or FAMIS recipients seeking to contest service decisions. Other complaints regarding an early intervention provider's eligibility determination are covered under sections 380, 390 and 400, which remain unaffected by this regulatory action. In addition, section 420 would be changed to explicitly indicate that for individuals enrolled in a Medicaid MCO, the internal appeal process for the MCO must be exhausted or deemed exhausted before appealing to DMAS.

Estimated Benefits and Costs. The proposed amendments do not appear to change the costs to parents of children receiving Part C services, to providers of Part C services, or to the Commonwealth. To the extent that the proposed amendments serve to clarify the process for obtaining consent, the process for provider registration with Medicaid, or the Medicaid appeals process, the proposed changes would benefit parents as well as providers.

Businesses and Other Entities Affected. As mentioned above, families of children receiving Part C services as well as Part C service providers would be affected by the proposed amendments. The Department of Behavioral Health and Developmental Services contracts with 40 local lead agencies to facilitate the statewide implementation of early intervention services. These local agencies as well as their employees and contractors would be impacted by the proposed amendments, in that it would change the information they provide to the families they work with. However, the local agencies are unlikely to face any substantive new costs as a result.

Small Businesses⁶ Affected. Although some Part C service providers may be employed in a small business setting, the proposed amendments only serve to clarify the regulation and do not create any new costs.

Localities⁷ Affected.⁸ The proposed amendments do not introduce new costs for local governments and are unlikely to affect any locality in particular.

Projected Impact on Employment. The proposed amendments are unlikely to affect the overall number of employed Part C service providers.

Effects on the Use and Value of Private Property. The proposed amendments are unlikely to affect the use and value of private property. Real estate development costs are not affected.

_________________________________________

¹See https://townhall.virginia.gov/L/ViewPReview.cfm?PRid=1884.

²See http://www.infantva.org/wkg-vicc.htm Part C service providers make up 20% of council membership.

³See http://www.infantva.org/ovw-WhatIsPartC.htm.

⁴See https://sites.ed.gov/idea/about-idea/. Part C of the act applies to infants and toddlers while part B applies to children in educational environments; hence the early intervention services covered by this regulation are collectively referred to as Part C services.

⁵2013 Acts of Assembly Chapter 806 (Budget Bill) Item 307.RRRR.4: https://budget.lis.virginia.gov/item/2013/1/.

⁶Pursuant 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.

⁷Locality 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.

⁸§ 2.2-4007.04 defines particularly affected as bearing disproportionate material impact.

Agency's Response to Economic Impact Analysis: The agency concurs with Department of Planning and Budget's economic impact analysis.

Summary:

As a result of periodic review of the regulation, the amendments clarify the current Medicaid appeals process and the current requirements for obtaining parental consent to bill Medicaid managed care organizations for Early Intervention Part C services and supports.

12VAC35-225-240. Use of public benefits or public insurance.

A. Parents shall not be required to enroll in public benefits or public insurance programs as a condition of receiving early intervention services, and parental consent shall be required prior to using the public benefits and public insurance of a child or parent if that child or parent is not already enrolled in such a program.

B. Parental consent shall be obtained before the local lead agency or the early intervention service provider discloses, for billing purposes, a child's personally identifiable information to the child's assigned managed care organization, or if the child is not enrolled in managed care, to the Department of Medical Assistance Services.

C. In Virginia, use of a child's or parent's public benefits or public insurance to pay for early intervention services shall not:

1. Decrease available lifetime coverage or any other insured benefit for that child or parent under that program;

2. Result in the child's parents paying for services that would otherwise be covered by the public benefits or public insurance program;

3. Result in any increase in premiums or discontinuation of public benefits or public insurance for that child or his parents; or

4. Risk loss of eligibility for the child or that child's parents for home and community-based waivers based on aggregate health-related expenditures.

D. If the parent gives consent for use of his private insurance to pay for early intervention services for a child who is covered by private insurance and by either public benefits or public insurance, the parent shall be responsible for the costs associated with use of the private insurance, as specified in 12VAC35-225-250 E.

E. If the parent does not provide the consent to use or enroll in public benefits or public insurance or to disclose information to the child's assigned managed care organization, or if the child is not enrolled in managed care, to the Department of Medical Assistance Services for billing purposes, the local lead agency must still make available the early intervention services on the IFSP to which the parent has provided consent.

12VAC35-225-260. Written notification.

When obtaining parental consent for the provision of early intervention services or for use of public or private insurance or benefits, or both, the service coordinator shall ensure the parents receive written information on Virginia's system of payment policies, which includes the following:

1. Required notification to parents of children covered by Medicaid including:

a. Parental consent requirements in 12VAC35-225-240 B;

b. The cost protections in 12VAC35-225-240 C;

c. The local lead agency responsibility to offer the early intervention services to which the parent has provided consent even if the parent does not provide consent for use of public benefits or public insurance as specified in 12VAC35-225-240 E;

d. The parent's right to withdraw consent for disclosure, for billing purposes, of a child's personally identifiable information to the child's assigned managed care organization, or if the child is not enrolled in managed care, to the Department of Medical Assistance Services at any time; and

e. Categories of costs to parents as specified in 12VAC35-225-240 D;

2. Potential costs to the parent when their private insurance is used, which may include copayments, deductibles, premiums, or other long-term costs such as the loss of benefits because of annual or lifetime health insurance coverage caps under the insurance policy;

3. The payment system and schedule of sliding fees that may be charged to the parents for early intervention services;

4. The basis and amount of payments or fees;

5. Information on the determination of ability to pay and inability to pay, including when and how the determination is made;

6. Assurances regarding fees and service provision as specified in 12VAC35-225-230 A 1, A 3, A 4, and A 5;

7. The policy on failure to provide the required income information as specified in 12VAC35-225-230 A 6;

8. Policies regarding use of federal or state Part C funds to pay for costs such as insurance copayments or deductibles; and

9. Parent rights as specified in 12VAC35-225-230 C.

12VAC35-225-280. Provider billing for early intervention services.

A. In order to receive reimbursement from federal or state Part C funds as the payor of last resort, early intervention service providers shall:

1. Have a contractual relationship with the local early intervention system; and

2. Submit a contact log or contact notes to the local lead agency no later than the 21st of each month for all services provided in the previous month, including any service for which reimbursement is sought from Part C funds.

B. Early intervention service providers shall accept Medicaid reimbursement for medically necessary early intervention services as payment in full.

C. In order to bill Medicaid for early intervention services other than service coordination, the provider shall:

1. Be certified as an early intervention practitioner;

2. Enroll with the Department of Medical Assistance Services and Medicaid contracted managed care organizations as an early intervention provider;

3. Provide services to children who are determined eligible for early intervention services under Part C;

4. Provide covered services as listed on the child's IFSP and, with the exception of the assessment for service planning and IFSP meetings, services that are approved by a physician, physician's assistant, or nurse practitioner; and

5. Comply with all other applicable Department of Medical Assistance Services requirements.

D. In order to bill Medicaid for service coordination, the provider shall:

1. Be certified as an early intervention case manager;

2. Enroll with the Department of Medical Assistance Services and Medicaid contracted managed care organizations as an early intervention provider;

3. Deliver service coordination in accordance with a signed initial early intervention service coordination plan or a signed individualized family service plan (IFSP);

4. Provide at least one activity during the month being billed to the child, the family, service providers, or other organizations on behalf of the child or family in order to coordinate supports and services and assist the family in accessing needed resources and services;

5. Document the contact or communication completely and correctly in accordance with 12VAC35-225-180;

6. Make a phone, email, text, or face-to-face contact with the family at least one time every three calendar months, or document attempts of such contacts;

7. Ensure documented face-to-face interaction between the service coordinator and the family at the development of the initial IFSP and the annual IFSP along with documentation that the service coordinator observed the child during the calendar month that the IFSP meeting was held;

8. Submit the health status indicator questions to the child's physician every six months; and

9. Comply with all other applicable Department of Medical Assistance Services requirements.

E. Children who are dually enrolled in Virginia's early intervention system and in Medicaid or FAMIS shall receive service coordination under the early intervention targeted case management program.

12VAC35-225-420. Appeal to the Department of Medical Assistance Services.

A. In addition to the dispute resolution options described in this chapter, Medicaid or FAMIS recipients seeking to contest service decisions shall have the right to file an appeal with the Department of Medical Assistance Services when they disagree with certain actions. Actions that may be appealed include:

1. Disagreement about the child's eligibility for services;

2. The provision of early intervention services, including those listed on the IFSP; and

3. The frequency, length, and intensity of services in the IFSP.

B. To ensure this right to appeal, the service coordinator shall provide the family with written information on the appeals process, regardless of whether or not the family expresses agreement or disagreement, if the child is found ineligible; the local system is refusing to initiate a service the family is requesting or is refusing to provide a service at the frequency or length desired by the family; or a service is decreased or ended, unless the family requested the service be decreased or ended pursuant to federal and state Medicaid law. If the individual is enrolled in a Medicaid managed care organization or "MCO," the internal appeal process for the Medicaid MCO must be exhausted or deemed exhausted before appealing to the Department of Medical Assistance Services. Appeals to the Department of Medical Assistance Services are separate from the dispute resolution options available under this chapter and shall comply with applicable Department of Medical Assistance Services' regulations.

B. A notice of action meeting federal and state requirements must be issued to the individual explaining the basis for the action and the right to appeal.

C. Families shall follow all applicable Department of Medical Assistance Services requirements when filing an appeal.

Title of Regulation: 18VAC90-26. Regulations for Nurse Aide Education Programs (amending 18VAC90-26-10 through 18VAC90-26-70; adding 18VAC90-26-80, 18VAC90-26-90).

Statutory Authority: §§ 54.1-2400 and 54.1-3005 of the Code of Virginia.

Effective Date: May 12, 2021.

Agency Contact: Jay P. Douglas, R.N., Executive Director, Board of Nursing, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone (804) 367-4520, FAX (804) 527-4455, or email jay.douglas@dhp.virginia.gov.

Summary:

The amendments clarify and update the regulation for approval of nurse aide education programs, including (i) requiring instructors to have minimum of 12 hours of coursework and to take a refresher course every three years, (ii) requiring nurse aide education programs to follow the board-approved curriculum with the addition of training in mental health and substance abuse, (iii) requiring programs to have at least 140 hours of instruction by May 12, 2023, (iv) prohibiting the primary instructors at schools from assuming other duties within the school while onsite to instruct students, (v) requiring the certificate of completion to include specific information, (vi) requiring that all clinical sites must be within 50 miles of the educational program or have board approval, and (vii) moving requirements for advanced nurse programs into 18VAC90-26. Changes to the proposed regulation add an exception to the restriction on instructors assuming other duties on a case-by-case basis and refine the educational requirements for geriatric care for certified nursing aides .

Summary of Public Comments and Agency's Response: A summary of comments made by the public and the agency's response may be obtained from the promulgating agency or viewed at the office of the Registrar of Regulations.

18VAC90-26-10. Definitions.

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

"Approval" means the process by which the board evaluates and grants official recognition to a nurse aide education program.

"Board" means the Virginia Board of Nursing.

"Client" means a person receiving the services of a certified nurse aide, to include a patient in a health care facility or at home or a resident of a long-term care facility.

"Committee" means the Education Special Conference Committee, comprised of not less than two members of the board in accordance with § 2.2-4019 of the Code of Virginia.

"Conditional approval" means the time-limited status that results when a board-approved nurse aide education program has failed to maintain requirements as set forth in this chapter.

"Nurse aide education program" means a program designed to prepare nurse aides for certification.

"Nursing facility" means a licensed nursing home or an entity that is certified for Medicare or Medicaid long-term care reimbursement and licensed or certified by the Virginia Department of Health.

"Primary instructor" means a registered nurse who is responsible for teaching and evaluating the students enrolled in a nurse aide education program.

"Program coordinator" means a registered nurse who is administratively responsible and accountable for a nurse aide education program.

"Program provider" means an entity that conducts a board-approved nurse aide education program.

"Site visit" means a focused onsite review of the nurse aide education program by board staff for the purpose of evaluating program components, such as the physical location (skills lab, classrooms, learning resources) for obtaining program approval, change of location, or verification of noncompliance with this chapter or in response to a complaint.

"Survey visit" means a comprehensive onsite review of the nurse aide education program by board staff for the purpose of granting continued program approval. The survey visit includes the program's completion of a self-evaluation report prior to the visit as well as a board staff review of all program resources, including skills lab, classrooms, learning resources, and clinical facilities, and other components to ensure compliance with this chapter. Meetings with administration, instructional personnel, and students will occur on an as-needed basis.

18VAC90-26-20. Establishing and maintaining a nurse aide education program.

A. Establishing a nurse aide education program.

1. A program provider wishing to establish a nurse aide education program shall submit an a complete application to the board at least 90 days in advance of the expected opening date.

2. The application shall provide evidence of the ability of the institution to comply with subsection B of this section.

3. Initial approval Approval may be granted when all documentation of the program's compliance with requirements as set forth in subsection B of this section has been submitted and deemed satisfactory to the board and a site visit has been conducted. Advertisement of the program is authorized only after board approval has been granted.

4. If approval is denied, the program may request, within 30 days of the mailing of the decision, an informal conference to be convened in accordance with § 2.2-4019 of the Code of Virginia.

5. If denial is recommended following an informal conference, which is accepted by the board or a panel thereof, no further action will be required of the board unless the program requests a hearing before the board or a panel thereof in accordance with § 2.2-4020 and subdivision 11 of § 54.1-2400 of the Code of Virginia.

6. If the decision of the board or a panel thereof following a formal hearing is to deny initial approval, the program shall be advised of the right to appeal the decision to the appropriate circuit court in accordance with § 2.2-4026 of the Code of Virginia and Part 2A of the Rules of the Supreme Court of Virginia.

B. Maintaining an approved nurse aide education program. To maintain approval, the nurse aide education program shall:

1. Demonstrate evidence of compliance with the following essential elements:

a. Curriculum content and length as approved by the board and as set forth in subsection A of 18VAC90-26-40 and subsection C of 18VAC90-26-50.

b. Maintenance of qualified instructional personnel as set forth in 18VAC90-26-30.

c. Classroom facilities that meet requirements set forth in subsection D of 18VAC90-26-50.

d. Maintenance of records as set forth in subsection A of 18VAC90-26-50.

e. Skills training experience in a nursing facility that has not been subject to penalty or penalties as provided in 42 CFR 483.151(b)(2) (Medicare and Medicaid Programs: Nurse Aide Training and Competency Evaluation and Paid Feeding Assistants, October 1, 2013 edition) in the past two years. The foregoing shall not apply to a nursing facility that has received a waiver from the state survey agency in accordance with federal law. The use of a nursing facility in Virginia located 50 miles or more from the school shall require board approval.

f. Agreement that board representatives may make unannounced site visits to the program.

g. Financial support and resources sufficient to meet requirements of this chapter as evidenced by a copy of the current annual budget or a signed statement from the administration specifically detailing its financial support and resources.

h. Completion and submission of biennial onsite survey visit review reports and program evaluation reports as requested by the board within a timeframe specified by the board.

2. Impose no fee for any portion of the program on any nurse aide student who, on the date on which the nurse aide student begins the program, is either employed or has an offer of employment from a nursing facility.

3. Provide documentation that each student applying to or enrolled in such program has been given a copy of applicable Virginia law regarding criminal history records checks for employment in certain health care facilities, and a list of crimes that pose a barrier to such employment.

4. Report all substantive changes in subdivision 1 of this subsection within 10 days of the change to the board to include, but not be limited to, a change in the program coordinator, primary instructor, program ownership, physical location of the program, or licensure status of the clinical facility.

5. Provide each student with a copy of his certificate of completion as specified in 18VAVC90-26-50.

18VAC90-26-30. Requirements for instructional personnel.

A. Program coordinator.

1. Each program shall have a program coordinator who must be a registered nurse who holds a current, unrestricted license in Virginia or a multistate licensure privilege.

2. The program coordinator in a nursing facility based program may be the director of nursing services. The director of nursing services may shall assume the administrative responsibility and accountability for the nurse aide education program but shall not engage in the actual classroom and clinical teaching.

3. The primary instructor may be the program coordinator in any nurse aide education program.

4. The director of nursing services in a nursing facility-based program may serve as the program coordinator but shall not simultaneously engage in the actual classroom, skills laboratory, or clinical teaching while serving as the director of nursing services.

B. Primary instructor.

1. Qualifications. Each program shall have a primary instructor who does the majority of the actual teaching of the students and who shall:

a. Hold a current, unrestricted Virginia license or a multistate licensure privilege as a registered nurse who holds a current, unrestricted license in Virginia or a multistate licensure privilege; and

b. Have two years of experience as a registered nurse within the previous five years and at least one year of direct client care or supervisory experience in the provision of geriatric long-term care facility services. Such Other experience may include, but not be limited to, employment in a nurse aide education program or employment in or supervision of nursing students in a nursing facility or unit, geriatrics department, chronic care hospital, home care, or other long-term care setting. Experience should include varied responsibilities, such as direct client care, supervision, and education.

2. Responsibilities. The primary instructor is responsible for the teaching and evaluation of students and, in addition, shall not assume other duties while instructing or supervising students. [ A program may request an exception to the restriction on assumption of other duties. The executive director of the board shall be authorized to make the decision on requests for exception or may refer to an informal fact-finding committee for consideration as needed. ]

The primary instructor shall:

a. Participate in the planning of each learning experience;

b. Ensure that course objectives are accomplished met;

c. Ensure that the provisions of subsection F of this section are maintained;

d. Maintain records as required by subsection A of 18VAC90-26-50;

e. Perform other activities necessary to comply with subsection B of 18VAC90-26-20; and

f. Ensure that students do not perform services for which they have not received instruction and been found proficient by the instructor.

C. Other instructional personnel.

1. Instructional personnel who assist the primary instructor in providing classroom or clinical supervision shall be registered nurses or licensed practical nurses.

a. A registered nurse shall:

(1) Hold a current, unrestricted Virginia license or multistate licensure privilege as a registered nurse; and

(2) Have had at least one year of direct patient client geriatric [ long-term ] care experience as a registered nurse.

b. A licensed practical nurse shall:

(1) Hold a current, unrestricted Virginia license or multistate licensure privilege as a practical nurse; and

(2) Hold a high school diploma or equivalent;

(3) Have been graduated from a state-approved practical nursing program; and

(4) Have had at least two years of direct patient client geriatric [ long-term ] care experience as a licensed practical nurse.

2. Responsibilities. Other instructional personnel shall provide instruction under the supervision of the primary instructor.

D. Prior to being assigned to teach the in a nurse aide education program, all instructional personnel shall demonstrate competence to teach adults or high school students by one of the following:

1. Satisfactory completion of a course in teaching adults at least 12 hours of coursework that includes:

a. Basic principles of adult learning;

b. Teaching methods and tools for adult learners; and

c. Evaluation strategies and measurement tools for assessing the student learning outcomes;

d. Review of current regulations for nurse aide education programs;

e. Review of the board-approved nurse aide curriculum content; and

f. Review of the skills evaluated on the board-approved nurse aide certification examination; or

2. Have experience in teaching adults or high school students:

a. Experience in teaching the curriculum content and skills evaluated on the board-approved nurse aide certification examination to adults or high school students; and

b. Knowledge of current regulations for nurse aides and nurse aide education programs.

E. In order to remain qualified to teach the nurse aide curriculum, instructional personnel shall complete a refresher course every three years that includes a review of regulations for nurse aides and nurse aide education programs and the skills evaluated on the board-approved nurse aide certification examination.

F. To meet planned program objectives, the program may, under the direct, onsite supervision of the primary instructor, use other persons who have expertise in specific topics and have had at least one year of experience in their field.

F. G. When students are giving direct care to clients in clinical areas, instructional personnel must be on site solely to supervise the students. The ratio of students to each instructor shall not exceed 10 students to one instructor in all clinical areas, including the skills laboratory.

18VAC90-26-40. Requirements for the curriculum.

A. Curriculum content. The curriculum shall include, but shall not be limited to, classroom, skills laboratory, and clinical instruction in the following:

1. Initial core curriculum. Prior to the direct contact with a nursing facility client, a student shall have completed a total of at least 24 hours of instruction. Sixteen of those hours shall be in the following five areas:

a. Communication and interpersonal skills.

b. Infection control.

c. Safety and emergency procedures, including dealing with obstructed airways and fall prevention.

d. Promoting client independence.

e. Respecting clients' rights.

2. Basic skills.

a. Recognizing changes in body functioning and the importance of reporting such changes to a supervisor.

b. Measuring and recording routine vital signs.

c. Measuring and recording height and weight.

d. Caring for the client's environment.

e. Measuring and recording fluid and food intake and output.

f. Performing basic emergency measures.

g. Caring for a client when death is imminent.

3. Personal care skills.

a. Bathing and oral hygiene.

b. Grooming.

c. Dressing.

d. Toileting.

e. Assisting with eating and hydration, including proper feeding techniques.

f. Caring for skin, to include prevention of pressure ulcers.

g. Transfer, positioning, and turning.

4. Individual client's needs, including mental health and social service needs.

a. Modifying the nurse aide's behavior in response to the behavior of clients.

b. Identifying developmental tasks associated with the aging process.

c. Demonstrating principles of behavior management by reinforcing appropriate behavior and causing inappropriate behavior to be reduced or eliminated.

d. Demonstrating skills supporting age-appropriate behavior by allowing the client to make personal choices, and by providing and reinforcing other behavior consistent with the client's dignity.

e. Utilizing the client's family or concerned others as a source of emotional support.

f. Responding appropriately to the client's behavior including, but not limited to, aggressive behavior and language.

g. Providing appropriate clinical care to the aged and disabled.

h. Providing culturally sensitive care.

5. Care of the cognitively or sensory (visual and auditory) impaired client.

a. Using techniques for addressing the unique needs and behaviors of individuals with dementia (Alzheimer's and others).

b. Communicating with cognitively or sensory impaired clients.

c. Demonstrating an understanding of and responding appropriately to the behavior of cognitively or sensory impaired clients.

d. Using methods to reduce the effects of cognitive impairment.

6. Skills for basic restorative services.

a. Using assistive devices in transferring, ambulation, eating, and dressing.

b. Maintaining range of motion.

c. Turning and positioning, both in bed and chair.

d. Bowel and bladder training.

e. Caring for and using prosthetic and orthotic devices.

f. Teaching the client in self-care according to the client's abilities as directed by a supervisor.

7. Clients' rights.

a. Providing privacy and maintaining confidentiality.

b. Promoting the client's right to make personal choices to accommodate individual needs.

c. Giving assistance in resolving grievances and disputes.

d. Providing assistance necessary to participate in client and family groups and other activities.

e. Maintaining care and security of the client's personal possessions.

f. Promoting the client's rights to be free from abuse, mistreatment, and neglect and the need to report any instances of such treatment to appropriate staff.

g. Avoiding the need for restraints in accordance with current professional standards.

8. Legal and regulatory aspects of practice as a certified nurse aide including, but not limited to, consequences of abuse, neglect, misappropriation of client property, and unprofessional conduct as set forth in § 54.1-3007 of the Code of Virginia and 18VAC90-25-100.

9. Occupational health and safety measures.

10. Appropriate management of conflict.

11. Observational and reporting techniques.

12. Substance abuse and opioid misuse.

B. Unit objectives.

1. Objectives for each unit of instruction shall be stated in behavioral terms that are measurable.

2. Objectives shall be reviewed with the students at the beginning of each unit.

C. Curriculum changes. Changes in curriculum shall be approved by the board prior to implementation and shall be submitted at the time of the onsite visit or with the report submitted by the program coordinator in the intervening year.

18VAC90-26-50. Other program requirements.

A. Records.

1. Each nurse aide education program shall develop and maintain an individual record of major skills taught and the date of performance by the student. At the completion of the nurse aide education program, the program shall provide each nurse aide with a copy of this record and a certificate of completion from the program, which includes the name of the program, the board approval number, date of program completion, and the signature of the primary instructor or program coordinator.

2. A record of the reports of graduates' performance on the approved competency evaluation program state-approved nurse aide certification examination (the National Nurse Aide Assessment Program or NNAAP) shall be maintained.

3. A record that documents the disposition of complaints against the program shall be maintained.

B. Student identification. The nurse aide students shall wear identification that clearly distinguishes them as a "nurse aide student." Name identification on a badge shall follow the policy of the facility in which the nurse aide student is practicing clinical skills.

C. Length of program.

1. The By [ (insert a date two years from effective date of the regulation) May 12, 2023 ], the program shall be at least 120 140 clock hours in length, at least 20 hours of which shall be specifically designated for skills acquisition in the laboratory setting.

2. The program shall provide for at least 24 hours of instruction prior to direct contact of a student with a nursing facility client.

3. Skills Clinical training in clinical settings shall be at least 40 hours of providing direct client care. Five of the clinical hours may be in a setting other than a nursing home a geriatric long-term care facility. Hours of observation shall not be included in the required 40 hours of skills training.

4. Employment Time spent in employment orientation to facilities used in the education program must not be included in the 120 140 hours allotted for the program.

D. Classroom facilities. The nurse aide education program shall provide facilities that meet federal and state requirements including:

1. Comfortable temperatures.

2. Clean and safe conditions.

3. Adequate lighting.

4. Adequate space to accommodate all students.

5. Instructional Current instructional technology and equipment needed for simulating client care.

6. Equipment and supplies sufficient for the size of the student cohort.

18VAC90-26-60. Requirements for continued approval.

A. Program review.

1. Each nurse aide education program shall be reviewed annually either by a survey visit on site by an agent of the board or by a written program evaluation. Each program shall be reviewed by an onsite a survey visit at least every two years following initial review or by a site visit whenever deemed necessary by the board to ensure continued compliance.

2. The program coordinator shall prepare and submit a program evaluation report on a form provided by the board in the intervening year that an onsite review a survey visit is not conducted.

3. Any additional information needed to evaluate a program's compliance with regulations of the board must be submitted within a timeframe specified by the board.

B. Decision on continued Continued, conditional, or withdrawal of approval.

1. The board shall receive and review the report of the onsite survey visit or program evaluation report and may grant continued approval, place a program on conditional approval, or deny continued withdraw approval.

a. Granting continued approval. A nurse aide education program shall continue to be approved provided the requirements set forth in subsection B of 18VAC90-26-20 are maintained.

b. Placing a program on conditional approval. If the board determines that a nurse aide education program (i) has not filed its biennial survey visit or program evaluation report; (ii) is unresponsive or uncooperative in the scheduling of the survey or site visit; or (iii) is not maintaining the requirements of subsection B of 18VAC90-26-20, as evidenced by the onsite survey visit or program evaluation report, the board may place the program on conditional approval and the program provider shall be given a reasonable period of time to correct the identified deficiencies. Within 30 days of the mailing of a decision on conditional approval, The the program may request, within 30 days of the mailing of a decision on conditional approval, an informal conference to be convened in accordance with § 2.2-4019 of the Code of Virginia.

(1) The board shall receive and review reports of progress toward correcting identified deficiencies. When a final report is received at the end of the specified time showing corrections of deficiencies, the board may grant continued approval.

(2) If the program provider fails to correct the identified deficiencies within the time specified by the board, a committee the board may recommend withdrawing approval following an informal conference held in accordance with § 2.2-4019 of the Code of Virginia withdraw approval.

c. Withdrawing approval.

(3) If the recommendation to withdraw approval following an informal conference is accepted by the board or a panel thereof, no further action will be required unless the program requests a formal hearing.

(1) If the board determines that a nurse aide education program is not maintaining the requirements of subsection B of 18VAC90-26-20, an informal conference will be convened in accordance with § 2.2-4019 of the Code of Virginia. If the recommendation to withdraw approval following an informal conference is accepted by the board or a panel thereof, no further action will be required unless the program requests a formal hearing.

(4) (2) The program provider may request a formal hearing before the board or a panel thereof pursuant to § 2.2-4020 and subdivision 11 of § 54.1-2400 of the Code of Virginia if it objects to any action of the board relating to conditional withdrawal of approval.

c. Denying continued approval. If the board determines that a nurse aide education program is not maintaining the requirements of subsection B of 18VAC90-26-20, an informal conference will be convened in accordance with § 2.2-4019 of the Code of Virginia. If the recommendation to withdraw approval following an informal conference is accepted by the board or a panel thereof, no further action will be required unless the program requests a formal hearing.

2. If the decision of the board or a panel thereof following a formal hearing is to withdraw approval or continue on conditional approval with terms or conditions, the program shall be advised of the right to appeal the decision to the appropriate circuit court in accordance with § 2.2-4026 of the Code of Virginia and Part 2A of the Rules of the Supreme Court of Virginia.

18VAC90-26-70. Interruption or closing of a program.

A. Interruption of program.

1. When a program provider does not hold classes for a period of one year, the program shall be placed on inactive status and shall not be subject to compliance with subsection B of 18VAC90-26-20 for the specified time.

2. Unless the program provider notifies the board that it intends to admit students, the program will be considered closed at the end of the inactive period and be subject to the requirements of subsection B of this section. At any time during the year after the program is placed on inactive status, the program provider may request that the board return the program to active status by providing a list of the admitted student cohort and start date.

3. If the program provider does not hold classes for two consecutive years, the program shall be considered closed and shall be subject to the requirements of subsection B of this section. In the event that a program desires to reopen after closure, submission of a new program approval application shall be required.

B. Closing of a nurse aide education program. When a nurse aide education program closes, the program provider shall:

1. Notify the board of the date of closing.

2. Submit to the board a list of all graduates with the date of graduation of each.

18VAC90-26-80. Requirements for an approved advanced certification education program.

A. The advanced certification education program shall be approved by the Virginia Board of Nursing. An approved advanced certification education program shall also be an approved nurse aide education program as set forth in 18VAC90-26-20.

B. An advanced certification education program shall consist of a minimum of 140 hours, at least 20 hours of which shall be specifically designated for skills acquisition in the laboratory setting. There shall also be a minimum of 40 hours of clinical skills instruction in direct client care with onsite supervision by instructional personnel. When nurse aides are engaged in direct client care in the course of advanced certification training, the ratio shall not exceed 10 students to one instructor.

C. The instructional personnel in an approved advanced certification education program shall meet the requirements as set forth in 18VAC90-26-30.

D. The curricula of an approved advanced certification education program shall, at a minimum, meet the requirements of 18VAC90-26-40.

E. Each advanced certification program shall develop an individual record of major skills taught and the date of performance by the student. At the completion of the program, the program shall provide each nurse aide with a copy of this record and a certificate of completion, as specified in 18VAC90-26-50 A.

F. An advanced certification education program shall develop and submit to the board a competency evaluation based on the curriculum content required in 18VAC90-26-40. Such an evaluation shall include both a written test on the curriculum and an assessment of manual skills. A record of the reports of each graduate's performance on the nurse aide certification examination (the National Nurse Aide Assessment Program or NNAAP) shall be maintained for a minimum of three years.

G. Program review shall be in accordance with requirements of 18VAC90-26-60 and shall be conducted concurrently with the onsite review of the basic nurse aide education program. Loss of board approval for the basic nurse aide education program shall automatically result in the loss of approval for the advanced certification education program.

H. When an advanced certification education program closes, the program provider shall comply with 18VAC90-26-70 B.

18VAC90-26-90. Required curriculum content for an advanced certification education program.

A. In addition to the curriculum content specified in 18VAC90-26-40, an advanced certification education program shall include classroom, skills laboratory, and clinical instruction in the following curriculum:

1. Leadership and mentoring skills.

a. Principles of adult learning;

b. Learning styles;

c. Evaluation methods to assess learner knowledge;

d. Communication techniques and communication barriers; emphasizing cultural diversity of coworkers and clients;

e. Conflict management;

f. Precepting and mentoring new certified nurse aides;

g. Teamwork;

h. Contributing to care plan development and implementation;

i. Organizational responsibilities; and

j. Principles of documentation.

2. Care of the cognitively impaired client.

a. Signs and symptoms of dementia;

b. Concepts and techniques for addressing the unique needs and behaviors of individuals with dementia, including agitation, combativeness, sundown syndrome, wandering, and forgetfulness;

c. Basic concepts of communication with cognitively impaired clients, including techniques to reduce the effects of cognitive impairment;

d. Basic concepts of behavior management with cognitively impaired clients; and

e. Recognizing changes in the client's condition and reporting and documenting such changes.

3. Restorative care.

a. Anatomy and physiology with emphasis on the effects of aging;

b. Pathophysiology of common disorders of the elderly;

c. Measures to assist clients with common medical problems;

d. Recognizing changes in the client's condition and reporting and documenting such changes;

e. Concepts to maintain or improve client mobility and ability to perform activities of daily living; and

f. Rehabilitation procedures.

4. Wound care.

a. Prevention, identification and treatment of Stage I and Stage II pressure ulcers;

b. Positioning;

c. Sterile and clean technique;

d. Dressing changes;

e. Concepts of hydration;

f. Nutrition and weight loss; and

g. Recognizing changes in the client's condition and reporting and documenting such changes.

B. Written objectives for each unit of instruction shall be stated in behavioral terms that are measurable and shall be reviewed with the students at the beginning of each unit.

Title of Regulation: 18VAC110-60. Regulations Governing Pharmaceutical Processors.

Agency Contact: Elaine Yeatts, Agency Regulatory Coordinator, Department of Health Professions, 9960 Mayland Drive, Henrico, VA 23233, telephone (804) 367-4688, FAX (804) 527-4434, or email elaine.yeatts@dhp.virginia.gov.

FORMS (18VAC110-60)

Application for registration of a patient, online form available at https://www.license.dhp.virginia.gov/apply

Application for registration of a parent or legal guardian, online form available at https://www.license.dhp.virginia.gov/apply

Application for registration of a practitioner to issue certifications, online form available at https://www.license.dhp.virginia.gov/apply

How to Register with the Board as a Patient, Parent or Legal Guardian (rev. 7/2020)

Application for a Pharmaceutical Processor Permit (rev. 1/2021)

Practitioner Reporting Requirements (eff. 6/2019)

Registration of CBD or THC-A Oil Products (eff. 6/2019)

Pharmaceutical Processor Inspection Form (eff. 10/2019)

Pharmaceutical Processor & Dispensing Facility Inspection Report (rev. 3/2021)

Application for Registration as a Registered Agent (eff. 12/2019)

Request for Visitor Approval (eff. 5/2020)

Title of Regulation: 18VAC112-20. Regulations Governing the Practice of Physical Therapy (amending 18VAC112-20-10, 18VAC112-20-27, 18VAC112-20-60, 18VAC112-20-65, 18VAC112-20-90, 18VAC112-20-130, 18VAC112-20-140, 18VAC112-20-200; adding 18VAC112-20-82).

Statutory Authority: § 54.1-2400 of the Code of Virginia.

Effective Date: May 12, 2021.

Agency Contact: Corie Tillman Wolf, Executive Director, Board of Physical Therapy, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone (804) 367-4674, FAX (804) 527-4413, or email ptboard@dhp.virginia.gov.

Summary:

The amendments are necessary for Virginia to participate in the Physical Therapy Compact, as required by Chapter 300 of the 2019 Acts of Assembly, which allows a physical therapist or physical therapist assistant who has obtained a compact privilege to practice in the Commonwealth without a Virginia license. To comply with compact rules, the amendments require all applicants for licensure to have criminal background checks and require all holders of a compact privilege to adhere to the laws and regulations governing practice in Virginia. As permitted by the compact rules, the amendments set the fee in Virginia at $50, which is similar to the fee charged by other states.

Summary of Public Comments and Agency's Response: A summary of comments made by the public and the agency's response may be obtained from the promulgating agency or viewed at the office of the Registrar of Regulations.

18VAC112-20-10. Definitions.

In addition to the words and terms defined in § §§ 54.1-3473 and 54.1-3486 of the Code of Virginia, the following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Active practice" means a minimum of 160 hours of professional practice as a physical therapist or physical therapist assistant within the 24-month period immediately preceding renewal. Active practice may include supervisory, administrative, educational, or consultative activities or responsibilities for the delivery of such services.

"Approved program" means an educational program accredited by the Commission on Accreditation in Physical Therapy Education of the American Physical Therapy Association.

"Assessment tool" means oPTion or any other self-directed assessment tool approved by FSBPT.

"CLEP" means the College Level Examination Program.

"Compact" means the Physical Therapy Licensure Compact (§ 54.1-3485 of the Code of Virginia).

"Contact hour" means 60 minutes of time spent in continuing learning activity exclusive of breaks, meals, or vendor exhibits.

"Direct supervision" means a physical therapist or a physical therapist assistant is physically present and immediately available and is fully responsible for the physical therapy tasks or activities being performed.

"Discharge" means the discontinuation of interventions in an episode of care that have been provided in an unbroken sequence in a single practice setting and related to the physical therapy interventions for a given condition or problem.

"Evaluation" means a process in which the physical therapist makes clinical judgments based on data gathered during an examination or screening in order to plan and implement a treatment intervention, provide preventive care, reduce risks of injury and impairment, or provide for consultation.

"FCCPT" means the Foreign Credentialing Commission on Physical Therapy.

"FSBPT" means the Federation of State Boards of Physical Therapy.

"General supervision" means a physical therapist shall be available for consultation.

"National examination" means the examinations developed and administered by the Federation of State Boards of Physical Therapy and approved by the board for licensure as a physical therapist or physical therapist assistant.

"Physical Therapy Compact Commission" or "commission" means the national administrative body whose membership consists of all states that have enacted the compact.

"Reevaluation" means a process in which the physical therapist makes clinical judgments based on data gathered during an examination or screening in order to determine a patient's response to the treatment plan and care provided.

"Support personnel" means a person who is performing designated routine tasks related to physical therapy under the direction and supervision of a physical therapist or physical therapist assistant within the scope of this chapter.

"TOEFL" means the Test of English as a Foreign Language.

"Trainee" means a person seeking licensure as a physical therapist or physical therapist assistant who is undergoing a traineeship.

"Traineeship" means a period of active clinical practice during which an applicant for licensure as a physical therapist or physical therapist assistant works under the direct supervision of a physical therapist approved by the board.

"TSE" means the Test of Spoken English.

"Type 1" means continuing learning activities offered by an approved organization as specified in 18VAC112-20-131.

"Type 2" means continuing learning activities which may or may not be offered by an approved organization but shall be activities considered by the learner to be beneficial to practice or to continuing learning.

18VAC112-20-27. Fees.

A. Unless otherwise provided, fees listed in this section shall not be refundable.

B. Licensure by examination.

1. The application fee shall be $140 for a physical therapist and $100 for a physical therapist assistant.

2. The fees for taking all required examinations shall be paid directly to the examination services.

C. Licensure by endorsement. The fee for licensure by endorsement shall be $140 for a physical therapist and $100 for a physical therapist assistant.

D. Licensure renewal and reinstatement.

1. The fee for active license renewal for a physical therapist shall be $135 and for a physical therapist assistant shall be $70 and shall be due by December 31 in each even-numbered year. For renewal in 2020, the active license renewal fee for a physical therapist shall be $70 and for a physical therapist assistant shall be $35.

2. The fee for an inactive license renewal for a physical therapist shall be $70 and for a physical therapist assistant shall be $35 and shall be due by December 31 in each even-numbered year. For renewal in 2020, the inactive license renewal fee for a physical therapist shall be $35 and for a physical therapist assistant shall be $18.

3. A fee of $50 for a physical therapist and $25 for a physical therapist assistant for processing a late renewal within one renewal cycle shall be paid in addition to the renewal fee.

4. The fee for reinstatement of a license that has expired for two or more years shall be $180 for a physical therapist and $120 for a physical therapist assistant and shall be submitted with an application for licensure reinstatement.

E. Other fees.

1. The fee for an application for reinstatement of a license that has been revoked shall be $1,000; the fee for an application for reinstatement of a license that has been suspended shall be $500.

2. The fee for a duplicate license shall be $5, and the fee for a duplicate wall certificate shall be $15.

3. The handling fee for a returned check or a dishonored credit card or debit card shall be $50.

4. The fee for a letter of good standing/verification standing or verification to another jurisdiction shall be $10.

5. The application fee for direct access certification shall be $75 for a physical therapist to obtain certification to provide services without a referral.

6. The state fee for obtaining or renewing a compact privilege to practice in Virginia shall be $50.

18VAC112-20-60. Requirements for licensure by examination.

Every applicant for initial licensure by examination shall submit:

1. Documentation of having met the educational requirements specified in 18VAC112-20-40 or 18VAC112-20-50;

2. The required application, fees, and credentials to the board, including a criminal history background check as required by § 54.1-3484 of the Code of Virginia; and

3. Documentation of passage of the national examination as prescribed by the board.

18VAC112-20-65. Requirements for licensure by endorsement.

A. A physical therapist or physical therapist assistant who holds a current, unrestricted license in the United States, its territories, the District of Columbia, or Canada may be licensed in Virginia by endorsement.

B. An applicant for licensure by endorsement shall submit:

1. Documentation of having met the educational requirements prescribed in 18VAC112-20-40 or 18VAC112-20-50. In lieu of meeting such requirements, an applicant may provide evidence of clinical practice consisting of at least 2,500 hours of patient care during the five years immediately preceding application for licensure in Virginia with a current, unrestricted license issued by another U.S. United States jurisdiction;

2. The required application, fees, and credentials to the board, including a criminal history background check as required by § 54.1-3484 of the Code of Virginia;

3. A current report from the Healthcare Integrity and Protection Data Bank (HIPDB);

4. Evidence of completion of 15 hours of continuing education for each year in which the applicant held a license in another U.S. United States jurisdiction, or 60 hours obtained within the past four years;

5. Documentation of passage of an examination equivalent to the Virginia examination at the time of initial licensure or documentation of passage of an examination required by another state at the time of initial licensure in that state; and

6. Documentation of active practice in physical therapy in another U.S. United States jurisdiction for at least 320 hours within the four years immediately preceding his application for licensure. A physical therapist who does not meet the active practice requirement shall:

a. Successfully complete 320 hours in a traineeship in accordance with requirements in 18VAC112-20-140; or

b. Document that he attained at least Level 2 on the FSBPT assessment tool within the two years preceding application for licensure in Virginia and successfully complete 160 hours in a traineeship in accordance with the requirements in 18VAC112-20-140.

C. A physical therapist assistant seeking licensure by endorsement who has not actively practiced physical therapy for at least 320 hours within the four years immediately preceding his application for licensure shall successfully complete 320 hours in a traineeship in accordance with the requirements in 18VAC112-20-140.

18VAC112-20-82. Requirements for a compact privilege.

To obtain a compact privilege to practice physical therapy in Virginia, a physical therapist or physical therapist assistant licensed in a remote state shall comply with the rules adopted by the Physical Therapy Compact Commission in effect at the time of application to the commission.

18VAC112-20-90. General responsibilities.

A. The physical therapist shall be responsible for managing all aspects of the physical therapy care of each patient and shall provide:

1. The initial evaluation for each patient and its documentation in the patient record;

2. Periodic reevaluation, including documentation of the patient's response to therapeutic intervention; and

3. The documented status of the patient at the time of discharge, including the response to therapeutic intervention. If a patient is discharged from a health care facility without the opportunity for the physical therapist to reevaluate the patient, the final note in the patient record may document patient status.

B. The physical therapist shall communicate the overall plan of care to the patient or his the patient's legally authorized representative and shall also communicate with a referring doctor of medicine, osteopathy, chiropractic, podiatry, or dental surgery,; nurse practitioner; or physician assistant to the extent required by § 54.1-3482 of the Code of Virginia.

C. A physical therapist assistant may assist the physical therapist in performing selected components of physical therapy intervention to include treatment, measurement, and data collection, but not to include the performance of an evaluation as defined in 18VAC112-20-10.

D. A physical therapist assistant's visits to a patient may be made under general supervision.

E. A physical therapist providing services with a direct access certification as specified in § 54.1-3482 of the Code of Virginia shall utilize the Direct Access Patient Attestation and Medical Release Form prescribed by the board or otherwise include in the patient record the information, attestation and written consent required by subsection B of § 54.1-3482 of the Code of Virginia.

F. A physical therapist or physical therapist assistant practicing in Virginia on a compact privilege shall comply with all applicable laws and regulations pertaining to physical therapy practice in Virginia.

18VAC112-20-130. Biennial renewal of license.

A. A physical therapist and physical therapist assistant who intends to continue practice shall renew his license biennially by December 31 in each even-numbered year and pay to the board the renewal fee prescribed in 18VAC112-20-27.

B. A licensee whose licensure has not been renewed by the first day of the month following the month in which renewal is required shall pay a late fee as prescribed in 18VAC112-20-27.

C. In order to renew an active license, a licensee shall be required to:

1. Complete a minimum of 160 hours of active practice in the preceding two years; and

2. Comply with continuing competency requirements set forth in 18VAC112-20-131.

D. In order to renew a compact privilege to practice in Virginia, the holder shall comply with the rules adopted by the Physical Therapy Compact Commission in effect at the time of the renewal.

18VAC112-20-140. Traineeship requirements.

A. The traineeship shall be approved by the board and under the direction and supervision of a licensed physical therapist.

B. Supervision and identification of trainees:

1. There shall be a limit of two physical therapists assigned to provide supervision for each trainee.

2. The supervising physical therapist shall countersign patient documentation (i.e., notes, records, charts) for services provided by a trainee.

3. The trainee shall wear identification designating them as a "physical therapist trainee" or a "physical therapist assistant trainee."

C. Completion of traineeship.

1. The physical therapist supervising the trainee shall submit a report to the board at the end of the required number of hours on forms supplied by the board.

2. If the traineeship is not successfully completed at the end of the required hours, as determined by the supervising physical therapist, the president of the board or his designee shall determine if a new traineeship shall commence. If the president of the board determines that a new traineeship shall not commence, then the application for licensure shall be denied.

3. The second traineeship may be served under a different supervising physical therapist and may be served in a different organization than the initial traineeship. If the second traineeship is not successfully completed, as determined by the supervising physical therapist, then the application for licensure shall be denied.

D. A traineeship shall not be approved for an applicant who has not completed a criminal background check for initial licensure pursuant to § 54.1-3484 of the Code of Virginia.

18VAC112-20-200. Advertising ethics.

A. Any statement specifying a fee, whether standard, discounted, or free, for professional services that does not include the cost of all related procedures, services, and products which that, to a substantial likelihood, will be necessary for the completion of the advertised service as it would be understood by an ordinarily prudent person shall be deemed to be deceptive or misleading, or both. Where reasonable disclosure of all relevant variables and considerations is made, a statement of a range of prices for specifically described services shall not be deemed to be deceptive or misleading.

B. Advertising a discounted or free service, examination, or treatment and charging for any additional service, examination, or treatment that is performed as a result of and within 72 hours of the initial office visit in response to such advertisement is unprofessional conduct unless such professional services rendered are as a result of a bona fide emergency. This provision may not be waived by agreement of the patient and the practitioner.

C. Advertisements of discounts shall disclose the full fee that has been discounted. The practitioner shall maintain documented evidence to substantiate the discounted fees and shall make such information available to a consumer upon request.

D. A licensee or holder of a compact privilege shall not use the term "board certified" or any similar words or phrase calculated to convey the same meaning in any advertising for his practice unless he holds certification in a clinical specialty issued by the American Board of Physical Therapy Specialties.

E. A licensee or holder of a compact privilege of the board shall not advertise information that is false, misleading, or deceptive. For an advertisement for a single practitioner, it shall be presumed that the practitioner is responsible and accountable for the validity and truthfulness of its content. For an advertisement for a practice in which there is more than one practitioner, the name of the practitioner or practitioners responsible and accountable for the content of the advertisement shall be documented and maintained by the practice for at least two years.

F. Documentation, scientific and otherwise, supporting claims made in an advertisement shall be maintained and available for the board's review for at least two years.

Title of Regulation: 22VAC40-185. Standards for Licensed Child Day Centers (amending 22VAC40-185-10, 22VAC40-185-20, 22VAC40-185-30, 22VAC40-185-40, 22VAC40-185-60, 22VAC40-185-70, 22VAC40-185-80, 22VAC40-185-130, 22VAC40-185-140, 22VAC40-185-160, 22VAC40-185-180, 22VAC40-185-190, 22VAC40-185-220, 22VAC40-185-240, 22VAC40-185-320, 22VAC40-185-350, 22VAC40-185-400, 22VAC40-185-420, 22VAC40-185-460, 22VAC40-185-500, 22VAC40-185-510, 22VAC40-185-530, 22VAC40-185-550, 22VAC40-185-560, 22VAC40-185-580; adding 22VAC40-185-245, 22VAC40-185-355).

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

Effective Date: September 21, 2021.

Agency Contact: Tatanishia Armstrong, Licensing Consultant, Department of Social Services, 801 East Main Street, Richmond, VA 23219, telephone (804) 726-7152, FAX (804) 726-7132, or email tatanishia.armstrong@dss.virginia.gov.

Summary:

The amendments align requirements of licensed programs with requirements for providers receiving federal Child Care and Development Funds. In addition to making many clarifying changes, the amendments (i) remove the list of exemptions to licensure requirements from the regulation, (ii) require licensees to have written procedures for prevention of shaken baby syndrome and for safe sleeping practices, (iii) require licensees to document all know food allergies and sensitivities and dietary restrictions of children in their care and require that parents provide instructions from a physician regarding their child's food allergies, (iv) allow children defined by the regulation as homeless who do not have documentation of immunization or physical examination to attend licensed facilities for 90 days before such documentation must be produced, (v) allow any unimmunized child to attend a licensed child day center for 90 days (180 days in some cases) while immunizations are brought up to date so long as the child has had one dose of each required immunization before attendance, (vi) require annual training, (vii) require all direct care staff to complete first aid and cardiopulmonary resuscitation (CPR) training and allow all hours of first aid and CPR training to count toward annual training requirements, (viii) institute new group size restrictions, (ix) require licensees to formulate and implement a plan to ensure that children receive care by consistent staff, and (x) revise emergency preparedness plan requirements.

Changes to the proposed regulation include (i) procedural components for the continuity of operations in the emergency preparedness plan; (ii) notifying parents if their child comes into contact with any food to which the child is allergic as identified in the written care plan; (iii) reporting of attendance records for each group of children and all injuries that result in the referral for treatment from a medical professional; (iv) submitting documentation of tuberculosis screening at the time of employment and prior to coming into contact with children and requiring that documentation of tuberculosis screening is completed within 30 calendar days of employment; (v) considering certain requirements for program directors employed prior to September 21, 2021, who meet the current education and experience qualifications to be met; (vi) requiring only new staff, hired after September 21, 2021, to complete orientation; (vii) exempting cooperative preschool parent volunteers who count in child to staff ratios from orientation requirements and training requirements, except for four hours of training annually; (viii) requiring staff must complete, within 30 days of the first day of employment, first aid and cardiopulmonary resuscitation (CPR) orientation training appropriate to the age of children in care; (ix) removing the requirement for school age children of the opposite sex to use the restroom separately; (x) requirements for timeout; (xi) allowing the use of cloth diapers, even if there has not been an adverse reaction to disposable diapers, when disposal requirements are met; (xii) requiring at least one staff in each classroom or area where children are present to be certified in first aid and CPR within 90 days of September 21, 2021; (xiii) requiring at least two staff certified in first aid and CPR must always be present at the center wherever children are in care; and (xiv) exempting staff who is a registered nurse or licensed practical nurse with a current license from the Board of Nursing from the first aid certification requirement.

Summary of Public Comments and Agency's Response: A summary of comments made by the public and the agency's response may be obtained from the promulgating agency or viewed at the office of the Registrar of Regulations.

22VAC40-185-10. Definitions.

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

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

"Age and stage appropriate" means the curriculum, environment, equipment, and adult-child interactions are suitable for the ages of the children within a group and the individual needs of any child.

"Age groups":

1. "Infant" means children from birth to 16 months.

2. "Toddler" means children from 16 months up to two years.

3. "Preschool" means children from two years up to the age of eligibility to attend public school, five years by September 30.

4. "School age" means children eligible to attend public school, age five or older by September 30 of that same year. Four-year-old or five-year-old children included in a group of school age children may be considered school age during the summer months if the children will be entering kindergarten that year.

"Attendance" means the actual presence of an enrolled child.

"Balanced mixed-age grouping" means a program using a curriculum designed to meet the needs and interests of children in the group and is planned for children who enter the program at three through five years of age. The enrollment in the balance mixed-age grouping comprises a relatively even allocation of children in each of three ages (three to six years) and is designed for children and staff to remain together with turnover planned only for the replacement of exiting students with children of ages that maintain the class balance.

"Body fluids" means urine, feces, saliva, blood, nasal discharge, eye discharge, and injury or tissue discharge.

"Camp" means a child day camp that is a child day center for school age children that operates during the summer vacation months only. Four-year-old children who will be five by September 30 of the same year may be included in a camp for school age children.

"Center" means a child day center.

"Child" means any individual under 18 years of age.

"Child day center" means a child day program offered to (i) two or more children younger than 13 years of age in a facility that is not the residence of the provider or of any of the children in care or (ii) 13 or more children at any location.

"Child day program" means a regularly operating service arrangement for children where, during the absence of a parent or guardian, a person or organization has agreed to assume responsibility for the supervision, protection, and well-being of a child younger than 13 years of age for less than a 24-hour period. Note: This "Child day program" does not include programs such as drop-in playgrounds or clubs for children when there is no service arrangement with the child's parent.

"Children with special needs" means children with developmental disabilities, mental retardation intellectual disabilities, emotional disturbance, sensory or motor impairment, or significant chronic illness who require special health surveillance or specialized programs, interventions, technologies, or facilities.

"Cleaned" means treated in such a way to reduce the amount of filth through the use of water with soap or detergent or the use of an abrasive cleaner on inanimate surfaces.

"Commissioner" means the Commissioner of the Virginia Department of Social Services.

"Communicable disease" means a disease caused by a microorganism (bacterium, virus, fungus, or parasite) that can be transmitted from person to person via an infected body fluid or respiratory spray, with or without an intermediary agent (such as a louse or mosquito) or environmental object (such as a table surface). Some communicable diseases are reportable to the local health authority.

"Department" means the Virginia Department of Social Services.

"Department's representative" means an employee or designee of the Virginia Department of Social Services, acting as the authorized agent of the commissioner.

"Evening care" means care provided after 7 p.m. but not through the night.

"Good character and reputation" means knowledgeable and objective people agree that the individual (i) maintains business, professional, family, and community relationships which are characterized by honesty, fairness, and truthfulness and (ii) demonstrates a concern for the well-being of others to the extent that the individual is considered suitable to be entrusted with the care, guidance, and protection of children. Relatives by blood or marriage and people who are not knowledgeable of the individual, such as recent acquaintances, shall not be considered objective references.

"Group of children" means the children assigned to a staff member or team of staff members.

"Group size" means the number of children assigned to a staff member or team of staff members occupying an individual room or area.

"High school program completion or the equivalent" means an individual has earned a high school diploma or General Education Development (G.E.D.) certificate, passed a high school equivalency examination approved by the Board of Education, or has completed a program of home instruction in accordance with § 22.1-254.1 of the Code of Virginia equivalent to high school completion.

"Homeless child" means a child who lacks a fixed, regular, and adequate nighttime residence and includes a child who is:

1. Living in a car, park, public space, abandoned building, substandard housing, bus or train station, or similar settings;

2. Sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason; sometimes referred to as doubled-up;

3. Living in a motel, hotel, trailer park, or camping ground due to lack of alternative adequate accommodations;

4. Living in a congregate, temporary, emergency or transitional shelter;

5. Awaiting or in foster care placement;

6. Abandoned in a hospital;

7. Living in a primary nighttime residence that is a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings; or

8. A migratory child as defined in 20 USC § 6399 who qualifies as homeless because the child is living in circumstances described in subdivisions 1 through 6 of this definition.

"Independent contractor" means an entity that enters into an agreement to provide specialized services or staff for a specified period of time.

"Individual service, education or treatment plan" means a plan identifying the child's strengths, needs, general functioning and plan for providing services to the child. The service plan includes specific goals and objectives for services, accommodations, and intervention strategies. The service, education or treatment plan clearly shows documentation and reassessment or evaluation strategies.

"Intervention strategies" means a plan for staff action that outlines methods, techniques, cues, programs, or tasks that enable the child to successfully complete a specific goal.

"Licensee" means any individual, [ corporation, ] partnership, association, [ public limited liability company, local government, state ] agency, [ including any department, institution, authority, instrumentality, board, other administrative agency of the Commonwealth, ] or [ corporation other legal or commercial entity that operates or maintains a child day center ] to whom the license is issued.

"Lockdown" means a situation where children are isolated from a security threat and access within and to the facility is restricted.

"Minor injury" means a wound or other specific damage to the body such as, but not limited to, abrasions, splinters, bites that do not break the skin, and bruises.

"Overnight care" means care provided after 7 p.m. and through the night.

"Parent" means the biological or adoptive parent or legal guardian of a child enrolled in or in the process of being admitted to a center.

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

"Physician's designee" means a physician, licensed nurse practitioner, licensed physician assistant, licensed nurse (R.N. or L.P.N.), or health assistant acting under the supervision of a physician.

"Primitive camp" means a camp where places of abode, water supply system, or permanent toilet and cooking facilities are not usually provided.

"Programmatic experience" means time spent working directly with children in a group that is located away from the child's home. Work time shall be computed on the basis of full-time work experience during the period prescribed or equivalent work time over a longer period. Experience settings may include a child day program, family day home, child day center, boys and girls club, field placement, elementary school, or a faith-based organization.

"Resilient surfacing" means:

1. For indoor and outdoor use underneath and surrounding equipment, impact absorbing surfacing materials that comply with minimum safety standards when tested in accordance with the procedures described in the American Society for Testing and Materials' standard F1292-99 as shown in Figures 2 (Compressed Loose Fill Synthetic Materials Depth Chart) and 3 (Use Zones for Equipment) on pages 6-7 of the National Program for Playground Safety's "Selecting Playground Surface Materials: Selecting the Best Surface Material for Your Playground," February 2004.

2. Hard surfaces such as asphalt, concrete, dirt, grass or flooring covered by carpet or gym mats do not qualify as resilient surfacing.

"Sanitized" means treated in such a way to remove bacteria and viruses from inanimate surfaces through using a disinfectant solution (i.e., bleach solution or commercial chemical disinfectant) or physical agent (e.g., heat). The surface of the item is sprayed or dipped into the disinfectant solution and allowed to air dry after use of the disinfectant solution on the surface for a minimum of two minutes or according to the disinfectant solution instructions.

"Serious injury" means a wound or other specific damage to the body such as, but not limited to, unconsciousness; broken bones; dislocation; deep cut requiring stitches; poisoning; concussion; or a foreign object lodged in eye, nose, ear, or other body orifice.

"Shaken baby syndrome" or "abusive head trauma" means a traumatic injury that is inflicted upon the brain of an infant or young child. The injury can occur during violent shaking, causing the child's head to whip back and forth, the brain to move about, and blood vessels in the skull to stretch and tear.

"Shelter-in-place" means the facility or building in which a child day center is located movement of occupants of the building to designated protected spaces within the building.

"Short-term program" means a child day center that operates less than 12 weeks a year.

"Special needs child day program" means a program exclusively serving children with special needs.

"Specialty camps" means those centers that have an educational or recreational focus on one subject such as dance, drama, music, or sports.

"Sponsor" means an individual, partnership, association, public agency, corporation, or other legal entity in whom the ultimate authority and legal responsibility is vested for the administration and operation of a center subject to licensure.

"Staff" means administrative, activity, and service personnel including the licensee when the licensee is an individual who works in the center, and any persons counted in the staff-to-children ratios or any persons working with a child without sight and sound supervision of a staff member.

"Staff positions" are defined as follows:

1. "Aide" means the individual designated to be responsible for helping the program leader in supervising children and in implementing the activities and services for children. Aides may also be referred to as assistant teachers or child care assistants.

2. "Program leader" means the individual designated to be responsible for the direct supervision of children and for implementation of the activities and services for a group of children. Program leaders may also be referred to as child care supervisors or teachers.

3. "Program director" means the primary, onsite director or coordinator designated to be responsible for developing and implementing the activities and services offered to children, including the supervision, orientation, training, and scheduling of staff who work directly with children, whether or not personally performing these functions.

4. "Administrator" means a manager or coordinator designated to be in charge of the total operation and management of one or more centers. The administrator may be responsible for supervising the program director or, if appropriately qualified, may concurrently serve as the program director. The administrator may perform staff orientation or training or program development functions if the administrator meets the qualifications of 22VAC40-185-190 and a written delegation of responsibility specifies the duties of the program director.

[ "Standard precautions" means an approach to infection control. According to the concept of standard precautions, all human blood and certain human body fluids are treated as if known to be infectious for human immunodeficiency virus (HIV), hepatitis B virus (HBV), and other bloodborne pathogens. ]

"Therapeutic child day program" means a specialized program, including therapeutic recreation programs, exclusively serving children with special needs when an individual service, education or treatment plan is developed and implemented with the goal of improving the functional abilities of the children in care.

[ "Universal precautions" means an approach to infection control. According to the concept of universal precautions, all human blood and certain human body fluids are treated as if known to be infectious for human immunodeficiency virus (HIV), hepatitis B virus (HBV), and other bloodborne pathogens. ]

"Volunteer" means a person who works at the center and:

1. Is not paid;

2. Is not counted in the staff-to-children ratios; and

3. Is in sight and sound supervision of a staff member when working with a child.

Any unpaid person not meeting this definition shall be considered "staff" and shall meet staff requirements.

[ 22VAC40-185-20. Legal base authority.

A. Chapters 17 (§ 63.2-1700 et seq.) and 18 (§ 63.2-1800 et seq.) of Title 63.2 of the Code of Virginia describes the responsibility of the Department of Social Services for the regulation of residential and day programs for children, including child day centers.

B. Section 63.2-1734 of the Code of Virginia requires the State Board of Social Services to prescribe standards for certain activities, services, and facilities for child day centers. Pursuant to § 63.2-1734, for child day programs that operate at a location that is currently approved by the Department of Education for school occupancy and that houses a public school during the school year, the public school building; vehicles that are owned by the public school and used to transport children attending the child day program; and meals served to children that are prepared by the public school are not subject to inspection or approval.

C. Nothing in this chapter shall be construed to contradict or to negate any provisions of the Code of Virginia which may apply to child day centers. ]

22VAC40-185-30. Purpose and applicability.

A. The purpose of these standards is to protect children under the age of 13 years who are separated from their parents during a part of the day by:

1. Ensuring that the activities, services, and facilities of centers are conducive to the well-being of children; and

2. Reducing risks in the environment.

B. The standards in this chapter apply to child day centers as defined in 22VAC40-185-10 serving children under the age of 13 that are required to be licensed by the department.

22VAC40-185-40. Operational responsibilities.

A. Applications for licensure shall conform with Chapters 17 (§ 63.2-1700 et seq.) and 18 (§ 63.2-1800 et seq.) of Title 63.2 of the Code of Virginia and the regulation entitled General Procedures and Information for Licensure, 22VAC40-80.

B. Pursuant to §§ 63.2-1719, 63.2-1720.1, and 63.2-1721.1 of the Code of Virginia and the regulation entitled Background Checks for Child Welfare Agencies, 22VAC40-191, the applicant and any agent at the time of application who is or will be involved in the day-to-day operations of the center or who is or will be alone with, in control of, or supervising one or more of the children, shall be of good character and reputation [ and; ] shall not [ be have been ] guilty of an offense as defined in § 63.2-1719 of the Code of Virginia convicted of a barrier crime as defined in § 19.2-392.02 of the Code of Virginia [ ; and is not the subject of a founded complaint of child neglect or abuse within or outside the Commonwealth ].

C. The sponsor shall afford the commissioner or his agents the right at all reasonable times to inspect facilities and to interview his agents, employees, and any child or other person within his custody or control, provided that no private interviews may be conducted with any child without prior notice to the parent of such child.

D. The license shall be posted in a place conspicuous to the public (§ 63.2-1701 of the Code of Virginia).

E. The operational responsibilities of the licensee shall include, but not be limited to, ensuring that the center's activities, services, and facilities are maintained in compliance with these standards, the center's own policies and procedures that are required by these standards, and the terms of the current license issued by the department.

F. Every center shall ensure that [ any ] advertising is not misleading or deceptive as required by § 63.2-1713 of the Code of Virginia.

G. The center shall meet the proof of child identity and age requirements as stated in § 63.2-1809 of the Code of Virginia.

H. The sponsor shall maintain public liability insurance for bodily injury for each center site with a minimum limit of at least $500,000 each occurrence and with a minimum limit of $500,000 aggregate.

1. A public sponsor may have equivalent self-insurance that is in compliance with the Code of Virginia.

2. Evidence of insurance coverage shall be made available to the department's representative upon request.

I. The center shall develop written procedures for injury prevention.

J. Injury prevention procedures shall be updated at least annually based on documentation of injuries and a review of the activities and services.

K. The center shall develop written procedures for prevention of shaken baby syndrome or abusive head trauma, including coping with crying babies, safe sleeping practices, and sudden infant death syndrome awareness.

L. The center shall inform all staff who work with children of children's allergies, sensitivities, and dietary restrictions.

M. The center shall maintain, in a way that is accessible to all staff who work with children, a current written list of all children's allergies, sensitivities, and dietary restrictions [ documented in the allergy plan required in 22VAC40-185-60 A 8 ]. This list shall be dated and kept confidential in each room or area where children are present.

N. The center shall develop written playground safety procedures which that shall include:

1. Provision for active supervision by staff to include positioning of staff in strategic locations, scanning play activities, and circulating among children; and

2. Method of maintaining resilient surface.

L. O. Hospital-operated centers may temporarily exceed their licensed capacity during a natural disaster or other catastrophe or emergency situation and shall develop a written plan for emergency operations, for submission to and approval by the Department of Social Services.

M. P. When children 13 years or older are enrolled in the program and receive supervision in the licensed program, they shall be counted in the number of children receiving care and the center shall comply with the standards for these children.

22VAC40-185-60. Children's records.

A. Each center shall maintain and keep at the center a separate record for each child enrolled, which shall contain the following information:

1. Name, nickname (if any), sex, and birth date of the child;

2. Name, home address, and home phone number of each parent who has custody;

3. When applicable, work phone number and place of employment of each parent who has custody;

4. Name and phone number of child's physician;

5. Name, address, and phone number of two designated people to call in an emergency if a parent cannot be reached;

6. Names of persons authorized to pick up the child. Appropriate legal paperwork shall be on file when the custodial parent requests the center not to release the child to the other parent;

7. Allergies and intolerance to food, medication, or any other substances, and actions to take in an emergency situation;

8. A written care plan for each child with a diagnosed food allergy, to include instructions from a physician regarding the food to which the child is allergic and the steps to be taken in the event of a suspected or confirmed allergic reaction [ .; ]

9. Chronic physical problems and pertinent developmental information and any special accommodations needed;

9. Health information as required by 22VAC40-185-130 through 22VAC40-185-150;

Exception: When a center is located on the same premises where a child attends school and the child's record has a statement verifying the school's possession of the health record, the center is not required to maintain duplicates of the school's health record for that child provided the school's records are accessible during the center's hours of operation.

10. Written agreements between the parent and the center as required by 22VAC40-185-90;

11. Documentation of child updates and confirmation of up-to-date information in the child's record as required by 22VAC40-185-420 E 3;

12. Any blanket permission slips and opt out requests;

13. Previous child day care and schools attended by the child;

14. Name of any additional programs or schools that the child is concurrently attending and the grade or class level;

15. Documentation of viewing proof of the child's identity and age; and

16. First and last dates of attendance;

17. Documentation of health information as required by 22VAC40-185-130, 22VAC40-185-140, and 22VAC40-185-150; and

18. Documentation of the enrollment of a homeless child enrolled under provision of 22VAC40-185-130 C or 22VAC40-185-140 A.

B. The requirements in subdivision A 17 of this section does not apply, and the center is not required to maintain duplicates of the school's health record if:

1. The center is located on the same premises where a child attends school;

2. The child's record has a statement verifying the school's possession of the health record; and

3. The school's records are accessible during the center's hours of operation.

C. The proof of identity, if reproduced or retained by the child day program or both, shall be destroyed upon the conclusion of the requisite period of retention. The procedures for the disposal, physical destruction or other disposition of the proof of identity containing social security numbers shall include all reasonable steps to destroy such documents by (i) shredding, (ii) erasing, or (iii) otherwise modifying the social security numbers in those records to make them unreadable or indecipherable by any means.

22VAC40-185-70. Staff records.

[ A. ] The following staff records shall be kept for each staff person:

1. Name, address, verification of age requirement, job title, and date of employment or volunteering; and name, address, and telephone number of a person to be notified in an emergency which shall be kept at the center.

2. For staff hired after March 1, 1996, documentation that two or more references as to character and reputation as well as competency were checked before employment or volunteering. If a reference check is taken over the phone, documentation shall include:

a. Dates of contact;

b. Names of persons contacted;

c. The firms contacted;

d. Results; and

e. Signature of person making call.

3. Background checks as required by the regulation entitled Background Checks for Licensed Child Day Centers (22VAC15-51) Child Welfare Agencies (22VAC40-191).

4. Written information Documentation to demonstrate that the individual possesses the education, orientation training, staff development, certification, and experience required by the job position, and orientation and training as required in 22VAC40-185-240 and 22VAC40-185-245.

5. First aid, cardiopulmonary resuscitation and other certifications as required by the responsibilities held by the staff member.

6. Health information as required by 22VAC40-185-160 and 22VAC40-185-170.

7. Information, to be kept at the center, about any health problems which that may interfere with fulfilling the job responsibilities.

8. Date of separation from employment.

[ B. Exception: Background check records for independent contractors must be kept in accordance with 22VAC15-51-70 of the background check regulation Background Checks for Child Welfare Agencies (22VAC40-191). ]

22VAC40-185-80. Attendance records; reports.

A. The center shall keep a written record of children in attendance each day. For each group of children, the center shall maintain a written record of daily attendance [ in each classroom ] that documents the arrival and departure of each child in care as it occurs.

B. Reports shall be filed and maintained as follows:

1. The center shall inform the commissioner's representative as soon as practicable but not to exceed one working business day of the circumstances surrounding the following incidents:

a. Death of a child while under the center's supervision; and

b. Missing child when local authorities have been contacted for help; [ and or ]

c. The suspension or termination of all child care services for more than 24 hours as a result of an emergency situation and any plans to resume child care.

2. The center shall inform the department's representative as soon as practicable, but not to exceed two business days, of any [ serious ] injury to a child [ that occurs ] while [ the child is ] under the [ center's supervision of the center and requires outside medical attention ].

3. Any suspected incident of child abuse shall be reported in accordance with § 63.2-1509 of the Code of Virginia.

22VAC40-185-130. Immunizations for children.

A. The center shall obtain documentation that each child has received the immunizations required by the State Board of Health before the child can attend the center.

Exemptions (subsection C of § 22.1-271.2 of the Code of Virginia and 12VAC5-110-110 of the Regulations for the Immunizations of School Children): Documentation of immunizations is not required for any child whose (i) parent submits an affidavit to the center, on the form entitled "Certification of Religious Exemption," stating that the administration of immunizing agents conflicts with the parent's or child's religious tenets or practices, or (ii) physician or a local health department states on a MCH 213B or MCH 213C, or other Department of Health-approved form that one or more of the required immunizations may be detrimental to the child's health.

B. The center may allow a child to attend contingent upon a conditional enrollment for a period of 90 days if the child received at least one dose of each of the required vaccines and the child possesses a plan from a physician or local health department for completing his immunization requirements within the ensuing 90 calendar days. If the child requires more than two doses of hepatitis B vaccine, the conditional enrollment period, for hepatitis B vaccine only, shall be 180 calendar days.

C. If a child is homeless and does not have documentation of the required immunizations, the center may allow the child to attend during a grace period of no more than 90 days to allow the parent or guardian time to obtain documentation of required immunizations.

D. Documentation related to the child's conditional enrollment shall be maintained in the child's record.

E. The center shall obtain documentation of additional immunizations once every six months for children under the age of two years.

C. F. The center shall obtain documentation of additional immunizations once between each child's fourth and sixth birthdays.

G. Pursuant to subsection C of § 22.1-271.2 of the Code of Virginia, documentation of immunizations is not required for any child whose:

1. Parent submits an affidavit to the center on the current form approved by the Virginia Department of Health stating that the administration of immunizing agents conflicts with the parent's or child's religious tenets or practices; or

2. Physician or a local health department states on a Department of Health-approved form that one or more of the required immunizations may be detrimental to the child's health, indicating the specific nature and probable duration of the medical condition or circumstance that contraindicates immunization.

22VAC40-185-140. Physical examinations for children.

A. Each child shall have a physical examination by or under the direction of a physician:

1. Before the child's attendance; or

2. Within one month 30 days after the first day of attendance.

If a child is homeless and does not have documentation of a physical examination, the center may allow the child to attend during a grace period of no more than 90 days to allow the parent or guardian time to obtain documentation of the required physical examination.

B. If the child has had a physical examination prior to attendance, it shall be within the time period prescribed below in this subsection:

1. Within two months prior to attendance for children six months of age and younger;

2. Within three months prior to attendance for children aged seven months through 18 months;

3. Within six months prior to attendance for children aged 19 months through 24 months; and

4. Within 12 months prior to attendance for children two years of age through five years of age.

C. Exceptions:

1. Children transferring from a facility licensed by the Virginia Department of Social Services, certified by a local department of public welfare or social services, registered as a small family day home by the Virginia Department of Social Services or by a contract agency of the Virginia Department of Social Services, or approved by a licensed family day system:

a. If the initial report or a copy of the initial report of immunizations is available to the admitting facility, no additional examination is required.

b. If the initial report or a copy of the initial report is not available, a report of physical examination and immunization is required in accordance with 22VAC40-185-130 and this section.

2. C. When a child transfers from a facility licensed by the Virginia Department of Social Services, approved by a licensed family day system, [ or ] voluntarily registered by the Virginia Department of Social Services [ or approved by the Virginia Department of Education ], a new physical examination is not required if a copy of the physical examination from the originating program is maintained in the child's record.

D. Pursuant to subsection D of § 22.1-270 of the Code of Virginia, physical examinations are not required for any child whose parent objects on religious grounds. The parent must submit a signed statement noting that the parent objects on religious grounds and certifying that to the best of the parent's knowledge the child is in good health and free from communicable or contagious disease.

E. A new physical examination is not required for a school age child if a copy of the physical examination required for his entry into a Virginia public kindergarten or elementary school is kept in the child's record.

[ 22VAC40-185-160. Tuberculosis screening for staff and independent contractors.

A. Each staff member and individual from an independent contractor shall submit documentation of a negative tuberculosis screening.

Documentation of the screening shall be submitted no later than 21 days after employment or volunteering and shall have been completed within 12 months prior to or 21 days after employment or volunteering.

1. Documentation of the screening shall be submitted at the time of employment and prior to coming into contact with children.

2. The documentation shall have been completed within the last 30 calendar days of the date of employment and be signed by a physician, physician’s designee, or an official of the local health department.

B. Acceptable forms of documentation of tuberculosis screening are:

1. A clearance statement signed by a physician, the physician's designee or an official of the local health department. This statement shall include language that the individual does not have any current symptoms of active tuberculosis, does not have either a risk factor for acquiring tuberculosis infection or a risk factor for progression to active tuberculosis disease as defined by the local health department, or has been treated for these conditions in the past, and is currently free of tuberculosis in a communicable form. Individuals who have a risk factor for progression to active tuberculosis disease as defined by the Virginia Department of Health shall submit documentation as stated in subdivision 2 or 3 of this subsection;

2. The results of a negative tuberculin skin test (TST). The documentation shall include the date the test was given and results of the test and be signed by a physician, physician's designee or an official of the local health department.

3. The results of a chest x-ray negative for active tuberculosis disease. The documentation shall include the date of the test and location where the examination was performed.

C. At least every two years from the date of the initial screening or testing, or more frequently if recommended by a licensed physician or the local health department, staff members and individuals from independent contractors shall obtain and submit the results of a follow-up tuberculosis screening as stated in subsection B of this section.

D. Any staff member or individual from an independent contractor who develops symptoms compatible with active tuberculosis disease, regardless of the date of the last tuberculosis screening or assessment, shall obtain and submit within 14 days a determination of noncontagiousness by a physician or local health department.

1. Until such determination is made, that staff member may not be permitted to work at the center.

2. Any staff member or individual from an independent contractor who comes in contact with a known active case of tuberculosis or who tests positive on a tuberculin skin test, regardless of the date of the last tuberculosis screening or assessment, shall submit within 30 days a statement indicating that all needed follow-up for the incident has been completed and that the individual is free of tuberculosis in a communicable form. This statement shall be signed by a physician, physician's designee or an official of the local health department.

22VAC40-185-180. General qualifications.

A. No staff shall be guilty of an offense, as defined in § 63.2-1719 of the Code of Virginia.

B. Staff shall be:

1. Of good character and reputation;

2. Capable of carrying out assigned responsibilities;

3. Capable of accepting training and supervision; and

4. Capable of communicating effectively both orally and in writing as applicable to the job responsibility.

C. B. Staff who work directly with children shall be capable of communicating with emergency personnel.

D. C. Staff who drive a vehicle transporting children shall disclose any moving traffic violation that occurred five years prior to or during employment or assignment as a driver.

E. D. For therapeutic child day programs and special needs child day programs, staff who work with children shall have knowledge of the groups being served and skills specific to the special needs of the children in care including, but not limited to, functional abilities, accommodations, assessment techniques, behavior management, and medical and health concerns. ]

22VAC40-185-190. Program director qualifications.

A. Program directors shall be at least 21 years of age and shall meet one of the following:

1. A graduate degree in a child-related field such as, but not limited to, elementary education, nursing, or recreation from a college or university and six months of programmatic experience;

2. An endorsement or bachelor's degree in a child-related field such as, but not limited to, elementary education, nursing, or recreation from a college or university and one year of programmatic experience;

3. Forty-eight semester hours or 72 quarter hours of college credit from a college or university of which 12 semester hours or 18 quarter hours are in child-related subjects and one year of programmatic experience;

4. Two years of programmatic experience with one year in a staff supervisory capacity and at least one of the following education backgrounds:

a. A one-year early childhood certificate from a college or university that consists of at least 30 semester hours;

b. A child development credential that requires:

(1) High school program completion or the equivalent;

(2) 480 hours working with children in a group which could include a supervised practicum; and

(3) Determination of competency in promoting children's development, providing a safe and healthy environment, managing the classroom environment and/or or childhood program, and promoting positive and productive relationships with parents/guardians parents or guardians; and

(4) At least 120 clock hours of child-related training taught by an individual or by an organization with expertise in early childhood teacher preparation provided that the training facilitator:

(a) Documents the student's mastery and competence;

(b) Observes the student's application of competence in a classroom setting;

(c) Has a combination of at least six years of education (leading to a degree or credential in a child-related field) or programmatic experience; and

(d) Has at least 12 semester hours or 180 clock hours in a child-related field, a child development credential or equivalent, and two years of programmatic experience with one year in a staff supervisory capacity; or

c. A certification of qualification from an internationally or nationally recognized Montessori organization; or.

5. Three years of programmatic experience including one year in a staff supervisory capacity and fulfilled a high school program completion or the equivalent.

a. Such programmatic experience shall be obtained in a child day center that offers a staff training program that includes: written goals and objectives; assessment of the employee's participation in the training; and the subject areas of first aid, human growth and development, health and safety issues and behavioral management of children.

b. Such employees shall complete 120 hours of training during this three-year period and provide documentation of completing the training.

c. Effective June 1, 2008, program directors shall meet a qualification as stated in subdivisions 1 through 4 of this subsection.

6. Exception (a): Program directors hired before June 1, 2005, who do not meet the qualifications may continue to be program directors as long as the program director: (i) obtains each year three semester hours or six quarter hours of college credit related to children until meeting a qualification option or (ii) is enrolled in and regularly works toward a child development credential as specified in subdivision 4 b of this subsection, which credential must be awarded by June 1, 2009.

Exception (b): Program directors hired or promoted on or after June 1, 2005, until June 1, 2006, who do not meet the qualifications may continue to be program directors as long as the program director: (i) obtains each year six semester hours or nine quarter hours of college credit related to children until meeting a qualification option or (ii) is enrolled in and regularly works toward a child development credential as specified in subdivision 4 b of this subsection, which credential must be awarded no later than June 1, 2007.

B. Program directors without management experience shall have one college course in a business-related field, 10 clock hours of management training, or one child care management course that satisfactorily covers the management functions of:

1. Planning;

2. Budgeting;

3. Staffing; and

4. Monitoring.

*Note: Management experience is defined as at least six months of on-the-job training in an administrative position that requires supervising, orienting, training, and scheduling staff.

C. For program directors of therapeutic child day programs and special needs child day programs, education and programmatic experience shall be in the group care of children with special needs.

D. Notwithstanding subsection A of this section, a person between 19 and 21 years of age may serve as a program director at a short-term program serving only school age children if the program director has daily supervisory contact by a person at least 21 years of age who meets one of the program director qualification options.

[ E. A program director employed prior to September 21, 2021, who met the education and experience qualifications in effect immediately prior to September 21, 2021, and who has been continuously employed as a child day center director, is considered to have met the requirements of this section. ]

22VAC40-185-220. Aides.

[ A. ] Aides shall be at least 16 years of age.

[ B. Aides under 18 years of age may be included as staff in staff-to-children ratios but shall not be left alone with children. ]

22VAC40-185-240. Staff training and development orientation.

A. [ Staff shall ] receive the following training by the end of their first day of assuming job responsibilities [ complete a minimum of 16 hours of orientation training appropriate to the age of the children in care. B. ] The Virginia Department of Social Services-sponsored orientation course shall be completed within 90 calendar days of employment.

[ B. Staff shall complete orientation training in subsection C of this section prior to the staff member working alone with children and no later than seven days of the date of assuming job responsibilities. ]

[ C. ] Orientation [ shall include all topics within this section. training shall be appropriate to the age of the children in care and include all of the following facility specific topics; ]

[ D. Orientation training for staff shall be completed on the following facility specific topics prior to the staff member working alone with children and within seven days of the date of employment: ]

1. Job responsibilities and to whom they report;

2. The policies and procedures listed in subsection B [ E D ] of this section [ and, ] 22VAC40-185-420 A [ , and the standards in this chapter ] that relate to the staff member's responsibilities;

3. The center's playground safety procedures unless the staff member will have no responsibility for playground activities or equipment;

4. Recognizing child abuse and neglect and the legal requirements for reporting suspected child abuse as required by § 63.2-1509 of the Code of Virginia;

5. Confidential treatment of personal information about children in care and their families; and

6. [ The standards in this chapter that relate to the staff member's responsibilities;

7. ] The center's policies and procedures on the administration of medication;

[ 8. 7. ] Emergency preparedness and response planning for emergencies resulting from a natural disaster or a human-caused event such as violence at a child care facility and the emergency preparedness plan as required by 22VAC40-185-550 A through K;

[ 9. 8. ] Prevention of sudden infant death syndrome and use of safe sleep practices;

[ 10. 9. ] Prevention of shaken baby syndrome and abusive head trauma, including procedures to cope with crying babies or distraught children; [ and ]

[ 11. 10. ] Prevention of and response to emergencies due to food and other allergic reactions including:

a. Recognizing the symptoms of an allergic reaction;

b. Responding to allergic reactions;

c. Preventing exposure to the specific food and other substances to which the child is allergic; [ and ]

d. Preventing cross contamination [ and

11. Prevention and control of disease. ]

B. By the end of the first day of supervising children [ E D ] Prior to working alone with children and within seven days of the first day of employment, staff shall be provided in writing with the center's information listed in 22VAC40-185-420 A and the following:

1. Procedures for supervising a child who may arrive after scheduled classes or activities including field trips have begun;

2. Procedures to confirm absence of a child when the child is scheduled to arrive from another program or from an agency responsible for transporting the child to the center;

3. Procedures for identifying where attending children are at all times, including procedures to ensure that all children are accounted for before leaving a field trip site and upon return to the center;

4. Procedures for action in case of lost or missing children, ill or injured children, medical emergencies, and general emergencies;

5. Policy for any administration of medication; and

6. Procedures for response to natural and man-made disasters Emergency evacuation, relocation, shelter-in-place, and lockdown procedures; and

7. Precautions in transporting children, if applicable.

C. Program directors and staff who work directly with children shall annually attend 10 hours of staff development activities that shall be related to child safety and development and the function of the center. Such training hours shall increase according to the following:

1. June 1, 2006 - 12 hours

2. June 1, 2007 - 14 hours

3. June 1, 2008 - 16 hours

4. Staff development activities to meet this subsection may include up to two hours of training in first aid or cardiopulmonary resuscitation. Staff development activities to meet this subsection may not include rescue breathing and first responder as required by 22VAC40-185-530 and training in medication administration and daily health observation of children as required by subsection D of this section.

5. Exceptions to training requirements are as follows:

a. Staff who drive a vehicle transporting children and do not work with a group of children at the center do not need to meet the annual training requirement.

b. In a cooperative preschool center that is organized, administered, and maintained by parents of children in care, parent volunteers, or other persons who participate and volunteer in a cooperative preschool center on behalf of a child attending such cooperative preschool center, including such volunteers who are counted in the staff-to child ratios required in 22VAC40-185-340, shall complete four hours of training per year and shall be exempt from orientation and training requirements applicable to staff of child day programs. This orientation and training exemption shall not apply to any parent volunteer or other person as referred to in this subdivision if the cooperative preschool center has entered into a contract with the department or a local department to provide child care services funded by the Child Care and Development Block Grant.

c. Staff who are employed at a short-term program shall obtain 10 hours of staff training per year.

D. 1. To safely perform medication administration practices listed in 22VAC40-185-510, whenever the center has agreed to administer prescribed medications, the administration shall be performed by a staff member or independent contractor who has satisfactorily completed a training program for this purpose approved by the Board of Nursing and taught by a registered nurse, licensed practical nurse, doctor of medicine or osteopathic medicine, or pharmacist; or administration shall be performed by a staff member or independent contractor who is licensed by the Commonwealth of Virginia to administer medications.

a. The approved training curriculum and materials shall be reviewed by the department at least every three years and revised as necessary.

b. Staff required to have the training shall be retrained at three-year intervals.

2. The decision to administer medicines at a facility may be limited by center policy to:

a. Prescribed medications;

b. Over-the-counter or nonprescription medications; or

c. No medications except those required for emergencies or by law.

3. To safely perform medication administration practices listed in 22VAC40-185-510, whenever the center has agreed to administer over-the-counter medications other than topical skin gel, cream, or ointment, the administration must be performed by a staff member or independent contractor who has satisfactorily completed a training course developed or approved by the Department of Social Services in consultation with the Department of Health and the Board of Nursing and taught by an R.N., L.P.N., physician, or pharmacist; or performed by a staff member or independent contractor who is licensed by the Commonwealth of Virginia to administer medications.

a. The course, which shall include competency guidelines, shall reflect currently accepted safe medication administration practices, including instruction and practice in topics such as, but not limited to, reading and following manufacturer's instructions; observing relevant laws, policies and regulations; and demonstrating knowledge of safe practices for medication storage and disposal, recording and reporting responsibilities, and side effects and emergency recognition and response.

b. The approved training curriculum and materials shall be reviewed by the department at least every three years and revised as necessary.

c. Staff required to have the training shall be retrained at three-year intervals.

4. Any child for whom emergency medications (such as but not limited to albuterol, glucagon, and epipen) have been prescribed shall always be in the care of a staff member or independent contractor who meets the requirements in subdivision 1 of this subsection.

5. There shall always be at least one staff member on duty who has obtained within the last three years instruction in performing the daily health observation of children.

6. Daily health observation training shall include:

a. Components of daily health check for children;

b. Inclusion and exclusion of the child from the class when the child is exhibiting physical symptoms that indicate possible illness;

c. Descriptions of how diseases are spread and the procedures or methods for reducing the spread of disease;

d. Information concerning the Virginia Department of Health Notification of Reportable Diseases pursuant to 12VAC5-90-80 and 12VAC5-90-90, also available from the local health department and the website of the Virginia Department of Health; and

e. Staff occupational health and safety practices in accordance with Occupational Safety and Health Administration's (OSHA) Bloodborne Pathogens regulation.

[ E. Within 30 days of the first day of employment, staff must complete orientation training in first aid and cardiopulmonary resuscitation (CPR), as appropriate to the age of the children in care. ]

E. F. Before assuming job responsibilities, staff who work with children in therapeutic child day programs and special needs child day programs shall receive training in:

1. [ Universal Standard ] precautions procedures;

2. Activity adaptations;

3. Medication administration;

4. Disabilities precautions and health issues; and

5. Appropriate intervention strategies.

F. For therapeutic child day programs and special needs child day programs, staff who work directly with children shall annually attend 24 hours of staff development activities. At least eight hours of this training shall be on topics related to the care of children with special needs.

[ G. Staff who are employed prior to (insert the effective date of this chapter) shall complete the Virginia Department of Social Services-sponsored orientation training as required by this section within one year of (insert the effective date of this chapter). This training may count toward staff ongoing training requirements in 22VAC40-185-245.

H. G. ] Volunteers who work more than six hours per week shall receive training on the center's emergency procedures within the first week of volunteering [ and on annual basis ].

[ H. In a cooperative preschool center that is organized, administered, and maintained by parents of children in care, parent volunteers, or other persons who participate and volunteer in a cooperative preschool center on behalf of a child attending such cooperative preschool center, including such volunteers who are counted in the staff-to-child ratios required in 22VAC40-185-340, shall complete four hours of training per year, and shall be exempt from orientation requirements applicable to staff of child day programs. This orientation exemption shall not apply to any parent volunteer or other person as referred to in this subsection if the cooperative preschool center has entered into a contract with the department or a local department to provide child care services funded by the Child Care and Development Block Grant. ]

I. Documentation of orientation training shall be kept by the center in a manner that allows for identification by individual staff member, is considered part of the staff member's record, and shall include:

1. Name of staff;

2. Training topics;

3. Training delivery method;

4. The entity or individual providing training; [ and ]

5. [ The total number of training hours or credit hours of orientation training received; and

6. ] The date of training.

22VAC40-185-245. Ongoing training.

A. Staff shall complete annually a minimum of [ 20 16 ] hours of training appropriate to the age of children in care.

B. [ Exceptions to subsection A of this section are as follows:

1. Staff who do not work with a group of children at the center shall only be required to complete annual training on emergency preparedness and response, child abuse and neglect, and mandated reporter requirements.

2. Staff who are employed at a short-term program shall obtain a minimum of 10 hours of staff training per year.

C. In a cooperative preschool center that is organized, administered, and maintained by parents of children in care, parents who are not considered staff shall complete four hours of training each year. D. Training completed to meet the requirements of this section shall be in addition to completing orientation requirements in 22VAC40-185-240.

C. Staff who do not work with a group of children at the center shall only be required to complete annual training on emergency preparedness and response, child abuse and neglect, and mandated reporter requirements.

D. Staff who work with a group of children at the center and are employed at a short-term program shall only be required to obtain a minimum of 10 hours of staff training per year.

E. In a cooperative preschool center that is organized, administered, and maintained by parents of children in care, parent volunteers, or other persons who participate and volunteer in a cooperative preschool center on behalf of a child attending such cooperative preschool center, including such volunteers who are counted in the staff-to-child ratios required in 22VAC40-185-340, shall complete four hours of training per year and shall be exempt from training requirements applicable to staff of child day programs. This training exemption shall not apply to any parent volunteer or other person as referred to in this subsection if the cooperative preschool center has entered into a contract with the department or a local department to provide child care services funded by the Child Care and Development Block Grant.

F. Volunteers who work more than six hours per week shall be required to complete annual training on the center's emergency procedures.

G. ] For therapeutic child day programs and special needs child day programs, staff who work directly with children shall annually complete four additional hours of training. At least eight hours of annual training shall be on topics related to the care of children with special needs.

[ E. H. ] Annual training shall be relevant to staff's job responsibilities and the care of children, and include topics such as:

1. Child development including physical, cognitive, social, and emotional development;

2. Behavior management and positive guidance techniques;

3. Prevention and control of infectious diseases;

4. Prevention of sudden infant death syndrome and use of safe sleep practices;

5. Prevention of and response to emergencies due to food and other allergic reactions including:

a. Recognizing the symptoms of an allergic reaction;

b. Responding to allergic reactions;

c. Preventing exposure to the specific food and other substances to which the child is allergic; and

d. Preventing cross contamination;

6. The center's policies and procedures on the administration of medication;

7. Building and physical premises safety, including identification of and protection from hazards that can cause bodily injury such as electrical hazards, bodies of water, and vehicular traffic;

8. Prevention of shaken baby syndrome and abusive head trauma including procedures to cope with crying babies or distraught children;

9. Signs and symptoms of child abuse and neglect and requirements for mandated reporters;

10. Emergency preparedness and response planning for emergencies resulting from a natural disaster or a human-caused event such as violence at a child care facility and the center's specific emergency preparedness plan as required 22VAC40-185-550 A through K;

11. Handling and storage of hazardous materials and the appropriate disposal of diapers and other items contaminated by body fluids;

12. [ CPR and first aid;

13. ] Precautions in transporting children if applicable; and

[ 13. 14. ] If applicable, the recommended care requirements related to the care and development of children with special needs.

[ F. I ] Training on the center's emergency preparedness plan shall be completed annually and each time the plan is updated.

[ G. J. ] Medication administration [ and daily health observation ]:

1. To safely perform medication administration practices listed in 22VAC40-185-510, whenever the center has agreed to administer prescribed medications, the administration shall be performed by a staff member or independent contractor who has satisfactorily completed a training program for this purpose approved by the Board of Nursing and taught by a registered nurse, licensed practical nurse, nurse practitioner, physician assistant, doctor of medicine or osteopathic medicine, or pharmacist pursuant to § 54.1-3408 of the Code of Virginia; or administration shall be performed by a staff member or independent contractor who is licensed by the Commonwealth of Virginia to administer medications.

a. The approved training curriculum and materials shall be reviewed by the department at least every three years and revised as necessary.

b. Staff required to have the training shall be retrained at three-year intervals.

[ 2. The decision to administer medicines at a facility may be limited by center policy to:

a. Prescribed medications;

b. Over-the-counter or nonprescription medications; or

c. No medications except those required for emergencies or by law.

3. 2. ] To safely perform medication administration practices listed in 22VAC40-185-510, whenever the center has agreed to administer over-the-counter medications other than topical skin gel, cream, or ointment, the administration must be performed by a staff member or independent contractor who has satisfactorily completed a training course developed or approved by the Department of Social Services in consultation with the Department of Health and the Board of Nursing and taught by [ an a ] registered nurse, licensed practical nurse, nurse practitioner, physician assistant, doctor of medicine or osteopathic medicine, or pharmacist; or [ administration shall be ] performed by a staff member or independent contractor who is licensed by the Commonwealth of Virginia to administer medications.

a. The course, which shall include competency guidelines, shall reflect currently accepted safe medication administration practices, including instruction and practice in topics such as reading and following manufacturer's instructions; observing relevant laws, policies, and regulations; and demonstrating knowledge of safe practices for medication storage and disposal, recording and reporting responsibilities, and side effects and emergency recognition and response.

b. The approved training curriculum and materials shall be reviewed by the department at least every three years and revised as necessary.

c. Staff required to have the training shall be retrained at three-year intervals.

[ 4. 3. ] Any child for whom emergency medications (such as albuterol, glucagon, and [ epipen epinephrine auto injector ]) have been prescribed shall always be in the care of a staff member or independent contractor who meets the requirements in subdivision 1 of this subsection.

[ 5. There shall always be at least one staff member on duty who has obtained within the last three years instruction in performing the daily health observation of children.

6. K. ] Daily health observation training shall include [ the following ]:

[ a. 1. ] Components of daily health check for children;

[ b. 2. ] Inclusion and exclusion of the child from the class when the child is exhibiting physical symptoms that indicate possible illness;

[ c. 3. ] Descriptions of how diseases are spread and the procedures or methods for reducing the spread of disease;

[ d. 4. ] Information concerning the Virginia Department of Health Notification of Reportable Diseases pursuant to 12VAC5-90-80 and 12VAC5-90-90, also available from the local health department and the website of the Virginia Department of Health; and

[ e. 5. ] Staff occupational health and safety practices in accordance with Occupational Safety and Health Administration's bloodborne pathogens regulation (29 CFR 1910.1030).

[ H. L. There shall always be at least one staff member on duty who has obtained within the last three years instruction in performing the daily health observation of children. ]

M. ] Documentation of training shall be kept by the center in a manner that allows for identification by individual staff member, is considered part of the staff member's record, and shall include:

1. Name of staff;

2. Training topic;

3. Evidence that training on each topic required in this section has been completed;

4. Training delivery method;

5. The entity or individual providing training;

6. The number of training hours or credit hours received; and

7. The date of training.

[ N. Medication administration training required in subsection J of this section and daily health observation training required in subsection K of this section may count toward the annual training hours required in this section.

22VAC40-185-320. Restroom areas and furnishings.

A. Centers shall be provided with have at least two toilets and two sinks.

B. Each restroom area provided for children shall:

1. Be within a contained area, readily available and within the building used by the children (Exception: (Restrooms used by school age children at camps are not required to be located within the building);

2. Have toilets that are flushable;

3. Have sinks located near the toilets and that are supplied with running warm water that does not exceed 120°F (Exception: (Camps are exempt from the requirement that running water be warm); and

4. Be equipped with soap, toilet paper, and disposable towels or an air dryer within reach of children.

C. For restrooms available to males, urinals shall not be substituted for more than one-half the required number of toilets.

D. An adult size toilet with privacy shall be provided for staff use. Staff toilets may be counted in the number of required toilets for children only if children are allowed unrestricted access to them. Primitive camps are not required to have a toilet with privacy for staff.

Exception: Primitive camps are not required to have a toilet with privacy for staff.

E. Centers shall be provided with have at least one toilet and one sink per 20 preschool children and at least one standard size toilet and one sink per 30 school age children. When sharing restroom areas with other programs, the children in those programs shall be included in the toilet and sink ratio calculations. The toilet and sink ratio appropriate to the younger age group shall apply.

F. When child size toilets, urinals, and low sinks are not available in restrooms used by children of preschool age and younger, one or more platforms or sets of steps shall be provided.

G. School age children of the opposite sex shall not use the same restroom at the same time.

H. G. A restroom used for school age children that contains more than one toilet shall have at least one toilet enclosed.

I. H. Restrooms used by school age children at primitive camps are not required to have:

1. Sinks, if adequate water, supplies, and equipment for hand washing are available; and

2. Flushable toilets, if the number of sanitary privies or portable toilets constructed and operated in accordance with the applicable law and regulations of the Virginia Department of Health meets the toilet ratio stated in subsection E of this section. No privy or outdoor toilet shall be located within 75 feet of other buildings or camp activities. ]

22VAC40-185-350. Staff-to-children ratio and group size requirements.

A. Staff shall be counted in the required staff-to-children ratios only when they are directly supervising children The maximum group size limitations specified in Table 1 shall be followed whenever children are in care.

B. A child volunteer 13 years of age or older not enrolled in the program shall not be counted as a child in the staff-to-children ratio requirements The staff-to-children ratios specified in Table 2 are required whenever children are in care.

C. When children are regularly in ongoing mixed age groups, the staff-to-children ratio and group size applicable to the youngest child in the group shall apply to the entire group.

D. During the designated rest period and the designated sleep period of evening and overnight care programs, the ratio of staff to children may be double the number of children to each staff required by subdivisions E 2 through 4 and 7 of this section if:

1. A staff person is within sight and sound of the resting/sleeping children;

2. Staff counted in the overall rest period ratio are within the building and available to ensure safe evacuation in an emergency; and

3. An additional person is present at the center to help, if necessary.

E. The following ratios of staff to children are required wherever children are in care:

1. For children from birth to the age of 16 months: one staff member for every four children;

2. For children 16 months old to two years: one staff member for every five children;

3. For two-year-old children: one staff member for every eight children effective June 1, 2006;

4. For children from three years to the age of eligibility to attend public school, five years by September 30: one staff member for every 10 children effective June 1, 2006;

5. For children from age of eligibility to attend public school through eight years, one staff member for every 18 children; and

6. For children from nine years through 12 years, one staff member for every 20 children effective June 1, 2006.

7. Notwithstanding subdivisions 4 and 5 of this subsection and subsection C of this section, the ratio for balanced mixed-age groupings of children shall be one staff member for every 14 children, provided:

a. If the program leader has an extended absence, there shall be sufficient substitute staff to meet a ratio of one staff member for every 12 children.

b. The center shall have readily accessible and in close classroom proximity auxiliary persons sufficient to maintain a 1:10 adult-to-child ratio for all three-year-olds who are included in balanced mixed-age groups to be available in the event of emergencies.

c. The program leader has received training in classroom management of balanced mixed-age groupings of at least eight hours.

F. D. Group size limitations shall not apply during:

1. Designated rest periods as described in this section;

2. Outdoor activity as described in 22VAC40-185-370, 22VAC40-185-380, and 22VAC40-185-390;

3. Transportation and field trips as described in 22VAC40-185-580;

4. Meals and snacks served as described in 22VAC40-185-560; or

5. Special group activities, or during the first and last hour of operation when the center operates more than six hours per day.

E. Group size requirements in subsection A of this section do not apply to children school age eligible through 12 years of age.

F. The center shall develop and implement a written policy and procedure that describes how the center will ensure that each group of children receives care by consistent staff or team of staff members.

G. Staff shall be counted in the required staff-to-children ratios only when they are directly supervising children.

H. A child volunteer 13 years of age or older not enrolled in the program shall not be counted as a child in the staff-to-children ratio requirements.

I. For children ages 16 months through preschool age, during the designated rest period, when children are resting or in an inactive state, the following rest period ratios are permitted if the requirements of subsections J through N of this section are met:

1. Children 16 through 24 months of age: one staff per 10 children.

2. Children two years of age: one staff per 16 children.

3. Children of preschool age: one staff per 20 children.

J. Staff required by rest period ratios shall be within sight and sound at all times in the same space as the resting or sleeping children.

K. In addition to the staff required by rest period ratios, an additional staff member shall always be available on-site to offer immediate assistance. The staff required by rest period ratios shall be able to summon the additional staff member without leaving the room or area of the sleeping or resting children.

L. Once at least half of the children in the resting room or area are awake and off their mats or cots, the staff-to-children ratio shall meet the ratios as required in subsection B of this section.

M. One staff member shall not supervise more than one room or area during rest time.

N. Centers providing evening and overnight care shall meet the requirements of subsections I through this subsection of this section during sleep periods.

O. The ratio for balanced-mixed-age groupings of children shall be one staff member for every 14 children provided:

1. The center has additional staff who are readily accessible in the event of an emergency to maintain a ratio of one staff member for every 10 children when three-year-olds are included in the balanced-mixed-age group; and

2. The lead teacher has received at least eight hours of training in classroom management of balanced-mixed-age groupings.

P. A maximum group size of 28 shall be followed whenever children in care are in balanced-mixed-age groupings.

Q. With a parent's written permission and a written assessment by the program director and program leader, a center may choose to assign a child to a different age group if such age group is more appropriate for the child's developmental level and the staff-to-children ratio and group size shall be for the established age group.

1. If such developmental placement is made for a child with a special need, a written assessment by a recognized agency or professional shall be required at least annually. These assignments are intended to be a permanent new group and staff members for the child.

2. A center may temporarily reassign a child from his regular group and staff members for reasons of administrative necessity but not casually or repeatedly disrupt a child's schedule and attachment to his staff members and group.

G. For therapeutic child day programs, in each grouping of children of preschool age or younger, the following ratios of staff to children are required according to the special needs of the children in care:

1. For children with severe and profound disabilities, multiple special needs, serious medical need, or serious emotional disturbance: one staff member to three children.

2. For children diagnosed as trainable mentally retarded (TMR), or with physical and sensory disabilities, or with autism: one staff member to four children.

3. For children diagnosed as educable mentally retarded (EMR) or developmentally delayed or diagnosed with attention deficit/hyperactivity disorder (AD/HD): one staff member to five children.

4. For children diagnosed with specific learning disabilities: one staff member to six children.

5. When children with varied special needs are regularly in ongoing groups, the staff-to-children ratio applicable to the child with the most significant special need in the group shall apply to the entire group.

6. Note: Whenever 22VAC40-185-350 E requires more staff than 22VAC40-185-350 G because of the children's ages, 22VAC40-185-350 E shall take precedence over 22VAC40-185-350 G.

H. For therapeutic child day programs, in each grouping of school age children, the following ratios of staff to children are required according to the special needs of the children in care:

1. For children with severe and profound disabilities, autism, multiple special needs, serious medical need, or serious emotional disturbance: one staff member to four children.

2. For children diagnosed as trainable mentally retarded (TMR), or with physical and sensory disabilities; attention deficit/hyperactivity disorder (AD/HD), or other health impairments: one staff member to five children.

3. For children diagnosed as educable mentally retarded (EMR), or developmentally delayed: one staff member to six children.

4. For children diagnosed with specific learning disabilities, or speech or language impairments: one staff member to eight children.

5. When children with varied special needs are regularly in ongoing groups, the staff-to-children ratio applicable to the child with the most significant special need in the group shall apply to the entire group.

22VAC40-185-355. Staff-to-children ratio requirements for therapeutic and special needs program staff.

A. For therapeutic child day programs, in each grouping of children of preschool age or younger, the following ratios of staff to children are required according to the special needs of the children in care:

1. For children with severe and profound disabilities, multiple special needs, serious medical need, or serious emotional disturbance: one staff member to three children.

2. For children diagnosed as having an intellectual disability with significant sub-average intellectual functioning and deficits in adaptive behavior, or with physical and sensory disabilities, or with autism: one staff member to four children.

3. For children diagnosed as having an intellectual disability in the mild range of development, children with a developmental delay, or children diagnosed with attention deficit/hyperactivity disorder ([ AD/HD ADHD ]): one staff member to five children.

4. For children diagnosed with specific learning disabilities: one staff member to six children.

5. When children with varied special needs are included in a group, the staff-to-children ratio applicable to the child with the most significant special need in the group shall apply to the entire group.

6. Whenever 22VAC40-185-350 B requires more staff than 22VAC40-185-355 A because of the children's ages, 22VAC40-185-350 B shall take precedence over 22VAC40-185-355 A.

B. For therapeutic child day programs, in each grouping of school age children, the following ratios of staff to children are required according to the special needs of the children in care:

1. For children with severe and profound disabilities, autism, multiple special needs, serious medical need, or serious emotional disturbance: one staff member to four children.

2. For children diagnosed as having an intellectual disability with significant sub-average intellectual functioning and deficits in adaptive behavior, or with physical and sensory disabilities, [ AD/HD ADHD ], or other health impairments: one staff member to five children.

3. For children diagnosed as having an intellectual disability in the mild range of development, or developmentally delayed: one staff member to six children.

4. For children diagnosed with specific learning disabilities or speech or language impairments: one staff member to eight children.

5. When children with varied special needs are included in a group, the staff-to-children ratio applicable to the child with the most significant special need in the group shall apply to the entire group.

C. Group size requirements in 22VAC40-185-350 A do not apply to therapeutic child day programs.

[ 22VAC40-185-400. Behavioral guidance.

A. In order to promote the child's physical, intellectual, emotional, and social well-being and growth, staff shall interact with the child and one another to provide needed help, comfort, support and:

1. Respect personal privacy;

2. Respect differences in cultural, ethnic, and family backgrounds;

3. Encourage decision-making abilities;

4. Promote ways of getting along;

5. Encourage independence and self-direction; and

6. Use consistency in applying expectations.

B. Behavioral guidance shall be constructive in nature, age and stage appropriate, and shall be intended to redirect children to appropriate behavior and resolve conflicts.

C. When time out is used as a behavior guidance technique:

1. It shall be used sparingly and shall not exceed one minute for each year of the child's age;

2. It shall be appropriate to the child's developmental level and individual needs;

3. It shall not be used with infants or toddlers;

4. The child shall be in a safe, lighted, well-ventilated place, and within actual sight and sound of a staff member; and

5. The child shall not be left alone inside or outside the center. ]

22VAC40-185-420. Parental involvement.

A. Before the child's first day of attending, parents shall be provided in writing the following:

1. The center's philosophy and any religious affiliation;

2. Operating information, including the hours and days of operation and holidays or other times closed, and the phone number where a message can be given to staff;

3. The center's transportation policy;

4. The center's policies for the arrival and departure of children, including procedures for verifying that only persons authorized by the parent are allowed to pick up the child, picking up children after closing, [ and ] when a child is not picked up for emergency situations including but not limited to inclement weather or natural or man-made disasters;

5. The center's policy regarding any medication or medical procedures that will be given;

6. The center's policy regarding application of:

a. Sunscreen;

b. Diaper ointment or cream; and

c. Insect repellent.

7. Description of established lines of authority for staff;

8. Policy for reporting suspected child abuse as required by § 63.2-1509 of the Code of Virginia;

9. The custodial parent's right to be admitted to the center as required by § 63.2-1813 of the Code of Virginia;

10. Policy for communicating an emergency situation with parents;

11. The appropriate general daily schedule for the age of the enrolling child;

12. Food policies;

13. Discipline policies including acceptable and unacceptable discipline measures; and

14. Termination policies.

B. Staff shall promptly inform parents when persistent behavioral problems are identified; such notification shall include any disciplinary steps taken in response.

C. A custodial parent shall be admitted to any child day program. Such right of admission shall apply only while the child is in the child day program (§ 63.2-1813 of the Code of Virginia).

D. The center shall provide opportunities for parental involvement in center activities.

E. Communication.

1. For each infant, the center shall post a daily record, which can be easily accessed by both the parent and the staff working with the child. The record shall contain the following information:

a. The amount of time the infant slept;

b. The amount of food consumed and the time;

c. A description and time of bowel movements;

d. Developmental milestones; and

e. For infants, who are awake and cannot turn over by themselves, the amount of time spent on their stomachs.

2. If asked by parents, staff shall provide feedback about daily activities, physical well-being, and developmental milestones.

3. Parents shall be provided at least semiannually in writing information on their child's development, behavior, adjustment, and needs.

a. Staff shall provide at least semiannual scheduled opportunities for parents to provide feedback on their children and the center's program.

b. Staff shall request at least annually parent confirmation that the required information in the child's record is up to date.

c. Such sharing of information shall be documented.

d. Short-term programs (as defined in 22VAC40-185-10) are exempt from this requirement.

4. Parents shall be informed of reasons for termination of services.

22VAC40-185-460. Swimming and wading activities; staff and supervision.

A. The staff-to-children ratios required by 22VAC40-185-350 E, G, and H B and 22VAC40-185-355 A and B shall be maintained while children are participating in swimming or wading activities.

1. Notwithstanding the staff-to-children ratios already indicated, at no time shall there be fewer than two staff members supervising the activity.

2. The designated certified lifeguard shall not be counted in the staff-to-children ratios.

B. If a pool, lake, or other swimming area has a water depth of more than two feet, a certified lifeguard holding a current certificate shall be on duty supervising the children participating in swimming or wading activities at all times when one or more children are in the water.

C. The lifeguard certification shall be obtained from an organization such as, but not limited to, the American Red Cross, the YMCA, or the Boy Scouts.

22VAC40-185-500. Hand washing and toileting procedures.

A. Hand washing.

1. Children's hands shall be washed with soap and running water or disposable wipes before and after eating meals or snacks.

2. Children's hands shall be washed with soap and running water after toileting and any contact with blood, feces, or urine.

3. Staff shall wash their hands with soap and running water before and after helping a child use the toilet or a diaper change, after the staff member uses the toilet, after any contact with body fluids, and before feeding or helping children with feeding:

a. Before and after helping a child use the toilet;

b. Before and after a diaper change;

c. After the staff member uses the toilet;

d. After any contact with body fluids;

e. Before feeding or helping children with feeding; and

f. Before preparing or serving food or beverages.

4. Exception: If running water is not available, a germicidal cleansing agent administered per manufacturer's instruction may be used.

B. Diapering; soiled clothing.

1. The diapering area shall be accessible and within the building used by children.

2. There shall be sight and sound supervision for all children when a child is being diapered.

3. The diapering area shall [ be provided with have ] the following:

a. A sink with running warm water not to exceed 120°F;

b. Soap, disposable towels, and single use gloves such as surgical or examination gloves;

c. A nonabsorbent surface for diapering or changing shall be used. For children younger than three years, this surface shall be a changing table or countertop designated for changing;

d. The appropriate disposal container as required by subdivision 5 6 of this subsection; and

e. A leakproof covered receptacle for soiled linens.

4. When a child's clothing or diaper becomes wet or soiled, the child shall be cleaned and changed immediately.

5. [ Disposable diapers shall be used unless the child's skin reacts adversely to disposable diapers.

6. ] Disposable diapers shall be disposed in a leakproof or plastic-lined storage system that is either foot-operated or used in such a way that neither the staff member's hand nor the soiled diaper touches an exterior surface of the storage system during disposal.

[ 7. 6. ] When cloth diapers are used, a separate leakproof storage system as specified in [ this ] subdivision [ 5 of this subsection ] shall be used [ for each individual child ].

[ 8. 7. ] The diapering surface shall be used only for diapering or cleaning children, and it shall be cleaned with soap and at least room temperature water and sanitized after each use. Tables used for children's activities or meals shall not be used for changing diapers.

Exception: [ 9. 8. ] Individual disposable barriers may be used between each diaper change. If the changing surface becomes soiled, the surface shall be cleaned and sanitized before another child is diapered.

[ 9. 10. ] Staff shall ensure the immediate safety of a child during diapering.

C. Toilet training. For every 10 children in the process of being toilet trained, there shall be at least one toilet chair or one child-sized toilet, or at least one adult sized toilet with a platform or steps and adapter seat.

1. The location of these items shall allow for sight and sound supervision of children in the classroom if necessary for the required staff-to-children ratios to be maintained.

2. Toilet chairs shall be emptied promptly and cleaned and sanitized after each use.

22VAC40-185-510. Medication.

A. [ The decision to administer medicines at a facility may be limited by center policy to administer:

1. Prescribed medications;

2. Over-the-counter or nonprescription medications; or

3. No medications except those required for emergencies or by law.

B. ] Prescription and nonprescription medication shall be given to a child:

1. According to the center's written medication policies; and

2. Only with written authorization from the parent.

[ B. C. ] Medication shall be administered by a staff member who is 18 years of age or older.

[ C. D. ] Nonprescription medication shall be administered by a staff member or independent contractor who meets the requirements in 22VAC40-185-240 D 1 or 3 22VAC40-185-245 [ F 1 or F 3 J 1 or J 2 ].

C. [ D. E. ] The center's procedures for administering medication shall:

1. Include any general restrictions of the center.

2. For nonprescription medication, be consistent with the manufacturer's instructions for age, duration, and dosage.

3. Include duration of the parent's authorization for medication, provided that it shall expire or be renewed after 10 work days. Long-term prescription drug use and over-the-counter medication may be allowed with written authorization from the child's physician and parent.

4. Include methods to prevent use of outdated medication.

D. [ E. F. ] The medication authorization shall be available to staff during the entire time it is effective.

E. [ F. G. ] Medication shall be labeled with the child's name, the name of the medication, the dosage amount, and the time or times to be given.

F. [ G. H. ] Nonprescription medication shall be in the original container with the direction label attached.

G. [ H. I. ] The center may administer prescription medication that would normally be administered by a parent or guardian to a child provided:

1. The medication is administered by a staff member or an independent contractor who meets the requirements in 22VAC40-185-240 D 1 22VAC40-185-245 [ F J ];

2. The center has obtained written authorization from a parent or guardian;

3. The center administers only those drugs that were dispensed from a pharmacy and maintained in the original, labeled container; and

4. The center administers drugs only to the child identified on the prescription label in accordance with the prescriber's instructions pertaining to dosage, frequency, and manner of administration.

H. [ I. J. ] When needed, medication shall be refrigerated.

I. [ J. K. ] When medication is stored in a refrigerator used for food, the medications shall be stored together in a container or in a clearly defined area away from food.

J. [ K. L. ] Medication, except for those prescriptions designated otherwise by written physician's order, including refrigerated medication and staff's personal medication, shall be kept in a locked place using a safe locking method that prevents access by children.

K. [ L. M. ] If a key is used, the key shall not be accessible to the children.

L. [ M. N. ] Centers shall keep a record of medication given children, which shall include the following:

1. Child to whom medication was administered;

2. Amount and type of medication administered to the child;

3. The day and time the medication was administered to the child;

4. Staff member administering the medication;

5. Any adverse reactions; and

6. Any medication error.

M. [ N. O. ] Staff shall inform parents immediately of any adverse reactions to medication administered and any medication error.

N. [ O. P. ] When an authorization for medication expires, the parent shall be notified that the medication needs to be picked up within 14 days or the parent must renew the authorization. Medications that are not picked up by the parent within 14 days will be disposed of by the center by either dissolving the medication down the sink or flushing it down the toilet.

22VAC40-185-530. First aid training, cardiopulmonary resuscitation (CPR) [ and rescue breathing ].

A. There shall be at least one staff member trained in first aid, cardiopulmonary resuscitation, and rescue breathing as appropriate to the age of the children in care who is on the premises during the center's hours of operation and also one person on field trips and wherever children are in care.

1. This person shall be available to children; and

2. This person shall have current certification by the American Red Cross, American Heart Association, National Safety Council, or other designated program approved by the Department of Social Services.

B. A. [ All staff who work directly with children shall have, within 30 days of the date of employment At least one staff in each classroom or area where children are present shall have, within 90 days of September 21, 2021 ]:

1. Current certification in cardiopulmonary resuscitation (CPR) as appropriate to the age of the children in care from an organization such as the American Red Cross, American Heart Association, American Safety and Health Institute, or National Safety Council. The training shall include an in-person competency demonstration; and

2. Current certification in first aid from an organization such as the American Red Cross, American Heart Association, American Safety and Health Institute, or National Safety Council.

B. [ Staff who work directly with children and who are employed prior to (insert the effective date of this chapter) must complete CPR and first aid training as required by this section within 90 calendar days of (insert the effective date of this chapter). During the 90-day period, there must always be at least one staff with current CPR and first aid training present during operating hours of the center.

C. ] CPR and first aid [ certification ] training may count toward the annual training hours required in 22VAC40-185-245 [ A ].

[ C. There shall be at least two staff members who meet the requirements of subsection A of this section present on the premises during the center's hours of operation, on fieldtrips, and wherever children are in care. ]

D. Primitive camps shall have a staff member on the premises during the hours of operation who has at least current certification in first responder training.

[ E. Staff who is a registered nurse or licensed practical nurse with a current license from the Board of Nursing shall not be required to obtain first aid certification. ]

22VAC40-185-550. Procedures for emergencies.

A. The center shall have an a written emergency preparedness plan that addresses staff responsibility and facility readiness with respect to emergency evacuation and relocation, shelter-in-place, and lockdown. The plan, which shall be developed in consultation with local or state authorities, addresses shall include the most likely to occur emergency scenario or scenarios, including but not limited to fire, severe storms, loss of utilities, natural disaster, chemical spills, intruder, and violence at or near the center, terrorism specific to the locality, and other situations, including facility damage that requires evacuation, lockdown, or shelter-in-place.

B. The emergency preparedness plan shall contain procedural components for:

1. Sounding of alarms (intruder, shelter-in-place such as for tornado, or chemical hazard), such as intruder, evacuation, lockdown, and shelter-in-place for tornado or chemical hazards;

2. Emergency communication to include:

a. Establishment of center emergency officer and back-up officer to include 24-hour contact telephone number for each;

b. Notification of local authorities (fire and rescue, law enforcement, emergency medical services, poison control, health department, etc.), such as fire and rescue, law enforcement, emergency medical services, poison control, health department, and parents, and local media; and

c. Availability and primary use of communication tools;

3. Evacuation to include:

a. Assembly points, head counts methods to account for all children at the assembly point and relocation site, primary and secondary means of egress, and complete evacuation of the buildings;

b. Securing of essential documents (sign-in record, parent contact information, etc.) and special healthcare supplies to be carried off-site on immediate notice; and, including attendance records, parent contact information, emergency contact information, [ and ] information on allergies [ , intolerance to food or medication , any special health care needs to include medications and care plans, emergency contact information for staff, and supplies are taken to the assembly point or relocation site; or food intolerances ];

c. [ Methods to ensure any health care needs to include medications and care plans; emergency contact information for staff; and supplies are taken to the assembly point or relocation site;

d. ] Method of communication after the evacuation with parents and emergency responders;

[ d. e. ] Accommodations or special requirements for infants, toddlers, and children with special needs to ensure their safety during evacuation or relocation; and

[ e. f. ] Procedures to reunite children with a parent or authorized person designated by the parent to pick up the child;

4. Shelter-in-place to include:

a. Scenario applicability, such as tornado or chemical spill, inside assembly points, head counts methods to account for all children at the safe locations, and primary and secondary means of access and egress;

b. Securing [ of ] essential documents (sign-in records, parent contact information, etc.) and special health supplies to be carried into the designated assembly points; and, including attendance records, parent contact information, emergency contact information, [ and ] information on allergies [ , intolerance to food or medication, any special health care needs to include medications and care plans, emergency contact information for staff, and supplies are taken to the assembly point or relocation site; or food intolerances ];

c. [ Methods to ensure any healthcare needs to include medications and care plans; emergency contact information for staff; and supplies are taken to the assembly point or relocation site;

d. ] Method of communication after the shelter-in-place with parents and emergency responders;

[ d. e. ] Accommodations or special requirements for infants, toddlers, and children with special needs to ensure their safety during shelter-in-place; and

[ e. f. ] Procedures to reunite children with a parent or authorized person designated by the parent to pick up the child;

5. Facility containment procedures, (e.g., closing of fire doors or other barriers) and shelter-in-place scenario (e.g., intruders, tornado, or chemical spills); Lockdown, to include:

a. Facility containment procedures, such as closing of fire doors or other barriers, scenario applicability, assembly points, and methods to account for all children at the safe locations;

b. Method of communication with parents and emergency responders;

c. Accommodations or special requirements for infants, toddlers, and children with special needs to ensure their safety during lockdown; and

d. Procedures to reunite children with a parent or authorized person designated by the parent to pick up the child;

6. [ Continuity of operations to ensure that essential functions are maintained during an emergency;

7. ] Staff training requirement, drill frequency, and plan review and update; and

[ 7. 8. ] Other special procedures developed with local authorities.

C. Emergency evacuation and shelter-in-place procedures/maps procedures [ and or ] maps shall be posted in a location conspicuous to staff and children on each floor of each building.

D. The center shall implement a monthly practice evacuation drill and a minimum of two shelter-in-place practice drills per year for the most likely to occur scenarios.

E. Shelter in place procedures shall be practiced a minimum of twice per year.

F. Lockdown procedures shall be practiced at least annually.

G. Documentation shall be maintained of emergency evacuation, shelter-in-place, and lockdown drills that includes:

1. Identity of the person conducting the drill;

2. The date and time of the drill;

3. The method used for notification of the drill;

4. The number of staff participating;

5. The number of children participating;

6. Any special conditions simulated;

7. The time it took to complete the drill;

8. Problems encountered, if any; and

9. For emergency evacuation drills only, weather conditions.

E. H. The center shall maintain a record of the dates of the practice drills for one year. For centers offering multiple shifts, the simulated drills shall be divided evenly among the various shifts.

F. I. A 911 or local dial number for police, fire and emergency medical services and the number of the regional poison control center shall be posted in a visible place at each telephone.

G. J. Each camp location shall have an emergency preparedness plan and warning system.

H. K. The center shall prepare a document containing local emergency contact information, potential shelters, hospitals, evacuation routes, etc., that pertain to each site frequently visited or of routes frequently driven by center staff for center business (such, such as field trips, pick-up/drop [ or ] pick up or drop off of children to or from schools, etc.) etc. This document must be kept in vehicles that centers use to transport children to and from the center.

I. L. Parents shall be informed of the center's emergency preparedness plan.

J. M. Based on local authorities and documented normal ambulance operation, if an ambulance service is not readily accessible within 10 to 15 minutes, other transportation shall be available for use in case of emergency.

K. N. The center or other appropriate official shall notify the parent immediately if a child is lost, requires emergency medical treatment, or sustains a serious injury.

L. O. The center shall notify the parent by the end of the day of any known minor injuries.

M. P. The center shall maintain a written record of children's serious and minor injuries in which entries are made the day of occurrence. The record shall include the following:

1. Date and time of injury;

2. Name of injured child;

3. Type and circumstance of the injury;

4. Staff present and treatment;

5. Date and time when parents were notified;

6. Any future action to prevent recurrence of the injury;

7. Staff and parent signatures or two staff signatures; and

8. Documentation on how parent was notified.

Q. A parent shall be notified immediately of any confirmed or suspected allergic reaction and the ingestion of [ prohibited food or contact with any food in the written care plan required in 22VAC40-185-60 A 8 ] even if a reaction did not occur.

22VAC40-185-560. Nutrition and food services.

A. Centers shall schedule appropriate times for snacks or meals, or both, based on the hours of operation and time of the day (e.g., a center open only for after school care shall schedule an afternoon snack; a center open from 7 a.m. to 1 p.m. shall schedule a morning snack and midday meal).

B. The center shall ensure that children arriving from a half-day, morning program who have not yet eaten lunch receive a lunch.

C. The center shall schedule snacks or meals so that there is a period of at least 1-1/2 hours but no more than three hours between each meal or snack unless there is a scheduled rest or sleep period for children between the meals and snacks.

D. Drinking water or other beverage not containing caffeine shall be offered at regular intervals to nonverbal children.

E. In environments of 80°F or above, attention shall be given to the fluid needs of children at regular intervals. Children in such environments shall be encouraged to drink fluids as outlined in subsection D of this section.

F. When centers choose to provide meals or snacks, the following shall apply:

1. Centers shall follow the most recent, age-appropriate nutritional requirements of [ a recognized authority such as ] the Child and Adult Care Food Program of the United States Department of Agriculture (USDA).

2. Children shall be allowed second helpings of food listed in the USDA's child and adult care meal patterns.

3. Centers offering both meals and snacks shall serve a variety of nutritious foods and shall serve at least three sources of vitamin A and at least three sources of vitamin C on various days each week.

4. Children three years of age or younger may not be offered foods that are considered to be potential choking hazards.

5. A menu listing foods to be served for meals and snacks during the current one-week period shall:

a. Be dated;

b. Be posted in a location conspicuous to parents or given to parents;

c. List any substituted food; and

d. Be kept on file for one week at the center.

6. Powdered milk shall not be used except for cooking.

G. When food is brought from home, the following shall apply:

1. The food container shall be sealed and clearly dated and labeled in a way that identifies the owner;

2. The center shall have extra food or shall have provisions to obtain food to serve to children so they can have an appropriate snack or meal if they forget to bring food from home, bring an inadequate meal or snack, or bring perishable food; and

3. Unused portions of opened food shall be discarded by the end of the day or returned to the parent.

H. If a catering service is used, it shall be approved by the local health department.

I. Food shall be prepared, stored, and transported in a clean and sanitary manner.

J. I. Contaminated or spoiled food shall not be served to children.

K. J. Tables and high chair trays shall be:

1. Sanitized before and after each use for feeding; and

2. Cleaned at least daily.

L. K. Children shall be encouraged to feed themselves.

M. L. Staff shall sit with children during meal times.

N. M. No child shall be allowed to drink or eat while walking around.

N. Food shall be prepared, stored, and transported in a clean and sanitary manner.

O. When food is prepared to which a child in care is allergic, staff shall take steps to avoid cross contamination to prevent an allergic reaction.

P. A child with a diagnosed food allergy shall not be served any food identified in the written care plan required in 22VAC40-185-60 A 8.

22VAC40-185-580. Transportation and field trips.

A. If the center provides transportation, the center shall be responsible from the time the child boards the vehicle until returned to the parents or person designated by the parent.

B. Any vehicle used by the center for the transportation of children shall meet the following requirements:

1. The vehicle shall be manufactured for the purpose of transporting people seated in an enclosed area;

2. The vehicle's seats shall be attached to the floor;

3. The vehicle shall be insured with at least the minimum limits established by Virginia state statutes;

4. The vehicle shall meet the safety standards set by the Department of Motor Vehicles and shall be kept in satisfactory condition to assure the safety of children; and

5. If volunteers supply personal vehicles, the center is responsible for ensuring that the requirements of this subsection are met.

C. The center shall ensure that during transportation of children:

1. Virginia state statutes about safety belts and child restraints are followed as required by §§ 46.2-1095 through 46.2-1100, and stated maximum number of passengers in a given vehicle shall not be is not exceeded;

2. The children remain seated and each child's arms, legs, and head remain inside the vehicle;

3. Doors are closed properly and locked unless locks were not installed by the manufacturer of the vehicle;

4. At least one staff member or the driver always remains in the vehicle when children are present;

5. The following information is in transportation vehicles:

a. Emergency numbers as specified in 22VAC40-185-550 F and H I and K;

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

c. A list of the names of the children being transported.; and

d. Allergy care plan and information as specified in 22VAC40-185-60 A 7 and A 8; and

6. Staff who transport children shall be 18 years of age or older.

D. When entering and leaving vehicles, children shall enter and leave the vehicle from the curb side of the vehicle or in a protected parking area or driveway.

E. Children shall cross streets at corners or crosswalks or other designated safe crossing point if no corner or crosswalk is available.

F. The staff-to-children ratios of 22VAC40-185-350 E, G, and H B and 22VAC40-185-355 shall be followed on all field trips. The staff-to-children ratios need not be followed during transportation of school age children to and from the center. One staff member or adult is necessary in addition to the driver when 16 or more preschool or younger children are being transported in the vehicle.

G. The center shall make provisions for providing children on field trips with adequate food and water.

H. If perishable food is taken on field trips, the food shall be stored in insulated containers with ice packs to keep the food cold.

I. Before leaving on a field trip, a schedule of the trip's events and locations shall be posted and visible at the center site.

J. There shall be a communication plan between center staff and staff who are transporting children or on a field trip.

K. Staff shall verify that all children have been removed from the vehicle at the conclusion of any trip.

L. Parental permission for transportation and field trips shall be secured before the scheduled activity.

M. If a blanket permission is used instead of a separate written permission, the following shall apply:

1. Parents shall be notified of the field trip; and

2. Parents shall be given the opportunity to withdraw their children from the field trip.

Title of Regulation: 22VAC40-705. Child Protective Services (amending 22VAC40-705-10, 22VAC40-705-40, 22VAC40-705-50, 22VAC40-705-80, 22VAC40-705-140, 22VAC40-705-160; repealing 22VAC40-705-20).

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

Effective Date: May 12, 2021.

Agency Contact: Nicole Shipp, Department of Social Services, 801 East Main Street, Richmond, VA 23229, telephone (804)726-7574, or email nicole.shipp@dss.virginia.gov.

Summary:

Pursuant to Chapters 88 and 142 of the 2017 Acts of Assembly, the amendments add requirements to notify the Armed Forces Advocacy Program representative when any report is received and of the final outcomes of any investigation or family assessment regarding a dependent child of an active duty service member.

Pursuant to Chapters 176 and 428 of the 2017 Acts of Assembly, the amendments (i) add definitions relating to substance-exposed infants, (ii) modify provisions for reporting substance-exposed infants by health care providers, and (iii) add requirements for conducting family assessments and creating a plan of care for a substance-exposed infant.

Pursuant to Chapter 604 of the 2017 Acts of Assembly, the amendments add requirements for child protective services workers to see a victim child younger than two years of age within 24 hours of receiving a valid report.

Pursuant to Chapters 5 and 209 of the 2018 Acts of Assembly, the amendments modify provisions for notifying the Superintendent of Public Instruction when an individual holding a license issued by the State Board of Education is the subject of a founded complaint of child abuse or neglect.

Other amendments include (i) requiring that the local department of social services comply with court orders on the release of information from a child abuse or neglect record; (ii) providing for the handling of a complaint of child abuse by a local department of social services without jurisdiction; and (iii) repealing 22VAC40-705-20, which is a statement of policy and is not regulatory text.

Summary of Public Comments and Agency's Response: A summary of comments made by the public and the agency's response may be obtained from the promulgating agency or viewed at the office of the Registrar of Regulations.

22VAC40-705-10. Definitions.

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

"Abuser or neglector" means any person who is found to have committed the abuse or neglect of a child pursuant to Chapter 15 (§ 63.2-1500 et seq.) of Title 63.2 of the Code of Virginia.

"Administrative appeal rights" means the child protective services appeals procedures for a local level informal conference and a state level hearing pursuant to § 63.2-1526 of the Code of Virginia, under which an individual who is found to have committed abuse or neglect may request that the local department's determination or records be amended.

"Alternative treatment options" means treatments used to prevent or treat illnesses or promote health and well-being outside the realm of modern conventional medicine.

"Appellant" means (i) anyone who has been found to be an abuser or neglector and appeals the founded disposition to the director of the local department of social services, or to an administrative hearing officer, or to circuit court and (ii) anyone who has been found to be an abuser or neglector and seeks judicial review of a decision by an administrative hearing officer.

"Assessment" means the process by which child protective services workers determine a child's and family's needs.

"Caretaker" means any individual having the responsibility of providing care and supervision of a child and includes the following: (i) a parent or other person legally responsible for the child's care; (ii) an individual who by law, social custom, expressed or implied acquiescence, collective consensus, agreement, or any other legally recognizable basis has an obligation to look after a child left in his care; and (iii) persons responsible by virtue of their positions of conferred authority.

"Case record" means a collection of information maintained by a local department, including written material, letters, documents, tapes audio or video recordings, photographs, film, or other materials, regardless of physical form, about a specific child protective services investigation, family, or individual.

"Central Registry" means a subset of the child abuse and neglect information system and is the name index with identifying information of individuals named as an abuser or neglector in founded child abuse or neglect complaints or reports not currently under administrative appeal, maintained by the department.

"Certified substance abuse counselor" means a person certified to provide substance abuse counseling in a state-approved public or private substance abuse program or facility.

"Child abuse and neglect information system" means the statewide computer system that collects and maintains information gathered by local departments regarding incidents of child abuse and neglect involving parents or other caretakers. The computer system is composed of three parts: the statistical information system with nonidentifying information, the Central Registry of founded complaints not on administrative appeal, and a database that can be accessed only by the department and local departments that contains all nonpurged child protective services reports. This system is the official state automated system required by federal law.

"Child protective services" means the identification, receipt, and immediate response to complaints and reports of alleged child abuse or neglect for children under younger than 18 years of age. It also includes assessment, and arranging for and providing necessary protective and rehabilitative services for a child and his the child's family when the child has been found to have been abused or neglected or is at risk of being abused or neglected.

"Child protective services worker" means one an individual who is qualified by virtue of education, training, and supervision and is employed by the local department to respond to child protective services complaints and reports of alleged child abuse or neglect.

"Chronically and irreversibly comatose" means a condition caused by injury, disease, or illness in which a patient has suffered a loss of consciousness with no behavioral evidence of self-awareness or awareness of surroundings in a learned manner other than reflexive activity of muscles and nerves for low-level conditioned response and from which to a reasonable degree of medical probability there can be no recovery.

"Collateral" means a person whose personal or professional knowledge may help confirm or rebut the allegations of child abuse or neglect or whose involvement may help ensure the safety of the child.

"Complaint" means any information or allegation of child abuse or neglect that a child is an abused or neglected child as defined in § 63.2-100 of the Code of Virginia made orally or in writing pursuant to § 63.2-100 of the Code of Virginia.

"Consultation" means the process by which the alleged abuser or neglector may request an informal meeting to discuss the investigative findings with the local department prior to the local department rendering a founded disposition of abuse or neglect against that person pursuant to § 63.2-1526 A of the Code of Virginia.

"Controlled substance" means a drug, substance, or marijuana as defined in § 18.2-247 of the Code of Virginia including those terms as they are used or defined in the Drug Control Act, Chapter 34 (§ 54.1-3400 et seq.) of Title 54.1 of the Code of Virginia. The term does not include alcoholic beverages or tobacco as those terms are defined or used in Title 3.2 or Title 4.1 of the Code of Virginia.

"Department" means the Virginia Department of Social Services.

"Differential response system" means that local departments of social services may the system by which local departments may respond to valid reports or complaints of child abuse or neglect by conducting either a family assessment or an investigation.

"Disposition" means the determination of whether or not child abuse or neglect has occurred and [ that ] identifies the individual responsible for the abuse or neglect of the child.

"Documentation" means information and materials, written or otherwise, concerning allegations, facts, and evidence.

"Family Advocacy Program representative" means the professional individual employed by the United States Armed Forces who has responsibility for the program designed to address prevention, identification, evaluation, treatment, rehabilitation, follow-up, and reporting of family violence, pursuant to 22VAC40-705-50 and 22VAC40-705-140.

"Family assessment" means the collection of information necessary to determine:

1. The immediate safety needs of the child;

2. The protective and rehabilitative services needs of the child and family that will deter abuse or neglect;

3. Risk of future harm to the child; and

4. Alternative plans for the child's safety if protective and rehabilitative services are indicated and the family is unable or unwilling to participate in services. These arrangements may be made in consultation with the caretaker of the child.

"First source" means any direct evidence establishing or helping to establish the existence or nonexistence of a fact. Indirect evidence and anonymous complaints do not constitute first source evidence.

"Founded" means that a review of the facts gathered as a result of an investigation shows by a preponderance of the evidence that child abuse or neglect has occurred. A determination that a case is founded shall be based primarily on first source evidence; in no instance shall a determination that a case is founded be based solely on indirect evidence or an anonymous complaint.

"Human trafficking assessment" means the collection of information necessary to determine:

1. The immediate safety needs of the child;

2. The protective and rehabilitative services needs of the child and the child's family that will deter abuse and neglect; and

3. Risk of future harm to the child.

"Identifying information" means name, social security number, address, race, sex, and date of birth.

"Indirect evidence" means any statement made outside the presence of the child protective services worker and relayed to the child protective services worker as proof of the contents of the statement.

"Informed opinion" means that the child has been informed and understands the benefits and risks, to the extent known, of the treatment recommended by conventional medical providers for his the child's condition and the alternative treatment being considered as well as the basis of efficacy for each, or lack thereof.

"Investigation" means the collection of information to determine:

1. The immediate safety needs of the child;

2. The protective and rehabilitative services needs of the child and family that will deter abuse or neglect;

3. Risk of future harm to the child;

4. Alternative plans for the child's safety if protective and rehabilitative services are indicated and the family is unable or unwilling to participate in services;

5. Whether or not abuse or neglect has occurred;

6. If abuse or neglect has occurred, who abused or neglected the child; and

7. A finding of either founded or unfounded based on the facts collected during the investigation.

"Investigative narrative" means the written account of the investigation contained in the child protective services case record.

"Legitimate interest" means a lawful, demonstrated privilege to access the information as defined in § 63.2-105 of the Code of Virginia.

"Licensed substance abuse treatment practitioner" means a person who (i) is trained in and engages in the practice of substance abuse treatment with individuals or groups of individuals suffering from the effects of substance abuse or dependence, and in the prevention of substance abuse or dependence and (ii) is licensed to provide advanced substance abuse treatment and independent, direct and unsupervised treatment to such individuals or groups of individuals, and to plan, evaluate, supervise, and direct substance abuse treatment provided by others.

"Life-threatening condition" means a condition that if left untreated more likely than not will result in death and for which the recommended medical treatments carry a probable chance of impairing the health of the individual or a risk of terminating the life of the individual.

"Local department" means the city or county local agency of social services or department of public welfare in the Commonwealth of Virginia responsible for conducting investigations or family assessments of child abuse or neglect complaints or reports pursuant to § 63.2-1503 of the Code of Virginia.

"Local department of jurisdiction" means the local department in the city or county in Virginia where the alleged victim child resides or in which the alleged abuse or neglect is believed to have occurred. If neither of these is known, then the local department of jurisdiction shall be the local department in the county or city where the abuse or neglect was discovered.

"Mandated reporters" means those persons who are required to report suspicions of child abuse or neglect pursuant to § 63.2-1509 of the Code of Virginia.

"Monitoring" means ongoing contacts with the child, family, and collaterals which that provide information about the child's safety and the family's compliance with the service plan.

"Multidisciplinary teams" means any organized group of individuals representing, but not limited to, medical, mental health, social work, education, legal, and law enforcement, which will assist local departments in the protection and prevention of child abuse and neglect established pursuant to § 63.2-1503 K of the Code of Virginia. Citizen representatives may also be included.

"Near fatality" means an act that, as certified by a physician, places the child in serious or critical condition. Serious or critical condition is a life-threatening condition or injury.

"Notification" means informing designated and appropriate individuals of the local department's actions and the individual's rights.

"Particular medical treatment" means a process or procedure that is recommended by conventional medical providers and accepted by the conventional medical community.

"Plan of safe care" means a guide developed by service providers with their clients to ensure mothers and other caretakers of a substance-exposed infant have the necessary resources to safely care for the infant. The plan should address the needs of the child, mother, and other caretakers, as appropriate.

"Preponderance of evidence" means just enough evidence to make it more likely than not that the asserted facts are true. It "Preponderance of evidence" is evidence which that is of greater weight or more convincing than the evidence offered in opposition.

"Purge" means to delete or destroy any reference data and materials specific to subject identification contained in records maintained by the department and the local department pursuant to §§ 63.2-1513 and 63.2-1514 of the Code of Virginia.

"Reasonable diligence" means the exercise of justifiable and appropriate persistent effort that is justifiable and appropriate under the circumstances.

"Report" means either (i) a complaint as defined in this section or (ii) an official document on which information is given concerning abuse or neglect. Pursuant to § 63.2-1509 of the Code of Virginia, a report is required to be made by persons designated herein and by local departments in those situations in which a response to a complaint from the general public reveals suspected child abuse or neglect pursuant to the definition of abused or neglected child in § 63.2-100 of the Code of Virginia.

"Response time" means a reasonable the time for the local department to initiate an investigation or family assessment after receiving a valid report of suspected child abuse or neglect based upon the facts and circumstances presented at the time the complaint or report is received.

"Safety plan" means an immediate course of action designed to protect a child from abuse or neglect.

"Service plan" means a plan of action to address the service needs of a child or his the child's family in order to protect a child and his the child's siblings, to prevent future abuse and neglect, and to preserve the family life of the parents and children whenever possible.

"Sex trafficking" means the recruitment, harboring, transportation, provision, obtaining, patronizing, or soliciting of a person for the purpose of a commercial sex act as defined in § 18.2-357.1 of the Code of Virginia.

"State automated system" means the "child abuse and neglect information system" as previously defined.

"Sufficiently mature" is determined on a case-by-case basis and means that a child has no impairment of his cognitive ability and is of a maturity level capable of having intelligent views on the subject of his health condition and medical care.

"Terminal condition" means a condition caused by injury, disease, or illness from which to a reasonable degree of medical probability a patient cannot recover and (i) the patient's death is imminent or (ii) the patient is chronically and irreversibly comatose.

"Unfounded" means that a review of the facts does not show by a preponderance of the evidence that child abuse or neglect occurred.

"Valid report or complaint" means the local department of social services has evaluated the information and allegations of the report or complaint and determined that a report or complaint of suspected child abuse or neglect for which the local department shall must conduct an investigation or family assessment because the following elements are present:

1. The alleged victim child is younger than 18 years of age at the time of the complaint or report;

2. The alleged abuser is the alleged victim child's parent or other caretaker;

3. The local department receiving the complaint or report is a local department of jurisdiction; and

4. The circumstances described allege suspected child abuse or neglect.

"Withholding of medically indicated treatment" means the failure to respond to the infant's life-threatening condition by providing treatment (including appropriate nutrition, hydration, and medication) which that in the treating physician's or physicians' reasonable medical judgment will most likely be effective in ameliorating or correcting all such conditions.

22VAC40-705-20. General policy regarding complaints or reports of child abuse and neglect. (Repealed.)

It is the policy of the Commonwealth of Virginia to require complaints or reports of child abuse and neglect for the following purposes:

1. Identifying abused and neglected children;

2. Assuring protective services to such identified children;

3. Preventing further abuse and neglect;

4. Preserving the family life of the parents and children, where possible, by enhancing parental capacity for adequate care.

22VAC40-705-40. Complaints and reports of suspected child abuse or neglect.

A. Persons who are mandated to report are those individuals defined in § 63.2-1509 of the Code of Virginia.

1. Mandated reporters shall report immediately any suspected abuse or neglect that they learn of in their professional or official capacity unless the person has actual knowledge that the same matter has already been reported to the local department or the department's toll-free child abuse and neglect hotline.

2. Pursuant to § 63.2-1509 of the Code of Virginia, if information is received by a teacher, staff member, resident, intern, or nurse in the course of his professional services in a hospital, school, or other similar institution, such person may make reports of suspected abuse or neglect immediately to the person in charge of the institution or department, or his designee, who shall then make such report forthwith. If the initial report of suspected abuse or neglect is made to the person in charge of the institution or department, or his designee, such person shall (i) notify the teacher, staff member, resident, intern, or nurse who made the initial report when the report of suspected child abuse or neglect is made to the local department or to the department's toll-free child abuse and neglect hotline; (ii) provide the name of the individual receiving the report; and (iii) forward any communication resulting from the report, including any information about any actions taken regarding the report, to the person who made the initial report.

3. Mandated reporters shall disclose all information that is the basis for the suspicion of child abuse or neglect and shall make available, upon request, to the local department any records and reports that document the basis for the complaint or report.

4. Pursuant to § 63.2-1509 D of the Code of Virginia, a mandated reporter's failure to report as soon as possible, but no longer than 24 hours after having reason to suspect a reportable offense of child abuse or neglect, shall result in a fine.

5. In cases evidencing acts of rape, sodomy, or object sexual penetration as defined in Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2 of the Code of Virginia, a person who knowingly and intentionally fails to make the report required pursuant to § 63.2-1509 of the Code of Virginia shall be guilty of a Class 1 misdemeanor.

6. Pursuant to § 63.2-1509 B of the Code of Virginia, certain medical facts indicating that a newborn may have been exposed to a controlled substance prior to birth constitute a reason to suspect that a child is abused or neglected and must be reported. Such facts shall include (i) a finding made by a health care provider within six weeks of the birth of a child that the results of toxicology studies of the child indicate the presence of a controlled substance that was not prescribed for the mother by a physician child was born affected by substance abuse or experiencing withdrawal symptoms resulting from in utero drug exposure; (ii) a finding made by a health care provider within six weeks of the birth of a child that the child was born dependent on a controlled substance that was not prescribed by a physician for the mother and has demonstrated withdrawal symptoms; (iii) a diagnosis made by a health care provider at any time within four years following a child's birth that the child has an illness, disease, or condition that, to a reasonable degree of medical certainty, is attributable to in utero exposure to maternal abuse of a controlled substance that was not prescribed by a physician for the mother or the child during pregnancy; or (iv) (iii) a diagnosis made by a health care provider at any time within four years following a child's birth that the child has a fetal alcohol spectrum disorder attributable to in utero exposure to alcohol. When "reason to suspect" is based upon this subsection such fact shall be included in the report along with the facts relied upon by the person making the report. Such reports shall not constitute a per se finding of child abuse or neglect. If a health care provider in a licensed hospital makes any medical finding or diagnosis set forth in clause (i), (ii), or (iii) of this subdivision, the hospital shall [ be responsible for require ] the development of a written discharge plan [ under protocols established by the hospital ] pursuant to § 32.1-127 B [ 6 ] of the Code of Virginia.

a. Pursuant to § 63.2-1509 B of the Code of Virginia, whenever a health care provider makes a finding or diagnosis, then the health care provider or his designee must make a report to child protective services immediately For purposes of this regulation, "affected by substance abuse" is a determination by a health care professional and may be determined by clinical indicators that include maternal and infant presentation at birth; substance use and medical histories; and include toxicology study results of the infant that are positive for illegal substances or indicate abuse of controlled substances.

b. When a valid report or complaint alleging abuse or neglect is made pursuant to § 63.2-1509 B of the Code of Virginia, then the local department must immediately assess the child's circumstances and any threat to the child's health and safety. Pursuant to 22VAC40-705-110 A, the local department must conduct an initial safety assessment.

c. When a valid report or complaint alleging abuse or neglect is made pursuant to § 63.2-1509 B of the Code of Virginia, then the local department must immediately determine whether to may petition a juvenile and domestic relations district court for any necessary services or court orders needed to ensure the safety and health of the child in accordance with § 16.1-241.3 of the Code of Virginia.

d. Following the receipt of a report made pursuant to § 63.2-1509 B of the Code of Virginia, the local department may determine that no further action is required pursuant to § 63.2-1505 B of the Code of Virginia if the mother of the infant sought or received substance abuse counseling or treatment.

(1) The local department must notify the mother immediately upon receipt of a complaint made pursuant to § 63.2-1509 B of the Code of Virginia. This notification must include a statement informing the mother that, if the mother fails to present evidence that she sought or received substance abuse counseling or treatment during the pregnancy, then the local department shall conduct an investigation or family assessment.

(2) If the mother sought counseling or treatment but did not receive such services, then the local department must determine whether the mother made a good faith effort to receive substance abuse treatment before the child's birth. If the mother made a good faith effort to receive treatment or counseling prior to the child's birth, but did not receive such services due to no fault of her own, then the local department may determine no further action is required.

(3) If the mother sought or received substance abuse counseling or treatment, but there is evidence, other than exposure to a controlled substance, that the child may be abused or neglected, then the local department shall conduct an investigation or family assessment.

e. For purposes of this chapter, substance abuse counseling or treatment includes, education about the impact of alcohol, controlled substances and other drugs on the fetus and on the maternal relationship; education about relapse prevention to recognize personal and environmental cues that may trigger a return to the use of alcohol or other drugs.

f. The substance abuse counseling or treatment should attempt to serve the purposes of improving the pregnancy outcome, treating the substance abuse disorder, strengthening the maternal relationship with existing children and the infant and achieving and maintaining a sober, and drug-free lifestyle.

g. The substance abuse counseling or treatment services must be provided by a professional. Professional substance abuse treatment or counseling may be provided by a certified substance abuse counselor or a licensed substance abuse treatment practitioner.

d. Pursuant to § 63.2-1506 C of the Code of Virginia, when a valid report or complaint is based on one of the factors in § 63.2-1509 B, the local department shall conduct a family assessment, unless an investigation is required or necessary to protect the safety of the child.

(1) Pursuant to § 63.2-1506 of the Code of Virginia, the local department shall determine whether the mother of an infant who was exposed to a controlled substance sought substance abuse counseling or treatment prior to the child's birth. For purposes of this chapter, substance abuse counseling or treatment includes education about the impact of alcohol and drugs, legal or illegal, on the infant and on the maternal-child relationship, and education about relapse prevention.

(2) The substance use counseling or treatment should attempt to serve the purposes of treating the substance use disorder, strengthening the maternal relationship with the infant and siblings, and achieving and maintaining a sober, drug-free lifestyle.

e. Pursuant to § 63.2-1506 of the Code of Virginia, the local department shall develop a plan of safe care.

h. f. Facts solely indicating that the infant may have been exposed to controlled substances prior to birth are not sufficient to render a founded disposition of abuse or neglect in an investigation.

i. The local department may provide assistance to the mother in locating and receiving substance abuse counseling or treatment.

B. Persons who may report child abuse or neglect include any individual who suspects that a child is being abused or neglected pursuant to § 63.2-1510 of the Code of Virginia.

C. Complaints and reports of child abuse or neglect may be made anonymously.

D. Any person making a complaint or report of child abuse or neglect shall be immune from any civil or criminal liability in connection therewith, unless it is proven that such person acted in bad faith or with malicious intent pursuant to § 63.2-1512 of the Code of Virginia.

E. When the identity of the reporter is known to the department or local department, these agencies shall not disclose the reporter's identity unless court ordered or required under § 63.2-1503 D of the Code of Virginia. Upon request, the local department shall advise the person who was the subject of an unfounded investigation if the complaint or report was made anonymously.

F. If a person suspects that he is the subject of a report or complaint of child abuse or neglect made in bad faith or with malicious intent, that person may petition the court for access to the record including the identity of the reporter or complainant pursuant to § 63.2-1514 of the Code of Virginia.

G. Any person age 14 years or older who makes or causes to be made a knowingly false complaint or report of child abuse or neglect and is convicted shall be guilty of a Class 1 misdemeanor for a first offense pursuant to § 63.2-1513 of the Code of Virginia.

1. A subsequent conviction results in a Class 6 felony.

2. Upon receipt of notification of such conviction, the department will retain a list of convicted reporters.

3. The subject of the records may have the records purged upon presentation of a certified copy of such conviction.

4. The subject of the records shall be notified in writing that the records have been purged.

H. To make a complaint or report of child abuse or neglect, a person may telephone the department's toll-free child abuse and neglect hotline or contact a local department of jurisdiction pursuant to § 63.2-1510 of the Code of Virginia.

I. A local department of jurisdiction must determine the validity of a complaint of child abuse or neglect and, if valid, conduct an investigation or family assessment.

1. The If the local department of jurisdiction that first receives a complaint or report of child abuse or neglect has jurisdiction, that local department becomes a local department of jurisdiction and shall assume responsibility to determine validity and, if the complaint or report is valid, to ensure that a family assessment or an investigation is conducted.

2. If the local department that first receives a complaint or report of child abuse or neglect does not have jurisdiction, that local department must immediately do the following:

a. Document and transfer the complaint or report in the child abuse and neglect information system;

b. Contact the local department of jurisdiction to advise of the transfer; and

c. Advise the person making the complaint of the name and telephone number for the local department of jurisdiction.

3. A local department of jurisdiction may ask another local department that is a local department of jurisdiction to assist in conducting the family assessment or investigation. If assistance is requested, the local department shall comply.

3. 4. A local department of jurisdiction may ask another local department through a cooperative agreement to assist in conducting the family assessment or investigation.

4. 5. If a local department employee is suspected of abusing or neglecting a child, the complaint or report of child abuse or neglect shall be made to the juvenile and domestic relations district court of the county or city where the alleged abuse or neglect was discovered. The judge shall assign the report to a local department that is not the employer of the subject of the report, or, if the judge believes that no local department in a reasonable geographic distance can be impartial in responding to the reported case, the judge shall assign the report to the court service unit of his the judge's court for evaluation pursuant to §§ 63.2-1509 and 63.2-1510 of the Code of Virginia. The judge may consult with the department in selecting a local department to respond.

5. 6. In cases where an employee at a private or state-operated hospital, institution, or other facility or an employee of a school board is suspected of abusing or neglecting a child in such hospital, institution, or other facility or public school, the local department of jurisdiction shall request the department and the relevant private or state-operated hospital, institution, or other facility or school board to assist in conducting a joint investigation in accordance with regulations adopted in 22VAC40-730, in consultation with the Departments of Education, Health, Medical Assistance Services, Behavioral Health and Developmental Services, Juvenile Justice, and Corrections.

22VAC40-705-50. Actions to be taken upon receipt of a complaint or report.

A. All complaints and reports of suspected child abuse or neglect shall be recorded in the child abuse and neglect information system and either screened out or determined to be valid upon receipt by the local department of jurisdiction and if valid, acted on within the determined response time. A record of all [ invalid ] reports and complaints made to a local department or to the department [ , that were not valid ] regardless of whether the report or complaint was found to be a valid complaint of abuse or neglect, shall be purged one year after the date of the report or complaint unless a subsequent report or complaint is made.

B. Pursuant to § 63.2-1506.1 A of the Code of Virginia, the local department shall conduct a human trafficking assessment when a report or complaint alleges that a child is a victim of sex trafficking or severe forms of trafficking, which is defined in § 63.2-100 of the Code of Virginia; the federal Trafficking Victims Protection Act of 2000 (22 USC § 7102 et seq.); and the federal Justice for Victims of Trafficking Act of 2015 (42 USC § 5101 et seq.) as a commercial sex act that is induced by force, fraud, or coercion, or in which the person induced to perform such an act has not attained 18 years of age or the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery, unless at any time during the human trafficking assessment the local department determines that an investigation or family assessment is required pursuant to § 63.2-1505 or 63.2-1506 of the Code of Virginia.

C. In For all valid complaints or reports of child abuse or neglect the local department of social services shall determine whether to conduct an investigation or a family assessment. A valid complaint or report is one in which:

1. The alleged victim child is younger than 18 years of age at the time of the complaint or report;

2. The alleged abuser is the alleged victim child's parent or other caretaker; Pursuant to § 63.2-1508 of the Code of Virginia, a valid report or complaint regarding a child who has been identified as a victim of sex trafficking or severe forms of trafficking as defined in § 63.2-100 of the Code of Virginia; the federal Trafficking Victims Protection Act of 2000 (22 USC § 7102 et seq.); and the federal Justice for Victims of Trafficking Act of 2015 (42 USC § 5101 et seq.) may be established if the alleged abuser is the alleged victim child's parent, other caretaker, or any other person suspected to have caused such abuse or neglect.

3. The local department receiving the complaint or report has jurisdiction; and

4. The circumstances described allege suspected child abuse or neglect as defined in § 63.2-100 of the Code of Virginia.

D. The local department shall not conduct a family assessment or investigate complaints or reports of child abuse or neglect that fail to meet all of the criteria in subsection C of this section are not valid.

E. The local department shall report certain cases of suspected child abuse or neglect to the local attorney for the Commonwealth and the local law-enforcement agency pursuant to § 63.2-1503 D of the Code of Virginia.

F. Pursuant to § 63.2-1503 D of the Code of Virginia, the local department shall develop, where practical, a memoranda of understanding for responding to reports of child abuse and neglect with local law enforcement and the local office of the commonwealth's attorney.

G. The local department shall report to the following when the death of a child is involved:

1. When abuse or neglect is suspected in any case involving the death of a child, the local department shall report the case immediately to the regional medical examiner and the local law-enforcement agency pursuant to § 63.2-1503 E of the Code of Virginia.

2. When abuse or neglect is suspected in any case involving the death of a child, the local department shall report the case immediately to the attorney for the Commonwealth and the local law-enforcement agency pursuant to § 63.2-1503 D of the Code of Virginia.

3. The local department shall contact the department immediately upon receiving a complaint involving the death of a child and at the conclusion of the investigation.

4. The department shall immediately, upon receipt of information, report on all child fatalities to the state board in a manner consistent with department policy and procedures approved by the board. At a minimum, the report shall contain information regarding any prior statewide child protective services involvement of the family, alleged perpetrator abuser or neglector, or victim.

H. Valid complaints or reports shall be screened for high priority based on the following:

1. The immediate danger to the child;

2. The severity of the type of abuse or neglect alleged;

3. The age of the child;

4. The circumstances surrounding the alleged abuse or neglect;

5. The physical and mental condition of the child; and

6. Reports made by mandated reporters.

I. The local department shall respond within the determined response time. The response shall be a family assessment or an investigation. Any valid report may be investigated, but in accordance with § 63.2-1506 C of the Code of Virginia, those cases shall be investigated that involve (i) sexual abuse, (ii) a child fatality, (iii) abuse or neglect resulting in a serious injury as defined in § 18.2-371.1 of the Code of Virginia, (iv) a child having been taken into the custody of the local department of social services, or (v) a caretaker at a state-licensed child day care center, religiously exempt child day center, regulated family day home, private or public school, or hospital or any institution. Pursuant to § 63.2-1506 B 1 of the Code of Virginia, when a valid report or complaint regarding a substance-exposed infant is received, the local department shall conduct a family assessment, unless an investigation is required in accordance with § 63.2-1506 C of the Code of Virginia.

1. The purpose of an investigation is to collect the information necessary to determine or assess the following:

a. The immediate safety needs of the child;

b. Whether or not abuse or neglect has occurred;

c. Who abused or neglected the child;

d. To what extent the child is at risk of future harm;

e. What types of services can meet the needs of this child or family; and

f. If services are indicated and the family appears to be unable or unwilling to participate in services, what alternate plans will provide for the child's safety.

2. The purpose of a family assessment is to engage the family in a process to collect the information necessary to determine or assess the following:

a. The immediate safety needs of the child;

b. The extent to which the child is at risk of future harm;

c. The types of services that can meet the needs of this the child or family; and

d. If services are indicated and the family appears to be unable or unwilling to participate in services, the plans that will be developed in consultation with the family to provide for the child's safety. These arrangements may be made in consultation with the caretaker of the child.

3. The local department shall use reasonable diligence to locate any child for whom a report or complaint of suspected child abuse or neglect has been received and determined valid and persons who are the subject of a valid report if the whereabouts of such persons are unknown to the local department pursuant to § 63.2-1503 F of the Code of Virginia.

4. The local department shall document its attempts to locate the child and family.

5. In the event the alleged victim child cannot be found after the local department has exercised reasonable diligence, the time the child cannot be found shall not be computed as part of the timeframe to complete the investigation, pursuant to subdivision B 5 of § 63.2-1505 B 5 of the Code of Virginia.

6. Pursuant to § 63.2-1503 N of the Code of Virginia, the local department shall [ notify the Family Advocacy Program representative of the United States Armed Forces of any report involving a dependent child of an transmit information regarding reports, complaints, family assessments, and investigations involving children of ] active duty [ member members ] of the United States Armed Forces or members of [ his their ] household [ to family advocacy representatives of the United States Armed Forces ].

22VAC40-705-80. Family assessment and investigation contacts.

A. During the course of the family assessment, the child protective services worker shall document in writing in the state automated system the following contacts and observations. When any of these contacts or observations is not made, the child protective services worker shall document in writing why the specific contact or observation was not made.

1. The child protective services worker shall conduct a face-to-face interview with and observe the alleged victim child within the determined response time. When a victim child is younger than two years of age, this contact shall be within 24 hours of receiving the report.

2. The child protective services worker shall conduct a face-to-face interview with and observe all minor siblings residing in the home.

3. The child protective services worker shall conduct a face-to-face interview with and observe all other children residing in the home with parental permission.

4. The child protective services worker shall conduct a face-to-face interview with the alleged victim child's parents or guardians or any caretaker named in the report.

5. The child protective services worker shall observe the family environment, contact pertinent collaterals, and review pertinent records in consultation with the family.

B. During the course of the investigation, the child protective services worker shall document in writing in the state automated system the following contacts and observations. When any of these contacts or observations is not made, the child protective services worker shall document in writing why the specific contact or observation was not made.

1. The child protective services worker shall conduct a face-to-face interview with and observation of the alleged victim child within the determined response time. When a victim child is younger than two years of age, this contact shall be within 24 hours of receiving the report. All interviews with alleged victim children must be electronically recorded except when the child protective services worker determines that:

a. The child's safety may be endangered by electronically recording his statement;

b. The age or developmental capacity of the child makes electronic recording impractical;

c. The child refuses to participate in the interview if electronic recording occurs;

d. In the context of a team investigation with law-enforcement personnel, the team or team leader determines that electronic recording is not appropriate; or

e. The victim provided new information as part of a family assessment and it would be detrimental to reinterview the victim and the child protective services worker provides a detailed narrative of the interview in the investigation record.

In the case of an interview conducted with a nonverbal child where none of the exceptions in this subdivision apply, it is appropriate to electronically record the questions being asked by the child protective services worker and to describe, either verbally or in writing, the child's responses. A child protective services worker shall document in detail in the record and discuss with supervisory personnel the basis for a decision not to electronically record an interview with the alleged victim child.

A child protective services finding may be based on the written narrative of the child protective services worker in cases where an electronic recording is unavailable due to equipment failure or the exceptions in this subdivision 1.

2. The child protective services worker shall conduct a face-to-face interview with and observe all minor siblings residing in the home.

3. The child protective services worker shall conduct a face-to-face interview with and observe all other children residing in the home with parental permission.

4. The child protective services worker shall conduct a face-to-face interview with the alleged abuser or neglector.

a. The child protective services worker shall inform the alleged abuser or neglector of his right to electronically record any communication pursuant to § 63.2-1516 of the Code of Virginia.

b. If requested by the alleged abuser or neglector, the local department shall provide the necessary equipment in order to electronically record the interview and retain a copy of the electronic recording.

5. The child protective services worker shall conduct a face-to-face interview with the alleged victim child's parents or guardians.

6. The child protective services worker shall observe the environment where the alleged victim child lives. This requirement may be waived in complaints or reports of child abuse and neglect that took place in state licensed and religiously exempted child day centers, regulated and unregulated family day homes, private and public schools, group residential facilities, hospitals, or institutions where the alleged abuser or neglector is an employee or volunteer at such facility.

7. The child protective services worker shall observe the site where the alleged incident took place.

8. The child protective services worker shall conduct interviews with collaterals who have pertinent information relevant to the investigation and the safety of the child.

C. Pursuant to §§ 63.2-1505 and 63.2-1506 of the Code of Virginia, local departments may obtain and consider statewide criminal history record information from the Central Criminal Records Exchange and shall obtain and consider results of a search of the Central Registry on any individual who is the subject of a child abuse and neglect investigation or family assessment where there is evidence of child abuse or neglect and the local department is evaluating the safety of the home and whether removal is necessary to ensure the child's safety. The local department may also obtain a criminal record check and a Central Registry check on all adult household members residing in the home of the alleged abuser or neglector and where the child visits. Pursuant to § 19.2-389 of the Code of Virginia, local departments are authorized to receive criminal history information on the person who is the subject of the investigation as well as other adult members of the household for the purposes in § 63.2-1505 of the Code of Virginia. The results of the criminal record history search may be admitted into evidence if a child abuse or neglect petition is filed in connection with the child's removal. Local departments are prohibited from dissemination of this information except as authorized by the Code of Virginia.

D. Pursuant to §§ 63.2-1505 and 63.2-1506 of the Code of Virginia, local departments must determine whether the subject of an investigation or family assessment has resided in another state within the last five years, and, if he has resided in another state, shall request a search of the child abuse and neglect registry or equivalent registry maintained by such state.

22VAC40-705-140. Notification of findings.

A. Upon completion of the investigation or family assessment the local child protective services worker shall make notifications as provided in this section.

B. Individual against whom allegations of abuse or neglect were made.

1. When the disposition is unfounded, the child protective services worker shall inform the individual against whom allegations of abuse or neglect were made of this finding. This notification shall be in writing with a copy to be maintained in the case record. The individual against whom allegations of abuse or neglect were made shall be informed that he may have access to the case record and that the case record shall be retained by the local department for one year unless requested in writing by such individual that the local department retain the record for up to an additional two years.

a. If the individual against whom allegations of abuse or neglect were made or the subject child is involved in subsequent complaints, the information from all complaints shall be retained until the last purge date has been reached.

b. The local worker shall notify the individual against whom allegations of abuse or neglect were made of the procedures set forth in § 63.2-1514 of the Code of Virginia regarding reports or complaints alleged to be made in bad faith or with malicious intent.

c. In accordance with § 32.1-283.1 D of the Code of Virginia when an unfounded disposition is made in an investigation that involves a child death, the child protective services worker shall inform the individual against whom allegations of abuse or neglect were made that the case record will be retained for the longer of 12 months or until the State Child Fatality Review Team has completed its review of the case.

2. When the abuser or neglector in a founded disposition is a foster parent of the victim child, the local department shall place a copy of this notification letter in the child's foster care record and in the foster home provider record.

3. When the abuser or neglector in a founded disposition is a full-time, part-time, permanent, or temporary employee of a school division, the local department shall notify the relevant school board of the founded complaint pursuant to § 63.2-1505 B 7 of the Code of Virginia.

4. The local department shall immediately notify the Superintendent of Public Instruction when an individual holding a license issued by the Board of Education is the subject of a founded complaint of child abuse or neglect and shall transmit identifying information regarding such individual if the local department knows the person holds a license issued by the Board of Education and after all rights to any appeal provided by § 63.2-1526 of the Code of Virginia have been exhausted. The local department shall immediately notify the Superintendent of Public Instruction if the founded complaint of child abuse or neglect is dismissed on administrative appeal.

5. No disposition of founded or unfounded shall be made in a family assessment. At the completion of the family assessment the subject of the report shall be notified orally and in writing of the results of the assessment. The child protective services worker shall notify the individual against whom allegations of abuse or neglect were made of the procedures set forth in § 63.2-1514 of the Code of Virginia regarding reports or complaints alleged to be made in bad faith or with malicious intent.

C. Subject child's parents or guardian.

1. When the disposition is unfounded, the child protective services worker shall inform the parents or guardian of the subject child in writing, when they are not the individuals against whom allegations of child abuse or neglect were made, that the investigation involving their child resulted in an unfounded disposition and the length of time the child's name and information about the case will be maintained. The child protective services worker shall file a copy in the case record.

2. When the disposition is founded, the child protective services worker shall inform the parents or guardian of the child in writing, when they are not the abuser or neglector, that the complaint involving their child was determined to be founded and the length of time the child's name and information about the case will be retained in the Central Registry. The child protective services worker shall file a copy in the case record.

3. When the founded disposition of abuse or neglect does not name the parents or guardians of the child as the abuser or neglector and when the abuse or neglect occurred in a licensed or unlicensed child day center, a licensed, registered, or approved family day home, a private or public school, or a children's residential facility, the parent or guardian must be consulted and must give permission for the child's name to be entered into the Central Registry pursuant to § 63.2-1515 of the Code of Virginia.

D. Complainant.

1. When an unfounded disposition is made, the child protective services worker shall notify the complainant, when known, in writing that the complaint was investigated and determined to be unfounded. The worker shall file a copy in the case record.

2. When a founded disposition is made, the child protective services worker shall notify the complainant, when known, in writing that the complaint was investigated and necessary action was taken. The local worker shall file a copy in the case record.

3. When a family assessment is completed, the child protective services worker shall notify the complainant, when known, that the complaint was assessed and necessary action taken.

E. Family Advocacy Program of the United States Armed Forces.

1. Pursuant to § 63.2-1503 N of the Code of Virginia, in [ the local department shall transmit information regarding ] all reports, complaints, [ family assessments, and ] investigations with a founded disposition or [ and family ] assessment [ assessments that involve a dependent child an involving children of ] active duty [ member members ] of the United States Armed Forces or members of [ his their ] household, [ including ] information regarding the disposition, type of abuse or neglect, and the identity of the abuser or neglector [ shall be provided ] to [ the appropriate ] Family Advocacy Program [ representative representatives of the United States Armed Forces. ] This notification shall be made in writing within 30 days after the administrative appeal rights of the abuser or neglector have been exhausted or forfeited immediately.

2. The military member shall be advised that this information regarding the founded disposition or family assessment involving his dependent child or member of his household is being provided to the Family Advocacy Program representative and shall be given a copy of the written notification sent to the Family Advocacy Program representative.

3. In accordance with § 63.2-105 of the Code of Virginia, when an active duty member of the United States Armed Forces or a member of his household is involved in an investigation, family assessment, or provision of services case, any information regarding child protective services reports, complaints, investigations, family assessments, and follow up follow-up may be shared with the appropriate Family Advocacy Program representative of the United States Armed Forces when the local department determines such release to be in the best interest of the child. In these situations, coordination between child protective services and the Family Advocacy Program is intended to facilitate identification, treatment, and service provision to the military family.

4. When needed by the Family Advocacy Program representative to facilitate treatment and service provision to the military family, any other additional information not prohibited from being released by state or federal law or regulation shall also be provided to the Family Advocacy Program representative when the local department determines such release to be in the best interest of the child.

22VAC40-705-160. Releasing information.

A. In the following instances of mandatory disclosure the local department shall release child protective services information. The local department may do so without any written release.

1. Report to attorney for the Commonwealth and law enforcement pursuant to § 63.2-1503 D of the Code of Virginia.

2. Report to the regional medical examiner's office pursuant to § 63.2-1503 E of the Code of Virginia.

3. Any individual, including an individual against whom allegations of child abuse or neglect were made, may exercise his rights under the Government Data Collection and Dissemination Practices Act (§ 2.2-3800 et seq. of the Code of Virginia) to access personal information related to himself that is contained in the case record including, with the individual's notarized consent, a search of the Central Registry.

4. When the material requested includes personal information about other individuals, the local department shall be afforded a reasonable time in which to redact those parts of the record relating to other individuals.

5. Pursuant to the Child Abuse Prevention and Treatment Act, as amended (42 USC § 5101 et seq.), and federal regulations (45 CFR Part 1340), the local department shall provide case-specific information about child abuse and neglect reports and investigations to citizen review panels when requested.

6. Pursuant to the Child Abuse Prevention and Treatment Act, as amended (42 USC § 5101 et seq.), the department shall develop guidelines to allow for public disclosure in instances of child fatality or near fatality.

7. An individual's right to access information under the Government Data Collection and Dissemination Practices Act is stayed during criminal prosecution pursuant to § 63.2-1526 C of the Code of Virginia.

8. The local department shall disclose and release to the United States Armed Forces Family Advocacy Program child protective services information as required pursuant to 22VAC40-705-140.

9. Child protective services shall, on request by the Division of Child Support Enforcement, supply information pursuant to § 63.2-103 of the Code of Virginia.

10. The local department shall release child protective services information to a court appointed special advocate pursuant to § 9.1-156 A of the Code of Virginia.

11. The local department shall release child protective services information to a court-appointed guardian ad litem pursuant to § 16.1-266 G of the Code of Virginia.

12. In any case properly before a court having jurisdiction, if the court orders the local department to disclose information from a child abuse or neglect case record, the local department must either comply with the order if permitted under federal and state law or appeal the order if such disclosure is contrary to federal and state law.

B. The local department may use discretion in disclosing or releasing child protective services case record information, investigative and on-going ongoing services to parties having a legitimate interest when the local department deems disclosure to be in the best interest of the child. The local department may disclose such information without a court order and without a written release pursuant to § 63.2-105 of the Code of Virginia.

C. Prior to disclosing information to any individuals or organizations, and to be consistent with § 63.2-105 of the Code of Virginia, the local department must consider the factors described in subdivisions 1, 2, and 3 of this subsection as some of the factors necessary to determine whether a person has a legitimate interest and the disclosure of information is in the best interest of the child:

1. The information will be used only for the purpose for which it is made available;

2. Such purpose shall be related to the goal of child protective or rehabilitative services; and

3. The confidential character of the information will be preserved to the greatest extent possible.

D. In the following instances, the local department shall not release child protective services information:

1. The local department shall not release the identity of persons reporting incidents of child abuse or neglect, unless court ordered or as required under § 63.2-1503 D of the Code of Virginia, in accordance with § 63.2-1526 of the Code of Virginia, 42 USC § 5101 et seq., and federal regulations (45 CFR Part 1340).

2. In all complaints or reports that are being investigated jointly with law enforcement, no information shall be released by the local department prior to the conclusion of the criminal investigation unless authorized by the law-enforcement officer or his supervisor or the attorney for the Commonwealth pursuant to § 63.2-1516.1 B of the Code of Virginia.

D. In cases of abuse or neglect in which the person who is the subject of the founded report or complaint has appealed the finding and has submitted a written request for the local department's records in accordance with § 63.2-1526 of the Code of Virginia, the local department shall not disclose or release to such person [ any the following ] information [ or record that: ] (i) [ pertains to the identity of persons reporting incidents of child abuse or neglect the name of the person reporting incidents of child abuse or neglect ]; (ii) [ any information that ] may endanger the well-being [ the victim of a ] child if such information or records are disclosed or released; (iii) [ information that ] pertains to the identity of a collateral witness or any other person if such disclosure [ or release ] may endanger [ the collateral witness's or other person's ] life or safety; or (iv) [ information that ] is otherwise prohibited from being disclosed or released by state or federal law or regulation.

E. In all complaints or reports that are being investigated jointly with law enforcement, the local department shall release child protective services information in accordance with the following:

1. Pursuant to § 63.2-1516.1 B of the Code of Virginia, no information [ or records in the possession of the local department from such joint investigation ] shall be [ disclosed or ] released by the local department prior to the conclusion of the criminal investigation [ unless except as ] authorized by the [ investigating ] law-enforcement officer [ or, ] the law-enforcement officer's supervisor [ , ] or the [ local ] attorney for the Commonwealth.

2. Pursuant to § 63.2-1503 D of the Code of Virginia, the local department shall provide the attorney for the Commonwealth and the local law-enforcement agency with the information and records of the local department related to the investigation of the complaint, including records related to any complaints of abuse or neglect involving the victim or the alleged abuser or neglector, and information or records pertaining to the identity of the person who reported the complaint of abuse or neglect.