The Virginia Register OF REGULATIONS is an official state publication issued every other week throughout the year. Indexes are published quarterly, and are cumulative for the year. The Virginia Register has several functions. The new and amended sections of regulations, both as proposed and as finally adopted, are required by law to be published in the Virginia Register. In addition, the Virginia Register is a source of other information about state government, including petitions for rulemaking, emergency regulations, executive orders issued by the Governor, and notices of public hearings on regulations.
ADOPTION, AMENDMENT, AND REPEAL OF REGULATIONS
An agency wishing to adopt, amend, or repeal regulations must first publish in the Virginia Register a notice of intended regulatory action; a basis, purpose, substance and issues statement; an economic impact analysis prepared by the Department of Planning and Budget; the agency’s response to the economic impact analysis; a summary; a notice giving the public an opportunity to comment on the proposal; and the text of the proposed regulation.
Following publication of the proposal in the Virginia Register, the promulgating agency receives public comments for a minimum of 60 days. The Governor reviews the proposed regulation to determine if it is necessary to protect the public health, safety and welfare, and if it is clearly written and easily understandable. If the Governor chooses to comment on the proposed regulation, his comments must be transmitted to the agency and the Registrar no later than 15 days following the completion of the 60-day public comment period. The Governor’s comments, if any, will be published in the Virginia Register. Not less than 15 days following the completion of the 60-day public comment period, the agency may adopt the proposed regulation.
The Joint Commission on Administrative Rules (JCAR) or the appropriate standing committee of each house of the General Assembly may meet during the promulgation or final adoption process and file an objection with the Registrar and the promulgating agency. The objection will be published in the Virginia Register. Within 21 days after receipt by the agency of a legislative objection, the agency shall file a response with the Registrar, the objecting legislative body, and the Governor.
When final action is taken, the agency again publishes the text of the regulation as adopted, highlighting all changes made to the proposed regulation and explaining any substantial changes made since publication of the proposal. A 30-day final adoption period begins upon final publication in the Virginia Register.
The Governor may review the final regulation during this time and, if he objects, forward his objection to the Registrar and the agency. In addition to or in lieu of filing a formal objection, the Governor may suspend the effective date of a portion or all of a regulation until the end of the next regular General Assembly session by issuing a directive signed by a majority of the members of the appropriate legislative body and the Governor. The Governor’s objection or suspension of the regulation, or both, will be published in the Virginia Register. If the Governor finds that changes made to the proposed regulation have substantial impact, he may require the agency to provide an additional 30-day public comment period on the changes. Notice of the additional public comment period required by the Governor will be published in the Virginia Register.
The agency shall suspend the regulatory process for 30 days when it receives requests from 25 or more individuals to solicit additional public comment, unless the agency determines that the changes have minor or inconsequential impact.
A regulation becomes effective at the conclusion of the 30-day final adoption period, or at any other later date specified by the promulgating agency, unless (i) a legislative objection has been filed, in which event the regulation, unless withdrawn, becomes effective on the date specified, which shall be after the expiration of the 21-day objection period; (ii) the Governor exercises his authority to require the agency to provide for additional public comment, in which event the regulation, unless withdrawn, becomes effective on the date specified, which shall be after the expiration of the period for which the Governor has provided for additional public comment; (iii) the Governor and the General Assembly exercise their authority to suspend the effective date of a regulation until the end of the next regular legislative session; or (iv) the agency suspends the regulatory process, in which event the regulation, unless withdrawn, becomes effective on the date specified, which shall be after the expiration of the 30-day public comment period and no earlier than 15 days from publication of the readopted action.
A regulatory action may be withdrawn by the promulgating agency at any time before the regulation becomes final.
FAST-TRACK RULEMAKING PROCESS
Section 2.2-4012.1 of the Code of Virginia provides an exemption from certain provisions of the Administrative Process Act for agency regulations deemed by the Governor to be noncontroversial. To use this process, Governor's concurrence is required and advance notice must be provided to certain legislative committees. Fast-track regulations will become effective on the date noted in the regulatory action if no objections to using the process are filed in accordance with § 2.2-4012.1.
EMERGENCY REGULATIONS
Pursuant to § 2.2-4011 of the Code of Virginia, an agency, upon consultation with the Attorney General, and at the discretion of the Governor, may adopt emergency regulations that are necessitated by an emergency situation. An agency may also adopt an emergency regulation when Virginia statutory law or the appropriation act or federal law or federal regulation requires that a regulation be effective in 280 days or less from its enactment. The emergency regulation becomes operative upon its adoption and filing with the Registrar of Regulations, unless a later date is specified. Emergency regulations are limited to no more than 18 months in duration; however, may be extended for six months under certain circumstances as provided for in § 2.2-4011 D. Emergency regulations are published as soon as possible in the Register.
During the time the emergency status is in effect, the agency may proceed with the adoption of permanent regulations through the usual procedures. To begin promulgating the replacement regulation, the agency must (i) file the Notice of Intended Regulatory Action with the Registrar within 60 days of the effective date of the emergency regulation and (ii) file the proposed regulation with the Registrar within 180 days of the effective date of the emergency regulation. If the agency chooses not to adopt the regulations, the emergency status ends when the prescribed time limit expires.
STATEMENT
The foregoing constitutes a generalized statement of the procedures to be followed. For specific statutory language, it is suggested that Article 2 (§ 2.2-4006 et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia be examined carefully.
CITATION TO THE VIRGINIA REGISTER
The Virginia Register is cited by volume, issue, page number, and date. 29:5 VA.R. 1075-1192 November 5, 2012, refers to Volume 29, Issue 5, pages 1075 through 1192 of the Virginia Register issued on
November 5, 2012.
The Virginia Register of Regulations is published pursuant to Article 6 (§ 2.2-4031 et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia.
Members of the Virginia Code Commission: John S. Edwards, Chair; James M. LeMunyon, Vice Chair; Gregory D. Habeeb; Ryan T. McDougle; Robert L. Calhoun; Leslie L. Lilley; E.M. Miller, Jr.; Thomas M. Moncure, Jr.; Christopher R. Nolen; Timothy Oksman; Charles S. Sharp; Noah P. Sullivan; Mark J. Vucci.
Staff of the Virginia Register: Jane D. Chaffin, Registrar of Regulations; Karen Perrine, Assistant Registrar; Anne Bloomsburg, Regulations Analyst; Rhonda Dyer, Publications Assistant; Terri Edwards, Operations Staff Assistant.
PUBLICATION SCHEDULE AND DEADLINES
Vol. 34 Iss. 6 - November 13, 2017
November 2017 through November 2018
Volume: Issue
|
Material Submitted By Noon*
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Will Be Published On
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34:6
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October 25, 2017
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November 13, 2017
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34:7
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November 8, 2017
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November 27, 2017
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34:8
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November 21, 2017 (Tuesday)
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December 11, 2017
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34:9
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December 6, 2017
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December 25, 2017
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34:10
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December 19, 2017 (Tuesday)
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January 8, 2018
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34:11
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January 3, 2018
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January 22, 2018
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34:12
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January 17, 2018
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February 5, 2018
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34:13
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January 31, 2018
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February 19, 2018
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34:14
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February 14, 2018
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March 5, 2018
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34:15
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February 28, 2018
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March 19, 2018
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34:16
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March 14, 2018
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April 2, 2018
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34:17
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March 28, 2018
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April 16, 2018
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34:18
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April 11, 2018
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April 30, 2018
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34:19
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April 25, 2018
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May 14, 2018
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34:20
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May 9, 2018
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May 28, 2018
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34:21
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May 23, 2018
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June 11, 2018
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34:22
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June 6, 2018
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June 25, 2018
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34:23
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June 20, 2018
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July 9, 2018
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34:24
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July 3, 2018 (Tuesday)
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July 23, 2018
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34:25
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July 18, 2018
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August 6, 2018
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34:26
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August 1, 2018
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August 20, 2018
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35:1
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August 15, 2018
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September 3, 2018
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35:2
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August 29, 2018
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September17, 2018
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35:3
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September 12, 2018
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October 1, 2018
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35:4
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September 26, 2018
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October 15, 2018
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35:5
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October 10, 2018
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October 29, 2018
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35:6
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October24, 2018
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November 12, 2018
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35:7
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November 7, 2018
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November 26, 2018
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*Filing deadlines are Wednesdays
unless otherwise specified.
NOTICES OF INTENDED REGULATORY ACTION
Vol. 34 Iss. 6 - November 13, 2017
TITLE 18. PROFESSIONAL AND OCCUPATIONALLICENSING
Regulations Governing the Practice of Optometry
Notice of Intended Regulatory Action
Notice is hereby given in accordance with § 2.2-4007.01 of
the Code of Virginia that the Board of Optometry intends to consider amending 18VAC105-20,
Regulations Governing the Practice of Optometry. The purpose of the
proposed action is to address the opioid abuse crisis in Virginia by adopting
regulations for optometrists prescribing controlled substances containing
opioids. The regulations for the management of acute pain include requirements
for (i) prescribing a dosage not to exceed seven days, (ii) evaluation of the
patient, and (iii) limitations on quantity. Requirements for prescribing an
opioid beyond seven days include a reevaluation of the patient, check of the
Prescription Monitoring Program, and specific information in the patient
record. In addition, if a therapeutic pharmaceutical agent-certified
optometrist finds an opioid prescription for chronic pain is necessary, he must
refer the patient to a physician or comply with Board of Medicine regulation
for managing chronic pain.
The agency intends to hold a public hearing on the proposed
action after publication in the Virginia Register.
Statutory Authority: § 54.1-2400 of the Code of
Virginia.
Public Comment Deadline: December 13, 2017.
Agency Contact: Leslie L. Knachel, Executive Director,
Board of Optometry, 9960 Mayland Drive, Suite 300, Richmond, VA 23233,
telephone (804) 367-4508, FAX (804) 527-4471, or email
leslie.knachel@dhp.virginia.gov.
VA.R. Doc. No. R18-5205; Filed October 16, 2017, 8:52 a.m.
TITLE 18. PROFESSIONAL AND OCCUPATIONALLICENSING
Regulations Governing the Practice of Pharmacy
Notice of Intended Regulatory Action
Notice is hereby given in accordance with § 2.2-4007.01 of
the Code of Virginia that the Board of Pharmacy intends to consider amending 18VAC110-20,
Regulations Governing the Practice of Pharmacy. The purpose of the proposed
action is to require an applicant as a pharmacist, a pharmacy intern, or a
pharmacy technician to obtain an e-profile ID number that may be utilized by
the applicant and the board to track discipline, exam scores, and continuing education.
There is no cost to applicants to obtain the number, and there is no cost to
the board for using an e-profile ID number to get information from the National
Association of Boards of Pharmacy.
The agency intends to hold a public hearing on the proposed
action after publication in the Virginia Register.
Statutory Authority: § 54.1-2400 of the Code of
Virginia.
Public Comment Deadline: December 13, 2017.
Agency Contact: Caroline Juran, RPh, Executive Director,
Board of Pharmacy, 9960 Mayland Drive, Suite 300, Richmond, VA 23233-1463,
telephone (804) 367-4456, FAX (804) 527-4472, or email
caroline.juran@dhp.virginia.gov.
VA.R. Doc. No. R18-5278; Filed October 16, 2017, 8:33 a.m.
TITLE 22. SOCIAL SERVICES
Provision of Independent Living Rehabilitation Services
Notice of Intended Regulatory Action
Notice is hereby given in accordance with § 2.2-4007.01 of
the Code of Virginia that the Department for Aging and Rehabilitative Services
intends to consider amending 22VAC30-30, Provision of Independent Living
Rehabilitation Services. The purpose of the proposed action is to comply
with 45 CFR Part 1329, which implements The Workforce Innovation and
Opportunity Act of 2014 for the independent living program and independent
living services, and ensure that Virginia's centers for independent living
receiving federal funds comply with federal regulations. In addition, this
action will bring the regulation up to date with the changes in the independent
living movement that have occurred since this regulation was last amended. This
action will protect the welfare of citizens because it stipulates the specific,
core independent living services that are required by the federal regulations
and will allow the individual centers the flexibility to provide additional
services that are needed by their specific geographical areas if there are
additional funding sources available.
This Notice of Intended Regulatory Action serves as the report
of the findings of the regulatory review pursuant to § 2.2-4007.1 of the
Code of Virginia.
The agency does not intend to hold a public hearing on the
proposed action after publication in the Virginia Register.
Statutory Authority: § 51.5-131 of the Code of Virginia.
Public Comment Deadline: December 13, 2017.
Agency Contact: Vanessa S. Rakestraw, Ph.D., CRC, Policy
Analyst, Department for Aging and Rehabilitative Services, 8004 Franklin Farms
Drive, Richmond, VA 23229, telephone (804) 662-7612, FAX (804) 662-7663, TTY
(800) 464-9950, or email vanessa.rakestraw@dars.virginia.gov.
VA.R. Doc. No. R18-5333; Filed October 25, 2017, 10:33 a.m.
TITLE 22. SOCIAL SERVICES
Child Protective Services
Notice of Intended Regulatory Action
Notice is hereby given in accordance with § 2.2-4007.01 of the
Code of Virginia that the State Board of Social Services intends to consider
amending 22VAC40-705, Child Protective Services. The purpose of the
proposed action is to comply with 2017 legislative changes and applicable
federal law. The action will address changes in the Code of Virginia, comments
from any workgroup convened to review the regulation, and comments received
during the public comment period for this Notice of Intended Regulatory Action.
The agency plans to (i) amend provisions regarding substance-exposed infants in
accordance with Chapters 176 and 428 of the 2017 Acts of Assembly; (ii) amend
provisions related to active duty members of the United States Armed Forces in
accordance with Chapters 88 and 142 of the 2017 Acts of Assembly; (iii)
consider adding a new provision for a 24-hour child protective services
response to reports alleging abuse or neglect of a child under the age of two
years based on Chapter 604 of the 2017 Acts of Assembly; and (iv) consider
changes in response to recommendations made by a workgroup examining barriers
to treatment for substance-exposed infants established in Chapter 197 of the
2017 Acts of Assembly.
The agency does not intend to hold a public hearing on the
proposed action after publication in the Virginia Register.
Statutory Authority: § 63.2-217 of the Code of Virginia.
Public Comment Deadline: December 13, 2017.
Agency Contact: Mary Walter, Program Consultant, Child
Protective Services, Department of Social Services, 801 East Main Street,
Richmond, VA 23219, telephone (804) 726-7569, FAX (804) 726-7499, or email
mary.walter@dss.virgnia.gov.
VA.R. Doc. No. R18-5314; Filed October 16, 2017, 8:55 a.m.
REGULATIONS
Vol. 34 Iss. 6 - November 13, 2017
TITLE 4. CONSERVATION AND NATURAL RESOURCES
MARINE RESOURCES COMMISSION
Final Regulation
REGISTRAR'S NOTICE: The
Marine Resources Commission is claiming an exemption from the Administrative
Process Act in accordance with § 2.2-4006 A 11 of the Code of Virginia;
however, the commission is required to publish the full text of final
regulations.
Title of Regulation: 4VAC20-120. Pertaining to the
Promulgation of a Public Notice on Applications to Encroach in, on or over
Subaqueous Lands of the Commonwealth (amending 4VAC20-120-10 through
4VAC20-120-40).
Statutory Authority: § 28.2-103 of the Code of Virginia.
Effective Date: November 1, 2017.
Agency Contact: Jennifer Farmer, Regulatory Coordinator,
Marine Resources Commission, 2600 Washington Avenue, 3rd Floor, Newport News,
VA 23607, telephone (757) 247-2248, or email jennifer.farmer@mrc.virginia.gov.
Summary:
The amendments update the public notice process regarding
permit applications and identify projects or activities for which a notice is
not necessary.
CHAPTER 120
PERTAINING TO THE PROMULGATION OF A PUBLIC NOTICE ON OF
APPLICATIONS TO ENCROACH IN, ON OR OVER SUBAQUEOUS LANDS OF THE COMMONWEALTH
FOR PERMITS FOR CERTAIN USES OF STATE-OWNED BOTTOMLANDS
4VAC20-120-10. Authority, prior regulation, effective date
Purpose.
A. This chapter is promulgated pursuant to the authority
contained in § 28.1-23 [Repealed] of the Code of Virginia.
B. This chapter amends the previous Regulation XV
concerning the requirement for public notice on all applications to encroach on
subaqueous lands of the Commonwealth, and made effective November 1, 1973.
C. The effective date of this chapter is March 1, 1983.
The purpose of this chapter is to establish the public
notice requirements that are a part of a public interest review for projects
and activities requiring permits from the Marine Resources Commission for uses
of state-owned bottomlands pursuant to Chapter 12 (§ 28.2-1200 et seq.) of
Title 28.2 of the Code of Virginia.
4VAC20-120-20. General.
The Marine Resources Commission hereby requires a public
notice on all applications for encroachment upon the state-owned bottoms made
pursuant to Chapter 12 (§ 28.2-100 et seq.) of Title 28.2 of the Code of
Virginia. Such public notice shall be made in accordance with the following
provisions.
The Marine Resources Commission requires a public notice
on all applications that require a permit from the commission pursuant to
Chapter 12 (§ 28.2-1200 et seq.) of Title 28.2 of the Code of Virginia except
for the following projects or activities:
1. Construction projects, structures, and activities
authorized by general permit or regulation promulgated by the commission,
unless such general permit or regulation specifically requires such public
notice;
2. Replacement or reconstruction of structures previously
authorized or permitted by the commission, provided such structures do not
result in additional encroachment over state-owned bottomlands;
3. Taking sediment samples for engineering or geotechnical
analysis;
4. Recovering objects from state-owned bottomlands, unless
those objects have been identified as underwater historic property pursuant to
§ 10.1-2214 of the Code of Virginia, or from areas excluded from recovery
activity by the commission in consultation with the Department of Historic
Resources;
5. Restoring sand to any publically owned beach damaged by
sand erosion; or
6. Constructing private piers requiring a permit pursuant
to § 28.2-1205 D of the Code of Virginia.
4VAC20-120-30. Content and publication.
A. The notice shall include the applicant's name and
accurately describe the nature and, extent, and location
of the proposed project; shall include the location of the project; and
shall include the applicant's name and address.
B. For projects which require both a state and federal
permit, the district office of the U.S. Army Corps of Engineers will prepare a
joint state/federal public notice, with the assistance of the Environmental
Division of VMRC, which will be promulgated in accordance with U.S. Army Corps
of Engineers chapters and local district policy. The public notice shall
be placed in a newspaper having general circulation in the area where the project
is proposed.
C. For projects which qualify under either a project
or an activity that also requires a permit from the Norfolk District of the
U.S. Army Corps of Engineers nationwide or district general permit, or for
which no federal permit is required, the public notice shall be placed in a
newspaper having general circulation in the area where the project is proposed
(Corps) and for which a Corps public notice is required, a joint state and
federal public notice may be used without the placement of a notice in a
newspaper by the commission.
D. Copies of all comments received will be provided to the appropriate
districts of the U.S. Army Corps of Engineers and the State Water Control Board
Corps and the Department of Environmental Quality.
4VAC20-120-40. Commissioner's responsibility and authority.
A. The commissioner Marine Resources Commissioner
or his designee shall be responsible for seeing ensuring that
the newspaper notice is published, as described in 4VAC20-120-30 C above,
B and shall be the sole judge concerning the adequacy of content of the
newspaper notice and selection of the newspaper.
B. The cost of publication of the notice required in
4VAC20-120-30 C B shall be borne by the applicant.
C. Cost of publication of the joint state/federal public
notice prepared by the Norfolk and Baltimore districts of the U.S. Army Corps
of Engineers will be borne by the district which prepares the notice.
VA.R. Doc. No. R18-5330; Filed October 25, 2017, 10:23 a.m.
TITLE 4. CONSERVATION AND NATURAL RESOURCES
MARINE RESOURCES COMMISSION
Final Regulation
REGISTRAR'S NOTICE: The
Marine Resources Commission is claiming an exemption from the Administrative
Process Act in accordance with § 2.2-4006 A 11 of the Code of Virginia;
however, the commission is required to publish the full text of final
regulations.
Title of Regulation: 4VAC20-260. Pertaining to
Designation of Seed Areas and Clean Cull Areas (amending 4VAC20-260-50).
Statutory Authority: § 28.2-201 of the Code of Virginia.
Effective Date: October 25, 2017.
Agency Contact: Jennifer Farmer, Regulatory Coordinator,
Marine Resources Commission, 2600 Washington Avenue, 3rd Floor, Newport News,
VA 23607, telephone (757) 247-2248, or email jennifer.farmer@mrc.virginia.gov.
Summary:
The amendment establishes inspection procedures for oysters
kept in individual baskets and clarifies the methods police officers may use to
inspect oyster harvests for conformity to culling standards.
4VAC20-260-50. Culling and inspection procedures.
A. All oysters taken from natural public beds, rocks, or
shoals shall be placed on the culling board, or in only one basket upon
the culling board, and culled by hand at the location of harvest.
1. Culled oysters shall be transferred immediately from the
culling board to either the inside open part of the boat, and
stored in either a loose pile, or baskets, but only one transfer
method may be used on any boat or vessel in any one day.
a. Oysters shall not be stored in both a loose pile and in
baskets.
b. A single basket may be on board any boat during transfer of
culled oysters from the culling board to the inside open part of the boat in a
loose pile.
2. The entire harvest shall be subject to inspection, as
provided in subsection F of this section.
B. Any oysters taken lawfully by hand from natural public
beds, rocks, or shoals from the seaside of the Eastern Shore, and held in
sacks, bags, or containers, shall be culled when taken and placed in those sacks,
bags, or containers for inspection by any police officer as described in
subsection G of this section.
C. If oysters from leased grounds and oysters from public
grounds are mixed in the same cargo on a boat or motor vehicle, the entire
cargo shall be subject to inspection under this chapter.
D. It shall be unlawful for any person to buy, sell, or
report clean cull oysters by any measure other than those described in §
28.2-526 A of the Code of Virginia filled to level full. The container
described in § 28.2-526 A 2 is a basket. It shall be unlawful for any person to
sell, purchase, or report the sale or purchase of any clean cull oysters
harvested from public grounds, as described in 4VAC20-720-40, in excess of the
harvest limits described in 4VAC20-720-80.
E. It shall be unlawful for any person to buy, sell, or
report seed oysters by any measure other than as described in § 28.2-526
of the Code of Virginia.
F. Oysters may be inspected by any police officer according
to any one of the following provisions:
1. For any oysters transferred from the culling board to
the inside open part of the boat, vehicle, or trailer or stored in a
loose pile in a vehicle, a trailer, or the inside open part of a boat, any
the police officer may shall use a shovel to take at
least one bushel basket of oysters to inspect, at random,
provided that the entire bushel or basket shall be taken from one place in the
open pile of oysters. The officer may inspect multiple baskets by repeating
this procedure for each basket of oysters shoveled from the loose pile.
2. For any oysters transferred from a vessel to a motor
vehicle or trailer, any stored in baskets in a vehicle, a trailer, or
the inside open part of a boat, the police officer may shall
select one or more baskets of oysters and empty the contents of those
baskets into a bushel or basket, as described in § 28.2-526 of the Code of
Virginia, basket for inspection. The officer may inspect multiple
baskets by repeating this procedure for each basket.
G. In the inspection of oysters harvested by hand from waters
of the seaside of the Eastern Shore, the police officer may select any sacks,
bags, or containers at random to establish a full metallic measuring bushel or
basket for purposes of inspection.
H. On the seaside of the Eastern Shore oysters may be sold
without being measured if both the buyer and the seller agree to the number of
bushels of oysters in the transaction.
VA.R. Doc. No. R18-5295; Filed October 25, 2017, 3:20 p.m.
TITLE 4. CONSERVATION AND NATURAL RESOURCES
MARINE RESOURCES COMMISSION
Emergency Regulation
Title of Regulation: 4VAC20-260. Pertaining to
Designation of Seed Areas and Clean Cull Areas (amending 4VAC20-260-40).
Statutory Authority: §§ 28.2-201 and 28.2-210 of the
Code of Virginia.
Effective Dates: October 25, 2017, through November 24,
2017.
Agency Contact: Jennifer Farmer, Regulatory Coordinator,
Marine Resources Commission, 2600 Washington Avenue, 3rd Floor, Newport News,
VA 23607, telephone (757) 247-2248 or email jennifer.farmer@mrc.virginia.gov.
Preamble:
The amendment establishes the basket as the only measure
for oyster culling tolerance.
4VAC20-260-40. Culling tolerances or standards.
A. In the clean cull areas, if more than a four-quart measure
of any combined quantity of oysters less than three inches and shells of any
size are found in any bushel or basket inspected by any police officer,
it shall constitute a violation of this chapter, except as described in
4VAC20-260-30 E.
B. In the James River seed areas, if more than a six-quart
measure of shells is found in any bushel or basket of seed oysters
inspected by any police officer, it shall constitute a violation of this
chapter.
C. In the James River seed areas, if more than a four-quart
measure of any combined quantity of oysters less than three inches and shells
of any size are found in any bushel or basket of clean cull oysters
inspected by any police officer, it shall constitute a violation of this
chapter.
D. From the seaside of the Eastern Shore, if more than a
four-quart measure of any combined quantity of oysters less than three inches
and shells of any size are found per bushel or basket of clean cull
oysters inspected by any police officer, it shall constitute a violation of
this chapter.
E. Any oysters less than the minimum cull size or any amount
of shell that exceeds the culling standard shall be returned immediately to the
natural beds, rocks, or shoals from where they were taken.
F. Oysters less than the minimum cull size that are adhering
so closely to the shell of any marketable oyster as to render removal
impossible without destroying the oysters less than the minimum cull size need
not be removed, and those oysters shall be considered lawful and shall not be
included in the culling tolerances or standards as described in subsections A
through D of this section.
G. It shall be unlawful for any person to sell any oysters
less than the minimum cull size as described in this section.
VA.R. Doc. No. R18-5326; Filed October 25, 2017, 10:44 a.m.
TITLE 4. CONSERVATION AND NATURAL RESOURCES
MARINE RESOURCES COMMISSION
Final Regulation
REGISTRAR'S NOTICE: The
Marine Resources Commission is claiming an exemption from the Administrative
Process Act in accordance with § 2.2-4006 A 11 of the Code of Virginia;
however, the commission is required to publish the full text of final
regulations.
Title of Regulation: 4VAC20-510. Pertaining to
Amberjack and Cobia (amending 4VAC20-510-25).
Statutory Authority: § 28.2-201 of the Code of Virginia.
Effective Date: October 25, 2017.
Agency Contact: Jennifer Farmer, Regulatory Coordinator,
Marine Resources Commission, 2600 Washington Avenue, 3rd Floor, Newport News,
VA 23607, telephone (757) 247-2248, or email jennifer.farmer@mrc.virginia.gov.
Summary:
The amendment establishes the closure of the commercial
cobia season after September 30, 2017.
4VAC20-510-25. Commercial fishery possession limits and
season.
A. It shall be unlawful for any person fishing
commercially to possess more than two amberjack or more than two cobia at any
time, except as described in 4VAC20-510-33. Any amberjack or cobia caught after
the possession limit has been reached shall be returned to the water
immediately. When fishing from any boat or vessel where the entire catch is
held in a common hold or container, the 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 two. The captain or operator of the boat or vessel shall
be responsible for any boat or vessel possession limit.
B. In 2017 it shall be unlawful for any person fishing
commercially to harvest or possess any cobia after September 30.
VA.R. Doc. No. R18-5294; Filed October 25, 2017, 1:13 p.m.
TITLE 4. CONSERVATION AND NATURAL RESOURCES
MARINE RESOURCES COMMISSION
Final Regulation
REGISTRAR'S NOTICE: The
Marine Resources Commission is claiming an exemption from the Administrative
Process Act in accordance with § 2.2-4006 A 11 of the Code of Virginia;
however, the commission is required to publish the full text of final
regulations.
Title of Regulation: 4VAC20-620. Pertaining to Summer
Flounder (amending 4VAC20-620-40).
Statutory Authority: § 28.2-201 of the Code of Virginia.
Effective Date: October 30, 2017.
Agency Contact: Jennifer Farmer, Regulatory Coordinator,
Marine Resources Commission, 2600 Washington Avenue, 3rd Floor, Newport News,
VA 23607, telephone (757) 247-2248, or email jennifer.farmer@mrc.virginia.gov.
Summary:
The amendments establish fall 2017 commercial offshore
summer flounder fishery management measures, including a change to the season
start date and a lower Virginia landing limit.
4VAC20-620-40. Commercial vessel possession and landing
limitations.
A. It shall be unlawful for any person harvesting summer
flounder outside of Virginia's waters to do any of the following, except as
described in subsections B, C, D, and E of this section:
1. Possess aboard any vessel in Virginia waters any amount of
summer flounder in excess of 10% by weight of Atlantic croaker or the combined
landings, on board a vessel, of black sea bass, scup, squid, scallops and
Atlantic mackerel.
2. Possess aboard any vessel in Virginia waters any amount of
summer flounder in excess of 1,500 pounds landed in combination with Atlantic croaker.
3. Fail to sell the vessel's entire harvest of all species at
the point of landing.
B. Nothing in this chapter shall preclude a vessel from
possessing any North Carolina vessel possession limit of summer flounder in
Virginia; however, no vessel that possesses the North Carolina vessel
possession limit of summer flounder shall offload any amount of that possession
limit, except as described in subsection J of this section.
C. From March 1 through April 30, it shall be unlawful for
any person harvesting summer flounder outside of Virginia waters to do any of
the following:
1. Possess aboard any vessel in Virginia waters any amount of
summer flounder in excess of the combined total of the Virginia landing limit
described in subdivision 2 of this subsection and the amount of the legal North
Carolina landing limit or trip limit.
2. Land in Virginia more than a total of 7,500 pounds of
summer flounder.
3. Land in Virginia any amount of summer flounder more than
once in any consecutive five-day period.
D. From November 1 October 16 through December
31 of each year, if it has not been announced that 85% of the allowable
landings have been taken, it shall be unlawful for any person harvesting
summer flounder outside of Virginia waters to do any of the following:
1. Possess aboard any vessel in Virginia waters any amount of
summer flounder in excess of the combined total of the Virginia landing limit
described in subdivision 2 of this subsection and the amount of the legal North
Carolina landing limit or trip limit.
2. Land in Virginia more than a total of 7,500 7,000
pounds of summer flounder.
3. Land in Virginia any amount of summer flounder more than
once in any consecutive five-day period.
E. From January 1 through December 31 of each year, any boat
or vessel issued a valid federal summer flounder moratorium permit and owned
and operated by a legal Virginia Commercial Hook-and-Line Licensee that
possesses a Restricted Summer Flounder Endorsement shall be restricted to a
possession and landing limit of 200 pounds of summer flounder, except as
described in 4VAC20-620-30 F.
F. Upon request by a marine police officer, the seafood buyer
or processor shall offload and accurately determine the total weight of all
summer flounder aboard any vessel landing summer flounder in Virginia.
G. Any possession limit described in this section shall be
determined by the weight in pounds of summer flounder as customarily packed,
boxed and weighed by the seafood buyer or processor. The weight of any summer
flounder in pounds found in excess of any possession limit described in this
section shall be prima facie evidence of violation of this chapter. Persons in
possession of summer flounder aboard any vessel in excess of the possession
limit shall be in violation of this chapter unless that vessel has requested
and been granted safe harbor. Any buyer or processor offloading or accepting
any quantity of summer flounder from any vessel in excess of the possession
limit shall be in violation of this chapter, except as described by subsection
J of this section. A buyer or processor may accept or buy summer flounder from
a vessel that has secured safe harbor, provided that vessel has satisfied the
requirements described in subsection J of this section.
H. If a person violates the possession limits described in
this section, the entire amount of summer flounder in that person's possession
shall be confiscated. Any confiscated summer flounder shall be considered as a
removal from the appropriate commercial harvest or landings quota. Upon confiscation,
the marine police officer shall inventory the confiscated summer flounder and,
at a minimum, secure two bids for purchase of the confiscated summer flounder
from approved and licensed seafood buyers. The confiscated fish will be sold to
the highest bidder and all funds derived from such sale shall be deposited for
the Commonwealth pending court resolution of the charge of violating the
possession limits established by this chapter. All of the collected funds will
be returned to the accused upon a finding of innocence or forfeited to the
Commonwealth upon a finding of guilty.
I. It shall be unlawful for a licensed seafood buyer or
federally permitted seafood buyer to fail to contact the Marine Resources
Commission Operation Station prior to a vessel offloading summer flounder
harvested outside of Virginia. The buyer shall provide to the Marine Resources
Commission the name of the vessel, its captain, an estimate of the amount in
pounds of summer flounder on board that vessel, and the anticipated or
approximate offloading time. Once offloading of any vessel is complete and the
weight of the landed summer flounder has been determined, the buyer shall
contact the Marine Resources Commission Operations Station and report the
vessel name and corresponding weight of summer flounder landed. It shall be
unlawful for any person to offload from a boat or vessel for commercial
purposes any summer flounder during the period of 9 p.m. to 7 a.m.
J. Any boat or vessel that has entered Virginia waters for
safe harbor shall only offload summer flounder when the state that licenses
that vessel requests to transfer quota to Virginia, in the amount that
corresponds to that vessel's possession limit, and the commissioner agrees to
accept that transfer of quota.
K. After any commercial harvest or landing quota as described
in 4VAC20-620-30 has been attained and announced as such, any boat or vessel
possessing summer flounder on board may enter Virginia waters for safe harbor
but shall contact the Marine Resources Commission Operation Center in advance
of such entry into Virginia waters.
L. When it is projected and announced that 85% of the
allowable landings have been taken, it shall be unlawful to land summer
flounder in Virginia, except as described in subsection A of this section.
M. L. It shall be unlawful for any person
harvesting summer flounder outside of Virginia waters to possess aboard any
vessel, in Virginia, any amount of summer flounder, once it has been projected
and announced that 100% of the quota described in 4VAC20-620-30 A has been
taken.
VA.R. Doc. No. R18-5293; Filed October 25, 2017, 1:17 p.m.
TITLE 4. CONSERVATION AND NATURAL RESOURCES
MARINE RESOURCES COMMISSION
Final Regulation
REGISTRAR'S NOTICE: The
Marine Resources Commission is claiming an exemption from the Administrative
Process Act in accordance with § 2.2-4006 A 11 of the Code of Virginia;
however, the commission is required to publish the full text of final
regulations.
Title of Regulation: 4VAC20-1120. Pertaining to
Tilefish and Grouper (adding 4VAC20-1120-35).
Statutory Authority: § 28.2-201 of the Code of Virginia.
Effective Date: November 1, 2017.
Agency Contact: Jennifer Farmer, Regulatory Coordinator,
Marine Resources Commission, 2600 Washington Avenue, 3rd Floor, Newport News,
VA 23607, telephone (757) 247-2248, or email jennifer.farmer@mrc.virginia.gov.
Summary:
The amendment establishes a recreational fishing season
that closes after October 31, 2017.
4VAC20-1120-35. Recreational blueline tilefish season.
It shall be unlawful for any person fishing recreationally
to harvest or possess any blueline tilefish after October 31, 2017.
VA.R. Doc. No. R18-5325; Filed October 25, 2017, 10:43 a.m.
TITLE 4. CONSERVATION AND NATURAL RESOURCES
MARINE RESOURCES COMMISSION
Final Regulation
REGISTRAR'S NOTICE: The
Marine Resources Commission is claiming an exemption from the Administrative
Process Act in accordance with § 2.2-4006 A 11 of the Code of Virginia;
however, the commission is required to publish the full text of final
regulations.
Title of Regulation: 4VAC20-1330. Living Shoreline
Group 2 General Permit for Certain Living Shoreline Treatments Involving
Submerged Lands, Tidal Wetlands, or Coastal Primary Sand Dunes and Beaches (adding 4VAC20-1330-10 through
4VAC20-1330-50).
Statutory Authority: § 28.2-104.1 of the Code of
Virginia.
Effective Date: November 1, 2017.
Agency Contact: Jennifer Farmer, Regulatory Coordinator,
Marine Resources Commission, 2600 Washington Avenue, 3rd Floor, Newport News,
VA 23607, telephone (757) 247-2248, or email jennifer.farmer@mrc.virginia.gov.
Summary:
This regulation establishes a general permit that
authorizes and encourages the use of living shorelines as the preferred
alternative for stabilizing tidal shorelines. The regulation provides for the
permitting processes for living shoreline treatments by establishing procedures
and qualifications for the general permit and sets forth specific criteria and
permit conditions.
CHAPTER 1330
LIVING SHORELINE GROUP 2 GENERAL PERMIT FOR CERTAIN LIVING SHORELINE TREATMENTS
INVOLVING SUBMERGED LANDS, TIDAL WETLANDS, OR COASTAL PRIMARY SAND DUNES AND
BEACHES
4VAC20-1330-10. Purpose.
The purpose of this general permit is to provide a
streamlined permitting process as an incentive to encourage property owners to
utilize a living shoreline approach as appropriate, manage shoreline erosion,
and promote the planting and growth of tidal wetland vegetation, sand dunes,
and beaches to restore or enhance ecosystem services. The techniques and
conditions contained in this general permit are designed to limit the
applicability of the permit to situations where the projects are most likely to
be successful, so as to limit the potential for adverse impacts on the
environment and adjoining or nearby properties.
Approval under this general permit constitutes either the
commission or the local wetlands board authorization, or both, required in
accordance with Chapters 12 (§ 28.2-1200 et seq.), 13 (§ 28.2-1300 et seq.),
and 14 (§ 28.2-1400 et seq.) of Title 28.2 of the Code of Virginia. This
general permit shall not conflict with or obviate the need to comply with any
other federal, state, or local permitting requirements or authorizations
governing the proposed activity.
4VAC20-1330-20. Definitions.
The following words and terms when used in this chapter
shall have the following meanings, unless the context clearly indicates
otherwise:
"Chairman" means the chairman of a local
wetlands board or his designee.
"Commission" or "VMRC" means the
Virginia Marine Resources Commission.
"Commissioner" means the Commissioner of Marine
Resources or his designee.
"Dune and beach vegetation" means the vegetative
species listed in § 28.2-1400 of the Code of Virginia.
"Fetch" means the distance along open water over
which wind blows.
"Fiber log" means biodegradable fibrous material
often composed of coconut fiber that is formed into rolls of various lengths
and thicknesses used for erosion control and as a growing medium.
"Fiber mat" means a biodegradable fibrous
material often composed of coconut fiber that is formed into mats of various
sizes and thicknesses used for erosion control and as a growing medium.
"Filter cloth" means a geotextile fabric
designed to allow water to pass through the membrane while retaining sediments.
For purposes of this chapter, filter cloth is typically utilized under sills
and marsh toe revetments to minimize settling and along the landward side of
marsh toe revetments to minimize sediment loss from the adjacent marsh
substrate.
"Grazing protection" means temporary structures
consisting of wooden stakes, string lines, netting, and metal cages intended to
protect planted wetland vegetation and introduced ribbed mussels from
predation.
"Joint Permit Application" means the current
Joint Permit Application utilized by the U.S. Army Corps of Engineers, Virginia
Marine Resources Commission, Virginia Department of Environmental Quality, and
local wetlands boards to evaluate projects involving submerged lands, wetlands,
and coastal primary sand dunes and beaches for permit review and any
abbreviated application developed specifically for this general permit.
"Living shoreline" means a shoreline management
practice that provides erosion control and water quality benefits; protects,
restores, or enhances shoreline habitat; and maintains coastal processes
through the strategic placement of plants, stone, sand fill, and other
structural and organic materials.
"Marsh toe revetment" means an erosion control
structure constructed of riprap or shell bags placed immediately channelward of
an eroding marsh. A marsh toe revetment is generally utilized to halt the
erosion of an existing vegetated marsh that is currently wide enough to provide
erosion control benefits.
"Ribbed mussels" means the Atlantic ribbed
mussel (Geukensia demissa).
"Riprap" means heavy rock utilized to construct
sills and revetments.
"Sand dunes and beaches" means the
jurisdictional areas meeting the definitions of coastal primary sand dunes and
beaches contained in § 28.2-1400 of the Code of Virginia.
"Sill" means a linear erosion control structure
constructed of riprap, shell bags, or other approved material placed
channelward of and generally parallel to an eroding shoreline. Sand is often
placed landward of the sill to raise the elevation of the substrate and facilitate
the establishment of wetlands vegetation.
"Shell bags" means net bags of various sizes
filled with oyster or clam shells used for erosion control and as a substrate
for other organisms.
"Tidal wetlands" or "wetlands" means
the jurisdictional area meeting the definition contained in § 28.2-1300 of
the Code of Virginia.
"Unaltered shoreline" means a shoreline segment
that does not already have an erosion control structure in place.
"Wetlands board" or "board" means a
local wetlands board created pursuant to § 28.2-1303 of the Code of
Virginia.
"Wetlands vegetation" means the vegetative
species listed in § 28.2-1300 of the Code of Virginia.
"Woven containment bag" means a biodegradable
bag generally filled with a mixture of sand, gravel, mulch, and soil and
planted with wetlands or beach and dune vegetation.
4VAC20-1330-30. Applicability and procedures.
A. This general permit shall authorize the placement of
certain specified sand fill, fiber logs, fiber mats, shell bags, riprap, woven
containment bags, and temporary grazing protection in tidal wetlands, beaches,
and submerged lands to provide shoreline erosion control while enhancing
shoreline habitat and improving the growing conditions for wetlands or dune and
beach vegetation. The establishment of oysters and ribbed mussels may be
incorporated into the project design.
B. To qualify for this general permit the applicant must
submit to VMRC a complete Joint Permit Application or special abbreviated
application, any application processing fee required pursuant to Chapter 13 (§
28.2-1300 et seq.) or Chapter 14 (§ 28.2-1400 et seq.) of Title 28.2 of the
Code of Virginia, and any supplemental information deemed necessary by the
commission or the applicable wetlands board chairman to fully evaluate the proposal.
The commissioner will oversee administration of the provisions of the general
permit.
VMRC will forward the application to the Norfolk District
of the U.S. Army Corps of Engineers, the appropriate local wetlands board, and
the Department of Environmental Quality.
C. The wetlands board and VMRC will review the application
concurrently to determine whether:
1. The application is sufficiently complete to allow
evaluation.
2. The project satisfactorily meets the general permit
criteria.
3. The adjoining property owners to the proposed project
have been notified and expressed no opposition to the project.
4. The general permit process is appropriate to use for the
specific project.
If the wetlands board chairman and the commissioner
determine the proposal affirmatively satisfies all four requirements listed in
subdivisions 1 through 4 of this subsection, the commissioner shall issue the
general permit. No additional public interest review shall be required. In the
event that no comment or request for additional information is received from a
wetlands board chairman or designee within 30 days of being provided the
application, it shall be assumed the wetlands board has no objection to the
issuance of the general permit, and the commissioner may issue the permit.
Should either the wetlands board chairman or the
commissioner determine that the proposal does not satisfy all four requirements
listed in subdivisions 1 through 4 of this subsection, the general permit
process shall not be utilized for the tidal wetlands or coastal primary sand
dunes and beaches portions of the project. However, the application may be
supplemented with additional information deemed necessary to qualify for the
general permit or the proposal could be reviewed in accordance with the applicable
standard provisions of Chapters 12 (§ 28.2-1200 et seq.), 13 (§ 28.2-1300 et
seq.), and 14 (§ 28.2-1400 et seq.) of Title 28.2 of the Code of Virginia
related to submerged lands, wetlands, and coastal primary sand dunes and
beaches.
D. In the case when a wetlands board conducts a public
hearing and issues a wetlands permit or coastal primary sand dunes and beaches
permit and when the subaqueous components of the project satisfy the specific
criteria under this regulation, the commissioner may proceed with the issuance
of a general permit for the portions of the project involving state-owned
submerged lands without the need for further public interest review provided an
appeal of the wetlands board decision is not received within the 10-day appeal
period provided under §§ 28.2-1311 and 28.2-1411 of the Code of Virginia.
E. Issuance of the general permit does not relieve the
permittee from complying with all other applicable local, state, and federal
laws and regulations, including those laws and regulations administered by the
U.S. Army Corps of Engineers, the Chesapeake Bay Preservation Act (§
62.1-44.15:67 et seq. of the Code of Virginia), erosion and sediment control
ordinances, stormwater management programs, and the Virginia Water Protection
Permit program.
4VAC20-1330-40. Specific criteria.
A. Any project must satisfy the following specific
criteria:
1. There is clear evidence of active detrimental erosion at
the project site, and the maximum fetch at the project site does not exceed 1.5
miles in any shore angle direction.
2. The maximum water depth at the sill location shall not
exceed two feet at mean low water, and the landward edge of the sill shall not
be located further than 30 feet channelward of mean low water.
3. The proposal shall include an existing or created tidal
wetland with a minimum total width of eight feet.
4. For unaltered shorelines, the project will only qualify
for the general permit if the living shoreline components are the only
shoreline protection structures proposed along the specific shoreline segment.
For previously altered shorelines, an existing erosion control structure will
not restrict the use of the general permit for a living shoreline project
designed to protect or enhance an existing vegetated wetland provided the
resulting vegetated wetlands is at least eight feet in width.
5. Marsh toe revetments and sills shall be constructed of
riprap or alternative materials proposed during the review process. The
materials shall be of sufficient weight or adequately anchored to prevent being
dislodged by anticipated wave action. Asphalt and materials containing asphalt
or other toxic substances shall not be used in the construction of marsh toe
revetments and sills.
6. Marsh toe revetments, sills, and associated sand fill shall
not be placed on submerged aquatic vegetation or vegetated wetlands, except
sand may be placed on vegetated wetlands if deemed necessary to improve
wetlands habitat or resiliency provided the sand placement does not raise the
elevation of the site above the elevation of jurisdictional tidal vegetated
wetlands and provided further that the project results in a net gain in areal
coverage of wetlands vegetation through planting or natural revegetation.
7. Marsh toe revetments and sills shall be constructed on
filter cloth and to a maximum height of one foot above the elevation of mean
high water at the site. Side slopes of the structures shall be no flatter than
2:1. Broken concrete may be utilized for the core of the structure provided it
does not contain exposed rebar or other construction debris and provided it is
covered with a layer of riprap stone.
8. Sills shall be designed and constructed with a minimum
of one five-foot wide gap or window per property and per 100 linear feet. The
maximum height of a window shall not exceed one-half the height of the sill and
shall not exceed the elevation of mean high water.
9. Coarse sand should be utilized for any required fill. At
a minimum the sand shall contain less than 10% very fine material (passing a
#100 sieve). The sand shall not be placed in a manner that raises the elevation
of any existing wetland area above the elevation of jurisdictional vegetated
tidal wetlands (1.5 times the mean tide range above mean low water).
10. Wetland or dune and beach vegetation shall be planted
in all jurisdictional areas on which sand is placed where the resulting
substrate elevation is appropriate to support the growth of such vegetation.
Only those species that are anticipated to survive at the project site
elevation and normal salinity regime shall be used. The common reed, Phragmites
sp., shall not typically be considered appropriate wetlands vegetation for
planting purposes.
11. Fiber logs, fiber mats, woven containment bags, and
shell bags may be utilized within the jurisdictional tidal wetlands or sand
dunes and beaches to create a sill or to otherwise support the growth of
wetlands or dune and beach vegetation provided they are not placed on existing
vegetation and are not stacked to a height that exceeds mean high water except
along the landward limits of the wetlands or dunes and beaches. The bags, fiber
mats, and fiber logs shall be maintained and promptly removed should they
become displaced or unexpectedly damaged at any time. If available,
biodegradable materials are encouraged. The replacement of any failed fiber
logs, fiber mats, or bags in the same location shall be allowed without the
need to receive additional authorization. Additional sand may be placed to
replace any lost sand or to adjust for substrate settlement, provided the
elevation of the originally proposed grade is not exceeded without the need to
receive additional authorization.
12. Temporary grazing protection may be utilized to protect
wetlands, dune and beach vegetation, or ribbed mussels until they become
established. The protective structures shall be removed once the vegetation or
mussels are established. Such grazing protection is encouraged and should be
considered in the project design. Any requested grazing protection shall be
specified in the permit application.
13. The permittee agrees to notify the commission upon
completion of the project and to provide a brief monitoring report at the end
of the first full growing season following planting and after the second year
of establishment of vegetation. The monitoring shall be conducted from June
through September of each year, and the report shall include at a minimum the
permit number, representative photos of the site, and a brief statement
concerning the success of the project. Additional documentation is encouraged
to allow improved evaluation of the techniques utilized.
14. Any vegetated wetlands or dune and beach vegetation
established under this general permit shall not be cut or harvested. Areas
shall be replanted as necessary to ensure, at a minimum, no net loss of wetland
or dune and beach vegetation within the project area for a period of two years
following the initial planting. If necessary to promote the establishment of
wetlands or dune and beach vegetation, additional sand may be placed to restore
the originally proposed elevation grade.
15. Any measures taken to eradicate invasive species at the
project site associated with the living shoreline activity, including
Phragmites sp., shall be noted in the permit application or conducted in
accordance with a plan evaluated and approved by the applicable wetlands board
or locality. Such plans shall include measures to revegetate the area with
appropriate native wetlands vegetation.
B. All activities undertaken in accordance with the
general permit are subject to the enforcement and penalty provisions contained
in Article 2 (§ 28.2-1210 et seq.) of Chapter 12, Article 4 (§ 28.2-1316 et
seq.) of Chapter 13, and Article 4 (§ 28.2-1416 et seq.) of Chapter 14 of
Title 28.2 of the Code of Virginia. Failure to comply with any criteria or
conditions of the general permit constitutes a violation of the permit.
4VAC20-1330-50. Permit conditions.
Permits issued are subject to the following conditions:
1. The project authorized by this general permit shall be
completed within two years of the issuance of the permit. Upon written request
by the permittee prior to the permit expiration date, the permit may be
extended to allow completion of the work. All other conditions remain in effect
until revoked by the commission, wetlands board, or the General Assembly.
2. This permit grants no authority to the permittee to
encroach on property rights, including riparian rights, of others.
3. The duly authorized agents of the commission and the
applicable local government shall have the right to enter upon the premises at
reasonable times for the purposes of inspecting the work authorized by the
permit and to evaluate compliance with the terms and conditions of the permit.
Although the general permit is issued by the commissioner, the applicable local
wetlands board retains jurisdiction and may enforce violations and any
nonconformance with the permit occurring within tidal wetlands and coastal
primary sand dunes and beaches.
4. The permittee shall comply with all applicable federal,
state, and local laws, ordinances, rules, and regulations concerning the
project, specifically including those related to the U.S. Army Corps of
Engineers, water quality standards, erosion and sedimentation control, the
Chesapeake Bay Preservation Act, the Stormwater Management Act, and the
Virginia Water Protection Permit Program. The granting of this permit shall not
relieve the permittee of the responsibility of obtaining any and all other
permits or authorization for this project.
5. The permit shall not affect or interfere with the right
vouchsafed to the people of Virginia concerning fowling and the catching of and
taking of oysters and other shellfish in and from the waters not included
within the terms of the permit.
6. The permittee shall to the greatest extent practicable
minimize adverse impacts of the project on adjacent properties and wetlands and
upon the natural resources of the Commonwealth.
7. The permit may be revoked at any time by the commission
upon the failure of the permittee to comply with the terms and conditions
hereof or at the will of the General Assembly of Virginia.
8. Any portion of the waters within the boundaries of the
Baylor Survey is expressly excluded from this permit.
9. This permit is subject to any lease of oyster planting
ground in effect on the date of the permit. Nothing in the permit shall be
construed as allowing the permittee to encroach on any lease without the
consent of the leaseholder. The permittee shall be liable for any damages to such
lease.
10. The issuance of this permit does not confer upon the
permittee any interest or title to the submerged lands.
11. All structures authorized by this permit that are not
maintained in good repair or are displaced to areas not authorized shall be
completely removed within 30 days after notification by the commission or its
designated representatives.
12. The permittee agrees to comply with all the terms and
conditions as set forth in this permit and that the project will be
accomplished within the boundaries as outlined in the plans attached to this
permit. Any encroachment beyond the limits of this permit shall constitute a
Class 1 misdemeanor.
13. This permit authorizes no claim to archaeological
artifacts that may be encountered during the course of construction. If,
however, archaeological remains are encountered, the permittee agrees to notify
the commission, which will subsequently notify the Department of Historic
Resources. The permittee further agrees to cooperate with agencies of the Commonwealth
in the recovery of archaeological remains if deemed necessary.
14. The permittee agrees to indemnify and save harmless the
Commonwealth of Virginia and any applicable locality from any liability arising
from the establishment, operation, or maintenance of said project.
15. This general permit shall be retained by the permittee
for the duration of the project as evidence of authorization and shall not be
transferred without the written consent of the commissioner.
NOTICE: The following
form used in administering the regulation was filed by the agency. The form is
not being published; however, online users of this issue of the Virginia
Register of Regulations may click on the name of the form with a hyperlink to
access it. The form is also available from the agency contact or may be viewed
at the Office of the Registrar of Regulations, 900 East Main Street, 11th
Floor, Richmond, Virginia 23219.
FORMS (4VAC20-1330)
Tidewater
Joint Permit Application (JPA) for Projects Involving Tidal Waters, Tidal
Wetlands, and/or Dunes and Beaches in Virginia (rev. 5/2017)
VA.R. Doc. No. R18-5329; Filed October 25, 2017, 10:15 a.m.
TITLE 8. EDUCATION
STATE BOARD OF EDUCATION
Final Regulation
Titles of Regulations: 8VAC20-440. Regulations
Governing the Employment of Professional Personnel (repealing 8VAC20-440-10 through
8VAC20-440-160).
8VAC20-441. Regulations Governing the Employment of
Professional Personnel (adding 8VAC20-441-10 through 8VAC20-441-140).
Statutory Authority: §§ 22.1-16 and 22.1-302 of the Code
of Virginia.
Effective Date: December 13, 2017.
Agency Contact: Patty S. Pitts, Assistant Superintendent
for Teacher Education and Licensure, Department of Education, P.O. Box 2120,
Richmond, VA 23218, telephone (804) 371-2522, or email patty.pitts@doe.virginia.gov.
Summary:
The regulatory action replaces the existing regulation
numbered 8VAC20-440 with a new regulation numbered 8VAC20-441. Amendments
reflect changes in the Code of Virginia based on Chapters 106 and 687 of the
2012 Acts of Assembly and Chapters 588 and 650 of the 2013 Acts of Assembly and
include (i) defining assistant principals; (ii) clarifying the definitions of
teachers and supervisors; (iii) changing notification dates from April 15 to
June 15; (iv) aligning evaluations with the Board of Education Guidelines for
Uniform Performance Standards and Evaluation Criteria for Teachers, Principals,
and Superintendents; (v) defining the probationary terms for teachers, which,
at local option, can be three years and up to five years; (vi) stipulating the
evaluation period of teachers and principals; (vii) defining the standard
10-month contract; and (viii) clarifying that a temporarily employed teacher is
not required to be licensed by the Board of Education.
Summary of Public Comments and Agency's Response: No
public comments were received by the promulgating agency.
CHAPTER 441
REGULATIONS GOVERNING THE EMPLOYMENT OF PROFESSIONAL PERSONNEL
8VAC20-441-10. Definitions.
The following words and terms when used in this chapter
shall have the following meanings unless the context clearly indicates
otherwise:
"Annual contract" means a contract between a
probationary teacher, assistant principal, principal, or supervisor and the
local school board that sets forth the terms and conditions of employment for
one school year.
"Assistant principal" means a person (i) who is
regularly employed full time as an assistant principal and (ii) who holds a
valid license issued by the Board of Education necessary to be an assistant
principal.
"Board" means the Virginia Board of Education,
which has general supervision of the public school system.
"Breach of contract" means, for the purpose of
this chapter, a teacher failing to honor a contract for the current or next
school year without formal release from that contract from the local school
board. "Breach of contract" does not include dismissal for cause.
"Coaching contract" means a separate contract
between the employee and the local school board that includes responsibilities
for an athletic coaching assignment.
"Continuing contract" means a contract between a
teacher, assistant principal, principal, or supervisor who has satisfied the
probationary term of service and the local school board.
"Current employer" means the local school board
with which the employee is currently under contract.
"Extracurricular activity sponsorship contract"
means a separate contract between the employee and the local school board that
includes responsibilities, for which a monetary supplement is received, for
sponsorship of any student organizations, clubs, or groups, such as service
clubs, academic clubs and teams, cheerleading squads, student publication and
literary groups, and visual and performing arts organizations except those that
are conducted in conjunction with regular classroom, curriculum, or
instructional programs.
"Next school year" means the school year
immediately following the current contract year.
"Principal" means a person (i) who is regularly
employed full time as a principal and (ii) who holds a valid license issued by
the Board of Education necessary to be a principal.
"Prospective employer" means the division in
which application for employment is made.
"Supervisor" means a person (i) who is regularly
employed full time in an instructional supervisory position as specified in
this chapter and (ii) who is required by the board to hold a license prescribed
in this chapter to be employed in that position. An instructional supervisory
position has authority to direct or evaluate teachers, assistant principals,
principals, or other instructional personnel.
"Teacher" means a person (i) who is regularly
employed full time as a teacher, guidance counselor, or librarian and (ii) who
holds a valid teaching license.
8VAC20-441-20. [ (Reserved.)
Conditions of employment (fingerprinting, Department of Social Services
Registry search, licensure).
A. Applicants who are offered or accept employment must
comply with the fingerprinting provisions contained in § 22.1-296.2 of the
Code of Virginia.
B. Applicants who are offered or accept employment
requiring direct contact with students must satisfy the requirements of §
22.1-296.4 of the Code of Virginia and provide written consent and the personal
information necessary for the school board to obtain a search of the registry
of founded complaints of child abuse and neglect maintained by the Department
of Social Services pursuant to § 63.2-1515 of the Code of Virginia.
C. Additional Code of Virginia references for conditions
for licensure include §§ 22.1-295, 22.1-298.1, and 22.1-299, of the Code of
Virginia.
D. Principals and assistant principals are to be licensed
in accordance with § 22.1-293 of the Code of Virginia. ]
8VAC20-441-30. Contractual period defined.
The local school board shall define the length of the
contract period for each employee. A standard 10-month contract for a teacher
shall include 200 days, including:
1. 180 teaching days or 990 instructional hours (minimum
required by law); and
2. Up to 20 days for activities such as teaching,
participating in professional development, planning, evaluating, completing
records and reports, participating on committees or in conferences, or such
other activities as may be assigned or approved by the local school board.
8VAC20-441-40. Annual and continuing contract to be in
writing.
Annual and continuing contracts with teachers, assistant
principals, principals, and supervisors must be in writing. The local school
board may utilize prototypes of contract forms provided by the board or may
choose to develop its own contracts, but in so doing must ensure that the
essential elements set forth in 8VAC20-441-140 are included.
8VAC20-441-50. Length of the probationary term for teacher.
A probationary term of full-time employment under an
annual contract for at least three years and, at the option of the local school
board, up to five consecutive years in the same school division is required
before a teacher is issued a continuing contract. Once continuing contract
status has been attained in a school division in the Commonwealth, another
probationary period as a teacher need not be served in any other school
division unless a probationary period not exceeding two years is made a part of
the contract of employment.
8VAC20-441-60. Calculating term for first year of teaching.
For the purpose of calculating the years of service
required to attain continuing contract status, at least 160 contractual
teaching days during the school year shall be deemed the equivalent of one year
in the first year of service by the teacher.
8VAC20-441-70. Probationary period for principal or
supervisor.
A person employed as a principal, assistant principal, or
supervisor, including a person who has previously achieved continuing contract
status as a teacher, shall serve a probationary term of three consecutive years
in such position in the same school division before acquiring continuing
contract status as a principal, assistant principal, or supervisor.
8VAC20-441-80. Probationary period when employee separates
from service.
If a teacher, principal, assistant principal, or
supervisor separates from service during his probationary period and does not
return to service in the same school division by the beginning of the year
following the year of separation, such person shall be required to begin a new
probationary period.
8VAC20-441-90. Effect of service outside the Virginia
system.
Teaching service outside of the Virginia public school
system shall not be counted as meeting in whole or in part the required
probationary term.
8VAC20-441-100. Eligibility for continuing contract.
A. Only persons regularly employed full time by a school
board who hold a valid license as teachers, assistant principals, principals,
or supervisors shall be eligible for continuing contract status.
B. Any teacher hired on or after July 1, 2001, shall be
required, as a condition of achieving continuing contract status, to have
successfully completed training in instructional strategies and techniques for
intervention for or remediation of students who fail or are at risk of failing
the Standards of Learning assessments. Local school divisions shall be required
to provide such training at no cost to teachers employed in their division. In
the event a local school division fails to offer such training in a timely
manner, no teacher will be denied continuing contract status for failure to
obtain such training.
8VAC20-441-110. Continuing contract status when employee
separates from service.
When a teacher has attained continuing contract status in
a school division in the Commonwealth, and separates from and returns to
teaching service in a school division in Virginia by the beginning of the third
year, such teacher shall be required to serve a probationary period not to
exceed two years if such probationary period is made part of the contract for
employment. If a teacher who has attained continuing contract status separates
from service and does not return to teaching in Virginia public schools by the
beginning of the third year, such teacher shall be required to begin a new
probationary period.
8VAC20-441-120. Contract to be separate and apart from
annual or continuing contract.
The coaching contract or extracurricular activity
sponsorship contract with a teacher shall be separate and apart from the
teacher's annual or continuing contract, and termination of the coaching or
extracurricular activity sponsorship contract shall not constitute cause for
the termination of the annual or continuing contract.
For the purposes of this chapter, "extracurricular
activity sponsorship" means an assignment for which a monetary supplement
is received, requiring responsibility for any student organizations, clubs, or
groups, such as service clubs, academic clubs and teams, cheerleading squads,
student publication and literary groups, and visual and performing arts
organizations except those that are conducted in conjunction with regular
classroom, curriculum, or instructional programs.
8VAC20-441-130. Termination notice required.
The coaching contract or extracurricular activity
sponsorship contract shall require the party intending to terminate the
contract to give reasonable notice to the other party prior to the effective
date of the termination.
8VAC20-441-140. Listing of essential contract elements.
A. The list of essential contract elements can be used by
certain local school divisions who prefer to develop contracts specific to
their circumstances or situations. This list of essential elements is provided
as an alternative to the formal prototypes available.
B. Annual contracts. Any annual contract for professional
personnel shall, to the maximum extent possible, be written in clear and
concise language easily understood by all parties, and include, at a minimum,
the following provisions:
1. A statement identifying the names and titles of the
parties to the contract.
2. A statement of the licensure requirements for the
position or options thereto.
3. A statement of the beginning date of service, the term,
and the effective date of the contract.
4. A statement of the duties to be performed under the
contract.
5. A statement of expectations of the employee with regard
to compliance with local, state, or federal statutes, regulations and
constitutional provisions.
6. A statement of the provisions concerning assignment,
reassignment, termination, suspension, probation, or resignation of the
employee, and mutual termination of the contract.
7. A statement of the penalties for the employee's failure
to comply with the terms of the contract.
8. A statement identifying the school term.
9. A statement of the conditions under which the school
term [ and/or or ] contract may be
extended.
10. A statement of the amount of compensation due the
employee and the method of payment.
11. A statement of special covenants mutually agreed upon
by the employer and employee which form a basis for the contract.
C. Continuing contracts. Any continuing contract for
professional personnel shall, to the maximum extent possible, be written in
clear and concise language easily understood by all parties [ , ]
and include [ , ] at a minimum the following
provisions:
1. All of the provisions required for the annual contract.
2. A statement explaining the continuing nature of the
contract.
D. Coaching and extracurricular. Any athletic coaching
contract with school personnel shall, to the maximum extent possible, be
written in clear and concise language easily understood by all parties
[ , ] and include the following provisions:
1. A statement identifying the names and titles of the
parties to the contract.
2. A statement of the duties to be performed under the
contract.
3. A statement of the amount of compensation due the
employee and the method of payment.
4. A statement of expectations of the employee with regard
to compliance with local, state, or federal statutes, regulations and
constitutional provisions.
5. A statement setting forth conditions for termination of
the contract.
6. A statement identifying the limitations on the use of
the experience toward length of service, substitution for teaching experience
and rights in favor of the employee.
7. A statement of the beginning date of service, the term,
and the effective date of the contract.
8. A statement of special covenants mutually agreed upon by
the employer and employee that form a basis for the contract.
NOTICE: The following
forms used in administering the regulation were filed by the agency. The forms
are not being published; however, online users of this issue of the Virginia
Register of Regulations may click on the name of a form with a hyperlink to
access it. The forms are also available from the agency contact or may be
viewed at the Office of the Registrar of Regulations, General Assembly
Building, 2nd Floor, Richmond, Virginia 23219.
FORMS (8VAC20-441)
[ Annual Form - Contract with Professional
Personnel
Continuing Form Contract with Professional Personnel
Athletic Coaching Contract with School Personnel
Extracurricular Activity Sponsorship Contract with
School Personnel
Annual
Form - Contract with Professional Personnel (eff. 1/2017)
Continuing
Form Contract with Professional Personnel (eff. 1/2017)
Athletic
Coaching Contract with School Personnel (eff. 1/2017)
Extracurricular
Activity Sponsorship Contract with School Personnel (eff. 1/2017) ]
VA.R. Doc. No. R13-3478; Filed October 20, 2017, 4:35 p.m.
TITLE 8. EDUCATION
STATE BOARD OF EDUCATION
Final Regulation
Titles of Regulations: 8VAC20-440. Regulations
Governing the Employment of Professional Personnel (repealing 8VAC20-440-10 through
8VAC20-440-160).
8VAC20-441. Regulations Governing the Employment of
Professional Personnel (adding 8VAC20-441-10 through 8VAC20-441-140).
Statutory Authority: §§ 22.1-16 and 22.1-302 of the Code
of Virginia.
Effective Date: December 13, 2017.
Agency Contact: Patty S. Pitts, Assistant Superintendent
for Teacher Education and Licensure, Department of Education, P.O. Box 2120,
Richmond, VA 23218, telephone (804) 371-2522, or email patty.pitts@doe.virginia.gov.
Summary:
The regulatory action replaces the existing regulation
numbered 8VAC20-440 with a new regulation numbered 8VAC20-441. Amendments
reflect changes in the Code of Virginia based on Chapters 106 and 687 of the
2012 Acts of Assembly and Chapters 588 and 650 of the 2013 Acts of Assembly and
include (i) defining assistant principals; (ii) clarifying the definitions of
teachers and supervisors; (iii) changing notification dates from April 15 to
June 15; (iv) aligning evaluations with the Board of Education Guidelines for
Uniform Performance Standards and Evaluation Criteria for Teachers, Principals,
and Superintendents; (v) defining the probationary terms for teachers, which,
at local option, can be three years and up to five years; (vi) stipulating the
evaluation period of teachers and principals; (vii) defining the standard
10-month contract; and (viii) clarifying that a temporarily employed teacher is
not required to be licensed by the Board of Education.
Summary of Public Comments and Agency's Response: No
public comments were received by the promulgating agency.
CHAPTER 441
REGULATIONS GOVERNING THE EMPLOYMENT OF PROFESSIONAL PERSONNEL
8VAC20-441-10. Definitions.
The following words and terms when used in this chapter
shall have the following meanings unless the context clearly indicates
otherwise:
"Annual contract" means a contract between a
probationary teacher, assistant principal, principal, or supervisor and the
local school board that sets forth the terms and conditions of employment for
one school year.
"Assistant principal" means a person (i) who is
regularly employed full time as an assistant principal and (ii) who holds a
valid license issued by the Board of Education necessary to be an assistant
principal.
"Board" means the Virginia Board of Education,
which has general supervision of the public school system.
"Breach of contract" means, for the purpose of
this chapter, a teacher failing to honor a contract for the current or next
school year without formal release from that contract from the local school
board. "Breach of contract" does not include dismissal for cause.
"Coaching contract" means a separate contract
between the employee and the local school board that includes responsibilities
for an athletic coaching assignment.
"Continuing contract" means a contract between a
teacher, assistant principal, principal, or supervisor who has satisfied the
probationary term of service and the local school board.
"Current employer" means the local school board
with which the employee is currently under contract.
"Extracurricular activity sponsorship contract"
means a separate contract between the employee and the local school board that
includes responsibilities, for which a monetary supplement is received, for
sponsorship of any student organizations, clubs, or groups, such as service
clubs, academic clubs and teams, cheerleading squads, student publication and
literary groups, and visual and performing arts organizations except those that
are conducted in conjunction with regular classroom, curriculum, or
instructional programs.
"Next school year" means the school year
immediately following the current contract year.
"Principal" means a person (i) who is regularly
employed full time as a principal and (ii) who holds a valid license issued by
the Board of Education necessary to be a principal.
"Prospective employer" means the division in
which application for employment is made.
"Supervisor" means a person (i) who is regularly
employed full time in an instructional supervisory position as specified in
this chapter and (ii) who is required by the board to hold a license prescribed
in this chapter to be employed in that position. An instructional supervisory
position has authority to direct or evaluate teachers, assistant principals,
principals, or other instructional personnel.
"Teacher" means a person (i) who is regularly
employed full time as a teacher, guidance counselor, or librarian and (ii) who
holds a valid teaching license.
8VAC20-441-20. [ (Reserved.)
Conditions of employment (fingerprinting, Department of Social Services
Registry search, licensure).
A. Applicants who are offered or accept employment must
comply with the fingerprinting provisions contained in § 22.1-296.2 of the
Code of Virginia.
B. Applicants who are offered or accept employment
requiring direct contact with students must satisfy the requirements of §
22.1-296.4 of the Code of Virginia and provide written consent and the personal
information necessary for the school board to obtain a search of the registry
of founded complaints of child abuse and neglect maintained by the Department
of Social Services pursuant to § 63.2-1515 of the Code of Virginia.
C. Additional Code of Virginia references for conditions
for licensure include §§ 22.1-295, 22.1-298.1, and 22.1-299, of the Code of
Virginia.
D. Principals and assistant principals are to be licensed
in accordance with § 22.1-293 of the Code of Virginia. ]
8VAC20-441-30. Contractual period defined.
The local school board shall define the length of the
contract period for each employee. A standard 10-month contract for a teacher
shall include 200 days, including:
1. 180 teaching days or 990 instructional hours (minimum
required by law); and
2. Up to 20 days for activities such as teaching,
participating in professional development, planning, evaluating, completing
records and reports, participating on committees or in conferences, or such
other activities as may be assigned or approved by the local school board.
8VAC20-441-40. Annual and continuing contract to be in
writing.
Annual and continuing contracts with teachers, assistant
principals, principals, and supervisors must be in writing. The local school
board may utilize prototypes of contract forms provided by the board or may
choose to develop its own contracts, but in so doing must ensure that the
essential elements set forth in 8VAC20-441-140 are included.
8VAC20-441-50. Length of the probationary term for teacher.
A probationary term of full-time employment under an
annual contract for at least three years and, at the option of the local school
board, up to five consecutive years in the same school division is required
before a teacher is issued a continuing contract. Once continuing contract
status has been attained in a school division in the Commonwealth, another
probationary period as a teacher need not be served in any other school
division unless a probationary period not exceeding two years is made a part of
the contract of employment.
8VAC20-441-60. Calculating term for first year of teaching.
For the purpose of calculating the years of service
required to attain continuing contract status, at least 160 contractual
teaching days during the school year shall be deemed the equivalent of one year
in the first year of service by the teacher.
8VAC20-441-70. Probationary period for principal or
supervisor.
A person employed as a principal, assistant principal, or
supervisor, including a person who has previously achieved continuing contract
status as a teacher, shall serve a probationary term of three consecutive years
in such position in the same school division before acquiring continuing
contract status as a principal, assistant principal, or supervisor.
8VAC20-441-80. Probationary period when employee separates
from service.
If a teacher, principal, assistant principal, or
supervisor separates from service during his probationary period and does not
return to service in the same school division by the beginning of the year
following the year of separation, such person shall be required to begin a new
probationary period.
8VAC20-441-90. Effect of service outside the Virginia
system.
Teaching service outside of the Virginia public school
system shall not be counted as meeting in whole or in part the required
probationary term.
8VAC20-441-100. Eligibility for continuing contract.
A. Only persons regularly employed full time by a school
board who hold a valid license as teachers, assistant principals, principals,
or supervisors shall be eligible for continuing contract status.
B. Any teacher hired on or after July 1, 2001, shall be
required, as a condition of achieving continuing contract status, to have
successfully completed training in instructional strategies and techniques for
intervention for or remediation of students who fail or are at risk of failing
the Standards of Learning assessments. Local school divisions shall be required
to provide such training at no cost to teachers employed in their division. In
the event a local school division fails to offer such training in a timely
manner, no teacher will be denied continuing contract status for failure to
obtain such training.
8VAC20-441-110. Continuing contract status when employee
separates from service.
When a teacher has attained continuing contract status in
a school division in the Commonwealth, and separates from and returns to
teaching service in a school division in Virginia by the beginning of the third
year, such teacher shall be required to serve a probationary period not to
exceed two years if such probationary period is made part of the contract for
employment. If a teacher who has attained continuing contract status separates
from service and does not return to teaching in Virginia public schools by the
beginning of the third year, such teacher shall be required to begin a new
probationary period.
8VAC20-441-120. Contract to be separate and apart from
annual or continuing contract.
The coaching contract or extracurricular activity
sponsorship contract with a teacher shall be separate and apart from the
teacher's annual or continuing contract, and termination of the coaching or
extracurricular activity sponsorship contract shall not constitute cause for
the termination of the annual or continuing contract.
For the purposes of this chapter, "extracurricular
activity sponsorship" means an assignment for which a monetary supplement
is received, requiring responsibility for any student organizations, clubs, or
groups, such as service clubs, academic clubs and teams, cheerleading squads,
student publication and literary groups, and visual and performing arts
organizations except those that are conducted in conjunction with regular
classroom, curriculum, or instructional programs.
8VAC20-441-130. Termination notice required.
The coaching contract or extracurricular activity
sponsorship contract shall require the party intending to terminate the
contract to give reasonable notice to the other party prior to the effective
date of the termination.
8VAC20-441-140. Listing of essential contract elements.
A. The list of essential contract elements can be used by
certain local school divisions who prefer to develop contracts specific to
their circumstances or situations. This list of essential elements is provided
as an alternative to the formal prototypes available.
B. Annual contracts. Any annual contract for professional
personnel shall, to the maximum extent possible, be written in clear and
concise language easily understood by all parties, and include, at a minimum,
the following provisions:
1. A statement identifying the names and titles of the
parties to the contract.
2. A statement of the licensure requirements for the
position or options thereto.
3. A statement of the beginning date of service, the term,
and the effective date of the contract.
4. A statement of the duties to be performed under the
contract.
5. A statement of expectations of the employee with regard
to compliance with local, state, or federal statutes, regulations and
constitutional provisions.
6. A statement of the provisions concerning assignment,
reassignment, termination, suspension, probation, or resignation of the
employee, and mutual termination of the contract.
7. A statement of the penalties for the employee's failure
to comply with the terms of the contract.
8. A statement identifying the school term.
9. A statement of the conditions under which the school
term [ and/or or ] contract may be
extended.
10. A statement of the amount of compensation due the
employee and the method of payment.
11. A statement of special covenants mutually agreed upon
by the employer and employee which form a basis for the contract.
C. Continuing contracts. Any continuing contract for
professional personnel shall, to the maximum extent possible, be written in
clear and concise language easily understood by all parties [ , ]
and include [ , ] at a minimum the following
provisions:
1. All of the provisions required for the annual contract.
2. A statement explaining the continuing nature of the
contract.
D. Coaching and extracurricular. Any athletic coaching
contract with school personnel shall, to the maximum extent possible, be
written in clear and concise language easily understood by all parties
[ , ] and include the following provisions:
1. A statement identifying the names and titles of the
parties to the contract.
2. A statement of the duties to be performed under the
contract.
3. A statement of the amount of compensation due the
employee and the method of payment.
4. A statement of expectations of the employee with regard
to compliance with local, state, or federal statutes, regulations and
constitutional provisions.
5. A statement setting forth conditions for termination of
the contract.
6. A statement identifying the limitations on the use of
the experience toward length of service, substitution for teaching experience
and rights in favor of the employee.
7. A statement of the beginning date of service, the term,
and the effective date of the contract.
8. A statement of special covenants mutually agreed upon by
the employer and employee that form a basis for the contract.
NOTICE: The following
forms used in administering the regulation were filed by the agency. The forms
are not being published; however, online users of this issue of the Virginia
Register of Regulations may click on the name of a form with a hyperlink to
access it. The forms are also available from the agency contact or may be
viewed at the Office of the Registrar of Regulations, General Assembly
Building, 2nd Floor, Richmond, Virginia 23219.
FORMS (8VAC20-441)
[ Annual Form - Contract with Professional
Personnel
Continuing Form Contract with Professional Personnel
Athletic Coaching Contract with School Personnel
Extracurricular Activity Sponsorship Contract with
School Personnel
Annual
Form - Contract with Professional Personnel (eff. 1/2017)
Continuing
Form Contract with Professional Personnel (eff. 1/2017)
Athletic
Coaching Contract with School Personnel (eff. 1/2017)
Extracurricular
Activity Sponsorship Contract with School Personnel (eff. 1/2017) ]
VA.R. Doc. No. R13-3478; Filed October 20, 2017, 4:35 p.m.
TITLE 12. HEALTH
STATE BOARD OF HEALTH
Forms
REGISTRAR'S NOTICE: The
following forms used in administering the regulation were filed by the agency.
The forms are not being published; however, online users of this issue of the
Virginia Register of Regulations may click on the name of a form with a
hyperlink to access it. The forms are also available from the agency contact or
may be viewed at the Office of the Registrar of Regulations, 900 East Main
Street, 11th Floor, Richmond, Virginia 23219.
Title of Regulation: 12VAC5-421. Food Regulations.
Agency Contact: Joe Hilbert, Director of Governmental
and Regulatory Affairs, Virginia Department of Health, 109 Governor Street,
Richmond, VA 23219, telephone (804) 864-7006, or email joe.hilbert@vdh.virginia.gov.
FORMS (12VAC5-421)
Food Establishment Inspection Report Form - Cover Page
(eff. 2016)
Food Establishment Inspection Report Form - Narrative Page
with Temperatures (eff. 2016)
Food Establishment Inspection Report Form - Narrative Page
(eff. 2016)
Food
Establishment Inspection Report Form - Cover Page (rev. 9/2017)
Food
Establishment Inspection Report Form - Narrative (rev. 9/2017)
Food
Establishment Inspection Report Form - Narrative with Temperatures (rev.
9/2017)
VA.R. Doc. No. R18-5280; Filed October 20, 2017,
TITLE 12. HEALTH
DEPARTMENT OF MEDICAL ASSISTANCE SERVICES
Final Regulation
Title of Regulation: 12VAC30-20. Administration of
Medical Assistance Services (adding 12VAC30-20-570).
Statutory Authority: § 32.1-325 of the Code of
Virginia; 42 USC § 1396 et seq.
Effective Date: December 13, 2017.
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.
Summary:
Pursuant to Chapter 694 of the 2016 Acts of Assembly, the
regulation establishes a reconsideration process for a final agency decision
and specifies the scope of testimony or documentary submissions that may be
considered during that process.
Summary of Public Comments and Agency's Response: No
public comments were received by the promulgating agency.
12VAC30-20-570. Reconsideration of final agency decision.
A. Reconsiderations of a DMAS final appeal decision issued
on a formal appeal conducted pursuant to § 2.2-4020 of the Code of
Virginia shall be conducted in accordance with § 2.2-4023.1 of the Code of
Virginia.
B. The DMAS director's review shall be made upon the case
record of the formal appeal. Testimony or documentary submissions that were not
part of the formal appeal case record prior to issuance of the final agency
decision shall not be considered.
VA.R. Doc. No. R17-4817; Filed October 23, 2017, 10:21 a.m.
TITLE 12. HEALTH
DEPARTMENT OF MEDICAL ASSISTANCE SERVICES
Final Regulation
REGISTRAR'S NOTICE: The
following regulatory action is exempt from Article 2 of the Administrative
Process Act in accordance with § 2.2-4006 A 4 c of the Code of Virginia,
which excludes regulations that are necessary to meet the requirements of
federal law or regulations, provided such regulations do not differ materially
from those required by federal law or regulation. The Department of Medical
Assistance Services will receive, consider, and respond to petitions by any
interested person at any time with respect to reconsideration or revision.
Title of Regulation: 12VAC30-110. Eligibility and
Appeals (amending 12VAC30-110-10, 12VAC30-110-20,
12VAC30-110-30, 12VAC30-110-70, 12VAC30-110-80, 12VAC30-110-130,
12VAC30-110-170, 12VAC30-110-350; adding 12VAC30-110-35).
Statutory Authority: § 32.1-325 of the Code of
Virginia; 42 USC § 1396 et seq.
Effective Date: December 13, 2017.
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.
Summary:
To comply with final regulations of the federal Centers for
Medicare and Medicaid Services published in 81 FR 86832 (November 30, 2016),
the amendments update provisions regarding eligibility, appeals, and enrollment
changes.
Part I
Client Appeals
Subpart I
General
Article 1
Definitions
12VAC30-110-10. Definitions.
The following words and terms, when used in these
regulations, shall have the following meanings unless the context clearly
indicates otherwise:
"Action" means a termination of, suspension of,
or reduction of in covered benefits or services; a termination,
suspension, or reduction in Medicaid eligibility; or covered
services an increase in beneficiary liability, including a determination
that a beneficiary must incur a greater amount of medical expenses in order to
establish income eligibility in accordance with 42 CFR 435.121(e)(4) or 42 CFR
435.831 or is subject to an increase in premiums or cost-sharing charges under
Subpart A of 42 CFR Part 447. It also means (i) determinations by a
skilled nursing facilities and facility or nursing facilities
facility to transfer or discharge residents a resident and
(ii) an adverse determinations determination made by a
state with regard to the preadmission screening and annual resident review
requirements of § 1919(e)(7) of the Social Security Act.
"Adverse determination" means a determination made
in accordance with § 1919(b)(3)(F) or 1919(e)(7)(B) of the Social Security
Act that the individual does not require the level of services provided by a
nursing facility or that the individual does or does not require specialized
services.
"Agency" means:
1. An agency that, on the department's behalf, makes
determinations regarding applications for benefits provided by the department; and
or
2. The department itself.
"Appellant" means (i) an applicant for or recipient
of medical assistance benefits from the department who seeks to challenge an
action regarding his benefits or his eligibility for benefits and (ii) a
nursing facility resident who seeks to challenge a transfer or discharge.
Appellant also means an individual who seeks to challenge an adverse
determination regarding services provided by a nursing facility.
"Date of action" means the intended date on which a
termination, suspension, reduction, transfer, or discharge becomes effective.
It also means the date of the determination made by a state with regard to the
preadmission screening and annual resident review requirements of § 1919(e)(7)
of the Social Security Act.
"Department" means the Department of Medical
Assistance Services.
"Division" means the department's Appeals Division.
"Final decision" means a written determination by a
hearing officer that is binding on the department, unless modified on appeal or
review.
"Hearing" means the evidentiary hearing described
in this regulation chapter, conducted by a hearing officer
employed by the department.
"Representative" means an attorney or agent who has
been authorized to represent an appellant pursuant to these regulations.
"Send" means to deliver by mail or in electronic
format consistent with 42 CFR 431.201 and 42 CFR 435.918.
Article 2
Appeal System
12VAC30-110-20. Appeals Division.
A. The division maintains an appeals system for appellants
to challenge (i) actions, as defined in 42 CFR 431.201, regarding services and
benefits provided by the department, and (ii) adverse determinations regarding
services provided by a nursing facility in accordance with § 1919(b)(3)(F)
or 1919(e)(7)(B) that complies with all federal legal authority for
appellants to challenge actions, as defined in 42 CFR 431.201, regarding
services and benefits provided by the agency or a nursing facility.
Appellants shall be entitled to a hearing before a hearing officer. See Subpart
II (12VAC30-110-130 et seq.) of this chapter.
B. The appeals system shall be accessible to persons who
are limited English proficient and persons who have disabilities, consistent
with 42 CFR 435.905(b).
C. In accordance with 42 CFR 435.918, the agency makes
electronic appeal correspondence available to applicants and recipients.
Applicants and recipients may elect to receive appeal correspondence in
electronic format or by regular mail and may change such election.
12VAC30-110-30. Time limitation for appeals.
Hearing officer appeals shall be scheduled and conducted to
comply with the 90-day time limitation limitations for
standard and expedited appeals imposed by federal regulations, unless waived
in writing by the appellant or the appellant's representative.:
1. The agency cannot reach a decision because the appellant
requests a delay or fails to take a required action; or
2. There is an administrative or other emergency beyond the
agency's control.
All instances in which there is a delay shall be
documented in the appellant's record.
12VAC30-110-35. Expedited appeals.
A. An appellant may request and the agency shall provide
an expedited appeals process for claims for which the agency determines that
the 90-day timeframe for conducting an appeal could jeopardize the individual's
life, health, or ability to attain, maintain, or regain maximum function.
B. If an expedited appeal request is granted, the
following timeframes for conducting the appeal apply from receipt of the appeal
request:
1. Seventy-two hours for:
a. A claim related to services or benefits described in 42 CFR
431.220(a)(1);
b. A MCO, PIHP, or PAHP enrollee who is entitled to a
hearing under Subpart F of 42 CFR Part 438;
c. An enrollee in a nonemergency medical transportation
prepaid ambulatory health plan who has an action; and
d. An enrollee who is entitled to a hearing under Subpart B
of 42 CFR Part 438.
2. Seven business days forS
a. Eligibility claims;
b. Nursing facility claims related to transfer or
discharge; or
c. Nursing facility claims related to the agency's
preadmission determination or annual resident review.
C. The department shall notify the individual whether the
request is granted or denied as expeditiously as possible. Such notice may be
provided orally or through the electronic means found in 12VAC30-110-130.
Article 4
Notice and Appeal Rights
12VAC30-110-70. Notification of adverse agency action.
The agency that takes action or makes an adverse
determination shall inform the applicant or recipient in a written notice:
1. What action or adverse determination the agency intends to
take and the effective date of such action;
2. The A clear statement of the specific reasons
for supporting the intended action or adverse determination;
3. The specific regulations that support or the change in law
that requires the action or adverse determination;
4. The right to request an evidentiary hearing, and the
methods and time limits for doing so;
5. The right to request an expedited evidentiary hearing;
6. The circumstances under which benefits are continued
if a hearing is requested (see 12VAC30-110-100); and
6. 7. The right to representation.
12VAC30-110-80. Advance notice.
When the agency plans to terminate, suspend, or reduce an
individual's eligibility or covered services, the agency must send the notice
described in 12VAC30-110-70 at least 10 days before the date of action, except
as otherwise permitted by federal law in 42 CFR 431.213 and 42 CFR 431.214.
Subpart II
Hearing Officer Review
Article 1
Commencement of Appeals
12VAC30-110-130. Request for appeal.
A. An appeal may be filed by any of the following
methods:
1. By telephone;
2. Via email;
3. In person; and
4. Through other commonly available electronic means
supported by the agency.
B. Any written communication in the formats
specified in subsection A of this section from an appellant or his
representative which that clearly expresses that he wants to
present his case to a reviewing authority shall constitute an appeal request.
This communication should explain the basis for the appeal.
12VAC30-110-170. Extension of time for filing.
An extension of the 30-day period for filing a Request for
Appeal may be granted for good cause shown. Examples of good cause include,
but are not limited to, the following situations:
1. Appellant was seriously ill and was prevented from
contacting the division;
2. Appellant did not receive notice of the agency's decision
action or adverse determination;
3. Appellant sent the Request for Appeal to another government
agency in good faith within the time limit;
4. Unusual or unavoidable circumstances prevented a timely
filing.
12VAC30-110-350. Dismissal of Request for Appeal.
A. A Request for Appeal may be dismissed if:
1. The appellant or his representative withdraws the request in
writing via any of the methods in 12VAC30-110-130. For telephonic appeal
withdrawals, the agency shall record the individual's statement and telephonic
signature; or
2. The appellant or his representative fails to appear at the
scheduled hearing without good cause and does not reply within 10 days after
the hearing officer sends an inquiry as to whether the appellant wishes further
action on the appeal.
B. Subsequent to the dismissal, the appellant shall
receive the written order of dismissal via regular mail or electronic
notification in accordance with the individual's election under 42 CFR
435.918(a).
VA.R. Doc. No. R18-5093; Filed October 16, 2017, 6:58 a.m.
TITLE 14. INSURANCE
STATE CORPORATION COMMISSION
Final Regulation
REGISTRAR'S NOTICE: The
State Corporation Commission is claiming an exemption from the Administrative
Process Act in accordance with § 2.2-4002 A 2 of the Code of Virginia,
which exempts courts, any agency of the Supreme Court, and any agency that by
the Constitution is expressly granted any of the powers of a court of record.
Title of Regulation: 14VAC5-265. Rules Governing
Corporate Governance Annual Disclosures (adding 14VAC5-265-10 through 14VAC5-265-50).
Statutory Authority: §§ 12.1-13 and 38.2-223 of the
Code of Virginia.
Effective Date: January 1, 2018.
Agency Contact: Raquel C. Pino, Policy Advisor, Bureau
of Insurance, State Corporation Commission, P.O. Box 1157, Richmond, VA 23218,
telephone (804) 371-9499, FAX (804) 371-9873, or email
raquel.pino@scc.virginia.gov.
Summary:
The amendments implement the provisions of Article 5.2 (§§ 38.2-1334.11
through 38.2-1334.17) of Chapter 13 of Title 38.2 of the Code of Virginia,
which was enacted by Chapter 643 of the 2017 Acts of Assembly and becomes
effective on January 1, 2018. Article 5.2 requires each insurer domiciled in
the Commonwealth of Virginia, or the insurance group of which the insurer is a
member, to submit to the State Corporation Commission a Corporate Governance
Annual Disclosure (CGAD). The CGAD is a confidential report on an insurer or
insurance group's corporate governance structure, policies, and practices,
which allows the commission to gain and maintain an understanding of the
insurer's corporate governance framework. The new regulation sets forth the
requirements for what is to be included in the CGAD, which is due June 1, 2018,
and annually thereafter. A change since the proposed stage deletes reference to
the National Association of Insurance Commissioners' 2016 Annual/2017 Quarterly
Financial Analysis Handbook and replaces it with § 38.2-1334.12 of the Code of
Virginia.
AT RICHMOND, OCTOBER 17, 2017
COMMONWEALTH OF VIRGINIA, ex rel.
STATE CORPORATION COMMISSION
CASE NO. INS-2017-00161
Ex Parte: In the matter of Amending the
Rules Governing Corporate Governance
Annual Disclosures
ORDER ADOPTING RULES
By Order to Take Notice ("Order") entered July 14,
2017, insurers and interested persons were ordered to take notice that
subsequent to September 21, 2017, the State Corporation Commission
("Commission") would consider the entry of an order adopting new
rules to be set forth in Chapter 265 of Title 14 of the Virginia Administrative
Code, entitled Rules Governing Corporate Governance Annual Disclosures
("Rules"), which adds new Rules at 14 VAC 5-265-10 through
14 VAC 5-265-50, unless on or before September 21, 2017, any person
objecting to the adoption of the new Rules filed a request for a hearing with
the Clerk of the Commission ("Clerk").
The new Rules are necessary to implement the provisions of
§§ 38.2-1334.11 through 38.2-1334.17 of the Code of Virginia
("Code"), which were enacted in Chapter 643 of the 2017 Acts of
Assembly (HB 2102) and require each insurer domiciled in the Commonwealth of
Virginia, or the insurance group of which the insurer is a member, to submit to
the Commission a Corporate Governance Annual Disclosure. These new rules
establish procedures for filing the Corporate Governance Annual Disclosure and
its required contents. The amendments to the Code are effective on January 1,
2018.
The Order required insurers and interested persons to file
their comments in support of or in opposition to the proposed new Rules with
the Clerk on or before September 21, 2017.
On September 15, 2017, the American Council of Life Insurers
filed comments in support of the new Rules. No requests for a hearing were
filed with the Clerk.
The Commission's Bureau of Insurance ("Bureau") has
recommended a non-substantive revision to 14 VAC 5-265-30 of the Rules,
deleting the reference to the National Association of Insurance Commissioner's
Quarterly Financial Analysis Handbook and replacing it with a reference to
§ 38.2-1334.12 of the Code.
NOW THE COMMISSION, having considered the proposed new Rules,
the comments filed, and the recommended revision to the proposal, is of the
opinion that the attached new Rules should be adopted with an effective date of
January 1, 2018.
Accordingly, IT IS ORDERED THAT:
(1) The new Rules entitled Rules Governing Corporate
Governance Annual Disclosures, to be set out at 14 VAC 5-265-10 through 14 VAC
5-265-50 which are attached hereto and made a part hereof, are hereby ADOPTED
effective January 1, 2018.
(2) The Bureau forthwith shall give notice of the adoption of
the Rules to all insurers domiciled in Virginia and to interested persons.
(3) The Commission's Division of Information Resources
forthwith shall cause a copy of this Order, together with the new Rules, to be forwarded
to the Virginia Registrar of Regulations for appropriate publication in the
Virginia Register of Regulations.
(4) The Commission's Division of Information Resources shall
make available this Order and the attached new Rules on the Commission's website:
http://www.scc.virginia.gov/case.
(5) The Bureau shall file with the Clerk of the Commission an
affidavit of compliance with the notice requirements of Ordering Paragraph (2)
above.
(6) This case is dismissed, and the papers herein shall be
place in the file for ended causes.
AN ATTESTED COPY hereof shall be sent by the Clerk of the
Commission to: C. Meade Browder, Jr., Senior Assistant Attorney General,
Office of the Attorney General, Division of Consumer Counsel, 202 N. 9th
Street, 8th Floor, Richmond, Virginia 23219; and a copy hereof shall be
delivered to the Commission's Office of General Counsel and the Bureau of
Insurance in care of Deputy Commissioner Donald C. Beatty.
CHAPTER 265
RULES GOVERNING CORPORATE GOVERNANCE ANNUAL DISCLOSURES
14VAC5-265-10. Purpose and scope.
The purpose of this chapter is to set forth rules and
procedures for filing and for the required contents of the Corporate Governance
Annual Disclosure that the commission deems necessary to carry out the
provisions of Article 5.2 (§ 38.2-1334.11 et seq.) of Chapter 13 of Title 38.2
of the Code of Virginia.
14VAC5-265-20. Definitions.
The following words and terms when used in this chapter
shall have the following meanings, unless the context clearly indicates
otherwise:
"Corporate Governance Annual Disclosure" or
"CGAD" means a confidential report filed by the insurer or insurance
group made in accordance with the requirements of this chapter.
"Insurance group" means those insurers and
affiliates included within an insurance holding company system as defined in §
38.2-1322 of the Code of Virginia.
"Insurer" means an insurance company as defined
in § 38.2-100 of the Code of Virginia. "Insurer" shall not
include agencies, authorities, or instrumentalities of the United States, its
possessions and territories, the Commonwealth of Puerto Rico, the District of
Columbia, or a state or political subdivision of a state.
"Senior management" means any corporate officer
responsible for reporting information to the board of directors at regular
intervals or providing this information to shareholders or regulators and shall
include, for example and without limitation, the chief executive officer (CEO),
chief financial officer, chief operations officer, chief procurement officer,
chief legal officer, chief information officer, chief technology officer, chief
revenue officer, chief visionary officer, or any other "C" level
executive.
"The Act" means Article 5.2 (§ 38.2-1334.11 et
seq.) of Chapter 13 of Title 38.2 of the Code of Virginia.
14VAC5-265-30. Filing procedures.
A. An insurer, or the insurance group of which the insurer
is a member, required to file a CGAD by the Act shall, no later than June 1 of
each calendar year, submit to the commission a CGAD that contains the
information described in 14VAC5-265-40.
B. The CGAD must include a signature of the insurer's or
insurance group's chief executive officer or corporate secretary attesting to
the best of that individual's belief and knowledge that the insurer or
insurance group has implemented the corporate governance practices and that a
copy of the CGAD has been provided to the insurer's or insurance group's board
of directors or the appropriate committee thereof.
C. The insurer or insurance group shall have discretion
regarding the appropriate format for providing the information required by this
chapter and is permitted to customize the CGAD to provide the most relevant
information, appropriate to the nature, scale, and complexity of the operations
of the insurer or insurance group that is necessary to permit the commission to
gain an understanding of the corporate governance structure, policies, and
practices utilized by the insurer or insurance group.
D. For purposes of completing the CGAD, the insurer or
insurance group may choose to provide information on governance activities that
occur at the ultimate controlling parent level, an intermediate holding company
level, or the individual legal entity level, depending upon how the insurer or
insurance group has structured its system of corporate governance. The insurer
or insurance group is encouraged to make the CGAD disclosures at the level at
which (i) the insurer's or insurance group's risk appetite is determined; (ii)
the earnings, capital, liquidity, operations, and reputation of the insurer are
overseen collectively and at which the supervision of those factors are
coordinated and exercised; or (iii) the legal liability for failure of general
corporate governance duties would be placed. If the insurer or insurance group
determines the level of reporting based on these criteria, it shall indicate
which of the three criteria was used to determine the level of reporting and
explain any subsequent changes in level of reporting.
E. Notwithstanding subsection A of this section, [ and
as outlined in § 38.2-1334.12 of the Act, ] if the CGAD is
completed at the insurance group level, then it must be filed with the lead
state of the group [ as determined by the procedures
outlined in the 2016 Annual/2017 Quarterly Financial Analysis Handbook adopted
by the National Association of Insurance Commissioners in accordance
with § 38.2-1334.12 of the Code of Virginia ]. In these
instances, a copy of the CGAD must also be provided to the chief insurance
regulatory official of any state in which the insurance group has a domestic
insurer, upon request.
F. An insurer or insurance group may comply with this
section by referencing other existing documents (e.g., Own Risk and Solvency
Assessment Summary Report, Holding Company Form B or F Filings, Securities and
Exchange Commission Proxy Statements, foreign regulatory reporting
requirements, etc.) if the documents provide information that is comparable to
the information described in 14VAC5-265-40. The insurer or insurance group
shall clearly reference the location of the relevant information within the
CGAD and attach the referenced document if it is not already filed or available
to the commission.
G. Each year following the initial filing of the CGAD, the
insurer or insurance group shall file an amended version of the previously
filed CGAD, indicating where changes have been made. If no changes were made in
the information or activities reported by the insurer or insurance group, the
filing should so state.
14VAC5-265-40. Contents of Corporate Governance Annual
Disclosure.
A. The insurer or insurance group shall be as descriptive
as possible in completing the CGAD and include attachments or example documents
that are used in the governance process since these may provide a means to
demonstrate the strengths of the governance framework and practices.
B. The CGAD shall describe the insurer's or insurance
group's corporate governance framework and structure including consideration of
the following:
1. The board of directors (board) and various committees
thereof ultimately responsible for overseeing the insurer or insurance group
and the level at which that oversight occurs (e.g., ultimate control level,
intermediate holding company, legal entity, etc.). The insurer or insurance
group shall describe and discuss the rationale for the current board size and
structure; and
2. The duties of the board and each of its significant
committees and how they are governed (e.g., bylaws, charters, informal mandates,
etc.), as well as how the board's leadership is structured, including a
discussion of the roles of the chief executive officer (CEO) and chairman of
the board within the organization.
C. The insurer or insurance group shall describe the
policies and practices of the most senior governing entity and significant
committees thereof, including a discussion of the following factors:
1. How the qualifications, expertise, and experience of each board member meet the needs of the insurer or
insurance group;
2. How an appropriate amount of independence is maintained
on the board and its significant committees;
3. The number of meetings held by the board and its
significant committees over the past year as well as information on director
attendance;
4. How the insurer or insurance group identifies,
nominates, and elects members to the board and its committees. The discussion
should include, for example:
a. Whether a nomination committee is in place to identify
and select individuals for consideration;
b. Whether term limits are placed on directors;
c. How the election and reelection processes function; and
d. Whether a board diversity policy is in place and if so,
how it [ function functions ];
5. The processes in place for the board to evaluate its
performance and the performance of its committees, as well as any recent
measures taken to improve performance (including any
board or committee training programs that have been put in place).
D. The insurer or insurance group shall describe the
policies and practices for directing senior management, including a description
of the following factors:
1. Any processes or practices (i.e., suitability standards)
to determine whether officers and key persons in control functions have the
appropriate background, experience, and integrity to fulfill their prospective
roles, including:
a. Identification of the specific positions for which
suitability standards have been developed and a description of the standards
employed; and
b. Any changes in an officer's or key person's suitability
as outlined by the insurer's or insurance group's standards and procedures to
monitor and evaluate such changes.
2. The insurer's or insurance group's code of business
conduct and ethics, the discussion of which considers, for example:
a. Compliance with laws, rules, and regulations; and
b. Proactive reporting of any illegal or unethical
behavior.
3. The insurer's or insurance group's processes for
performance evaluation, compensation, and corrective action to ensure effective
senior management throughout the organization, including a description of the
general objectives of significant compensation programs and what the programs
are designed to reward. The description shall include sufficient detail to
allow the commission to understand how the organization ensures that
compensation programs do not encourage or reward excessive risk taking.
Elements to be discussed may include, for example:
a. The board's role in overseeing management compensation
programs and practices;
b. The various elements of compensation awarded in the
insurer's or insurance group's compensation programs and how the insurer or
insurance group determines and calculates the amount of each element of
compensation paid;
c. How compensation programs are related to both company and
individual performance over time;
d. Whether compensation programs include risk adjustments
and how those adjustments are incorporated into the programs for employees at
different levels;
e. Any clawback provisions built into the programs to
recover awards or payments if the performance measures upon which they are
based are restated or otherwise adjusted; or
f. Any other factors relevant in understanding how the
insurer or insurance group monitors its compensation policies to determine
whether its risk management objectives are met by incentivizing its employees.
4. The insurer's or insurance group's plans for CEO and
senior management succession.
E. The insurer or insurance group shall describe the
processes by which the board, its committees, and senior management ensure an
appropriate amount of oversight to the critical risk areas impacting the
insurer's business activities, including a discussion of:
1. How oversight and management responsibilities are
delegated between the board, its committees, and senior management;
2. How the board is kept informed of the insurer's
strategic plans, the associated risks, and steps that senior management is
taking to monitor and manage those risks;
3. How reporting responsibilities are organized for each
critical risk area. The description should allow the commission to understand
the frequency at which information on each critical risk area is reported to
and reviewed by senior management and the board. This description may include,
for example, the following critical risk areas of the insurer:
a. Risk management processes (a Own Risk and Solvency
Assessment (ORSA) Summary Report filer may refer to its ORSA Summary Report
filed pursuant to Article 5.1 (§ 38.2-1334.3 et seq.) of Chapter 13 of Title
38.2 of the Code of Virginia);
b. Actuarial function;
c. Investment decision-making processes;
d. Reinsurance decision-making processes;
e. Business strategy and finance decision-making processes;
f. Compliance function;
g. Financial reporting and internal auditing; and
h. Market conduct decision-making processes.
14VAC5-265-50. Severability clause.
If any provision in this chapter or the application
thereof to any person or circumstance is for any reason held to be invalid, the
remainder of the chapter and the application of the provision to other persons
or circumstances shall not be affected thereby.
[ DOCUMENTS INCORPORATED BY REFERENCE (14VAC5-265)
Financial Analysis Handbook, Volume 1, 2016 Annual/2017
Quarterly, National Association of Insurance Commissioners, 444 North Capitol
Street, NW, Suite 700, Washington, DC 20001, http://www.naic.org/ ]
VA.R. Doc. No. R17-5187; Filed October 17, 2017, 2:55 p.m.
TITLE 16. LABOR AND EMPLOYMENT
SAFETY AND HEALTH CODES BOARD
Final Regulation
Title of Regulation: 16VAC25-60. Administrative
Regulation for the Virginia Occupational Safety and Health Program (amending 16VAC25-60-30, 16VAC25-60-90,
16VAC25-60-110 through 16VAC25-60-150, 16VAC25-60-245, 16VAC25-60-260).
Statutory Authority: §§ 40.1-6 and 40.1-22 of the
Code of Virginia.
Effective Date: December 15, 2017.
Agency Contact: Jay Withrow, Director of Legal Support,
Department of Labor and Industry, Main Street Centre, 600 East Main Street,
Richmond, VA 23219, telephone (804) 786-9873, or email
jay.withrow@doli.virginia.gov.
Summary:
The amendments include (i) requiring an employer to comply
with the Virginia Department of Transportation (VDOT) Work Area Protection
Manual in lieu of the federal Manual on Uniform Traffic Control Devices when
working under a contract for construction, repair, or maintenance between the
employer and either the Commonwealth or any political subdivision or public
body when the contract requires employer compliance with the VDOT manual; (ii)
clarifying the anti-retaliation safeguards for public sector employees and the
procedures to enforce those safeguards; (iii) clarifying what documents may be
disclosed in regards to the Voluntary Protection Program (§ 40.1-49.13 of
the Code of Virginia); (iv) clarifying that the Commissioner of Labor and
Industry can request penalties or fines for occupational discrimination or
anti-retaliation cases at the litigation stage; (v) establishing that the
commissioner's burden of proof is a preponderance of the evidence and that
burden for proving an affirmative defense lies with the employer; and (vi)
making certain changes in terminology.
Summary of Public Comments and Agency's Response: No
public comments were received by the promulgating agency.
16VAC25-60-30. Applicability to public employers.
A. All occupational safety and health standards adopted by
the board shall apply to public employers and their employees in the same
manner as to private employers.
B. All sections of this chapter shall apply to public
employers and their employees. Where specific procedures are set out for the
public sector, such procedures shall take precedence.
C. The following portions of Title 40.1 of the Code of
Virginia shall apply to public employers: §§ 40.1-10, subdivision A 1
of § 40.1-49.4 A(1), 40.1-49.8, 40.1-51, 40.1-51.1, 40.1-51.2,
40.1-51.2:1, 40.1-51.3, 40.1-51.3:2, and 40.1-51.4:2.
D. Section 40.1-51.2:2 A of the Code of Virginia shall apply
to public employers the Commonwealth and its agencies except that
the commissioner shall not bring action in circuit court in the event that a
voluntary agreement cannot be obtained.
E. Sections 40.1-7, 40.1-49.4 F, 40.1-49.9,
40.1-49.10, 40.1-49.11, 40.1-49.12, and 40.1-51.2:2 of the Code of Virginia
shall apply to public employers other than the Commonwealth and its agencies.
F. If the commissioner determines that an imminent danger
situation, as defined in § 40.1-49.4 F of the Code of Virginia, exists for an
employee of the Commonwealth or one of its agencies, and if the employer does
not abate that imminent danger immediately upon request, the Commissioner of
Labor and Industry shall forthwith petition the governor to direct that the
imminent danger be abated.
G. If the commissioner is unable to obtain a voluntary
agreement to resolve a violation of § 40.1-51.2:1 of the Code of Virginia by
the Commonwealth or one of its agencies, the Commissioner of Labor and Industry
shall petition for redress in the manner provided in this chapter 16VAC25-60-300
B.
16VAC25-60-90. Release of information and disclosure pursuant
to requests under the Virginia Freedom of Information Act and subpoenas.
A. Pursuant to the Virginia Freedom of Information Act (FOIA)
(§ 2.2-3700 et seq. of the Code of Virginia) and with the exceptions
stated in subsections B through H of this section, employers, employees and
their representatives shall have access to information gathered in the course
of an inspection.
B. Interview statements of employers, owners, operators,
agents, or employees given to the commissioner pursuant to § 40.1-49.8 of
the Code of Virginia are confidential. Pursuant to the requirements set forth
in § 40.1-11 of the Code of Virginia, individuals shall have the right to
request a copy of their own interview statements.
C. All file documents contained in case files which that
are under investigation, and where a citation has not been issued, are not
disclosable until:
1. The decision has been made not to issue citations; or
2. Six months has lapsed following the occurrence of an
alleged violation.
D. Issued citations, orders of abatement, and proposed
penalties are public documents and are releasable upon a written request. All
other file documents in cases where a citation has been issued are not
disclosable until the case is a final order of the commissioner or the court,
except that once a copy of file documents in a contested case has been provided
to legal counsel for the employer in response to a request for discovery, or to
a third party in response to a subpoena duces tecum, such documents shall be
releasable upon a written request, subject to the exclusions in this regulation
section and the Virginia Freedom of Information Act.
E. Information required to be kept confidential by law shall
not be disclosed by the commissioner or by any employee of the department. In
particular, the following specific information is deemed to be nondisclosable:
1. The identity of and statements of an employee or employee
representative who has complained of hazardous conditions to the commissioner;
2. The identities of employers, owners, operators, agents,
or employees interviewed during inspections and their interview statements;
3. Employee medical and personnel records obtained during VOSH
inspections. Such records may be released to the employee or his duly
authorized representative upon a written, and endorsed request; and
4. Employer trade secrets, commercial, and financial data.
F. The commissioner may decline to disclose a document that
is excluded from the disclosure requirements of the Virginia FOIA, particularly
documents and evidence related to criminal investigations, writings protected
by the attorney-client privilege, documents compiled for use in litigation,
and personnel records.
G. An effective program of investigation and conciliation of
complaints of discrimination requires confidentiality. Accordingly, disclosure
of records of such complaints, investigations, and conciliations will be
presumed to not serve the purposes of Title 40.1 of the Code of Virginia,
except for statistical and other general information that does not reveal the
identities of particular employers or employees.
H. All information gathered through participation in
consultation services or training programs of the department shall be withheld
from disclosure except for statistical data which that does not
identify individual employers.
I. All information gathered through participation in
voluntary protection programs of the department pursuant to § 40.1-49.13
of the Code of Virginia shall be withheld from disclosure except for
statistical data that does not identify individual employers and for the
following:
1. Participant applications and amendments, onsite
evaluation reports, and annual self-evaluations;
2. Agency staff correspondence containing
recommendations to the commissioner, approval letters, notifications to
compliance staff removing the participants from the general inspection list,
and related formal correspondence.
I. J. The commissioner, in response to a
subpoena, order, or other demand of a court or other authority in connection
with a proceeding to which the department is not a party, shall not disclose
any information or produce any material acquired as part of the performance of
his official duties or because of his official status without the approval of
the Commissioner of Labor and Industry.
J. K. The commissioner shall disclose
information and statistics gathered pursuant to the enforcement of Virginia's
occupational safety and health laws, standards, and regulations where it has
been determined that such a disclosure will serve to promote the safety,
health, and welfare of employees. Any person requesting disclosure of such
information and statistics should include in his written request any
information that will aid the commissioner in this determination.
16VAC25-60-110. Discrimination Whistleblower
discrimination; discharge or retaliation; remedy for retaliation.
A. In carrying out his duties under § 40.1-51.2:2 of the Code
of Virginia, the commissioner shall consider case law, regulations, and formal
policies of federal OSHA. An employee's engagement in activities protected by
Title 40.1 does not automatically render him immune from discharge or
discipline for legitimate reasons. Termination or other disciplinary action may
be taken for a combination of reasons, involving both discriminatory and
nondiscriminatory motivations. In such a case, a violation of § 40.1-51.2:1 of
the Code of Virginia has occurred if the protected activity was a substantial
reason for the action, or if the discharge or other adverse action would not
have taken place "but for" engagement in protected activity.
Employee whistleblower activities, protected by
§ 40.1-51.2:1 of the Code of Virginia, include, but are not
limited to:
1. Making any complaint to his employer or any other person
under or related to the safety and health provisions of Title 40.1 of the Code
of Virginia;
2. Instituting or causing to be instituted any proceeding
under or related to the safety and health provisions of Title 40.1 of the Code
of Virginia;
3. Testifying or intending to testify in any proceeding under
or related to the safety and health provisions of Title 40.1 of the Code of
Virginia;
4. Cooperating with or providing information to the
commissioner during a worksite inspection; or
5. Exercising on his own behalf or on behalf of any other
employee any right afforded by the safety and health provisions of Title 40.1
of the Code of Virginia.
Discharge or discipline of an employee who has refused to
complete an assigned task because of a reasonable fear of injury or death will
be considered retaliatory only if the employee has sought abatement of the
hazard from the employer and the statutory procedures for securing abatement
would not have provided timely protection. The condition causing the employee's
apprehension of death or injury must be of such a nature that a reasonable
person, under the circumstances then confronting the employee, would conclude
that there is a real danger of death or serious injury and that there is
insufficient time, due to the urgency of the situation, to eliminate the danger
through resort to regular statutory enforcement. In addition, in such
circumstances, the employee, where possible, must also have sought from his
employer, and been unable to obtain, an abatement of the dangerous condition.
Disciplinary measures taken by employers solely in response
to employee refusal to comply with appropriate safety rules and regulations
shall not be regarded as retaliatory action prohibited by § 40.1-51.2:1 of the
Code of Virginia.
B. A complaint pursuant to § 40.1-51.2:2 of the Code of
Virginia may be filed by the employee himself or anyone authorized to act in
his behalf.
The investigation of the commissioner shall include an
opportunity for the employer to furnish the commissioner with any information
relevant to the complaint.
An attempt by an employee to withdraw a previously filed
complaint shall not automatically terminate the investigation of the
commissioner. Although a voluntary and uncoerced request from the employee that
his complaint be withdrawn shall receive due consideration, it shall be the
decision of the commissioner whether further action is necessary to enforce the
statute.
The filing of a retaliation complaint with the commissioner
shall not preclude the pursuit of a remedy through other channels. Where
appropriate, the commissioner may postpone his investigation or defer to the
outcome of other proceedings.
C. Subsection A of § 40.1-51.2:2 of the Code of Virginia
provides that the commissioner shall bring an action in circuit court when it
is determined that a violation of § 40.1-51.2:1 of the Code of Virginia has
occurred and a voluntary agreement could not be obtained. Subsection A of § 40.1-51.2:2
further provides that the court "shall have jurisdiction, for cause shown,
to restrain violations and order appropriate relief." The court's
authority to restrain violations and order appropriate relief includes the
ability to issue penalties or fines to the employer that would be payable to
the employee. In determining the appropriate level of penalties or fines, the
court may look to subsections G, H, I, and J of § 40.1-49.4 of the Code of
Virginia.
Part III
Occupational Safety and Health Standards
16VAC25-60-120. General industry standards.
A. The occupational safety or health standards adopted
as rules or regulations by the board either directly or by reference, from 29
CFR Part 1910 shall apply by their own terms to all employers and employees at
places of employment covered by the Virginia State Plan for Occupational Safety
and Health.
B. The employer shall comply with the manufacturer's
specifications and limitations applicable to the operation, training, use,
installation, inspection, testing, repair and maintenance of all machinery,
vehicles, tools, materials and equipment, unless specifically superseded by a
more stringent corresponding requirement in 29 CFR Part 1910. The use of any
machinery, vehicle, tool, material or equipment that is not in compliance with
any applicable requirement of the manufacturer is prohibited, and shall
either be identified by the employer as unsafe by tagging or locking the
controls to render them inoperable or be physically removed from its place of
use or operation.
16VAC25-60-130. Construction industry standards.
A. The occupational safety or health standards adopted
as rules or regulations by the Virginia Safety and Health Codes Board either
directly, or by reference, from 29 CFR Part 1926 shall apply by their own terms
to all employers and employees engaged in either construction work or
construction related activities covered by the Virginia State Plan for
Occupational Safety and Health.
B. The employer shall comply with the manufacturer's
specifications and limitations applicable to the operation, training, use,
installation, inspection, testing, repair and maintenance of all machinery,
vehicles, tools, materials and equipment, unless specifically superseded by a
more stringent corresponding requirement in 29 CFR Part 1926. The use of any
machinery, vehicle, tool, material or equipment that is not in compliance with
any applicable requirement of the manufacturer is prohibited, and shall either
be identified by the employer as unsafe by tagging or locking the controls to
render them inoperable or be physically removed from its place of use or
operation.
1. C. For the purposes of the applicability of
such Part 1926 standards, the key criteria utilized to make such a decision
shall be the activities taking place at the worksite, not the primary business
of the employer. Construction work shall generally include any building,
altering, repairing, improving, demolishing, painting or decorating any
structure, building, highway, or roadway; and any draining, dredging,
excavation, grading or similar work upon real property. Construction also
generally includes work performed in traditional construction trades such as
carpentry, roofing, masonry work, plumbing, trenching and excavating,
tunneling, and electrical work. Construction does not include maintenance,
alteration or repair of mechanical devices, machinery, or equipment, even when
the mechanical device, machinery or equipment is part of a pre-existing
structure.
D. The employer shall comply with the Virginia Department
of Transportation (VDOT) Work Area Protection Manual in lieu of the federal
Manual on Uniform Traffic Control Devices (Part VI of the MUTCD, 1988 Edition,
Revision 3, or Part VI of the MUTCD, Millennium Edition - referenced in
16VAC25-175-1926.200 through 16VAC25-175-1926.202) when working under a
contract for construction, repair, or maintenance between the employer and the
Commonwealth; agencies, authorities, or instrumentalities of the Commonwealth;
or any political subdivision or public body of the Commonwealth when such
contract stipulates employer compliance with the VDOT Work Area Protection
Manual in effect at the time of contractual agreement.
2. E. Certain standards of 29 CFR Part 1910
have been determined by federal OSHA to be applicable to construction and have
been adopted for this application by the board.
3. F. The standards adopted from 29 CFR Part
1910.19 and 29 CFR Part 1910.20 containing respectively, special provisions
regarding air contaminants and requirements concerning access to employee
exposure and medical records shall apply to construction work as well as
general industry.
16VAC25-60-140. Agriculture standards.
A. The occupational safety or health standards adopted
as rules or regulations by the board either directly, or by reference, from 29
CFR Part 1910 and 29 CFR Part 1928 shall apply by their own terms to all
employers and employees engaged in either agriculture or agriculture related
activities covered by the Virginia State Plan for Occupational Safety and
Health.
B. For the purposes of applicability of such Part 1910
and Part 1928 standards, the key criteria utilized to make a decision shall be
the activities taking place at the worksite, not the primary business of the
employer. Agricultural operations shall generally include any operation
involved in the growing or harvesting of crops or the raising of livestock or
poultry, or activities integrally related to agriculture, conducted by a farmer
or agricultural employer on sites such as farms, ranches, orchards, dairy farms
or similar establishments. Agricultural operations do not include construction
work as described in subdivision 1 subsection C of
16VAC25-60-130, nor does it do they include operations or
activities substantially similar to those that occur in a general industry
setting and are therefore not unique and integrally related to agriculture.
C. The employer shall comply with the manufacturer's
specifications and limitations applicable to the operation, training, use,
installation, inspection, testing, repair and maintenance of all machinery,
vehicles, tools, materials and equipment, unless specifically superseded by a
more stringent corresponding requirement in 29 CFR Part 1910 or 29 CFR Part
1928. The use of any machinery, vehicle, tool, material or equipment that is
not in compliance with any applicable requirement of the manufacturer is
prohibited, and shall either be identified by the employer as unsafe by
tagging or locking the controls to render them inoperable or be physically
removed from its place of use or operation.
16VAC25-60-150. Maritime standards.
A. The occupational safety or health standards adopted
as rules or regulations by the board either directly, or by reference, from 29
CFR Part 1915, 29 CFR Part 1917, 29 CFR Part 1918, and 29 CFR Part
1919 shall apply by their own terms to all public sector employers and
employees engaged in maritime related activities covered by the Virginia State
Plan for Occupational Safety and Health.
B. The employer shall comply with the manufacturer's
specifications and limitations applicable to the operation, training, use,
installation, inspection, testing, repair and maintenance of all machinery,
vehicles, tools, materials and equipment, unless specifically superseded by a
more stringent corresponding requirement in Part 1915, 1917, 1918 or 1919. The
use of any machinery, vehicle, tool, material or equipment that is not in
compliance with any applicable requirement of the manufacturer is prohibited,
and shall either be identified by the employer as unsafe by tagging or locking
the controls to render them inoperable or be physically removed from its place
of use or operation.
16VAC25-60-245. Take Use of administrative subpoenas
to take and preserve testimony, examine witnesses, and administer
oaths.
A. Subdivision 4 of § 40.1-6 of the Code of Virginia
authorizes the commissioner, in the discharge of his duties, to take and
preserve testimony, examine witnesses and administer oaths. In accordance with
subdivision 5 of § 40.1-6 of the Code of Virginia, the Commissioner of
Labor and Industry may appoint such representatives as are necessary to carry
out the functions outlined in subdivision 4 of § 40.1-6 of the Code of
Virginia. Such appointments shall be made in writing; identify the individual
being appointed, the length of appointment, and the method of withdrawal of
such appointment; and specify what duties are being prescribed.
B. The oath shall be administered by the commissioner's
appointed representative to the witness as follows: "Do you swear or
affirm to tell the truth."
C. Testimony given under oath shall be recorded by a court
reporter.
D. Questioning of employers, owners, operators, agents or
employees under oath shall be in private in accordance with subdivision 2 of
§ 40.1-49.8 of the Code of Virginia.
E. An employer's refusal to make an owner, operator, agent or
employee available to the commissioner for examination under this section shall
be considered a refusal to consent to the commissioner's inspection authority
under § 40.1-49.8 of the Code of Virginia. Upon such refusal the
commissioner may seek an administrative search warrant in accordance with the
provisions contained in §§ 40.1-49.9 through 40.1-49.12 of the Code of
Virginia, and obtain an order from the appropriate judge commanding the
employer to make the subject owner, operator, agent or employee available for
examination at a specified location by a date and time certain.
F. In accordance with § 40.1-10 of the Code of Virginia,
if any person who may be sworn to give testimony shall willfully fail or refuse
to answer any legal and proper question propounded to him concerning the
subject of the examination under § 40.1-6 of the Code of Virginia, he
shall be guilty of a misdemeanor. Such person, upon conviction thereof, shall
be fined not exceeding $100 nor less than $25 or imprisoned in jail not
exceeding 90 days or both. Any such refusal on the part of any person to comply
with this section may be referred by the Commissioner of Labor and Industry to
the appropriate attorney for the Commonwealth for prosecution.
Part VI
Citation and Penalty
16VAC25-60-260. Issuance of citation and proposed penalty.
A. Each citation shall be in writing and describe with
particularity the nature of the violation or violations, including a reference
to the appropriate safety or health provision of Title 40.1 of the Code of
Virginia or the appropriate rule, regulation, or standard. In addition, the
citation must fix a reasonable time for abatement of the violation. The
citation will contain substantially the following: "NOTICE: This citation
will become a final order of the commissioner unless contested within fifteen
working days from the date of receipt by the employer." The citation may
be delivered to the employer or his agent by the commissioner or may be sent by
certified mail or by personal service to an officer or agent of the employer or
to the registered agent if the employer is a corporation.
1. No citation may be issued after the expiration of
six months following the occurrence of any alleged violation. The six-month time
frame timeframe is deemed to be tolled on the date the citation is
issued by the commissioner, without regard for when the citation is received by
the employer. For purposes of calculating the six-month time frame timeframe
for citation issuance, the following requirements shall apply:
a. 1. The six-month time frame timeframe
begins to run on the day after the incident or event occurred or notice was
received by the commissioner (as specified below), in accordance with § 1-210 A
of the Code of Virginia. The word "month" shall be construed to mean
one calendar month in accordance with § 1-223 of the Code of Virginia.
b. 2. An alleged violation is deemed to have
"occurred" on the day it was initially created by commission or
omission on the part of the creating employer, and every day thereafter that it
remains in existence uncorrected.
c. 3. Notwithstanding subdivision 1 a
[ 2 1 ] of this subsection, if an employer fails
to notify the commissioner of any work-related incident resulting in a fatality
or in the in-patient hospitalization of three or more persons within eight hours
of such occurrence as required by § 40.1-51.1 D of the Code of Virginia, the
six-month time frame timeframe shall not be deemed to commence
until the commissioner receives actual notice of the incident.
d. 4. Notwithstanding subdivision 1 a
[ 2 1 ] of this subsection, if the commissioner
is first notified of a work-related incident resulting in an injury or illness
to an employee(s) employee or employees through receipt of an
Employer's Accident Report (EAR) form from the Virginia Workers' Compensation Commission
as provided in § 65.2-900 of the Code of Virginia, the six-month time
frame timeframe shall not be deemed to commence until the
commissioner actually receives the EAR form.
e. 5. Notwithstanding subdivision 1 a
[ 2 1 ] of this subsection, if the commissioner
is first notified of a work-related hazard, or incident resulting in an injury
or illness to an employee(s) employee or employees, through
receipt of a complaint in accordance with 16VAC25-60-100 or referral, the six-month
time frame timeframe shall not be deemed to commence until the
commissioner actually receives the complaint or referral.
B. A citation issued under subsection A of this section
to an employer who violates any VOSH law, standard, rule or regulation shall be
vacated if such employer demonstrates that:
1. Employees of such employer have been provided with the
proper training and equipment to prevent such a violation;
2. Work rules designed to prevent such a violation have been
established and adequately communicated to employees by such employer and have
been effectively enforced when such a violation has been discovered;
3. The failure of employees to observe work rules led to the
violation; and
4. Reasonable steps have been taken by such employer to
discover any such violation.
C. For the purposes of subsection B of this section
only, the term "employee" shall not include any officer, management
official, or supervisor having direction, management control, or
custody of any place of employment which was the subject of the violative
condition cited.
D. The penalties as set forth in § 40.1-49.4 of the Code of
Virginia shall also apply to violations relating to the requirements for record
keeping recordkeeping, reports, or other documents filed or
required to be maintained and to posting requirements.
E. In determining the amount of the proposed penalty for a
violation the commissioner will ordinarily be guided by the system of penalty
adjustment set forth in the VOSH Field Operations Manual. In any event the
commissioner shall consider the gravity of the violation, the size of the
business, the good faith of the employer, and the employer's history of
previous violations.
F. On multi-employer worksites for all covered industries,
citations shall normally be issued to an employer whose employee is exposed to
an occupational hazard (the exposing employer). Additionally, the following
employers shall normally be cited, whether or not their own employees are
exposed:
1. The employer who actually creates the hazard (the creating
employer);
2. The employer who is either:
a. Responsible, by contract or through actual practice, for
safety and health conditions on the entire worksite, and has the
authority for ensuring that the hazardous condition is corrected (the
controlling employer); or
b. Responsible, by contract or through actual practice, for
safety and health conditions for a specific area of the worksite, or specific
work practice, or specific phase of a construction project, and has the
authority for ensuring that the hazardous condition is corrected (the
controlling employer); or
3. The employer who has the responsibility for actually
correcting the hazard (the correcting employer).
G. A citation issued under subsection F of this section to an
exposing employer who violates any VOSH law, standard, rule or regulation shall
be vacated if such employer demonstrates that:
1. The employer did not create the hazard;
2. The employer did not have the responsibility or the
authority to have the hazard corrected;
3. The employer did not have the ability to correct or remove
the hazard;
4. The employer can demonstrate that the creating, the
controlling and/or or the correcting employers, as appropriate,
have been specifically notified of the hazards to which his employees were
exposed;
5. The employer has instructed his employees to recognize the
hazard and, where necessary, informed them how to avoid the dangers associated
with it;
6. Where feasible, an exposing employer must have taken
appropriate alternative means of protecting employees from the hazard; and
7. When extreme circumstances justify it, the exposing
employer shall have removed his employees from the job.
H. The commissioner's burden of proving the basis for a
VOSH citation, penalty, or order of abatement is by a preponderance of the
evidence.
I. The burden of proof in establishing an affirmative
defense to a VOSH citation resides with the employer.
VA.R. Doc. No. R16-4561; Filed October 23, 2017, 11:48 a.m.
TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING
BOARD FOR BARBERS AND COSMETOLOGY
Fast-Track Regulation
Title of Regulation: 18VAC41-20. Barbering and
Cosmetology Regulations (amending 18VAC41-20-200).
Statutory Authority: § 54.1-201 of the Code of Virginia.
Public Hearing Information: No public hearings are
scheduled.
Public Comment Deadline: December 13, 2017.
Effective Date: January 1, 2018.
Agency Contact: Demetrios J. Melis, Executive Director,
Board for Barbers and Cosmetology, 9960 Mayland Drive, Suite 400, Richmond, VA
23233, telephone (804) 367-8590, FAX (866) 245-9693, or email
barbercosmo@dpor.virginia.gov.
Basis: Section 54.1-201 of the Code of Virginia grants
authority to the Board for Barbers and Cosmetology to promulgate regulations
"in accordance with the Administrative Process Act (§ 2.2-4000 et
seq.) necessary to assure continued competency, to prevent deceptive or
misleading practices by practitioners and to effectively administer the
regulatory system administered by the regulatory board." The board is the
promulgating entity for regulations governing wax technicians, estheticians,
and the schools and instructors responsible for their training. Section 54.1-704.2
of the Code of Virginia specifically references the board's jurisdiction over
schools, and § 54.1-706 of the Code of Virginia provides discretionary
authority for the board to establish different requirements for the different
license types.
Purpose: This amendment is needed for consistency in the
interpretation and application of the board's laws and regulations. Section
54.1-700 of the Code of Virginia defines esthetics to include the removal of
unwanted hair from the body (by nonlaser methods). As a result, those board
licensees permitted to remove unwanted hair are licensed wax technicians,
licensed cosmetologists, and licensed estheticians and master estheticians.
The board's regulations governing cosmetology and wax
technicians (18VAC41-20) currently restrict anyone from teaching the wax
curriculum in waxing schools except licensed and certified wax technician
instructors or cosmetology instructors. Licensed and certified esthetics
instructors and master esthetics instructors are already trained to teach
students on waxing in esthetics schools under the board's esthetics regulations
(18VAC41-70). The board determined esthetician and master esthetician training
in the removal of hair is equivalent to or greater than that required by
cosmetology training.
The amendment to 18VAC41-20-200 allows esthetics instructors
and master esthetics instructors to teach the waxing program; they already
cover waxing and hair removal techniques as part of the esthetics curriculum in
waxing schools, and poses no additional risk to public health, safety, or
welfare.
Rationale for Using Fast-Track Rulemaking Process: The
fast-track rulemaking process is being used to amend the board's regulatory
language for consistency in the interpretation and application of § 54.1-700
of the Code of Virginia, which defines those license types approved for waxing.
The change is not expected to be controversial because members of the regulated
community requested the change, it lowers the burden of the current regulatory
restriction, and it will increase the overall availability of qualified
instructors in waxing programs.
Substance: The board's amendment to 18VAC41-20-200
updates the requirements applicable to schools, to standardize who may teach
waxing at waxing schools by allowing licensed and certified esthetics
instructors and master esthetics instructors to teach at waxing schools.
Issues: The primary advantage of allowing esthetics
instructors and master esthetics instructors to teach waxing at waxing schools
is that it promotes economic growth opportunities. By increasing the number of
available instructors for waxing schools, program costs may be reduced for
students. This in turn may lead to an increase in the number of students
graduating, obtaining licensure, and participating in the waxing profession.
Moreover, this regulatory change will offer esthetics
instructors and master esthetics instructors more employment opportunities
under their current scope of practice, without any additional training
requirements. There are no disadvantages to the public or individual private
citizens or businesses.
The primary advantage to the Commonwealth is that the
regulatory program will be more consistent by allowing all licensed instructors
who are trained in waxing to teach at waxing schools. Currently, while both
cosmetologists and estheticians are trained in waxing, only cosmetology and wax
technician instructors can teach waxing. There are no identified disadvantages
to the agency or the Commonwealth.
Department of Planning and Budget's Economic Impact
Analysis:
Summary of the Proposed Amendments to Regulation. The Board for
Barbers and Cosmetology (Board) proposes to allow licensed and certified
esthetics instructors and master esthetics instructors to teach at waxing
schools.
Result of Analysis. Benefits likely outweigh costs for this
proposed regulatory change.
Estimated Economic Impact. Currently regulation allows licensed
and certified cosmetology instructors to instruct students in waxing programs.
Esthetic instructors and master esthetic instructors currently may teach the
same waxing skills as are taught in waxing schools but may only do so in
esthetics schools. The Board now proposes to allow esthetics instructors and
master esthetics instructors to also teach waxing in waxing schools. This
change will likely benefit esthetics instructors and master esthetics
instructors as it will broaden their potential job opportunities. This change
will also benefit waxing schools as they will have a larger pool of instructors
from whom to hire.
Businesses and Entities Affected. This change will affect
esthetics instructors and master esthetics instructors as well as waxing
schools. Board staff reports that the Board currently licenses or certifies 53
individuals as esthetics instructors or master esthetics instructors and that
there are 10 waxing schools in the Commonwealth
Localities Particularly Affected. No localities will be
particularly affected by this proposed change.
Projected Impact on Employment. This proposed regulatory change
may allow the mix of instructors in waxing schools to change, but it is
unlikely to increase employment in that field.
Effects on the Use and Value of Private Property. This proposed
regulatory change is unlikely to affect the use or value of private property in
the Commonwealth.
Real Estate Development Costs. These proposed regulatory
changes are unlikely to affect real estate development costs in the
Commonwealth.
Small Businesses:
Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia,
small business is defined as "a business entity, including its affiliates,
that (i) is independently owned and operated and (ii) employs fewer than 500
full-time employees or has gross annual sales of less than $6 million."
Costs and Other Effects. Small businesses are unlikely to incur
any additional costs on account of this regulatory change. Small business
waxing schools will likely benefit as they will have a larger pool of possible
instructors from which to hire.
Alternative Method that Minimizes Adverse Impact. Small
businesses are unlikely to incur any costs on account of this regulatory
action.
Adverse Impacts:
Businesses. Businesses are unlikely to be adversely affected by
this regulatory change.
Localities. No locality is likely to suffer adverse impacts on
account of this proposed regulatory change.
Other Entities. No other entities are likely to suffer adverse
impacts on account of this proposed regulatory change.
Agency's Response to Economic Impact Analysis: The
agency concurs with the economic impact analysis prepared by the Department of
Planning and Budget.
Summary:
The amendment allows licensed and certified esthetics
instructors and master esthetics instructors to teach the wax technician
curriculum at waxing schools.
18VAC41-20-200. General requirements.
A barber, cosmetology, nail, or waxing school shall:
1. Hold a school license for each and every location.
2. Hold a salon license if the school receives compensation
for services provided in its clinic.
3. Employ a staff of and ensure all training is conducted by
licensed and certified barber, cosmetology, nail technician, or wax technician
instructors, respectively.
a. Licensed and certified cosmetology instructors may
also instruct in nail and waxing programs.
b. Licensed and certified esthetics instructors and master
esthetics instructors may also instruct in waxing programs.
4. Develop individuals for entry level competency in
barbering, cosmetology, nail care, or waxing.
5. Submit its curricula for board approval. All changes to curricula
must be resubmitted and approved by the board.
a. Barber curricula shall be based on a minimum of 1,500 clock
hours and shall include performances in accordance with 18VAC41-20-220.
b. Cosmetology curricula shall be based on a minimum of 1,500
clock hours and shall include performances in accordance with 18VAC41-20-220.
c. Nail technician curricula shall be based on a minimum of
150 clock hours and shall include performances in accordance with
18VAC41-20-220.
d. Wax technician curricula shall be based on a minimum of 115
clock hours and shall include performances in accordance with 18VAC41-20-220.
6. Inform the public that all services are performed by
students if the school receives compensation for services provided in its
clinic by posting a notice in the reception area of the shop or salon in plain
view of the public.
7. Conduct classroom instruction in an area separate from the
clinic area where practical instruction is conducted and services are provided.
8. Possess the necessary equipment and implements to teach the
respective curriculum. If any such equipment or implement is not owned by the
school, then a copy of all agreements associated with the use of such property
by the school shall be provided to the board.
NOTICE: The following
forms used in administering the regulation were filed by the agency. The forms are
not being published; however, online users of this issue of the Virginia
Register of Regulations may click on the name of a form with a hyperlink to
access it. The forms are also available from the agency contact or may be
viewed at the Office of the Registrar of Regulations, 900 East Main Street,
11th Floor, Richmond, Virginia 23219.
FORMS
(18VAC41-20)
Barber – Barber Instructor Examination &
License Application, A450-1301_02EXLIC-v13 (rev. 2/2017)
Cosmetology – Cosmetology Instructor Examination
& License Application, A450-1201_04EXLIC-v16 (rev. 2/2017)
Nail Technician – Nail Technician Instructor
Examination & License Application, A450-1206_07EXLIC-v14 (rev. 2/2017)
Wax Technician – Wax Technician Instructor
Examination & License Application, A450-1214_15EXLIC-v13 (rev. 2/2017)
Temporary Permit Application, A450-1213TEMP-v2
(rev. 2/2017)
License by Endorsement Application,
A450-1213END-v10 (rev. 2/2017)
Training & Experience Verification Form,
A450-1213TREXP-v6 (eff. 2/2017)
Individuals – Reinstatement Application, A450-1213REI-v9
(rev. 2/2017)
Salon, Shop, Spa & Parlor
License/Reinstatement Application A450-1213BUS-v9 (rev. 2/2017)
Salon, Shop & Spa Self Inspection Form,
A450-1213_SSS_INSP-v2 (eff. 5/2016)
Instructor Certification Application, A450-1213INST-v8
(rev. 2/2017)
Instructor
Certification Application, A450-1213INST-v9 (rev. 1/2018)
Student Instructor – Temporary Permit Application
A450-1213ST_TEMP-v2 (rev. 2/2017)
School License Application, A450-1213SCHL-v10
(rev. 2/2017)
School Reinstatement Application
A450-1213SCHL-REIN-v3 (eff. 2/2017)
School Self-Inspection Form, A450-1213_SCH_INSP-v4
(eff. 5/2016)
Licensure Fee Notice, A450-1213FEE-v7 (rev.
1/2017)
Change of Responsible Management Application,
A450-1213CRM-v1 (rev. 2/2017)
VA.R. Doc. No. R18-4988; Filed October 23, 2017, 1:32 p.m.
TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING
BOARD FOR CONTRACTORS
Final Regulation
Title of Regulation: 18VAC50-22. Board for
Contractors Regulations (amending 18VAC50-22-30 through 18VAC50-22-60,
18VAC50-22-260).
Statutory Authority: § 54.1-201 of the Code of Virginia.
Effective Date: January 1, 2018.
Agency Contact: Eric L. Olson, Executive Director, Board
for Contractors, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, telephone
(804) 367-2785, FAX (866) 430-1033, or email contractors@dpor.virginia.gov.
Summary:
Pursuant to Chapter 527 of the 2016 Acts of Assembly, the
amendments (i) add an exclusive specialty for businesses that perform, manage,
or supervise the remediation of property formerly used to manufacture
methamphetamine; (ii) establish the criteria to obtain and maintain the license
specialty, including experience and examination requirements; and (iii) require
that the remediation work is consistent with applicable remediation standards
of other federal or state agencies.
Summary of Public Comments and Agency's Response: No
public comments were received by the promulgating agency.
18VAC50-22-30. Definitions of specialty services.
The following words and terms when used in this chapter
unless a different meaning is provided or is plainly required by the context
shall have the following meanings:
"Accessibility services contracting" (Abbr: ASC)
means the service that provides for all work in connection with the
constructing, installing, altering, servicing, repairing, testing, or
maintenance of wheelchair lifts, incline chairlifts, dumbwaiters with a
capacity limit of 300 pounds, and private residence elevators in accordance
with the Virginia Uniform Statewide Building Code (13VAC5-63). The EEC
specialty may also perform this work. This specialty does not include work on
limited use-limited application (LULA) elevators.
"Accessibility services contracting - LULA" (Abbr:
ASL) means the service that provides for all work in connection with the
constructing, installing, altering, servicing, repairing, testing, or
maintenance of wheelchair lifts, incline chairlifts, dumbwaiters with a
capacity limit of 300 pounds, private residence elevators, and limited
use-limited application (LULA) elevators in accordance with the Virginia
Uniform Statewide Building Code (13VAC5-63). The EEC specialty may also perform
this work.
"Alternative energy system contracting" (Abbr: AES)
means the service that provides for the installation, repair or improvement,
from the customer's meter, of alternative energy generation systems,
supplemental energy systems and associated equipment annexed to real property.
This service does not include the installation of emergency generators powered
by fossil fuels. No other classification or specialty service provides this
function. This specialty does not provide for electrical, plumbing, gas
fitting, or HVAC functions.
"Asbestos contracting" (Abbr: ASB) means the
service that provides for the installation, removal, or encapsulation of
asbestos containing materials annexed to real property. No other classification
or specialty service provides for this function.
"Asphalt paving and sealcoating contracting" (Abbr:
PAV) means the service that provides for the installation of asphalt paving or
sealcoating, or both, on subdivision streets and adjacent intersections,
driveways, parking lots, tennis courts, running tracks, and play areas, using
materials and accessories common to the industry. This includes height
adjustment of existing sewer manholes, storm drains, water valves, sewer
cleanouts and drain grates, and all necessary excavation and grading. The H/H
classification also provides for this function.
"Billboard/sign contracting" (Abbr: BSC) means the
service that provides for the installation, repair, improvement, or dismantling
of any billboard or structural sign permanently annexed to real property. H/H
and CBC are the only other classifications that can perform this work
except that a contractor in this specialty may connect or disconnect signs to
existing electrical circuits. No trade related plumbing, electrical, or HVAC
work is included in this function.
"Blast/explosive contracting" (Abbr: BEC) means the
service that provides for the use of explosive charges for the repair,
improvement, alteration, or demolition of any real property or any structure annexed
to real property.
"Commercial improvement contracting" (Abbr: CIC)
means the service that provides for repair or improvement to structures not
defined as dwellings and townhouses in the USBC. The CBC classification also
provides for this function. The CIC specialty does not provide for the
construction of new buildings, accessory buildings, electrical, plumbing, HVAC,
or gas work.
"Concrete contracting" (Abbr: CEM) means the
service that provides for all work in connection with the processing, proportioning,
batching, mixing, conveying, and placing of concrete composed of materials
common to the concrete industry. This includes but is not limited to
finishing, coloring, curing, repairing, testing, sawing, grinding, grouting,
placing of film barriers, sealing, and waterproofing. Construction and
assembling of forms, molds, slipforms, and pans, centering, and the use of
rebar are also included. The CBC, RBC, and H/H classifications also provide for
this function.
"Drug lab remediation contracting" (Abbr: DLR)
means the service that provides for the cleanup, treatment, containment, or
removal of hazardous substances at or in a property formerly used to
manufacture methamphetamine or other drugs and may include demolition or
disposal of structures or other property. No other classification or specialty
provides for this function.
"Drywall contracting" (Abbr: DRY) means the service
that provides for the installation, taping, and finishing of drywall, panels
and assemblies of gypsum wallboard, sheathing, and cementitious board and the
installation of studs made of sheet metal for the framing of ceilings and
nonstructural partitioning. The CBC and RBC classifications and HIC and CIC
specialties also provide for this function.
"Electronic/communication service contracting"
(Abbr: ESC) means the service that provides for the installation, repair,
improvement, or removal of electronic or communications systems annexed to real
property including telephone wiring, computer cabling, sound systems, data
links, data and network installation, television and cable TV wiring, antenna
wiring, and fiber optics installation, all of which operate at 50 volts or
less. A firm holding an ESC license is responsible for meeting all applicable
tradesman licensure standards. The ELE classification also provides for this
function.
"Elevator/escalator contracting" (Abbr: EEC) means
the service that provides for the installation, repair, improvement, or removal
of elevators or escalators permanently annexed to real property. A firm holding
an EEC license is responsible for meeting all applicable individual license and
certification regulations. No other classification or specialty service
provides for this function.
"Environmental monitoring well contracting" (Abbr:
EMW) means the service that provides for the construction of a well to monitor
hazardous substances in the ground.
"Environmental specialties contracting" (Abbr: ENV)
means the service that provides for installation, repair, removal, or
improvement of pollution control and remediation devices. No other specialty
provides for this function. This specialty does not provide for electrical,
plumbing, gas fitting, or HVAC functions.
"Equipment/machinery contracting" (Abbr: EMC) means
the service that provides for the installation or removal of equipment or
machinery including but not limited to conveyors or heavy machinery.
Boilers exempted by the Virginia Uniform Statewide Building Code (13VAC5-63)
but regulated by the Department of Labor and Industry are also included in this
specialty. This specialty does not provide for any electrical, plumbing,
process piping, or HVAC functions.
"Farm improvement contracting" (Abbr: FIC) means
the service that provides for the installation, repair, or improvement of a
nonresidential farm building or structure, or nonresidential farm accessory-use
structure, or additions thereto. The CBC classification also provides for this
function. The FIC specialty does not provide for any electrical, plumbing,
HVAC, or gas fitting functions.
"Finish carpentry contracting" (Abbr: FIN) means
the service that provides for the installation, repair, and finishing of
cabinets, sash casing, door casing, wooden flooring, baseboards, countertops,
and other millwork. Finish carpentry does not include the installation of
ceramic tile, marble, and artificial or cultured stone. The CBC and RBC
classifications and HIC and CIC specialties also provide for this function.
"Fire alarm systems contracting" (Abbr: FAS) means
the service that provides for the installation, repair, or improvement of fire
alarm systems that operate at 50 volts or less. The ELE classification also
provides for this function. A firm with an FAS license is responsible for
meeting all applicable tradesman licensure standards.
"Fire sprinkler contracting" (Abbr: SPR) means the
service that provides for the installation, repair, alteration, addition,
testing, maintenance, inspection, improvement, or removal of sprinkler systems
using water as a means of fire suppression when annexed to real property. This
specialty does not provide for the installation, repair, or maintenance of
other types of fire suppression systems. The PLB classification allows for the
installation of systems permitted to be designed in accordance with the
plumbing provisions of the USBC. This specialty may engage in the installation
of backflow prevention devices in the fire sprinkler supply main and incidental
to the sprinkler system installation when the installer has received formal
vocational training approved by the board that included instruction in the
installation of backflow prevention devices.
"Fire suppression contracting" (Abbr: FSP) means
the service that provides for the installation, repair, improvement, or removal
of fire suppression systems including but not limited to halon and other
gas systems, dry chemical systems, and carbon dioxide systems annexed to real
property. No other classification provides for this function. The FSP specialty
does not provide for the installation, repair, or maintenance of water
sprinkler systems.
"Flooring and floor covering contracting" (Abbr:
FLR) means the service that provides for the installation, repair, improvement,
or removal of materials that are common in the flooring industry. This includes,
but is not limited to, wood and wood composite flooring, tack strips or
other products used to secure carpet, vinyl and linoleum, ceramic, marble,
stone, and all other types of tile, and includes the installation or
replacement of subflooring, leveling products, or other materials necessary to
facilitate the installation of the flooring or floor covering. This does not
include the installation, repair, or removal of floor joists or other
structural components of the flooring system. The CBC and RBC classifications
and HIC and CIC specialties also provide for this function.
"Framing subcontractor" (Abbr: FRM) means the
service which, while serving in the role of a subcontractor to a licensed prime
contractor, provides for the construction, removal, repair, or improvement to
any framing or rough carpentry necessary for the construction of framed
structures, including the installation and repair of individual components of
framing systems. The CBC and RBC classifications and HIC and CIC specialties
also provide for this function.
"Gas fitting contracting" (Abbr: GFC) means the
service that provides for the installation, repair, improvement, or removal of
gas piping and appliances annexed to real property. A firm holding a GFC
license is responsible for meeting all applicable individual (tradesman)
licensure regulations.
"Glass and glazing contracting" (Abbr: GLZ) means
the service that provides for the installation, assembly, repair, improvement,
or removal of all makes and kinds of glass, glass work, mirrored glass, and
glass substitute for glazing; executes the fabrication and glazing of frames,
panels, sashes and doors; or installs these items in any structure. This
specialty includes the installation of standard methods of weatherproofing,
caulking, glazing, sealants, and adhesives. The CBC and RBC classifications and
HIC and CIC specialties also provide for this function.
"Home improvement contracting" (Abbr: HIC) means
the service that provides for repairs or improvements to dwellings and
townhouses as defined in the USBC or structures annexed to those dwellings or
townhouses as defined in the USBC. The RBC classification also provides for
this function. The HIC specialty does not provide for electrical, plumbing,
HVAC, or gas fitting functions. It does not include new construction functions
beyond the existing building structure other than decks, patios, driveways, and
utility out buildings that do not require a permit per the USBC.
"Industrialized building contracting" (Abbr: IBC)
means the service that provides for the installation or removal of an
industrialized building as defined in the Virginia Industrialized Building
Safety Regulations (13VAC5-91). This classification covers foundation work in
accordance with the provisions of the Virginia Uniform Statewide Building Code
(13VAC5-63) and allows the licensee to complete internal tie-ins of plumbing,
gas, electrical, and HVAC systems. It does not allow for installing additional
plumbing, gas, electrical, or HVAC work such as installing the service meter,
or installing the outside compressor for the HVAC system. The CBC and RBC
classifications also provide for this function.
"Insulation and weather stripping contracting"
(Abbr: INS) means the service that provides for the installation, repair,
improvement, or removal of materials classified as insulating media used for
the sole purpose of temperature control or sound control of residential and
commercial buildings. It does not include the insulation of mechanical
equipment and ancillary lines and piping. The CBC and RBC classifications and
HIC and CIC specialties also provide for this function.
"Landscape irrigation contracting" (Abbr: ISC)
means the service that provides for the installation, repair, improvement, or
removal of irrigation sprinkler systems or outdoor sprinkler systems. The PLB
and H/H classifications also provide for this function. This specialty may
install backflow prevention devices incidental to work in this specialty when
the installer has received formal vocational training approved by the board
that included instruction in the installation of backflow prevention devices.
"Landscape service contracting" (Abbr: LSC) means
the service that provides for the alteration or improvement of a land area not
related to any other classification or service activity by means of excavation,
clearing, grading, construction of retaining walls for landscaping purposes, or
placement of landscaping timbers. This specialty may remove stumps and roots
below grade. The CBC, RBC, and H/H classifications also provide for this function.
"Lead abatement contracting" (Abbr: LAC) means the
service that provides for the removal or encapsulation of lead-containing
materials annexed to real property. No other classification or specialty
service provides for this function, except that the PLB and HVA classifications
may provide this service incidental to work in those classifications.
"Liquefied petroleum gas contracting" (Abbr: LPG)
means the service that includes the installation, maintenance, extension,
alteration, or removal of all piping, fixtures, appliances, and appurtenances
used in transporting, storing, or utilizing liquefied petroleum gas. This
excludes hot water heaters, boilers, and central heating systems that require
an HVA or PLB license. The GFC specialty also provides for this function. A
firm holding an LPG license is responsible for meeting all applicable
individual license and certification regulations.
"Manufactured home contracting" (Abbr: MHC) means
the service that provides for the installation or removal of a manufactured
home as defined in the Virginia Manufactured Home Safety Regulations
(13VAC5-95). This classification does not cover foundation work; however, it
does allow installation of piers covered under HUD regulations. It does allow a
licensee to do internal tie-ins of plumbing, gas, electrical, or HVAC
equipment. It does not allow for installing additional plumbing, gas,
electrical, or HVAC work such as installing the service meter or installing the
outside compressor for the HVAC system. No other specialty provides for this
function.
"Marine facility contracting" (Abbr: MCC) means the
service that provides for the construction, repair, improvement, or removal of
any structure the purpose of which is to provide access to, impede, or alter a
body of surface water. The CBC and H/H classifications also provide for this
function. The MCC specialty does not provide for the construction of accessory
structures or electrical, HVAC, or plumbing functions.
"Masonry contracting" (Abbr: BRK) means the service
that includes the installation of brick, concrete block, stone, marble, slate,
or other units and products common to the masonry industry, including
mortarless type masonry products. This includes installation of grout,
caulking, tuck pointing, sand blasting, mortar washing, parging, and cleaning
and welding of reinforcement steel related to masonry construction. The CBC and
RBC classifications and the HIC and CIC specialties also provide for this
function.
"Natural gas fitting provider contracting" (Abbr:
NGF) means the service that provides for the incidental repair, testing, or
removal of natural gas piping or fitting annexed to real property. This does
not include new installation of gas piping for hot water heaters, boilers,
central heating systems, or other natural gas equipment that requires an HVA or
PLB license. The GFC specialty also provides for this function. A firm holding
an NGF license is responsible for meeting all applicable individual license and
certification regulations.
"Painting and wallcovering contracting" (Abbr: PTC)
means the service that provides for the application of materials common to the
painting and decorating industry for protective or decorative purposes, the
installation of surface coverings such as vinyls, wall papers, and cloth fabrics.
This includes surface preparation, caulking, sanding, and cleaning preparatory
to painting or coverings and includes both interior and exterior surfaces. The
CBC and RBC classifications and the HIC and CIC specialties also provide for
this function.
"Radon mitigation contracting" (Abbr: RMC) means
the service that provides for additions, repairs or improvements to buildings
or structures, for the purpose of mitigating or preventing the effects of radon
gas. No electrical, plumbing, gas fitting, or HVAC functions are provided by
this specialty.
"Recreational facility contracting" (Abbr: RFC)
means the service that provides for the construction, repair, or improvement of
any recreational facility, excluding paving and the construction of buildings,
plumbing, electrical, and HVAC functions. The CBC classification also provides
for this function.
"Refrigeration contracting" (Abbr: REF) means the
service that provides for installation, repair, or removal of any refrigeration
equipment (excluding HVAC equipment). No electrical, plumbing, gas fitting, or
HVAC functions are provided by this specialty. This specialty is intended for
those contractors who repair or install coolers, refrigerated casework,
ice-making machines, drinking fountains, cold room equipment, and similar
hermetic refrigeration equipment. The HVA classification also provides for this
function.
"Roofing contracting" (Abbr: ROC) means the service
that provides for the installation, repair, removal, or improvement of
materials common to the industry that form a watertight, weather resistant
surface for roofs and decks. This includes roofing system components when
installed in conjunction with a roofing project, application of dampproofing or
waterproofing, and installation of roof insulation panels and other roof
insulation systems above roof deck. The CBC and RBC classifications and the HIC
and CIC specialties also provide for this function.
"Sewage disposal systems contracting" (Abbr: SDS)
means the service that provides for the installation, repair, improvement, or
removal of septic tanks, septic systems, and other onsite sewage disposal
systems annexed to real property.
"Steel erection contracting" (Abbr: STL) means the
service that provides for the fabrication and erection of structural steel
shapes and plates, regardless of shape or size, to be used as structural
members, or tanks, including any related riveting, welding, and rigging. This
specialty includes the fabrication, placement and tying of steel reinforcing
bars (rods), and post-tensioning to reinforce concrete buildings and
structures. The CBC and RBC classifications and HIC and CIC specialties also
provide for this function.
"Swimming pool construction contracting" (Abbr:
POL) means the service that provides for the construction, repair, improvement,
or removal of in-ground swimming pools. The CBC and RBC classifications and the
RFC specialty also provide for this function. No trade related plumbing,
electrical, backflow, or HVAC work is included in this specialty.
"Tile, marble, ceramic, and terrazzo contracting"
(Abbr: TMC) means the service that provides for the preparation, fabrication,
construction, and installation of artificial marble, burned clay tile, ceramic,
terrazzo, encaustic, faience, quarry, semi-vitreous, cementitious board, and
other tile, excluding hollow or structural partition tile. The CBC and RBC
classifications and HIC and CIC specialties also provide for this function.
"Underground utility and excavating contracting"
(Abbr [ : ] UUC) means the service that provides for the
construction, repair, improvement, or removal of main sanitary sewer collection
systems, main water distribution systems, storm sewer collection systems, and
the continuation of utility lines from the main systems to a point of
termination up to and including the meter location for the individual
occupancy, sewer collection systems at property line, or residential or
single-occupancy commercial properties, or on multi-occupancy properties at
manhole or wye lateral extend to an invert elevation as engineered to
accommodate future building sewers, water distribution systems, or storm sewer
collection systems at storm sewer structures. This specialty may install empty
underground conduits in rights-of way, easements, platted rights-of-way in new site
development, and sleeves for parking lot crossings if each conduit system does
not include installation of any conductor wiring or connection to an energized
electrical system. The H/H classification also provides for this function.
"Vessel construction contracting" (Abbr: VCC) means
the service that provides for the construction, repair, improvement, or removal
of nonresidential vessels, tanks, or piping that hold or convey fluids other
than sanitary, storm, waste, or potable water supplies. The H/H classification
also provides for this function.
"Water well/pump contracting" (Abbr: WWP) means the
service that provides for the installation of a water well system, including
geothermal wells, which includes construction of a water well to reach
groundwater, as defined in § 62.1-255 of the Code of Virginia, and the
installation of the well pump and tank, including pipe and wire, up to and
including the point of connection to the plumbing and electrical systems. No
other classification or specialty service provides for construction of water
wells. This regulation shall not exclude the PLB, ELE, or HVA classification
from installation of pumps and tanks.
Note: Specialty contractors engaging in construction that
involves the following activities or items or similar activities or items may
fall under the CIC, HIC, and FIC specialty services, or they may fall under the
CBC or RBC classification.
Appliances
|
Fences
|
Railings
|
Awnings
|
Fiberglass
|
Rigging
|
Blinds
|
Fireplaces
|
Rubber linings
|
Bulkheads
|
Fireproofing
|
Sandblasting
|
Carpeting
|
Fixtures
|
Scaffolding
|
Ceilings
|
Grouting
|
Screens
|
Chimneys
|
Guttering
|
Shutters
|
Chutes
|
Interior decorating
|
Siding
|
Curtains
|
Lubrication
|
Skylights
|
Curtain walls
|
Metal work
|
Storage bins and lockers
|
Decks
|
Millwrighting
|
Stucco
|
Doors
|
Mirrors
|
Vaults
|
Drapes
|
Miscellaneous iron
|
Wall panels
|
Epoxy
|
Ornamental iron
|
Waterproofing
|
Exterior decoration
|
Partitions
|
Windows
|
Facings
|
Protective coatings
|
|
Part II
Entry
18VAC50-22-40. Requirements for a Class C license.
A. A firm applying for a Class C license must meet the
requirements of this section.
B. For every classification or specialty in which the firm
seeks to be licensed, the firm shall name a qualified individual who meets the
following requirements:
1. Is at least 18 years old;
2. Has a minimum of two years experience in the classification
or specialty for which he is the qualifier;
3. Is a full-time employee of the firm as defined in this
chapter or is a member of the responsible management of the firm; and
4. a. Has obtained the appropriate certification for the
following specialties:
(1) Blast/explosive contracting (Department of Fire
Programs explosive use certification),
(2) Fire sprinkler (NICET Sprinkler III certification),
and
(3) Radon mitigation (EPA or DEQ accepted radon
certification).
b. Has obtained, pursuant to the Individual Licensing and
Certification Regulations, a master license for Plumbing, HVAC, Electrical, Gas
Fitting, Natural Gas Fitting Provider, and Liquefied Petroleum Gas Contracting.
c. Has completed, for the drug lab remediation specialty, a
remediation course approved by the board and a board-approved examination.
c. d. Has obtained, pursuant to the Individual
Licensing and Certification Regulations, certification as an Elevator Mechanic for
Elevator Escalator Contracting and certification as a Water Well Systems
Provider for Water Well/Pump Contracting.
d. e. Has completed a board-approved examination
for all other classifications and specialties that do not require other
certification or licensure.
C. The firm shall provide information for the past five years
prior to application on any outstanding, past-due debts and judgments;
outstanding tax obligations; defaults on bonds; or pending or past
bankruptcies. The firm and all members of the responsible management of the
firm shall submit information on any past-due debts and judgments or defaults
on bonds directly related to the practice of contracting as defined in Chapter
11 (§ 54.1-1100 et seq.) of Title 54.1 of the Code of Virginia.
D. The firm and all members of the responsible management of
the firm shall disclose at the time of application any current or previous
contractor licenses held in Virginia or in other jurisdictions and any
disciplinary actions taken on these licenses. This includes but is not
limited to any monetary penalties, fines, suspensions, revocations,
surrender of a license in connection with a disciplinary action, or voluntary
termination of a license in Virginia or in any other jurisdiction.
E. In accordance with § 54.1-204 of the Code of Virginia, all
applicants shall disclose the following information about the firm, all members
of the responsible management, and the qualified individual or individuals for
the firm:
1. All misdemeanor convictions within three years of the date
of application; and
2. All felony convictions during their lifetimes.
Any plea of nolo contendere shall be considered a conviction
for purposes of this subsection. The record of a conviction received from a
court shall be accepted as prima facie evidence of a conviction or finding of
guilt. The board, in its discretion, may deny licensure to any applicant in
accordance with § 54.1-204 of the Code of Virginia.
F. A member of responsible management shall have successfully
completed a board-approved basic business course.
18VAC50-22-50. Requirements for a Class B license.
A. A firm applying for a Class B license must meet the
requirements of this section.
B. A firm shall name a designated employee who meets the
following requirements:
1. Is at least 18 years old;
2. Is a full-time employee of the firm as defined in this
chapter, or is a member of responsible management as defined in this chapter;
3. Has passed a board-approved examination as required by §
54.1-1108 of the Code of Virginia or has been exempted from the exam
requirement in accordance with § 54.1-1108.1 of the Code of Virginia; and
4. Has followed all rules established by the board or by the
testing service acting on behalf of the board with regard to conduct at the
examination. Such rules shall include any written instructions communicated
prior to the examination date and any oral or written instructions given at the
site on the date of the exam.
C. For every classification or specialty in which the firm
seeks to be licensed, the firm shall name a qualified individual who meets the
following requirements:
1. Is at least 18 years old;
2. Has a minimum of three years experience in the
classification or specialty for which he is the qualifier;
3. Is a full-time employee of the firm as defined in this
chapter or is a member of the responsible management of the firm;
4. a. Has obtained the appropriate certification for the
following specialties:
(1) Blast/explosive contracting (Department of Fire
Programs explosive use certification),
(2) Fire sprinkler (NICET Sprinkler III certification),
and
(3) Radon mitigation (EPA or DEQ accepted radon
certification).
b. Has obtained, pursuant to the Individual Licensing and
Certification Regulations, a master license for Plumbing, HVAC, Electrical, Gas
Fitting, Natural Gas Fitting Provider, and Liquefied Petroleum Gas Contracting.
c. Has completed, for the drug lab remediation specialty, a
remediation course approved by the board and a board-approved examination.
c. d. Has obtained, pursuant to the Individual
Licensing and Certification Regulations, certification as an Elevator Mechanic
for Elevator Escalator Contracting and certification as a Water Well Systems
Provider for Water Well/Pump Contracting.
d. e. Has completed a board-approved examination
for all other classifications and specialties that do not require other
certification or licensure.
D. Each firm shall submit information on its financial
position. Excluding any property owned as tenants by the entirety, the firm
shall state a net worth or equity of $15,000 or more.
E. Each firm shall provide information for the five years
prior to application on any outstanding, past-due debts and judgments;
outstanding tax obligations; defaults on bonds; or pending or past
bankruptcies. The firm, its designated employee, and all members of the
responsible management of the firm shall submit information on any past-due
debts and judgments or defaults on bonds directly related to the practice of
contracting as defined in Chapter 11 (§ 54.1-1100 et seq.) of Title 54.1 of the
Code of Virginia.
F. The firm, the designated employee, and all members of the
responsible management of the firm shall disclose at the time of application
any current or previous substantial identities of interest with any contractor
licenses issued in Virginia or in other jurisdictions and any disciplinary
actions taken on these licenses. This includes but is not limited to any
monetary penalties, fines, suspension, revocation, or surrender of a license in
connection with a disciplinary action. The board, in its discretion, may deny
licensure to any applicant when any of the parties listed above in
this subsection have had a substantial identity of interest (as deemed in §
54.1-1110 of the Code of Virginia) with any firm that has had a license
suspended, revoked, voluntarily terminated or surrendered in connection with a
disciplinary action in Virginia or any other jurisdiction.
G. In accordance with § 54.1-204 of the Code of Virginia, all
applicants shall disclose the following information about the firm, designated
employee, all members of the responsible management, and the qualified
individual or individuals for the firm:
1. All misdemeanor convictions within three years of the date
of application; and
2. All felony convictions during their lifetimes.
Any plea of nolo contendere shall be considered a conviction
for purposes of this subsection. The record of a conviction received from a
court shall be accepted as prima facie evidence of a conviction or finding of
guilt. The board, in its discretion, may deny licensure to any applicant in
accordance with § 54.1-204 of the Code of Virginia.
H. The designated employee or a member of responsible
management shall have successfully completed a board-approved basic business
course.
18VAC50-22-60. Requirements for a Class A license.
A. A firm applying for a Class A license shall meet all of
the requirements of this section.
B. A firm shall name a designated employee who meets the
following requirements:
1. Is at least 18 years old;
2. Is a full-time employee of the firm as defined in this
chapter or is a member of the responsible management of the firm as defined in
this chapter;
3. Has passed a board-approved examination as required by §
54.1-1106 of the Code of Virginia or has been exempted from the exam
requirement in accordance with § 54.1-1108.1 of the Code of Virginia; and
4. Has followed all rules established by the board or by the
testing service acting on behalf of the board with regard to conduct at the
examination. Such rules shall include any written instructions communicated
prior to the examination date and any oral or written instructions given at the
site on the day of the exam.
C. For every classification or specialty in which the firm
seeks to be licensed, the firm shall name a qualified individual who meets the
following requirements:
1. Is at least 18 years old;
2. Has a minimum of five years of experience in the
classification or specialty for which he is the qualifier;
3. Is a full-time employee of the firm as defined in this
chapter or is a member of the firm as defined in this chapter or is a member of
the responsible management of the firm;
4. a. Has obtained the appropriate certification for the
following specialties:
(1) Blast/explosive contracting (DHCD explosive use
certification),
(2) Fire sprinkler (NICET Sprinkler III certification),
and
(3) Radon mitigation (EPA or DEQ accepted radon
certification).
b. Has obtained, pursuant to the Individual Licensing and
Certification Regulations, a master license for Plumbing, HVAC, Electrical, Gas
Fitting, Natural Gas Fitting Provider, and Liquefied Petroleum Gas Contracting.
c. Has completed, for the drug lab remediation specialty, a
remediation course approved by the board and a board-approved examination.
c. d. Has obtained, pursuant to the Individual
Licensing and Certification Regulations, certification as an Elevator Mechanic
for Elevator Escalator Contracting and certification as a Water Well Systems
Provider for Water Well/Pump Contracting.
d. e. Has completed a board-approved examination
for all other classifications and specialties that do not require other
certification or licensure.
D. Each firm shall submit information on its financial
position. Excluding any property owned as tenants by the entirety, the firm
shall state a net worth or equity of $45,000.
E. The firm shall provide information for the five years
prior to application on any outstanding, past-due debts and judgments;
outstanding tax obligations; defaults on bonds; or pending or past
bankruptcies. The firm, its designated employee, and all members of the
responsible management of the firm shall submit information on any past-due
debts and judgments or defaults on bonds directly related to the practice of
contracting as defined in Chapter 11 (§ 54.1-1100 et seq.) of Title 54.1 of the
Code of Virginia.
F. The firm, the designated employee, and all members of the
responsible management of the firm shall disclose at the time of application
any current or previous substantial identities of interest with any contractor
licenses issued in Virginia or in other jurisdictions and any disciplinary
actions taken on these licenses. This includes but is not limited to,
any monetary penalties, fines, suspensions, revocations, or surrender of a
license in connection with a disciplinary action. The board, in its discretion,
may deny licensure to any applicant when any of the parties listed above
in this [ subdivision subsection ] have
had a substantial identity of interest (as deemed in § 54.1-1110 of the Code of
Virginia) with any firm that has had a license suspended, revoked, voluntarily
terminated, or surrendered in connection with a disciplinary action in Virginia
or in any other jurisdiction.
G. In accordance with § 54.1-204 of the Code of Virginia, all
applicants shall disclose the following information about the firm, all members
of the responsible management, the designated employee, and the
qualified individual or individuals for the firm:
1. All misdemeanor convictions within three years of the date
of application; and
2. All felony convictions during their lifetimes.
Any plea of nolo contendere shall be considered a conviction
for purposes of this subsection. The record of a conviction received from a
court shall be accepted as prima facie evidence of a conviction or finding of
guilt. The board, in its discretion, may deny licensure to any applicant in
accordance with § 54.1-204 of the Code of Virginia.
H. The designated employee or a member of responsible
management shall have successfully completed a board-approved basic business
course.
18VAC50-22-260. Filing of charges; prohibited acts.
A. All complaints against contractors and residential
building energy analyst firms may be filed with the Department of Professional
and Occupational Regulation at any time during business hours, pursuant to §
54.1-1114 of the Code of Virginia.
B. The following acts are prohibited acts:
1. Failure in any material way to comply with provisions of
Chapter 1 (§ 54.1-100 et seq.) or Chapter 11 (§ 54.1-1100 et seq.) of Title
54.1 of the Code of Virginia or the regulations of the board.
2. Furnishing substantially inaccurate or incomplete information
to the board in obtaining, renewing, reinstating, or maintaining a license.
3. Failure of the responsible management, designated employee,
or qualified individual to report to the board, in writing, the suspension or
revocation of a contractor license by another state or conviction in a court of
competent jurisdiction of a building code violation.
4. Publishing or causing to be published any advertisement
relating to contracting which that contains an assertion,
representation, or statement of fact that is false, deceptive, or misleading.
5. Negligence and/or or incompetence in the
practice of contracting or residential building energy analyses.
6. Misconduct in the practice of contracting or residential
building energy analyses.
7. A finding of improper or dishonest conduct in the practice
of contracting by a court of competent jurisdiction or by the board.
8. Failure of all those who engage in residential contracting,
excluding subcontractors to the contracting parties and those who engage in routine
maintenance or service contracts, to make use of a legible written contract
clearly specifying the terms and conditions of the work to be performed. For
the purposes of this chapter, residential contracting means construction,
removal, repair, or improvements to single-family or multiple-family
residential buildings, including accessory-use structures as defined in §
54.1-1100 of the Code of Virginia. Prior to commencement of work or acceptance
of payments, the contract shall be signed by both the consumer and the licensee
or his agent.
9. Failure of those engaged in residential contracting as
defined in this chapter to comply with the terms of a written contract which
that contains the following minimum requirements:
a. When work is to begin and the estimated completion date;
b. A statement of the total cost of the contract and the
amounts and schedule for progress payments including a specific statement on
the amount of the down payment;
c. A listing of specified materials and work to be performed,
which is specifically requested by the consumer;
d. A "plain-language" exculpatory clause concerning
events beyond the control of the contractor and a statement explaining that
delays caused by such events do not constitute abandonment and are not included
in calculating time frames timeframes for payment or performance;
e. A statement of assurance that the contractor will comply
with all local requirements for building permits, inspections, and zoning;
f. Disclosure of the cancellation rights of the parties;
g. For contracts resulting from a door-to-door solicitation, a
signed acknowledgment by the consumer that he has been provided with and read
the Department of Professional and Occupational Regulation statement of protection
available to him through the Board for Contractors;
h. Contractor's name, address, license number, class of
license, and classifications or specialty services;
i. A statement providing that any modification to the
contract, which changes the cost, materials, work to be performed, or estimated
completion date, must be in writing and signed by all parties; and
j. Effective with all new contracts entered into after July 1,
2015, a statement notifying consumers of the existence of the Virginia Contractor
Transaction Recovery Fund that includes information on how to contact the board
for claim information.
10. Failure to make prompt delivery to the consumer before
commencement of work of a fully executed copy of the contract as described in
subdivisions 8 and 9 of this subsection for construction or contracting work.
11. Failure of the contractor to maintain for a period of five
years from the date of contract a complete and legible copy of all documents
relating to that contract, including, but not limited to, the contract
and any addenda or change orders.
12. Refusing or failing, upon request, to produce to the
board, or any of its agents, any document, book, record, or copy of it in the
licensee's possession concerning a transaction covered by this chapter or for
which the licensee is required to maintain records.
13. Failing to respond to an agent of the board or providing
false, misleading or incomplete information to an investigator seeking
information in the investigation of a complaint filed with the board against
the contractor. Failing or refusing to claim certified mail sent to the
licensee's address of record shall constitute a violation of this regulation.
14. Abandonment defined as the unjustified cessation of work
under the contract for a period of 30 days or more.
15. The intentional and unjustified failure to complete work
contracted for and/or or to comply with the terms in the
contract.
16. The retention or misapplication of funds paid, for which
work is either not performed or performed only in part.
17. Making any misrepresentation or making a false promise
that might influence, persuade, or induce.
18. Assisting another to violate any provision of Chapter 1 (§ 54.1-100
et seq.) or Chapter 11 (§ 54.1-1100 et seq.) of Title 54.1 of the Code of
Virginia, or this chapter; or combining or conspiring with or acting as agent,
partner, or associate for another.
19. Allowing a firm's license to be used by another.
20. Acting as or being an ostensible licensee for undisclosed
persons who do or will control or direct, directly or indirectly, the
operations of the licensee's business.
21. Action by the firm, responsible management as defined in
this chapter, designated employee or qualified individual to offer, give, or
promise anything of value or benefit to any federal, state, or local employee
for the purpose of influencing that employee to circumvent, in the performance
of his duties, any federal, state, or local law, regulation, or ordinance
governing the construction industry.
22. Where the firm, responsible management as defined in this
chapter, designated employee or qualified individual has been convicted or
found guilty, after initial licensure, regardless of adjudication, in any
jurisdiction, of any felony or of any misdemeanor, there being no appeal
pending therefrom or the time of appeal having elapsed. Any plea of guilty or
nolo contendere shall be considered a conviction for the purposes of this
subdivision. The record of a conviction received from a court shall be accepted
as prima facie evidence of a conviction or finding of guilt.
23. Failure to inform the board in writing, within 30 days,
that the firm, a member of responsible management as defined in this chapter,
its designated employee, or its qualified individual has pleaded guilty or nolo
contendere or was convicted and found guilty of any felony or of a Class 1
misdemeanor or any misdemeanor conviction for activities carried out while
engaged in the practice of contracting.
24. Having been disciplined by any county, city, town, or any
state or federal governing body including action by the Virginia Department of
Health, which action shall be reviewed by the board before it takes any
disciplinary action of its own.
25. Failure to abate a violation of the Virginia Uniform
Statewide Building Code, as amended.
26. Failure of a contractor to comply with the notification
requirements of the Virginia Underground Utility Damage Prevention Act,
Chapter 10.3 (§ 56-265.14 et seq.) of Title 56 of the Code of Virginia (Miss
Utility).
27. Practicing in a classification, specialty service, or
class of license for which the contractor is not licensed.
28. Failure to satisfy any judgments.
29. Contracting with an unlicensed or improperly licensed
contractor or subcontractor in the delivery of contracting services.
30. Failure to honor the terms and conditions of a warranty.
31. Failure to obtain written change orders, which are signed
by both the consumer and the licensee or his agent, to an already existing
contract.
32. Failure to ensure that supervision, as defined in this
chapter, is provided to all helpers and laborers assisting licensed tradesman.
33. Failure to obtain a building permit or applicable
inspection, where required.
34. Failure of a residential building energy analyst firm to
ensure that residential building energy analyses conducted by the firm are
consistent with the requirements set forth by the board, the U.S. Environmental
Protection Agency, the U.S. Department of Energy, or the Energy Star Program.
35. Failure of a residential building energy analyst firm to
maintain the general liability insurance required in 18VAC50-22-62 C at any
time while licensed by the board.
36. Failure of a contractor holding the drug lab
remediation specialty to ensure that remediation work conducted by the firm or
properly licensed subcontractors is consistent with the guidelines set forth by
the U.S. Environmental Protection Agency, Virginia Department of Environmental
Quality, Virginia Department of Health, or Virginia Department of Forensic
Science.
NOTICE: The following
forms used in administering the regulation were filed by the agency. The forms are
not being published; however, online users of this issue of the Virginia
Register of Regulations may click on the name of the form with a hyperlink to
access it. The forms are also available from the agency contact or may be
viewed at the Office of the Registrar of Regulations, 900 East Main Street,
11th Floor, Richmond, Virginia 23219.
[ FORMS (18VAC50-22)
Contractor Licensing Information, A501-27INTRO-v4
(rev. 1/2016)
Requirements for Qualified Individuals,
A501-27EXINFO-v5 (rev. 1/2016)
Contractor's License Application, A501-27LIC-v7 (rev. 1/2016)
Additional Specialty Designation Application,
A501-27ADDSP-v7 (rev. 1/2016)
Contractor's
License Application, A501-27LIC-v10 (rev. 1/2018)
Additional
Specialty Designation Application, A501-27ADDSP-v10 (rev. 1/2018)
Adverse Financial History Reporting Form,
A406-01AFIN-v1 (eff. 2/2015)
Change in Qualified Individual and Designated Employee
Application, A501-27CH_QIDE-v7 (rev. 1/2016)
Change
in Qualified Individual and Designated Employee Application, A501-27CH_QIDE-v9
(rev. 1/2018)
Change of Responsible Management Application,
A501-27CHRM-v4 (rev. 1/2016)
Certificate of License Termination, A501-27TERM-v4
(rev. 12/2015)
Criminal Conviction Reporting Form, A406-01CCR-v1
(eff. 5/2015)
Disciplinary Action Reporting Form, A406-01DAR-v1
(eff. 5/2015)
Education Provider Registration/Course Approval
Application, A501-27EDREG-v5 (rev. 1/2014)
Education Provider Listing Application,
A501-27EDLIST-v4 (rev. 1/2014)
Financial Statement, A501-27FINST-v4 (rev.
12/2012)
Change in License Class Application, A501-27CHLIC-v7 (rev.
1/2016)
Change
in License Class Application, A501CHLIC-v9 (rev. 1/2018)
Firm - Residential Building Energy Analyst Application,
A501-2707LIC-v2 (rev. 7/2013)
Statement of Consumer Protections, RBC-9.1 (rev.
12/2014)
Contractor's Temporary License Application,
A501-2703LIC-v2 (rev. 1/2016)
Contractor
Temporary License Application, A501-2703LIC-v8 (rev. 1/2018)
Expedited
Class A License Application, A501-2705A-v11 (rev. 1/2018) ]
VA.R. Doc. No. R16-4674; Filed October 16, 2017, 5:59 p.m.
TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING
BOARD OF NURSING
Fast-Track Regulation
Title of Regulation: 18VAC90-19. Regulations
Governing the Practice of Nursing (amending 18VAC90-19-120).
Statutory Authority: § 54.1-2400 of the Code of
Virginia.
Public Hearing Information: No public hearings are
scheduled.
Public Comment Deadline: December 13, 2017.
Effective Date: December 28, 2017.
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.
Basis: Section 54.1-2400 of the Code of Virginia
establishes the general powers and duties of health regulatory boards,
including the responsibility to promulgate regulations.
Purpose: Applicants who received their nursing education
in another country are required to have a credentials review by the Commission
on Graduates of Foreign Nursing Schools (CGFNS) and an examination of English
proficiency. For applicants by endorsement, who have been licensed in another
United States jurisdiction, those requirements may have already been met as
qualification for licensure in the other jurisdiction. Therefore, it may be
unnecessarily burdensome and create delays in licensure to repeat the
credentials review and test of English proficiency. Verification from the
jurisdiction that the qualification has been met is necessary.
Since assurance of completion of all educational and clinical
requirements has already been verified by CGFNS, there is no risk of less
competent nurses being granted a license. Public health and safety continues to
be protected with assurance that a licensee has minimal competency to practice.
Rationale for Using Fast-Track Rulemaking Process: The
amendment is less burdensome for all parties and will facilitate licensure by
endorsement for certain applicants, and therefore, the Board of Nursing is
confident that the rulemaking is noncontroversial and should be promulgated as
a fast-track rulemaking action.
Substance: In examining its process for approval of
applications by endorsement, staff has become aware that the requirement for a
CGFNS credentials review and test of English proficiency may be duplicative of credentialing
already performed by another state. The amendment will allow the board to waive
requirements for a CGFNS credentials review and examination of English
proficiency for a person whose nursing education was received in another
country if the applicant has been licensed in another state and can provide
evidence that those requirements were met for licensure in the other state.
Issues: The primary advantage of the amendment is an
expedited process for licensure by endorsement of RNs and LPNs who are foreign
trained and have been licensed and credentialed in another state. There are no
disadvantages.
There is an advantage to the board because an attestation from
the other state may eliminate the need for additional documents, which will
result in less paperwork and more satisfied applicants. There are no
disadvantages to the Commonwealth.
Department of Planning and Budget's Economic Impact
Analysis:
Summary of the Proposed Amendments to Regulation. In regard to
applying for licensure by endorsement, the Board of Nursing (Board) proposes to
allow the waiving of a (new) credentials review by the Commission on Graduates
of Foreign Nursing Schools (CGFNS) and examination of English proficiency for a
person whose nursing education was received in another country if the applicant
has been licensed in another state and she can provide evidence that those
requirements were met for licensure in the other state.
Result of Analysis. The benefits likely exceed the costs for
all proposed changes.
Estimated Economic Impact. Applicants for nursing licensure by
endorsement whose basic nursing education was received in another country must
pass a CGFNS credentials review and a CGFNS-approved examination of English
language proficiency.1 The CGFNS review must show that the
applicant's secondary education and nursing education are comparable to those
required for registered nurses in the Commonwealth.2 English
proficiency can be demonstrated by achieving passing scores in either the TOEFL
iBT3 or the IELTS exam.4
The Board proposes to waive the requirements for passing the
CGFNS credentials review and a CGFNS-approved examination of English language
proficiency if the applicant can provide evidence from another United States
jurisdiction of passing: a) a CGFNS credentials evaluation for educational
comparability and b) English language proficiency examination approved by the
CGFNS, unless the applicant met the CGFNS criteria for an exemption from the
requirement.5 CGFNS charges $350 for a credentials review.6
Under the current regulation the applicant would need a new CGFNS credentials
review specific to Virginia. The proposed regulation would thus save the
applicant who already had a satisfactory credentials evaluation for another
state the $350 fee for a new review, plus the time waiting for the review to be
completed.
If the applicant had already passed the English language
proficiency exam for a different state, she would not need to take it again
even under the current regulation. She would just need to have the examination
organization send the scores to the Department of Health Professions (DHP).
ETS, the producer of the TOEFL iBT exam, does not charge for sending additional
recipients examination scores.7,8 Thus the proposed regulation would
not significantly affect costs in regard to the English language proficiency
examination.
The proposed amendments introduce no new costs and do not
change the required qualifications for nursing licensure. The reduced cost for
foreign-trained nurses already licensed in another state may moderately
increase the number of such individuals who seek licensure and nursing
employment in the Commonwealth. Given the cost savings for the affected nurses,
the Board's proposal would therefore create a net benefit.
Businesses and Entities Affected. The proposed amendments
affect foreign-trained nurses who are already licensed in another United States
jurisdiction and are considering applying for nursing licensure in Virginia.
The number of such individuals is unavailable. According to DHP, the Board
approves licenses for approximately 1,800 Registered Nurse applicants and 400
Licensed Practical Nurse applicants each quarter. Most nurses work for medical
practices, long-term care facilities, or hospital systems.
Localities Particularly Affected. The proposed amendments do
not disproportionately affect particular localities.
Projected Impact on Employment. The proposed regulation reduces
costs for nurses whose nursing education was received in another country, if
the applicant has been licensed in another state and she can provide evidence
that a satisfactory credentials review by CGFNS was completed by the other
state. Such nurses may be more likely to apply for licensure and employment in
the Commonwealth.
Effects on the Use and Value of Private Property. The proposed
amendments do not affect the use and value of private property.
Real Estate Development Costs. The proposed amendments do not
affect real estate development costs.
Small Businesses:
Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia,
small business is defined as "a business entity, including its affiliates,
that (i) is independently owned and operated and (ii) employs fewer than 500
full-time employees or has gross annual sales of less than $6 million."
Costs and Other Effects. The proposed amendments do not
significantly affect costs for small businesses.
Alternative Method that Minimizes Adverse Impact. The proposed
amendments do not adversely affect small businesses.
Adverse Impacts:
Businesses. The proposed amendments do not adversely affect
businesses.
Localities. The proposed amendments do not adversely affect
localities.
Other Entities. The proposed amendments do not adversely affect
other entities.
____________________________
1 The passage of an English language proficiency
examination is not required if: 1) the entry-level professional education
occurred in the United Kingdom, Australia, Barbados, Canada (except most of
Quebec), Ireland, Jamaica, New Zealand, South Africa, Trinidad & Tobago, or
the United States, and 2) English was the language of instruction, and the
language of the textbooks.
2 See http://www.cgfns.org/services/ces-professional-report/
3 See https://www.ets.org/toefl/ibt/about
4 See https://www.ielts.org/en-us
5 See footnote #1.
6 Source: http://www.cgfns.org/services/ces-professional-report/ accessed on September 13, 2017.
7Source: https://www.ets.org/toefl/institutions/scores/reporting
8 Information concerning whether there is a charge for
sending additional recipients IELTS scores was not available at the time this
report was published. Nevertheless, the TOEFL iBT is believed to be more
commonly used.
Agency's Response to Economic Impact Analysis: The Board
of Nursing concurs with the analysis of the Department of Planning and Budget.
Summary:
The amendment allows the Board of Nursing to waive
requirements for a Commission on Graduates of Foreign Nursing Schools
credentials review and examination of English proficiency for a person whose
nursing education was received in another country if the applicant has been
licensed in another state and can provide evidence that those requirements were
met for licensure in the other state.
18VAC90-19-120. Licensure by endorsement.
A. A graduate of an approved nursing education program who
has been licensed by examination in another United States jurisdiction and
whose license is in good standing, or is eligible for reinstatement if lapsed,
shall be eligible for licensure by endorsement in Virginia provided the
applicant satisfies the same requirements for registered nurse or practical
nurse licensure as those seeking initial licensure in Virginia.
1. Applicants who have graduated from approved nursing education
programs that did not require a sufficient number of clinical hours as
specified in 18VAC90-27-100 may qualify for licensure if they can provide
evidence of at least 960 hours of clinical practice with an active,
unencumbered license in another United States jurisdiction.
2. Applicants whose basic nursing education was received in
another country shall meet the requirements of 18VAC90-19-130 for a CGFNS
credentials review and examination of English proficiency. However, those
requirements may be satisfied if the applicant can provide evidence from
another United States jurisdiction of:
a. A CGFNS credentials evaluation for educational
comparability; and
b. Passage of an English language proficiency examination
approved by the CGFNS, unless the applicant met the CGFNS criteria for an
exemption from the requirement.
3. A graduate of a nursing school in Canada where English was
the primary language shall be eligible for licensure by endorsement provided
the applicant has passed the Canadian Registered Nurses Examination and holds
an unrestricted license in Canada.
B. An applicant for licensure by endorsement who has
submitted a criminal history background check as required by § 54.1-3005.1
of the Code of Virginia and the required application and fee and has submitted
the required form to the appropriate credentialing agency for verification of
licensure may practice for 30 days upon receipt of an authorization letter from
the board. If an applicant has not received a Virginia license within 30 days
and wishes to continue practice, he shall seek an extension of authorization to
practice by submitting a request and evidence that he has requested
verification of licensure.
C. If the application is not completed within one year of the
initial filing date, the applicant shall submit a new application and fee.
VA.R. Doc. No. R18-5226; Filed October 21, 2017, 11:23 a.m.
TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING
BOARD OF OPTOMETRY
Emergency Regulation
Title of Regulation: 18VAC105-20. Regulations
Governing the Practice of Optometry (amending 18VAC105-20-5, 18VAC105-20-70;
adding 18VAC105-20-48, 18VAC105-20-49).
Statutory Authority: § 54.1-2400 of the Code of
Virginia.
Effective Dates: October 30, 2017, through April 29,
2019.
Agency Contact: Leslie L. Knachel, Executive Director,
Board of Optometry, 9960 Mayland Drive, Suite 300, Richmond, VA 23233,
telephone (804) 367-4508, FAX (804) 527-4471, or email
leslie.knachel@dhp.virginia.gov.
Preamble:
Regulations for optometrists prescribing of controlled
substances containing opioids are being promulgated as emergency regulations to
address the opioid abuse crisis in Virginia. On November 16, 2016, State Health
Commissioner Marissa Levine declared the opioid addiction crisis to be a public
health emergency in Virginia. In a news conference about the opioid crisis,
Governor McAuliffe noted that the declaration would "provide a framework
for further actions to fight it, and to save Virginians' lives." One of
those "further actions" is adoption of emergency regulations by the
Board of Medicine and the Board of Nursing setting out rules for prescribing
opioids and buprenorphine and by the Board of Dentistry for prescribing of
opioids for acute pain. Although optometrists are only authorized to prescribe
Schedule II controlled substances consisting of hydrocodone in combination with
acetaminophen and Schedules III, IV, and VI controlled substances, the Board of
Optometry has determined that it should also adopt emergency regulations.
Section 2.2-4011 of the Code of Virginia authorizes an
agency to adopt emergency regulations necessitated by an emergency situation
upon consultation with the Attorney General, and the necessity for the action
is at the sole discretion of the Governor. The declaration by Commissioner
Levine is indeed evidence that such an emergency situation exists in the
Commonwealth.
The emergency regulations for the management of acute pain
include requirements for (i) prescribing a dosage not to exceed seven days,
(ii) the evaluation of the patient, and (iii) limitations on quantity.
Requirements for prescribing of an opioid beyond seven days include a
reevaluation of the patient, check of the Prescription Monitoring Program, and
specific information in the patient record. In addition, if a therapeutic
pharmaceutical agent-certified optometrist finds an opioid prescription for
chronic pain is necessary, he must refer the patient to a physician or comply
with Board of Medicine regulation for managing chronic pain.
18VAC105-20-5. Definitions.
The following words and terms when used in this chapter shall
have the following meanings unless the context clearly indicates otherwise:
"Acute pain" means pain that occurs within the
normal course of a disease or condition for which controlled substances may be
prescribed for no more than three months.
"Board" means the Virginia Board of Optometry.
"Chronic pain" means nonmalignant pain that goes
beyond the normal course of a disease or condition for which controlled
substances may be prescribed for a period greater than three months.
"Controlled substance" means drugs listed in The
Drug Control Act (§ 54.1-3400 et seq. of the Code of Virginia) in Schedules II
through V.
"MME" means morphine milligram equivalent.
"NBEO" means the National Board of Examiners in
Optometry.
"Prescription Monitoring Program" means the
electronic system within the Department of Health Professions that monitors the
dispensing of certain controlled substances.
"TPA" means therapeutic pharmaceutical agents.
"TPA certification" means authorization by the
Virginia Board of Optometry for an optometrist to treat diseases and abnormal
conditions of the human eye and its adnexa and to prescribe and administer
certain therapeutic pharmaceutical agents.
18VAC105-20-48. Prescribing an opioid for acute pain.
A. Nonpharmacologic and non-opioid treatment for pain
shall be given consideration prior to treatment with opioids. If an opioid is
considered necessary for the treatment of acute pain, a TPA-certified
optometrist shall follow the regulations for prescribing and treating with
opioids.
B. Prior to initiating treatment with a controlled
substance containing an opioid for a complaint of acute pain, a TPA-certified
optometrist shall perform a health history and physical examination appropriate
to the complaint, query the Prescription Monitoring Program as set forth in §
54.1-2522.1 of the Code of Virginia, and conduct an assessment of the patient's
history and risk of substance abuse.
C. Initiation of opioid treatment for all patients with
acute pain shall include the following:
1. A prescription for an opioid shall be a short-acting
opioid in the lowest effective dose for the fewest number of days, not to
exceed seven days as determined by the manufacturer's directions for use,
unless extenuating circumstances are clearly documented in the patient record.
2. A TPA-certified optometrist shall carefully consider and
document in the patient record the reasons to exceed 50 MME per day.
3. A prescription for naloxone should be considered for any
patient when any risk factor of prior overdose, substance misuse, or
concomitant use of benzodiazepine is present.
D. If another prescription for an opioid is to be written
beyond seven days, a TPA-certified optometrist shall:
1. Reevaluate the patient and document in the patient
record the continued need for an opioid prescription; and
2. Check the patient's prescription history in the
Prescription Monitoring Program.
E. The patient record shall include a description of the
pain, a presumptive diagnosis for the origin of the pain, an examination
appropriate to the complaint, a treatment plan, and the medication prescribed
(including date, type, dosage, strength, and quantity prescribed).
F. Due to a higher risk of fatal overdose when opioids are
prescribed for a patient also taking benzodiazepines, sedative hypnotics,
tramadol, or carisoprodol, a TPA-certified optometrist shall only co-prescribe
these substances when there are extenuating circumstances and shall document in
the patient record a tapering plan to achieve the lowest possible
effective doses if these medications are prescribed.
18VAC105-20-49. Prescribing an opioid for chronic pain.
If a TPA-certified optometrist treats a patient for whom
an opioid prescription is necessary for chronic pain, he shall either:
1. Refer the patient to a doctor of medicine or osteopathic
medicine who is a pain management specialist; or
2. Comply with regulations of the Board of Medicine,
18VAC85–21–60 through 18VAC85–21–120 (see 33:16 VA.R.
1930–1931 April 3, 2017), if he chooses to manage the chronic pain with
an opioid prescription.
18VAC105-20-70. Requirements for continuing education.
A. Each license renewal shall be conditioned upon submission
of evidence to the board of 20 hours of continuing education taken by the
applicant during the previous license period. A licensee who completes more
than 20 hours of continuing education in a year shall be allowed to carry
forward up to 10 hours of continuing education for the next annual renewal
cycle.
1. The 20 hours may include up to two hours of recordkeeping
for patient care, including coding for diagnostic and treatment devices and
procedures or the management of an optometry practice, provided that such
courses are not primarily for the purpose of augmenting the licensee's income
or promoting the sale of specific instruments or products.
2. For optometrists who are certified in the use of therapeutic
pharmaceutical agents, at least 10 of the required continuing education hours
shall be in the areas of ocular and general pharmacology, diagnosis and
treatment of the human eye and its adnexa, including treatment with new
pharmaceutical agents, or; new or advanced clinical devices,
techniques, modalities, or procedures; or pain management.
3. At least 10 hours shall be obtained through real-time,
interactive activities, including in-person or electronic presentations,
provided that during the course of the presentation, the licensee and the
lecturer may communicate with one another.
4. A licensee may also include up to two hours of training in
cardiopulmonary resuscitation (CPR).
5. Two hours of the 20 hours required for annual renewal may
be satisfied through delivery of professional services, without compensation,
to low-income individuals receiving health services through a local health
department or a free clinic organized in whole or primarily for the delivery of
those services. One hour of continuing education may be credited for three
hours of providing such volunteer services, as documented by the health
department or free clinic.
B. Each licensee shall attest to fulfillment of continuing
education hours on the required annual renewal form. All continuing education
shall be completed prior to December 31 unless an extension or waiver has been
granted by the Continuing Education Committee. A request for an extension or
waiver shall be received prior to December 31 of each year.
C. All continuing education courses shall be offered by an
approved sponsor or accrediting body listed in subsection G of this section.
Courses that are not approved by a board-recognized sponsor in advance shall
not be accepted for continuing education credit. For those courses that have a
post-test requirement, credit will only be given if the optometrist receives a
passing grade as indicated on the certificate.
D. Licensees shall maintain continuing education
documentation for a period of not less than three years. A random audit of
licensees may be conducted by the board which will require that the licensee
provide evidence substantiating participation in required continuing education
courses within 14 days of the renewal date.
E. Documentation of hours shall clearly indicate the name of
the continuing education provider and its affiliation with an approved sponsor
or accrediting body as listed in subsection G of this section. Documents that
do not have the required information shall not be accepted by the board for
determining compliance. Correspondence courses shall be credited according to
the date on which the post-test was graded as indicated on the continuing
education certificate.
F. A licensee shall be exempt from the continuing competency
requirements for the first renewal following the date of initial licensure by
examination in Virginia.
G. An approved continuing education course or program,
whether offered by correspondence, electronically, or in person, shall
be sponsored, accredited, or approved by one of the following:
1. The American Optometric Association and its constituent
organizations.
2. Regional optometric organizations.
3. State optometric associations and their affiliate local
societies.
4. Accredited colleges and universities providing optometric
or medical courses.
5. The American Academy of Optometry and its affiliate
organizations.
6. The American Academy of Ophthalmology and its affiliate
organizations.
7. The Virginia Academy of Optometry.
8. Council on Optometric Practitioner Education (COPE).
9. State or federal governmental agencies.
10. College of Optometrists in Vision Development.
11. The Accreditation Council for Continuing Medical Education
of the American Medical Association for Category 1 credit.
12. Providers of training in cardiopulmonary resuscitation
(CPR).
13. Optometric Extension Program.
H. In order to maintain approval for continuing education
courses, providers, or sponsors shall:
1. Provide a certificate of attendance that shows the date,
location, presenter or lecturer, content hours of the course, and
contact information of the provider or sponsor for verification. The
certificate of attendance shall be based on verification by the sponsor of the
attendee's presence throughout the course, either provided by a post-test or by
a designated monitor.
2. Maintain documentation about the course and attendance for
at least three years following its completion.
I. Falsifying the attestation of compliance with continuing
education on a renewal form or failure to comply with continuing education
requirements may subject a licensee to disciplinary action by the board,
consistent with § 54.1-3215 of the Code of Virginia.
VA.R. Doc. No. R18-5205; Filed October 16, 2017, 8:52 a.m.
TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING
BOARD OF PHARMACY
Final Regulation
REGISTRAR'S NOTICE: The
Board of Pharmacy is claiming an exemption from Article 2 of the Administrative
Process Act in accordance with § 2.2-4006 A 13 of the Code of Virginia,
which exempts amendments to regulations of the board to schedule a substance in
Schedule I or II pursuant to subsection D of § 54.1-3443 of the Code of
Virginia. The board will receive, consider, and respond to petitions by any
interested person at any time with respect to reconsideration or revision.
Title of Regulation: 18VAC110-20. Regulations
Governing the Practice of Pharmacy (amending 18VAC110-20-322).
Statutory Authority: §§ 54.1-2400 and 54.1-3443 of the
Code of Virginia.
Effective Date: December 13, 2017.
Agency Contact: Caroline Juran, RPh, Executive Director,
Board of Pharmacy, 9960 Mayland Drive, Suite 300, Richmond, VA 23233-1463,
telephone (804) 367-4456, FAX (804) 527-4472, or email
caroline.juran@dhp.virginia.gov.
Summary:
The amendments add nine compounds into Schedule I of the
Drug Control Act as recommended by the Virginia Department of Forensic Science
pursuant to § 54.1-3443 of the Code of Virginia. The compounds added by this
regulatory action will remain in effect for 18 months or until the compounds
are placed in Schedule I by legislative action of the General Assembly.
18VAC110-20-322. Placement of chemicals in Schedule I.
A. Pursuant to subsection D of § 54.1-3443 of the Code of
Virginia, the Board of Pharmacy places the following in Schedule I of the Drug
Control Act:
1. 1-(1,3-benzodioxol-5-yl)-2-(dimethylamino)-1-pentanone
(other names: N,N-Dimethylpentylone, Dipentylone);
2. 4-chloro-alpha-Pyrrolidinovalerophenone (other name:
4-chloro-alpha-PVP);
3. 4-methyl-alpha-Pyrrolidinohexiophenone (other name: MPHP);
4. 4-fluoro-alpha-Pyrrolidinoheptiophenone (other name:
4-fluoro-PV8);
5. 1-(4-methoxyphenyl)-2-(pyrrolidin-1-yl)octan-1-one (other
name: 4-methoxy-PV9);
6. 4-allyloxy-3,5-dimethoxyphenethylamine (other name:
Allylescaline);
7. 4-methyl-alpha-ethylaminopentiophenone; and
8. N-(4-fluorophenyl)-2-methyl-N-[1-(2-phenylethyl)-4-piperidinyl]-propanamide
(other name: para-fluoroisobutyryl fentanyl).
The placement of drugs listed in this subsection shall remain
in effect until August 22, 2018, unless enacted into law in the Drug Control
Act.
B. Pursuant to subsection D of § 54.1-3443 of the Code of
Virginia, the Board of Pharmacy places the following in Schedule I of the Drug
Control Act:
1. 6-ethyl-6-nor-lysergic acid diethylamide (other name:
ETH-LAD), its optical, position, and geometric isomers, salts, and salts of
isomers, whenever the existence of such salts, isomers, and salts of isomers is
possible within the specific chemical designation;
2. 6-allyl-6-nor-lysergic acid diethylamide (other name:
AL-LAD), its optical, position, and geometric isomers, salts, and salts of
isomers, whenever the existence of such salts, isomers, and salts of isomers is
possible within the specific chemical designation;
3. Synthetic opioids:
a.
N-[1-[2-hydroxy-2-(2-thienyl)ethyl]-4-piperidinyl]-N-phenylpropanamide (other
name: beta-hydroxythiofentanyl), its isomers, esters, ethers, salts, and salts
of isomers, esters, and ethers, unless specifically excepted, whenever the
existence of these isomers, esters, ethers, and salts is possible within the
specific chemical designation;
b. N-(2-fluorophenyl)-N-[1-(2-phenylethyl)-4-piperidinyl]-propanamide
(other names: 2-fluorofentanyl, ortho-fluorofentanyl), its isomers, esters,
ethers, salts, and salts of isomers, esters, and ethers, unless specifically
excepted, whenever the existence of these isomers, esters, ethers, and salts is
possible within the specific chemical designation; and
c. N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl]-2-propenamide
(other name: Acryl fentanyl), its isomers, esters, ethers, salts, and salts of
isomers, esters, and ethers, unless specifically excepted, whenever the
existence of these isomers, esters, ethers, and salts is possible within the
specific chemical designation;
4. Cannabimimetic agents:
a. 1-pentyl-N-(phenylmethyl)-1H-indole-3-carboxamide (other
name: SDB-006), its salts, isomers, and salts of isomers whenever the existence
of such salts, isomers, and salts of isomers is possible within the specific
chemical designation; and
b. Quinolin-8-yl 1-(4-fluorobenzyl)-1H-indole-3-carboxylate
(other name: FUB-PB-22), its salts, isomers, and salts of isomers whenever the
existence of such salts, isomers, and salts of isomers is possible within the
specific chemical designation; and
5. Benzodiazepine: flubromazepam, its salts, isomers, and
salts of isomers whenever the existence of such salts, isomers, and salts of
isomers is possible within the specific chemical designation.
The placement of drugs listed in this subsection shall remain
in effect until December 13, 2018, unless enacted into law in the Drug Control
Act.
C. Pursuant to subsection D of § 54.1-3443 of the Code of
Virginia, the Board of Pharmacy places the following in Schedule I of the Drug
Control Act:
1. 4-Bromo-2,5-dimethoxy-N-[(2-hydroxyphenyl)methyl]-benzeneethanamine
(25B-NBOH), its optical, position, and geometric isomers, salts and salts of
isomers, whenever the existence of such salts, isomers, and salts of isomers is
possible within the specific chemical designation.
2. Methyl
N-[1-(cyclohexylmethyl)-1H-indole-3-carbonyl]valinate (MMB-CHMICA), its salts,
isomers, and salts of isomers whenever the existence of such salts, isomers,
and salts of isomers is possible within the specific chemical designation.
3. N-(1-phenethylpiperidin-4-yl)-N-phenyltetrahydrofuran-2-carboxamide (Tetrahydrofuran
fentanyl), its isomers, esters, ethers, salts, and salts of isomers, esters,
and ethers, unless specifically excepted, whenever the existence of these
isomers, esters, ethers and salts is possible within the specific chemical
designation.
The placement of drugs listed in this subsection shall remain
in effect until February 18, 2019, unless enacted into law in the Drug Control
Act.
D. Pursuant to subsection D of § 54.1-3443 of the Code of
Virginia, the Board of Pharmacy places the following in Schedule I of the Drug
Control Act:
1. 5-methoxy-N,N-dimethyltryptamine (5-MeO-DMT), its
optical, position, and geometric isomers, salts, and salts of isomers whenever
the existence of such salts, isomers, and salts of isomers is possible within
the specific chemical designation.
2. 5-methoxy-N-ethyl-N-isopropyltryptamine (5-MeO-EIPT),
its optical, position, and geometric isomers, salts, and salts of isomers
whenever the existence of such salts, isomers, and salts of isomers is possible
within the specific chemical designation.
3. 4-hydroxy-N,N-diisopropyltryptamine (4-OH-DIPT), its
optical, position, and geometric isomers, salts, and salts of isomers whenever
the existence of such salts, isomers, and salts of isomers is possible within
the specific chemical designation.
4. (N-methyl aminopropyl)-2,3-dihydrobenzofuran (MAPDB),
its optical, position, and geometric isomers, salts, and salts of isomers
whenever the existence of such salts, isomers, and salts of isomers is possible
within the specific chemical designation.
5. 3,4-tetramethylene-alpha-pyrrolidinovalerophenone
(TH-PVP), its optical, position, and geometric isomers, salts, and salts of
isomers whenever the existence of such salts, isomers, and salts of isomers is
possible within the specific chemical designation.
6. 4-chloro-alpha-methylamino-valerophenone (4-chloropentedrone),
its optical, position, and geometric isomers, salts, and salts of isomers
whenever the existence of such salts, isomers, and salts of isomers is possible
within the specific chemical designation.
7. Synthetic opioids:
a. 2-methoxy-N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl]-acetamide
(Methoxyacetyl fentanyl), its isomers, esters, ethers, salts, and salts of
isomers, esters, and ethers, unless specifically excepted, whenever the
existence of these isomers, esters, ethers, and salts is possible within the
specific chemical designation.
b.
N-(1-phenethylpiperidin-4-yl)-N-phenylcyclopropanecarboxamide (Cyclopropyl
fentanyl), its isomers, esters, ethers, salts, and salts of isomers, esters,
and ethers, unless specifically excepted, whenever the existence of these
isomers, esters, ethers, and salts is possible within the specific chemical
designation.
8. Cannabimimetic agent:
N-(1-amino-3,3-dimethyl-1-oxobutan-2-yl)-1-(5-fluoropentyl)indazole-3-carboxamide
(5-fluoro-ADB-PINACA), its salts, isomers, and salts of isomers whenever the
existence of such salts, isomers, and salts of isomers is possible within the
specific chemical designation.
The placement of drugs listed in this subsection shall
remain in effect until June 12, 2019, unless enacted into law in the Drug
Control Act.
VA.R. Doc. No. R18-5254; Filed October 17, 2017, 4:35 p.m.
TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING
BOARD OF COUNSELING
Fast-Track Regulation
Titles of Regulations: 18VAC115-20. Regulations
Governing the Practice of Professional Counseling (amending 18VAC115-20-105).
18VAC115-50. Regulations Governing the Practice of Marriage
and Family Therapy (amending 18VAC115-50-95).
18VAC115-60. Regulations Governing the Practice of Licensed
Substance Abuse Treatment Practitioners (amending 18VAC115-60-50, 18VAC115-60-115).
Statutory Authority: § 54.1-2400 of the Code of
Virginia.
Public Hearing Information: No public hearings are
scheduled.
Public Comment Deadline: December 13, 2017.
Effective Date: December 28, 2017.
Agency Contact: Jaime Hoyle, Executive Director, Board
of Counseling, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone
(804) 367-4406, FAX (804) 527-4435, or email jaime.hoyle@dhp.virginia.gov.
Basis: Section 54.1-2400 of the Code of Virginia
provides the Board of Counseling the authority to promulgate regulations to
administer the regulatory system.
Specific authority for regulation of the profession of
counseling is found in § 54.1-3503 of the Code of Virginia, which mandates
that the board regulate the practice of counseling, substance abuse treatment,
and marriage and family therapy; § 54.1-3506 of the Code of Virginia,
which requires individuals who engage in the practice of counseling or marriage
and family therapy or in the independent practice of substance abuse treatment
to hold a license; and § 54.1-103 of the Code of Virginia, which
authorizes the board to promulgate regulations specifying additional training
or conditions for individuals seeking certification or licensure, or for the
renewal of certificates or licenses.
Purpose: The purpose of the amendments is to open a
pathway for those individuals who hold another mental health license to be
licensed in substance abuse treatment if they have specific coursework and
training in the field. With the crisis of substance abuse being experienced in
the Commonwealth, a regulatory action to encourage more treatment providers,
who can offer services as a licensee and supervise the services of certified or
registered providers, may increase access to care and ultimately offer greater
protection for the safety, health, and welfare of all citizens.
The exemption from continuing education for newly licensed
persons will not affect the public health and safety since their competency to
practice has been determined by examination, education, and a supervised
residency within the period immediately prior to licensure.
Rationale for Using Fast-Track Rulemaking Process: The
amendments are permissive and less restrictive than current regulations. They
will benefit first-time licensees and some applicants for licensure by
endorsement for the substance abuse treatment professional license; therefore,
they are not expected to be controversial.
Substance: The amendments (i) provide that a person who
was licensed by examination is exempt from meeting continuing competency
requirements for the first renewal following initial licensure; (ii) eliminate
the requirement for official transcripts documenting completion of all the
education requirements, so an applicant for licensure by endorsement will not
need to obtain an additional master's degree in substance abuse; (iii) require
an official transcript to indicate completion of a 60-hour master's degree in mental
health and completion of 12 hours of didactic training in substance abuse
competencies; and (iv) delete subsection B of 18VAC115-60-50 because the
credentials registry referenced in that subsection no longer exists.
Issues: There are no disadvantages to the public. Less
restrictive regulation for licensure by endorsement for the Licensed Substance
Abuse Treatment Practitioners license may result in more licensed providers to
both deliver and supervise substance abuse services.
There are no advantages or disadvantages to the agency or the
Commonwealth.
Department of Planning and Budget's Economic Impact
Analysis:
Summary of the Proposed Amendments to Regulation. The Board of
Counseling (Board) proposes to 1) eliminate continuing education requirements for
the first renewal of a license issued by examination; and 2) amend the
licensure by endorsement requirements to make it possible for persons who hold
other behavioral health licenses to obtain a substance abuse treatment
professional license.
Result of Analysis. The benefits likely exceed the costs for
all proposed changes.
Estimated Economic Impact. The Board proposes to no longer
require continuing education for the first renewal of a license issued by
examination. This change applies to licensed professional counselors, marriage
and family therapists, and substance abuse treatment practitioners. Currently,
affected professionals are required to complete 20 hours of continuing
education for each yearly license renewal cycle. The requirement could be satisfied
many different ways including taking academic courses, continuing education
classes, participating in workshops, seminars, conferences, publication of
articles, books, etc. The proposed change will provide different types of
benefits to different individuals. Some may benefit not having to pay fees for
courses or classes; some may benefit from not having to spend the time to
complete the activity required; some may benefit from not having to travel;
some may benefit from a combination of all of these choices. The Board has
determined that the exemption from continuing education for newly licensed
persons will not affect the public health and safety since their competency to
practice has been determined by examination, education and a supervised residency
within the period immediately prior to licensure. Thus, this change is expected
to provide a net benefit.
The Board also proposes to delete language requiring
transcripts documenting certain education for licensure by endorsement of
substance abuse treatment practitioners. According to the Department of Health
Professions (DHP), as written, the current requirement amounts to requiring an
additional master's degree in substance abuse as a condition of licensure by
endorsement. That requirement negates the possibility of licensure by
endorsement as it requires the applicants to satisfy the same education
requirements as those who are initially licensed through examination. Thus,
removal of this language will eliminate a barrier to practicing in Virginia if
one has satisfied the educational requirements in another jurisdiction. The
proposed regulation would benefit substance abuse treatment professionals
licensed in another state who are seeking licensure in the Commonwealth.
Additionally, making it easier to obtain licensure may encourage more substance
abuse professionals to come to Virginia to practice. This change opens a new
pathway for those licensed in another jurisdiction who have specific coursework
and training in the field. Therefore, it should not introduce risks of
unqualified applicants becoming licensed in Virginia.
Businesses and Entities Affected. The proposed regulation
applies to licensed professional counselors, marriage and family therapists,
and substance abuse treatment practitioners. DHP reports that in the first nine
months of 2017, there were 443 licenses issued. Most of those were likely first
time licensees and will qualify for an exemption on their first renewal.
Localities Particularly Affected. The proposed regulation will
not affect any particular locality more than others.
Projected Impact on Employment. The proposed elimination of
continuing education during the first renewal cycle will reduce the demand for
such services. The proposed regulation may also encourage substance abuse
treatment professionals licensed in other states to come to Virginia to
practice and increase their supply. However, the magnitude of any such effect
is not known.
Effects on the Use and Value of Private Property. No effect on
the use and value of private property is expected.
Real Estate Development Costs. No impact on real estate
development costs is expected.
Small Businesses:
Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia,
small business is defined as "a business entity, including its affiliates,
that (i) is independently owned and operated and (ii) employs fewer than 500
full-time employees or has gross annual sales of less than $6 million."
Costs and Other Effects. The proposed regulation does not
directly apply to small businesses. However, if an affected practitioner works
for a small business it may be indirectly beneficial to that small business as
the proposed regulation eliminates continuing education requirement in the
first renewal cycle and makes it easier to obtain a substance abuse treatment
license by endorsement. The majority of affected professionals are estimated to
operate their practices within a small business.
Alternative Method that Minimizes Adverse Impact. The proposed
regulation does not introduce an adverse impact on small businesses.
Adverse Impacts:
Businesses. The proposed regulation does not have an adverse
impact on businesses.
Localities. The proposed regulation will not adversely affect
localities.
Other Entities. The proposed regulation will not adversely
affect other entities.
Agency's Response to Economic Impact Analysis: The Board
of Counseling concurs with the analysis of the Department of Planning and
Budget.
Summary:
The amendments (i) eliminate continuing education
requirements for the first renewal of a license issued by examination for
licensed professional counselors, marriage and family therapists, and substance
abuse treatment practitioners; and (ii) amend the licensure by endorsement
requirements to make it possible for persons who hold other behavioral health
licenses to obtain a substance abuse treatment professional license.
18VAC115-20-105. Continued competency requirements for renewal
of a license.
A. Licensed professional counselors shall be required to have
completed a minimum of 20 hours of continuing competency for each annual
licensure renewal. A minimum of two of these hours shall be in courses that
emphasize the ethics, standards of practice, or laws governing behavioral
science professions in Virginia.
B. The board may grant an extension for good cause of up to
one year for the completion of continuing competency requirements upon written
request from the licensee prior to the renewal date. Such extension shall not
relieve the licensee of the continuing competency requirement.
C. The board may grant an exemption for all or part of the
continuing competency requirements due to circumstances beyond the control of
the licensee such as temporary disability, mandatory military service, or
officially declared disasters.
D. Those individuals dually licensed by this board will not
be required to obtain continuing competency for each license. Dually licensed
individuals will only be required to provide the hours set out in subsection A
of this section, subsection A of 18VAC115-50-95 in the Regulations Governing
the Practice of Marriage and Family Therapy, or subsection A of 18VAC115-60-115
in the Regulations Governing the Practice of Licensed Substance Abuse Treatment
Practitioners.
E. Up to two hours of the 20 hours required for annual renewal
may be satisfied through delivery of counseling services, without compensation,
to low-income individuals receiving health services through a local health
department or a free clinic organized in whole or primarily for the delivery of
those services. One hour of continuing education may be credited for three
hours of providing such volunteer services, as documented by the health
department or free clinic.
F. A professional counselor who was licensed by
examination is exempt from meeting continuing competency requirements for the
first renewal following initial licensure.
18VAC115-50-95. Continued competency requirements for renewal
of a license.
A. Marriage and family therapists shall be required to have
completed a minimum of 20 hours of continuing competency for each annual
licensure renewal. A minimum of two of these hours shall be in courses that
emphasize the ethics, standards of practice, or laws governing behavioral
science professions in Virginia.
B. The board may grant an extension for good cause of up to
one year for the completion of continuing competency requirements upon written
request from the licensee prior to the renewal date. Such extension shall not
relieve the licensee of the continuing competency requirement.
C. The board may grant an exemption for all or part of the
continuing competency requirements due to circumstances beyond the control of
the licensee such as temporary disability, mandatory military service, or
officially declared disasters.
D. Those individuals dually licensed by this board will not
be required to obtain continuing competency for each license. Dually licensed
individuals will only be required to provide the hours set out in subsection A
of this section, subsection A of 18VAC115-20-105 in the Regulations Governing
the Practice of Professional Counseling, or subsection A of 18VAC115-60-115 in
the Regulations Governing the Practice of Licensed Substance Abuse Treatment
Practitioners.
E. Up to two hours of the 20 hours required for annual
renewal may be satisfied through delivery of counseling services, without
compensation, to low-income individuals receiving health services through a
local health department or a free clinic organized in whole or primarily for
the delivery of those services. One hour of continuing education may be
credited for three hours of providing such volunteer services, as documented by
the health department or free clinic.
F. A marriage and family therapist who was licensed by
examination is exempt from meeting continuing competency requirements for the
first renewal following initial licensure.
18VAC115-60-50. Prerequisites for licensure by endorsement.
A. Every applicant for licensure by endorsement shall
submit:
1. A completed application;
2. The application processing and initial licensure fee as
prescribed in 18VAC115-60-20;
3. Verification of all mental health or health professional
licenses or certificates ever held in any other jurisdiction. In order to
qualify for endorsement, the applicant shall have no unresolved disciplinary
action against a license or certificate. The board will consider history of
disciplinary action on a case-by-case basis;
4. Further documentation of one of the following:
a. A current substance abuse treatment license in good
standing in another jurisdiction obtained by meeting requirements substantially
equivalent to those set forth in this chapter; or
b. A mental health license in good standing in a category
acceptable to the board which that required completion of a
master's degree in mental health to include 60 graduate semester hours in
mental health as documented by an official transcript; and
(1) Board-recognized national certification in substance abuse
treatment;
(2) If the master's degree was in substance abuse treatment,
two years of post-licensure experience in providing substance abuse treatment;
(3) If the master's degree was not in substance abuse
treatment, five years of post-licensure experience in substance abuse treatment
plus 12 credit hours of didactic training in the substance abuse treatment
competencies set forth in 18VAC115-60-70 C as documented by an official
transcript; or
(4) Current substance abuse counselor certification in
Virginia in good standing or a Virginia substance abuse treatment specialty
licensure designation with two years of post-licensure or certification
substance abuse treatment experience; or
c. Documentation of education and supervised experience that met
the requirements of the jurisdiction in which he was initially licensed as
verified by an official transcript and a certified copy of the original
application materials and evidence of post-licensure clinical practice for 24
of the last 60 months immediately preceding his licensure application in
Virginia. Clinical practice shall mean the rendering of direct clinical
substance abuse treatment services or clinical supervision of such services.
5. Verification of a passing score on a substance abuse licensure
examination as established by the jurisdiction in which licensure was obtained.
The examination is waived for an applicant who holds a current and unrestricted
license as a professional counselor within the Commonwealth of Virginia;
6. Official transcripts documenting the applicant's
completion of the education requirements prescribed in 18VAC115-60-60 and
18VAC115-60-70;
7. 6. An affidavit of having read and understood
the regulations and laws governing the practice of substance abuse treatment in
Virginia; and
8. 7. A current report from the U.S. Department
of Health and Human Services National Practitioner Data Bank (NPDB).
B. In lieu of transcripts verifying education and
documentation verifying supervised experience, the board may accept verification
from the credentials registry of the American Association of State Counseling
Boards or any other board-recognized entity.
18VAC115-60-115. Continued competency requirements for renewal
of a license.
A. Licensed substance abuse treatment practitioners shall be
required to have completed a minimum of 20 hours of continuing competency for
each annual licensure renewal. A minimum of two of these hours shall be in
courses that emphasize the ethics, standard of practice, or laws governing
behavioral science professions in Virginia.
B. The board may grant an extension for good cause of up to
one year for the completion of continuing competency requirements upon written
request from the licensee prior to the renewal date. Such extension shall not
relieve the licensee of the continuing competency requirement.
C. The board may grant an exemption for all or part of the
continuing competency requirements due to circumstances beyond the control of
the licensee, such as temporary disability, mandatory military service, or
officially declared disasters.
D. Those individuals dually licensed by this board will not
be required to obtain continuing competency for each license. Dually licensed
individuals will only be required to provide the hours set out in subsection A
of this section, subsection A of 18VAC115-50-95 in the Regulations Governing
the Practice of Marriage and Family Therapy, or subsection A of 18VAC115-20-105
in the Regulations Governing the Practice of Professional Counseling.
E. Up to two hours of the 20 hours required for annual renewal
may be satisfied through delivery of counseling services, without compensation,
to low-income individuals receiving health services through a local health
department or a free clinic organized in whole or primarily for the delivery of
those services. One hour of continuing education may be credited for three
hours of providing such volunteer services, as documented by the health
department or free clinic.
F. A substance abuse treatment practitioner who was
licensed by examination is exempt from meeting continuing competency
requirements for the first renewal following initial licensure.
VA.R. Doc. No. R18-5141; Filed October 16, 2017, 10:33 a.m.
TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING
BOARD OF COUNSELING
Fast-Track Regulation
Titles of Regulations: 18VAC115-20. Regulations
Governing the Practice of Professional Counseling (amending 18VAC115-20-105).
18VAC115-50. Regulations Governing the Practice of Marriage
and Family Therapy (amending 18VAC115-50-95).
18VAC115-60. Regulations Governing the Practice of Licensed
Substance Abuse Treatment Practitioners (amending 18VAC115-60-50, 18VAC115-60-115).
Statutory Authority: § 54.1-2400 of the Code of
Virginia.
Public Hearing Information: No public hearings are
scheduled.
Public Comment Deadline: December 13, 2017.
Effective Date: December 28, 2017.
Agency Contact: Jaime Hoyle, Executive Director, Board
of Counseling, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone
(804) 367-4406, FAX (804) 527-4435, or email jaime.hoyle@dhp.virginia.gov.
Basis: Section 54.1-2400 of the Code of Virginia
provides the Board of Counseling the authority to promulgate regulations to
administer the regulatory system.
Specific authority for regulation of the profession of
counseling is found in § 54.1-3503 of the Code of Virginia, which mandates
that the board regulate the practice of counseling, substance abuse treatment,
and marriage and family therapy; § 54.1-3506 of the Code of Virginia,
which requires individuals who engage in the practice of counseling or marriage
and family therapy or in the independent practice of substance abuse treatment
to hold a license; and § 54.1-103 of the Code of Virginia, which
authorizes the board to promulgate regulations specifying additional training
or conditions for individuals seeking certification or licensure, or for the
renewal of certificates or licenses.
Purpose: The purpose of the amendments is to open a
pathway for those individuals who hold another mental health license to be
licensed in substance abuse treatment if they have specific coursework and
training in the field. With the crisis of substance abuse being experienced in
the Commonwealth, a regulatory action to encourage more treatment providers,
who can offer services as a licensee and supervise the services of certified or
registered providers, may increase access to care and ultimately offer greater
protection for the safety, health, and welfare of all citizens.
The exemption from continuing education for newly licensed
persons will not affect the public health and safety since their competency to
practice has been determined by examination, education, and a supervised
residency within the period immediately prior to licensure.
Rationale for Using Fast-Track Rulemaking Process: The
amendments are permissive and less restrictive than current regulations. They
will benefit first-time licensees and some applicants for licensure by
endorsement for the substance abuse treatment professional license; therefore,
they are not expected to be controversial.
Substance: The amendments (i) provide that a person who
was licensed by examination is exempt from meeting continuing competency
requirements for the first renewal following initial licensure; (ii) eliminate
the requirement for official transcripts documenting completion of all the
education requirements, so an applicant for licensure by endorsement will not
need to obtain an additional master's degree in substance abuse; (iii) require
an official transcript to indicate completion of a 60-hour master's degree in mental
health and completion of 12 hours of didactic training in substance abuse
competencies; and (iv) delete subsection B of 18VAC115-60-50 because the
credentials registry referenced in that subsection no longer exists.
Issues: There are no disadvantages to the public. Less
restrictive regulation for licensure by endorsement for the Licensed Substance
Abuse Treatment Practitioners license may result in more licensed providers to
both deliver and supervise substance abuse services.
There are no advantages or disadvantages to the agency or the
Commonwealth.
Department of Planning and Budget's Economic Impact
Analysis:
Summary of the Proposed Amendments to Regulation. The Board of
Counseling (Board) proposes to 1) eliminate continuing education requirements for
the first renewal of a license issued by examination; and 2) amend the
licensure by endorsement requirements to make it possible for persons who hold
other behavioral health licenses to obtain a substance abuse treatment
professional license.
Result of Analysis. The benefits likely exceed the costs for
all proposed changes.
Estimated Economic Impact. The Board proposes to no longer
require continuing education for the first renewal of a license issued by
examination. This change applies to licensed professional counselors, marriage
and family therapists, and substance abuse treatment practitioners. Currently,
affected professionals are required to complete 20 hours of continuing
education for each yearly license renewal cycle. The requirement could be satisfied
many different ways including taking academic courses, continuing education
classes, participating in workshops, seminars, conferences, publication of
articles, books, etc. The proposed change will provide different types of
benefits to different individuals. Some may benefit not having to pay fees for
courses or classes; some may benefit from not having to spend the time to
complete the activity required; some may benefit from not having to travel;
some may benefit from a combination of all of these choices. The Board has
determined that the exemption from continuing education for newly licensed
persons will not affect the public health and safety since their competency to
practice has been determined by examination, education and a supervised residency
within the period immediately prior to licensure. Thus, this change is expected
to provide a net benefit.
The Board also proposes to delete language requiring
transcripts documenting certain education for licensure by endorsement of
substance abuse treatment practitioners. According to the Department of Health
Professions (DHP), as written, the current requirement amounts to requiring an
additional master's degree in substance abuse as a condition of licensure by
endorsement. That requirement negates the possibility of licensure by
endorsement as it requires the applicants to satisfy the same education
requirements as those who are initially licensed through examination. Thus,
removal of this language will eliminate a barrier to practicing in Virginia if
one has satisfied the educational requirements in another jurisdiction. The
proposed regulation would benefit substance abuse treatment professionals
licensed in another state who are seeking licensure in the Commonwealth.
Additionally, making it easier to obtain licensure may encourage more substance
abuse professionals to come to Virginia to practice. This change opens a new
pathway for those licensed in another jurisdiction who have specific coursework
and training in the field. Therefore, it should not introduce risks of
unqualified applicants becoming licensed in Virginia.
Businesses and Entities Affected. The proposed regulation
applies to licensed professional counselors, marriage and family therapists,
and substance abuse treatment practitioners. DHP reports that in the first nine
months of 2017, there were 443 licenses issued. Most of those were likely first
time licensees and will qualify for an exemption on their first renewal.
Localities Particularly Affected. The proposed regulation will
not affect any particular locality more than others.
Projected Impact on Employment. The proposed elimination of
continuing education during the first renewal cycle will reduce the demand for
such services. The proposed regulation may also encourage substance abuse
treatment professionals licensed in other states to come to Virginia to
practice and increase their supply. However, the magnitude of any such effect
is not known.
Effects on the Use and Value of Private Property. No effect on
the use and value of private property is expected.
Real Estate Development Costs. No impact on real estate
development costs is expected.
Small Businesses:
Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia,
small business is defined as "a business entity, including its affiliates,
that (i) is independently owned and operated and (ii) employs fewer than 500
full-time employees or has gross annual sales of less than $6 million."
Costs and Other Effects. The proposed regulation does not
directly apply to small businesses. However, if an affected practitioner works
for a small business it may be indirectly beneficial to that small business as
the proposed regulation eliminates continuing education requirement in the
first renewal cycle and makes it easier to obtain a substance abuse treatment
license by endorsement. The majority of affected professionals are estimated to
operate their practices within a small business.
Alternative Method that Minimizes Adverse Impact. The proposed
regulation does not introduce an adverse impact on small businesses.
Adverse Impacts:
Businesses. The proposed regulation does not have an adverse
impact on businesses.
Localities. The proposed regulation will not adversely affect
localities.
Other Entities. The proposed regulation will not adversely
affect other entities.
Agency's Response to Economic Impact Analysis: The Board
of Counseling concurs with the analysis of the Department of Planning and
Budget.
Summary:
The amendments (i) eliminate continuing education
requirements for the first renewal of a license issued by examination for
licensed professional counselors, marriage and family therapists, and substance
abuse treatment practitioners; and (ii) amend the licensure by endorsement
requirements to make it possible for persons who hold other behavioral health
licenses to obtain a substance abuse treatment professional license.
18VAC115-20-105. Continued competency requirements for renewal
of a license.
A. Licensed professional counselors shall be required to have
completed a minimum of 20 hours of continuing competency for each annual
licensure renewal. A minimum of two of these hours shall be in courses that
emphasize the ethics, standards of practice, or laws governing behavioral
science professions in Virginia.
B. The board may grant an extension for good cause of up to
one year for the completion of continuing competency requirements upon written
request from the licensee prior to the renewal date. Such extension shall not
relieve the licensee of the continuing competency requirement.
C. The board may grant an exemption for all or part of the
continuing competency requirements due to circumstances beyond the control of
the licensee such as temporary disability, mandatory military service, or
officially declared disasters.
D. Those individuals dually licensed by this board will not
be required to obtain continuing competency for each license. Dually licensed
individuals will only be required to provide the hours set out in subsection A
of this section, subsection A of 18VAC115-50-95 in the Regulations Governing
the Practice of Marriage and Family Therapy, or subsection A of 18VAC115-60-115
in the Regulations Governing the Practice of Licensed Substance Abuse Treatment
Practitioners.
E. Up to two hours of the 20 hours required for annual renewal
may be satisfied through delivery of counseling services, without compensation,
to low-income individuals receiving health services through a local health
department or a free clinic organized in whole or primarily for the delivery of
those services. One hour of continuing education may be credited for three
hours of providing such volunteer services, as documented by the health
department or free clinic.
F. A professional counselor who was licensed by
examination is exempt from meeting continuing competency requirements for the
first renewal following initial licensure.
18VAC115-50-95. Continued competency requirements for renewal
of a license.
A. Marriage and family therapists shall be required to have
completed a minimum of 20 hours of continuing competency for each annual
licensure renewal. A minimum of two of these hours shall be in courses that
emphasize the ethics, standards of practice, or laws governing behavioral
science professions in Virginia.
B. The board may grant an extension for good cause of up to
one year for the completion of continuing competency requirements upon written
request from the licensee prior to the renewal date. Such extension shall not
relieve the licensee of the continuing competency requirement.
C. The board may grant an exemption for all or part of the
continuing competency requirements due to circumstances beyond the control of
the licensee such as temporary disability, mandatory military service, or
officially declared disasters.
D. Those individuals dually licensed by this board will not
be required to obtain continuing competency for each license. Dually licensed
individuals will only be required to provide the hours set out in subsection A
of this section, subsection A of 18VAC115-20-105 in the Regulations Governing
the Practice of Professional Counseling, or subsection A of 18VAC115-60-115 in
the Regulations Governing the Practice of Licensed Substance Abuse Treatment
Practitioners.
E. Up to two hours of the 20 hours required for annual
renewal may be satisfied through delivery of counseling services, without
compensation, to low-income individuals receiving health services through a
local health department or a free clinic organized in whole or primarily for
the delivery of those services. One hour of continuing education may be
credited for three hours of providing such volunteer services, as documented by
the health department or free clinic.
F. A marriage and family therapist who was licensed by
examination is exempt from meeting continuing competency requirements for the
first renewal following initial licensure.
18VAC115-60-50. Prerequisites for licensure by endorsement.
A. Every applicant for licensure by endorsement shall
submit:
1. A completed application;
2. The application processing and initial licensure fee as
prescribed in 18VAC115-60-20;
3. Verification of all mental health or health professional
licenses or certificates ever held in any other jurisdiction. In order to
qualify for endorsement, the applicant shall have no unresolved disciplinary
action against a license or certificate. The board will consider history of
disciplinary action on a case-by-case basis;
4. Further documentation of one of the following:
a. A current substance abuse treatment license in good
standing in another jurisdiction obtained by meeting requirements substantially
equivalent to those set forth in this chapter; or
b. A mental health license in good standing in a category
acceptable to the board which that required completion of a
master's degree in mental health to include 60 graduate semester hours in
mental health as documented by an official transcript; and
(1) Board-recognized national certification in substance abuse
treatment;
(2) If the master's degree was in substance abuse treatment,
two years of post-licensure experience in providing substance abuse treatment;
(3) If the master's degree was not in substance abuse
treatment, five years of post-licensure experience in substance abuse treatment
plus 12 credit hours of didactic training in the substance abuse treatment
competencies set forth in 18VAC115-60-70 C as documented by an official
transcript; or
(4) Current substance abuse counselor certification in
Virginia in good standing or a Virginia substance abuse treatment specialty
licensure designation with two years of post-licensure or certification
substance abuse treatment experience; or
c. Documentation of education and supervised experience that met
the requirements of the jurisdiction in which he was initially licensed as
verified by an official transcript and a certified copy of the original
application materials and evidence of post-licensure clinical practice for 24
of the last 60 months immediately preceding his licensure application in
Virginia. Clinical practice shall mean the rendering of direct clinical
substance abuse treatment services or clinical supervision of such services.
5. Verification of a passing score on a substance abuse licensure
examination as established by the jurisdiction in which licensure was obtained.
The examination is waived for an applicant who holds a current and unrestricted
license as a professional counselor within the Commonwealth of Virginia;
6. Official transcripts documenting the applicant's
completion of the education requirements prescribed in 18VAC115-60-60 and
18VAC115-60-70;
7. 6. An affidavit of having read and understood
the regulations and laws governing the practice of substance abuse treatment in
Virginia; and
8. 7. A current report from the U.S. Department
of Health and Human Services National Practitioner Data Bank (NPDB).
B. In lieu of transcripts verifying education and
documentation verifying supervised experience, the board may accept verification
from the credentials registry of the American Association of State Counseling
Boards or any other board-recognized entity.
18VAC115-60-115. Continued competency requirements for renewal
of a license.
A. Licensed substance abuse treatment practitioners shall be
required to have completed a minimum of 20 hours of continuing competency for
each annual licensure renewal. A minimum of two of these hours shall be in
courses that emphasize the ethics, standard of practice, or laws governing
behavioral science professions in Virginia.
B. The board may grant an extension for good cause of up to
one year for the completion of continuing competency requirements upon written
request from the licensee prior to the renewal date. Such extension shall not
relieve the licensee of the continuing competency requirement.
C. The board may grant an exemption for all or part of the
continuing competency requirements due to circumstances beyond the control of
the licensee, such as temporary disability, mandatory military service, or
officially declared disasters.
D. Those individuals dually licensed by this board will not
be required to obtain continuing competency for each license. Dually licensed
individuals will only be required to provide the hours set out in subsection A
of this section, subsection A of 18VAC115-50-95 in the Regulations Governing
the Practice of Marriage and Family Therapy, or subsection A of 18VAC115-20-105
in the Regulations Governing the Practice of Professional Counseling.
E. Up to two hours of the 20 hours required for annual renewal
may be satisfied through delivery of counseling services, without compensation,
to low-income individuals receiving health services through a local health
department or a free clinic organized in whole or primarily for the delivery of
those services. One hour of continuing education may be credited for three
hours of providing such volunteer services, as documented by the health
department or free clinic.
F. A substance abuse treatment practitioner who was
licensed by examination is exempt from meeting continuing competency
requirements for the first renewal following initial licensure.
VA.R. Doc. No. R18-5141; Filed October 16, 2017, 10:33 a.m.
TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING
BOARD OF COUNSELING
Fast-Track Regulation
Titles of Regulations: 18VAC115-20. Regulations
Governing the Practice of Professional Counseling (amending 18VAC115-20-105).
18VAC115-50. Regulations Governing the Practice of Marriage
and Family Therapy (amending 18VAC115-50-95).
18VAC115-60. Regulations Governing the Practice of Licensed
Substance Abuse Treatment Practitioners (amending 18VAC115-60-50, 18VAC115-60-115).
Statutory Authority: § 54.1-2400 of the Code of
Virginia.
Public Hearing Information: No public hearings are
scheduled.
Public Comment Deadline: December 13, 2017.
Effective Date: December 28, 2017.
Agency Contact: Jaime Hoyle, Executive Director, Board
of Counseling, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone
(804) 367-4406, FAX (804) 527-4435, or email jaime.hoyle@dhp.virginia.gov.
Basis: Section 54.1-2400 of the Code of Virginia
provides the Board of Counseling the authority to promulgate regulations to
administer the regulatory system.
Specific authority for regulation of the profession of
counseling is found in § 54.1-3503 of the Code of Virginia, which mandates
that the board regulate the practice of counseling, substance abuse treatment,
and marriage and family therapy; § 54.1-3506 of the Code of Virginia,
which requires individuals who engage in the practice of counseling or marriage
and family therapy or in the independent practice of substance abuse treatment
to hold a license; and § 54.1-103 of the Code of Virginia, which
authorizes the board to promulgate regulations specifying additional training
or conditions for individuals seeking certification or licensure, or for the
renewal of certificates or licenses.
Purpose: The purpose of the amendments is to open a
pathway for those individuals who hold another mental health license to be
licensed in substance abuse treatment if they have specific coursework and
training in the field. With the crisis of substance abuse being experienced in
the Commonwealth, a regulatory action to encourage more treatment providers,
who can offer services as a licensee and supervise the services of certified or
registered providers, may increase access to care and ultimately offer greater
protection for the safety, health, and welfare of all citizens.
The exemption from continuing education for newly licensed
persons will not affect the public health and safety since their competency to
practice has been determined by examination, education, and a supervised
residency within the period immediately prior to licensure.
Rationale for Using Fast-Track Rulemaking Process: The
amendments are permissive and less restrictive than current regulations. They
will benefit first-time licensees and some applicants for licensure by
endorsement for the substance abuse treatment professional license; therefore,
they are not expected to be controversial.
Substance: The amendments (i) provide that a person who
was licensed by examination is exempt from meeting continuing competency
requirements for the first renewal following initial licensure; (ii) eliminate
the requirement for official transcripts documenting completion of all the
education requirements, so an applicant for licensure by endorsement will not
need to obtain an additional master's degree in substance abuse; (iii) require
an official transcript to indicate completion of a 60-hour master's degree in mental
health and completion of 12 hours of didactic training in substance abuse
competencies; and (iv) delete subsection B of 18VAC115-60-50 because the
credentials registry referenced in that subsection no longer exists.
Issues: There are no disadvantages to the public. Less
restrictive regulation for licensure by endorsement for the Licensed Substance
Abuse Treatment Practitioners license may result in more licensed providers to
both deliver and supervise substance abuse services.
There are no advantages or disadvantages to the agency or the
Commonwealth.
Department of Planning and Budget's Economic Impact
Analysis:
Summary of the Proposed Amendments to Regulation. The Board of
Counseling (Board) proposes to 1) eliminate continuing education requirements for
the first renewal of a license issued by examination; and 2) amend the
licensure by endorsement requirements to make it possible for persons who hold
other behavioral health licenses to obtain a substance abuse treatment
professional license.
Result of Analysis. The benefits likely exceed the costs for
all proposed changes.
Estimated Economic Impact. The Board proposes to no longer
require continuing education for the first renewal of a license issued by
examination. This change applies to licensed professional counselors, marriage
and family therapists, and substance abuse treatment practitioners. Currently,
affected professionals are required to complete 20 hours of continuing
education for each yearly license renewal cycle. The requirement could be satisfied
many different ways including taking academic courses, continuing education
classes, participating in workshops, seminars, conferences, publication of
articles, books, etc. The proposed change will provide different types of
benefits to different individuals. Some may benefit not having to pay fees for
courses or classes; some may benefit from not having to spend the time to
complete the activity required; some may benefit from not having to travel;
some may benefit from a combination of all of these choices. The Board has
determined that the exemption from continuing education for newly licensed
persons will not affect the public health and safety since their competency to
practice has been determined by examination, education and a supervised residency
within the period immediately prior to licensure. Thus, this change is expected
to provide a net benefit.
The Board also proposes to delete language requiring
transcripts documenting certain education for licensure by endorsement of
substance abuse treatment practitioners. According to the Department of Health
Professions (DHP), as written, the current requirement amounts to requiring an
additional master's degree in substance abuse as a condition of licensure by
endorsement. That requirement negates the possibility of licensure by
endorsement as it requires the applicants to satisfy the same education
requirements as those who are initially licensed through examination. Thus,
removal of this language will eliminate a barrier to practicing in Virginia if
one has satisfied the educational requirements in another jurisdiction. The
proposed regulation would benefit substance abuse treatment professionals
licensed in another state who are seeking licensure in the Commonwealth.
Additionally, making it easier to obtain licensure may encourage more substance
abuse professionals to come to Virginia to practice. This change opens a new
pathway for those licensed in another jurisdiction who have specific coursework
and training in the field. Therefore, it should not introduce risks of
unqualified applicants becoming licensed in Virginia.
Businesses and Entities Affected. The proposed regulation
applies to licensed professional counselors, marriage and family therapists,
and substance abuse treatment practitioners. DHP reports that in the first nine
months of 2017, there were 443 licenses issued. Most of those were likely first
time licensees and will qualify for an exemption on their first renewal.
Localities Particularly Affected. The proposed regulation will
not affect any particular locality more than others.
Projected Impact on Employment. The proposed elimination of
continuing education during the first renewal cycle will reduce the demand for
such services. The proposed regulation may also encourage substance abuse
treatment professionals licensed in other states to come to Virginia to
practice and increase their supply. However, the magnitude of any such effect
is not known.
Effects on the Use and Value of Private Property. No effect on
the use and value of private property is expected.
Real Estate Development Costs. No impact on real estate
development costs is expected.
Small Businesses:
Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia,
small business is defined as "a business entity, including its affiliates,
that (i) is independently owned and operated and (ii) employs fewer than 500
full-time employees or has gross annual sales of less than $6 million."
Costs and Other Effects. The proposed regulation does not
directly apply to small businesses. However, if an affected practitioner works
for a small business it may be indirectly beneficial to that small business as
the proposed regulation eliminates continuing education requirement in the
first renewal cycle and makes it easier to obtain a substance abuse treatment
license by endorsement. The majority of affected professionals are estimated to
operate their practices within a small business.
Alternative Method that Minimizes Adverse Impact. The proposed
regulation does not introduce an adverse impact on small businesses.
Adverse Impacts:
Businesses. The proposed regulation does not have an adverse
impact on businesses.
Localities. The proposed regulation will not adversely affect
localities.
Other Entities. The proposed regulation will not adversely
affect other entities.
Agency's Response to Economic Impact Analysis: The Board
of Counseling concurs with the analysis of the Department of Planning and
Budget.
Summary:
The amendments (i) eliminate continuing education
requirements for the first renewal of a license issued by examination for
licensed professional counselors, marriage and family therapists, and substance
abuse treatment practitioners; and (ii) amend the licensure by endorsement
requirements to make it possible for persons who hold other behavioral health
licenses to obtain a substance abuse treatment professional license.
18VAC115-20-105. Continued competency requirements for renewal
of a license.
A. Licensed professional counselors shall be required to have
completed a minimum of 20 hours of continuing competency for each annual
licensure renewal. A minimum of two of these hours shall be in courses that
emphasize the ethics, standards of practice, or laws governing behavioral
science professions in Virginia.
B. The board may grant an extension for good cause of up to
one year for the completion of continuing competency requirements upon written
request from the licensee prior to the renewal date. Such extension shall not
relieve the licensee of the continuing competency requirement.
C. The board may grant an exemption for all or part of the
continuing competency requirements due to circumstances beyond the control of
the licensee such as temporary disability, mandatory military service, or
officially declared disasters.
D. Those individuals dually licensed by this board will not
be required to obtain continuing competency for each license. Dually licensed
individuals will only be required to provide the hours set out in subsection A
of this section, subsection A of 18VAC115-50-95 in the Regulations Governing
the Practice of Marriage and Family Therapy, or subsection A of 18VAC115-60-115
in the Regulations Governing the Practice of Licensed Substance Abuse Treatment
Practitioners.
E. Up to two hours of the 20 hours required for annual renewal
may be satisfied through delivery of counseling services, without compensation,
to low-income individuals receiving health services through a local health
department or a free clinic organized in whole or primarily for the delivery of
those services. One hour of continuing education may be credited for three
hours of providing such volunteer services, as documented by the health
department or free clinic.
F. A professional counselor who was licensed by
examination is exempt from meeting continuing competency requirements for the
first renewal following initial licensure.
18VAC115-50-95. Continued competency requirements for renewal
of a license.
A. Marriage and family therapists shall be required to have
completed a minimum of 20 hours of continuing competency for each annual
licensure renewal. A minimum of two of these hours shall be in courses that
emphasize the ethics, standards of practice, or laws governing behavioral
science professions in Virginia.
B. The board may grant an extension for good cause of up to
one year for the completion of continuing competency requirements upon written
request from the licensee prior to the renewal date. Such extension shall not
relieve the licensee of the continuing competency requirement.
C. The board may grant an exemption for all or part of the
continuing competency requirements due to circumstances beyond the control of
the licensee such as temporary disability, mandatory military service, or
officially declared disasters.
D. Those individuals dually licensed by this board will not
be required to obtain continuing competency for each license. Dually licensed
individuals will only be required to provide the hours set out in subsection A
of this section, subsection A of 18VAC115-20-105 in the Regulations Governing
the Practice of Professional Counseling, or subsection A of 18VAC115-60-115 in
the Regulations Governing the Practice of Licensed Substance Abuse Treatment
Practitioners.
E. Up to two hours of the 20 hours required for annual
renewal may be satisfied through delivery of counseling services, without
compensation, to low-income individuals receiving health services through a
local health department or a free clinic organized in whole or primarily for
the delivery of those services. One hour of continuing education may be
credited for three hours of providing such volunteer services, as documented by
the health department or free clinic.
F. A marriage and family therapist who was licensed by
examination is exempt from meeting continuing competency requirements for the
first renewal following initial licensure.
18VAC115-60-50. Prerequisites for licensure by endorsement.
A. Every applicant for licensure by endorsement shall
submit:
1. A completed application;
2. The application processing and initial licensure fee as
prescribed in 18VAC115-60-20;
3. Verification of all mental health or health professional
licenses or certificates ever held in any other jurisdiction. In order to
qualify for endorsement, the applicant shall have no unresolved disciplinary
action against a license or certificate. The board will consider history of
disciplinary action on a case-by-case basis;
4. Further documentation of one of the following:
a. A current substance abuse treatment license in good
standing in another jurisdiction obtained by meeting requirements substantially
equivalent to those set forth in this chapter; or
b. A mental health license in good standing in a category
acceptable to the board which that required completion of a
master's degree in mental health to include 60 graduate semester hours in
mental health as documented by an official transcript; and
(1) Board-recognized national certification in substance abuse
treatment;
(2) If the master's degree was in substance abuse treatment,
two years of post-licensure experience in providing substance abuse treatment;
(3) If the master's degree was not in substance abuse
treatment, five years of post-licensure experience in substance abuse treatment
plus 12 credit hours of didactic training in the substance abuse treatment
competencies set forth in 18VAC115-60-70 C as documented by an official
transcript; or
(4) Current substance abuse counselor certification in
Virginia in good standing or a Virginia substance abuse treatment specialty
licensure designation with two years of post-licensure or certification
substance abuse treatment experience; or
c. Documentation of education and supervised experience that met
the requirements of the jurisdiction in which he was initially licensed as
verified by an official transcript and a certified copy of the original
application materials and evidence of post-licensure clinical practice for 24
of the last 60 months immediately preceding his licensure application in
Virginia. Clinical practice shall mean the rendering of direct clinical
substance abuse treatment services or clinical supervision of such services.
5. Verification of a passing score on a substance abuse licensure
examination as established by the jurisdiction in which licensure was obtained.
The examination is waived for an applicant who holds a current and unrestricted
license as a professional counselor within the Commonwealth of Virginia;
6. Official transcripts documenting the applicant's
completion of the education requirements prescribed in 18VAC115-60-60 and
18VAC115-60-70;
7. 6. An affidavit of having read and understood
the regulations and laws governing the practice of substance abuse treatment in
Virginia; and
8. 7. A current report from the U.S. Department
of Health and Human Services National Practitioner Data Bank (NPDB).
B. In lieu of transcripts verifying education and
documentation verifying supervised experience, the board may accept verification
from the credentials registry of the American Association of State Counseling
Boards or any other board-recognized entity.
18VAC115-60-115. Continued competency requirements for renewal
of a license.
A. Licensed substance abuse treatment practitioners shall be
required to have completed a minimum of 20 hours of continuing competency for
each annual licensure renewal. A minimum of two of these hours shall be in
courses that emphasize the ethics, standard of practice, or laws governing
behavioral science professions in Virginia.
B. The board may grant an extension for good cause of up to
one year for the completion of continuing competency requirements upon written
request from the licensee prior to the renewal date. Such extension shall not
relieve the licensee of the continuing competency requirement.
C. The board may grant an exemption for all or part of the
continuing competency requirements due to circumstances beyond the control of
the licensee, such as temporary disability, mandatory military service, or
officially declared disasters.
D. Those individuals dually licensed by this board will not
be required to obtain continuing competency for each license. Dually licensed
individuals will only be required to provide the hours set out in subsection A
of this section, subsection A of 18VAC115-50-95 in the Regulations Governing
the Practice of Marriage and Family Therapy, or subsection A of 18VAC115-20-105
in the Regulations Governing the Practice of Professional Counseling.
E. Up to two hours of the 20 hours required for annual renewal
may be satisfied through delivery of counseling services, without compensation,
to low-income individuals receiving health services through a local health
department or a free clinic organized in whole or primarily for the delivery of
those services. One hour of continuing education may be credited for three
hours of providing such volunteer services, as documented by the health
department or free clinic.
F. A substance abuse treatment practitioner who was
licensed by examination is exempt from meeting continuing competency
requirements for the first renewal following initial licensure.
VA.R. Doc. No. R18-5141; Filed October 16, 2017, 10:33 a.m.
TITLE 19. PUBLIC SAFETY
DEPARTMENT OF STATE POLICE
Final Regulation
REGISTRAR'S NOTICE: The
following regulatory action is exempt from Article 2 of the Administrative
Process Act in accordance with § 2.2-4006 A 4 c of the Code of Virginia,
which excludes regulations that are necessary to meet the requirements of
federal law or regulations, provided such regulations do not differ materially
from those required by federal law or regulation. The Department of State
Police will receive, consider, and respond to petitions by any interested
person at any time with respect to reconsideration or revision.
Title of Regulation: 19VAC30-20. Motor Carrier Safety
Regulations (amending 19VAC30-20-80).
Statutory Authority: § 52-8.4 of the Code of
Virginia; 49 CFR Part 390.
Effective Date: December 14, 2017.
Agency Contact: Kirk Marlowe, Regulatory Coordinator,
Bureau of Administrative and Support Services, Department of State Police, P.O.
Box 27472, Richmond, VA 23261-7472, telephone (804) 674-4606, FAX (804)
674-2936, or email kirk.marlowe@vsp.virginia.gov.
Summary:
The amendment reflects the effective date of the Federal
Motor Carrier Safety Regulations promulgated by the U.S. Department of
Transportation, Federal Motor Carrier Safety Administration that are
incorporated for compliance purposes.
19VAC30-20-80. Compliance.
Every person and commercial motor vehicle subject to the
Motor Carrier Safety Regulations operating in interstate or intrastate commerce
within or through the Commonwealth of Virginia shall comply with the Federal
Motor Carrier Safety Regulations promulgated by the United States Department of
Transportation, Federal Motor Carrier Safety Administration, with amendments
promulgated and in effect as of January 1, 2010 November 1, 2017,
pursuant to the United States Motor Carrier Safety Act found in 49 CFR Parts
366, 370 through 376, 379, 380 Subpart E, 382, 385, 386 Subpart G, 387, 390
through 397, and 399, which are incorporated in these regulations by reference,
with certain exceptions.
VA.R. Doc. No. R18-5332; Filed October 25, 2017, 9:46 a.m.
TITLE 21. SECURITIES AND RETAIL FRANCHISING
STATE CORPORATION COMMISSION
Proposed Regulation
REGISTRAR'S NOTICE: The
State Corporation Commission is claiming an exemption from the Administrative
Process Act in accordance with § 2.2-4002 A 2 of the Code of Virginia,
which exempts courts, any agency of the Supreme Court, and any agency that by
the Constitution is expressly granted any of the powers of a court of record.
Title of Regulation: 21VAC5-110. Retail Franchising
Act Rules (amending 21VAC5-110-75).
Statutory Authority: §§ 12.1-13 and 13.1-572 of the
Code of Virginia.
Public Hearing Information: A public hearing will be
held upon request.
Public Comment Deadline: December 1, 2017.
Agency Contact: Jude C. Richnafsky, Senior Examiner,
Division of Securities and Retail Franchising, State Corporation Commission,
Tyler Building, 1300 East Main Street, 9th Floor, P.O. Box 1197, Richmond, VA
23218, telephone (804) 371-9051, FAX (804) 371-9911, or email
jude.richnafsky@scc.virginia.gov.
Summary:
The proposed amendments (i) provide an exemption for
franchisors who offer or sell a single unit franchise in which the minimum
initial investment is in excess of $5 million; (ii) require the filing of a
notice of claim exemption on Form H, a uniform consent to service of process,
and an entity resolution, if applicable; (iii) require the filing of a copy of
the franchise disclosure document on a CD-ROM in pdf format or other approved
electronic media; and (iv) establish an initial exemption filing fee of $500, a
renewal fee of $250, and a material amendment fee of $100.
AT RICHMOND, OCTOBER 11, 2017
COMMONWEALTH OF VIRGINIA, ex rel.
STATE CORPORATION COMMISSION
CASE NO. SEC-2017-00050
Ex Parte: In the matter of
Adopting a Revision to the Rules
Governing the Virginia Retail Franchising Act
ORDER TO TAKE NOTICE
Section 12.1-13 of the Code of Virginia ("Code")
provides that the State Corporation Commission ("Commission") shall
have the power to promulgate rules and regulations in the enforcement and
administration of all laws within its jurisdiction. Section 13.1-572 of the
Virginia Retail Franchising Act ("Act"), § 13.1-501 et seq. of
the Code provides that the Commission may issue any rules and regulations
necessary or appropriate for the administration and enforcement of the Act.
The rules and regulations issued by the Commission pursuant
to the Act are set forth in Title 21 of the Virginia Administrative Code. A
copy also may be found at the Commission's website:
http://www.scc.virginia.gov/case.
Proposed Revision to Chapter 110. Franchise Exemption for
Substantial Investment in a Franchise.
The proposed amendment to Chapter 110 provides for an
exemption for franchisors that offer or sell a single unit franchise in which
the actual minimum initial investment is in excess of $5 million. This
exemption requires that the franchisor provide all of the substantial purchaser
information required by the registration process but allows the franchisor in
these large transactions the flexibility to conduct the extensive negotiations
required without the additional layer of the registration process.
The proposed rule requires a notice filing on Form H, a
uniform consent to service of process, an entity resolution, a CD-Rom or other
approved electronic media in PDF format of the franchisor's franchise
disclosure document ("FDD"), and a $500 filing fee. A material
amendment of the FDD requires that the franchisor file a new Form H, a new FDD
and a filing fee of $100. The exemption must be renewed annually with a new
Form H, the new FDD, and a filing fee of $250.
The Division recommended to the Commission that the proposed
revisions should be considered for adoption. The Division also has recommended
to the Commission that a hearing should be held only if requested by those
interested parties who specifically indicate that a hearing is necessary and
the reasons therefore.
A copy of the proposed revisions may be requested by
interested parties from the Division by telephone, by regular mail or e-mail
request and also can be found at the Division's website:
http://www.scc.virginia.gov/srf. Any comments to the proposed rules must be
received by December 1, 2017.
Accordingly, IT IS ORDERED THAT:
(1) The proposed revisions are appended hereto and made a
part of the record herein.
(2) On or before December 1, 2017, comments or request for
hearing on the proposed revisions must be submitted in writing to Joel H. Peck,
Clerk, State Corporation Commission, c/o Document Control Center, P.O. Box
2118, Richmond, Virginia 23218. Requests for hearing shall state why a hearing
is necessary and why the issues cannot be adequately addressed in written
comments. All correspondence shall reference Case No. SEC-2017-00050.
Interested persons desiring to submit comments electronically may do so by
following the instructions available at the Commission's website:
http://www.scc.virginia.gov/case.
(3) The proposed revisions shall be posted on the
Commission's website at http://www.scc.virginia.gov/case and on the Division's
website at http://www.scc.virginia.gov/srf. Interested persons also may request
a copy of the proposed revisions from the Division by telephone, mail, or
e-mail.
AN ATTESTED COPY hereof, together with a copy of the proposed
revisions, shall be provided to the Registrar of Regulations for appropriate
publication in the Virginia Register of Regulations.
AN ATTESTED COPY hereof shall be sent to the Director of the
Division of Securities and Retail Franchising who shall forthwith provide
notice of this Order via U.S. mail or a copy of this Order may be sent by
e-mail to any interested persons as he may designate.
21VAC5-110-75. Exemptions.
Any offer or sale of a franchise in a transaction that meets the
requirements of this section is exempt from the registration requirement of
§ 13.1-560 of the Act.
1. Sale or transfer by existing franchisee. The sale or
transfer of a franchise by a franchisee who is not an affiliate of the
franchisor for the franchisee's own account is exempt if:
a. The franchisee's entire franchise is sold or transferred,
and the sale or transfer is not effected by or through the franchisor.
b. The sale or transfer is not effected by or through a
franchisor merely because a franchisor has a right to approve or disapprove the
sale or transfer or requires payment of a reasonable transfer fee.
2. Renewal or extension of existing franchise. The offer or
sale of a franchise involving a renewal or extension of an existing franchise
where there is no interruption in the operation of the franchised business, and
there is no material change in the franchise relationship, is exempt. For
purposes of this subdivision, an interruption in the franchised business solely
for the purpose of renovating or relocating that business is not a material
change in the franchise relationship or an interruption in the operation of the
franchised business.
3. Offers and sales to existing franchisees. The offer or sale
of an additional franchise to an existing franchisee of the franchisor for the
franchisee's own account is exempt if the franchise being sold is substantially
the same as the franchise that the franchisee has operated for at least two
years at the time of the offer or sale of the franchise, provided the prior
sale to the franchisee was pursuant to a franchise offering that was registered
or exempt pursuant to the requirements of the Act.
4. Seasoned franchisor.
a. The offer or sale of a franchise by a franchisor is exempt
if:
(1) The franchisor has a net equity, according to its most
recently audited financial statements, of not less than $15,000,000 $15
million on a consolidated basis, or $1,000,000 $1 million on
an unaudited basis and is at least 80% owned by a corporation or entity that
has a net equity, on a consolidated basis, according to its most recently
audited financial statements, of not less than $15,000,000 $15
million, and the 80% owner guarantees the performance of the franchisor's
obligations;
(2) The auditor's report accompanying the audited financial
statements described in subdivision 4 a (1) of this section does not contain an
explanatory paragraph expressing doubt as to the entity's ability to continue
as a going concern; and
(3) The franchisor or any 80% owner of the franchisor or the
franchisor's predecessor, or any combination thereof, has had at least 25
franchisees conducting substantially the same franchise business to be
offered or sold for the entire five-year period immediately preceding the offer
or sale;
b. The exemption set forth in this subdivision 4 of
this section may be claimed only if the franchisor:
(1) Files a Form H Notice of Claim of Exemption and other
material as set forth in subdivision 7 8 of this section no later
than 10 business days before the offer or sale of any franchise; and
(2) Submits financial statements demonstrating compliance with
the conditions set forth in subdivision 4 a (1) of this section.
c. An initial exemption filing and any renewal filing shall
expire after a period of one year. The franchisor shall file for a renewal by
making an exemption filing if it intends to offer or sell franchises for any
additional period annually, at least 10 business days before the expiration of
the previously filed Notice of Claim of Exemption.
5. Institutional franchisee.
a. The offer or sale of a franchise to a bank, savings bank,
savings and loan association, trust company, insurance company, investment
company, or other financial institution, or to a broker-dealer is exempt when
the:
(1) Purchaser is acting for itself or in a fiduciary capacity;
and
(2) Franchise is not being purchased for the purpose of resale
to an individual not exempt under this regulation.
b. The exemption set forth in subdivision 5 a of this section
may be claimed only if the franchisor files an initial filing Form H, Notice of
Claim of Exemption, and other material as set forth in subdivision 7 8
a of this section, at least 10 business days before each offer or sale of each
franchise.
6. Substantial investment.
a. The offer or sale of a franchise by a franchisor is
exempt if:
(1) The offer or sale is of a single unit franchise in
which the actual minimum initial investment is in excess of $5 million;
(2) The prospective franchisee is represented by legal counsel
in the transaction; and
(3) The franchisor reasonably believes immediately before
making the offer or sale that the prospective franchisee, either alone or with
the prospective franchisee's representative, has sufficient knowledge and
experience in the type of business operated under the franchise such that the
prospective franchisee is capable of evaluating the merits and risks of the
prospective franchise investment.
b. The exemption set forth in subdivision 6 a of this
section may be claimed only if the franchisor:
(1) Files a Form H, Notice of Claim of Exemption, and other
materials as set forth in subdivision 8 of this section no later than 10
business days before the offer or sale of any franchise; and
(2) Obtains from the prospective franchisee a signed
certification verifying the grounds for the exemption.
c. The exemption set forth in subdivision 6 a of this
section applies only to the registration provisions, and not the disclosure
provisions, of the Act.
d. An initial exemption filing and any renewal filing shall
expire after a period of one year. The franchisor shall file for a renewal by
making an exemption filing if it intends to offer or sell franchises for any
additional period annually at least 10 business days before the expiration of
the previously filed Form H, Notice of Claim of Exemption.
6. 7. Disclosure requirements.
a. If a franchisor relies upon any of the
exemptions set forth in subdivision 3, 4 or, 5, or 6 of
this section, the franchisor shall provide a disclosure document complying with
21VAC5-110-55 and 21VAC5-110-95 together with all proposed agreements relating
to the sale of the franchise to a prospective franchisee 14 calendar days
before the signing of the agreement or the payment of any consideration.
b. Franchisors filing a claim of exemption under
subdivisions 4 or 5 of this section shall include a self-addressed stamped
envelope by which the commission may return to the franchisor a confirmation of
receipt of the filing and the exemption file number assigned. Correspondence
shall refer to the assigned file number in all subsequent related filings and
correspondence with the commission.
7. 8. Filing requirements for exemptions set
forth in subdivisions 4 and, 5, and 6 of this section.
a. Initial exemption filing.
(1) The initial exemption period shall expire after a period
of one year.
(2) Franchisor The franchisor files an
application for exemption of a franchise by filing with the commission no later
than 10 business days before the offer or sale of any franchise, the following
completed forms and other material:
(a) Notice of Claim of Exemption, Form H;
(b) Uniform Consent to Service of Process, Form C;
(c) If the applicant is a corporation or partnership, an
authorizing resolution is required if the application is verified by a person
other than applicant's officer or general partner;
(d) Franchise Disclosure Document on a CD-ROM in PDF format
or on other electronic media approved by the Division of Securities and Retail
Franchising;
(e) Files an An undertaking by which it agrees
to supply any additional information the commission may reasonably request; and
(f) Application fee of $500 (payable to the Treasurer of
Virginia).
b. Amendment to exemption filing.
(1) Upon the occurrence of a material change, the franchisor
shall amend the effective exemption filed at the commission.
(2) An application to amend a franchise exemption is made by
submitting the following completed forms and other material:
(a) Notice of Claim of Exemption, Form H;
(b) One clean copy of the amended Franchise Disclosure
Document on a CD-ROM in PDF format or on other electronic media approved by
the Division of Securities and Retail Franchising; and
(c) Application fee of $100 (payable to the Treasurer of
Virginia).
c. Renewal exemption filing.
(1) A franchise exemption expires at midnight on the annual
exemption effective date. An application to renew the franchise exemption shall
be filed 10 days prior to the expiration date in order to prevent a lapse of
exemption under the Act.
(2) An application for renewal of a franchise exemption is
made by submitting the following completed forms and other material:
(a) Notice of Claim of Exemption, Form H;
(b) One clean copy of the Franchise Disclosure Document on
a CD-ROM in PDF format or on other electronic media approved by the Division of
Securities and Retail Franchising; and
(c) Application fee of $250 (payable to the Treasurer of
Virginia).
NOTICE: The following
forms used in administering the regulation were filed by the agency. The forms
are not being published; however, online users of this issue of the Virginia
Register of Regulations may click on the name of a form with a hyperlink to
access it. The forms are also available from the agency contact or may be
viewed at the Office of the Registrar of Regulations, 900 East Main Street,
11th Floor, Richmond, Virginia 23219.
FORMS (21VAC5-110)
FORM A, Uniform Franchise Registration Application
(rev. 7/08).
FORM B, Franchisor's Costs and Sources of Funds
(rev. 7/08).
FORM C, Uniform Consent to Service of Process
(rev. 7/08).
FORM E, Affidavit of Compliance -- Franchise
Amendment/Renewal (rev. 7/08).
FORM F, Guarantee of Performance (rev. 3/13).
FORM G, Franchisor's Surety Bond (rev. 7/99).
FORM H, Notice of Claim of Exemption (rev. 7/08).
FORM
H, Notice of Claim of Exemption (undated, filed 10/2017)
FORM K, Escrow Agreement (eff. 7/07).
VA.R. Doc. No. R18-5246; Filed October 12, 2017, 2:17 p.m.
TITLE 22. SOCIAL SERVICES
STATE BOARD OF SOCIAL SERVICES
Final Regulation
Titles of Regulations: 22VAC40-72. Standards for
Licensed Assisted Living Facilities (repealing 22VAC40-72-10 through
22VAC40-72-1160).
22VAC40-73. Standards for Licensed Assisted Living
Facilities (adding 22VAC40-73-10 through
22VAC40-73-1180).
Statutory Authority: §§ 63.2-217, 63.2-1732,
63.2-1802, 63.2-1805, and 63.2-1808 of the Code of Virginia.
Effective Date: February 1, 2018.
Agency Contact: Judith McGreal, Licensing Program
Consultant, Division of Licensing Programs, Department of Social Services, 801
East Main Street, Richmond, VA 23219, telephone (804) 663-5535, FAX (804)
819-7093, TTY (800) 828-1120, or email judith.mcgreal@dss.virginia.gov.
Summary:
This regulatory action repeals the existing regulation,
22VAC40-72, and establishes a comprehensive new regulation, 22VAC40-73, for
licensed assisted living facilities. The comprehensive new regulation is
intended to improve clarity, incorporate improvements in the language and
reflect current federal and state law, relieve intrusive and burdensome
requirements that are not necessary, provide greater protection for residents
in care, and reflect current standards of care.
Major components of the new regulation include requirements
regarding (i) general provisions; (ii) administration and administrative
services and personnel; (iii) staffing and supervision; (iv) admission,
retention, and discharge of residents; (v) resident care and related services;
(vi) resident accommodations and related provisions; (vii) buildings and
grounds; (viii) emergency preparedness; and (ix) additional requirements for
facilities that care for adults with serious cognitive impairments who cannot
recognize danger or protect their own safety and welfare.
New substantive provisions include:
22VAC40-73-90 – Adds licensee to persons who may not act as
attorney-in-fact or trustee unless a resident has no other preferred designee
and so requests.
22VAC40-73-100 – Provides for the development and
implementation of an enhanced infection control program that addresses the
surveillance, prevention, and control of disease and infection.
22VAC40-73-160 – Adds to administrator training
requirements that administrators who supervise medication aides, but are not
registered medication aides themselves, must have annual training in medication
administration.
22VAC40-73-170 - Adds that an unlicensed shared
administrator for smaller residential living care facilities must be at each
facility for six hours during the day shift of the 10 required hours a week.
22VAC40-73-210 – Increases the annual training hours for
direct care staff.
22VAC40-73-220 – Adds requirements regarding private duty
personnel.
22VAC40-73-260 – Adds a requirement that at least one
person with first aid certification and at least one person with
cardiopulmonary resuscitation certification must be in each building, rather
than on the premises.
22VAC40-73-280 – Changes an exception (allowing staff to
sleep at night under certain circumstances) to one of the staffing requirements
to limit its application to facilities licensed for residential living care
only.
22VAC40-73-310 – Adds to admission and retention
requirements, additional specifications regarding an agreement between a
facility and hospice program when hospice care is provided to a resident.
22VAC40-73-325 – Adds a requirement for a fall risk rating
for residents who meet the criteria for assisted living care.
22VAC40-73-380 – Adds that mental health, behavioral, and
substance abuse issues are included in personal and social information for all
residents, not just those meeting criteria for assisted living care.
22VAC40-73-450 – Adds a requirement that staff who complete
individualized service plans (ISPs) must complete uniform assessment instrument
training as a prerequisite to completing ISP training.
22VAC40-73-490 – Reduces the number of times annually
required for health care oversight when a facility employs a full-time licensed
health care professional; adds a requirement that all residents be included
annually in the health care oversight; adds to the oversight the evaluation of
the ability of residents who self-administer medications to continue to safely
do so; and adds additional requirements for oversight of restrained residents.
22VAC40-73-540 – Specifies that visiting hours may not be
restricted unless a resident so chooses.
22VAC40-73-590 – Adds a requirement that snacks be
available at all times, rather than bedtime and between meals.
22VAC40-73-620 – Reduces the number of times annually for
oversight of special diets.
22VAC40-73-680 – Adds an allowance for a master list of
staff who administer medications to be used in lieu of documentation on
individual medication administration records.
22VAC40-73-710 – Adds a prohibition of additional types of
restraints and adds review and revision of individualized service plan
following application of emergency restraints.
22VAC40-73-750 – Adds a provision that a resident may
determine not to have certain furnishings that are otherwise required in his
bedroom.
22VAC40-73-880 – Adds to the standard that in a bedroom
with a thermostat where only one resident resides, the resident may choose a
temperature other than what is otherwise required.
22VAC40-73-900 – Adds that when there is a new facility
licensee, there can be no more than two residents residing in a bedroom.
22VAC40-73-930 – Adds to the provision for signaling/call
systems that for a resident with an inability to use the signaling device, this
must be included on his individualized service plan with frequency of rounds
indicated, with a minimum of rounds every two hours when the resident has gone
to bed at night, and with an exception permitted under specific circumstances.
22VAC40-73-950 – Specifies that review of emergency plan
with staff, residents, and volunteers is semi-annual, rather than quarterly.
22VAC40-73-980 – Adds a requirement for first aid kit in
each building, rather than at the facility; eliminates activated charcoal; and
adds requirement that 48 hours of emergency food and water supply be on-site
and can be rotating stock.
22VAC40-73-990 – Specifies that participation in resident
emergency practice exercise every six months is required of staff currently on
duty, rather than all staff, and adds review of resident emergency procedures
every six months with all staff.
22VAC40-73-1010 – Removes the exception (for facilities
licensed for 10 or fewer with no more than three with serious cognitive
impairment) that applied to all requirements for mixed population.
22VAC40-73-1030 – Increases the training required in
cognitive impairment for direct care staff, and except for administrator, other
staff.
22VAC40-73-1120 – Increases the number of hours per week of
activities for residents in a safe, secure environment.
22VAC40-73-1130 – Adds a requirement that when there are 20
or fewer residents present in a special care unit, there must be at least two
direct care staff members awake and on duty in the unit, and for every
additional 10 residents, or portion thereof, there must be at least one more
direct care staff member awake and on duty in the unit, rather than two direct
care staff in each unit.
22VAC40-73-1140 - Increases the number of hours of training
in cognitive impairment for the administrator and changes the time period in
which the training must be received for both the administrator and for direct
care staff who work in a special care unit, also increases training in
cognitive impairment for others who have contact with residents in a special
care unit.
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.
CHAPTER 73
STANDARDS FOR LICENSED ASSISTED LIVING FACILITIES
Part I
General Provisions
22VAC40-73-10. Definitions.
The following words and terms when used in this chapter
shall have the following meanings unless the context clearly indicates
otherwise:
"Activities of daily living" or "ADLs"
means bathing, dressing, toileting, transferring, bowel control, bladder
control, and [ eating or feeding eating/feeding ].
A person's degree of independence in performing these activities is a part of
determining appropriate level of care and services.
"Administer medication" means to open a
container of medicine or to remove the ordered dosage and to give it to the
resident for whom it is ordered.
"Administrator" means the licensee or a person
designated by the licensee who is responsible for the general administration
and management of an assisted living facility and who oversees the day-to-day
operation of the facility, including compliance with all regulations for
licensed assisted living facilities.
"Admission" means the date a person actually
becomes a resident of the assisted living facility and is physically present at
the facility.
"Advance directive" means, as defined in
§ 54.1-2982 of the Code of Virginia, (i) a witnessed written document,
voluntarily executed by the declarant in accordance with the requirements of
§ 54.1-2983 of the Code of Virginia or (ii) a witnessed oral statement,
made by the declarant subsequent to the time he is diagnosed as suffering from
a terminal condition and in accordance with the provisions of § 54.1-2983
of the Code of Virginia.
"Ambulatory" means the condition of a resident
who is physically and mentally capable of self-preservation by evacuating in
response to an emergency to a refuge area as defined by 13VAC5-63, the Virginia
Uniform Statewide Building Code, without the assistance of another person, or
from the structure itself without the assistance of another person if there is
no such refuge area within the structure, even if such resident may require the
assistance of a wheelchair, walker, cane, prosthetic device, or a single verbal
command to evacuate.
"Assisted living care" means a level of service
provided by an assisted living facility for adults who may have physical or
mental impairments and require at least moderate assistance with the activities
of daily living. [ Included in this level of service are
individuals who are dependent in behavior pattern (i.e., abusive, aggressive,
disruptive) as documented on the uniform assessment instrument. ]
"Assisted living facility" means, as defined in
§ 63.2-100 of the Code of Virginia, any congregate residential setting that
provides or coordinates personal and health care services, 24-hour supervision,
and assistance (scheduled and unscheduled) for the maintenance or care of four
or more adults who are aged, infirm, or disabled and who are cared for in a
primarily residential setting, except (i) a facility or portion of a facility
licensed by the State Board of Health or the Department of Behavioral Health
and Developmental Services, but including any portion of such facility not so
licensed; (ii) the home or residence of an individual who cares for or
maintains only persons related to him by blood or marriage; (iii) a facility or
portion of a facility serving infirm or disabled persons between the ages of 18
and 21 years, or 22 years if enrolled in an educational program for the
handicapped pursuant to § 22.1-214 of the Code of Virginia, when such
facility is licensed by the department as a children's residential facility
under Chapter 17 (§ 63.2-1700 et seq.) of Title 63.2 of the Code of Virginia,
but including any portion of the facility not so licensed; and (iv) any housing
project for persons 62 years of age or older or the disabled that provides no
more than basic coordination of care services and is funded by the U.S.
Department of Housing and Urban Development, by the U.S. Department of
Agriculture, or by the Virginia Housing Development Authority. Included in this
definition are any two or more places, establishments, or institutions owned or
operated by a single entity and providing maintenance or care to a combined
total of four or more aged, infirm, or disabled adults. Maintenance or care
means the protection, general supervision, and oversight of the physical and
mental well-being of an aged, infirm, or disabled individual.
"Attorney-in-fact" means strictly, one who is
designated to transact business for another: a legal agent.
"Behavioral health authority" means the
organization, appointed by and accountable to the governing body of the city or
county that established it, that provides mental health, developmental, and
substance abuse services through its own staff or through contracts with other
organizations and providers.
"Building" means a structure with exterior walls
under one roof.
"Cardiopulmonary resuscitation" or
"CPR" means an emergency procedure consisting of external cardiac
massage and artificial respiration; the first treatment for a person who has
collapsed, has no pulse, and has stopped breathing; and attempts to restore
circulation of the blood and prevent death or brain damage due to lack of
oxygen.
"Case management" means multiple functions
designed to link clients to appropriate services. Case management may include a
variety of common components such as initial screening of needs, comprehensive
assessment of needs, development and implementation of a plan of care, service
monitoring, and client follow-up.
"Case manager" means an employee of a public
human services agency who is qualified and designated to develop and coordinate
plans of care.
"Chapter" or "this chapter" means
these regulations, that is, Standards for Licensed Assisted Living Facilities,
22VAC40-73, unless noted otherwise.
"Chemical restraint" means a psychopharmacologic
drug that is used for discipline or convenience and not required to treat the
resident's medical symptoms or symptoms from mental illness or intellectual
disability and that prohibits [ an individual the
resident ] from reaching his highest level of functioning.
"Commissioner" means the commissioner of the
department, his designee, or authorized representative.
"Community services board" or "CSB"
means a public body established pursuant to § 37.2-501 of the Code of
Virginia that provides mental health, developmental, and substance abuse programs
and services within the political subdivision or political subdivisions
participating on the board.
"Companion services" means assistance provided
to residents in such areas as transportation, meal preparation, shopping, light
housekeeping, companionship, and household management.
"Conservator" means a person appointed by the
court who is responsible for managing the estate and financial affairs of an
incapacitated person and, where the context plainly indicates, includes a
"limited conservator" or a "temporary conservator." The
term includes (i) a local or regional program designated by the Department for
Aging and Rehabilitative Services as a public conservator pursuant to Article 6
(§ 51.5-149 et seq.) of Chapter 14 of Title 51.5 of the Code of Virginia
or (ii) any local or regional tax-exempt charitable organization established
pursuant to § 501(c)(3) of the Internal Revenue Code to provide
conservatorial services to incapacitated persons. Such tax-exempt charitable
organization shall not be a provider of direct services to the incapacitated
person. If a tax-exempt charitable organization has been designated by the
Department for Aging and Rehabilitative Services as a public conservator, it
may also serve as a conservator for other individuals.
"Continuous licensed nursing care" means
around-the-clock observation, assessment, monitoring, supervision, or provision
of medical treatments provided by a licensed nurse. [ Residents
Individuals ] requiring continuous licensed nursing care may
include:
1. Individuals who have a medical instability due to
complexities created by multiple, interrelated medical conditions; or
2. Individuals with a health care condition with a high
potential for medical instability.
"Days" means calendar days unless noted otherwise.
"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 an
authorized agent of the Commissioner of Social Services.
"Dietary supplement" means a product intended
for ingestion that supplements the diet, is labeled as a dietary supplement, is
not represented as a sole item of a meal or diet, and contains a dietary
ingredient, [ (i.e. (e.g. ], vitamins,
minerals, amino acid, herbs or other botanicals, dietary substances (such as
enzymes), and concentrates, metabolites, constituents, extracts, or
combinations of the preceding types of ingredients). Dietary supplements may be
found in many forms, such as tablets, capsules, liquids, or bars.
"Direct care staff" means supervisors,
assistants, aides, or other staff of a facility who assist residents in the
performance of personal care or daily living activities. [ Examples
are likely to include nursing staff, activity staff, geriatric or personal care
assistants, medication aides, and mental health workers but are not likely to
include waiters, chauffeurs, cooks, and dedicated housekeeping, maintenance,
and laundry personnel. ]
"Discharge" means the movement of a resident out
of the assisted living facility.
[ "Electronic" means relating to
technology having electrical, digital, magnetic, wireless, optical,
electromagnetic, or similar capabilities. ]
"Electronic record" means a record created,
generated, sent, communicated, received, or stored by electronic means.
"Electronic signature" means an electronic
sound, symbol, or process attached to or logically associated with a record and
executed or adopted by a person with the intent to sign the record.
"Emergency placement" means the temporary status
of an individual in an assisted living facility when the person's health and
safety would be jeopardized by denying entry into the facility until the
requirements for admission have been met.
"Emergency restraint" means a [ situation
that may require the use of a restraint where restraint used when ]
the resident's behavior is unmanageable to the degree an immediate and
serious danger is presented to the health and safety of the resident or others.
"General supervision and oversight" means assuming
responsibility for the well-being of residents, either directly or through
contracted agents.
"Guardian" means a person appointed by the court
who is responsible for the personal affairs of an incapacitated person,
including responsibility for making decisions regarding the person's support,
care, health, safety, habilitation, education, therapeutic treatment, and, if
not inconsistent with an order of involuntary admission, residence. Where the
context plainly indicates, the term includes a "limited guardian" or
a "temporary guardian." The term includes (i) a local or regional
program designated by the Department for Aging and Rehabilitative Services as a
public guardian pursuant to Article 6 (§ 51.5-149 et seq.) of Chapter 14 of
Title 51.5 of the Code of Virginia or (ii) any local or regional tax-exempt
charitable organization established pursuant to § 501(c)(3) of the Internal
Revenue Code to provide guardian services to incapacitated persons. Such
tax-exempt charitable organization shall not be a provider of direct services
to the incapacitated person. If a tax-exempt charitable organization has been
designated by the Department for Aging and Rehabilitative Services as a public
guardian, it may also serve as a guardian for other individuals.
"Habilitative service" means activities to
advance a normal sequence of motor skills, movement, and self-care abilities or
to prevent avoidable additional deformity or dysfunction.
"Health care provider" means a person,
corporation, facility, or institution licensed by this Commonwealth to provide
health care or professional services, including [ but not
limited to ] a physician or hospital, dentist, pharmacist,
registered or licensed practical nurse, optometrist, podiatrist, chiropractor,
physical therapist, physical therapy assistant, clinical psychologist, or
health maintenance organization.
"Household member" means any person domiciled in
an assisted living facility other than residents or staff.
"Imminent physical threat or danger" means clear
and present risk of sustaining or inflicting serious or life threatening
injuries.
"Independent clinical psychologist" means a
clinical psychologist who is chosen by the resident of the assisted living
facility and who has no financial interest in the assisted living facility,
directly or indirectly, as an owner, officer, or employee or as an independent
contractor with the facility.
"Independent living status" means that the
resident is assessed as capable of performing all activities of daily living
and instrumental activities of daily living for himself without requiring the
assistance of another person and is assessed as capable of taking medications
without the assistance of another person. If the policy of a facility dictates
that medications are administered or distributed centrally without regard for
the residents' capacity, this policy shall not be considered in determining
independent status.
"Independent physician" means a physician who is
chosen by the resident of the assisted living facility and who has no financial
interest in the assisted living facility, directly or indirectly, as an owner,
officer, or employee or as an independent contractor with the facility.
"Individualized service plan" or "ISP"
means the written description of actions to be taken by the licensee, including
coordination with other services providers, to meet the assessed needs of the
resident.
"Instrumental activities of daily living" or
"IADLs" means meal preparation, housekeeping, laundry, and managing
money. A person's degree of independence in performing these activities is a
part of determining appropriate level of care and services.
"Intellectual disability" means disability,
originating before the age of 18 years, characterized concurrently by (i)
significantly subaverage intellectual functioning as demonstrated by
performance on a standardized measure of intellectual functioning, administered
in conformity with accepted professional practice, that is at least two
standard deviations below the mean and (ii) significant limitations in adaptive
behavior as expressed in conceptual, social, and practical adaptive skills.
"Intermittent intravenous therapy" means therapy
provided by a licensed health care professional at medically predictable
intervals for a limited period of time on a daily or periodic basis.
"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 ("durable power of
attorney" defines the type of legal instrument used to name the
attorney-in-fact and does not change the meaning of attorney-in-fact), trustee,
or other person expressly named by a court of competent jurisdiction or the
resident as his agent in a legal document that specifies the scope of the
representative's authority to act. A legal representative may only represent or
stand in the place of a resident for the function or functions for which he has
legal authority to act. A resident is presumed competent and is responsible for
making all health care, personal care, financial, and other personal decisions
that affect his life unless a representative with legal authority has been
appointed by a court of competent jurisdiction or has been appointed by the
resident in a properly executed and signed document. A resident may have
different legal representatives for different functions. For any given
standard, the term "legal representative" applies solely to the legal
representative with the authority to act in regard to the function or functions
relevant to that particular standard.
"Licensed health care professional" means any
health care professional currently licensed by the Commonwealth of Virginia to
practice within the scope of his profession, such as a nurse practitioner,
registered nurse, licensed practical nurse (nurses may be licensed or hold
multistate licensure pursuant to § 54.1-3000 of the Code of Virginia),
clinical social worker, dentist, occupational therapist, pharmacist, physical
therapist, physician, physician assistant, psychologist, and speech-language
pathologist. Responsibilities of physicians referenced in this chapter may be
implemented by nurse practitioners or physician assistants in accordance with
their protocols or practice agreements with their supervising physicians and in
accordance with the law.
"Licensee" means any person, association,
partnership, corporation, company, or public agency to whom the license is
issued.
"Manager" means a designated person who serves
as a manager pursuant to 22VAC40-73-170 and 22VAC40-73-180.
"Mandated reporter" means persons specified in §
63.2-1606 of the Code of Virginia who are required to report matters giving
reason to suspect abuse, neglect, or exploitation of an adult.
"Maximum physical assistance" means that an
individual has a rating of total dependence in four or more of the seven
activities of daily living as documented on the uniform assessment instrument.
An individual who can participate in any way with performance of the activity
is not considered to be totally dependent.
[ "Medical/orthopedic restraint" means the
use of a medical or orthopedic support device that has the effect of
restricting the resident's freedom of movement or access to his body for the
purpose of improving the resident's stability, physical functioning, or
mobility. ]
"Medication aide" means a staff person who has
current registration with the Virginia Board of Nursing to administer drugs
that would otherwise be self-administered to residents in an assisted living
facility in accordance with the Regulations Governing the Registration of
Medication Aides (18VAC90-60). This definition also includes a staff person who
is an applicant for registration as a medication aide in accordance with subdivision
2 of 22VAC40-73-670.
"Mental illness" means a disorder of thought,
mood, emotion, perception, or orientation that significantly impairs judgment,
behavior, capacity to recognize reality, or ability to address basic life
necessities and requires care and treatment for the health, safety, or recovery
of the individual or for the safety of others.
"Mental impairment" means a disability that
reduces an individual's ability to reason logically, make
appropriate decisions, or engage in purposeful behavior.
"Minimal assistance" means dependency in only
one activity of daily living or dependency in one or more of the instrumental
activities of daily living as documented on the uniform assessment instrument.
"Moderate assistance" means dependency in two or
more of the activities of daily living as documented on the uniform assessment
instrument.
"Nonambulatory" means the condition of a
resident who by reason of physical or mental impairment is not capable of
self-preservation without the assistance of another person.
"Nonemergency restraint" means [ circumstances
that may require the use of ] a restraint [ used ]
for the purpose of providing support to a physically weakened resident.
"Physical impairment" means a condition of a
bodily or sensory nature that reduces an individual's ability to function or to
perform activities.
"Physical restraint" means any manual method or
physical or mechanical device, material, or equipment attached or adjacent to
the resident's body that the resident cannot remove easily, which restricts
freedom of movement or access to his body.
"Physician" means an individual licensed to
practice medicine or osteopathic medicine in any of the 50 states or the
District of Columbia.
[ "Premises" means a building or buildings,
under one license, together with the land or grounds on which located. ]
"Prescriber" means a practitioner who is
authorized pursuant to §§ 54.1-3303 and 54.1-3408 of the Code of Virginia to
issue a prescription.
"Private duty personnel" means an individual
hired, either directly or through a licensed home care organization, by a
resident, family member, legal representative, or similar entity to provide
one-on-one services to the resident, such as a private duty nurse, home
attendant, personal aide, or companion. Private duty personnel are not hired by
the facility, either directly or through a contract.
"Private pay" means that a resident of an
assisted living facility is not eligible for [ benefits under
the Auxiliary Grants Program an auxiliary grant ].
"Psychopharmacologic drug" means any drug
prescribed or administered with the intent of controlling mood, mental status,
or behavior. Psychopharmacologic drugs include not only the obvious drug
classes, such as antipsychotic, antidepressants, and the antianxiety/hypnotic
class, but any drug that is prescribed or administered with the intent of
controlling mood, mental status, or behavior, regardless of the manner in which
it is marketed by the manufacturers and regardless of labeling or other
approvals by the U.S. Food and Drug Administration.
"Public pay" means that a resident of an
assisted living facility is eligible for [ benefits under the
Auxiliary Grants Program an auxiliary grant ].
"Qualified" means having appropriate training
and experience commensurate with assigned responsibilities, or if referring to
a professional, possessing an appropriate degree or having documented
equivalent education, training, or experience. There are specific definitions
for "qualified assessor" and "qualified mental health
professional" in this section.
"Qualified assessor" means an individual who is
authorized to perform an assessment, reassessment, or change in level of care
for an applicant to or resident of an assisted living facility. For public pay
individuals, a qualified assessor is an employee of a public human services
agency trained in the completion of the uniform assessment instrument (UAI).
For private pay individuals, a qualified assessor is an employee of the
assisted living facility trained in the completion of the UAI or an independent
private physician or a qualified assessor for public pay individuals.
"Qualified mental health professional" means a
behavioral health professional who is trained and experienced in providing
psychiatric or mental health services to individuals who have a psychiatric
diagnosis, including (i) a physician licensed in Virginia; (ii) a psychologist:
an individual with a master's degree in psychology from a college or university
accredited by an association recognized by the U.S. Secretary of Education,
with at least one year of clinical experience; (iii) a social worker: an
individual with at least a master's degree in human services or related field
(e.g., social work, psychology, psychiatric rehabilitation, sociology,
counseling, vocational rehabilitation, or human services counseling) from
college or university accredited by an association recognized by the U.S.
Secretary of Education, with at least one year of clinical experience providing
direct services to persons with a diagnosis of mental illness; (iv) a
registered psychiatric rehabilitation provider (RPRP) registered with the
International Association of Psychosocial Rehabilitation Services (IAPSRS); (v)
a clinical nurse specialist or psychiatric nurse practitioner licensed in the
Commonwealth of Virginia with at least one year of clinical experience working
in a mental health treatment facility or agency; (vi) any other licensed mental
health professional; or (vii) any other person deemed by the Department of
Behavioral Health and Developmental Services as having qualifications
equivalent to those described in this definition. Any unlicensed person who
meets the requirements contained in this definition shall either be under the
supervision of a licensed mental health professional or employed by an agency
or organization licensed by the Department of Behavioral Health and
Developmental Services.
"Rehabilitative services" means activities that
are ordered by a physician or other qualified health care professional that are
provided by a rehabilitative therapist (e.g., physical therapist, occupational
therapist, or speech-language pathologist). These activities may be necessary
when a resident has demonstrated a change in his capabilities and are provided
to restore or improve his level of functioning.
"Resident" means any adult residing in an
assisted living facility for the purpose of receiving maintenance or care.
[ The definition of resident also includes adults residing in an
assisted living facility who have independent living status. Adults present in
an assisted living facility for part of the day for the purpose of receiving
day care services are also considered residents. ]
"Residential living care" means a level of
service provided by an assisted living facility for adults who may have
physical or mental impairments and require only minimal assistance with the
activities of daily living. Included in this level of service are individuals
who are dependent in medication administration as documented on the uniform
assessment instrument, although they may not require minimal assistance with
the activities of daily living. This definition includes the services provided
by the facility to individuals who are assessed as capable of maintaining
themselves in an independent living status.
"Respite care" means services provided in an
assisted living facility for the maintenance or care of aged, infirm, or
disabled adults for a temporary period of time or temporary periods of time
that are regular or intermittent. Facilities offering this type of care are
subject to this chapter.
"Restorative care" means activities designed to
assist the resident in reaching or maintaining his level of potential. These
activities are not required to be provided by a rehabilitative therapist and
may include activities such as range of motion, assistance with ambulation,
positioning, assistance and instruction in the activities of daily living,
psychosocial skills training, and reorientation and reality orientation.
"Restraint" means either "physical
restraint" or "chemical restraint" as these terms are defined in
this section.
"Safe, secure environment" means a
self-contained special care unit for [ individuals
residents ] with serious cognitive impairments due to a primary
psychiatric diagnosis of dementia who cannot recognize danger or protect their
own safety and welfare. There may be one or more self-contained special care
units in a facility or the whole facility may be a special care unit. Nothing
in this definition limits or contravenes the privacy protections set forth in
§ 63.2-1808 of the Code of Virginia.
"Sanitizing" means treating in such a way to
remove bacteria and viruses through using a disinfectant solution (e.g., bleach
solution or commercial chemical disinfectant) or physical agent (e.g., heat).
"Serious cognitive impairment" means severe
deficit in mental capability of a chronic, enduring, or long-term nature that
affects areas such as thought processes, problem-solving, judgment, memory, and
comprehension and that interferes with such things as reality orientation,
ability to care for self, ability to recognize danger to self or others, and
impulse control. Such cognitive impairment is not due to acute or episodic conditions,
nor conditions arising from treatable metabolic or chemical imbalances or
caused by reactions to medication or toxic substances. For the purposes of this
chapter, serious cognitive impairment means that an individual cannot recognize
danger or protect his own safety and welfare. [ Serious
cognitive impairment involves an assessment by a clinical psychologist licensed
to practice in the Commonwealth or by a physician as specified in
22VAC40-73-1090. ]
"Significant change" means a change in a resident's
condition that is expected to last longer than 30 days. It does not include
short-term changes that resolve with or without intervention, a short-term
acute illness or episodic event, or a well-established, predictive, cyclic
pattern of clinical signs and symptoms associated with a previously diagnosed
condition where an appropriate course of treatment is in progress.
"Skilled nursing treatment" means a service
ordered by a physician or other prescriber that is provided by and within the
scope of practice of a licensed nurse.
"Skills training" means systematic skill
building through curriculum-based psychoeducational and cognitive-behavioral
interventions. These interventions break down complex objectives for role
performance into simpler components, including basic cognitive skills such as
attention, to facilitate learning and competency.
"Staff" or "staff person" means
personnel working at a facility who are compensated or have a financial
interest in the facility, regardless of role, service, age, function, or
duration of employment at the facility. "Staff" or "staff
person" also includes those individuals hired through a contract [ with
the facility ] to provide services for the facility.
"Substance abuse" means the use [ of
drugs enumerated in the Virginia Drug Control Act (§ 54.1-3400 et seq. of the
Code of Virginia) ], without [ a ] compelling
medical reason, [ of or ] alcohol
[ or other legal or illegal drugs ] that [ (i) ]
results in psychological or physiological [ dependency
dependence ] or danger to self or others as a function of continued
[ and compulsive ] use [ in such a manner as
to induce or (ii) results in ] mental, emotional, or
physical impairment [ and cause that causes ]
socially dysfunctional or socially disordering behavior [ ; and (iii)
because of such substance abuse, requires care and treatment for the health of
the individual. This care and treatment may include counseling, rehabilitation,
or medical or psychiatric care. All determinations of whether a compelling
medical reason exists shall be made by a physician or other qualified medical
personnel ].
"Systems review" means a physical examination of
the body to determine if the person is experiencing problems or distress,
including cardiovascular system, respiratory system, gastrointestinal system,
urinary system, endocrine system, musculoskeletal system, nervous system,
sensory system, and the skin.
"Transfer" means movement of a resident to a
different assigned living area within the same licensed facility.
"Trustee" means one who stands in a fiduciary or
confidential relation to another; especially, one who, having legal title to
property, holds it in trust for the benefit of another and owes a fiduciary
duty to that beneficiary.
"Uniform assessment instrument" or
"UAI" means the department designated assessment form. There is an
alternate version of the form that may be used for private pay residents.
Social and financial information that is not relevant because of the resident's
payment status is not included on the private pay version of the form.
"Volunteer" means a person who works at an
assisted living facility who is not compensated. [ This does not
include persons who, either as an individual or as part of an organization,
present at or facilitate group activities. An exception to this
definition is a person who, either as an individual or as part of an
organization, is only present at or facilitates group activities on an
occasional basis or for special events. ]
22VAC40-73-20. Requirements of law and applicability.
A. Chapters 17 (§ 63.2-1700 et seq.) and 18
(§ 63.2-1800 et seq.) of Title 63.2 of the Code of Virginia include
requirements of law relating to licensure, including licensure of assisted
living facilities.
B. This chapter applies to assisted living facilities as
defined in § 63.2-100 of the Code of Virginia and in 22VAC40-73-10.
1. Each assisted living facility shall comply with Parts I
(22VAC40-73-10 et seq.) through IX (22VAC40-73-950 et seq.) of this chapter.
2. An assisted living facility that cares for adults with
serious cognitive impairments shall also comply with Part X (22VAC40-73-1000 et
seq.) of this chapter.
22VAC40-73-30. Program of care.
There shall be a program of care that:
1. Meets the [ resident population's
resident's ] physical, mental, emotional, [ and ]
psychosocial [ , and spiritual ] needs;
2. [ Promotes the resident's highest level of
functioning;
3. ] Provides protection, guidance, and
supervision;
[ 3. 4. ] Promotes a sense
of security, self-worth, and independence; and
[ 4. 5. ] Promotes the
resident's involvement with appropriate [ programs and ] community
resources [ based on the resident's needs and interests ].
Part II
Administration and Administrative Services
22VAC40-73-40. Licensee.
A. The licensee shall ensure compliance with all
regulations for licensed assisted living facilities and terms of the license
issued by the department; with relevant federal, state, and local laws; with
other relevant regulations; and with the facility's own policies and
procedures.
B. The licensee shall:
1. Give evidence of financial responsibility and solvency.
2. Be of good character and reputation in accordance with
§ 63.2-1702 of the Code of Virginia. Character and reputation
investigation includes [ , but is not limited to, ]
background checks as required by § 63.2-1721 of the Code of Virginia.
3. Meet the requirements specified in the Regulation for
Background Checks for Assisted Living Facilities and Adult Day Care Centers
(22VAC40-90).
4. Act in accordance with General Procedures and
Information for Licensure (22VAC40-80).
5. Protect the physical and mental well-being of residents.
6. Exercise general supervision over the affairs of the
licensed facility and establish policies and procedures concerning its
operation in conformance with applicable law, this chapter, and the welfare of
the residents.
7. Ensure that he [ or his relatives ],
his agents [ or agents' relatives ], the
facility administrator [ or administrator's relatives ],
or facility staff [ or the relatives of any of these persons ]
shall not act as, seek to become, or become the conservator or guardian of
any resident unless specifically so appointed by a court of competent
jurisdiction pursuant to Article 1 (§ 64.2-2000 et seq.) of Chapter 20 of
Title 64.2 of the Code of Virginia.
8. Ensure that the current license is posted in the
facility in a place conspicuous to the residents and the public.
9. Ensure that the facility keeps and maintains at the
facility records, reports, plans, schedules, and other information as required
by this chapter for licensed assisted living facilities.
10. Ensure that any document required by this chapter to be
posted shall be in at least 12-point type or equivalent size [ ,
unless otherwise specified ].
11. Make certain that when it is time to discard records,
they are disposed of in a manner that ensures confidentiality.
12. Ensure that at all times the department's
representative is afforded reasonable opportunity to inspect all of the facility's
buildings, books, and records and to interview agents, employees, residents,
and any person under its custody, control, direction, or supervision
[ as specified in § 63.2-1706 of the Code of Virginia ].
C. Upon initial application for an assisted living
facility license, any person applying to operate such a facility who has not
previously owned or managed or does not currently own or manage a licensed
assisted living facility shall be required to undergo training by the
commissioner. [ Such training shall be required of those
Training for such ] owners and currently employed administrators
[ of an assisted living facility shall be required ]
at the time of initial application for [ a license
licensure. In all cases, such training shall be completed prior to the granting
of any initial license ].
1. The commissioner may also approve training programs
provided by other entities and allow owners or administrators to attend such
approved training programs in lieu of training by the commissioner.
2. The commissioner may at his discretion also approve for
licensure applicants who meet requisite experience criteria as established by
the board.
3. The training programs shall focus on the health and
safety regulations and resident rights as they pertain to assisted living
facilities and shall be completed by the owner or administrator prior to the
granting of an initial license.
4. The commissioner may, at his discretion, issue a license
conditioned upon the completion by the owner or administrator of the required
training.
D. The licensee shall notify in writing the regional
licensing office of intent to sell or voluntarily close the facility
[ no less than 60 days prior to the sale date or closure ].
The following shall apply:
1. No less than 60 days prior to the planned sale date or
closure, the licensee shall notify the [ regional licensing office, ]
residents, and as relevant, legal representatives, case managers,
[ assessors, ] eligibility workers, and designated contact
persons of the intended sale or closure of the facility and the date for such.
[ 2. Exception: ] If plans
are made at such time that 60-day notice is not possible, the licensee shall
notify the regional licensing office, the residents, legal representatives,
case managers, [ assessors, ] eligibility workers, and
designated contact persons as soon as the intent to sell or close the facility
is known.
[ 3. 2. ] If the facility is
to be sold, at the time of notification specified in subdivision 1 of this
subsection, the licensee shall explain to each resident, his legal
representative, case manager, [ assessor, ] and at
least one designated contact person that the resident can choose whether to
stay or relocate, unless the new licensee specifies relocation. If a resident
chooses to stay, there must be a new resident agreement between the resident
and the new licensee that meets the specifications of 22VAC40-73-390.
[ 4. 3. ] The licensee shall
provide updates regarding the closure or sale of the facility to the regional
licensing office, as requested.
22VAC40-73-50. Disclosure.
A. The assisted living facility shall prepare and provide
a statement to the prospective resident and his legal representative, if any,
that discloses information about the facility. The statement shall be on a form
developed by the department and shall:
1. Disclose information fully and accurately in plain
language;
2. Be provided in advance of admission and prior to signing
an admission agreement or contract;
3. Be provided upon request; and
4. Disclose the following information, which shall be kept
current:
a. Name of the facility;
b. Name of the licensee;
c. Ownership structure of the facility (e.g., individual,
partnership, corporation, limited liability company, unincorporated
association, or public agency);
d. Description of all accommodations, services, and care
that the facility offers;
e. Fees charged for accommodations, services, and care,
including clear information about what is included in the base fee and all fees
for additional accommodations, services, and care;
f. Criteria for admission to the facility and restrictions
on admission;
g. Criteria for transfer to a different living area within
the same facility, including transfer to another level or type of care within
the same facility or complex;
h. Criteria for discharge;
i. Categories, frequency, and number of activities provided
for residents;
j. General number, position types, and qualifications of
staff on each shift;
k. Notation that additional information about the facility
that is included in the resident agreement is available upon request; and
l. The department's website address, with a note that
additional information about the facility may be obtained from the website
[ , including type of license, capacity, special services, and most
recent years' compliance history ].
B. Written acknowledgment of the receipt of the disclosure
by the resident or his legal representative shall be retained in the resident's
record.
C. The disclosure statement shall also be available to the
general public, upon request.
22VAC40-73-60. Electronic records and signatures.
A. Use of electronic records or signatures shall comply
with the provisions of the Uniform Electronic Transactions Act (§ 59.1-479
et seq. of the Code of Virginia).
B. In addition to the requirements of the Uniform
Electronic Transactions Act, the use of electronic signatures shall be deemed
to constitute a signature and have the same effect as a written signature on a
document as long as the licensee:
1. Develops, implements, and maintains specific policies
and procedures for the use of electronic signatures;
2. Ensures that each electronic signature identifies the
individual signing the document by name and title;
3. Ensures that the document cannot be altered after the
signature has been affixed;
4. Ensures that access to the code or key sequence is
limited;
5. Ensures that all users have signed statements that they
alone have access to and use the key or computer password for their signature
and will not share their key or password with others; and
6. Ensures that strong and substantial evidence exists that
would make it difficult for the signer or the receiving party to claim the
electronic representation is not valid.
C. A back-up and security system shall be utilized for all
electronic documents.
22VAC40-73-70. Incident reports.
A. Each facility shall report to the regional licensing
office within 24 hours any major incident that has negatively affected or that
threatens the life, health, safety, or welfare of any resident.
B. The report required in subsection A of this section
shall include (i) the name of the facility, (ii) the name or names of the
resident or residents involved in the incident, (iii) the name of the person
making the report, (iv) the date of the incident, (v) a description of the
incident, and (vi) the actions taken in response to the incident.
C. The facility shall submit a written report of each
incident specified in subsection A of this section to the regional licensing
office within seven days from the date of the incident. The report shall be
signed and dated by the administrator and include the following information:
1. Name and address of the facility;
2. Name of the resident or residents involved in the
incident;
3. Date and time of the incident;
4. Description of the incident, the circumstances under
which it happened, and [ , ] when applicable, extent of
injury or damage;
5. Location of the incident;
6. Actions taken in response to the incident;
7. Actions to prevent recurrence of the incident, if
applicable;
8. Name of staff person in charge at the time of the
incident;
9. Names, telephone numbers, and addresses of witnesses to
the incident, if any; and
10. Name, title, and signature of the person making the
report, if other than the administrator, and date of the completion of the
report.
D. The facility shall submit to the regional licensing
office amendments to the written report when circumstances require, such as
when substantial additional actions are taken, when significant new
information becomes available, or there is resolution of the incident after
submission of the report.
E. A copy of the written report of each incident shall be
maintained by the facility for at least two years [ from the date
of the incident ].
F. If applicable, the facility shall ensure that there is
documentation in the resident's record as required by 22VAC40-73-470 F.
22VAC40-73-80. Management and control of resident funds.
Pursuant to § 63.2-1808 A 3 of the Code of Virginia, the
resident shall be free to manage his personal finances and funds regardless of
source, unless a committee, conservator, or guardian has been appointed for a
resident. However [ , ] the resident may request that
the facility assist with the management of personal funds, and the facility may
assist the resident in such management under the following conditions:
1. There shall be documentation of this request and
delegation, signed and dated by the resident and the administrator. The
documentation shall be maintained in the resident's record.
2. [ Residents' All resident
funds ] shall be held separately from any other moneys of the
facility. [ Residents' No resident ] funds
shall [ not ] be borrowed, used as assets of the
facility, or used for purposes of personal interest by the licensee, operator,
administrator, or facility staff.
3. The resident shall be given a choice of whether he
wishes his funds to be maintained in an individual resident account [ ,
which may be interest-bearing, ] or in a single account for the
accumulated funds of multiple residents [ , which shall not be
interest-bearing ]. [ Either type of account may be
interest-bearing. If the account is interest-bearing, the resident must be
provided his appropriate portion of the interest. ]
4. [ For residents who are not recipients of
an auxiliary grant, the The ] facility may charge a
reasonable amount for administration of the account [ , except for
residents who are recipients of an auxiliary grant as account administration is
covered by the grant ].
5. The facility shall maintain a written accounting of
money received and disbursed by the facility that shows a current balance. The
written accounting of the funds shall be made available to the resident at
least quarterly and upon request, and a copy shall also be placed in the
resident's record.
6. The resident's funds shall be made available to the
resident upon request.
22VAC40-73-90. Safeguarding residents' funds.
No [ licensee, ] facility
administrator [ , ] or staff person shall act as either
attorney-in-fact or trustee unless the resident has no other preferred designee
and the resident himself expressly requests such service by or through facility
personnel. When the [ licensee, ] facility
administrator [ , ] or staff person acts as
attorney-in-fact or trustee, the following applies:
1. There shall be documentation that the resident has
requested such service and from whom, signed and dated by the resident, [ the
licensee, ] the facility administrator, and if a staff person is to
provide the service, the staff person. The documentation shall be maintained in
the resident's record.
2. The [ licensee, ] facility
administrator [ , ] or staff person so named
attorney-in-fact or trustee shall be accountable at all times in the proper
discharge of such fiduciary responsibility as provided under Virginia law.
3. The facility shall maintain a written accounting of
money received and disbursed by the [ licensee, ] facility
administrator [ , ] or staff person that shows a
current balance. The written accounting of the funds shall be made available to
the resident at least quarterly and upon request, and a copy shall also be
placed in the resident's record.
4. The resident's funds shall be made available to the
resident upon request.
5. Upon termination of the power of attorney or trust for
any reason, the [ licensee, ] facility
administrator [ , ] or staff person so named
attorney-in-fact or trustee shall return all funds and assets, with full
accounting, to the resident or to another responsible party expressly
designated by the resident.
22VAC40-73-100. Infection control program.
A. The assisted living facility shall develop, in writing,
and implement an infection control program addressing the surveillance,
prevention, and control of disease and infection that is consistent with the
federal Centers for Disease Control and Prevention (CDC) guidelines and the
federal Occupational Safety and Health Administration (OSHA) bloodborne
pathogens regulations.
1. A licensed health care professional, practicing within
the scope of his profession and with training in infection prevention, shall
participate in the development of infection prevention policies and procedures
and shall [ assure ensure ] compliance
with applicable guidelines and regulations.
2. The administrator shall ensure at least an annual review
of infection prevention policies and procedures for any necessary updates. A
licensed health care professional, practicing within the scope of his
profession and with training in infection prevention, shall be included in the
review to [ assure ensure ] compliance
with applicable guidelines and regulations. Documentation of the review shall
be maintained at the facility.
3. A staff person who has been trained in basic infection
prevention shall participate in the annual review and serve as point of contact
for the program. This person shall be responsible for on-going monitoring of
the implementation of the infection control program.
B. The infection control program shall be applicable to
all staff and volunteers and encompass all services as well as the entire
[ physical plant and grounds premises ].
C. The infection control program shall include:
1. Procedures for the implementation of infection
prevention measures by staff and volunteers to include:
a. Use of standard precautions;
b. Use of personal protective equipment; and
c. Means to [ assure ensure ]
hand hygiene [ .; ]
2. Procedures for other infection prevention measures
related to job duties [ to ] include [ ,
but not be limited to ]:
a. Determination of whether prospective or returning
residents have acute infectious disease and use of appropriate measures to
prevent disease transmission;
b. Use of safe injection practices and other procedures
where the potential for exposure to blood or body fluids exists;
c. Blood glucose monitoring practices that are consistent
with CDC [ guidelines recommendations ].
When [ providing ] assisted blood glucose
monitoring [ is required ], [ only
single-use auto-retractable disposable lancets may be used
fingerstick devices shall not be used for more than one person ];
d. The handling, storing, processing, and transporting of
linens, supplies, and equipment in a manner that prevents the spread of
infection;
e. The sanitation of rooms, including cleaning and
disinfecting procedures, agents, and schedules;
f. The sanitation of equipment, including medical equipment
that may be used on more than one resident (e.g., blood glucose meters and
blood pressure cuffs, including cleaning and disinfecting procedures, agents,
and schedules);
g. The handling, storing, processing, and transporting of
medical waste in accordance with applicable regulations; and
h. Maintenance of an effective pest control program
[ .; ]
3. Readily accessible handwashing equipment and necessary
personal protective equipment for staff and volunteers (e.g., soap,
alcohol-based hand rubs, disposable towels or hot air dryers, and gloves)
[ .; ]
4. Product specific instructions for use of cleaning and
disinfecting agents (e.g., dilution, contact time, and management of accidental
exposures) [ .; and ]
5. Initial training as specified in 22VAC40-73-120 C 4 and
annual retraining of staff and volunteers in infection prevention methods, as
applicable to job responsibilities [ and as required by
22VAC40-73-210 F ].
D. The facility shall have a staff health program that
includes:
1. Provision of information on recommended vaccinations, per
guidelines from the CDC Advisory Committee on Immunization Practices (ACIP), to
facility staff and volunteers who have any potential exposure to residents or
to infectious materials, including body substances, contaminated medical
supplies and equipment, contaminated environmental surfaces, or contaminated
air;
2. Assurance that employees with communicable diseases are
identified and prevented from work activities that could result in transmission
to other personnel or residents;
3. An exposure control plan for bloodborne pathogens;
4. Documentation of screening and immunizations offered to,
received by, or declined by employees in accordance with law, regulation, or
recommendations of public health authorities, including access to hepatitis B
vaccine; [ and ]
5. Compliance with requirements of the OSHA for reporting
of workplace associated injuries or exposure to infection.
E. The facility administrator shall immediately make or
cause to be made a report of an outbreak of disease as defined by the State
Board of Health. Such report shall be made by rapid means to the local health
director or to the Commissioner of the Virginia Department of Health and to the
licensing representative of the Department of Social Services in the regional
licensing office.
F. When recommendations are made by the Virginia
Department of Health to prevent or control transmission of an infectious agent
in the facility, the recommendations must be followed.
Part III
Personnel
22VAC40-73-110. Staff general qualifications.
All staff shall:
1. Be considerate and respectful of the rights, dignity,
and sensitivities of persons who are aged, infirm, or disabled;
2. Be able to speak, read, [ understand, ]
and write in English as necessary to carry out their job responsibilities;
and
3. Meet the requirements specified in the Regulation for
Background Checks for Assisted Living Facilities and Adult Day Care Centers
(22VAC40-90).
22VAC40-73-120. Staff orientation and initial training.
A. The orientation and training required in subsections B
and C of this section shall occur within the first seven working days of
employment. Until this orientation and training is completed, the staff person
may only assume job responsibilities if under the sight supervision of a
trained direct care staff person or administrator.
B. All staff shall be oriented to:
1. The purpose of the facility;
2. The facility's organizational structure;
3. The services provided;
4. The daily routines;
5. The facility's policies and procedures;
6. Specific duties and responsibilities of their positions;
and
7. Required compliance with regulations for assisted living
facilities as it relates to their duties and responsibilities.
C. All staff shall be trained in the relevant laws,
regulations, and the facility's policies and procedures sufficiently to
implement:
1. Emergency and disaster plans for the facility;
2. Procedures for the handling of resident emergencies;
3. Use of the first aid kit and knowledge of its location;
4. Handwashing techniques, standard precautions, infection
risk-reduction behavior, and other infection control measures specified in
22VAC40-73-100;
5. Confidential treatment of personal information;
6. Requirements regarding the rights and responsibilities
of residents;
7. Requirements and procedures for detecting and reporting
suspected abuse, neglect, or exploitation of residents and for mandated
reporters, the consequences for failing to make a required report, as set out
in § 63.2-1606 of the Code of Virginia;
8. Procedures for reporting and documenting incidents as
required in 22VAC40-73-70;
9. Methods of alleviating common adjustment problems that
may occur when a resident moves from one residential environment to another;
and
10. For direct care staff, the needs, preferences, and
routines of the residents for whom they will provide care.
[ D. Staff orientation and initial training specified
in this section may count toward the required annual training hours for the
first year. ]
22VAC40-73-130. Reports of abuse, neglect, or exploitation.
[ A. ] All staff who are mandated
reporters under § 63.2-1606 of the Code of Virginia shall report suspected
abuse, neglect, or exploitation of residents in accordance with that section.
[ B. The facility shall notify the resident's contact
person or legal representative when a report is made relating to the resident
as referenced in subsection A of this section, without identifying any
confidential information. ]
22VAC40-73-140. Administrator qualifications.
A. The administrator shall be at least 21 years of age.
B. The administrator shall be able to read and write, and
understand this chapter.
C. The administrator shall be able to perform the duties
and carry out the responsibilities required by this chapter.
D. For a facility licensed only for residential living care
that does not employ an administrator licensed by the Virginia Board of
Long-Term Care Administrators, the administrator shall:
1. Be a high school graduate or shall have a General
Education Development (GED) Certificate;
2. (i) Have successfully completed at least 30 credit hours
of postsecondary education from a college or university accredited by an
association recognized by the U.S. Secretary of Education and at least 15 of
the 30 credit hours shall be in business or human services or a combination
thereof; (ii) have successfully completed a course of study approved by the
department that is specific to the administration of an assisted living
facility; (iii) have a bachelor's degree from a college or university
accredited by an association recognized by the U.S. Secretary of Education; or
(iv) be a licensed nurse; and
3. Have at least one year of administrative or supervisory
experience in caring for adults in a residential group care facility.
The requirements of this subsection shall not apply to an
administrator of an assisted living facility employed prior to [ the
effective date of February 1, 2018 ], who met the
requirements in effect when employed and who has been continuously employed as
an assisted living facility administrator.
E. For a facility licensed for both residential and
assisted living care, the administrator shall be licensed [ as an
assisted living facility administrator or nursing home administrator ]
by the Virginia Board of Long-Term Care Administrators [ as
required by § 63.2-1803 pursuant to Chapter 31 (§ 54.1-3100 et seq.)
of Title 54.1 ] of the Code of Virginia.
22VAC40-73-150. Administrator provisions and
responsibilities.
A. Each facility shall have an administrator of record.
B. If an administrator dies, resigns, is discharged, or
becomes unable to perform his duties, the facility shall immediately employ a
new administrator or appoint a qualified acting administrator [ so
that no lapse in administrator coverage occurs ].
1. The facility shall notify the department's regional
licensing office in writing within 14 days of a change in a facility's
administrator, including [ but not limited to ] the
resignation of an administrator, appointment of an acting administrator, and
appointment of a new administrator, except that the time period for
notification may differ as specified in subdivision 2 of this subsection.
2. [ A For a ] facility
licensed for both residential and assisted living care [ shall
comply with the notice requirements set out in § 63.2-1803 B of the Code
of Virginia, the facility shall immediately notify the Virginia
Board of Long-Term Care Administrators and the department's regional licensing
office that a new licensed administrator has been employed or that the facility
is operating without an administrator licensed by the Virginia Board of
Long-Term Administrators, whichever is the case, and provide the last date of
employment of the previous licensed administrator ].
3. For a facility licensed for both residential and
assisted living care, when an acting administrator is named, he shall
[ meet the qualifications and notice requirements set out in
§ 63.2-1803 B of the Code of Virginia notify the department's
regional licensing office of his employment, and if he is intending to assume
the position permanently, submit a completed application for an approved
administrator-in-training program to the Virginia Board of Long-Term Care
Administrators within 10 days of employment ].
4. [ For a facility licensed for both
residential and assisted living care, the acting administrator shall be
qualified by education for an approved administrator-in-training program and
have a minimum of one year of administrative or supervisory experience in a
health care or long-term care facility or have completed such a program and be
awaiting licensure.
5. ] A facility licensed only for residential
living care may be operated by an acting administrator for no more than 90 days
from the last date of employment of the administrator.
[ 5. A facility licensed for both residential and
assisted living care may be operated by an acting administrator in accordance
with the time frames set out in § 63.2-1803 B and C of the Code of Virginia.
6. A facility licensed for both residential and assisted
living care may be operated by an acting administrator for no more than 150
days, or not more than 90 days if the acting administrator has not applied for
licensure, from the last date of employment of the licensed administrator.
Exception: An acting administrator may be granted one
extension of up to 30 days in addition to the 150 days, as specified in this
subdivision, upon written request to the department's regional licensing
office. An extension may only be granted if the acting administrator (i) has
applied for licensure as a long-term care administrator pursuant to Chapter 31
(§ 54.1-3100 et seq.) of Title 54.1 of the Code of Virginia, (ii) has completed
the administrator-in-training program, and (iii) is awaiting the results of the
national examination. If a 30-day extension is granted, the acting
administrator shall immediately submit written notice of such to the Virginia
Board of Long-Term Care Administrators. ]
[ 6. 7. ] A person may not
become an acting administrator at any assisted living facility if the Virginia
Board of Long-Term Care Administrators has refused to issue or renew,
suspended, or revoked his assisted living facility or nursing home
administrator license.
[ 7. 8. ] No assisted living
facility shall operate under the supervision of an acting administrator
pursuant to §§ 54.1-3103.1 and 63.2-1803 of the Code of Virginia more than one
time during any two-year period unless authorized to do so by the department.
C. The administrator shall be responsible for the general
administration and management of the facility and shall oversee the day-to-day
operation of the facility. This shall include [ but shall not be
limited to ] responsibility for:
1. Ensuring that care is provided to residents in a manner
that protects their health, safety, and well-being;
2. Maintaining compliance with applicable laws and
regulations;
3. Developing and implementing all policies, procedures,
and services as required by this chapter;
4. Ensuring staff and volunteers comply with residents'
rights;
5. Maintaining buildings and grounds;
6. Recruiting, hiring, training, and supervising staff; and
7. Ensuring the development, implementation, and monitoring
of an individualized service plan for each resident, except that a plan is not
required for a resident with independent living status.
D. The administrator shall report to the Director of the
Department of Health Professions information required by and in accordance with
§ 54.1-2400.6 of the Code of Virginia regarding any person (i) licensed,
certified, or registered by a health regulatory board or (ii) holding a
multistate licensure privilege to practice nursing or an applicant for
licensure, certification, or registration. Information required to be reported,
under specified circumstances includes [ but shall not be
limited to ] substance abuse and unethical or fraudulent
conduct.
E. For a facility licensed only for residential living
care, either the administrator or a designated assistant who meets the
qualifications of the administrator shall be awake and on duty on the premises
at least 40 hours per week with no fewer than 24 of those hours being during
the day shift on weekdays.
Exceptions:
1. 22VAC40-73-170 allows a shared administrator for smaller
facilities.
2. If the administrator is licensed as an assisted living
facility administrator or nursing home administrator by the Virginia Board of
Long-Term Care Administrators, the provisions regarding the administrator in
subsection F of this section apply. When such is the case, there is no
requirement for a designated assistant.
F. For a facility licensed for both residential and
assisted living care, the administrator shall serve on a full-time basis as the
on-site agent of the licensee and shall be responsible for the day-to-day
administration and management of the facility, except as provided in
22VAC40-73-170.
G. The administrator, acting administrator, or as allowed
in subsection E of this section, designated assistant administrator, shall not
be a resident of the facility.
22VAC40-73-160. Administrator training.
A. For a facility licensed only for residential living
care that does not employ a licensed administrator, the administrator shall
attend at least 20 hours of training related to management or operation of a
residential facility for adults or relevant to the population in care within 12
months from the [ starting ] date of employment and
annually thereafter from that date. At least two of the required 20 hours of
training shall focus on infection control and prevention, and when adults with
mental impairments reside in the facility, at least six of the required 20
hours shall focus on topics related to residents' mental impairments.
Documentation of attendance shall be retained at the facility and shall include
type of training, name of the entity that provided the training, and date and
number of hours of training.
B. All licensed administrators shall meet the continuing
education requirements for continued licensure.
C. Any administrator who has not previously undergone the
training specified in 22VAC40-73-40 C shall be required to complete that
training within two months of employment as administrator of the facility. The
training may be counted toward the annual training requirement for the first
year, except that for licensed administrators, whether the training counts
toward continuing education and for what period of time depends upon the
administrator licensure requirements. [ Administrators employed
prior to December 28, 2006, are not required to complete this training. ]
D. Administrators who supervise medication aides,
[ as allowed by 22VAC40-73-670 3 b, ] but are not
registered medication aides themselves, shall successfully complete a training
program approved by the Virginia Board of Nursing for the registration of
medication aides. The training program for such administrators must include a
minimum of 68 hours of student instruction and training, but need not include
the prerequisite for the program or the written examination for registration.
The training shall be completed prior to supervising medication aides and may
be counted toward the annual training requirement in subsection A of this
section, except that for licensed administrators, whether the training counts
toward continuing education and for what period of time depends upon the
administrator licensure requirements. The following exceptions apply:
1. The administrator is licensed by the Commonwealth of
Virginia to administer medications; or
2. Medication aides are supervised by an individual
employed full time at the facility who is licensed by the Commonwealth of
Virginia to administer medications.
E. Administrators who have completed the training program
specified in subsection D of this section and who supervise medication aides
shall be required to annually have (i) four hours of training in medication
administration specific to the facility population or (ii) a refresher course
in medication administration offered by a Virginia Board of Nursing approved
program. Administrators are exempt from this annual medication training or
refresher course during the first year after completion of the training program
noted in subsection D of this section. [ This For
unlicensed administrators of a facility licensed only for residential living
care this ] annual medication administration training or course may
[ not ] be counted toward the annual training
requirement specified in subsection A of this section. For licensed
administrators, whether the training counts toward continuing education and for
what period of time depends upon the administrator licensure requirements.
F. If a designated assistant administrator, as allowed in
22VAC40-73-150 E supervises medication aides, the requirements of subsections D
and E of this section apply to the designated assistant administrator.
22VAC40-73-170. Shared administrator for smaller facilities.
A. An administrator [ of a facility licensed
only for residential living care, ] who is not licensed as an
assisted living facility administrator or nursing home administrator by the
Virginia Board of Long-Term Care Administrators [ , ] is
allowed to be present at a facility for fewer than the required minimum 40
hours per week in order to serve multiple facilities, without a designated
assistant, under the following conditions:
1. The administrator shall serve no more than four
facilities.
2. The combined total licensed capacity of the facilities
served by the administrator shall be 40 or fewer residents.
3. The administrator shall be awake and on duty on the
premises of each facility served for at least 10 hours a week [ ,
six of which must be during the day shift ].
4. The administrator shall serve as a full-time
administrator (i.e., shall be awake and on duty on the premises of all
facilities served for a combined total of at least 40 hours a week).
5. Each of the facilities served shall be within a
30-minute average one-way travel time of the other facilities.
6. When not present at a facility, the administrator shall
be on call to that facility during the hours he is working as an administrator
and shall maintain such accessibility through suitable communication devices.
7. A designated assistant may act in place of the
administrator during the required minimum of 40 hours only if the administrator
is ill or on vacation and for a period of time that shall not exceed four
consecutive weeks. The designated assistant shall meet the qualifications of
the administrator.
8. Each of the facilities served shall have a manager,
designated and supervised by the administrator. The manager shall be awake and
on duty on the premises of the facility for the remaining part of the 40
required hours per week when the administrator or designated assistant is not
present at the facility. The manager shall meet the following qualifications
and requirements:
a. The manager shall be at least 21 years of age.
b. The manager shall be able to read and write, and
understand this chapter.
c. The manager shall be able to perform the duties and to carry
out the responsibilities of his position.
d. The manager shall:
(1) Be a high school graduate or have a General Education
Development (GED) Certificate;
(2) (i) Have successfully completed at least 30 credit
hours of postsecondary education from a college or university accredited by an
association recognized by the U.S. Secretary of Education and at least 15 of
the 30 credit hours shall be in business or human services or a combination
thereof; (ii) have successfully completed a course of study of 40 or more hours
approved by the department that is specific to the management of an assisted
living facility; (iii) have a bachelor's degree from a college or university
accredited by an association recognized by the U.S. Secretary of Education; or
(iv) be a licensed nurse; and
(3) Have at least one year of administrative or supervisory
experience in caring for adults in a residential group care facility.
e. Subdivision 8 d of this subsection does not apply to a
manager of an assisted living facility employed prior to [ the
effective date of this chapter February 1, 2018, ] who
met the requirements in effect when employed and who has been continuously
employed as an assisted living facility manager.
f. The manager shall not be a resident of the facility.
g. The manager shall complete the training specified in
22VAC40-73-40 C within two months of employment as manager. The training may be
counted toward the annual training requirement for the first year.
Exception: A manager employed prior to December 28, 2006,
who met the requirements in effect when employed and who has been continuously
employed as a manager.
h. The manager shall attend at least 20 hours of training
related to management or operation of a residential facility for adults or
relevant to the population in care within each 12-month period. When adults
with mental impairments reside in the facility, at least six of the required 20
hours of training shall focus on topics related to residents' mental
impairments and at least two of the required 20 hours on infection control and
prevention. Documentation of attendance shall be retained at the facility and
shall include title of course, name of the entity that provided the training,
and date and number of hours of training.
9. There shall be a written management plan for each
facility that describes how the administrator will oversee the care and
supervision of the residents and the day-to-day operation of the facility.
10. The minimum of 40 hours per week required for the
administrator or manager to be awake and on duty on the premises of a facility
shall include at least 24 hours during the day shift on weekdays.
B. An administrator, who is licensed as an assisted living
facility administrator or nursing home administrator by the Virginia Board of Long-Term
Care Administrators, may be responsible for the day-to-day administration and
management of multiple facilities under the following conditions:
1. The administrator shall serve no more than four
facilities.
2. The combined total licensed capacity of the facilities
served by the administrator shall be 40 or fewer residents.
3. The administrator shall serve on a full-time basis as
the on-site agent of the licensee or licensees, proportioning his time among
all the facilities served in order to ensure that he provides sufficient
administrative and management functions to each facility.
4. Each of the facilities served shall be within a
30-minute average one-way travel time of the other facilities.
5. When not present at a facility, the administrator shall
be on call to that facility during the hours he is working as an administrator
and shall maintain such accessibility through suitable communication devices.
6. Each of the facilities served shall have a manager,
designated and supervised by the administrator, to assist the administrator in
overseeing the care and supervision of the residents and the day-to-day
operation of the facility. The majority of the time, the administrator and the
manager shall be present at a facility at different times to ensure appropriate
oversight of the facility. The manager shall meet the qualifications and
requirements specified in subdivision A 8 of this section.
Exception: In regard to subdivision A 8 of this section,
the reference to 40 hours is not relevant to a facility to which this
subsection applies (i.e., a facility with a licensed administrator).
7. There shall be a written management plan for each
facility that includes written policies and procedures that describe how the
administrator shall oversee the care and supervision of the residents and the
day-to-day operation of the facility.
C. This section shall not apply to an administrator who
serves both an assisted living facility and a nursing home as provided for in
22VAC40-73-180.
22VAC40-73-180. Administrator of both assisted living
facility and nursing home.
A. Any person meeting the qualifications for a licensed
nursing home administrator pursuant to § 54.1-3103 of the Code of Virginia
may serve as the administrator of both an assisted living facility and a
licensed nursing home, provided the assisted living facility and licensed
nursing home are part of the same building.
B. Whenever an assisted living facility and a licensed
nursing home have a single administrator, there shall be a written management
plan that addresses the care and supervision of the assisted living facility
residents. The management plan shall include [ , but not be
limited to, ] the following:
1. Written policies and procedures that describe how the
administrator will oversee the care and supervision of the residents and the
day-to-day operation of the facility.
2. If the administrator does not provide the direct
management of the assisted living facility or only provides a portion thereof,
the plan shall specify a designated individual who shall serve as manager and
who shall be supervised by the administrator.
3. The manager referred to in subdivision 2 of this
subsection shall be on site and meet the qualifications and requirements of
22VAC40-73-170 A 8, A 9, and A 10.
22VAC40-73-190. Designated direct care staff person in
charge.
A. When the administrator, the designated assistant, or
the manager is not awake and on duty on the premises, there shall be a
designated direct care staff member in charge on the premises. However, when no
residents are present at the facility, the designated staff person in charge
does not have to be on the premises.
B. The specific duties and responsibilities of the
designated direct care staff member in charge shall be determined by the
administrator.
C. Prior to being placed in charge, the staff member shall
be informed of and receive training on his duties and responsibilities and
provided written documentation of such duties and responsibilities.
D. The staff member shall be awake and on duty on the premises
while in charge.
E. The staff member in charge shall be capable of
protecting the physical and mental well-being of the residents.
F. The administrator shall ensure that the staff member in
charge is prepared to carry out his duties and responsibilities and respond
appropriately in case of an emergency.
G. The staff member in charge shall not be a resident of
the facility.
22VAC40-73-200. Direct care staff qualifications.
A. Direct care staff shall be at least 18 years of age
unless certified in Virginia as a nurse aide.
B. Direct care staff who are responsible for caring for
residents with special health care needs shall only provide services within the
scope of their practice and training.
C. Direct care staff shall meet one of the requirements in
this subsection. If the staff does not meet the requirement at the time of
employment, he shall successfully meet one of the requirements in this
subsection within two months of employment. Licensed health care professionals
practicing within the scope of their profession are not required to complete
the training in this subsection.
1. Certification as a nurse aide issued by the Virginia
Board of Nursing.
2. Successful completion of a Virginia Board of
Nursing-approved nurse aide education program.
3. Successful completion of a nursing education program
preparing for registered nurse licensure or practical nurse licensure.
4. Current enrollment in a nursing education program
preparing for registered nurse or practical nurse licensure and completion of
at least one clinical course in the nursing program that includes at least 40
hours of direct client care clinical experience.
5. Successful completion of a personal care aide training
program approved by the Virginia Department of Medical Assistance Services.
6. Successful completion of an educational program for
geriatric assistant or home health aide or for nurse aide that is not covered
under subdivision 2 of this subsection. The program shall be provided by a
hospital, nursing facility, or educational institution and may include
out-of-state training. The program must be approved by the department. To
obtain department approval:
a. The facility shall provide to the department's
representative an outline of course content, dates and hours of instruction
received, the name of the entity that provided the training, and other
pertinent information.
b. The department will make a determination based on the
information in subdivision 6 a of this subsection and provide written
confirmation to the facility when the educational program meets department
requirements.
7. Successful completion of the department-approved 40-hour
direct care staff training provided by a registered nurse or licensed practical
nurse.
8. Direct care staff employed prior to [ the
effective date of this chapter February 1, 2018, ] who
[ did not care only cared ] for residents
meeting the criteria for [ assisted living care
residential living ], and who were therefore not required to meet
this subsection [ at that time prior to February 1,
2018 ], shall successfully complete a training program consistent
with [ department requirements this subsection ]
no later than [ one year after the effective date of this
chapter, except that direct care staff of the facility employed prior to
February 1, 1996, shall not be required to complete the training in this
subsection if they (i) have been continuously employed as direct care staff in
the facility since then and (ii) have demonstrated competency on a skills
checklist dated and signed no later than February 1, 1997, by a licensed health
care professional practicing within the scope of his profession
January 31, 2019 ].
D. The facility shall obtain a copy of the certificate
issued or other documentation indicating that the person has met one of the
requirements of subsection C of this section, which shall be part of the staff
member's record in accordance with 22VAC40-73-250.
E. The administrator shall develop and implement a written
plan for supervision of direct care staff who have not yet met the requirements
as allowed for in subsection C of this section.
22VAC40-73-210. Direct care staff training.
A. In a facility licensed only for residential living
care, all direct care staff shall attend at least 14 hours of training
annually.
B. In a facility licensed for both residential and
assisted living care, all direct care staff shall attend at least 18 hours of
training annually.
C. Training for the first year shall commence no later
than 60 days after employment.
D. The training shall be in addition to (i) required first
aid training; (ii) CPR training, if taken; and (iii) for medication aides,
continuing education required by the Virginia Board of Nursing.
E. The training shall be relevant to the population in
care and shall be provided by a qualified individual through in-service
training programs or institutes, workshops, classes, or conferences.
F. At least two of the required hours of training shall
focus on infection control and prevention. When adults with mental impairments
reside in the facility, at least four of the required hours shall focus on
topics related to residents' mental impairments.
G. Documentation of the type of training received, the
entity that provided the training, number of hours of training, and dates of
the training shall be kept by the facility in a manner that allows for
identification by individual staff person and is considered part of the staff
member's record.
Exception: Direct care staff who are licensed health care
professionals or certified nurse aides shall attend at least 12 hours of annual
training.
22VAC40-73-220. Private duty personnel.
A. When private duty personnel from licensed home care
organizations provide direct care or companion services to residents in an
assisted living facility, the following applies:
1. Before direct care or companion services are initiated,
the facility shall obtain, in writing, information on the type and frequency of
the services to be delivered to the resident by private duty personnel, review
the information to determine if it is acceptable, and provide notification to
the home care organization regarding any needed changes.
2. The direct care or companion services provided by
private duty personnel to meet identified needs shall be reflected on the
resident's individualized service plan.
3. The facility shall ensure that the requirements of
22VAC40-73-250 D 1 through D 4 regarding tuberculosis are applied to private
duty personnel and that the required reports are maintained by the facility or
the licensed home care organization [ , based on written
agreement between the two ].
4. The facility shall provide orientation and training to
private duty personnel regarding the facility's policies and procedures related
to the duties of private duty personnel.
5. The facility shall ensure that documentation of resident
care required by this chapter is maintained.
6. The facility shall monitor the delivery of direct care
and companion services to the resident by private duty personnel.
B. When private duty personnel who are not employees of a
licensed home care organization provide direct care or companion services to
residents in an assisted living facility, the requirements listed under
subdivisions [ A ] 2 through [ A ]
6 [ in subsection A ] of this section apply.
In addition, before direct care or companion services are initiated, the
facility shall:
1. Obtain, in writing, information on the type and
frequency of the services to be delivered to the resident by private duty
personnel, review the information to determine if it is acceptable, and provide
notification to whomever has hired the private duty personnel regarding any
needed changes.
2. Ensure that private duty personnel are qualified for the
types of direct care or companion services they are responsible for providing
to residents and maintain documentation of the qualifications.
[ 3. Review an original criminal history record report
issued by the Virginia Department of State Police, Central Criminal Records
Exchange, for each private duty personnel.
a. The report must be reviewed prior to initiation of
services.
b. The date of the report must be no more than 90 days
prior to the date of initiation of services, except that if private duty
personnel change clients in the same facility with a lapse in service of not
more than 60 days, a new criminal history record report shall not be required.
c. The administrator shall determine conformance to
facility policy regarding private duty personnel and criminal history to
protect the welfare of residents. The policy must be in writing. If private
duty personnel are denied the ability to provide direct care or companion
services due to convictions appearing on their criminal history record report,
a copy of the report shall be provided to the private duty personnel.
d. The report and documentation that it was reviewed shall
be maintained at the facility while the private duty person is at the facility
and for one year after the last date of work.
e. Criminal history reports shall be maintained in locked
files accessible only to the licensee, administrator, board president, or the
respective designee.
f. Further dissemination of the criminal history record
report information is prohibited other than to the commissioner's
representative or a federal or state authority or court as may be required to
comply with an express requirement of law for such further dissemination. ]
C. The requirements of subsections A and B of this section
shall not apply to private duty personnel who only provide skilled nursing
treatments as specified in 22VAC40-73-470 B. [ However,
depending upon the circumstances, there may be other sections of this chapter
that apply in such cases (e.g., inclusion on the resident's individualized
service plan). ]
22VAC40-73-230. Staff duties performed by residents.
A. Any resident who performs any staff duties shall meet
the personnel and health requirements for that position.
B. There shall be a written agreement between the facility
and any resident who performs staff duties.
1. The agreement shall specify duties, hours of work, and
compensation.
2. The agreement shall not be a condition for admission or
continued residence.
3. The resident shall enter into such an agreement
voluntarily.
22VAC40-73-240. Volunteers.
A. Any volunteers used shall:
1. Have qualifications appropriate to the services they
render; and
2. Be subject to laws and regulations governing
confidential treatment of personal information.
B. No volunteer shall be permitted to serve in an assisted
living facility without the permission of or unless under the supervision of a
person who has received a criminal record clearance pursuant to § 63.2-1720 of
the Code of Virginia.
C. The facility shall maintain the following documentation
on volunteers:
1. Name.
2. Address.
3. Telephone number.
4. Emergency contact information.
5. Information on any qualifications, orientation,
training, and education required by this chapter, including any specified
relevant information.
D. Duties and responsibilities of all volunteers shall be
clearly differentiated from those of persons regularly filling staff positions.
E. At least one staff person shall be assigned
responsibility for coordinating volunteer services, including overall
selection, supervision, and orientation of volunteers.
F. Prior to beginning volunteer service, all volunteers
shall attend an orientation including information on their duties and
responsibilities, resident rights, confidentiality, emergency procedures,
infection control, the name of their supervisor, and reporting requirements
[ and. Volunteers shall ] sign and date
a statement that they have received and [ understood
understand ] this information.
G. All volunteers shall be under the supervision of a
designated staff person when residents are present.
22VAC40-73-250. Staff records and health requirements.
A. A record shall be established for each staff person. It
shall not be destroyed until at least two years after employment is terminated.
B. All staff records shall be retained at the facility,
treated confidentially, and kept in a locked area.
Exception: Emergency contact information required by
subdivision C 9 of this section shall also be kept in an easily accessible
place.
C. Personal and social data to be maintained on
staff and included in the staff record are as follows:
1. Name;
2. Birth date;
3. Current address and telephone number;
4. Position title and date employed;
5. Verification that the staff person has received a
copy of his current job description;
6. An original criminal record report and a sworn disclosure
statement;
7. Documentation of qualifications for employment related
to the staff person's position, including any specified relevant information;
8. Verification of current professional license,
certification, registration, medication aide provisional authorization, or
completion of a required approved training course;
9. Name and telephone number of person to contact in an
emergency;
10. Documentation of orientation, training, and education
required by this chapter, including any specified relevant information
[ , with annual training requirements determined by starting date of
employment ]; and
11. Date of termination of employment.
D. Health information required by these standards shall be
maintained at the facility and be included in the staff record for each staff
person, and also shall be maintained at the facility for each household member
who comes in contact with residents.
1. Initial tuberculosis examination and report.
a. Each staff person on or within seven days prior to the
first day of work at the facility and each household member prior to coming in
contact with residents shall submit the results of a risk assessment,
documenting the absence of tuberculosis in a communicable form as evidenced by
the completion of the current screening form published by the Virginia
Department of Health or a form consistent with it.
b. The risk assessment shall be no older than 30 days.
2. Subsequent tuberculosis evaluations and reports.
a. Any staff person or household member required to be
evaluated who comes in contact with a known case of infectious tuberculosis
shall be screened as determined appropriate based on consultation with the
local health department.
b. Any staff person or household member required to be
evaluated who develops chronic respiratory symptoms of three weeks duration
shall be evaluated immediately for the presence of infectious tuberculosis.
c. Each staff person or household member required to
be evaluated shall annually submit the results of a risk assessment,
documenting that the individual is free of tuberculosis in a communicable form
as evidenced by the completion of the current screening form published by the
Virginia Department of Health or a form consistent with it.
3. Any individual suspected to have infectious tuberculosis
shall not be allowed to return to work or have any contact with the residents
and personnel of the facility until a physician has determined that the
individual is free of infectious tuberculosis.
4. The facility shall report any active case of
tuberculosis developed by a staff person or household member required to be
evaluated to the local health department.
E. Record of any vaccinations and immunizations received
as noted in 22VAC40-73-100 D.
[ F. At the request of the administrator of the facility
or the department, a report of examination by a licensed physician shall be
obtained when there are indications that the safety of residents in care may be
jeopardized by the physical or mental health of a staff person or household
member.
G. Any staff person or household member who, upon
examination or as a result of tests, shows indication of a physical or mental
condition that may jeopardize the safety of residents in care or that would
prevent performance of duties:
1. Shall be removed immediately from contact with
residents; and
2. Shall not be allowed contact with residents until the
condition is cleared to the satisfaction of the examining physician as
evidenced by a signed statement from the physician. ]
22VAC40-73-260. First aid and CPR certification.
A. First aid.
1. Each direct care staff member [ who does
not have current certification in first aid as specified in subdivision 2 of
this subsection shall receive certification in first aid within 60 days of
employment shall maintain current certification in first aid ]
from the American Red Cross, American Heart Association, National Safety
Council, American Safety and Health Institute, community college, hospital,
volunteer rescue squad, or fire department. The certification must either be in
adult first aid or include adult first aid. [ To be considered
current, first aid certification from community colleges, hospitals, volunteer
rescue squads, or fire departments shall have been issued within the past three
years. ]
2. Each direct care staff member [ shall
maintain current certification in first aid from an organization listed in
subdivision 1 of this subsection. To be considered current, first aid
certification from community colleges, hospitals, volunteer rescue squads, or
fire departments shall have been issued within the past three years. The
certification must either be in adult first aid or include adult first aid
who does not have current certification in first aid as specified in
subdivision 1 of this subsection shall receive certification in first aid
within 60 days of employment ].
3. A direct care staff member who is a registered nurse
[ or, ] licensed practical nurse [ ,
or currently certified emergency medical technician, first responder, or
paramedic ] does not have to meet the requirements of subdivisions
1 and 2 of this subsection.
4. [ There In each building,
there ] shall [ either ] be (i) at least
one staff person [ on the premises ] at all
times who has current certification in first aid that meets the specifications
of this section [ unless the facility has; or (ii) ]
an on-duty registered nurse [ or, ] licensed
practical nurse [ , or currently certified emergency medical
technician, first responder, or paramedic ].
B. Cardiopulmonary resuscitation (CPR).
1. There shall be at least one staff person [ on
the premises in each building ] at all times who has
current certification in CPR from the American Red Cross, American Heart
Association, National Safety Council, or American Safety and Health Institute,
or who has current CPR certification issued within the past two years by a
community college, hospital, volunteer rescue squad, or fire department
[ ,. ] The certification must either be in
adult CPR or include adult CPR.
2. In facilities licensed for over [ 50
100 ] residents, at least one additional staff person who meets the
requirements of subdivision 1 of this subsection shall be available for every
[ 50 100 ] residents, or portion thereof.
More staff persons who meet the requirements in subdivision 1 of this subsection
shall be available if necessary to [ assure ensure ]
quick access to residents in the event of the need for CPR.
C. A listing of all staff who have current certification
in first aid or CPR, in conformance with subsections A and B of this section, shall
be posted in the facility so that the information is readily available to all
staff at all times. The listing must indicate by staff person whether the
certification is in first aid or CPR or both and must be kept up to date.
D. A staff person with current certification in first aid
and CPR shall be present for the duration of facility-sponsored activities off
the facility premises, when facility staff are responsible for oversight of one
or more residents during the activity.
22VAC40-73-270. Direct care staff training when aggressive
or restrained residents are in care.
The following training is required for staff in assisted
living facilities that accept, or have in care, residents who are or who may be
aggressive or restrained:
1. Aggressive residents.
a. Direct care staff shall be trained in methods of dealing
with residents who have a history of aggressive behavior or of dangerously
agitated states prior to being involved in the care of such residents.
b. This training shall include, at a minimum, information,
demonstration, and practical experience in self-protection and in the
prevention and de-escalation of aggressive behavior.
2. Restrained residents.
a. Prior to being involved in the care of residents in
restraints, direct care staff shall be appropriately trained in caring for the
health needs of such residents.
b. This training shall include, at a minimum, information,
demonstration, and experience in:
(1) The proper techniques for applying and monitoring
restraints;
(2) Skin care appropriate to prevent redness, breakdown,
and decubiti;
(3) Active and active assisted range of motion to prevent
contractures;
(4) [ Assessment Observing and
reporting signs and symptoms that may be indicative of obstruction ] of
blood [ circulation to prevent obstruction of blood ]
flow [ and promote adequate blood circulation to all
in ] extremities;
(5) Turning and positioning to prevent skin breakdown and
keep the lungs clear;
(6) Provision of sufficient bed clothing and covering to
maintain a normal body temperature;
(7) Provision of additional attention to meet the physical,
mental, emotional, and social needs of the restrained resident; and
(8) Awareness of possible risks associated with restraint
use and methods of reducing or eliminating such risks.
3. The training described in subdivisions 1 and 2 of this
section shall meet the following criteria:
a. Training shall be provided by a qualified health
professional.
b. A written description of the content of this training, a
notation of the entity providing the training, and the names of direct care
staff receiving the training shall be maintained by the facility except that,
if the training is provided by the department, only a listing of direct care
staff trained and the date of training are required.
4. Refresher training for all direct care staff shall be
provided at least annually or more often as needed.
a. The refresher training shall encompass the techniques
described in subdivision 1 or 2 of this section, or both.
b. [ A record of the The ]
refresher training [ and a description of the content of the
training shall be maintained by the facility shall meet the
requirements of subdivision 3 of this section ].
Part IV
Staffing and Supervision
22VAC40-73-280. Staffing.
A. The assisted living facility shall have staff adequate
in knowledge, skills, and abilities and sufficient in numbers to provide
services to attain and maintain the physical, mental, and psychosocial well-being
of each resident as determined by resident assessments and individualized
service plans, and to [ assure ensure ] compliance
with this chapter.
B. The assisted living facility shall maintain a written
plan that specifies the number and type of direct care staff required to meet
the day-to-day, routine direct care needs and any identified special needs for
the residents in care. This plan shall be directly related to actual resident
acuity levels and individualized care needs.
C. An adequate number of staff persons shall be on the
premises at all times to implement the approved fire and emergency evacuation
plan.
D. At least one direct care staff member shall be awake
and on duty at all times in each building when at least one resident is
present.
Exception: For a facility licensed for residential living
care only, in buildings that house 19 or fewer residents, the staff member on
duty does not have to be awake during the night if (i) none of the residents
have care needs that require a staff member awake at night and (ii) the
facility ensures compliance with the requirements of 22VAC40-73-930 C.
[ E. No employee shall be permitted to work in a position
that involves direct contact with a resident until a background check has been
received as required in the Regulation for Background Checks for Assisted
Living Facilities and Adult Day Care Centers (22VAC40-90), unless such person
works under the direct supervision of another employee for whom a background
check has been completed in accordance with the requirements of the background
check regulation (22VAC40-90). ]
22VAC40-73-290. Work schedule and posting.
A. The facility shall maintain a written work schedule
that includes the names and job classifications of all staff working each
shift, with an indication of whomever is in charge at any given time.
1. Any absences, substitutions, or other changes shall be
noted on the schedule.
2. The facility shall maintain a copy of the schedule for
two years.
B. The facility shall develop and implement a procedure
for posting the name of the current on-site person in charge, as provided for
in this chapter, in a place in the facility that is conspicuous to the
residents and the public.
22VAC40-73-300. Communication among staff.
A. Procedures shall be established and reviewed with staff
for communication among administrators, designated assistant administrators,
managers, and designated staff persons in charge, as applicable to a facility,
to ensure stable operations and sound transitions.
B. A method of written communication shall be utilized as
a means of keeping direct care staff on all shifts informed of significant
happenings or problems experienced by residents, including complaints and
incidents or injuries related to physical or mental conditions.
1. A record shall be kept of the written communication for
at least the past two years.
2. The information shall be included in the records of the
involved residents.
Part V
Admission, Retention, and Discharge of Residents
22VAC40-73-310. Admission and retention of residents.
A. No resident shall be admitted or retained:
1. For whom the facility cannot provide or secure
appropriate care;
2. Who requires a level of care or service or type of
service for which the facility is not licensed or which the facility does not
provide; or
3. If the facility does not have staff appropriate in
numbers and with appropriate skill to provide the care and services needed by
the resident.
B. Assisted living facilities shall not admit an
individual before a determination has been made that the facility can meet the
needs of the [ resident individual ]. The
facility shall make the determination based upon the following information at a
minimum:
1. The completed UAI.
2. The physical examination report.
3. A documented interview between the administrator or a
designee responsible for admission and retention decisions, the [ resident
individual ], and his legal representative, if any. In some cases,
[ medical ] conditions may create special
circumstances that make it necessary to hold the interview on the date of
admission.
4. A mental health screening in accordance with
22VAC40-73-330 A.
C. An assisted living facility shall only admit or retain
[ residents individuals ] as permitted by its
use and occupancy classification and certificate of occupancy. The ambulatory
or nonambulatory status, as defined in 22VAC40-73-10, of an individual is based
upon:
1. Information contained in the physical examination
report; and
2. Information contained in the most recent UAI.
D. Based upon review of the UAI prior to admission of a
resident, the assisted living facility administrator shall provide written
assurance to the resident that the facility has the appropriate license to meet
his care needs at the time of admission. Copies of the written assurance shall
be given to the legal representative and case manager, if any, and a copy
signed by the resident or his legal representative shall be kept in the
resident's record.
E. All residents shall be 18 years of age or older.
F. No person shall be admitted without his consent and
agreement, or that of his legal representative with demonstrated legal
authority to give such consent on his behalf.
G. The facility shall not require a person to relinquish
the rights specified in § 63.2-1808 of the Code of Virginia as a condition of
admission or retention.
H. In accordance with § 63.2-1805 D of the Code of
Virginia, assisted living facilities shall not admit or retain individuals with
any of the following conditions or care needs:
1. Ventilator dependency;
2. Dermal ulcers III and IV except those stage III ulcers
that are determined by an independent physician to be healing;
3. Intravenous therapy or injections directly into the
vein, except for intermittent intravenous therapy managed by a health care
professional licensed in Virginia except as permitted in subsection K of this
section;
4. Airborne infectious disease in a communicable state that
requires isolation of the individual or requires special precautions by the
caretaker to prevent transmission of the disease, including diseases such as
tuberculosis and excluding infections such as the common cold;
5. Psychotropic medications without appropriate diagnosis
and treatment plans;
6. Nasogastric tubes;
7. Gastric tubes except when the individual is capable of
independently feeding himself and caring for the tube or as permitted in subsection
K of this section;
8. Individuals presenting an imminent physical threat or
danger to self or others;
9. Individuals requiring continuous licensed nursing care;
10. Individuals whose physician certifies that placement is
no longer appropriate;
11. Unless the individual's independent physician
determines otherwise, individuals who require maximum physical assistance as
documented by the UAI and meet Medicaid nursing facility level of care criteria
as defined in the State Plan for Medical Assistance Program (12VAC30-10); or
12. Individuals whose physical or mental health care needs
cannot be met in the specific assisted living facility as determined by the
facility.
I. When a resident has a stage III dermal ulcer that has
been determined by an independent physician to be healing, periodic observation
and any necessary dressing changes shall be performed by a licensed health care
professional under a physician's or other prescriber's treatment plan.
J. Intermittent intravenous therapy may be provided to a
resident for a limited period of time on a daily or periodic basis by a
licensed health care professional under a physician's or other prescriber's
treatment plan. When a course of treatment is expected to be ongoing and
extends beyond a two-week period, evaluation is required at two-week intervals
by the licensed health care professional.
K. At the request of the resident in an assisted living
facility and when his independent physician determines that it is appropriate,
care for the conditions or care needs (i) specified in subdivisions [ G
H ] 3 and [ G H ] 7 of this
section may be provided to the resident by a physician licensed in Virginia, a
nurse licensed in Virginia or a nurse holding a multistate licensure privilege
under a physician's treatment plan, or a home care organization licensed in
Virginia or (ii) specified in subdivision [ G H ]
7 of this section may also be provided to the resident by facility staff if
the care is delivered in accordance with the regulations of the Board of
Nursing for delegation by a registered nurse, [ 18VAC90-20-420
through 18VAC90-20-460 18VAC90-19-240 through 18VAC90-19-280 ],
and 22VAC40-73-470 E. This standard does not apply to recipients of auxiliary
grants.
L. When care for a resident's special medical needs is provided
by licensed staff of a home care agency, the assisted living facility direct
care staff may receive training from the home care agency staff in appropriate
treatment monitoring techniques regarding safety precautions and actions to
take in case of emergency. This training is required prior to direct care staff
assuming such duties. Updated training shall be provided as needed. The
training shall include content based on the resident's specific needs. [ The
training shall be documented and maintained in the staff record. ]
M. Notwithstanding § 63.2-1805 of the Code of
Virginia, at the request of the resident, hospice care may be provided in an
assisted living facility under the same requirements for hospice programs
provided in Article 7 (§ 32.1-162.1 et seq.) of Chapter 5 of Title 32.1 of
the Code of Virginia if the hospice program determines that such program is
appropriate for the resident. If hospice care is provided, there shall be a
written agreement between the assisted living facility and any hospice program
that provides care in the facility. The agreement shall include:
1. Policies and procedures to ensure appropriate
communication and coordination between the facility and the hospice program;
2. Specification of the roles and responsibilities of each
entity, including listing of the services that will generally be provided by
the facility and the services that will generally be provided by the hospice
program;
3. Acknowledgment that the services provided to each
resident shall be reflected on the individualized service plan as required in
22VAC40-73-450 D; and
4. Signatures of an authorized representative of the
facility and an authorized representative of the hospice program.
22VAC40-73-320. Physical examination and report.
A. Within the 30 days preceding admission, a person shall
have a physical examination by an independent physician. The report of such
examination shall be on file at the assisted living facility and shall contain
the following:
1. [ The person's name, address, and telephone
number;
2. ] The date of the physical examination;
[ 2. 3. ] Height, weight,
and blood pressure;
[ 3. 4. ] Significant
medical history;
[ 4. 5. ] General physical
condition, including a systems review as is medically indicated;
[ 5. 6. ] Any diagnosis or
significant problems;
[ 6. 7. ] Any known
allergies and description of the person's reactions;
[ 7. 8. ] Any
recommendations for care including medication, diet, and therapy;
[ 8. 9. ] Results of a risk
assessment documenting the absence of tuberculosis in a communicable form as
evidenced by the completion of the current screening form published by the
Virginia Department of Health or a form consistent with it;
[ 9. 10. ] A statement that
the individual does not have any of the conditions or care needs prohibited by
22VAC40-73-310 H;
[ 10. 11. ] A statement that
specifies whether the individual is considered to be ambulatory or
nonambulatory [ as defined in this chapter ];
[ 11. 12. ] A statement that
specifies whether the individual is or is not capable of self-administering
medication; and
[ 12. 13. ] The signature of
the examining physician or his designee.
B. Subsequent tuberculosis evaluations.
1. A risk assessment for tuberculosis shall be completed
annually on each resident as evidenced by the completion of the current
screening form published by the Virginia Department of Health or a form
consistent with it.
2. Any resident who comes in contact with a known case of
infectious tuberculosis shall be screened as deemed appropriate in consultation
with the local health department.
3. Any resident who develops respiratory symptoms of three
or more weeks duration with no medical explanation shall be referred for
evaluation for the presence of infectious tuberculosis.
4. If a resident develops an active case of tuberculosis,
the facility shall report this information to the local health department.
C. As necessary to determine whether a resident's needs
can continue to be met in the assisted living facility, the department may
request a current physical examination [ by an independent
physician ] or psychiatric evaluation [ by an
independent physician ], including diagnosis and assessments.
22VAC40-73-325. Fall risk [ assessment
rating ].
A. For residents who meet the criteria for assisted living
care, by the time the comprehensive ISP is completed, a [ written ]
fall risk [ assessment rating ] shall
be [ conducted completed ].
B. The fall risk [ assessment
rating ] shall be reviewed and updated [ under each of
the following circumstances ]:
1. At least annually;
2. When the condition of the resident changes; and
3. After a fall.
C. Should a resident [ who meets the criteria
for assisted living care ] fall, the facility must show
documentation of an analysis of the circumstances of the fall and interventions
that were initiated to prevent or reduce [ additional
risk of subsequent ] falls.
22VAC40-73-330. Mental health screening.
A. A mental health screening shall be conducted prior to
admission if behaviors or patterns of behavior occurred within the previous six
months that were indicative of mental illness, intellectual disability,
substance abuse, or behavioral disorders and that caused, or continue to cause,
concern for the health, safety, or welfare either of that individual or others who
could be placed at risk of harm by that individual.
Exceptions:
1. If it is not possible for the screening to be conducted
prior to admission, the individual may be admitted if all other admission
requirements are met. The reason for the delay shall be documented and the
screening shall be conducted as soon as possible, but no later than 30 days
after admission.
2. The screening shall not be required for individuals
under the care of a qualified mental health professional immediately prior to
admission, as long as there is documentation of the person's psychosocial and
behavioral functioning as specified in 22VAC40-73-340 A 1.
B. A mental health screening shall be conducted when a
resident displays behaviors or patterns of behavior indicative of mental illness,
intellectual disability, substance abuse, or behavioral disorders that cause
concern for the health, safety, or welfare of either that [ individual
resident ] or others who could be placed at risk of harm by the [ individual
resident ].
C. The mental health screening shall be conducted by a
qualified mental health professional having no financial interest in the
assisted living facility, directly or indirectly as an owner, officer,
employee, or as an independent contractor with the facility.
D. A copy of the screening shall be filed in the
resident's record.
E. If the screening indicates a need for mental health,
intellectual disability, substance abuse, or behavioral disorder services for
the resident, the facility shall provide:
1. Notification of the resident's need for such services to
the community services board, behavioral health authority, or other appropriate
licensed provider identified by the resident or his legal representative; and
2. Notification to the resident, authorized contact person
of record, and physician of record that mental health services have been
recommended for the resident.
22VAC40-73-340. Psychosocial and behavioral history.
A. When determining appropriateness of admission for an
individual with mental illness, intellectual disability, substance abuse, or
behavioral disorders, the following information shall be obtained by the
facility:
1. If the prospective resident is referred by a state or
private hospital, community services board, behavioral health authority, or long-term
care facility, documentation of the individual's psychosocial and behavioral
functioning shall be acquired [ prior to admission ].
2. If the prospective resident is coming from a private
residence, information about the individual's psychosocial and behavioral
functioning shall be gathered from primary sources, such as family members
[ or, ] friends [ , or
physician ]. Although there is no requirement for written
information from primary sources, the facility must document the source and
content of the information that was obtained.
B. The administrator or his designee shall document that
the individual's psychosocial and behavioral history were reviewed and used to
help determine the appropriateness of the admission.
C. If the individual is admitted, the psychosocial and
behavioral history shall be used in the development of the person's
individualized service plan and documentation of the history shall be filed in
the [ resident's ] record.
22VAC40-73-350. Sex offender information.
A. The assisted living 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 facility is located, pursuant to § 9.1-914 of the Code
of Virginia.
B. The assisted living facility shall ascertain, prior to
admission, whether a potential resident is a registered sex offender if the
facility anticipates the potential resident will have a length of stay greater
than three days or in fact stays longer than three days and shall document in
the resident's record that this was ascertained and the date the information
was obtained.
C. The assisted living facility shall ensure that each
resident or his legal representative is fully informed, prior to or at the time
of admission and annually, that he should exercise whatever due diligence he
deems necessary with respect to information on any sex offenders registered
pursuant to Chapter 9 (§ 9.1-900 et. seq.) of Title 9.1 of the Code of
Virginia, including how to obtain such information. Written acknowledgment of
having been so informed shall be provided by the resident or his legal
representative and shall be maintained in the resident's record.
D. At the same time that the person is informed as required
in subsection C of this section, the assisted living facility shall provide
notification that, upon request, the facility shall:
1. Assist the resident, prospective resident, or his legal
representative in accessing the information on registered sex offenders; and
2. Provide the resident, prospective resident, or his legal
representative with printed copies of the information on registered sex
offenders.
22VAC40-73-360. Emergency placement.
A. An emergency placement shall occur only when the
emergency is documented and approved by (i) an adult protective services worker
for public pay individuals or (ii) an independent physician or an adult
protective services worker for private pay individuals.
B. When an emergency placement occurs, the person shall remain
in the assisted living facility no longer than seven days unless all the
requirements for admission have been met and the person has been admitted.
C. The facility shall obtain sufficient information on the
person to protect the health, safety, and welfare of the [ individual
person ] while he remains at the facility as allowed by subsection
B of this section.
22VAC40-73-370. Respite care.
If an assisted living facility provides respite care as
defined in 22VAC40-73-10, the requirements of this chapter apply to the respite
care, except as follows:
1. For individuals in respite care, the ISP shall be
completed prior to the person participating in respite care and need not
include expected outcome.
2. [ Each At the ] time
an individual returns for respite care, the facility shall reevaluate the
person's condition [ and care needs, ] and as
needed, ensure that the uniform assessment instrument [ and, ]
the individualized service plan [ , and medication
orders ] are updated. The reevaluation shall include [ ,
but not be limited to, ] observation of the person; interviews
with the individual and his legal representative, if any; and consultation with
others knowledgeable about the person, as appropriate. [ The
reevaluation shall indicate in writing whether or not the person's condition or
care needs have changed and specify any changes. The reevaluation shall be
signed and dated by the staff person completing the reevaluation and by the
individual in respite care or his legal representative and shall be retained in
the individual's record. ]
3. If the period of time between respite care stays is six
months or longer, a new physical examination report shall be required prior to
the individual returning for respite care [ , except that a new
tuberculosis screening would only be required one time per year ].
The examination shall take place within 30 days prior to the person's return
for respite care.
4. The record for the individual in respite care shall
include the dates of respite care.
5. The medication review required by 22VAC40-73-690 does
not apply to individuals in respite care.
22VAC40-73-380. Resident personal and social information.
A. Prior to or at the time of admission to an assisted
living facility, the following personal and social information on a person
shall be obtained:
1. Name;
2. Last home address, and address from which resident was
received, if different;
3. Date of admission;
4. Birth date or if unknown, estimated age;
5. Birthplace, if known;
6. Marital status, if known;
7. Name, address, and telephone number of all legal
representatives, if any;
8. If there is a legal representative, copies of current
legal documents that show proof of each legal representative's authority to act
on behalf of the resident and that specify the scope of the representative's
authority to make decisions and to perform other functions;
9. Name, address, and telephone number of next of kin, if
known (two preferred);
10. Name, address, and telephone number of designated
contact person authorized by the resident or legal representative, if
appropriate, for notification purposes, including emergency notification and
notification of the need for mental health, intellectual disability, substance
abuse, or behavioral disorder services - if the resident or legal representative
is willing to designate an authorized contact person. There may be more than
one designated contact person. The designated contact person may also be listed
under another category, such as next of kin or legal representative;
11. Name, address, and telephone number of the responsible
individual stipulated in 22VAC40-73-550 H, if needed;
12. Name, address, and telephone number of personal
physician, if known;
13. Name, address, and telephone number of personal
dentist, if known;
14. Name, address, and telephone number of clergyman and
place of worship, if applicable;
15. Name, address, and telephone number of local department
of social services or any other agency, if applicable, and the name of the
assigned case manager or caseworker;
16. Service in the armed forces, if applicable;
17. Lifetime vocation, career, or primary role;
18. Special interests and hobbies;
19. Known allergies, if any;
20. Information concerning advance directives, Do Not
Resuscitate (DNR) Orders, or organ donation, if applicable; [ and
21. For residents who meet the criteria for assisted
living care, the additional information in subdivisions a, b, and c of this
subdivision 21:
a. 21. ] Previous mental health
or intellectual disability services history, if any, and if applicable for care
or services;
[ b. 22. ] Current
behavioral and social functioning including strengths and problems; and
[ c. 23. ] Any substance
abuse history if applicable for care or services.
B. The personal and social information required in
subsection A of this section shall be placed in the [ individual's
person's record and kept current ].
22VAC40-73-390. Resident agreement with facility.
A. At or prior to the time of admission, there shall be a
written [ agreement or written acknowledgment
agreement/acknowledgment ] of notification dated and signed by the
resident or applicant for admission or the appropriate legal representative,
and by the licensee or administrator. This document shall include the
following:
1. Financial arrangement for accommodations, services, and
care that specifies:
a. Listing of specific charges for accommodations,
services, and care to be made to the individual resident signing the agreement,
the frequency of payment, and any rules relating to nonpayment;
b. Description of all accommodations, services, and care
that the facility offers and any related charges;
c. For an auxiliary grant recipient, a list of services
included under the auxiliary grant rate;
d. The amount and purpose of an advance payment or deposit
payment and the refund policy for such payment, except that recipients of
auxiliary grants may not be charged an advance payment or deposit payment;
e. The policy with respect to increases in charges and
length of time for advance notice of intent to increase charges;
f. If the ownership of any personal property, real estate,
money or financial investments is to be transferred to the facility at the time
of admission or at some future date, it shall be stipulated in the agreement;
and
g. The refund policy to apply when transfer of ownership,
closing of facility, or resident transfer or discharge occurs.
2. Requirements or rules to be imposed regarding resident
conduct and other restrictions or special conditions.
3. Those actions, circumstances, or conditions that would
result or might result in the resident's discharge from the facility.
4. [ Signed Specific ] acknowledgments
that:
a. Requirements or rules regarding resident conduct, other
restrictions, or special conditions have been reviewed by the resident or his
legal representative;
b. The resident or his legal representative has been
informed of the policy regarding the amount of notice required when a resident
wishes to move from the facility;
c. The resident has been informed of the policy required by
22VAC40-73-840 regarding pets living in the facility;
d. The resident has been informed of the policy required by
22VAC40-73-860 K regarding weapons;
e. The resident or his legal representative or responsible
individual as stipulated in 22VAC40-73-550 H has reviewed § 63.2-1808 of
the Code of Virginia, Rights and Responsibilities of Residents of Assisted
Living Facilities, and that the provisions of this statute have been explained
to him;
f. The resident or his legal representative or responsible
individual as stipulated in 22VAC40-73-550 H has reviewed and had explained to
him the facility's policies and procedures for implementing § 63.2-1808 of
the Code of Virginia [ , including the grievance policy and the
transfer or discharge policy ];
g. [ The resident has been informed and had
explained to him that he may refuse release of information regarding his
personal affairs and records to any individual outside the facility, except as
otherwise provided in law and except in case of his transfer to another caregiving
facility, notwithstanding any requirements of this chapter;
h. ] The resident has been informed that
interested residents may establish and maintain a resident council, that the
facility is responsible for providing assistance with the formation and maintenance
of the council, whether or not such a council currently exists in the facility,
and the general purpose of a resident council (See 22VAC40-73-830);
[ h. i. ] The resident has
been informed of the bed hold policy in case of temporary transfer or movement
from the facility, if the facility has such a policy (See 22VAC40-73-420 B);
[ I. j. ] The resident has
been informed of the policy or guidelines regarding visiting in the facility,
if the facility has such a policy or guidelines (See 22VAC40-73-540 C);
[ j. k. ] The resident has
been informed of the rules and restrictions regarding smoking on the premises
of the facility, including [ but not limited to ] that
which is required by 22VAC40-73-820;
[ k. l. ] The resident has
been informed of the policy regarding the administration and storage of
medications and dietary supplements; and
[ l. m. ] The resident has
received written assurance that the facility has the appropriate license to
meet his care needs at the time of admission, as required by 22VAC40-73-310 D.
B. Copies of the signed [ agreement or
acknowledgment of notification agreement/acknowledgment and any
updates as noted in subsection C of this section ] shall be
provided to the resident and, as appropriate, his legal representative and shall
be retained in the resident's record.
C. The original [ agreement
agreement/acknowledgment ] shall be updated whenever there are changes
[ in financial arrangements, accommodations, services, care provided
by the facility, requirements governing the resident's conduct, other
restrictions, or special conditions, to any of the policies or
information referenced or identified in the agreement/acknowledgment and dated ]
and signed by the licensee or administrator and the resident or his legal
representative. [ If the original agreement provides for
specific changes in any of these items, this standard does not apply to those
changes. ]
22VAC40-73-400. Monthly statement of charges and payments.
The facility shall provide to each resident or the
resident's legal representative, if one has been appointed, a monthly statement
that itemizes any charges made by the facility and any payments received from
the resident or on behalf of the resident during the previous calendar month
and shall show the balance due or any credits for overpayment. The facility
shall also place a copy of the monthly statement in the resident's record.
22VAC40-73-410. Orientation and related information for
residents.
A. Upon admission, the assisted living facility shall
provide an orientation for new residents and their legal representatives,
including [ but not limited to, ] emergency
response procedures, mealtimes, and use of the call system. If needed, the
orientation shall be modified as appropriate for residents with cognitive impairments.
Acknowledgment of having received the orientation shall be signed and dated by
the resident and, as appropriate, his legal representative, and such
documentation shall be kept in the resident's record.
B. Upon admission and upon request, the assisted living
facility shall provide to the resident and, if appropriate, his legal
representative, a written description of the types of staff persons working in
the facility and the services provided, including the hours such services are
available.
22VAC40-73-420. Acceptance back in facility.
A. An assisted living facility shall establish procedures
to ensure that any resident detained by a temporary detention order pursuant to
§§ 37.2-809 through 37.2-813 of the Code of Virginia is accepted back in
the assisted living facility if the resident is not involuntarily committed
pursuant to §§ 37.2-814 through 37.2-819 of the Code of Virginia. The
procedures shall include [ , but not be limited to ]:
1. Obtaining written recommendations from a qualified
mental health professional regarding supportive services necessary to address
the mental health needs of the resident returning to the facility;
2. Documenting whether the recommendations specified in
subdivision 1 of this subsection can be implemented based on facility or
community resources and whether the resident can be retained at the facility or
would need to be discharged;
3. Updating the resident's individualized service plan, as
needed; and
4. Ensuring that direct care staff involved in the care and
supervision of the resident receive clear and timely communication regarding
their responsibilities in respect to the mental health needs of the resident
and behavioral or emotional indicators of possible crisis situations.
B. If an assisted living facility allows for temporary
movement of a resident with agreement to hold a bed, it shall develop and
follow a written bed hold policy, which includes [ , but is not
limited to, ] the conditions for which a bed will be held, any
time frames, terms of payment, and circumstances under which the bed will no
longer be held. [ For recipients of an auxiliary grant, the bed
hold policy must be consistent with auxiliary grant program policy and
guidance. ]
22VAC40-73-430. Discharge of residents.
A. When actions, circumstances, conditions, or care needs
occur that will result in the discharge of a resident, discharge planning shall
begin immediately, and there shall be documentation of such, including the
beginning date of discharge planning. The resident shall be moved within 30
days, except that if persistent efforts have been made and the time frame is
not met, the facility shall document the reason and the efforts that have been
made.
B. As soon as discharge planning begins, the assisted
living facility shall notify the resident, the resident's legal representative
and designated contact person if any, of the planned discharge, the reason for
the discharge, and that the resident will be moved within 30 days unless there
are extenuating circumstances relating to inability to place the resident in
another setting within the time frame referenced in subsection A of this
section. Written notification of the actual discharge date and place of
discharge shall be given to the resident, the resident's legal representative
and contact person, if any, and additionally for public pay residents, the
eligibility worker and assessor, at least 14 days prior to the date that the
resident will be discharged.
C. The assisted living facility shall adopt and conform to
a written policy regarding the number of days notice that is required when a
resident wishes to move from the facility. Any required notice of intent to
move shall not exceed 30 days.
D. The facility shall assist the resident and his legal
representative, if any, in the discharge or transfer process. The facility
shall help the resident prepare for relocation, including discussing the
resident's destination. Primary responsibility for transporting the resident
and his possessions rests with the resident or his legal representative.
E. When a resident's condition presents an immediate and
serious risk to the health, safety, or welfare of the resident or others and
emergency discharge is necessary, [ the ] 14-day
[ advance ] notification of planned discharge does not
apply, although the reason for the relocation shall be discussed with the
resident and, when possible, his legal representative prior to the move.
F. Under emergency conditions, the resident's legal
representative, designated contact person, family, caseworker, social worker,
or any other persons, as appropriate, shall be informed as rapidly as possible,
but [ by no later than ] the close of the
day following discharge, of the reasons for the move. For public pay residents,
the eligibility worker and assessor shall also be [ so ] informed
[ of the emergency discharge ] within the same time frame.
No later than five days after discharge, the information shall be provided in
writing to all those notified.
G. For public pay residents, in the event of a resident's
death, the assisted living facility shall provide written notification to the
eligibility worker and assessor within five days after the resident's death.
H. Discharge statement.
1. At the time of discharge, the assisted living facility
shall provide to the resident and, as appropriate, his legal representative and
designated contact person a dated statement signed by the licensee or
administrator that contains the following information:
a. The date on which the resident, his legal representative,
or designated contact person was notified of the planned discharge and the name
of the legal representative or designated contact person who was notified;
b. The reason or reasons for the discharge;
c. The actions taken by the facility to assist the resident
in the discharge and relocation process; and
d. The date of the actual discharge from the facility and
the resident's destination.
2. [ When the termination of care is due to
emergency conditions, the dated statement shall contain the information in
subdivisions 1 a through 1 d of this subsection as appropriate and shall be
provided or mailed to the resident, his legal representative, or designated
contact person within 48 hours from the time of the decision to discharge. 3.
A copy of the written statement shall be retained in the resident's record.
I. When the resident is discharged and moves to another
caregiving facility, the assisted living facility shall provide to the
receiving facility such information related to the resident as is necessary to
ensure continuity of care and services. Original information pertaining to the
resident shall be maintained by the assisted living facility from which the
resident was discharged. The assisted living facility shall maintain a listing
of all information shared with the receiving facility.
J. Within 60 days of the date of discharge, each resident
or his legal representative shall be given a final statement of account, any
refunds due, and return of any money, property, or things of value held in
trust or custody by the facility.
Part VI
Resident Care and Related Services
22VAC40-73-440. Uniform assessment instrument (UAI).
A. All residents of and applicants to assisted living
facilities shall be assessed face to face using the uniform assessment
instrument in accordance with Assessment in Assisted Living Facilities
(22VAC30-110). The UAI shall be completed prior to admission, at least
annually, and whenever there is a significant change in the resident's
condition.
B. [ For private pay individuals, the UAI shall
be completed by one of the following qualified assessors:
1. An assisted living facility staff person who has
successfully completed state-approved training on the uniform assessment
instrument and level of care criteria for either public or private pay
assessments, provided the administrator or the administrator's designated
representative has successfully completed such training and approves and then
signs the completed UAI, and the facility maintains documentation of completed
training;
2. An independent physician; or
3. A qualified public human services agency assessor.
C. For a private pay individual, if the UAI is completed
by an independent physician or a qualified human services agency assessor, the
assisted living facility shall be responsible for coordinating with the
physician or the agency assessor to ensure that the UAI is completed as
required.
D. For private pay individuals, the assisted living
facility shall ensure that the uniform assessment instrument is completed as
required by 22VAC30-110.
E. For public pay individuals, the UAI shall be completed
by a case manager or qualified assessor as specified in 22VAC30-110.
F. ] The UAI shall be completed within 90 days
prior to admission to the assisted living facility, except that if there has
been a change in the resident's condition since the completion of the UAI that
would affect the admission, a new UAI shall be completed.
[ C. G. ] When a resident
moves to an assisted living facility from another assisted living facility or
other long-term care setting that uses the UAI, if there is a completed UAI on
record, another UAI does not have to be completed except that a new UAI shall
be completed whenever:
1. There is a significant change in the resident's
condition; or
2. The previous assessment is more than 12 months old.
[ D. H. ] Annual reassessments and
reassessments due to a significant change in the resident's condition, using
the UAI, shall be utilized to determine whether a resident's needs can continue
to be met by the facility and whether continued placement in the facility is in
the best interest of the resident.
[ E. I. ] During an
inspection or review, staff from the department, the Department of Medical
Assistance Services, or the local department of social services may initiate a
change in level of care for any assisted living facility resident for whom it
is determined that the resident's UAI is not reflective of the resident's
current status.
[ F. J. ] At the request of
the assisted living facility, the resident's legal representative, the
resident's physician, the department, or the local department of social
services an independent assessment using the UAI shall be completed to
determine whether the resident's care needs are being met in the assisted
living facility. The assisted living facility shall assist in obtaining the
independent assessment as requested. An independent assessment is one that is
completed by a qualified entity other than the original assessor.
[ G. For private pay individuals, the assisted
living facility shall ensure that the uniform assessment instrument is
completed as required by 22VAC30-110.
H. For a private pay resident, if the UAI is completed
by an independent physician or a qualified human services agency assessor, the
assisted living facility shall be responsible for coordinating with the
physician or the agency assessor to ensure that the UAI is completed as
required.
I. K. ] The assisted living
facility shall be in compliance with the requirements set forth in 22VAC30-110.
[ J. L. ] The facility
shall maintain the completed UAI in the resident's record.
22VAC40-73-450. Individualized service plans.
A. On [ or within seven days prior to ]
the day of admission, [ unless a comprehensive individualized
service plan is completed during that time, ] a preliminary
plan of care shall be developed to address the basic needs of the resident
[ , which that ] adequately protects his
health, safety, and welfare. The preliminary plan shall be developed by a staff
person with the qualifications specified in subsection B of this section and in
conjunction with the resident, and, as appropriate, other individuals noted in
subdivision B 1 of this section. [ The preliminary plan shall be
identified as such and be signed and dated by the licensee, administrator, or
his designee (i.e., the person who has developed the plan), and by the resident
or his legal representative.
Exception: A preliminary plan of care is not necessary if
a comprehensive individualized service plan is developed, in conformance with
this section, on the day of admission. ]
B. The licensee, administrator, or his designee who has
successfully completed the department-approved individualized service plan
(ISP) training, provided by a licensed health care professional practicing
within the scope of his profession, shall develop a comprehensive ISP to meet
the resident's service needs. [ State approved private pay UAI
training must be completed as a prerequisite to ISP training. ] An
individualized service plan is not required for those residents who are
assessed as capable of maintaining themselves in an independent living status.
1. The licensee, administrator, or designee shall develop
the ISP in conjunction with the resident and, as appropriate, with the
resident's family, legal representative, direct care staff members, case
manager, health care providers, qualified mental health professionals, or other
persons.
2. The plan shall [ reflect the
resident's assessed needs and ] support the principles of
individuality, personal dignity, freedom of choice, and home-like environment
and shall include other formal and informal supports [ in addition
to those included in subdivision C 2 of this section ] that may
participate in the delivery of services. Whenever possible, residents shall be
given a choice of options regarding the type and delivery of services.
3. The plan shall be designed to maximize the resident's
level of functional ability.
C. The comprehensive individualized service plan shall be
completed within 30 days after admission and shall include the following:
1. Description of identified needs and date identified
based upon the (i) UAI; (ii) admission physical examination; (iii) interview
with resident; (iv) fall risk assessment, if appropriate; (v) assessment of
psychological, behavioral, and emotional functioning, if appropriate; and (vi)
other sources;
2. A written description of what services will be provided
to address identified needs, and if applicable, other services, and who will
provide them;
3. When and where the services will be provided;
4. The expected outcome and time frame for expected
outcome;
5. Date outcome achieved; and
6. For a facility licensed for residential living care
only, if a resident lives in a building housing 19 or fewer residents, a
statement that specifies whether the [ person
resident ] does [ need ] or does not
need to have a staff member awake and on duty at night.
D. When hospice care is provided to a resident, the
assisted living facility and the licensed hospice organization shall
communicate and establish [ and agree an agreed ]
upon [ a ] coordinated plan of care for the
resident. The services provided by each shall be included on the individualized
service plan.
E. The individualized service plan shall be signed and
dated by the licensee, administrator, or his designee, (i.e., the person who
has developed the plan), and by the resident or his legal representative. The
plan shall also indicate any other individuals who contributed to the
development of the plan, with a notation of the date of contribution. The title
or relationship to the resident of each person who was involved in the
development of the plan shall be [ so noted included ].
These requirements shall also apply to reviews and updates of the plan.
F. Individualized service plans shall be reviewed and
updated at least once every 12 months and as needed as the condition of the
resident changes. The review and update shall be performed by a staff person
with the qualifications specified in subsection B of this section and in
conjunction with the resident and, as appropriate, with the resident's family,
legal representative, direct care staff, case manager, health care providers,
qualified mental health professionals, or other persons.
G. The master service plan shall be filed in the resident's
record. A current copy shall be provided to the resident and shall also be
maintained in a location accessible at all times to direct care staff, but that
protects the confidentiality of the contents of the service plan. Extracts from
the plan may be filed in locations specifically identified for their retention.
H. The facility shall ensure that the care and services
specified in the individualized service plan are provided to each resident,
except that:
1. There may be a deviation from the plan when mutually
agreed upon between the facility and the resident or the resident's legal
representative at the time the care or services are scheduled or when there is
an emergency that prevents the care or services from being provided.
2. Deviation from the plan shall be documented in writing,
including a description of the circumstances, the date it occurred, and the
signatures of the parties involved, and the documentation shall be retained in
the resident's record.
3. The facility may not start, change, or discontinue
medications, dietary supplements, diets, medical procedures, or treatments
without an order from a physician or other prescriber.
22VAC40-73-460. Personal care services and general
supervision and care.
A. The facility shall assume general responsibility for
the health, safety, and well-being of the residents.
B. Care provision and service delivery shall be
resident-centered to the maximum extent possible and include:
1. Resident participation in decisions regarding the care
and services provided to him;
2. Personalization of care and services tailored to the
resident's circumstances and preferences; and
3. Prompt response by staff to resident needs as reasonable
to the circumstances.
C. Care shall be furnished in a way that fosters the
independence of each resident and enables him to fulfill his potential.
D. The facility shall provide supervision of resident
schedules, care, and activities, including attention to specialized needs, such
as prevention of falls and wandering from the premises.
E. The facility shall regularly observe each resident for
changes in physical, mental, emotional, and social functioning.
1. Any notable change in a resident's condition or
functioning, including illness, injury, or altered behavior, and [ any
corresponding ] action taken shall be documented in the resident's
record.
2. The facility shall provide appropriate assistance when
observation reveals unmet needs.
F. The facility shall notify the next of kin, legal
representative, designated contact person, or, if applicable, any responsible
social agency of any incident of a resident falling or wandering from the
premises, whether or not it results in injury. This notification shall occur as
soon as possible but [ at least within no later than ]
24 hours from the time of initial discovery or knowledge of the incident.
The resident's record shall include documentation of the notification,
including date, time, caller, and person or agency notified.
Exception: If the whereabouts of a resident are unknown
and there is reason to be concerned about his safety, the facility shall
immediately notify the appropriate law-enforcement agency. The facility shall
also immediately notify the resident's next of kin, legal representative,
designated contact person, or, if applicable, any responsible social agency.
G. The facility shall provide care and services to each
resident by staff who are able to communicate with the resident in a language
the resident understands or shall make provisions for communications between
staff and residents to ensure an accurate exchange of information.
H. The facility shall ensure that personal assistance and
care are provided to each resident as necessary so that the needs of the
resident are met, including [ but not limited to ] assistance
or care with:
1. The activities of daily living:
a. Bathing - at least twice a week, but more often if
needed or desired;
b. Dressing;
c. Toileting;
d. Transferring;
e. Bowel control;
f. Bladder control; and
g. [ Eating or feeding
Eating/feeding ];
2. The instrumental activities of daily living:
a. Meal preparation;
b. Housekeeping;
c. Laundry; and
d. Managing money;
3. Ambulation;
4. Hygiene and grooming:
a. Shampooing, combing, and brushing hair;
b. Shaving;
c. Trimming fingernails and toenails (certain medical
conditions necessitate that this be done by a licensed health care
professional);
d. Daily tooth brushing and denture care; and
e. Skin care at least twice daily for those with limited
mobility; and
5. Functions and tasks:
a. Arrangements for transportation;
b. Arrangements for shopping;
c. Use of the telephone; and
d. Correspondence.
I. Each resident shall be dressed in clean clothing and be
free of odors related to hygiene. Each resident shall be encouraged to wear day
clothing when out of bed.
J. Residents who are incontinent shall have a full or
partial bath and clean clothing and linens each time their clothing or bed
linen is soiled or wet.
K. The facility shall ensure each resident is able to
obtain individually preferred personal care items when:
1. The preferred personal care items are reasonably
available; and
2. The resident is willing and able to pay for the
preferred items.
22VAC40-73-470. Health care services.
A. The facility shall ensure, either directly or
indirectly, that the health care service needs of residents are met. The ways
in which the needs may be met include [ , but are not limited to ]:
1. Staff of the facility providing health care services;
2. Persons employed by a resident providing health care
services; or
3. The facility assisting residents in making appropriate
arrangements for health care services.
a. When a resident is unable to participate in making
appropriate arrangements, the resident's family, legal representative,
designated contact person, cooperating social agency, or personal physician
shall be notified of the need.
b. When mental health care is needed or desired by a
resident, this assistance shall include securing the services of the local
community services board, [ behavioral health authority, ]
state or federal mental health clinic, or similar facility or agent in the
private sector.
B. A resident's need for skilled nursing treatments within
the facility shall be met by the facility's employment of a licensed nurse or
contractual agreement with a licensed nurse, or by a home health agency or by a
private duty licensed nurse.
C. Services shall be provided to prevent clinically
avoidable complications, including [ but not limited to ]:
1. Pressure ulcer development or worsening of an ulcer;
2. Contracture;
3. Loss of continence;
4. Dehydration; and
5. Malnutrition.
D. The facility shall develop and implement a written
policy to ensure that staff are made aware of [ allergies and
allergic reactions and ] any life-threatening conditions of
residents, [ including but not limited to allergic reactions, ]
and actions that staff may need to take.
E. When care for gastric tubes is provided to a resident
by unlicensed direct care facility staff as allowed in clause (ii) of
22VAC40-73-310 K, the following criteria shall be met:
1. Prior to the care being provided, the facility shall
obtain an informed consent, signed by the resident or his legal representative,
that includes at a minimum acknowledgment that:
a. An unlicensed person will routinely be providing the
gastric tube care and feedings under the delegation of a registered nurse (RN)
who has assessed the resident's care needs and the unlicensed person's ability
to safely and adequately meet those needs;
b. Delegation means the RN need not be present in the
facility during routine gastric tube care and feedings;
c. Registered medication aides are prohibited from
administering medications via gastric tubes and medications may only be
administered by licensed personnel (e.g., a licensed practical nurse (LPN) or
RN);
d. The tube care and feedings provided to the resident and
the supervisory oversight provided by the delegating RN will be reflected on
the individualized service plan as required in 22VAC40-73-450; and
e. The signed consent shall be maintained in the resident's
record.
2. Only those direct care staff with written approval from
the delegating [ nurse RN ] may provide the
tube care and feedings. In addition to the approval, the RN shall document:
a. The general and resident-specific instructions he
provided to the staff person; and
b. The staff person's successful demonstration of
competency in tube care,
3. The delegating RN shall be employed by or under contract
with the licensed assisted living facility and shall have supervisory
authority over the direct care staff being approved to provide gastric tube
care and feedings.
4. The supervisory responsibilities of the delegating [ nurse
RN ] include [ , but are not limited to ]:
a. Monitoring the direct care staff performance related to
the delegated tasks;
b. Evaluating the outcomes for the resident;
c. Ensuring appropriate documentation; and
d. Documenting relevant findings and recommendations.
5. The delegating RN shall schedule supervisory oversight
based upon the following criteria:
a. The stability and condition of the resident;
b. The experience and competency of the unlicensed direct
care staff person;
c. The nature of the tasks or procedures being delegated;
and
d. The proximity and availability of the delegating
[ nurse RN ] to the unlicensed direct care
staff person when the nursing tasks will be performed.
6. Prior to allowing direct care staff to independently
perform care for gastric tubes as provided for in this subsection, [ each
person such staff ] must be able to successfully
demonstrate performance of the entire procedure correctly while under direct
observation of the delegating RN. Subsequently, each [ person
direct care staff ] shall be directly observed no less than monthly
for at least three consecutive months, after which direct observation shall be
conducted no less than every six months or more often if indicated. The
delegating RN shall retain documentation at the facility of all supervisory
activities and direct observations of staff.
7. Contact information for the delegating RN shall be
readily available to all staff responsible for tube feedings when an RN or LPN
is not present in the facility.
8. Written protocols that encompass the basic policies and
procedures for the performance of gastric tube feedings, as well as any
resident-specific instructions, shall be available to any direct care staff
member responsible for tube feedings.
9. The facility shall have a written back-up plan to ensure
that [ a an RN, LPN, or ] person who is
qualified as specified in this subsection is available if the direct care staff
member who usually provides the care is absent.
F. When the resident suffers serious accident, injury,
illness, or medical condition, or there is reason to suspect that such has
occurred, medical attention from a licensed health care professional shall be
secured immediately. The circumstances involved and the medical attention
received or refused shall be documented in the resident's record. The date and
time of occurrence, as well as the personnel involved shall be included in the
documentation.
1. The resident's physician, if not already involved, next
of kin, legal representative, designated contact person, case manager, and any
responsible social agency, as appropriate, shall be notified as soon as
possible but [ at least within no later than ]
24 hours [ of from ] the situation and
action taken, or if applicable, the resident's refusal of medical attention. If
a resident refuses medical attention, the resident's physician shall be
notified immediately.
2. A notation shall be made in the resident's record of
such notice, including the date, time, caller, and person notified.
G. If a resident refuses medical attention, the facility
shall assess whether it can continue to meet the resident's needs.
22VAC40-73-480. Restorative, habilitative, and
rehabilitative services.
A. Facilities shall [ assure
ensure ] that all restorative care and habilitative service needs
of the residents are met. Facilities shall coordinate with appropriate
professional service providers and ensure that any facility staff who assist
with support for these service needs are trained by and receive direction from
qualified professionals. Restorative and habilitative care includes [ ,
but is not limited to, ] range of motion, assistance with
ambulation, positioning, assistance and instruction in the activities of daily
living, psychosocial skills training, and reorientation and reality
orientation.
B. In the provision of restorative and habilitative care,
staff shall emphasize services such as the following:
1. Making every effort to keep residents active, within the
limitations set by physicians' or other prescribers' orders;
2. Encouraging residents to achieve independence in the
activities of daily living;
3. Assisting residents to adjust to their disabilities, to
use their prosthetic devices, and to redirect their interests if they are no
longer able to maintain past involvement in particular activities;
4. Assisting residents to carry out prescribed physical
therapy exercises between appointments with the physical therapist; and
5. Maintaining a bowel and bladder training program.
C. Facilities shall arrange for specialized rehabilitative
services by qualified personnel as needed by the resident. Rehabilitative
services include physical therapy, occupational therapy, and speech-language
pathology services. Rehabilitative services may be indicated when the resident
has lost or has shown a change in his ability to respond to or perform a given
task and requires professional rehabilitative services in an effort to regain
lost function. Rehabilitative services may also be indicated to evaluate the
appropriateness and individual response to the use of assistive technology.
D. All rehabilitative services rendered by a
rehabilitative professional shall be performed only upon written medical
referral by a physician or other qualified health care professional.
E. The physician's or other prescriber's orders, services
provided, evaluations of progress, and other pertinent information regarding
the rehabilitative services shall be recorded in the resident's record.
F. Direct care staff who are involved in the care of
residents using assistive devices shall know how to operate and utilize the
devices.
22VAC40-73-490. Health care oversight.
A. Each assisted living facility shall retain a licensed
health care professional who has at least two years of experience as a health
care professional in an adult residential facility, adult day care center,
acute care facility, nursing home, or licensed home care or hospice
organization, either by direct employment or on a contractual basis, to provide
on-site health care oversight.
1. For residents who meet the criteria for residential
living care:
a. The licensed health care professional, practicing within
the scope of his profession, shall provide [ the ] health
care oversight at least every six months, or more often if indicated, based on
his professional judgment of the seriousness of a resident's needs or the
stability of a resident's condition; or
b. If the facility employs a licensed health care
professional who is on site on a full-time basis, [ the
a ] licensed health care professional, practicing within the scope
of his profession, shall provide [ the ] health
care oversight at least annually, or more often if indicated, based on his
professional judgment of the seriousness of a resident's needs or stability of
a resident's condition.
2. For residents who meet the criteria for assisted living
care:
a. The licensed health care professional, practicing within
the scope of his profession, shall provide [ the ] health
care oversight at least every three months, or more often if indicated, based
on his professional judgment of the seriousness of a resident's needs or
stability of a resident's condition; or
b. If the facility employs a licensed health care
professional who is on site on a full-time basis, [ the
a ] licensed health care professional, practicing within the scope
of his profession, shall provide [ the ] health
care oversight at least every six months, or more often if indicated, based on
his professional judgment of the seriousness of a resident's needs or stability
of a resident's condition.
3. All residents shall be included at least annually in
[ the ] health care oversight.
B. While on site, as specified in subsection A of this
section, the licensed health care professional shall provide health care
oversight of the following and make recommendations for change as needed:
1. Ascertain whether a resident's service plan
appropriately addresses the current health care needs of the resident.
2. Monitor direct care staff performance of health-related
activities.
3. Evaluate the need for staff training.
4. Provide consultation and technical assistance to staff
as needed.
5. Review documentation regarding health care services,
including medication and treatment records, to assess that services are being
provided in accordance with physicians' or other prescribers' orders.
6. Monitor conformance to the facility's medication
management plan and the maintenance of required medication reference materials.
7. [ Evaluate the ability of residents who
self-administer medications to continue to safely do so.
7. 8. ] Observe infection control
measures and consistency with the infection control program of the facility.
[ 8. Review the current condition and the records
of restrained residents to assess the appropriateness of the restraint and
progress toward its reduction or elimination.
C. For all restrained residents, onsite health care
oversight shall be provided by a licensed health care professional at least
every three months and include the following: ]
[ a. 1. ] The licensed
health care professional shall be at a minimum a registered nurse [ who
meets the experience requirements in subdivision A of this section ].
[ 2. The licensed health care professional shall review
the current condition and the records of restrained residents to assess the
appropriateness of the restraint and progress toward its reduction or
elimination. ]
[ b. 3. ] The licensed
health care professional providing the oversight for this subdivision shall
also provide the oversight for subdivisions [ B ] 1
through [ 7 B 8 ] of this [ subsection
section ] for restrained residents.
[ c. The health care oversight for all restrained
residents shall be provided at least every three months.
d. 4. ] The oversight provided
shall be a holistic review of the physical, emotional, and mental health of the
resident and identification of any unmet needs.
[ e. 5. ] The oversight
shall include review of physician's orders for restraints to determine whether
orders are no older than three months, as required by 22VAC40-73-710 [ C
E ] 2.
[ f. 6. ] The oversight
shall include an evaluation of whether direct care staff have received the
restraint training required by 22VAC40-73-270 and whether the facility is
meeting the requirements of 22VAC40-73-710 regarding the use of restraints.
[ 7. The licensed health care professional shall make
recommendations for change as needed. ]
[ 9. Certify D. The licensed
health care professional who provided the health care oversight shall certify ]
that the requirements of [ subdivisions 1 through 8 of this ]
subsection [ B and, if applicable, C of this section ]
were met, including the dates of the health care oversight. The specific
residents for whom the oversight was provided must be identified. The
administrator shall be advised of the findings of the health care oversight and
any recommendations. All of the requirements of this [ subdivision
subsection ] shall be (i) in writing, (ii) signed and dated by the
health care professional, (iii) provided to the administrator within 10 days of
the completion of the oversight, and (iv) maintained in the facility files for
at least two years, with any specific recommendations regarding a particular
resident also maintained in the resident's record.
[ 10. E. ] Action taken in
response to the recommendations noted in [ subdivision 9 of this ]
subsection [ D of this section ] shall be documented
in the resident's record if resident specific, and if otherwise, in the
facility files.
22VAC40-73-500. Access by community services boards, certain
local government departments, and behavioral health authorities.
All assisted living facilities shall provide reasonable
access to staff or contractual agents of community services boards, local
government departments with policy-advisory community services boards, or
behavioral health authorities as defined in § 37.2-100 of the Code of
Virginia for the purposes of:
1. Assessing or evaluating clients residing in the
facility;
2. Providing case management or other services or
assistance to clients residing in the facility; or
3. Monitoring the care of clients residing in the facility.
Such staff or contractual agents also shall be given
reasonable access to other facility residents who have previously requested
their services.
22VAC40-73-510. Mental health services coordination and
support.
A. For each resident requiring mental health services, the
services of the local community services board, [ behavioral health
authority, ] or a public or private mental health clinic,
rehabilitative services agency, treatment facility or agent, or qualified
health care professional shall be secured as appropriate based on the
resident's current evaluation and to the extent possible, the resident's
preference for service provider. The assisted living facility shall assist the
resident in obtaining the services. If the services are not able to be secured,
the facility shall document the reason for such and the efforts made to obtain
the services. If the resident has a legal representative, the representative
shall be notified of failure to obtain services and the notification shall be
documented.
B. Written procedures to ensure communication and
coordination between the assisted living facility and the mental health service
provider shall be established to [ assure ensure ]
that the mental health needs of the resident are addressed.
C. Efforts, which must be documented, shall be made by the
assisted living facility to assist in ensuring that prescribed interventions
are implemented, monitored, and evaluated for their effectiveness in addressing
the resident's mental health needs.
D. If efforts to obtain the recommended services are
unsuccessful, the facility must document:
1. Whether it can continue to meet all other needs of the
resident.
2. How it plans to ensure that the failure to obtain the
recommended services will not compromise the health, safety, or rights of the
resident and others who come in contact with the resident.
3. Details of additional steps the facility will take to
find alternative providers to meet the resident's needs.
[ E. Any contracts for mental health services between
the facility and the mental health services provider:
1. Shall not contain terms that conflict with the
regulations; and
2. Shall be provided to the regional licensing office
within 10 days of entering into the contract. ]
22VAC40-73-520. Activity and recreational requirements.
A. Activities for residents shall:
1. Support the skills and abilities of residents in order
to promote or maintain their highest level of independence or functioning;
2. Accommodate individual differences by providing a
variety of types of activities and levels of involvement; and
3. Offer residents a varied mix of [ weekly ]
activities [ weekly ] including [ ,
but not limited to, ] those that are physical; social;
cognitive, intellectual, or creative; productive; sensory; reflective or
contemplative; [ involve ] nature or the natural
world; and weather permitting, outdoor [ activity ].
Any given activity may involve more than one of these. Community resources as
well as facility resources may be used to provide activities.
B. Resident participation
in activities.
1. Residents shall be encouraged but not forced to
participate in activity programs offered by the facility and the community.
2. During an activity, each resident shall be encouraged
but not coerced to join in at his level of functioning, to include observing.
3. Any restrictions on participation imposed by a physician
shall be documented in the resident's record.
C. Activities shall be planned under the supervision of
the administrator or other qualified staff person who shall encourage
involvement of residents and staff in the planning.
D. In a facility licensed for residential living care
only, there shall be at least 11 hours of scheduled activities available to the
residents each week for no less than one hour each day.
E. In a facility licensed for both residential and
assisted living care, there shall be at least 14 hours of scheduled activities
available to the residents each week for no less than one hour each day.
F. During an activity, when needed to ensure that each of
the following is adequately accomplished, there shall be staff persons or
volunteers to:
1. Lead the activity;
2. Assist the residents with the activity;
3. Supervise the general area;
4. Redirect any [ individuals
residents ] who require different activities; and
5. Protect the health, safety, and welfare of the residents
participating in the activity.
G. The staff person or volunteer leading the activity
shall have a general understanding of the following:
1. Attention spans and functional levels of the residents [ in
the group ];
2. Methods to adapt the activity to meet the needs and
abilities of the residents;
3. Various methods of engaging and motivating [ individuals
residents ] to participate; and
4. The importance of providing appropriate instruction,
education, and guidance throughout the activity.
H. Adequate supplies and equipment appropriate for the
program activities shall be available in the facility.
I. There shall be a written schedule of activities that
meets the following criteria:
1. The schedule of activities shall be developed at least
monthly.
2. The schedule shall include:
a. Group activities for all residents or small groups of
residents; and
b. The name, if any, and the type, date, and hour of the
activity.
3. If one activity is substituted for another, the change
shall be noted on the schedule.
4. The current month's schedule shall be posted in a conspicuous
location in the facility or otherwise be made available to residents and their
families.
5. The schedule of activities for the past two years shall
be kept at the facility.
6. If a resident requires an individual schedule of
activities, that schedule shall be a part of the individualized service plan.
J. The facility shall promote access to the outdoors.
K. In addition to the required scheduled activities, there
shall be unscheduled staff and resident interaction throughout the day that
fosters an environment that promotes socialization opportunities for residents.
22VAC40-73-530. Freedom of movement.
A. Any resident who does not have a serious cognitive
impairment shall be allowed to freely leave the facility. A resident who has a
serious cognitive impairment shall be subject to the provisions set forth in
22VAC40-73-1040 A or 22VAC40-73-1150 A.
B. Doors leading to the outside shall not be locked from
the inside or secured from the inside in any manner that amounts to a lock,
except that doors may be locked or secured in a manner that amounts to a lock
in special care units as provided in 22VAC40-73-1150 A. Any devices used to
lock or secure doors in any manner must be in accordance with applicable
building and fire codes.
C. The facility shall provide freedom of movement for the
residents to common areas and to their personal spaces. The facility shall not
lock residents out of or inside their rooms.
22VAC40-73-540. Visiting in the facility.
A. Daily visits to residents in the facility shall be permitted.
B. Visiting hours shall not be restricted, except by a
resident when it is the resident's choice.
C. The facility may establish a policy or guidelines so
that visiting is not disruptive to other residents and facility security is not
compromised. However, daily visits and visiting hours shall not be restricted
as provided in subsections A and B of this section.
D. The facility shall encourage regular family involvement
with the resident and shall provide ample opportunities for family participation
in activities at the facility.
22VAC40-73-550. Resident rights.
A. The resident shall be encouraged and informed of
appropriate means as necessary to exercise his rights as a resident and a
citizen throughout the period of his stay at the facility.
B. The resident has the right to voice or file grievances,
or both, with the facility and to make recommendations for changes in the
policies and services of the facility. The residents shall be protected by the
licensee or administrator, or both, from any form of coercion, discrimination,
threats, or reprisal for having voiced or filed such grievances.
C. Any resident of an assisted living facility has the
rights and responsibilities as provided in § 63.2-1808 of the Code of
Virginia and this chapter.
D. The operator or administrator of an assisted living
facility shall establish written policies and procedures for implementing
§ 63.2-1808 of the Code of Virginia.
E. The facility shall make its policies and procedures for
implementing § 63.2-1808 of the Code of Virginia available and accessible
to residents, relatives, agencies, and the general public.
F. The rights and responsibilities of residents shall be
printed in at least [ 12-point 14-point ] type
and posted conspicuously in a public place in all assisted living facilities.
The facility shall also post the name and telephone number of the appropriate
regional licensing supervisor of the department, the Adult Protective Services'
toll-free telephone number, the toll-free telephone number of the Virginia Long-Term
Care Ombudsman Program and any substate (i.e., local) ombudsman program serving
the area, and the toll-free telephone number of the [ Virginia
Office for Protection and Advocacy disAbility Law Center of Virginia ].
G. The rights and responsibilities of residents in
assisted living facilities shall be reviewed annually with each resident or his
legal representative or responsible individual as stipulated in subsection H of
this section and each staff person. Evidence of this review shall be the resident's,
his legal representative's or responsible individual's, or staff person's
written acknowledgment of having been so informed, which shall include the date
of the review and shall be filed in the resident's or staff person's record.
H. If a resident is unable to fully understand and
exercise the rights and responsibilities contained in § 63.2-1808 of the
Code of Virginia [ and does not have a legal representative ],
the facility shall require that a responsible individual, of the resident's
choice when possible, designated in writing in the resident's record annually
be made aware of each item in § 63.2-1808 and the decisions that affect
the resident or relate to specific items in § 63.2-1808. [ The
responsible individual shall not be the facility licensee, administrator, or
staff person or family members of the licensee, administrator, or staff person. ]
1. A resident shall be assumed capable of understanding and
exercising these rights unless a physician determines otherwise and documents
the reasons for such determination in the resident's record.
2. The facility shall seek a determination and reasons
for the determination from a resident's physician regarding the resident's
capability to understand and exercise these rights when there is reason to believe
that the resident may not be capable of such.
22VAC40-73-560. Resident records.
A. The facility shall establish written policy and
procedures for documentation and recordkeeping to ensure that the information
in resident records is accurate and clear and that the records are
well-organized.
B. Resident records shall be identified and easily located
by resident name, including when a resident's record is kept in more than one
place. This shall apply to both electronic and hard copy material.
C. Any physician's notes and progress reports in the
possession of the facility shall be retained in the resident's record.
D. Copies of all agreements between the facility and the
resident and official acknowledgment of required notifications, signed by all
parties involved, shall be retained in the resident's record. Copies shall be
provided to the resident and to persons whose signatures appear on the
document.
E. All resident records shall be kept current, retained at
the facility, and kept in a locked area, except that information shall be made
available as noted in subsection F of this section.
F. The licensee shall [ assure
ensure ] that all records are treated confidentially and that
information shall be made available only when needed for care of the resident.
All records shall be made available for inspection by the department's
representative.
G. Residents shall be allowed access to their own records.
A legal representative of a resident shall be provided access to the resident's
record or part of the record as allowed by the scope of his legal authority.
H. The complete resident record shall be retained for at
least two years after the resident leaves the facility.
1. For at least the first year, the record shall be
retained at the facility.
2. After the first year, the record may be retained off
site in a safe, secure area. The record must be available at the facility
within 48 hours.
I. A current picture of each resident shall be readily
available for identification purposes or, if the resident refuses to consent to
a picture, there shall be a narrative physical description, which is annually
updated, maintained in his file.
22VAC40-73-570. Release of information [ from
resident's record regarding resident's personal affairs and
records ].
A. The resident or the appropriate legal representative
has the right to release information from the resident's record to persons or
agencies outside the facility.
B. The licensee is responsible for making available to
residents and legal representatives a form which they may use to grant their
written permission for the facility to release information to persons or
agencies outside the facility. The facility shall retain a copy of any signed
release of information form in the resident's record.
C. Only under the following circumstances is a facility
permitted to release information from the resident's records or information
regarding the resident's personal affairs without the written permission of the
resident or his legal representative, where appropriate:
1. When records have been properly subpoenaed;
2. When the resident is in need of emergency medical care
and is unable or unwilling to grant permission to release information or his
legal representative is not available to grant permission;
3. When the resident moves to another caregiving facility;
4. To representatives of the department; or
5. As otherwise required by law.
D. When a resident is hospitalized or transported by
emergency medical personnel, information necessary to the care of the resident shall
be furnished by the facility to the hospital or emergency medical personnel.
Examples of such information include [ medications a
copy of the current medication administration record (MAR) ], a Do
Not Resuscitate (DNR) Order, advance directives, and organ donation
information. The facility shall also provide the name, address, and telephone
number of the resident's designated contact person to the hospital or emergency
medical personnel.
22VAC40-73-580. Food service and nutrition.
A. When any portion of an assisted living facility is
subject to inspection by the Virginia Department of Health, the facility shall
be in compliance with those regulations, as evidenced by an initial and
subsequent annual reports from the Virginia Department of Health. The report
shall be retained at the facility for a period of at least two years.
B. All meals shall be served in the dining area as
designated by the facility, except that:
1. If the facility, through its policies and procedures,
offers routine or regular room service, residents shall be given the option of
having meals in the dining area or in their rooms, provided that:
a. There is a written agreement to this effect, signed and
dated by both the resident and the licensee or administrator and filed in the
resident's record.
b. If a resident's individualized service plan, physical
examination report, mental health status report, or any other document
indicates that the resident has a psychiatric condition that contributes to
self-isolation, a qualified mental health professional shall make a
determination in writing whether the [ person
resident ] should have the option of having meals in his room. If
the determination is made that the resident should not have this option, then
the resident shall have his meals in the dining area.
2. Under special circumstances, such as temporary illness,
temporary incapacity, temporary agitation of a resident with cognitive
impairment, or occasional, infrequent requests due to a resident's personal
preference, meals may be served in a resident's room.
3. When meals are served in a resident's room, a sturdy
table must be used.
C. Personnel shall be available to help any resident who
may need assistance in reaching the dining room or when eating.
D. A minimum of 45 minutes shall be allowed for each
resident to complete a meal. If a resident has been assessed on the UAI as
dependent in [ eating or feeding eating/feeding ],
his individualized service plan shall indicate an approximate amount of time
needed for meals to ensure needs are met.
E. Facilities shall develop and implement a policy to
monitor each resident for:
1. Warning signs of changes in physical or mental status
related to nutrition; and
2. Compliance with any needs determined by the resident's
individualized service plan or prescribed by a physician or other prescriber,
nutritionist, or health care professional.
F. Facilities shall implement interventions as soon as a
nutritional problem is suspected. These interventions shall include [ ,
but are not limited to ] the following:
1. Weighing residents at least monthly to determine whether
the resident has significant weight loss (i.e., 5.0% weight loss in one month,
7.5% in three months, or 10% in six months); and
2. Notifying the attending physician if a significant
weight loss is identified in any resident who is not on a physician-approved
weight reduction program and obtaining, documenting, and following the
physician's instructions regarding nutritional care.
G. Residents with independent living status who have
kitchens equipped with stove, refrigerator, and sink within their individual
apartments may have the option of obtaining meals from the facility or from
another source. If meals are obtained from another source, the facility must
ensure availability of meals when the resident is sick or temporarily unable to
prepare meals for himself.
22VAC40-73-590. Number of meals and availability of snacks.
A. At least three well-balanced meals, served at regular
intervals, shall be provided daily to each resident, unless contraindicated as
documented by the attending physician in the resident's record or as provided
for in 22VAC40-73-580 G.
B. [ Bedtime and between meal snacks
Snacks ] shall be made available [ at all times ]
for all residents [ desiring them ] or in
accordance with their physician's or other prescriber's orders.
1. Appropriate adjustments in the provision of snacks to a
resident shall be made when orders from the resident's physician or other
prescriber in the resident's record limits the receipt or type of snacks.
2. Vending machines shall not be used as the only source
for snacks.
22VAC40-73-600. Time interval between meals.
A. Time between the [ scheduled ] evening
meal and [ scheduled ] breakfast the following
morning shall not exceed 15 hours.
B. There shall be at least four hours between [ scheduled ]
breakfast and lunch and at least four hours between [ scheduled ]
lunch and supper.
C. When multiple seatings are required due to limited
dining space, scheduling shall ensure that these time intervals are met for all
residents. Schedules shall be made available to residents, legal
representatives, staff, volunteers, and any other persons responsible for
assisting residents in the dining process.
22VAC40-73-610. Menus for meals and snacks.
A. Food preferences of residents shall be considered when
menus are planned.
B. Menus for meals and snacks for the current week shall
be dated and posted in an area conspicuous to residents.
1. Any menu substitutions or additions shall be recorded on
the posted menu.
2. A record shall be kept of the menus served for two
years.
C. Minimum daily menu.
1. Unless otherwise ordered in writing by the resident's
physician or other prescriber, the daily menu, including snacks, for each
resident shall meet the current guidelines of the U.S. Department of
Agriculture's food guidance system or the dietary allowances of the Food and
Nutritional Board of the National Academy of Sciences, taking into
consideration the age, sex, and activity of the resident.
2. Other foods may be added.
3. Second servings and snacks shall be available at no
additional charge.
4. At least one meal each day shall include a hot main
dish.
D. When a diet is prescribed for a resident by his
physician or other prescriber, it shall be prepared and served according to the
physician's or other prescriber's orders.
E. A copy of a diet manual containing acceptable practices
and standards for nutrition shall be kept current and [ on file
in the dietary department readily available to personnel responsible
for food preparation ].
F. The facility shall make drinking water readily
available to all residents. Direct care staff shall know which residents need
help getting water or other fluids and drinking from a cup or glass. Direct
care staff shall encourage and assist residents who do not have medical
conditions with physician or other prescriber ordered fluid restrictions to
drink water or other beverages frequently.
22VAC40-73-620. Oversight of special diets.
A. There shall be oversight at least every six months of
special diets by a dietitian or nutritionist for each resident who has such a
diet. Special diets may also be referred to using terms such as medical
nutrition therapy or diet therapy. The dietitian or nutritionist must meet the
requirements of § 54.1-2731 of the Code of Virginia [ and
18VAC75-30, Regulations Governing Standards for Dietitians and Nutritionists ].
B. The oversight specified in subsection A of this section
shall be on site and include the following:
1. A review of the physician's or other prescriber's order
and the preparation and delivery of the special diet.
2. An evaluation of the adequacy of the resident's special
diet and the resident's acceptance of the diet.
3. Certification that the requirements of this subsection
were met, including the date of the oversight and identification of the
residents for whom the oversight was provided. The administrator shall be
advised of the findings of the oversight and any recommendations. All of the
requirements of this subdivision shall be (i) in writing, (ii) signed and dated
by the dietitian or nutritionist, (iii) provided to the administrator within 10
days of the completion of the oversight, and (iv) maintained in the files at
the facility for at least two years, with any specific recommendations regarding
a particular resident also maintained in the resident's record.
4. Upon receipt of recommendations noted in subdivision 3
of this subsection, the administrator [ or the, ]
dietitian, or nutritionist shall report them to the resident's physician. Documentation
of the report shall be maintained in the resident's record.
5. Action taken in response to the recommendations noted in
subdivision 3 of this subsection shall be documented in the resident's record.
22VAC40-73-630. Observance of religious dietary practices.
A. The resident's religious dietary practices shall be
respected.
B. Religious dietary practices of the administrator or
licensee shall not be imposed upon residents unless [ mutually
specifically ] agreed upon in the admission [ agreement
agreement/acknowledgment ] between administrator or licensee and
resident.
22VAC40-73-640. Medication management plan and reference
materials.
A. The facility shall have, keep current, and implement a
written plan for medication management. The facility's medication plan shall
address procedures for administering medication and shall include:
1. Methods to ensure an understanding of the
responsibilities associated with medication management;
2. Standard operating procedures, including [ but
not limited to ] the facility's standard dosing schedule and
any general restrictions specific to the facility;
3. Methods to prevent the use of outdated, damaged, or
contaminated medications;
4. Methods to ensure that each resident's prescription
medications and any over-the-counter drugs and supplements ordered for the
resident are filled and refilled in a timely manner to avoid missed dosages;
5. Methods for verifying that medication orders have been
accurately transcribed to medication administration records (MARs) [ ,
including ] within 24 hours of receipt of a new order or change
in an order;
6. Methods for monitoring medication administration and the
effective use of the MARs for documentation;
7. [ Methods to ensure that MARs are maintained
as part of the resident's record; ]
8. ] Methods to ensure accurate counts of all
controlled substances whenever assigned medication administration staff
changes;
[ 8. 9. ] Methods to ensure
that staff who are responsible for administering medications meet the qualification
requirements of 22VAC40-73-670;
[ 9. 10. ] Methods to ensure
that staff who are responsible for administering medications are adequately
supervised, including periodic direct observation of medication administration;
[ 10. 11. ] A plan for
proper disposal of medication;
[ 11. 12. ] Methods to
ensure that residents do not receive medications or dietary supplements to
which they have known allergies;
[ 12. 13. ] Identification
of the medication aide or the person licensed to administer drugs responsible for
routinely communicating issues or observations related to medication
administration to the prescribing physician or other prescriber;
[ 13. 14. ] Methods to
ensure that staff who are responsible for administering medications are trained
on the facility's medication management plan; and
[ 14. 15. ] Procedures for
internal monitoring of the facility's conformance to the medication management
plan.
B. The facility's written medication management plan
requires approval by the department.
C. Subsequent changes shall be reviewed as part of the
department's regular inspection process.
D. In addition to the facility's written medication
management plan, the facility shall [ maintain, as reference
materials for medication aides, have readily accessible ] at
least one pharmacy reference book, drug guide, or medication handbook for
nurses that is no more than two years old [ as reference materials
for staff who administer medications ].
22VAC40-73-650. Physician's or other prescriber's order.
A. No medication, dietary supplement, diet, medical
procedure, or treatment shall be started, changed, or discontinued by the
facility without a valid order from a physician or other prescriber.
Medications include prescription, over-the-counter, and sample medications.
B. Physician or other prescriber orders, both written and
oral, for administration of all prescription and over-the-counter medications
and dietary supplements shall include the name of the resident, the date of the
order, the name of the drug, route, dosage, strength, how often medication is
to be given, and identify the diagnosis, condition, or specific indications for
administering each drug.
C. Physician's or other prescriber's oral orders shall:
1. Be charted by the individual who takes the order. That
individual must be one of the following:
a. A licensed health care professional practicing within
the scope of his profession; or
b. A medication aide.
2. Be reviewed and signed by a physician or other
prescriber within 14 days.
D. Medication aides may not transmit an oral order to a
pharmacy.
E. The resident's record shall contain the physician's or
other prescriber's signed written order or a dated notation of the physician's
or other prescriber's oral order. Orders shall be organized chronologically in
the resident's record.
F. Whenever a resident is admitted to a hospital for
treatment of any condition, the facility shall obtain new orders for all
medications and treatments prior to or at the time of the resident's return to
the facility. The facility shall ensure that the primary physician is aware of
all medication orders and has documented any contact with the physician
regarding the new orders.
22VAC40-73-660. Storage of medications.
A. A medicine cabinet, container, or compartment shall be
used for storage of medications and dietary supplements prescribed for
residents when such medications and dietary supplements are administered by the
facility. Medications shall be stored in a manner consistent with current
standards of practice.
1. The storage area shall be locked.
2. Schedule II drugs and any other drugs subject to abuse
must be kept in a separate locked storage compartment (e.g., a locked cabinet
within a locked storage area or a locked container within a locked cabinet or
cart).
3. The individual responsible for medication administration
shall keep the keys to the storage area on his person.
4. When in use, the storage area shall have adequate
illumination in order to read container labels.
5. The storage area shall not be located in the kitchen or
bathroom, but in an area free of dampness or abnormal temperatures unless the
medication requires refrigeration.
6. When required, medications shall be refrigerated.
a. It is permissible to store dietary supplements and foods
and liquids used for medication administration in a refrigerator that is
dedicated to medication storage if the refrigerator is in a locked storage
area.
b. When it is necessary to store medications in a
refrigerator that is routinely used for food storage, the medications shall be
stored together in a locked container in a clearly defined area.
7. Single-use and dedicated medical supplies and equipment
shall be appropriately labeled and stored. Medical equipment suitable for
multi-use shall be stored to prevent cross-contamination.
B. A resident may be permitted to keep his own medication
in an out-of-sight place in his room if the UAI has indicated that the resident
is capable of self-administering medication. The medication and any dietary
supplements shall be stored so that they are not accessible to other residents.
This does not prohibit the facility from storing or administering all
medication and dietary supplements.
Exception: If the facility has no [ residents
resident ] with [ a ] serious cognitive
[ impairments impairment or substance abuse problem ],
the facility may determine that the out-of-sight and inaccessibility safeguards
specified in this subsection do not apply. [ If the facility
determines that these safeguards do not apply, the facility shall maintain
documentation of such, including the date and the names of residents at the
time the determination is made. No such determination shall be valid for longer
than six months. Such determinations may be renewed under the same conditions
and with the same documentation requirements. ]
22VAC40-73-670. Qualifications and supervision of staff
administering medications.
When staff administers medications to residents, the
following standards shall apply:
1. Each staff person who administers medication shall be authorized
by § 54.1-3408 of the Virginia Drug Control Act. All staff responsible for
medication administration shall:
a. Be licensed by the Commonwealth of Virginia to
administer medications; or
b. Be registered with the Virginia Board of Nursing as a
medication aide, except as specified in subdivision 2 of this section.
2. Any applicant for registration as a medication aide who
has provided to the Virginia Board of Nursing evidence of successful completion
of the education or training course required for registration may act as a
medication aide on a provisional basis for no more than 120 days before
successfully completing any required competency evaluation. However, upon
notification of failure to successfully complete the written examination after
three attempts, an applicant shall immediately cease acting as a medication
aide.
3. Medication aides shall be
supervised by one of the following:
a. An individual employed full time at the facility who is
licensed by the Commonwealth of Virginia to administer medications;
b. The administrator who is licensed by the Commonwealth of
Virginia to administer medications or who has successfully completed a training
program approved by the Virginia Board of Nursing for the registration of
medication aides. The training program for administrators who supervise
medication aides, but are not registered medication aides themselves, must
include a minimum of 68 hours of student instruction and training but need not
include the prerequisite for the program or the written examination for
registration. The administrator must also meet the requirements of
22VAC40-73-160 E; or
c. For a facility licensed for residential living care
only, the designated assistant administrator, as specified in 22VAC40-73-150 E,
who is licensed by the Commonwealth of Virginia to administer medications or
who has successfully completed a training program approved by the Virginia
Board of Nursing for the registration of medication aides. The training program
for designated assistant administrators who supervise medication aides, but are
not registered medication aides themselves, must include a minimum of 68 hours
of student instruction and training but need not include the prerequisite for
the program or the written examination for registration. The designated
assistant administrator must also meet the requirements of 22VAC40-73-160 E.
22VAC40-73-680. Administration of medications and related
provisions.
A. Staff who are licensed, registered, or acting as
medication aides on a provisional basis as specified in 22VAC40-73-670 shall
administer drugs to those residents who are dependent on medication
administration as documented on the UAI.
B. Medications shall be removed from the pharmacy
container, or the container shall be opened, by a staff person licensed,
registered, or acting as a medication aide on a provisional basis as specified
in 22VAC40-73-670 and administered to the resident by the same staff person.
Medications shall remain in the pharmacy issued container, with the
prescription label or direction label attached, until administered to the
resident.
C. Medications shall be administered not earlier than one
hour before and not later than one hour after the facility's standard dosing
schedule, except those drugs that are ordered for specific times, such as
before, after, or with meals.
D. Medications shall be administered in accordance with
the physician's or other prescriber's instructions and consistent with the
standards of practice outlined in the current registered medication aide
curriculum approved by the Virginia Board of Nursing.
E. Medical procedures or treatments ordered by a physician
or other prescriber shall be provided according to his instructions [ and
documented. The documentation shall be maintained in the resident's record ].
F. Sample medications shall remain in the original
packaging, labeled by a physician or other prescriber or pharmacist with the
resident's name, the name of the medication, the strength, dosage, and route
and frequency of administration, until administered.
G. Over-the-counter medication shall remain in the
original container, labeled with the resident's name, or in a pharmacy-issued
container, until administered.
H. At the time the medication is administered, the
facility shall document on a medication administration record (MAR) all
medications administered to residents, including over-the-counter medications
and dietary supplements.
I. The MAR shall include:
1. Name of the resident;
2. Date prescribed;
3. Drug product name;
4. Strength of the drug;
5. Dosage;
6. Diagnosis, condition, or specific indications for
administering the drug or supplement;
7. Route (e.g., by mouth);
8. How often medication is to be taken;
9. Date and time given and initials of direct care staff
administering the medication;
10. Dates the medication is discontinued or changed;
11. Any medication errors or omissions;
12. Description of significant adverse effects suffered by
the resident;
13. For "as needed" (PRN) medications:
a. Symptoms for which medication was given;
b. Exact dosage given; and
c. Effectiveness; and
14. The name, signature, and initials of all staff
administering medications. [ A master list may be used in lieu of
this documentation on individual MARs. ]
J. In the event of an adverse drug reaction or a
medication error, the following applies:
1. Action shall be taken as directed by a physician,
pharmacist, or a poison control center;
2. The resident's physician of record and family member or
other responsible person shall be notified as soon as possible; and
3. Medication administration staff shall document actions
taken in the resident's record.
[ K. The performance of all medical procedures and
treatments ordered by a physician or other prescriber shall be documented, and
the documentation shall be retained in the resident's record.
L. K. ] The use of PRN
medications is prohibited, unless one or more of the following conditions
exist:
1. The resident is capable of determining when the
medication is needed;
2. Licensed health care professionals administer the PRN
medication; or
3. Medication aides administer the PRN medication when the
facility has obtained from the resident's physician or other prescriber a
detailed medication order. The order shall include symptoms that indicate the
use of the medication, exact dosage, the exact time frames the medication is to
be given in a 24-hour period, and directions as to what to do if symptoms
persist.
[ M. L. ] In order for
drugs in a hospice comfort kit to be administered, the requirements specified
in subsection [ L K ] of this section
must be met, and each medication in the kit must have a prescription label
attached by the pharmacy.
[ N. M. ] Medications
ordered for PRN administration shall be available, properly labeled for the
specific resident, and properly stored at the facility.
[ O. N. ] Stat-drug boxes
may only be used when the following conditions are met:
1. There is an order from the prescriber for any drug
removed from the stat-drug box; and
2. The drug is removed from the stat-drug box and
administered by a nurse, pharmacist, or prescriber licensed to administer
medications. [ 3. ] Registered medication aides
are not permitted to either remove or administer medications from the stat-drug
box.
22VAC40-73-690. Medication review.
A. For each resident assessed for residential living care,
except for those who self-administer all of their medications, a licensed
health care professional, practicing within the scope of his profession, shall
perform an annual review of all the medications of the resident.
B. For each resident assessed for assisted living care,
except for those who self-administer all of their medications, a licensed
health care professional, practicing within the scope of his profession, shall
perform a review every six months of all the medications of the resident.
C. The medication review shall include prescription drugs,
over-the-counter medications, and dietary supplements ordered for the resident.
D. If deemed appropriate by the licensed health care
professional, the review shall include observation of the resident or interview
with the resident or staff.
E. The review shall include [ , but not be
limited to, ] the following:
1. All medications that the resident is taking and
medications that he could be taking if needed (PRNs).
2. An examination of the dosage, strength, route, how
often, prescribed duration, and when the medication is taken.
3. Documentation of actual and consideration of potential
interactions of drugs with one another.
4. Documentation of actual and consideration of potential
interactions of drugs with foods or drinks.
5. Documentation of actual and consideration of potential
negative effects of drugs resulting from a resident's medical condition other
than the one the drug is treating.
6. Consideration of whether PRNs, if any, are still needed
and if clarification regarding use is necessary.
7. [ Consideration of a gradual dose reduction
of antipsychotic medications for those residents with a diagnosis of dementia
and no diagnoses of a primary psychiatric disorder.
8. ] Consideration of whether the resident
needs additional monitoring or testing.
[ 8. 9. ] Documentation of
actual and consideration of potential adverse effects or unwanted side effects
of specific medications.
[ 9. 10. ] Identification of
that which may be questionable, such as (i) similar medications being taken,
(ii) different medications being used to treat the same condition, (iii) what
seems an excessive number of medications, and (iv) what seems an exceptionally
high drug dosage.
[ 10. 11. ] The health care
professional shall notify the resident's attending physician of any concerns or
problems and document the notification.
F. The licensed health care professional shall certify
that the requirements of subdivisions E 1 through E [ 10
11 ] of this section were met, including the dates of the
medication review. The administrator shall be advised of the findings of the
medication review and any recommendations. All of the requirements of this
subdivision shall be (i) in writing, (ii) signed and dated by the health care
professional, (iii) provided to the administrator within 10 days of the
completion of the review, and (iv) maintained in the facility files for at
least two years, with any specific recommendations regarding a particular
resident also maintained in the resident's record.
G. Action taken in response to the recommendations noted
in subsection F of this section shall be documented in the resident's record.
22VAC40-73-700. Oxygen therapy.
When oxygen therapy is provided, the following safety
precautions shall be met and maintained:
1. The facility shall have a valid physician's or other
prescriber's order that includes the following:
a. The oxygen source, such as compressed gas or
concentrators;
b. The delivery device, such as nasal cannula, reservoir
nasal cannulas, or masks; and
c. The flow rate deemed therapeutic for the resident.
2. The facility shall post "No Smoking-Oxygen in
Use" signs and enforce the smoking prohibition in any room of a building
where oxygen is in use.
3. The facility shall ensure that only oxygen from a
portable source shall be used by residents when they are outside their rooms.
The use of long plastic tether lines to the source of oxygen outside their
rooms is not permitted.
4. The facility shall make available to staff the emergency
numbers to contact the resident's physician or other prescriber and the oxygen
vendor for emergency service or replacement.
5. The facility shall demonstrate that all direct care
staff responsible for assisting residents who use oxygen supplies have had
training or instruction in the use and maintenance of resident-specific
equipment.
6. The facility shall include in its disaster preparedness
plan a checklist of information required to meet the identified needs of those
[ individuals residents ] who require oxygen
therapy including [ , but not limited to, ] the
following:
a. Whether the facility has on-site, emergency generator
capacity sufficient to safely operate oxygen concentrators efficiently.
b. Whether in the absence of on-site generators the
facility has agreements with vendors to provide emergency generators, including
whether those generators will support oxygen concentrators.
c. Where the facility maintains chart copies of each
resident's agreement, including emergency preparedness and back-up plans, with
his oxygen equipment and supply vendor for ready access in any emergency
situation.
d. How equipment and supplies will be transported in the
event that residents must be evacuated to another location.
22VAC40-73-710. Restraints.
A. The use of chemical restraints is prohibited.
[ The use of prone or supine restraints is prohibited. The use of any
restraint or restraint technique that restricts a resident's breathing,
interferes with a resident's ability to communicate, or applies pressure on a
resident's torso is prohibited. ]
B. Physical restraints shall not be used for purposes of
discipline or convenience. [ Restraints Physical
restraints ] may only be used [ to treat a
resident's medical symptoms or symptoms from mental illness or intellectual
disability (i) as a medical/orthopedic restraint for support,
according to a physician's written order and with the written consent of the
resident or his legal representative or (ii) in an emergency situation after
less intrusive interventions have proven insufficient to prevent imminent
threat of death or serious physical injury to the resident or others. ]
C. [ The facility may only impose physical
restraints when the resident's medical symptoms or symptoms from mental illness
or intellectual disability warrant the use of restraints. The restraint
must If a restraint is used, it must ]:
[ 1. Be necessary to ensure the physical safety of
the resident or others;
2. 1. ] Be imposed in accordance
with a physician's written order [ , which must be no older than
three months, ] that specifies the condition, circumstances,
and duration under which the restraint is to be used, [ except
in emergency circumstances until such an order can reasonably be obtained ];
and
[ 3. 2. ] Not be ordered on
a standing, blanket, or "as needed" (PRN) basis.
D. Whenever physical restraints are used, the following
conditions shall be met:
1. A restraint shall be used only to the minimum extent
necessary to protect the resident or others;
2. Restraints shall only be applied by direct care staff
who have received training in their use as specified by subdivision 2 of
22VAC40-73-270;
3. The facility shall closely monitor the [ resident's ]
condition [ of a resident with a restraint ], which
includes checking on the resident at least every 30 minutes;
4. The facility shall assist the resident [ with
a restraint ] as often as necessary, but no less than 10 minutes
every hour, for his hydration, safety, comfort, range of motion, exercise,
elimination, and other needs;
5. The facility shall release the resident from the
restraint as quickly as possible; [ and ]
6. Direct care staff shall keep a record of restraint
usage, outcomes, checks, and any assistance required in subdivision 4 of this
subsection and shall note any unusual occurrences or problems;
[ 7. In E. When restraints are used in ]
nonemergencies, as defined in 22VAC40-73-10, [ the following
conditions shall be met ]:
[ a. 1. ] Restraints shall
be used as a last resort and only if the facility, after completing,
implementing, and evaluating the resident's comprehensive assessment and
service plan, determines and documents that less restrictive means have failed;
[ 2. Physician orders for medical/orthopedic restraints
must be reviewed by the physician at least every three months and renewed if
the circumstances warranting the use of the restraint continue to exist; ]
[ b. 3. ] Restraints shall
be used in accordance with the resident's service plan, which documents the
need for the restraint and includes a schedule or plan of rehabilitation
training enabling the progressive removal or the progressive use of less
restrictive restraints when appropriate;
[ c. The 4. Before the initial
administration of a restraint, the ] facility shall explain the use
of the restraint and potential negative outcomes to the resident or his legal
representative and the resident's right to refuse the restraint and shall
obtain the written consent of the resident or his legal representative;
[ d. 5. ] Restraints shall
be applied so as to cause no physical injury and the least possible discomfort;
and
[ e. 6. ] The facility shall
notify the resident's legal representative or designated contact person as soon
as practicable, but no later than 24 hours after the initial administration of
a nonemergency restraint. The facility shall keep the [ resident
and his ] legal representative or designated contact person
informed about any changes in restraint usage. A notation shall be made in the
resident's record of such notice, including the date, time, [ caller,
and ] person notified [ , method of notification,
and staff providing notification ].
[ 8. In F. When restraints are used in ]
emergencies, as defined in 22VAC40-73-10 [ the following
conditions shall be met ]:
[ a. 1. ] Restraints
[ shall not be used unless they are necessary to alleviate an
unanticipated immediate and serious danger to the resident or other individuals
in the facility may only be used as an emergency intervention of
last resort to prevent imminent threat of death or serious physical injury to
the resident or others ];
[ b. 2. ] An oral or written
order shall be obtained from a physician within one hour of administration of
the emergency restraint and the order shall be documented;
[ c. 3. ] In the case of an
oral order, a written order shall be obtained from the physician as soon as
possible;
[ d. 4. ] The resident shall
be within sight and sound of direct care staff at all times;
[ e. 5. ] If the emergency
restraint is necessary for longer than two hours, the resident shall be
transferred to a medical or psychiatric inpatient facility or monitored in the
facility by a mental health crisis team until his condition has stabilized to
the point that the attending physician documents that restraints are not
necessary; [ and
f. 6. ] The facility shall notify
the resident's legal representative or designated contact person as soon as
practicable, but no later than 12 hours after administration of an emergency
restraint. A notation shall be made in the resident's record of such notice,
including the date, time, caller and person notified [ .;
and
7. The facility shall review the resident's individualized
service plan within one week of the application of an emergency restraint and document
additional interventions to prevent the future use of emergency restraints. ]
22VAC40-73-720. Do Not Resuscitate Orders.
A. Do Not Resuscitate (DNR) Orders for withholding
cardiopulmonary resuscitation from [ an individual a
resident ] in the event of cardiac or respiratory arrest may only
be carried out in a licensed assisted living facility when:
1. A valid written order has been issued by the resident's
attending physician; and
2. The written order is included in the individualized
service plan;
B. The facility shall have a system to ensure that all
staff are aware of residents who have a valid DNR Order.
C. The DNR Order shall be readily available to other
authorized persons, such as emergency medical technicians (EMTs), when
necessary.
D. Durable DNR Orders shall not authorize the assisted
living facility or its staff to withhold other medical interventions, such as
intravenous fluids, oxygen, or other therapies deemed necessary to provide
comfort care or to alleviate pain.
E. Section 63.2-1807 of the Code of Virginia states that
the owners or operators of any assisted living facility may provide that their
staff who are certified in CPR shall not be required to resuscitate any
resident for whom a valid written order not to resuscitate in the event of
cardiac or respiratory arrest has been issued by the resident's attending
physician and has been included in the resident's individualized service plan.
F. If the owner or operator of a facility has determined
that DNR Orders will not be honored, the facility shall have a policy
specifying this and, prior to admission, the resident or his legal guardian
shall be notified of the policy and sign an acknowledgment of the notification.
22VAC40-73-730. Advance directives.
A. Upon admission or while residing in the facility,
whenever the resident has established advance directives, such as a living will
or a durable power of attorney for health care, to the extent available, the
facility shall obtain the following:
1. The name of and contact information for the individual
or individuals who has the document or documents;
2. The location of the documents;
3. Either the advance directives or the content of the
advance directives; and
4. The name of and contact information for any designated
agent, as related to the development and modification of the individualized
service plan.
B. If the facility is unable to obtain any of the
information or documents as noted in subdivisions 1 through 4 of subsection A
of this section, the efforts made to do so shall be documented in the
resident's record.
C. The information regarding advance directives shall be
readily available to other authorized persons, such as emergency medical
technicians (EMTs), when necessary.
D. A resident requesting assistance with establishing
advance directives shall be referred to his primary health care provider or
attorney.
Part VII
Resident Accommodations and Related Provisions
22VAC40-73-740. Personal possessions.
A. Each resident shall be permitted to keep reasonable
personal property in his possession at a facility in order to maintain
individuality and personal dignity.
B. A facility shall ensure that each resident has his own
clothing.
1. The use of a common clothing pool is prohibited.
2. If necessary, resident's clothing shall be
inconspicuously marked with his name to avoid getting mixed with others.
3. Residents shall be allowed and encouraged to select
their daily clothing and wear clothing to suit their activities and appropriate
to weather conditions.
C. Each resident shall have his own personal care items.
D. Each facility shall develop and implement a written
policy regarding procedures to be followed when a resident's clothing or other
personal possessions, such as jewelry, television, radio, or other durable
property, are reported missing. Attempts shall be made to determine the reason
for the loss and any reasonable actions shall be taken to recover the item and
to prevent or discourage future losses. The results of the investigation shall
be reported in writing to the resident. Documentation shall be maintained for
at least two years regarding items that were reported missing and resulting
actions that were taken.
22VAC40-73-750. Resident rooms.
A. The resident shall be encouraged to furnish or decorate
his room as space and safety considerations permit and in accordance with this
chapter.
B. Bedrooms shall contain the following items, except as
provided for in subsection C of this section:
1. A separate bed with comfortable mattress, springs, and
pillow for each resident. Provisions for a double bed for a married couple
shall be optional;
2. A table or its equivalent accessible to each bed;
3. An operable bed lamp or bedside light accessible to each
resident;
4. A sturdy chair for each resident;
5. Drawer space for clothing and other personal items. If
more than one resident occupies a room, ample drawer space shall be assigned to
each [ individual resident ];
6. At least one mirror - if the resident has an individual
adjoining bathroom, the mirror may be in the bathroom; and
7. Window coverings for privacy.
C. If a resident specifies in writing that he does not
wish to have an item or items listed in subsection B of this section and
understands that he may decide otherwise at any time, the resident's bedroom is
not required to contain those specified items. The written specification shall
be maintained in the resident's record.
D. Adequate and accessible closet or wardrobe space shall
be provided for each resident. As of December 28, 2006, in all buildings
approved for construction or change in use and occupancy classification, the
closet or wardrobe space shall be in the resident's bedroom.
E. The facility shall have sufficient bed and bath linens
in good repair so that residents always have clean:
1. Sheets;
2. Pillowcases;
3. Blankets;
4. Bedspreads;
5. Towels;
6. Washcloths; and
7. Waterproof mattress covers when needed.
22VAC40-73-760. Living room or multipurpose room.
A. Sitting rooms or recreation areas or both shall be
equipped with:
1. Comfortable chairs (e.g., overstuffed, straight-backed,
and rockers);
2. Tables;
3. Lamps;
4. Television, if not available in other [ common ]
areas of the facility;
5. Radio, if not available in other [ common ]
areas of the facility; and
6. Current newspaper [ , if not available in
other common areas of the facility ].
B. Space other than sleeping areas shall be provided for
residents for sitting, for visiting with one another or with guests, for social
and recreational activities, and for dining. These areas may be used
interchangeably.
22VAC40-73-770. Dining areas.
Dining areas shall have a sufficient number of sturdy
dining tables and chairs to serve all residents, either all at one time or in
reasonable shifts.
22VAC40-73-780. Laundry and linens.
A. Residents' clothing shall be kept clean and in good
repair.
B. Bed and bath linens shall be changed at least every
seven days and more often if needed. In facilities with common bathing areas,
bath linens shall be changed after each use.
C. When the facility provides laundry service for
residents' clothing or personal linens, the clean items shall be sorted by
individual resident.
D. Table coverings and napkins shall be clean at all
times.
E. Table and kitchen linens shall be laundered separately
from other washable goods.
F. When bed, bath, table, and kitchen linens are washed,
the water shall be above 140°F or the dryer shall heat the linens above 140°F
as verified by the manufacturer or a sanitizing agent shall be used according
to the manufacturer's instructions.
22VAC40-73-790. Transportation.
The resident shall be assisted in making arrangements for
transportation as necessary.
22VAC40-73-800. Incoming and outgoing mail.
A. Incoming and outgoing mail shall not be censored.
B. Incoming mail shall be delivered promptly.
C. Mail shall not be opened by staff or volunteers except
upon request of the resident and in his presence or written request of the
legal representative.
22VAC40-73-810. Telephones.
A. Each building shall have at least one operable, nonpay
telephone easily accessible to staff. There shall be additional telephones or
extensions as may be needed to summon help in an emergency.
B. The resident shall have reasonable access to a nonpay
telephone on the premises.
C. Privacy shall be provided for residents to use a
telephone.
22VAC40-73-820. Smoking.
A. Smoking by residents, staff, volunteers, and visitors
shall be done only in areas designated by the facility and approved by the
State Fire Marshal or local fire official. Smoking shall not be allowed in a
kitchen or food preparation areas. A facility may prohibit smoking on its
premises.
B. All designated smoking areas shall be provided with
suitable ashtrays.
C. Residents shall not be permitted to smoke in or on
their beds.
D. All common areas shall have smoke-free areas designated
for nonsmokers.
22VAC40-73-830. Resident councils.
A. The facility shall permit and encourage the formation
of a resident council by residents and shall assist the residents in its
establishment.
B. The purposes of the resident council shall be to:
1. Work with the administration in improving the quality of
life for all residents;
2. Discuss the services offered by the facility and make
recommendations for resolution of identified problems or concerns; and
3. Perform other functions as determined by the council.
C. The resident council shall be composed of residents of
the facility and the council may extend membership to family members,
advocates, friends, and others. Residents shall be encouraged but shall not be
compelled to attend meetings.
D. The facility shall assist residents in maintaining the
resident council, including [ , but not limited to ]:
1. Scheduling regular meetings;
2. Providing space for meetings;
3. Posting notice for meetings;
4. Providing assistance in attending meetings for those
residents who request it; and
5. Preparing written reports of meetings as requested by
the council for dissemination to all residents.
E. The facility shall provide a written response to the
council prior to the next meeting regarding any recommendations made by the
council for resolution of problems or concerns.
F. In order to promote a free exchange of ideas, [ at
least part of each meeting shall be allowed to be conducted without ] the
presence of any facility personnel [ shall be only at the
request of the council ].
G. If there is no council, the facility shall annually
remind residents that they may establish a resident council and that the facility
would assist in its formation and maintenance. The general purpose of the
council shall also be explained at this time.
22VAC40-73-840. Pets living in the assisted living facility.
A. Each assisted living facility shall develop and
implement a written policy regarding pets living on the premises that will
ensure the safety and well-being of all residents and staff.
B. If a facility allows pets to live on the premises, the
following applies:
1. The policy specified in subsection A of this section
shall include:
a. The types of pets that are permitted in the assisted
living facility; and
b. The conditions under which pets may be in the assisted
living facility.
2. Before being allowed to live on the premises, pets shall
have had all recommended or required immunizations and shall be certified by a
licensed veterinarian to be free of diseases transmittable to humans.
3. Pets living on the assisted living facility premises:
a. Shall have regular examinations and immunizations,
appropriate for the species, by a licensed veterinarian; and
b. Shall be restricted from central food preparation areas.
4. Documentation of examinations and immunizations shall be
maintained at the facility.
5. Pets shall be well-treated and cared for in compliance
with state regulations and local ordinances.
6. Any resident's rights, preferences, and medical needs
shall not be compromised by the presence of a pet.
7. Any pet living on the premises shall have a suitable
temperament, be healthy, and otherwise pose no significant health or safety
risks to residents, staff, volunteers, or visitors.
22VAC40-73-850. Pets visiting the assisted living facility.
If an assisted living facility allows pets to visit the
premises, the following shall apply:
1. [ The facility shall have a written policy
regarding such pets;
1. 2. ] Any pet present at the
facility shall be in good health and show no evidence of carrying any disease;
[ 2. 3. ] Any resident's
rights, preferences, and medical needs shall not be compromised by the presence
of a pet; and
[ 3. 4. ] Any pet shall be
well-treated while visiting on the premises, have a suitable temperament, and
otherwise pose no significant health or safety risks to residents, staff,
volunteers, or visitors.
Part VIII
Buildings and Grounds
22VAC40-73-860. General requirements.
A. Buildings licensed for ambulatory residents or
nonambulatory residents shall be classified by and meet the specifications for
the proper use and occupancy classification as required by the Virginia Uniform
Statewide Building Code (13VAC5-63).
B. Documentation completed and signed by the building
official shall be obtained as evidence of compliance with the applicable
edition of the Virginia Uniform Statewide Building Code.
C. Before construction begins or contracts are awarded for
any new construction, remodeling, or alterations, plans shall be submitted to
the department for review.
D. Doors and windows.
1. All doors shall open and close readily and effectively.
2. Any doorway that is used for ventilation shall be
effectively screened.
3. Any operable window (i.e., a window that may be opened)
shall be effectively screened.
E. There shall be enclosed walkways between residents'
rooms and dining and sitting areas that are adequately lighted, heated, and
ventilated.
F. There shall be an ample supply of hot and cold water
from an approved source available to the residents at all times.
G. Hot water at taps available to residents shall be
maintained within a range of 105°F to 120°F.
H. Where there is an outdoor area accessible to residents,
such as a porch or lawn, it shall be equipped with furniture in season.
I. Each facility shall store cleaning supplies and other
hazardous materials in a locked area, except as noted in subsection J of this
section.
J. A resident may be permitted to keep his own cleaning
supplies or other hazardous materials in an out-of-sight place in his room if
the resident does not have a serious cognitive impairment. The cleaning
supplies or other hazardous materials shall be stored so that they are not
accessible to other residents.
Exception: When a resident keeps his own cleaning supplies
or other hazardous materials in his room, [ and ] if
the facility has no residents with serious cognitive impairments, the facility
may determine that the out-of-sight and inaccessibility safeguards specified in
this subsection do not apply, unless mandated by the Virginia Uniform Statewide
Building Code or Virginia Statewide Fire Prevention Code (13VAC5-51).
K. Each facility shall develop and implement a written
policy regarding weapons on the premises of the facility that will ensure the
safety and well-being of all residents and staff. [ Any
facility permitting any type of firearm on the premises must include procedures
to ensure that ammunitions and firearms are stored separately and in locked
locations. ]
22VAC40-73-870. Maintenance of buildings and grounds.
A. The interior and exterior of all buildings shall be
maintained in good repair and kept clean and free of rubbish.
B. All buildings shall be well-ventilated and free from foul,
stale, and musty odors.
C. Adequate provisions for the collection and legal
disposal of garbage, ashes, and waste material shall be made.
D. Buildings shall be kept free of infestations of insects
and vermin. The grounds shall be kept free of their breeding places.
E. All furnishings, fixtures, and equipment, including
[ , but not limited to, ] furniture, window
coverings, sinks, toilets, bathtubs, and showers, shall be kept clean and in
good repair and condition, except that furnishings and equipment owned by a
resident shall be, at a minimum, in safe condition and not soiled in a manner
that presents a health hazard.
F. All inside and outside steps, stairways, and ramps
shall have nonslip surfaces.
G. Grounds shall be properly maintained to include mowing
of grass and removal of snow and ice.
H. Handrails shall be provided on all stairways, ramps,
elevators, and at changes of floor level.
I. Elevators, where used, shall be kept in good running
condition and shall be inspected at least annually. Elevators shall be
inspected in accordance with the Virginia Uniform Statewide Building Code
(13VAC5-63). The signed and dated certificate of inspection issued by the local
authority shall be evidence of such inspection.
22VAC40-73-880. Heating, ventilation, and cooling.
A. At least one movable thermometer shall be available in
each building for measuring temperatures in individual rooms that do not have a
fixed thermostat that shows the temperature in the room.
B. Heating.
1. Heat shall be supplied from a central heating plant or
an electrical heating system in accordance with the Virginia Uniform Statewide
Building Code (13VAC5-63).
2. Provided their installation or operation has been
approved by the state or local building or fire authorities, space heaters,
such as but not limited to, wood burning stoves, coal burning stoves, and oil
heaters, or portable heating units either vented or unvented, may be used only
to provide or supplement heat in the event of a power failure or similar
emergency. These appliances shall be used in accordance with the manufacturer's
instructions.
3. A temperature of at least 72°F shall be maintained in
all areas used by residents during hours when residents are normally awake.
During night hours, when residents are asleep, a temperature of at least 68°F
shall be maintained. This standard applies unless otherwise mandated by federal
or state authorities.
Exception: The facility may allow the temperature in a
bedroom in which only one resident resides, which has a thermostat in the room,
to be controlled by the resident as long as the temperature does not endanger
the health, safety, or welfare of the resident.
C. Cooling.
1. The facility shall provide in all buildings an air
conditioning system for all areas used by residents, including residents'
bedrooms and common areas. Temperatures in all areas used by residents shall
not exceed 80°F.
Exception: The facility may allow the temperature in a
bedroom in which only one resident resides, which has a thermostat in the room,
to be controlled by the resident as long as the temperature does not endanger
the health, safety, or welfare of the resident.
2. Any electric fans shall be screened and placed for the
protection of the residents.
D. The facility shall develop and implement a plan to
protect residents from heat-related and cold-related illnesses in the event of
loss of air-conditioning or heat due to emergency situations or malfunctioning
or broken equipment.
22VAC40-73-890. Lighting and lighting fixtures.
A. Artificial lighting shall be by electricity.
B. All interior and exterior areas shall be adequately
lighted for the safety and comfort of residents and staff.
C. Glare shall be kept at a minimum in rooms used by
residents. When necessary to reduce glare, coverings shall be used for windows
and lights.
D. If used, fluorescent lights shall be replaced if they
flicker or make noise.
22VAC40-73-900. Sleeping areas.
Resident sleeping quarters shall provide:
1. For not less than 450 cubic feet of air space per
resident;
2. For square footage as provided in this subdivision:
a. As of February 1, 1996, all buildings approved for
construction or change in use and occupancy classification, as referenced in
the Virginia Uniform Statewide Building Code (13VAC5-63), shall have not
less than 100 square feet of floor area in bedrooms accommodating one resident;
otherwise not less than 80 square feet of floor area in bedrooms accommodating
one resident shall be required.
b. As of February 1, 1996, all buildings approved for
construction or change in use and occupancy classification, as referenced in
the Virginia Uniform Statewide Building Code, shall have not less than 80
square feet of floor area per person in bedrooms accommodating two or more
residents; otherwise not less than 60 square feet of floor area per person in
bedrooms accommodating two or more persons shall be required;
3. For ceilings at least 7-1/2 feet in height;
4. For window areas as provided in this subdivision:
a. There shall be at least eight square feet of glazed
window area in a room housing one person; and
b. There shall be at least six square feet of glazed window
area per person in rooms occupied by two or more persons;
5. For occupancy as provided in this subdivision:
a. As of December 28, 2006, in all buildings approved for
construction or change in use and occupancy classification, as referenced in
the Virginia Uniform Statewide Building Code (13VAC5-63), there shall be no
more than two residents residing in a bedroom.
b. [ As of February 1, 2018, when there is a
new facility licensee, there shall be no more than two residents residing in a
bedroom.
b. c. ] Unless the provisions of
[ subdivision subdivisions ] 5 a [ and
5 b ] of this [ subsection section ]
apply, there shall be no more than four residents residing in a bedroom;
6. For at least three feet of space between sides and ends
of beds that are placed in the same room;
7. That no bedroom shall be used as a corridor to any other
room;
8. That all beds shall be placed only in bedrooms; and
9. That household members and staff shall not share
bedrooms with residents.
22VAC40-73-910. Common rooms.
As of October 9, 2001, buildings approved for construction
or change in use and occupancy classification, as referenced in the Virginia
Uniform Statewide Building Code (13VAC5-63), shall have a glazed window area
above ground level in at least one of the common rooms (e.g., living room,
multipurpose room, or dining room). The square footage of the glazed window
area shall be at least 8.0% of the square footage of the floor area of the
common room.
22VAC40-73-920. Toilet, face/hand washing, and bathing
facilities.
A. In determining the number of toilets, face/hand washing
sinks, bathtubs, or showers required, the total number of persons residing on the
premises shall be considered. Unless there are separate facilities for
household members or staff, they shall be counted in determining the required
number of fixtures, except that for bathtubs or showers, the staff count shall
include only live-in staff.
1. As of December 28, 2006, in all buildings approved for
construction or change in use and occupancy classification, as referenced in
the Virginia Uniform Statewide Building Code (13VAC5-63), on each floor where
there are residents' bedrooms, there shall be:
a. At least one toilet for each four persons, or portion
thereof;
b. At least one face/hand washing sink for each four
persons, or portion thereof;
c. At least one bathtub or shower for each seven persons,
or portion thereof; [ and ]
d. Toilets, face/hand washing sinks and bathtubs or showers
in separate rooms for men and women where more than four persons live on a
floor. Bathrooms equipped to accommodate more than one person at a time shall
be labeled by gender. Gender designation of bathrooms shall remain constant
during the course of a day.
2. Unless the provisions of subdivision 1 of this
subsection apply, on each floor where there are residents' bedrooms, there
shall be:
a. At least one toilet for each seven persons, or portion
thereof;
b. At least one face/hand washing sink for each seven
persons, or portion thereof;
c. At least one bathtub or shower for each 10 persons, or
portion thereof; [ and ]
d. Toilets, face/hand washing sinks and bathtubs or showers
in separate rooms for men and women where more than seven persons live on a
floor. Bathrooms equipped to accommodate more than one person at a time shall
be labeled by gender. Gender designation of bathrooms shall remain constant
during the course of a day.
3. As of December 28, 2006, in all buildings approved for
construction or change in use and occupancy classification, as referenced in
the Virginia Uniform Statewide Building Code, when residents' rooms are located
on the same floor as the main living or dining area, in addition to the requirements
of subdivision 1 of this subsection, there shall be at least one more toilet
and face/hand washing sink, which is available for common use. The provisions
of subdivision 4 c of this subsection shall also apply.
4. On floors used by residents where there are no
residents' bedrooms, there shall be:
a. At least one toilet;
b. At least one face/hand washing sink; [ and ]
c. Toilets and face/hand washing sinks in separate rooms
for men and women in facilities where there are 10 or more residents. Bathrooms
equipped to accommodate more than one person at a time shall be designated by
gender. Gender designation of bathrooms must remain constant during the course
of a day.
B. Bathrooms shall provide for privacy for such activities
as bathing, toileting, and dressing.
C. There shall be ventilation to the outside in order to
eliminate foul odors.
D. The following sturdy safeguards shall be provided, with
installation in compliance with the Virginia Uniform Statewide Building Code:
1. Handrails by bathtubs;
2. Grab bars by toilets; and
3. Handrails inside and stools available to stall showers.
Exception: These safeguards shall be optional for
[ individuals residents ] with independent
living status.
E. Bathtubs and showers shall have nonskid surfacing or strips.
F. The face/hand washing sink shall be in the same room as
the toilet or in an adjacent private area that is not part of a common use area
of the assisted living facility.
G. The assisted living facility shall provide private or
common use toilet, face/hand washing, and bathing facilities to meet the needs
of each resident.
22VAC40-73-925. Toilet, face/hand washing, and bathing
supplies.
A. The facility shall have an adequate supply of toilet
tissue and soap. Toilet tissue shall be accessible to each commode and soap
shall be accessible to each face/hand washing sink and each bathtub or shower.
B. Common face/hand washing sinks shall have paper towels
or an air dryer and liquid soap for hand washing.
C. Residents may not share bar soap.
D. The facility may not charge an additional amount for
toilet paper, soap, paper towels, or use of an air dryer at common sinks and
commodes.
22VAC40-73-930. Provisions for signaling and call systems.
A. All assisted living facilities shall have a signaling
device that is easily accessible to the resident in his bedroom or in a
connecting bathroom that alerts the direct care staff that the resident needs
assistance.
B. In buildings licensed to care for 20 or more residents
under one roof, there shall be a signaling device that terminates at a central
location that is continuously staffed and permits staff to determine the origin
of the signal or is audible and visible in a manner that permits staff to
determine the origin of the signal.
C. In buildings licensed to care for 19 or fewer residents
under one roof, if the signaling device does not permit staff to determine the
origin of the signal as specified in subsection B of this section, direct care
staff shall make rounds at least once each hour to monitor for emergencies or
other unanticipated resident needs. These rounds shall begin when the majority
of the residents have gone to bed each evening and shall terminate when the
majority of the residents have arisen each morning, and shall be documented as
follows:
1. A written log shall be maintained showing the date and
time rounds were made and the signature of the direct care staff member who
made rounds.
2. Logs for the past two years shall be retained.
[ Exception: Rounds may be made on a different
frequency if requested by the resident and agreed to by the facility. Any
agreement for a different frequency must be in writing, specify the frequency,
be signed and dated by the resident and the facility, and be retained in the
resident's record. The written log required in subdivision 1 of the subsection
shall indicated the name of such resident. If there is a change in the
resident's condition or care needs, the agreement shall be reviewed and if
necessary, the frequency of rounds shall be adjusted. If an adjustment is made,
the former agreement shall be replaced with a new agreement or with compliance
with the frequency specified in this subsection. ]
D. For each resident with an inability to use the
signaling device, [ this in addition to any
other services, the following shall be met:
1. This ] inability shall be included in the
resident's individualized service plan [ , indicating the need
for monitoring for emergencies and other unanticipated needs. In addition to
any other services, the.
2. The ] plan shall specify a minimal frequency
of [ daily ] rounds to be made by direct care staff
[ and the method used to document that such rounds were made.
Documentation of rounds to monitor for emergencies or other
unanticipated resident needs.
3. Unless subsection C of this section is applicable,
once the resident has gone to bed each evening until the resident has arisen
each morning, at a minimum, direct care staff shall make rounds no less
often than every two hours, except that rounds may be made on a different frequency
if requested by the resident and agreed to by the facility. Any agreement for a
different frequency must be in writing, specify the frequency, be signed and
dated by the resident and the facility, and be retained in the resident's
record. If there is a change in the resident's condition or care needs, the
agreement shall be reviewed and if necessary, the frequency of rounds shall be
adjusted. If an adjustment is made, the former agreement shall be replaced with
a new agreement or with compliance with the frequency specified in this
subdivision.
4. The facility shall document the rounds that were made,
which shall include the name of the resident, the date and time of the rounds,
and the staff member who made the rounds. The documentation ] shall
be retained for two years.
22VAC40-73-940. Fire safety: compliance with state
regulations and local fire ordinances.
A. An assisted living facility shall comply with the
Virginia Statewide Fire Prevention Code (13VAC5-51) as determined by at least
an annual inspection by the appropriate fire official. Reports of the
inspections shall be retained at the facility for at least two years.
B. An assisted living facility shall comply with any local
fire ordinance.
Part IX
Emergency Preparedness
22VAC40-73-950. Emergency preparedness and response plan.
A. The facility shall develop a written emergency
preparedness and response plan that shall address:
1. Documentation of initial and annual contact with the
local emergency coordinator to determine (i) local disaster risks, (ii)
communitywide plans to address different disasters and emergency situations,
and (iii) assistance, if any, that the local emergency management office will
provide to the facility in an emergency.
2. Analysis of the facility's potential hazards, including severe
weather, [ biohazard events, ] fire, loss of
utilities, flooding, work place violence or terrorism, severe injuries, or
other emergencies that would disrupt normal operation of the facility.
3. Written emergency management policies and procedures for
provision of:
a. Administrative direction and management of response
activities;
b. Coordination of logistics during the emergency;
c. Communications;
d. Life safety of residents, staff, volunteers, and
visitors;
e. Property protection;
f. Continued services to residents;
g. Community resource accessibility; and
h. Recovery and restoration.
4. Written emergency response procedures for assessing the
situation; protecting residents, staff, volunteers, visitors, equipment,
medications, and vital records; and restoring services. Emergency procedures
shall address:
a. Alerting emergency personnel and facility staff;
b. Warning and notification of residents, including
sounding of alarms when appropriate;
c. Providing emergency access to secure areas and opening locked
doors;
d. Conducting evacuations and sheltering in place, as
appropriate, and accounting for all residents;
e. Locating and shutting off utilities when necessary;
f. Maintaining and operating emergency equipment
effectively and safely;
g. Communicating with staff and community emergency
responders during the emergency; and
h. Conducting relocations to emergency shelters or
alternative sites when necessary and accounting for all residents.
5. Supporting documents that would be needed in an
emergency, including emergency call lists, building and site maps necessary to
shut off utilities, memoranda of understanding with relocation sites, and list
of major resources such as suppliers of emergency equipment.
B. Staff and volunteers shall be knowledgeable in and
prepared to implement the emergency preparedness plan in the event of an
emergency.
C. The facility shall develop and implement an orientation
and [ quarterly semi-annual ] review on
the emergency preparedness and response plan for all staff, residents, and
volunteers, with emphasis placed on an individual's respective
responsibilities. [ The review shall be documented by signing
and dating. ] The orientation and review shall cover
responsibilities for:
1. Alerting emergency personnel and sounding alarms;
2. Implementing evacuation, shelter in place, and
relocation procedures;
3. Using, maintaining, and operating emergency equipment;
4. Accessing emergency medical information, equipment, and
medications for residents;
5. Locating and shutting off utilities; and
6. Utilizing community support services.
D. The facility shall review the emergency preparedness
plan annually or more often as needed [ , document the review by
signing and dating the plan, ] and make necessary [ plan ]
revisions. Such revisions shall be communicated to staff, residents, and
volunteers and incorporated into the orientation and [ quarterly
semi-annual ] review for staff, residents, and volunteers.
E. In the event of a disaster, fire, emergency, or any
other condition that may jeopardize the health, safety, and welfare of
residents, the facility shall take appropriate action to protect the health,
safety, and welfare of the residents and take appropriate actions to remedy the
conditions as soon as possible.
F. After the disaster or emergency is stabilized, the
facility shall:
1. Notify family members and legal representatives; and
2. Report the disaster or emergency to the regional
licensing office by the next day as specified in 22VAC40-73-70.
22VAC40-73-960. Fire and emergency evacuation plan.
A. Assisted living facilities shall have a written plan
for fire and emergency evacuation that is to be followed in the event of a fire
or other emergency. The plan shall be approved by the appropriate fire
official.
B. A fire and emergency evacuation drawing shall be posted
in a conspicuous place on each floor of each building used by residents. The
drawing shall show primary and secondary escape routes, areas of refuge,
assembly areas, telephones, fire alarm boxes, and fire extinguishers, as
appropriate.
C. The telephone numbers for the fire department, rescue
squad or ambulance, police, and Poison Control Center shall be posted by each
telephone shown on the fire and emergency evacuation plan.
D. In assisted living facilities where all outgoing
telephone calls must be placed through a central switchboard located on the
premises, the information required in subsection C of this section may be
posted by the switchboard rather than by each telephone, provided this
switchboard is [ manned staffed ] 24
hours each day.
E. Staff and volunteers shall be fully informed of the
approved fire and emergency evacuation plan, including their duties, and the
location and operation of fire extinguishers, fire alarm boxes, and any other
available emergency equipment.
22VAC40-73-970. Fire and emergency evacuation drills.
A. Fire and emergency evacuation drill frequency and
participation shall be in accordance with the current edition of the Virginia
Statewide Fire Prevention Code (13VAC5-51). The drills required for each shift
in a quarter shall not be conducted in the same month.
B. Additional fire and emergency evacuation drills
may be held at the discretion of the administrator or licensing inspector and
must be held when there is any reason to question whether the requirements of
the approved fire and emergency evacuation plan can be met.
C. Each required fire and emergency evacuation drill shall
be unannounced.
D. Immediately following each required fire and emergency
evacuation drill, there shall be an evaluation of the drill by the staff in
order to determine the effectiveness of the drill. The licensee or
administrator shall immediately correct any problems identified in the
evaluation and document the corrective action taken,
E. A record of the required fire and emergency evacuation
drills shall be kept in the facility for two years. Such record shall include:
1. Identity of the person conducting the drill;
2. The date and time of the drill;
3. The method used for notification of the drill;
4. The number of staff participating;
5. The number of residents participating;
6. Any special conditions simulated;
7. The time it took to complete the drill;
8. Weather conditions; and
9. Problems encountered, if any.
22VAC40-73-980. Emergency equipment and supplies.
A. A complete first aid kit shall be on hand [ in
each building ] at the facility, located in a designated place that
is easily accessible to staff but not to residents. Items with expiration dates
must not have dates that have already passed. The kit shall include [ ,
but not be limited to, ] the following items:
1. Adhesive tape;
[ 2. Antibiotic cream or ointment packets;
3. 2. ] Antiseptic wipes or
ointment;
[ 4. 3. ] Band-aids, in
assorted sizes;
[ 5. 4. ] Blankets, either
disposable or other;
[ 6. 5. ] Disposable
single-use breathing barriers or shields for use with rescue breathing or CPR
(e.g., CPR mask or other type);
[ 7. 6. ] Cold pack;
[ 8. 7. ] Disposable
single-use waterproof gloves;
[ 9. 8. ] Gauze pads and
roller gauze, in assorted sizes;
[ 10. 9. ] Hand cleaner
(e.g., waterless hand sanitizer or antiseptic towelettes);
[ 11. 10. ] Plastic bags;
[ 12. 11. ] Scissors;
[ 13. 12. ] Small flashlight
and extra batteries;
[ 14. 13. ] Thermometer;
[ 15. 14. ] Triangular
bandages;
[ 16. 15. ] Tweezers;
[ and ]
[ 17. 81-milligram aspirin in single packets or
small bottle; and
18. 16. ] The first aid
instructional manual.
B. In facilities that have a motor vehicle that is used to
transport residents and in a motor vehicle used for a field trip, there shall
be a first aid kit on the vehicle, located in a designated place that is
accessible to staff but not residents that includes items as specified in
subsection A of this section.
C. First aid kits shall be checked at least monthly to
[ assure ensure ] that all items are present
and items with expiration dates are not past their expiration date.
D. Each facility with six or more residents shall be
equipped with a permanent connection able to connect to a temporary emergency
electrical power source for the provision of electricity during an interruption
of the normal electric power supply. The connection shall be of the size that
is capable of providing power to required circuits when connected and that is
sufficient to implement the emergency preparedness and response plan. The
installation of a connection for temporary electric power shall be in
compliance with the Virginia Uniform Statewide Building Code (13VAC5-63) and
approved by the local building official. Permanent installations of emergency
power systems shall be acceptable when installed in accordance with the Uniform
Statewide Building Code and approved by the local building official.
E. The following emergency lighting shall be available:
1. Flashlights or battery lanterns for general use.
2. One flashlight or battery lantern for each employee
directly responsible for resident care [ who is on duty between 5
p.m. and 7 a.m ].
3. One flashlight or battery lantern for each bedroom used
by residents and for the living and dining area unless there is a provision for
emergency lighting in the adjoining hallways.
4. The use of open flame lighting is prohibited.
F. There shall be two forms of communication for use in an
emergency.
G. The facility shall ensure the availability of a 96-hour
supply of emergency food and drinking water. At least 48 hours of the supply
must be on site at any given time [ , of which the facility's
rotating stock may be used ].
22VAC40-73-990. Plan for resident emergencies and practice
exercise.
A. Assisted living facilities shall have a written plan
for resident emergencies that includes:
1. Procedures for handling medical emergencies, including
identifying the staff person responsible for (i) calling the rescue squad,
ambulance service, resident's physician, or Poison Control Center; and (ii)
providing first aid and CPR, when indicated.
2. Procedures for handling mental health emergencies such
as, but not limited to, catastrophic reaction or the need for a temporary
detention order.
3. Procedures for making pertinent medical information and
history available to the rescue squad and hospital, including [ but
not limited to, information on medications a copy of the current
medication administration record ] and advance directives.
4. Procedures to be followed in the event that a resident
is missing, including [ but not limited to ] (i)
involvement of facility staff, appropriate law-enforcement agency, and others
as needed; (ii) areas to be searched; (iii) expectations upon locating the
resident; and (iv) documentation of the event.
5. Procedures for notifying the resident's family, legal
representative, designated contact person, and any responsible social agency.
6. Procedures for notifying the regional licensing office
as specified in 22VAC40-73-70.
B. [ The procedures in the plan for resident
emergencies required in subsection A of this section shall be reviewed by the
facility at least every six months with all staff. Documentation of the review
shall be signed and dated by each staff person.
B. C. ] At least once every six
months, all staff [ currently on duty ] on each shift
shall participate in an exercise in which the procedures for resident
emergencies are practiced. Documentation of each exercise shall be maintained
in the facility for at least two years.
[ C. D. ] The plan for
resident emergencies shall be readily available to all staff [ ,
residents' families, and legal representatives ].
Part X
Additional Requirements for Facilities that Care for Adults with Serious
Cognitive Impairments
Article 1
Subjectivity
22VAC40-73-1000. Subjectivity.
All facilities that care for residents with serious
cognitive impairments due to a primary psychiatric diagnosis of dementia who
cannot recognize danger or protect their own safety and welfare shall be
subject to either Article 2 (22VAC40-73-1010 et seq.) or Article 3
(22VAC40-73-1080 et seq.) of this part. All facilities that care for residents
with serious cognitive impairments due to any other diagnosis who cannot
recognize danger or protect their own safety and welfare shall be subject to
Article 2 of this part.
Article 2
Mixed Population
22VAC40-73-1010. Applicability.
The requirements in this article apply when there is a
mixed population consisting of any combination of (i) residents who have
serious cognitive impairments due to a primary psychiatric diagnosis of
dementia who are unable to recognize danger or protect their own safety and
welfare and who are not in a special care unit as provided for in Article 3
(22VAC40-73-1080 et seq.) of this part; (ii) residents who have serious
cognitive impairments due to any other diagnosis who cannot recognize danger or
protect their own safety and welfare; and (iii) other residents. The
requirements in this article also apply when all the residents have serious
cognitive impairments due to any diagnosis other than a primary psychiatric
diagnosis of dementia and cannot recognize danger or protect their own safety
and welfare. Except for special care units covered by Article 3 of this part,
these requirements apply to the entire facility unless specified otherwise.
22VAC40-73-1020. Staffing.
A. When residents are present, there shall be at least two
direct care staff members awake and on duty at all times in each building who
shall be responsible for the care and supervision of the residents.
B. During trips away from the facility, there shall be
sufficient direct care staff to provide sight and sound supervision to all
residents who cannot recognize danger or protect their own safety and welfare.
[ Exception: The requirements of subsections A and
B of this section do not apply when facilities are licensed for 10 or fewer
residents if no more than three of the residents have serious cognitive
impairments. Each prospective resident or his legal representative shall be
notified of this exception prior to admission. ]
22VAC40-73-1030. Staff training.
A. [ Commencing immediately upon employment
and within Within ] three months [ of
the starting date of employment ], the administrator shall attend
12 hours of training in working with individuals who have a cognitive
impairment, and the training shall meet the requirements of subsection C of
this section.
1. Training in cognitive impairment that meets the
requirements of subsection C of this section and was completed in the year prior
to employment is transferable and counts toward the required 12 hours if there
is documentation of the training.
2. Whether the training counts toward continuing education
for administrator licensure and for what period of time depends upon the
licensure requirements of the Virginia Board of Long-Term Care Administrators.
B. [ Commencing immediately upon employment
and within Within ] four months [ of the
starting date of employment ], direct care staff shall attend six
hours of training in working with individuals who have a cognitive impairment,
and the training shall meet the requirements of subsection C of this section.
1. The six-hour training received within the first four
months of employment is counted toward the annual training requirement for the
first year.
2. Training in cognitive impairment that meets the
requirements of subsection C of this section and was completed in the year
prior to employment is transferable if there is documentation of the training.
3. The documented previous cognitive impairment training
referenced in subdivision 2 of this subsection is counted toward the required
six hours but not toward the annual training requirement.
C. Curriculum for the training in cognitive impairment for
direct care staff and administrators shall be developed by a qualified health
professional or by a licensed social worker, shall be relevant to the
population in care, shall maximize the level of a resident's functional
ability, and shall include [ , but need not be limited to ]:
1. Information about cognitive impairment, including areas
such as cause, progression, behaviors, and management of the condition;
2. Communicating with the resident;
3. Resident care techniques for [ persons
residents ] with physical, cognitive, behavioral, and social
disabilities;
4. Managing dysfunctional behavior;
5. Creating a therapeutic environment;
6. Planning and facilitating activities appropriate for
each resident; and
7. Identifying and alleviating safety risks to residents
with cognitive impairment.
D. Within the first month of employment, staff, other than
the administrator and direct care staff, shall complete two hours of training
on the nature and needs of residents with cognitive impairments relevant to the
population in care.
22VAC40-73-1040. Doors and windows.
A. Doors leading to the outside shall have a system of
security monitoring of residents with serious cognitive impairments, such as
door alarms, cameras, constant staff oversight, security bracelets that are
part of an alarm system, or delayed egress mechanisms. Residents with serious
cognitive impairments may be limited but not prohibited from exiting the
facility or any part thereof. Before limiting any resident from freely leaving
the facility, the resident's record shall reflect the behavioral observations
or other bases for determining that the resident has a serious cognitive
impairment and cannot recognize danger or protect his own safety and welfare.
B. There shall be protective devices on the bedroom and
the bathroom windows of residents with serious cognitive impairments and on
windows in common areas accessible to these residents to prevent the windows
from being opened wide enough for a resident to crawl through. The protective
devices on the windows shall be in conformance with the Virginia Uniform
Statewide Building Code (13VAC5-63).
22VAC40-73-1050. Outdoor access.
A. The facility shall have a secured outdoor area for the
residents' use or provide direct care staff supervision while residents with
serious cognitive impairments are outside.
B. Weather permitting, residents with serious cognitive
impairments shall be reminded of the opportunity to be outdoors on a daily
basis.
22VAC40-73-1060. Indoor walking area.
The facility shall provide to residents free access to an
indoor walking corridor or other indoor area that may be used for walking.
22VAC40-73-1070. Environmental precautions.
A. Special environmental precautions shall be taken by the
facility to eliminate hazards to the safety and well being of residents with
serious cognitive impairments. Examples of environmental precautions include
signs, carpet patterns and arrows that point the way, and reduction of
background noise.
B. When there are indications that ordinary materials or
objects may be harmful to a resident with a serious cognitive impairment, these
materials or objects shall be inaccessible to the resident except under staff
supervision.
Article 3
Safe, Secure Environment
22VAC40-73-1080. Applicability.
A. In order to be admitted or retained in a safe, secure
environment as defined in 22VAC40-73-10, except as provided in subsection B of
this section, a resident must have a serious cognitive impairment due to a
primary psychiatric diagnosis of dementia and be unable to recognize danger or
protect his own safety and welfare. The requirements in this article apply when
such residents reside in a safe, secure environment. These requirements apply
only to the safe, secure environment.
B. A resident's spouse, parent, adult sibling, or adult
child who otherwise would not meet the criteria to reside in a safe, secure
environment may reside in the special care unit if the spouse, parent, sibling,
or child so requests in writing, the facility agrees in writing, and the
resident, if capable of making the decision, agrees in writing. The written
request and agreements must be maintained in the resident's file. The spouse,
parent, sibling, or child is considered a resident of the facility and as such
this chapter applies. The requirements of this article do not apply for the
spouse, parent, adult sibling, or adult child [ since
because ] the individual does not have a serious cognitive
impairment due to a primary psychiatric diagnosis of dementia with an inability
to recognize danger or protect his own safety and welfare.
22VAC40-73-1090. Assessment.
A. Prior to his admission to a safe, secure environment,
the resident shall have been assessed by an independent clinical psychologist
licensed to practice in the Commonwealth or by an independent physician as
having a serious cognitive impairment due to a primary psychiatric diagnosis of
dementia with an inability to recognize danger or protect his own safety and
welfare. The physician shall be board certified or board eligible in a
specialty or subspecialty relevant to the diagnosis and treatment of serious
cognitive impairments (e.g., family practice, geriatrics, internal medicine,
neurology, neurosurgery, or psychiatry). The assessment shall be in writing and
shall include [ , but not be limited to ] the
following areas:
1. Cognitive functions (e.g., orientation, comprehension,
problem-solving, attention and concentration, memory, intelligence, abstract
reasoning, judgment, and insight);
2. Thought and perception (e.g., process and content);
3. Mood/affect;
4. Behavior/psychomotor;
5. Speech/language; and
6. Appearance.
B. The assessment required in subsection A of this section
shall be maintained in the resident's record.
22VAC40-73-1100. Approval.
A. Prior to placing a resident with a serious cognitive
impairment due to a primary psychiatric diagnosis of dementia in a safe, secure
environment, the facility shall obtain the written approval of one of the
following persons, in the following order of priority:
1. The resident, if capable of making an informed decision;
2. A guardian or other legal representative for the
resident if one has been appointed;
3. A relative who is willing and able to take responsibility
to act as the resident's representative, in the following specified order: (i)
spouse, (ii) adult child, (iii) parent, (iv) adult sibling, (v) adult
grandchild, (vi) adult niece or nephew, (vii) aunt or uncle; or
4. If the resident is not capable of making an informed
decision and a guardian, legal representative, or relative is unavailable, an
independent physician who is skilled and knowledgeable in the diagnosis and
treatment of dementia.
B. The obtained written approval shall be retained in the
resident's file.
C. The facility shall document that the order of priority
specified in subsection A of this section was followed, and the documentation
shall be retained in the resident's file.
D. As soon as one of the persons in the order as
prioritized in subsection A of this section disapproves of placement or
retention in the safe, secure environment, then the assisted living facility
shall not place or retain the resident or prospective resident in the special
care unit. [ If the resident is not to be retained in the unit,
the discharge requirements specified in 22VAC40-73-430 apply. ]
22VAC40-73-1110. Appropriateness of placement and continued
residence.
A. Prior to admitting a resident with a serious cognitive
impairment due to a primary psychiatric diagnosis of dementia to a safe, secure
environment, the licensee, administrator, or designee shall determine whether
placement in the special care unit is appropriate. The determination and
justification for the decision shall be in writing and shall be retained in the
resident's file.
B. Six months after placement of the resident in the safe,
secure environment and annually thereafter, the licensee, administrator, or
designee shall perform a review of the appropriateness of each resident's
continued residence in the special care unit.
C. Whenever warranted by a change in a resident's
condition, the licensee, administrator, or designee shall also perform a review
of the appropriateness of continued residence in the unit.
D. The reviews specified in subsections B and C of this
section shall be performed in consultation with the following persons, as
appropriate:
1. The resident;
2. A responsible family member;
3. A guardian or other legal representative;
4. A designated contact person;
5. Direct care staff who provide care and supervision to
the resident;
6. The resident's mental health provider;
7. The licensed health care professional required in
22VAC40-73-490;
8. The resident's physician; and
9. Any other professional involved with the resident.
E. The licensee, administrator, or designee shall make a
determination as to whether continued residence in the special care unit is
appropriate at the time of each review required by subsections B and C of this
section. The determination and justification for the decision shall be in
writing and shall be retained in the resident's file.
22VAC40-73-1120. Activities.
A. In addition to the requirements of this section, all
the requirements of 22VAC40-73-520 apply to safe, secure environments, except
for 22VAC40-73-520 C and E.
B. There shall be at least 21 hours of scheduled
activities available to the residents each week for no less than two hours each
day.
C. If appropriate to meet the needs of the resident with a
short attention span, there shall be multiple short activities.
D. Staff shall regularly encourage residents to
participate in activities and provide guidance and assistance, as needed.
E. As appropriate, residents shall be encouraged to participate
in supervised activities or programs outside the special care unit.
F. There shall be a designated staff person responsible
for managing or coordinating the structured activities program. This staff
person shall be on site in the special care unit at least 20 hours a week,
shall maintain personal interaction with the residents and familiarity with
their needs and interests, and shall meet at least one of the following
qualifications:
1. Be a qualified therapeutic recreation specialist or an
activities professional;
2. Be eligible for certification as a therapeutic
recreation specialist or an activities professional by a recognized accrediting
body;
3. Have one year full-time work experience within the last
five years in an activities program in an adult care setting;
4. Be a qualified occupational therapist or an occupational
therapy assistant; or
5. Prior to or within six months of employment, have
successfully completed 40 hours of department-approved training in adult group
activities and in recognizing and assessing the activity needs of residents.
The required 20 hours on site does not have to be devoted
solely to managing or coordinating activities; neither is it required that the
person responsible for managing or coordinating the activities program conduct
the activities.
22VAC40-73-1130. Staffing.
A. [ When residents are present, there
shall be at least two direct care staff members awake and on duty at all times
on each floor in each special care unit who shall be responsible for the care
and supervision of the residents, except as provided in subsection B of this
section. This requirement is independent of 22VAC40-73-280 D and
22VAC40-73-1020 A. When 20 or fewer residents are present, at least
two direct care staff members shall be awake and on duty at all times in each
special care unit who shall be responsible for the care and supervision of the
residents, except as noted in subsection B of this section. For every
additional 10 residents, or portion thereof, at least one more direct care staff
member shall be awake and on duty in the unit. ]
B. Only one direct care staff member has to be awake and
on duty in the unit if sufficient to meet the needs of the residents, if (i)
there are no more than five residents present in the unit and (ii) there are at
least two other direct care staff members in the building, one of whom is
readily available to assist with emergencies in the special care unit, provided
that supervision necessary to ensure the health, safety, and welfare of
residents throughout the building is not compromised.
[ The requirements in subsections A and B of this
section are independent of 22VAC40-73-280 D and 22VAC40-73-1020 A. ]
C. During trips away from the facility, there shall be
sufficient direct care staff to provide sight and sound supervision to
residents.
22VAC40-73-1140. Staff training.
A. [ Commencing immediately upon employment
and within Within ] three months [ of the
starting date of employment ], the administrator shall attend at
least 12 hours of training in cognitive impairment that meets the requirements
of subsection C of this section.
1. Training in cognitive impairment that meets the
requirements of subsection C of this section and was completed in the year
prior to employment is transferable and counts toward the required 12 hours if
there is documentation of the training.
2. Whether the training counts toward continuing education
for administrator licensure and for what period of time depends upon the
licensure requirements of the Virginia Board of Long-Term Care Administrators.
B. [ Commencing immediately upon employment
in the safe, secure environment and within Within ] four
months [ of the starting date of employment in the safe, secure
environment ], direct care staff shall attend at least 10 hours of
training in cognitive impairment that meets the requirements of subsection C of
this section.
1. The training is counted toward the annual training
requirement for the first year.
2. Training in cognitive impairment that meets the
requirements of subsection C of this section and was completed in the year
prior to employment is transferable if there is documentation of the training.
3. The documented previous cognitive impairment training
referenced in subdivision 2 of this subsection is counted toward the required
10 hours but not toward the annual training requirement.
C. The training in cognitive impairment required by
subsections A and B of this section shall be relevant to the population in
care, shall maximize the level of a resident's functional ability, and shall
include [ , but not be limited to, ] the
following topics:
1. Information about cognitive impairment, including areas
such as cause, progression, behaviors, and management of the condition;
2. Communicating with the resident;
3. Resident care techniques for persons with physical,
cognitive, behavioral, and social disabilities;
4. Managing dysfunctional behavior;
5.Creating a therapeutic environment;
6. Planning and facilitating activities appropriate for
each resident; and
7. Identifying and alleviating safety risks to residents
with cognitive impairment.
D. The training specified in subsection C of this section
shall be developed and provided by:
1. A licensed health care professional practicing within
the scope of his profession who has at least 12 hours of training in the care
of individuals with cognitive impairments due to dementia; or
2. A person who has been approved by the department to
develop or provide the training.
E. Within the first month of employment, staff, other than
the administrator and direct care staff, who will have contact with residents
in the special care unit shall complete two hours of training on the nature and
needs of residents with cognitive impairments due to dementia.
22VAC40-73-1150. Doors and windows.
A. Doors that lead to unprotected areas shall be monitored
or secured through devices that conform to applicable building and fire codes,
including [ but not limited to, ] door alarms,
cameras, constant staff oversight, security bracelets that are part of an alarm
system, pressure pads at doorways, delayed egress mechanisms, locking devices,
or perimeter fence gates. Residents who reside in safe, secure environments may
be prohibited from exiting the facility or the special care unit [ , ]
if applicable building and fire codes are met.
B. There shall be protective devices on the bedroom and
bathroom windows of residents and on windows in common areas accessible to
residents to prevent the windows from being opened wide enough for a resident
to crawl through. The protective devices on the windows shall be in conformance
with the Virginia Uniform Statewide Building Code (13VAC5-63).
22VAC40-73-1160. Outdoor access.
A. The facility shall have a secured outdoor area for the
residents' use or provide direct care staff supervision while residents are
outside.
B. Residents shall be given the opportunity to be outdoors
on a daily basis, weather permitting.
22VAC40-73-1170. Indoor walking area.
The facility shall provide to residents free access to an
indoor walking corridor or other indoor area that may be used for walking.
22VAC40-73-1180. Environmental precautions.
A. Special environmental precautions shall be taken by the
facility to eliminate hazards to the safety and well-being of residents.
Examples of environmental precautions include signs, carpet patterns and arrows
that point the way, high visual contrast between floors and walls, and
reduction of background noise.
B. When there are indications that ordinary materials or
objects may be harmful to a resident, these materials or objects shall be
inaccessible to the resident except under staff supervision.
C. Special environmental enhancements, tailored to the
population in care, shall be provided by the facility to enable residents to
maximize their independence and to promote their dignity in comfortable
surroundings. Examples of environmental enhancements include memory boxes,
activity centers, rocking chairs, and visual contrast between plates and eating
utensils and the table.
NOTICE: The following
forms used in administering the regulation were filed by the agency. The forms
are not being published; however, online users of this issue of the Virginia
Register of Regulations may click on the name of a form with a hyperlink to
access it. The forms are also available from the agency contact or may be
viewed at the Office of the Registrar of Regulations, General Assembly
Building, 2nd Floor, Richmond, Virginia 23219.
FORMS (22VAC40-73)
[ Report of Tuberculosis Screening
Virginia Department of Health Report of Tuberculosis
Screening Form (eff. 3/2011)
Virginia Department of Health TB Control Program TB
Risk Assessment Form, TB 512 (eff. 5/2011)
Report
of Tuberculosis Screening (eff. 10/2011)
Virginia
Department of Health Report of Tuberculosis Screening Form (undated)
Virginia
Department of Health TB Control Program Risk Assessment Form, TB 512 (eff.
9/2016) ]
VA.R. Doc. No. R12-3227; Filed August 23, 2017, 11:11 a.m.
TITLE 22. SOCIAL SERVICES
STATE BOARD OF SOCIAL SERVICES
Final Regulation
Titles of Regulations: 22VAC40-72. Standards for
Licensed Assisted Living Facilities (repealing 22VAC40-72-10 through
22VAC40-72-1160).
22VAC40-73. Standards for Licensed Assisted Living
Facilities (adding 22VAC40-73-10 through
22VAC40-73-1180).
Statutory Authority: §§ 63.2-217, 63.2-1732,
63.2-1802, 63.2-1805, and 63.2-1808 of the Code of Virginia.
Effective Date: February 1, 2018.
Agency Contact: Judith McGreal, Licensing Program
Consultant, Division of Licensing Programs, Department of Social Services, 801
East Main Street, Richmond, VA 23219, telephone (804) 663-5535, FAX (804)
819-7093, TTY (800) 828-1120, or email judith.mcgreal@dss.virginia.gov.
Summary:
This regulatory action repeals the existing regulation,
22VAC40-72, and establishes a comprehensive new regulation, 22VAC40-73, for
licensed assisted living facilities. The comprehensive new regulation is
intended to improve clarity, incorporate improvements in the language and
reflect current federal and state law, relieve intrusive and burdensome
requirements that are not necessary, provide greater protection for residents
in care, and reflect current standards of care.
Major components of the new regulation include requirements
regarding (i) general provisions; (ii) administration and administrative
services and personnel; (iii) staffing and supervision; (iv) admission,
retention, and discharge of residents; (v) resident care and related services;
(vi) resident accommodations and related provisions; (vii) buildings and
grounds; (viii) emergency preparedness; and (ix) additional requirements for
facilities that care for adults with serious cognitive impairments who cannot
recognize danger or protect their own safety and welfare.
New substantive provisions include:
22VAC40-73-90 – Adds licensee to persons who may not act as
attorney-in-fact or trustee unless a resident has no other preferred designee
and so requests.
22VAC40-73-100 – Provides for the development and
implementation of an enhanced infection control program that addresses the
surveillance, prevention, and control of disease and infection.
22VAC40-73-160 – Adds to administrator training
requirements that administrators who supervise medication aides, but are not
registered medication aides themselves, must have annual training in medication
administration.
22VAC40-73-170 - Adds that an unlicensed shared
administrator for smaller residential living care facilities must be at each
facility for six hours during the day shift of the 10 required hours a week.
22VAC40-73-210 – Increases the annual training hours for
direct care staff.
22VAC40-73-220 – Adds requirements regarding private duty
personnel.
22VAC40-73-260 – Adds a requirement that at least one
person with first aid certification and at least one person with
cardiopulmonary resuscitation certification must be in each building, rather
than on the premises.
22VAC40-73-280 – Changes an exception (allowing staff to
sleep at night under certain circumstances) to one of the staffing requirements
to limit its application to facilities licensed for residential living care
only.
22VAC40-73-310 – Adds to admission and retention
requirements, additional specifications regarding an agreement between a
facility and hospice program when hospice care is provided to a resident.
22VAC40-73-325 – Adds a requirement for a fall risk rating
for residents who meet the criteria for assisted living care.
22VAC40-73-380 – Adds that mental health, behavioral, and
substance abuse issues are included in personal and social information for all
residents, not just those meeting criteria for assisted living care.
22VAC40-73-450 – Adds a requirement that staff who complete
individualized service plans (ISPs) must complete uniform assessment instrument
training as a prerequisite to completing ISP training.
22VAC40-73-490 – Reduces the number of times annually
required for health care oversight when a facility employs a full-time licensed
health care professional; adds a requirement that all residents be included
annually in the health care oversight; adds to the oversight the evaluation of
the ability of residents who self-administer medications to continue to safely
do so; and adds additional requirements for oversight of restrained residents.
22VAC40-73-540 – Specifies that visiting hours may not be
restricted unless a resident so chooses.
22VAC40-73-590 – Adds a requirement that snacks be
available at all times, rather than bedtime and between meals.
22VAC40-73-620 – Reduces the number of times annually for
oversight of special diets.
22VAC40-73-680 – Adds an allowance for a master list of
staff who administer medications to be used in lieu of documentation on
individual medication administration records.
22VAC40-73-710 – Adds a prohibition of additional types of
restraints and adds review and revision of individualized service plan
following application of emergency restraints.
22VAC40-73-750 – Adds a provision that a resident may
determine not to have certain furnishings that are otherwise required in his
bedroom.
22VAC40-73-880 – Adds to the standard that in a bedroom
with a thermostat where only one resident resides, the resident may choose a
temperature other than what is otherwise required.
22VAC40-73-900 – Adds that when there is a new facility
licensee, there can be no more than two residents residing in a bedroom.
22VAC40-73-930 – Adds to the provision for signaling/call
systems that for a resident with an inability to use the signaling device, this
must be included on his individualized service plan with frequency of rounds
indicated, with a minimum of rounds every two hours when the resident has gone
to bed at night, and with an exception permitted under specific circumstances.
22VAC40-73-950 – Specifies that review of emergency plan
with staff, residents, and volunteers is semi-annual, rather than quarterly.
22VAC40-73-980 – Adds a requirement for first aid kit in
each building, rather than at the facility; eliminates activated charcoal; and
adds requirement that 48 hours of emergency food and water supply be on-site
and can be rotating stock.
22VAC40-73-990 – Specifies that participation in resident
emergency practice exercise every six months is required of staff currently on
duty, rather than all staff, and adds review of resident emergency procedures
every six months with all staff.
22VAC40-73-1010 – Removes the exception (for facilities
licensed for 10 or fewer with no more than three with serious cognitive
impairment) that applied to all requirements for mixed population.
22VAC40-73-1030 – Increases the training required in
cognitive impairment for direct care staff, and except for administrator, other
staff.
22VAC40-73-1120 – Increases the number of hours per week of
activities for residents in a safe, secure environment.
22VAC40-73-1130 – Adds a requirement that when there are 20
or fewer residents present in a special care unit, there must be at least two
direct care staff members awake and on duty in the unit, and for every
additional 10 residents, or portion thereof, there must be at least one more
direct care staff member awake and on duty in the unit, rather than two direct
care staff in each unit.
22VAC40-73-1140 - Increases the number of hours of training
in cognitive impairment for the administrator and changes the time period in
which the training must be received for both the administrator and for direct
care staff who work in a special care unit, also increases training in
cognitive impairment for others who have contact with residents in a special
care unit.
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.
CHAPTER 73
STANDARDS FOR LICENSED ASSISTED LIVING FACILITIES
Part I
General Provisions
22VAC40-73-10. Definitions.
The following words and terms when used in this chapter
shall have the following meanings unless the context clearly indicates
otherwise:
"Activities of daily living" or "ADLs"
means bathing, dressing, toileting, transferring, bowel control, bladder
control, and [ eating or feeding eating/feeding ].
A person's degree of independence in performing these activities is a part of
determining appropriate level of care and services.
"Administer medication" means to open a
container of medicine or to remove the ordered dosage and to give it to the
resident for whom it is ordered.
"Administrator" means the licensee or a person
designated by the licensee who is responsible for the general administration
and management of an assisted living facility and who oversees the day-to-day
operation of the facility, including compliance with all regulations for
licensed assisted living facilities.
"Admission" means the date a person actually
becomes a resident of the assisted living facility and is physically present at
the facility.
"Advance directive" means, as defined in
§ 54.1-2982 of the Code of Virginia, (i) a witnessed written document,
voluntarily executed by the declarant in accordance with the requirements of
§ 54.1-2983 of the Code of Virginia or (ii) a witnessed oral statement,
made by the declarant subsequent to the time he is diagnosed as suffering from
a terminal condition and in accordance with the provisions of § 54.1-2983
of the Code of Virginia.
"Ambulatory" means the condition of a resident
who is physically and mentally capable of self-preservation by evacuating in
response to an emergency to a refuge area as defined by 13VAC5-63, the Virginia
Uniform Statewide Building Code, without the assistance of another person, or
from the structure itself without the assistance of another person if there is
no such refuge area within the structure, even if such resident may require the
assistance of a wheelchair, walker, cane, prosthetic device, or a single verbal
command to evacuate.
"Assisted living care" means a level of service
provided by an assisted living facility for adults who may have physical or
mental impairments and require at least moderate assistance with the activities
of daily living. [ Included in this level of service are
individuals who are dependent in behavior pattern (i.e., abusive, aggressive,
disruptive) as documented on the uniform assessment instrument. ]
"Assisted living facility" means, as defined in
§ 63.2-100 of the Code of Virginia, any congregate residential setting that
provides or coordinates personal and health care services, 24-hour supervision,
and assistance (scheduled and unscheduled) for the maintenance or care of four
or more adults who are aged, infirm, or disabled and who are cared for in a
primarily residential setting, except (i) a facility or portion of a facility
licensed by the State Board of Health or the Department of Behavioral Health
and Developmental Services, but including any portion of such facility not so
licensed; (ii) the home or residence of an individual who cares for or
maintains only persons related to him by blood or marriage; (iii) a facility or
portion of a facility serving infirm or disabled persons between the ages of 18
and 21 years, or 22 years if enrolled in an educational program for the
handicapped pursuant to § 22.1-214 of the Code of Virginia, when such
facility is licensed by the department as a children's residential facility
under Chapter 17 (§ 63.2-1700 et seq.) of Title 63.2 of the Code of Virginia,
but including any portion of the facility not so licensed; and (iv) any housing
project for persons 62 years of age or older or the disabled that provides no
more than basic coordination of care services and is funded by the U.S.
Department of Housing and Urban Development, by the U.S. Department of
Agriculture, or by the Virginia Housing Development Authority. Included in this
definition are any two or more places, establishments, or institutions owned or
operated by a single entity and providing maintenance or care to a combined
total of four or more aged, infirm, or disabled adults. Maintenance or care
means the protection, general supervision, and oversight of the physical and
mental well-being of an aged, infirm, or disabled individual.
"Attorney-in-fact" means strictly, one who is
designated to transact business for another: a legal agent.
"Behavioral health authority" means the
organization, appointed by and accountable to the governing body of the city or
county that established it, that provides mental health, developmental, and
substance abuse services through its own staff or through contracts with other
organizations and providers.
"Building" means a structure with exterior walls
under one roof.
"Cardiopulmonary resuscitation" or
"CPR" means an emergency procedure consisting of external cardiac
massage and artificial respiration; the first treatment for a person who has
collapsed, has no pulse, and has stopped breathing; and attempts to restore
circulation of the blood and prevent death or brain damage due to lack of
oxygen.
"Case management" means multiple functions
designed to link clients to appropriate services. Case management may include a
variety of common components such as initial screening of needs, comprehensive
assessment of needs, development and implementation of a plan of care, service
monitoring, and client follow-up.
"Case manager" means an employee of a public
human services agency who is qualified and designated to develop and coordinate
plans of care.
"Chapter" or "this chapter" means
these regulations, that is, Standards for Licensed Assisted Living Facilities,
22VAC40-73, unless noted otherwise.
"Chemical restraint" means a psychopharmacologic
drug that is used for discipline or convenience and not required to treat the
resident's medical symptoms or symptoms from mental illness or intellectual
disability and that prohibits [ an individual the
resident ] from reaching his highest level of functioning.
"Commissioner" means the commissioner of the
department, his designee, or authorized representative.
"Community services board" or "CSB"
means a public body established pursuant to § 37.2-501 of the Code of
Virginia that provides mental health, developmental, and substance abuse programs
and services within the political subdivision or political subdivisions
participating on the board.
"Companion services" means assistance provided
to residents in such areas as transportation, meal preparation, shopping, light
housekeeping, companionship, and household management.
"Conservator" means a person appointed by the
court who is responsible for managing the estate and financial affairs of an
incapacitated person and, where the context plainly indicates, includes a
"limited conservator" or a "temporary conservator." The
term includes (i) a local or regional program designated by the Department for
Aging and Rehabilitative Services as a public conservator pursuant to Article 6
(§ 51.5-149 et seq.) of Chapter 14 of Title 51.5 of the Code of Virginia
or (ii) any local or regional tax-exempt charitable organization established
pursuant to § 501(c)(3) of the Internal Revenue Code to provide
conservatorial services to incapacitated persons. Such tax-exempt charitable
organization shall not be a provider of direct services to the incapacitated
person. If a tax-exempt charitable organization has been designated by the
Department for Aging and Rehabilitative Services as a public conservator, it
may also serve as a conservator for other individuals.
"Continuous licensed nursing care" means
around-the-clock observation, assessment, monitoring, supervision, or provision
of medical treatments provided by a licensed nurse. [ Residents
Individuals ] requiring continuous licensed nursing care may
include:
1. Individuals who have a medical instability due to
complexities created by multiple, interrelated medical conditions; or
2. Individuals with a health care condition with a high
potential for medical instability.
"Days" means calendar days unless noted otherwise.
"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 an
authorized agent of the Commissioner of Social Services.
"Dietary supplement" means a product intended
for ingestion that supplements the diet, is labeled as a dietary supplement, is
not represented as a sole item of a meal or diet, and contains a dietary
ingredient, [ (i.e. (e.g. ], vitamins,
minerals, amino acid, herbs or other botanicals, dietary substances (such as
enzymes), and concentrates, metabolites, constituents, extracts, or
combinations of the preceding types of ingredients). Dietary supplements may be
found in many forms, such as tablets, capsules, liquids, or bars.
"Direct care staff" means supervisors,
assistants, aides, or other staff of a facility who assist residents in the
performance of personal care or daily living activities. [ Examples
are likely to include nursing staff, activity staff, geriatric or personal care
assistants, medication aides, and mental health workers but are not likely to
include waiters, chauffeurs, cooks, and dedicated housekeeping, maintenance,
and laundry personnel. ]
"Discharge" means the movement of a resident out
of the assisted living facility.
[ "Electronic" means relating to
technology having electrical, digital, magnetic, wireless, optical,
electromagnetic, or similar capabilities. ]
"Electronic record" means a record created,
generated, sent, communicated, received, or stored by electronic means.
"Electronic signature" means an electronic
sound, symbol, or process attached to or logically associated with a record and
executed or adopted by a person with the intent to sign the record.
"Emergency placement" means the temporary status
of an individual in an assisted living facility when the person's health and
safety would be jeopardized by denying entry into the facility until the
requirements for admission have been met.
"Emergency restraint" means a [ situation
that may require the use of a restraint where restraint used when ]
the resident's behavior is unmanageable to the degree an immediate and
serious danger is presented to the health and safety of the resident or others.
"General supervision and oversight" means assuming
responsibility for the well-being of residents, either directly or through
contracted agents.
"Guardian" means a person appointed by the court
who is responsible for the personal affairs of an incapacitated person,
including responsibility for making decisions regarding the person's support,
care, health, safety, habilitation, education, therapeutic treatment, and, if
not inconsistent with an order of involuntary admission, residence. Where the
context plainly indicates, the term includes a "limited guardian" or
a "temporary guardian." The term includes (i) a local or regional
program designated by the Department for Aging and Rehabilitative Services as a
public guardian pursuant to Article 6 (§ 51.5-149 et seq.) of Chapter 14 of
Title 51.5 of the Code of Virginia or (ii) any local or regional tax-exempt
charitable organization established pursuant to § 501(c)(3) of the Internal
Revenue Code to provide guardian services to incapacitated persons. Such
tax-exempt charitable organization shall not be a provider of direct services
to the incapacitated person. If a tax-exempt charitable organization has been
designated by the Department for Aging and Rehabilitative Services as a public
guardian, it may also serve as a guardian for other individuals.
"Habilitative service" means activities to
advance a normal sequence of motor skills, movement, and self-care abilities or
to prevent avoidable additional deformity or dysfunction.
"Health care provider" means a person,
corporation, facility, or institution licensed by this Commonwealth to provide
health care or professional services, including [ but not
limited to ] a physician or hospital, dentist, pharmacist,
registered or licensed practical nurse, optometrist, podiatrist, chiropractor,
physical therapist, physical therapy assistant, clinical psychologist, or
health maintenance organization.
"Household member" means any person domiciled in
an assisted living facility other than residents or staff.
"Imminent physical threat or danger" means clear
and present risk of sustaining or inflicting serious or life threatening
injuries.
"Independent clinical psychologist" means a
clinical psychologist who is chosen by the resident of the assisted living
facility and who has no financial interest in the assisted living facility,
directly or indirectly, as an owner, officer, or employee or as an independent
contractor with the facility.
"Independent living status" means that the
resident is assessed as capable of performing all activities of daily living
and instrumental activities of daily living for himself without requiring the
assistance of another person and is assessed as capable of taking medications
without the assistance of another person. If the policy of a facility dictates
that medications are administered or distributed centrally without regard for
the residents' capacity, this policy shall not be considered in determining
independent status.
"Independent physician" means a physician who is
chosen by the resident of the assisted living facility and who has no financial
interest in the assisted living facility, directly or indirectly, as an owner,
officer, or employee or as an independent contractor with the facility.
"Individualized service plan" or "ISP"
means the written description of actions to be taken by the licensee, including
coordination with other services providers, to meet the assessed needs of the
resident.
"Instrumental activities of daily living" or
"IADLs" means meal preparation, housekeeping, laundry, and managing
money. A person's degree of independence in performing these activities is a
part of determining appropriate level of care and services.
"Intellectual disability" means disability,
originating before the age of 18 years, characterized concurrently by (i)
significantly subaverage intellectual functioning as demonstrated by
performance on a standardized measure of intellectual functioning, administered
in conformity with accepted professional practice, that is at least two
standard deviations below the mean and (ii) significant limitations in adaptive
behavior as expressed in conceptual, social, and practical adaptive skills.
"Intermittent intravenous therapy" means therapy
provided by a licensed health care professional at medically predictable
intervals for a limited period of time on a daily or periodic basis.
"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 ("durable power of
attorney" defines the type of legal instrument used to name the
attorney-in-fact and does not change the meaning of attorney-in-fact), trustee,
or other person expressly named by a court of competent jurisdiction or the
resident as his agent in a legal document that specifies the scope of the
representative's authority to act. A legal representative may only represent or
stand in the place of a resident for the function or functions for which he has
legal authority to act. A resident is presumed competent and is responsible for
making all health care, personal care, financial, and other personal decisions
that affect his life unless a representative with legal authority has been
appointed by a court of competent jurisdiction or has been appointed by the
resident in a properly executed and signed document. A resident may have
different legal representatives for different functions. For any given
standard, the term "legal representative" applies solely to the legal
representative with the authority to act in regard to the function or functions
relevant to that particular standard.
"Licensed health care professional" means any
health care professional currently licensed by the Commonwealth of Virginia to
practice within the scope of his profession, such as a nurse practitioner,
registered nurse, licensed practical nurse (nurses may be licensed or hold
multistate licensure pursuant to § 54.1-3000 of the Code of Virginia),
clinical social worker, dentist, occupational therapist, pharmacist, physical
therapist, physician, physician assistant, psychologist, and speech-language
pathologist. Responsibilities of physicians referenced in this chapter may be
implemented by nurse practitioners or physician assistants in accordance with
their protocols or practice agreements with their supervising physicians and in
accordance with the law.
"Licensee" means any person, association,
partnership, corporation, company, or public agency to whom the license is
issued.
"Manager" means a designated person who serves
as a manager pursuant to 22VAC40-73-170 and 22VAC40-73-180.
"Mandated reporter" means persons specified in §
63.2-1606 of the Code of Virginia who are required to report matters giving
reason to suspect abuse, neglect, or exploitation of an adult.
"Maximum physical assistance" means that an
individual has a rating of total dependence in four or more of the seven
activities of daily living as documented on the uniform assessment instrument.
An individual who can participate in any way with performance of the activity
is not considered to be totally dependent.
[ "Medical/orthopedic restraint" means the
use of a medical or orthopedic support device that has the effect of
restricting the resident's freedom of movement or access to his body for the
purpose of improving the resident's stability, physical functioning, or
mobility. ]
"Medication aide" means a staff person who has
current registration with the Virginia Board of Nursing to administer drugs
that would otherwise be self-administered to residents in an assisted living
facility in accordance with the Regulations Governing the Registration of
Medication Aides (18VAC90-60). This definition also includes a staff person who
is an applicant for registration as a medication aide in accordance with subdivision
2 of 22VAC40-73-670.
"Mental illness" means a disorder of thought,
mood, emotion, perception, or orientation that significantly impairs judgment,
behavior, capacity to recognize reality, or ability to address basic life
necessities and requires care and treatment for the health, safety, or recovery
of the individual or for the safety of others.
"Mental impairment" means a disability that
reduces an individual's ability to reason logically, make
appropriate decisions, or engage in purposeful behavior.
"Minimal assistance" means dependency in only
one activity of daily living or dependency in one or more of the instrumental
activities of daily living as documented on the uniform assessment instrument.
"Moderate assistance" means dependency in two or
more of the activities of daily living as documented on the uniform assessment
instrument.
"Nonambulatory" means the condition of a
resident who by reason of physical or mental impairment is not capable of
self-preservation without the assistance of another person.
"Nonemergency restraint" means [ circumstances
that may require the use of ] a restraint [ used ]
for the purpose of providing support to a physically weakened resident.
"Physical impairment" means a condition of a
bodily or sensory nature that reduces an individual's ability to function or to
perform activities.
"Physical restraint" means any manual method or
physical or mechanical device, material, or equipment attached or adjacent to
the resident's body that the resident cannot remove easily, which restricts
freedom of movement or access to his body.
"Physician" means an individual licensed to
practice medicine or osteopathic medicine in any of the 50 states or the
District of Columbia.
[ "Premises" means a building or buildings,
under one license, together with the land or grounds on which located. ]
"Prescriber" means a practitioner who is
authorized pursuant to §§ 54.1-3303 and 54.1-3408 of the Code of Virginia to
issue a prescription.
"Private duty personnel" means an individual
hired, either directly or through a licensed home care organization, by a
resident, family member, legal representative, or similar entity to provide
one-on-one services to the resident, such as a private duty nurse, home
attendant, personal aide, or companion. Private duty personnel are not hired by
the facility, either directly or through a contract.
"Private pay" means that a resident of an
assisted living facility is not eligible for [ benefits under
the Auxiliary Grants Program an auxiliary grant ].
"Psychopharmacologic drug" means any drug
prescribed or administered with the intent of controlling mood, mental status,
or behavior. Psychopharmacologic drugs include not only the obvious drug
classes, such as antipsychotic, antidepressants, and the antianxiety/hypnotic
class, but any drug that is prescribed or administered with the intent of
controlling mood, mental status, or behavior, regardless of the manner in which
it is marketed by the manufacturers and regardless of labeling or other
approvals by the U.S. Food and Drug Administration.
"Public pay" means that a resident of an
assisted living facility is eligible for [ benefits under the
Auxiliary Grants Program an auxiliary grant ].
"Qualified" means having appropriate training
and experience commensurate with assigned responsibilities, or if referring to
a professional, possessing an appropriate degree or having documented
equivalent education, training, or experience. There are specific definitions
for "qualified assessor" and "qualified mental health
professional" in this section.
"Qualified assessor" means an individual who is
authorized to perform an assessment, reassessment, or change in level of care
for an applicant to or resident of an assisted living facility. For public pay
individuals, a qualified assessor is an employee of a public human services
agency trained in the completion of the uniform assessment instrument (UAI).
For private pay individuals, a qualified assessor is an employee of the
assisted living facility trained in the completion of the UAI or an independent
private physician or a qualified assessor for public pay individuals.
"Qualified mental health professional" means a
behavioral health professional who is trained and experienced in providing
psychiatric or mental health services to individuals who have a psychiatric
diagnosis, including (i) a physician licensed in Virginia; (ii) a psychologist:
an individual with a master's degree in psychology from a college or university
accredited by an association recognized by the U.S. Secretary of Education,
with at least one year of clinical experience; (iii) a social worker: an
individual with at least a master's degree in human services or related field
(e.g., social work, psychology, psychiatric rehabilitation, sociology,
counseling, vocational rehabilitation, or human services counseling) from
college or university accredited by an association recognized by the U.S.
Secretary of Education, with at least one year of clinical experience providing
direct services to persons with a diagnosis of mental illness; (iv) a
registered psychiatric rehabilitation provider (RPRP) registered with the
International Association of Psychosocial Rehabilitation Services (IAPSRS); (v)
a clinical nurse specialist or psychiatric nurse practitioner licensed in the
Commonwealth of Virginia with at least one year of clinical experience working
in a mental health treatment facility or agency; (vi) any other licensed mental
health professional; or (vii) any other person deemed by the Department of
Behavioral Health and Developmental Services as having qualifications
equivalent to those described in this definition. Any unlicensed person who
meets the requirements contained in this definition shall either be under the
supervision of a licensed mental health professional or employed by an agency
or organization licensed by the Department of Behavioral Health and
Developmental Services.
"Rehabilitative services" means activities that
are ordered by a physician or other qualified health care professional that are
provided by a rehabilitative therapist (e.g., physical therapist, occupational
therapist, or speech-language pathologist). These activities may be necessary
when a resident has demonstrated a change in his capabilities and are provided
to restore or improve his level of functioning.
"Resident" means any adult residing in an
assisted living facility for the purpose of receiving maintenance or care.
[ The definition of resident also includes adults residing in an
assisted living facility who have independent living status. Adults present in
an assisted living facility for part of the day for the purpose of receiving
day care services are also considered residents. ]
"Residential living care" means a level of
service provided by an assisted living facility for adults who may have
physical or mental impairments and require only minimal assistance with the
activities of daily living. Included in this level of service are individuals
who are dependent in medication administration as documented on the uniform
assessment instrument, although they may not require minimal assistance with
the activities of daily living. This definition includes the services provided
by the facility to individuals who are assessed as capable of maintaining
themselves in an independent living status.
"Respite care" means services provided in an
assisted living facility for the maintenance or care of aged, infirm, or
disabled adults for a temporary period of time or temporary periods of time
that are regular or intermittent. Facilities offering this type of care are
subject to this chapter.
"Restorative care" means activities designed to
assist the resident in reaching or maintaining his level of potential. These
activities are not required to be provided by a rehabilitative therapist and
may include activities such as range of motion, assistance with ambulation,
positioning, assistance and instruction in the activities of daily living,
psychosocial skills training, and reorientation and reality orientation.
"Restraint" means either "physical
restraint" or "chemical restraint" as these terms are defined in
this section.
"Safe, secure environment" means a
self-contained special care unit for [ individuals
residents ] with serious cognitive impairments due to a primary
psychiatric diagnosis of dementia who cannot recognize danger or protect their
own safety and welfare. There may be one or more self-contained special care
units in a facility or the whole facility may be a special care unit. Nothing
in this definition limits or contravenes the privacy protections set forth in
§ 63.2-1808 of the Code of Virginia.
"Sanitizing" means treating in such a way to
remove bacteria and viruses through using a disinfectant solution (e.g., bleach
solution or commercial chemical disinfectant) or physical agent (e.g., heat).
"Serious cognitive impairment" means severe
deficit in mental capability of a chronic, enduring, or long-term nature that
affects areas such as thought processes, problem-solving, judgment, memory, and
comprehension and that interferes with such things as reality orientation,
ability to care for self, ability to recognize danger to self or others, and
impulse control. Such cognitive impairment is not due to acute or episodic conditions,
nor conditions arising from treatable metabolic or chemical imbalances or
caused by reactions to medication or toxic substances. For the purposes of this
chapter, serious cognitive impairment means that an individual cannot recognize
danger or protect his own safety and welfare. [ Serious
cognitive impairment involves an assessment by a clinical psychologist licensed
to practice in the Commonwealth or by a physician as specified in
22VAC40-73-1090. ]
"Significant change" means a change in a resident's
condition that is expected to last longer than 30 days. It does not include
short-term changes that resolve with or without intervention, a short-term
acute illness or episodic event, or a well-established, predictive, cyclic
pattern of clinical signs and symptoms associated with a previously diagnosed
condition where an appropriate course of treatment is in progress.
"Skilled nursing treatment" means a service
ordered by a physician or other prescriber that is provided by and within the
scope of practice of a licensed nurse.
"Skills training" means systematic skill
building through curriculum-based psychoeducational and cognitive-behavioral
interventions. These interventions break down complex objectives for role
performance into simpler components, including basic cognitive skills such as
attention, to facilitate learning and competency.
"Staff" or "staff person" means
personnel working at a facility who are compensated or have a financial
interest in the facility, regardless of role, service, age, function, or
duration of employment at the facility. "Staff" or "staff
person" also includes those individuals hired through a contract [ with
the facility ] to provide services for the facility.
"Substance abuse" means the use [ of
drugs enumerated in the Virginia Drug Control Act (§ 54.1-3400 et seq. of the
Code of Virginia) ], without [ a ] compelling
medical reason, [ of or ] alcohol
[ or other legal or illegal drugs ] that [ (i) ]
results in psychological or physiological [ dependency
dependence ] or danger to self or others as a function of continued
[ and compulsive ] use [ in such a manner as
to induce or (ii) results in ] mental, emotional, or
physical impairment [ and cause that causes ]
socially dysfunctional or socially disordering behavior [ ; and (iii)
because of such substance abuse, requires care and treatment for the health of
the individual. This care and treatment may include counseling, rehabilitation,
or medical or psychiatric care. All determinations of whether a compelling
medical reason exists shall be made by a physician or other qualified medical
personnel ].
"Systems review" means a physical examination of
the body to determine if the person is experiencing problems or distress,
including cardiovascular system, respiratory system, gastrointestinal system,
urinary system, endocrine system, musculoskeletal system, nervous system,
sensory system, and the skin.
"Transfer" means movement of a resident to a
different assigned living area within the same licensed facility.
"Trustee" means one who stands in a fiduciary or
confidential relation to another; especially, one who, having legal title to
property, holds it in trust for the benefit of another and owes a fiduciary
duty to that beneficiary.
"Uniform assessment instrument" or
"UAI" means the department designated assessment form. There is an
alternate version of the form that may be used for private pay residents.
Social and financial information that is not relevant because of the resident's
payment status is not included on the private pay version of the form.
"Volunteer" means a person who works at an
assisted living facility who is not compensated. [ This does not
include persons who, either as an individual or as part of an organization,
present at or facilitate group activities. An exception to this
definition is a person who, either as an individual or as part of an
organization, is only present at or facilitates group activities on an
occasional basis or for special events. ]
22VAC40-73-20. Requirements of law and applicability.
A. Chapters 17 (§ 63.2-1700 et seq.) and 18
(§ 63.2-1800 et seq.) of Title 63.2 of the Code of Virginia include
requirements of law relating to licensure, including licensure of assisted
living facilities.
B. This chapter applies to assisted living facilities as
defined in § 63.2-100 of the Code of Virginia and in 22VAC40-73-10.
1. Each assisted living facility shall comply with Parts I
(22VAC40-73-10 et seq.) through IX (22VAC40-73-950 et seq.) of this chapter.
2. An assisted living facility that cares for adults with
serious cognitive impairments shall also comply with Part X (22VAC40-73-1000 et
seq.) of this chapter.
22VAC40-73-30. Program of care.
There shall be a program of care that:
1. Meets the [ resident population's
resident's ] physical, mental, emotional, [ and ]
psychosocial [ , and spiritual ] needs;
2. [ Promotes the resident's highest level of
functioning;
3. ] Provides protection, guidance, and
supervision;
[ 3. 4. ] Promotes a sense
of security, self-worth, and independence; and
[ 4. 5. ] Promotes the
resident's involvement with appropriate [ programs and ] community
resources [ based on the resident's needs and interests ].
Part II
Administration and Administrative Services
22VAC40-73-40. Licensee.
A. The licensee shall ensure compliance with all
regulations for licensed assisted living facilities and terms of the license
issued by the department; with relevant federal, state, and local laws; with
other relevant regulations; and with the facility's own policies and
procedures.
B. The licensee shall:
1. Give evidence of financial responsibility and solvency.
2. Be of good character and reputation in accordance with
§ 63.2-1702 of the Code of Virginia. Character and reputation
investigation includes [ , but is not limited to, ]
background checks as required by § 63.2-1721 of the Code of Virginia.
3. Meet the requirements specified in the Regulation for
Background Checks for Assisted Living Facilities and Adult Day Care Centers
(22VAC40-90).
4. Act in accordance with General Procedures and
Information for Licensure (22VAC40-80).
5. Protect the physical and mental well-being of residents.
6. Exercise general supervision over the affairs of the
licensed facility and establish policies and procedures concerning its
operation in conformance with applicable law, this chapter, and the welfare of
the residents.
7. Ensure that he [ or his relatives ],
his agents [ or agents' relatives ], the
facility administrator [ or administrator's relatives ],
or facility staff [ or the relatives of any of these persons ]
shall not act as, seek to become, or become the conservator or guardian of
any resident unless specifically so appointed by a court of competent
jurisdiction pursuant to Article 1 (§ 64.2-2000 et seq.) of Chapter 20 of
Title 64.2 of the Code of Virginia.
8. Ensure that the current license is posted in the
facility in a place conspicuous to the residents and the public.
9. Ensure that the facility keeps and maintains at the
facility records, reports, plans, schedules, and other information as required
by this chapter for licensed assisted living facilities.
10. Ensure that any document required by this chapter to be
posted shall be in at least 12-point type or equivalent size [ ,
unless otherwise specified ].
11. Make certain that when it is time to discard records,
they are disposed of in a manner that ensures confidentiality.
12. Ensure that at all times the department's
representative is afforded reasonable opportunity to inspect all of the facility's
buildings, books, and records and to interview agents, employees, residents,
and any person under its custody, control, direction, or supervision
[ as specified in § 63.2-1706 of the Code of Virginia ].
C. Upon initial application for an assisted living
facility license, any person applying to operate such a facility who has not
previously owned or managed or does not currently own or manage a licensed
assisted living facility shall be required to undergo training by the
commissioner. [ Such training shall be required of those
Training for such ] owners and currently employed administrators
[ of an assisted living facility shall be required ]
at the time of initial application for [ a license
licensure. In all cases, such training shall be completed prior to the granting
of any initial license ].
1. The commissioner may also approve training programs
provided by other entities and allow owners or administrators to attend such
approved training programs in lieu of training by the commissioner.
2. The commissioner may at his discretion also approve for
licensure applicants who meet requisite experience criteria as established by
the board.
3. The training programs shall focus on the health and
safety regulations and resident rights as they pertain to assisted living
facilities and shall be completed by the owner or administrator prior to the
granting of an initial license.
4. The commissioner may, at his discretion, issue a license
conditioned upon the completion by the owner or administrator of the required
training.
D. The licensee shall notify in writing the regional
licensing office of intent to sell or voluntarily close the facility
[ no less than 60 days prior to the sale date or closure ].
The following shall apply:
1. No less than 60 days prior to the planned sale date or
closure, the licensee shall notify the [ regional licensing office, ]
residents, and as relevant, legal representatives, case managers,
[ assessors, ] eligibility workers, and designated contact
persons of the intended sale or closure of the facility and the date for such.
[ 2. Exception: ] If plans
are made at such time that 60-day notice is not possible, the licensee shall
notify the regional licensing office, the residents, legal representatives,
case managers, [ assessors, ] eligibility workers, and
designated contact persons as soon as the intent to sell or close the facility
is known.
[ 3. 2. ] If the facility is
to be sold, at the time of notification specified in subdivision 1 of this
subsection, the licensee shall explain to each resident, his legal
representative, case manager, [ assessor, ] and at
least one designated contact person that the resident can choose whether to
stay or relocate, unless the new licensee specifies relocation. If a resident
chooses to stay, there must be a new resident agreement between the resident
and the new licensee that meets the specifications of 22VAC40-73-390.
[ 4. 3. ] The licensee shall
provide updates regarding the closure or sale of the facility to the regional
licensing office, as requested.
22VAC40-73-50. Disclosure.
A. The assisted living facility shall prepare and provide
a statement to the prospective resident and his legal representative, if any,
that discloses information about the facility. The statement shall be on a form
developed by the department and shall:
1. Disclose information fully and accurately in plain
language;
2. Be provided in advance of admission and prior to signing
an admission agreement or contract;
3. Be provided upon request; and
4. Disclose the following information, which shall be kept
current:
a. Name of the facility;
b. Name of the licensee;
c. Ownership structure of the facility (e.g., individual,
partnership, corporation, limited liability company, unincorporated
association, or public agency);
d. Description of all accommodations, services, and care
that the facility offers;
e. Fees charged for accommodations, services, and care,
including clear information about what is included in the base fee and all fees
for additional accommodations, services, and care;
f. Criteria for admission to the facility and restrictions
on admission;
g. Criteria for transfer to a different living area within
the same facility, including transfer to another level or type of care within
the same facility or complex;
h. Criteria for discharge;
i. Categories, frequency, and number of activities provided
for residents;
j. General number, position types, and qualifications of
staff on each shift;
k. Notation that additional information about the facility
that is included in the resident agreement is available upon request; and
l. The department's website address, with a note that
additional information about the facility may be obtained from the website
[ , including type of license, capacity, special services, and most
recent years' compliance history ].
B. Written acknowledgment of the receipt of the disclosure
by the resident or his legal representative shall be retained in the resident's
record.
C. The disclosure statement shall also be available to the
general public, upon request.
22VAC40-73-60. Electronic records and signatures.
A. Use of electronic records or signatures shall comply
with the provisions of the Uniform Electronic Transactions Act (§ 59.1-479
et seq. of the Code of Virginia).
B. In addition to the requirements of the Uniform
Electronic Transactions Act, the use of electronic signatures shall be deemed
to constitute a signature and have the same effect as a written signature on a
document as long as the licensee:
1. Develops, implements, and maintains specific policies
and procedures for the use of electronic signatures;
2. Ensures that each electronic signature identifies the
individual signing the document by name and title;
3. Ensures that the document cannot be altered after the
signature has been affixed;
4. Ensures that access to the code or key sequence is
limited;
5. Ensures that all users have signed statements that they
alone have access to and use the key or computer password for their signature
and will not share their key or password with others; and
6. Ensures that strong and substantial evidence exists that
would make it difficult for the signer or the receiving party to claim the
electronic representation is not valid.
C. A back-up and security system shall be utilized for all
electronic documents.
22VAC40-73-70. Incident reports.
A. Each facility shall report to the regional licensing
office within 24 hours any major incident that has negatively affected or that
threatens the life, health, safety, or welfare of any resident.
B. The report required in subsection A of this section
shall include (i) the name of the facility, (ii) the name or names of the
resident or residents involved in the incident, (iii) the name of the person
making the report, (iv) the date of the incident, (v) a description of the
incident, and (vi) the actions taken in response to the incident.
C. The facility shall submit a written report of each
incident specified in subsection A of this section to the regional licensing
office within seven days from the date of the incident. The report shall be
signed and dated by the administrator and include the following information:
1. Name and address of the facility;
2. Name of the resident or residents involved in the
incident;
3. Date and time of the incident;
4. Description of the incident, the circumstances under
which it happened, and [ , ] when applicable, extent of
injury or damage;
5. Location of the incident;
6. Actions taken in response to the incident;
7. Actions to prevent recurrence of the incident, if
applicable;
8. Name of staff person in charge at the time of the
incident;
9. Names, telephone numbers, and addresses of witnesses to
the incident, if any; and
10. Name, title, and signature of the person making the
report, if other than the administrator, and date of the completion of the
report.
D. The facility shall submit to the regional licensing
office amendments to the written report when circumstances require, such as
when substantial additional actions are taken, when significant new
information becomes available, or there is resolution of the incident after
submission of the report.
E. A copy of the written report of each incident shall be
maintained by the facility for at least two years [ from the date
of the incident ].
F. If applicable, the facility shall ensure that there is
documentation in the resident's record as required by 22VAC40-73-470 F.
22VAC40-73-80. Management and control of resident funds.
Pursuant to § 63.2-1808 A 3 of the Code of Virginia, the
resident shall be free to manage his personal finances and funds regardless of
source, unless a committee, conservator, or guardian has been appointed for a
resident. However [ , ] the resident may request that
the facility assist with the management of personal funds, and the facility may
assist the resident in such management under the following conditions:
1. There shall be documentation of this request and
delegation, signed and dated by the resident and the administrator. The
documentation shall be maintained in the resident's record.
2. [ Residents' All resident
funds ] shall be held separately from any other moneys of the
facility. [ Residents' No resident ] funds
shall [ not ] be borrowed, used as assets of the
facility, or used for purposes of personal interest by the licensee, operator,
administrator, or facility staff.
3. The resident shall be given a choice of whether he
wishes his funds to be maintained in an individual resident account [ ,
which may be interest-bearing, ] or in a single account for the
accumulated funds of multiple residents [ , which shall not be
interest-bearing ]. [ Either type of account may be
interest-bearing. If the account is interest-bearing, the resident must be
provided his appropriate portion of the interest. ]
4. [ For residents who are not recipients of
an auxiliary grant, the The ] facility may charge a
reasonable amount for administration of the account [ , except for
residents who are recipients of an auxiliary grant as account administration is
covered by the grant ].
5. The facility shall maintain a written accounting of
money received and disbursed by the facility that shows a current balance. The
written accounting of the funds shall be made available to the resident at
least quarterly and upon request, and a copy shall also be placed in the
resident's record.
6. The resident's funds shall be made available to the
resident upon request.
22VAC40-73-90. Safeguarding residents' funds.
No [ licensee, ] facility
administrator [ , ] or staff person shall act as either
attorney-in-fact or trustee unless the resident has no other preferred designee
and the resident himself expressly requests such service by or through facility
personnel. When the [ licensee, ] facility
administrator [ , ] or staff person acts as
attorney-in-fact or trustee, the following applies:
1. There shall be documentation that the resident has
requested such service and from whom, signed and dated by the resident, [ the
licensee, ] the facility administrator, and if a staff person is to
provide the service, the staff person. The documentation shall be maintained in
the resident's record.
2. The [ licensee, ] facility
administrator [ , ] or staff person so named
attorney-in-fact or trustee shall be accountable at all times in the proper
discharge of such fiduciary responsibility as provided under Virginia law.
3. The facility shall maintain a written accounting of
money received and disbursed by the [ licensee, ] facility
administrator [ , ] or staff person that shows a
current balance. The written accounting of the funds shall be made available to
the resident at least quarterly and upon request, and a copy shall also be
placed in the resident's record.
4. The resident's funds shall be made available to the
resident upon request.
5. Upon termination of the power of attorney or trust for
any reason, the [ licensee, ] facility
administrator [ , ] or staff person so named
attorney-in-fact or trustee shall return all funds and assets, with full
accounting, to the resident or to another responsible party expressly
designated by the resident.
22VAC40-73-100. Infection control program.
A. The assisted living facility shall develop, in writing,
and implement an infection control program addressing the surveillance,
prevention, and control of disease and infection that is consistent with the
federal Centers for Disease Control and Prevention (CDC) guidelines and the
federal Occupational Safety and Health Administration (OSHA) bloodborne
pathogens regulations.
1. A licensed health care professional, practicing within
the scope of his profession and with training in infection prevention, shall
participate in the development of infection prevention policies and procedures
and shall [ assure ensure ] compliance
with applicable guidelines and regulations.
2. The administrator shall ensure at least an annual review
of infection prevention policies and procedures for any necessary updates. A
licensed health care professional, practicing within the scope of his
profession and with training in infection prevention, shall be included in the
review to [ assure ensure ] compliance
with applicable guidelines and regulations. Documentation of the review shall
be maintained at the facility.
3. A staff person who has been trained in basic infection
prevention shall participate in the annual review and serve as point of contact
for the program. This person shall be responsible for on-going monitoring of
the implementation of the infection control program.
B. The infection control program shall be applicable to
all staff and volunteers and encompass all services as well as the entire
[ physical plant and grounds premises ].
C. The infection control program shall include:
1. Procedures for the implementation of infection
prevention measures by staff and volunteers to include:
a. Use of standard precautions;
b. Use of personal protective equipment; and
c. Means to [ assure ensure ]
hand hygiene [ .; ]
2. Procedures for other infection prevention measures
related to job duties [ to ] include [ ,
but not be limited to ]:
a. Determination of whether prospective or returning
residents have acute infectious disease and use of appropriate measures to
prevent disease transmission;
b. Use of safe injection practices and other procedures
where the potential for exposure to blood or body fluids exists;
c. Blood glucose monitoring practices that are consistent
with CDC [ guidelines recommendations ].
When [ providing ] assisted blood glucose
monitoring [ is required ], [ only
single-use auto-retractable disposable lancets may be used
fingerstick devices shall not be used for more than one person ];
d. The handling, storing, processing, and transporting of
linens, supplies, and equipment in a manner that prevents the spread of
infection;
e. The sanitation of rooms, including cleaning and
disinfecting procedures, agents, and schedules;
f. The sanitation of equipment, including medical equipment
that may be used on more than one resident (e.g., blood glucose meters and
blood pressure cuffs, including cleaning and disinfecting procedures, agents,
and schedules);
g. The handling, storing, processing, and transporting of
medical waste in accordance with applicable regulations; and
h. Maintenance of an effective pest control program
[ .; ]
3. Readily accessible handwashing equipment and necessary
personal protective equipment for staff and volunteers (e.g., soap,
alcohol-based hand rubs, disposable towels or hot air dryers, and gloves)
[ .; ]
4. Product specific instructions for use of cleaning and
disinfecting agents (e.g., dilution, contact time, and management of accidental
exposures) [ .; and ]
5. Initial training as specified in 22VAC40-73-120 C 4 and
annual retraining of staff and volunteers in infection prevention methods, as
applicable to job responsibilities [ and as required by
22VAC40-73-210 F ].
D. The facility shall have a staff health program that
includes:
1. Provision of information on recommended vaccinations, per
guidelines from the CDC Advisory Committee on Immunization Practices (ACIP), to
facility staff and volunteers who have any potential exposure to residents or
to infectious materials, including body substances, contaminated medical
supplies and equipment, contaminated environmental surfaces, or contaminated
air;
2. Assurance that employees with communicable diseases are
identified and prevented from work activities that could result in transmission
to other personnel or residents;
3. An exposure control plan for bloodborne pathogens;
4. Documentation of screening and immunizations offered to,
received by, or declined by employees in accordance with law, regulation, or
recommendations of public health authorities, including access to hepatitis B
vaccine; [ and ]
5. Compliance with requirements of the OSHA for reporting
of workplace associated injuries or exposure to infection.
E. The facility administrator shall immediately make or
cause to be made a report of an outbreak of disease as defined by the State
Board of Health. Such report shall be made by rapid means to the local health
director or to the Commissioner of the Virginia Department of Health and to the
licensing representative of the Department of Social Services in the regional
licensing office.
F. When recommendations are made by the Virginia
Department of Health to prevent or control transmission of an infectious agent
in the facility, the recommendations must be followed.
Part III
Personnel
22VAC40-73-110. Staff general qualifications.
All staff shall:
1. Be considerate and respectful of the rights, dignity,
and sensitivities of persons who are aged, infirm, or disabled;
2. Be able to speak, read, [ understand, ]
and write in English as necessary to carry out their job responsibilities;
and
3. Meet the requirements specified in the Regulation for
Background Checks for Assisted Living Facilities and Adult Day Care Centers
(22VAC40-90).
22VAC40-73-120. Staff orientation and initial training.
A. The orientation and training required in subsections B
and C of this section shall occur within the first seven working days of
employment. Until this orientation and training is completed, the staff person
may only assume job responsibilities if under the sight supervision of a
trained direct care staff person or administrator.
B. All staff shall be oriented to:
1. The purpose of the facility;
2. The facility's organizational structure;
3. The services provided;
4. The daily routines;
5. The facility's policies and procedures;
6. Specific duties and responsibilities of their positions;
and
7. Required compliance with regulations for assisted living
facilities as it relates to their duties and responsibilities.
C. All staff shall be trained in the relevant laws,
regulations, and the facility's policies and procedures sufficiently to
implement:
1. Emergency and disaster plans for the facility;
2. Procedures for the handling of resident emergencies;
3. Use of the first aid kit and knowledge of its location;
4. Handwashing techniques, standard precautions, infection
risk-reduction behavior, and other infection control measures specified in
22VAC40-73-100;
5. Confidential treatment of personal information;
6. Requirements regarding the rights and responsibilities
of residents;
7. Requirements and procedures for detecting and reporting
suspected abuse, neglect, or exploitation of residents and for mandated
reporters, the consequences for failing to make a required report, as set out
in § 63.2-1606 of the Code of Virginia;
8. Procedures for reporting and documenting incidents as
required in 22VAC40-73-70;
9. Methods of alleviating common adjustment problems that
may occur when a resident moves from one residential environment to another;
and
10. For direct care staff, the needs, preferences, and
routines of the residents for whom they will provide care.
[ D. Staff orientation and initial training specified
in this section may count toward the required annual training hours for the
first year. ]
22VAC40-73-130. Reports of abuse, neglect, or exploitation.
[ A. ] All staff who are mandated
reporters under § 63.2-1606 of the Code of Virginia shall report suspected
abuse, neglect, or exploitation of residents in accordance with that section.
[ B. The facility shall notify the resident's contact
person or legal representative when a report is made relating to the resident
as referenced in subsection A of this section, without identifying any
confidential information. ]
22VAC40-73-140. Administrator qualifications.
A. The administrator shall be at least 21 years of age.
B. The administrator shall be able to read and write, and
understand this chapter.
C. The administrator shall be able to perform the duties
and carry out the responsibilities required by this chapter.
D. For a facility licensed only for residential living care
that does not employ an administrator licensed by the Virginia Board of
Long-Term Care Administrators, the administrator shall:
1. Be a high school graduate or shall have a General
Education Development (GED) Certificate;
2. (i) Have successfully completed at least 30 credit hours
of postsecondary education from a college or university accredited by an
association recognized by the U.S. Secretary of Education and at least 15 of
the 30 credit hours shall be in business or human services or a combination
thereof; (ii) have successfully completed a course of study approved by the
department that is specific to the administration of an assisted living
facility; (iii) have a bachelor's degree from a college or university
accredited by an association recognized by the U.S. Secretary of Education; or
(iv) be a licensed nurse; and
3. Have at least one year of administrative or supervisory
experience in caring for adults in a residential group care facility.
The requirements of this subsection shall not apply to an
administrator of an assisted living facility employed prior to [ the
effective date of February 1, 2018 ], who met the
requirements in effect when employed and who has been continuously employed as
an assisted living facility administrator.
E. For a facility licensed for both residential and
assisted living care, the administrator shall be licensed [ as an
assisted living facility administrator or nursing home administrator ]
by the Virginia Board of Long-Term Care Administrators [ as
required by § 63.2-1803 pursuant to Chapter 31 (§ 54.1-3100 et seq.)
of Title 54.1 ] of the Code of Virginia.
22VAC40-73-150. Administrator provisions and
responsibilities.
A. Each facility shall have an administrator of record.
B. If an administrator dies, resigns, is discharged, or
becomes unable to perform his duties, the facility shall immediately employ a
new administrator or appoint a qualified acting administrator [ so
that no lapse in administrator coverage occurs ].
1. The facility shall notify the department's regional
licensing office in writing within 14 days of a change in a facility's
administrator, including [ but not limited to ] the
resignation of an administrator, appointment of an acting administrator, and
appointment of a new administrator, except that the time period for
notification may differ as specified in subdivision 2 of this subsection.
2. [ A For a ] facility
licensed for both residential and assisted living care [ shall
comply with the notice requirements set out in § 63.2-1803 B of the Code
of Virginia, the facility shall immediately notify the Virginia
Board of Long-Term Care Administrators and the department's regional licensing
office that a new licensed administrator has been employed or that the facility
is operating without an administrator licensed by the Virginia Board of
Long-Term Administrators, whichever is the case, and provide the last date of
employment of the previous licensed administrator ].
3. For a facility licensed for both residential and
assisted living care, when an acting administrator is named, he shall
[ meet the qualifications and notice requirements set out in
§ 63.2-1803 B of the Code of Virginia notify the department's
regional licensing office of his employment, and if he is intending to assume
the position permanently, submit a completed application for an approved
administrator-in-training program to the Virginia Board of Long-Term Care
Administrators within 10 days of employment ].
4. [ For a facility licensed for both
residential and assisted living care, the acting administrator shall be
qualified by education for an approved administrator-in-training program and
have a minimum of one year of administrative or supervisory experience in a
health care or long-term care facility or have completed such a program and be
awaiting licensure.
5. ] A facility licensed only for residential
living care may be operated by an acting administrator for no more than 90 days
from the last date of employment of the administrator.
[ 5. A facility licensed for both residential and
assisted living care may be operated by an acting administrator in accordance
with the time frames set out in § 63.2-1803 B and C of the Code of Virginia.
6. A facility licensed for both residential and assisted
living care may be operated by an acting administrator for no more than 150
days, or not more than 90 days if the acting administrator has not applied for
licensure, from the last date of employment of the licensed administrator.
Exception: An acting administrator may be granted one
extension of up to 30 days in addition to the 150 days, as specified in this
subdivision, upon written request to the department's regional licensing
office. An extension may only be granted if the acting administrator (i) has
applied for licensure as a long-term care administrator pursuant to Chapter 31
(§ 54.1-3100 et seq.) of Title 54.1 of the Code of Virginia, (ii) has completed
the administrator-in-training program, and (iii) is awaiting the results of the
national examination. If a 30-day extension is granted, the acting
administrator shall immediately submit written notice of such to the Virginia
Board of Long-Term Care Administrators. ]
[ 6. 7. ] A person may not
become an acting administrator at any assisted living facility if the Virginia
Board of Long-Term Care Administrators has refused to issue or renew,
suspended, or revoked his assisted living facility or nursing home
administrator license.
[ 7. 8. ] No assisted living
facility shall operate under the supervision of an acting administrator
pursuant to §§ 54.1-3103.1 and 63.2-1803 of the Code of Virginia more than one
time during any two-year period unless authorized to do so by the department.
C. The administrator shall be responsible for the general
administration and management of the facility and shall oversee the day-to-day
operation of the facility. This shall include [ but shall not be
limited to ] responsibility for:
1. Ensuring that care is provided to residents in a manner
that protects their health, safety, and well-being;
2. Maintaining compliance with applicable laws and
regulations;
3. Developing and implementing all policies, procedures,
and services as required by this chapter;
4. Ensuring staff and volunteers comply with residents'
rights;
5. Maintaining buildings and grounds;
6. Recruiting, hiring, training, and supervising staff; and
7. Ensuring the development, implementation, and monitoring
of an individualized service plan for each resident, except that a plan is not
required for a resident with independent living status.
D. The administrator shall report to the Director of the
Department of Health Professions information required by and in accordance with
§ 54.1-2400.6 of the Code of Virginia regarding any person (i) licensed,
certified, or registered by a health regulatory board or (ii) holding a
multistate licensure privilege to practice nursing or an applicant for
licensure, certification, or registration. Information required to be reported,
under specified circumstances includes [ but shall not be
limited to ] substance abuse and unethical or fraudulent
conduct.
E. For a facility licensed only for residential living
care, either the administrator or a designated assistant who meets the
qualifications of the administrator shall be awake and on duty on the premises
at least 40 hours per week with no fewer than 24 of those hours being during
the day shift on weekdays.
Exceptions:
1. 22VAC40-73-170 allows a shared administrator for smaller
facilities.
2. If the administrator is licensed as an assisted living
facility administrator or nursing home administrator by the Virginia Board of
Long-Term Care Administrators, the provisions regarding the administrator in
subsection F of this section apply. When such is the case, there is no
requirement for a designated assistant.
F. For a facility licensed for both residential and
assisted living care, the administrator shall serve on a full-time basis as the
on-site agent of the licensee and shall be responsible for the day-to-day
administration and management of the facility, except as provided in
22VAC40-73-170.
G. The administrator, acting administrator, or as allowed
in subsection E of this section, designated assistant administrator, shall not
be a resident of the facility.
22VAC40-73-160. Administrator training.
A. For a facility licensed only for residential living
care that does not employ a licensed administrator, the administrator shall
attend at least 20 hours of training related to management or operation of a
residential facility for adults or relevant to the population in care within 12
months from the [ starting ] date of employment and
annually thereafter from that date. At least two of the required 20 hours of
training shall focus on infection control and prevention, and when adults with
mental impairments reside in the facility, at least six of the required 20
hours shall focus on topics related to residents' mental impairments.
Documentation of attendance shall be retained at the facility and shall include
type of training, name of the entity that provided the training, and date and
number of hours of training.
B. All licensed administrators shall meet the continuing
education requirements for continued licensure.
C. Any administrator who has not previously undergone the
training specified in 22VAC40-73-40 C shall be required to complete that
training within two months of employment as administrator of the facility. The
training may be counted toward the annual training requirement for the first
year, except that for licensed administrators, whether the training counts
toward continuing education and for what period of time depends upon the
administrator licensure requirements. [ Administrators employed
prior to December 28, 2006, are not required to complete this training. ]
D. Administrators who supervise medication aides,
[ as allowed by 22VAC40-73-670 3 b, ] but are not
registered medication aides themselves, shall successfully complete a training
program approved by the Virginia Board of Nursing for the registration of
medication aides. The training program for such administrators must include a
minimum of 68 hours of student instruction and training, but need not include
the prerequisite for the program or the written examination for registration.
The training shall be completed prior to supervising medication aides and may
be counted toward the annual training requirement in subsection A of this
section, except that for licensed administrators, whether the training counts
toward continuing education and for what period of time depends upon the
administrator licensure requirements. The following exceptions apply:
1. The administrator is licensed by the Commonwealth of
Virginia to administer medications; or
2. Medication aides are supervised by an individual
employed full time at the facility who is licensed by the Commonwealth of
Virginia to administer medications.
E. Administrators who have completed the training program
specified in subsection D of this section and who supervise medication aides
shall be required to annually have (i) four hours of training in medication
administration specific to the facility population or (ii) a refresher course
in medication administration offered by a Virginia Board of Nursing approved
program. Administrators are exempt from this annual medication training or
refresher course during the first year after completion of the training program
noted in subsection D of this section. [ This For
unlicensed administrators of a facility licensed only for residential living
care this ] annual medication administration training or course may
[ not ] be counted toward the annual training
requirement specified in subsection A of this section. For licensed
administrators, whether the training counts toward continuing education and for
what period of time depends upon the administrator licensure requirements.
F. If a designated assistant administrator, as allowed in
22VAC40-73-150 E supervises medication aides, the requirements of subsections D
and E of this section apply to the designated assistant administrator.
22VAC40-73-170. Shared administrator for smaller facilities.
A. An administrator [ of a facility licensed
only for residential living care, ] who is not licensed as an
assisted living facility administrator or nursing home administrator by the
Virginia Board of Long-Term Care Administrators [ , ] is
allowed to be present at a facility for fewer than the required minimum 40
hours per week in order to serve multiple facilities, without a designated
assistant, under the following conditions:
1. The administrator shall serve no more than four
facilities.
2. The combined total licensed capacity of the facilities
served by the administrator shall be 40 or fewer residents.
3. The administrator shall be awake and on duty on the
premises of each facility served for at least 10 hours a week [ ,
six of which must be during the day shift ].
4. The administrator shall serve as a full-time
administrator (i.e., shall be awake and on duty on the premises of all
facilities served for a combined total of at least 40 hours a week).
5. Each of the facilities served shall be within a
30-minute average one-way travel time of the other facilities.
6. When not present at a facility, the administrator shall
be on call to that facility during the hours he is working as an administrator
and shall maintain such accessibility through suitable communication devices.
7. A designated assistant may act in place of the
administrator during the required minimum of 40 hours only if the administrator
is ill or on vacation and for a period of time that shall not exceed four
consecutive weeks. The designated assistant shall meet the qualifications of
the administrator.
8. Each of the facilities served shall have a manager,
designated and supervised by the administrator. The manager shall be awake and
on duty on the premises of the facility for the remaining part of the 40
required hours per week when the administrator or designated assistant is not
present at the facility. The manager shall meet the following qualifications
and requirements:
a. The manager shall be at least 21 years of age.
b. The manager shall be able to read and write, and
understand this chapter.
c. The manager shall be able to perform the duties and to carry
out the responsibilities of his position.
d. The manager shall:
(1) Be a high school graduate or have a General Education
Development (GED) Certificate;
(2) (i) Have successfully completed at least 30 credit
hours of postsecondary education from a college or university accredited by an
association recognized by the U.S. Secretary of Education and at least 15 of
the 30 credit hours shall be in business or human services or a combination
thereof; (ii) have successfully completed a course of study of 40 or more hours
approved by the department that is specific to the management of an assisted
living facility; (iii) have a bachelor's degree from a college or university
accredited by an association recognized by the U.S. Secretary of Education; or
(iv) be a licensed nurse; and
(3) Have at least one year of administrative or supervisory
experience in caring for adults in a residential group care facility.
e. Subdivision 8 d of this subsection does not apply to a
manager of an assisted living facility employed prior to [ the
effective date of this chapter February 1, 2018, ] who
met the requirements in effect when employed and who has been continuously
employed as an assisted living facility manager.
f. The manager shall not be a resident of the facility.
g. The manager shall complete the training specified in
22VAC40-73-40 C within two months of employment as manager. The training may be
counted toward the annual training requirement for the first year.
Exception: A manager employed prior to December 28, 2006,
who met the requirements in effect when employed and who has been continuously
employed as a manager.
h. The manager shall attend at least 20 hours of training
related to management or operation of a residential facility for adults or
relevant to the population in care within each 12-month period. When adults
with mental impairments reside in the facility, at least six of the required 20
hours of training shall focus on topics related to residents' mental
impairments and at least two of the required 20 hours on infection control and
prevention. Documentation of attendance shall be retained at the facility and
shall include title of course, name of the entity that provided the training,
and date and number of hours of training.
9. There shall be a written management plan for each
facility that describes how the administrator will oversee the care and
supervision of the residents and the day-to-day operation of the facility.
10. The minimum of 40 hours per week required for the
administrator or manager to be awake and on duty on the premises of a facility
shall include at least 24 hours during the day shift on weekdays.
B. An administrator, who is licensed as an assisted living
facility administrator or nursing home administrator by the Virginia Board of Long-Term
Care Administrators, may be responsible for the day-to-day administration and
management of multiple facilities under the following conditions:
1. The administrator shall serve no more than four
facilities.
2. The combined total licensed capacity of the facilities
served by the administrator shall be 40 or fewer residents.
3. The administrator shall serve on a full-time basis as
the on-site agent of the licensee or licensees, proportioning his time among
all the facilities served in order to ensure that he provides sufficient
administrative and management functions to each facility.
4. Each of the facilities served shall be within a
30-minute average one-way travel time of the other facilities.
5. When not present at a facility, the administrator shall
be on call to that facility during the hours he is working as an administrator
and shall maintain such accessibility through suitable communication devices.
6. Each of the facilities served shall have a manager,
designated and supervised by the administrator, to assist the administrator in
overseeing the care and supervision of the residents and the day-to-day
operation of the facility. The majority of the time, the administrator and the
manager shall be present at a facility at different times to ensure appropriate
oversight of the facility. The manager shall meet the qualifications and
requirements specified in subdivision A 8 of this section.
Exception: In regard to subdivision A 8 of this section,
the reference to 40 hours is not relevant to a facility to which this
subsection applies (i.e., a facility with a licensed administrator).
7. There shall be a written management plan for each
facility that includes written policies and procedures that describe how the
administrator shall oversee the care and supervision of the residents and the
day-to-day operation of the facility.
C. This section shall not apply to an administrator who
serves both an assisted living facility and a nursing home as provided for in
22VAC40-73-180.
22VAC40-73-180. Administrator of both assisted living
facility and nursing home.
A. Any person meeting the qualifications for a licensed
nursing home administrator pursuant to § 54.1-3103 of the Code of Virginia
may serve as the administrator of both an assisted living facility and a
licensed nursing home, provided the assisted living facility and licensed
nursing home are part of the same building.
B. Whenever an assisted living facility and a licensed
nursing home have a single administrator, there shall be a written management
plan that addresses the care and supervision of the assisted living facility
residents. The management plan shall include [ , but not be
limited to, ] the following:
1. Written policies and procedures that describe how the
administrator will oversee the care and supervision of the residents and the
day-to-day operation of the facility.
2. If the administrator does not provide the direct
management of the assisted living facility or only provides a portion thereof,
the plan shall specify a designated individual who shall serve as manager and
who shall be supervised by the administrator.
3. The manager referred to in subdivision 2 of this
subsection shall be on site and meet the qualifications and requirements of
22VAC40-73-170 A 8, A 9, and A 10.
22VAC40-73-190. Designated direct care staff person in
charge.
A. When the administrator, the designated assistant, or
the manager is not awake and on duty on the premises, there shall be a
designated direct care staff member in charge on the premises. However, when no
residents are present at the facility, the designated staff person in charge
does not have to be on the premises.
B. The specific duties and responsibilities of the
designated direct care staff member in charge shall be determined by the
administrator.
C. Prior to being placed in charge, the staff member shall
be informed of and receive training on his duties and responsibilities and
provided written documentation of such duties and responsibilities.
D. The staff member shall be awake and on duty on the premises
while in charge.
E. The staff member in charge shall be capable of
protecting the physical and mental well-being of the residents.
F. The administrator shall ensure that the staff member in
charge is prepared to carry out his duties and responsibilities and respond
appropriately in case of an emergency.
G. The staff member in charge shall not be a resident of
the facility.
22VAC40-73-200. Direct care staff qualifications.
A. Direct care staff shall be at least 18 years of age
unless certified in Virginia as a nurse aide.
B. Direct care staff who are responsible for caring for
residents with special health care needs shall only provide services within the
scope of their practice and training.
C. Direct care staff shall meet one of the requirements in
this subsection. If the staff does not meet the requirement at the time of
employment, he shall successfully meet one of the requirements in this
subsection within two months of employment. Licensed health care professionals
practicing within the scope of their profession are not required to complete
the training in this subsection.
1. Certification as a nurse aide issued by the Virginia
Board of Nursing.
2. Successful completion of a Virginia Board of
Nursing-approved nurse aide education program.
3. Successful completion of a nursing education program
preparing for registered nurse licensure or practical nurse licensure.
4. Current enrollment in a nursing education program
preparing for registered nurse or practical nurse licensure and completion of
at least one clinical course in the nursing program that includes at least 40
hours of direct client care clinical experience.
5. Successful completion of a personal care aide training
program approved by the Virginia Department of Medical Assistance Services.
6. Successful completion of an educational program for
geriatric assistant or home health aide or for nurse aide that is not covered
under subdivision 2 of this subsection. The program shall be provided by a
hospital, nursing facility, or educational institution and may include
out-of-state training. The program must be approved by the department. To
obtain department approval:
a. The facility shall provide to the department's
representative an outline of course content, dates and hours of instruction
received, the name of the entity that provided the training, and other
pertinent information.
b. The department will make a determination based on the
information in subdivision 6 a of this subsection and provide written
confirmation to the facility when the educational program meets department
requirements.
7. Successful completion of the department-approved 40-hour
direct care staff training provided by a registered nurse or licensed practical
nurse.
8. Direct care staff employed prior to [ the
effective date of this chapter February 1, 2018, ] who
[ did not care only cared ] for residents
meeting the criteria for [ assisted living care
residential living ], and who were therefore not required to meet
this subsection [ at that time prior to February 1,
2018 ], shall successfully complete a training program consistent
with [ department requirements this subsection ]
no later than [ one year after the effective date of this
chapter, except that direct care staff of the facility employed prior to
February 1, 1996, shall not be required to complete the training in this
subsection if they (i) have been continuously employed as direct care staff in
the facility since then and (ii) have demonstrated competency on a skills
checklist dated and signed no later than February 1, 1997, by a licensed health
care professional practicing within the scope of his profession
January 31, 2019 ].
D. The facility shall obtain a copy of the certificate
issued or other documentation indicating that the person has met one of the
requirements of subsection C of this section, which shall be part of the staff
member's record in accordance with 22VAC40-73-250.
E. The administrator shall develop and implement a written
plan for supervision of direct care staff who have not yet met the requirements
as allowed for in subsection C of this section.
22VAC40-73-210. Direct care staff training.
A. In a facility licensed only for residential living
care, all direct care staff shall attend at least 14 hours of training
annually.
B. In a facility licensed for both residential and
assisted living care, all direct care staff shall attend at least 18 hours of
training annually.
C. Training for the first year shall commence no later
than 60 days after employment.
D. The training shall be in addition to (i) required first
aid training; (ii) CPR training, if taken; and (iii) for medication aides,
continuing education required by the Virginia Board of Nursing.
E. The training shall be relevant to the population in
care and shall be provided by a qualified individual through in-service
training programs or institutes, workshops, classes, or conferences.
F. At least two of the required hours of training shall
focus on infection control and prevention. When adults with mental impairments
reside in the facility, at least four of the required hours shall focus on
topics related to residents' mental impairments.
G. Documentation of the type of training received, the
entity that provided the training, number of hours of training, and dates of
the training shall be kept by the facility in a manner that allows for
identification by individual staff person and is considered part of the staff
member's record.
Exception: Direct care staff who are licensed health care
professionals or certified nurse aides shall attend at least 12 hours of annual
training.
22VAC40-73-220. Private duty personnel.
A. When private duty personnel from licensed home care
organizations provide direct care or companion services to residents in an
assisted living facility, the following applies:
1. Before direct care or companion services are initiated,
the facility shall obtain, in writing, information on the type and frequency of
the services to be delivered to the resident by private duty personnel, review
the information to determine if it is acceptable, and provide notification to
the home care organization regarding any needed changes.
2. The direct care or companion services provided by
private duty personnel to meet identified needs shall be reflected on the
resident's individualized service plan.
3. The facility shall ensure that the requirements of
22VAC40-73-250 D 1 through D 4 regarding tuberculosis are applied to private
duty personnel and that the required reports are maintained by the facility or
the licensed home care organization [ , based on written
agreement between the two ].
4. The facility shall provide orientation and training to
private duty personnel regarding the facility's policies and procedures related
to the duties of private duty personnel.
5. The facility shall ensure that documentation of resident
care required by this chapter is maintained.
6. The facility shall monitor the delivery of direct care
and companion services to the resident by private duty personnel.
B. When private duty personnel who are not employees of a
licensed home care organization provide direct care or companion services to
residents in an assisted living facility, the requirements listed under
subdivisions [ A ] 2 through [ A ]
6 [ in subsection A ] of this section apply.
In addition, before direct care or companion services are initiated, the
facility shall:
1. Obtain, in writing, information on the type and
frequency of the services to be delivered to the resident by private duty
personnel, review the information to determine if it is acceptable, and provide
notification to whomever has hired the private duty personnel regarding any
needed changes.
2. Ensure that private duty personnel are qualified for the
types of direct care or companion services they are responsible for providing
to residents and maintain documentation of the qualifications.
[ 3. Review an original criminal history record report
issued by the Virginia Department of State Police, Central Criminal Records
Exchange, for each private duty personnel.
a. The report must be reviewed prior to initiation of
services.
b. The date of the report must be no more than 90 days
prior to the date of initiation of services, except that if private duty
personnel change clients in the same facility with a lapse in service of not
more than 60 days, a new criminal history record report shall not be required.
c. The administrator shall determine conformance to
facility policy regarding private duty personnel and criminal history to
protect the welfare of residents. The policy must be in writing. If private
duty personnel are denied the ability to provide direct care or companion
services due to convictions appearing on their criminal history record report,
a copy of the report shall be provided to the private duty personnel.
d. The report and documentation that it was reviewed shall
be maintained at the facility while the private duty person is at the facility
and for one year after the last date of work.
e. Criminal history reports shall be maintained in locked
files accessible only to the licensee, administrator, board president, or the
respective designee.
f. Further dissemination of the criminal history record
report information is prohibited other than to the commissioner's
representative or a federal or state authority or court as may be required to
comply with an express requirement of law for such further dissemination. ]
C. The requirements of subsections A and B of this section
shall not apply to private duty personnel who only provide skilled nursing
treatments as specified in 22VAC40-73-470 B. [ However,
depending upon the circumstances, there may be other sections of this chapter
that apply in such cases (e.g., inclusion on the resident's individualized
service plan). ]
22VAC40-73-230. Staff duties performed by residents.
A. Any resident who performs any staff duties shall meet
the personnel and health requirements for that position.
B. There shall be a written agreement between the facility
and any resident who performs staff duties.
1. The agreement shall specify duties, hours of work, and
compensation.
2. The agreement shall not be a condition for admission or
continued residence.
3. The resident shall enter into such an agreement
voluntarily.
22VAC40-73-240. Volunteers.
A. Any volunteers used shall:
1. Have qualifications appropriate to the services they
render; and
2. Be subject to laws and regulations governing
confidential treatment of personal information.
B. No volunteer shall be permitted to serve in an assisted
living facility without the permission of or unless under the supervision of a
person who has received a criminal record clearance pursuant to § 63.2-1720 of
the Code of Virginia.
C. The facility shall maintain the following documentation
on volunteers:
1. Name.
2. Address.
3. Telephone number.
4. Emergency contact information.
5. Information on any qualifications, orientation,
training, and education required by this chapter, including any specified
relevant information.
D. Duties and responsibilities of all volunteers shall be
clearly differentiated from those of persons regularly filling staff positions.
E. At least one staff person shall be assigned
responsibility for coordinating volunteer services, including overall
selection, supervision, and orientation of volunteers.
F. Prior to beginning volunteer service, all volunteers
shall attend an orientation including information on their duties and
responsibilities, resident rights, confidentiality, emergency procedures,
infection control, the name of their supervisor, and reporting requirements
[ and. Volunteers shall ] sign and date
a statement that they have received and [ understood
understand ] this information.
G. All volunteers shall be under the supervision of a
designated staff person when residents are present.
22VAC40-73-250. Staff records and health requirements.
A. A record shall be established for each staff person. It
shall not be destroyed until at least two years after employment is terminated.
B. All staff records shall be retained at the facility,
treated confidentially, and kept in a locked area.
Exception: Emergency contact information required by
subdivision C 9 of this section shall also be kept in an easily accessible
place.
C. Personal and social data to be maintained on
staff and included in the staff record are as follows:
1. Name;
2. Birth date;
3. Current address and telephone number;
4. Position title and date employed;
5. Verification that the staff person has received a
copy of his current job description;
6. An original criminal record report and a sworn disclosure
statement;
7. Documentation of qualifications for employment related
to the staff person's position, including any specified relevant information;
8. Verification of current professional license,
certification, registration, medication aide provisional authorization, or
completion of a required approved training course;
9. Name and telephone number of person to contact in an
emergency;
10. Documentation of orientation, training, and education
required by this chapter, including any specified relevant information
[ , with annual training requirements determined by starting date of
employment ]; and
11. Date of termination of employment.
D. Health information required by these standards shall be
maintained at the facility and be included in the staff record for each staff
person, and also shall be maintained at the facility for each household member
who comes in contact with residents.
1. Initial tuberculosis examination and report.
a. Each staff person on or within seven days prior to the
first day of work at the facility and each household member prior to coming in
contact with residents shall submit the results of a risk assessment,
documenting the absence of tuberculosis in a communicable form as evidenced by
the completion of the current screening form published by the Virginia
Department of Health or a form consistent with it.
b. The risk assessment shall be no older than 30 days.
2. Subsequent tuberculosis evaluations and reports.
a. Any staff person or household member required to be
evaluated who comes in contact with a known case of infectious tuberculosis
shall be screened as determined appropriate based on consultation with the
local health department.
b. Any staff person or household member required to be
evaluated who develops chronic respiratory symptoms of three weeks duration
shall be evaluated immediately for the presence of infectious tuberculosis.
c. Each staff person or household member required to
be evaluated shall annually submit the results of a risk assessment,
documenting that the individual is free of tuberculosis in a communicable form
as evidenced by the completion of the current screening form published by the
Virginia Department of Health or a form consistent with it.
3. Any individual suspected to have infectious tuberculosis
shall not be allowed to return to work or have any contact with the residents
and personnel of the facility until a physician has determined that the
individual is free of infectious tuberculosis.
4. The facility shall report any active case of
tuberculosis developed by a staff person or household member required to be
evaluated to the local health department.
E. Record of any vaccinations and immunizations received
as noted in 22VAC40-73-100 D.
[ F. At the request of the administrator of the facility
or the department, a report of examination by a licensed physician shall be
obtained when there are indications that the safety of residents in care may be
jeopardized by the physical or mental health of a staff person or household
member.
G. Any staff person or household member who, upon
examination or as a result of tests, shows indication of a physical or mental
condition that may jeopardize the safety of residents in care or that would
prevent performance of duties:
1. Shall be removed immediately from contact with
residents; and
2. Shall not be allowed contact with residents until the
condition is cleared to the satisfaction of the examining physician as
evidenced by a signed statement from the physician. ]
22VAC40-73-260. First aid and CPR certification.
A. First aid.
1. Each direct care staff member [ who does
not have current certification in first aid as specified in subdivision 2 of
this subsection shall receive certification in first aid within 60 days of
employment shall maintain current certification in first aid ]
from the American Red Cross, American Heart Association, National Safety
Council, American Safety and Health Institute, community college, hospital,
volunteer rescue squad, or fire department. The certification must either be in
adult first aid or include adult first aid. [ To be considered
current, first aid certification from community colleges, hospitals, volunteer
rescue squads, or fire departments shall have been issued within the past three
years. ]
2. Each direct care staff member [ shall
maintain current certification in first aid from an organization listed in
subdivision 1 of this subsection. To be considered current, first aid
certification from community colleges, hospitals, volunteer rescue squads, or
fire departments shall have been issued within the past three years. The
certification must either be in adult first aid or include adult first aid
who does not have current certification in first aid as specified in
subdivision 1 of this subsection shall receive certification in first aid
within 60 days of employment ].
3. A direct care staff member who is a registered nurse
[ or, ] licensed practical nurse [ ,
or currently certified emergency medical technician, first responder, or
paramedic ] does not have to meet the requirements of subdivisions
1 and 2 of this subsection.
4. [ There In each building,
there ] shall [ either ] be (i) at least
one staff person [ on the premises ] at all
times who has current certification in first aid that meets the specifications
of this section [ unless the facility has; or (ii) ]
an on-duty registered nurse [ or, ] licensed
practical nurse [ , or currently certified emergency medical
technician, first responder, or paramedic ].
B. Cardiopulmonary resuscitation (CPR).
1. There shall be at least one staff person [ on
the premises in each building ] at all times who has
current certification in CPR from the American Red Cross, American Heart
Association, National Safety Council, or American Safety and Health Institute,
or who has current CPR certification issued within the past two years by a
community college, hospital, volunteer rescue squad, or fire department
[ ,. ] The certification must either be in
adult CPR or include adult CPR.
2. In facilities licensed for over [ 50
100 ] residents, at least one additional staff person who meets the
requirements of subdivision 1 of this subsection shall be available for every
[ 50 100 ] residents, or portion thereof.
More staff persons who meet the requirements in subdivision 1 of this subsection
shall be available if necessary to [ assure ensure ]
quick access to residents in the event of the need for CPR.
C. A listing of all staff who have current certification
in first aid or CPR, in conformance with subsections A and B of this section, shall
be posted in the facility so that the information is readily available to all
staff at all times. The listing must indicate by staff person whether the
certification is in first aid or CPR or both and must be kept up to date.
D. A staff person with current certification in first aid
and CPR shall be present for the duration of facility-sponsored activities off
the facility premises, when facility staff are responsible for oversight of one
or more residents during the activity.
22VAC40-73-270. Direct care staff training when aggressive
or restrained residents are in care.
The following training is required for staff in assisted
living facilities that accept, or have in care, residents who are or who may be
aggressive or restrained:
1. Aggressive residents.
a. Direct care staff shall be trained in methods of dealing
with residents who have a history of aggressive behavior or of dangerously
agitated states prior to being involved in the care of such residents.
b. This training shall include, at a minimum, information,
demonstration, and practical experience in self-protection and in the
prevention and de-escalation of aggressive behavior.
2. Restrained residents.
a. Prior to being involved in the care of residents in
restraints, direct care staff shall be appropriately trained in caring for the
health needs of such residents.
b. This training shall include, at a minimum, information,
demonstration, and experience in:
(1) The proper techniques for applying and monitoring
restraints;
(2) Skin care appropriate to prevent redness, breakdown,
and decubiti;
(3) Active and active assisted range of motion to prevent
contractures;
(4) [ Assessment Observing and
reporting signs and symptoms that may be indicative of obstruction ] of
blood [ circulation to prevent obstruction of blood ]
flow [ and promote adequate blood circulation to all
in ] extremities;
(5) Turning and positioning to prevent skin breakdown and
keep the lungs clear;
(6) Provision of sufficient bed clothing and covering to
maintain a normal body temperature;
(7) Provision of additional attention to meet the physical,
mental, emotional, and social needs of the restrained resident; and
(8) Awareness of possible risks associated with restraint
use and methods of reducing or eliminating such risks.
3. The training described in subdivisions 1 and 2 of this
section shall meet the following criteria:
a. Training shall be provided by a qualified health
professional.
b. A written description of the content of this training, a
notation of the entity providing the training, and the names of direct care
staff receiving the training shall be maintained by the facility except that,
if the training is provided by the department, only a listing of direct care
staff trained and the date of training are required.
4. Refresher training for all direct care staff shall be
provided at least annually or more often as needed.
a. The refresher training shall encompass the techniques
described in subdivision 1 or 2 of this section, or both.
b. [ A record of the The ]
refresher training [ and a description of the content of the
training shall be maintained by the facility shall meet the
requirements of subdivision 3 of this section ].
Part IV
Staffing and Supervision
22VAC40-73-280. Staffing.
A. The assisted living facility shall have staff adequate
in knowledge, skills, and abilities and sufficient in numbers to provide
services to attain and maintain the physical, mental, and psychosocial well-being
of each resident as determined by resident assessments and individualized
service plans, and to [ assure ensure ] compliance
with this chapter.
B. The assisted living facility shall maintain a written
plan that specifies the number and type of direct care staff required to meet
the day-to-day, routine direct care needs and any identified special needs for
the residents in care. This plan shall be directly related to actual resident
acuity levels and individualized care needs.
C. An adequate number of staff persons shall be on the
premises at all times to implement the approved fire and emergency evacuation
plan.
D. At least one direct care staff member shall be awake
and on duty at all times in each building when at least one resident is
present.
Exception: For a facility licensed for residential living
care only, in buildings that house 19 or fewer residents, the staff member on
duty does not have to be awake during the night if (i) none of the residents
have care needs that require a staff member awake at night and (ii) the
facility ensures compliance with the requirements of 22VAC40-73-930 C.
[ E. No employee shall be permitted to work in a position
that involves direct contact with a resident until a background check has been
received as required in the Regulation for Background Checks for Assisted
Living Facilities and Adult Day Care Centers (22VAC40-90), unless such person
works under the direct supervision of another employee for whom a background
check has been completed in accordance with the requirements of the background
check regulation (22VAC40-90). ]
22VAC40-73-290. Work schedule and posting.
A. The facility shall maintain a written work schedule
that includes the names and job classifications of all staff working each
shift, with an indication of whomever is in charge at any given time.
1. Any absences, substitutions, or other changes shall be
noted on the schedule.
2. The facility shall maintain a copy of the schedule for
two years.
B. The facility shall develop and implement a procedure
for posting the name of the current on-site person in charge, as provided for
in this chapter, in a place in the facility that is conspicuous to the
residents and the public.
22VAC40-73-300. Communication among staff.
A. Procedures shall be established and reviewed with staff
for communication among administrators, designated assistant administrators,
managers, and designated staff persons in charge, as applicable to a facility,
to ensure stable operations and sound transitions.
B. A method of written communication shall be utilized as
a means of keeping direct care staff on all shifts informed of significant
happenings or problems experienced by residents, including complaints and
incidents or injuries related to physical or mental conditions.
1. A record shall be kept of the written communication for
at least the past two years.
2. The information shall be included in the records of the
involved residents.
Part V
Admission, Retention, and Discharge of Residents
22VAC40-73-310. Admission and retention of residents.
A. No resident shall be admitted or retained:
1. For whom the facility cannot provide or secure
appropriate care;
2. Who requires a level of care or service or type of
service for which the facility is not licensed or which the facility does not
provide; or
3. If the facility does not have staff appropriate in
numbers and with appropriate skill to provide the care and services needed by
the resident.
B. Assisted living facilities shall not admit an
individual before a determination has been made that the facility can meet the
needs of the [ resident individual ]. The
facility shall make the determination based upon the following information at a
minimum:
1. The completed UAI.
2. The physical examination report.
3. A documented interview between the administrator or a
designee responsible for admission and retention decisions, the [ resident
individual ], and his legal representative, if any. In some cases,
[ medical ] conditions may create special
circumstances that make it necessary to hold the interview on the date of
admission.
4. A mental health screening in accordance with
22VAC40-73-330 A.
C. An assisted living facility shall only admit or retain
[ residents individuals ] as permitted by its
use and occupancy classification and certificate of occupancy. The ambulatory
or nonambulatory status, as defined in 22VAC40-73-10, of an individual is based
upon:
1. Information contained in the physical examination
report; and
2. Information contained in the most recent UAI.
D. Based upon review of the UAI prior to admission of a
resident, the assisted living facility administrator shall provide written
assurance to the resident that the facility has the appropriate license to meet
his care needs at the time of admission. Copies of the written assurance shall
be given to the legal representative and case manager, if any, and a copy
signed by the resident or his legal representative shall be kept in the
resident's record.
E. All residents shall be 18 years of age or older.
F. No person shall be admitted without his consent and
agreement, or that of his legal representative with demonstrated legal
authority to give such consent on his behalf.
G. The facility shall not require a person to relinquish
the rights specified in § 63.2-1808 of the Code of Virginia as a condition of
admission or retention.
H. In accordance with § 63.2-1805 D of the Code of
Virginia, assisted living facilities shall not admit or retain individuals with
any of the following conditions or care needs:
1. Ventilator dependency;
2. Dermal ulcers III and IV except those stage III ulcers
that are determined by an independent physician to be healing;
3. Intravenous therapy or injections directly into the
vein, except for intermittent intravenous therapy managed by a health care
professional licensed in Virginia except as permitted in subsection K of this
section;
4. Airborne infectious disease in a communicable state that
requires isolation of the individual or requires special precautions by the
caretaker to prevent transmission of the disease, including diseases such as
tuberculosis and excluding infections such as the common cold;
5. Psychotropic medications without appropriate diagnosis
and treatment plans;
6. Nasogastric tubes;
7. Gastric tubes except when the individual is capable of
independently feeding himself and caring for the tube or as permitted in subsection
K of this section;
8. Individuals presenting an imminent physical threat or
danger to self or others;
9. Individuals requiring continuous licensed nursing care;
10. Individuals whose physician certifies that placement is
no longer appropriate;
11. Unless the individual's independent physician
determines otherwise, individuals who require maximum physical assistance as
documented by the UAI and meet Medicaid nursing facility level of care criteria
as defined in the State Plan for Medical Assistance Program (12VAC30-10); or
12. Individuals whose physical or mental health care needs
cannot be met in the specific assisted living facility as determined by the
facility.
I. When a resident has a stage III dermal ulcer that has
been determined by an independent physician to be healing, periodic observation
and any necessary dressing changes shall be performed by a licensed health care
professional under a physician's or other prescriber's treatment plan.
J. Intermittent intravenous therapy may be provided to a
resident for a limited period of time on a daily or periodic basis by a
licensed health care professional under a physician's or other prescriber's
treatment plan. When a course of treatment is expected to be ongoing and
extends beyond a two-week period, evaluation is required at two-week intervals
by the licensed health care professional.
K. At the request of the resident in an assisted living
facility and when his independent physician determines that it is appropriate,
care for the conditions or care needs (i) specified in subdivisions [ G
H ] 3 and [ G H ] 7 of this
section may be provided to the resident by a physician licensed in Virginia, a
nurse licensed in Virginia or a nurse holding a multistate licensure privilege
under a physician's treatment plan, or a home care organization licensed in
Virginia or (ii) specified in subdivision [ G H ]
7 of this section may also be provided to the resident by facility staff if
the care is delivered in accordance with the regulations of the Board of
Nursing for delegation by a registered nurse, [ 18VAC90-20-420
through 18VAC90-20-460 18VAC90-19-240 through 18VAC90-19-280 ],
and 22VAC40-73-470 E. This standard does not apply to recipients of auxiliary
grants.
L. When care for a resident's special medical needs is provided
by licensed staff of a home care agency, the assisted living facility direct
care staff may receive training from the home care agency staff in appropriate
treatment monitoring techniques regarding safety precautions and actions to
take in case of emergency. This training is required prior to direct care staff
assuming such duties. Updated training shall be provided as needed. The
training shall include content based on the resident's specific needs. [ The
training shall be documented and maintained in the staff record. ]
M. Notwithstanding § 63.2-1805 of the Code of
Virginia, at the request of the resident, hospice care may be provided in an
assisted living facility under the same requirements for hospice programs
provided in Article 7 (§ 32.1-162.1 et seq.) of Chapter 5 of Title 32.1 of
the Code of Virginia if the hospice program determines that such program is
appropriate for the resident. If hospice care is provided, there shall be a
written agreement between the assisted living facility and any hospice program
that provides care in the facility. The agreement shall include:
1. Policies and procedures to ensure appropriate
communication and coordination between the facility and the hospice program;
2. Specification of the roles and responsibilities of each
entity, including listing of the services that will generally be provided by
the facility and the services that will generally be provided by the hospice
program;
3. Acknowledgment that the services provided to each
resident shall be reflected on the individualized service plan as required in
22VAC40-73-450 D; and
4. Signatures of an authorized representative of the
facility and an authorized representative of the hospice program.
22VAC40-73-320. Physical examination and report.
A. Within the 30 days preceding admission, a person shall
have a physical examination by an independent physician. The report of such
examination shall be on file at the assisted living facility and shall contain
the following:
1. [ The person's name, address, and telephone
number;
2. ] The date of the physical examination;
[ 2. 3. ] Height, weight,
and blood pressure;
[ 3. 4. ] Significant
medical history;
[ 4. 5. ] General physical
condition, including a systems review as is medically indicated;
[ 5. 6. ] Any diagnosis or
significant problems;
[ 6. 7. ] Any known
allergies and description of the person's reactions;
[ 7. 8. ] Any
recommendations for care including medication, diet, and therapy;
[ 8. 9. ] Results of a risk
assessment documenting the absence of tuberculosis in a communicable form as
evidenced by the completion of the current screening form published by the
Virginia Department of Health or a form consistent with it;
[ 9. 10. ] A statement that
the individual does not have any of the conditions or care needs prohibited by
22VAC40-73-310 H;
[ 10. 11. ] A statement that
specifies whether the individual is considered to be ambulatory or
nonambulatory [ as defined in this chapter ];
[ 11. 12. ] A statement that
specifies whether the individual is or is not capable of self-administering
medication; and
[ 12. 13. ] The signature of
the examining physician or his designee.
B. Subsequent tuberculosis evaluations.
1. A risk assessment for tuberculosis shall be completed
annually on each resident as evidenced by the completion of the current
screening form published by the Virginia Department of Health or a form
consistent with it.
2. Any resident who comes in contact with a known case of
infectious tuberculosis shall be screened as deemed appropriate in consultation
with the local health department.
3. Any resident who develops respiratory symptoms of three
or more weeks duration with no medical explanation shall be referred for
evaluation for the presence of infectious tuberculosis.
4. If a resident develops an active case of tuberculosis,
the facility shall report this information to the local health department.
C. As necessary to determine whether a resident's needs
can continue to be met in the assisted living facility, the department may
request a current physical examination [ by an independent
physician ] or psychiatric evaluation [ by an
independent physician ], including diagnosis and assessments.
22VAC40-73-325. Fall risk [ assessment
rating ].
A. For residents who meet the criteria for assisted living
care, by the time the comprehensive ISP is completed, a [ written ]
fall risk [ assessment rating ] shall
be [ conducted completed ].
B. The fall risk [ assessment
rating ] shall be reviewed and updated [ under each of
the following circumstances ]:
1. At least annually;
2. When the condition of the resident changes; and
3. After a fall.
C. Should a resident [ who meets the criteria
for assisted living care ] fall, the facility must show
documentation of an analysis of the circumstances of the fall and interventions
that were initiated to prevent or reduce [ additional
risk of subsequent ] falls.
22VAC40-73-330. Mental health screening.
A. A mental health screening shall be conducted prior to
admission if behaviors or patterns of behavior occurred within the previous six
months that were indicative of mental illness, intellectual disability,
substance abuse, or behavioral disorders and that caused, or continue to cause,
concern for the health, safety, or welfare either of that individual or others who
could be placed at risk of harm by that individual.
Exceptions:
1. If it is not possible for the screening to be conducted
prior to admission, the individual may be admitted if all other admission
requirements are met. The reason for the delay shall be documented and the
screening shall be conducted as soon as possible, but no later than 30 days
after admission.
2. The screening shall not be required for individuals
under the care of a qualified mental health professional immediately prior to
admission, as long as there is documentation of the person's psychosocial and
behavioral functioning as specified in 22VAC40-73-340 A 1.
B. A mental health screening shall be conducted when a
resident displays behaviors or patterns of behavior indicative of mental illness,
intellectual disability, substance abuse, or behavioral disorders that cause
concern for the health, safety, or welfare of either that [ individual
resident ] or others who could be placed at risk of harm by the [ individual
resident ].
C. The mental health screening shall be conducted by a
qualified mental health professional having no financial interest in the
assisted living facility, directly or indirectly as an owner, officer,
employee, or as an independent contractor with the facility.
D. A copy of the screening shall be filed in the
resident's record.
E. If the screening indicates a need for mental health,
intellectual disability, substance abuse, or behavioral disorder services for
the resident, the facility shall provide:
1. Notification of the resident's need for such services to
the community services board, behavioral health authority, or other appropriate
licensed provider identified by the resident or his legal representative; and
2. Notification to the resident, authorized contact person
of record, and physician of record that mental health services have been
recommended for the resident.
22VAC40-73-340. Psychosocial and behavioral history.
A. When determining appropriateness of admission for an
individual with mental illness, intellectual disability, substance abuse, or
behavioral disorders, the following information shall be obtained by the
facility:
1. If the prospective resident is referred by a state or
private hospital, community services board, behavioral health authority, or long-term
care facility, documentation of the individual's psychosocial and behavioral
functioning shall be acquired [ prior to admission ].
2. If the prospective resident is coming from a private
residence, information about the individual's psychosocial and behavioral
functioning shall be gathered from primary sources, such as family members
[ or, ] friends [ , or
physician ]. Although there is no requirement for written
information from primary sources, the facility must document the source and
content of the information that was obtained.
B. The administrator or his designee shall document that
the individual's psychosocial and behavioral history were reviewed and used to
help determine the appropriateness of the admission.
C. If the individual is admitted, the psychosocial and
behavioral history shall be used in the development of the person's
individualized service plan and documentation of the history shall be filed in
the [ resident's ] record.
22VAC40-73-350. Sex offender information.
A. The assisted living 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 facility is located, pursuant to § 9.1-914 of the Code
of Virginia.
B. The assisted living facility shall ascertain, prior to
admission, whether a potential resident is a registered sex offender if the
facility anticipates the potential resident will have a length of stay greater
than three days or in fact stays longer than three days and shall document in
the resident's record that this was ascertained and the date the information
was obtained.
C. The assisted living facility shall ensure that each
resident or his legal representative is fully informed, prior to or at the time
of admission and annually, that he should exercise whatever due diligence he
deems necessary with respect to information on any sex offenders registered
pursuant to Chapter 9 (§ 9.1-900 et. seq.) of Title 9.1 of the Code of
Virginia, including how to obtain such information. Written acknowledgment of
having been so informed shall be provided by the resident or his legal
representative and shall be maintained in the resident's record.
D. At the same time that the person is informed as required
in subsection C of this section, the assisted living facility shall provide
notification that, upon request, the facility shall:
1. Assist the resident, prospective resident, or his legal
representative in accessing the information on registered sex offenders; and
2. Provide the resident, prospective resident, or his legal
representative with printed copies of the information on registered sex
offenders.
22VAC40-73-360. Emergency placement.
A. An emergency placement shall occur only when the
emergency is documented and approved by (i) an adult protective services worker
for public pay individuals or (ii) an independent physician or an adult
protective services worker for private pay individuals.
B. When an emergency placement occurs, the person shall remain
in the assisted living facility no longer than seven days unless all the
requirements for admission have been met and the person has been admitted.
C. The facility shall obtain sufficient information on the
person to protect the health, safety, and welfare of the [ individual
person ] while he remains at the facility as allowed by subsection
B of this section.
22VAC40-73-370. Respite care.
If an assisted living facility provides respite care as
defined in 22VAC40-73-10, the requirements of this chapter apply to the respite
care, except as follows:
1. For individuals in respite care, the ISP shall be
completed prior to the person participating in respite care and need not
include expected outcome.
2. [ Each At the ] time
an individual returns for respite care, the facility shall reevaluate the
person's condition [ and care needs, ] and as
needed, ensure that the uniform assessment instrument [ and, ]
the individualized service plan [ , and medication
orders ] are updated. The reevaluation shall include [ ,
but not be limited to, ] observation of the person; interviews
with the individual and his legal representative, if any; and consultation with
others knowledgeable about the person, as appropriate. [ The
reevaluation shall indicate in writing whether or not the person's condition or
care needs have changed and specify any changes. The reevaluation shall be
signed and dated by the staff person completing the reevaluation and by the
individual in respite care or his legal representative and shall be retained in
the individual's record. ]
3. If the period of time between respite care stays is six
months or longer, a new physical examination report shall be required prior to
the individual returning for respite care [ , except that a new
tuberculosis screening would only be required one time per year ].
The examination shall take place within 30 days prior to the person's return
for respite care.
4. The record for the individual in respite care shall
include the dates of respite care.
5. The medication review required by 22VAC40-73-690 does
not apply to individuals in respite care.
22VAC40-73-380. Resident personal and social information.
A. Prior to or at the time of admission to an assisted
living facility, the following personal and social information on a person
shall be obtained:
1. Name;
2. Last home address, and address from which resident was
received, if different;
3. Date of admission;
4. Birth date or if unknown, estimated age;
5. Birthplace, if known;
6. Marital status, if known;
7. Name, address, and telephone number of all legal
representatives, if any;
8. If there is a legal representative, copies of current
legal documents that show proof of each legal representative's authority to act
on behalf of the resident and that specify the scope of the representative's
authority to make decisions and to perform other functions;
9. Name, address, and telephone number of next of kin, if
known (two preferred);
10. Name, address, and telephone number of designated
contact person authorized by the resident or legal representative, if
appropriate, for notification purposes, including emergency notification and
notification of the need for mental health, intellectual disability, substance
abuse, or behavioral disorder services - if the resident or legal representative
is willing to designate an authorized contact person. There may be more than
one designated contact person. The designated contact person may also be listed
under another category, such as next of kin or legal representative;
11. Name, address, and telephone number of the responsible
individual stipulated in 22VAC40-73-550 H, if needed;
12. Name, address, and telephone number of personal
physician, if known;
13. Name, address, and telephone number of personal
dentist, if known;
14. Name, address, and telephone number of clergyman and
place of worship, if applicable;
15. Name, address, and telephone number of local department
of social services or any other agency, if applicable, and the name of the
assigned case manager or caseworker;
16. Service in the armed forces, if applicable;
17. Lifetime vocation, career, or primary role;
18. Special interests and hobbies;
19. Known allergies, if any;
20. Information concerning advance directives, Do Not
Resuscitate (DNR) Orders, or organ donation, if applicable; [ and
21. For residents who meet the criteria for assisted
living care, the additional information in subdivisions a, b, and c of this
subdivision 21:
a. 21. ] Previous mental health
or intellectual disability services history, if any, and if applicable for care
or services;
[ b. 22. ] Current
behavioral and social functioning including strengths and problems; and
[ c. 23. ] Any substance
abuse history if applicable for care or services.
B. The personal and social information required in
subsection A of this section shall be placed in the [ individual's
person's record and kept current ].
22VAC40-73-390. Resident agreement with facility.
A. At or prior to the time of admission, there shall be a
written [ agreement or written acknowledgment
agreement/acknowledgment ] of notification dated and signed by the
resident or applicant for admission or the appropriate legal representative,
and by the licensee or administrator. This document shall include the
following:
1. Financial arrangement for accommodations, services, and
care that specifies:
a. Listing of specific charges for accommodations,
services, and care to be made to the individual resident signing the agreement,
the frequency of payment, and any rules relating to nonpayment;
b. Description of all accommodations, services, and care
that the facility offers and any related charges;
c. For an auxiliary grant recipient, a list of services
included under the auxiliary grant rate;
d. The amount and purpose of an advance payment or deposit
payment and the refund policy for such payment, except that recipients of
auxiliary grants may not be charged an advance payment or deposit payment;
e. The policy with respect to increases in charges and
length of time for advance notice of intent to increase charges;
f. If the ownership of any personal property, real estate,
money or financial investments is to be transferred to the facility at the time
of admission or at some future date, it shall be stipulated in the agreement;
and
g. The refund policy to apply when transfer of ownership,
closing of facility, or resident transfer or discharge occurs.
2. Requirements or rules to be imposed regarding resident
conduct and other restrictions or special conditions.
3. Those actions, circumstances, or conditions that would
result or might result in the resident's discharge from the facility.
4. [ Signed Specific ] acknowledgments
that:
a. Requirements or rules regarding resident conduct, other
restrictions, or special conditions have been reviewed by the resident or his
legal representative;
b. The resident or his legal representative has been
informed of the policy regarding the amount of notice required when a resident
wishes to move from the facility;
c. The resident has been informed of the policy required by
22VAC40-73-840 regarding pets living in the facility;
d. The resident has been informed of the policy required by
22VAC40-73-860 K regarding weapons;
e. The resident or his legal representative or responsible
individual as stipulated in 22VAC40-73-550 H has reviewed § 63.2-1808 of
the Code of Virginia, Rights and Responsibilities of Residents of Assisted
Living Facilities, and that the provisions of this statute have been explained
to him;
f. The resident or his legal representative or responsible
individual as stipulated in 22VAC40-73-550 H has reviewed and had explained to
him the facility's policies and procedures for implementing § 63.2-1808 of
the Code of Virginia [ , including the grievance policy and the
transfer or discharge policy ];
g. [ The resident has been informed and had
explained to him that he may refuse release of information regarding his
personal affairs and records to any individual outside the facility, except as
otherwise provided in law and except in case of his transfer to another caregiving
facility, notwithstanding any requirements of this chapter;
h. ] The resident has been informed that
interested residents may establish and maintain a resident council, that the
facility is responsible for providing assistance with the formation and maintenance
of the council, whether or not such a council currently exists in the facility,
and the general purpose of a resident council (See 22VAC40-73-830);
[ h. i. ] The resident has
been informed of the bed hold policy in case of temporary transfer or movement
from the facility, if the facility has such a policy (See 22VAC40-73-420 B);
[ I. j. ] The resident has
been informed of the policy or guidelines regarding visiting in the facility,
if the facility has such a policy or guidelines (See 22VAC40-73-540 C);
[ j. k. ] The resident has
been informed of the rules and restrictions regarding smoking on the premises
of the facility, including [ but not limited to ] that
which is required by 22VAC40-73-820;
[ k. l. ] The resident has
been informed of the policy regarding the administration and storage of
medications and dietary supplements; and
[ l. m. ] The resident has
received written assurance that the facility has the appropriate license to
meet his care needs at the time of admission, as required by 22VAC40-73-310 D.
B. Copies of the signed [ agreement or
acknowledgment of notification agreement/acknowledgment and any
updates as noted in subsection C of this section ] shall be
provided to the resident and, as appropriate, his legal representative and shall
be retained in the resident's record.
C. The original [ agreement
agreement/acknowledgment ] shall be updated whenever there are changes
[ in financial arrangements, accommodations, services, care provided
by the facility, requirements governing the resident's conduct, other
restrictions, or special conditions, to any of the policies or
information referenced or identified in the agreement/acknowledgment and dated ]
and signed by the licensee or administrator and the resident or his legal
representative. [ If the original agreement provides for
specific changes in any of these items, this standard does not apply to those
changes. ]
22VAC40-73-400. Monthly statement of charges and payments.
The facility shall provide to each resident or the
resident's legal representative, if one has been appointed, a monthly statement
that itemizes any charges made by the facility and any payments received from
the resident or on behalf of the resident during the previous calendar month
and shall show the balance due or any credits for overpayment. The facility
shall also place a copy of the monthly statement in the resident's record.
22VAC40-73-410. Orientation and related information for
residents.
A. Upon admission, the assisted living facility shall
provide an orientation for new residents and their legal representatives,
including [ but not limited to, ] emergency
response procedures, mealtimes, and use of the call system. If needed, the
orientation shall be modified as appropriate for residents with cognitive impairments.
Acknowledgment of having received the orientation shall be signed and dated by
the resident and, as appropriate, his legal representative, and such
documentation shall be kept in the resident's record.
B. Upon admission and upon request, the assisted living
facility shall provide to the resident and, if appropriate, his legal
representative, a written description of the types of staff persons working in
the facility and the services provided, including the hours such services are
available.
22VAC40-73-420. Acceptance back in facility.
A. An assisted living facility shall establish procedures
to ensure that any resident detained by a temporary detention order pursuant to
§§ 37.2-809 through 37.2-813 of the Code of Virginia is accepted back in
the assisted living facility if the resident is not involuntarily committed
pursuant to §§ 37.2-814 through 37.2-819 of the Code of Virginia. The
procedures shall include [ , but not be limited to ]:
1. Obtaining written recommendations from a qualified
mental health professional regarding supportive services necessary to address
the mental health needs of the resident returning to the facility;
2. Documenting whether the recommendations specified in
subdivision 1 of this subsection can be implemented based on facility or
community resources and whether the resident can be retained at the facility or
would need to be discharged;
3. Updating the resident's individualized service plan, as
needed; and
4. Ensuring that direct care staff involved in the care and
supervision of the resident receive clear and timely communication regarding
their responsibilities in respect to the mental health needs of the resident
and behavioral or emotional indicators of possible crisis situations.
B. If an assisted living facility allows for temporary
movement of a resident with agreement to hold a bed, it shall develop and
follow a written bed hold policy, which includes [ , but is not
limited to, ] the conditions for which a bed will be held, any
time frames, terms of payment, and circumstances under which the bed will no
longer be held. [ For recipients of an auxiliary grant, the bed
hold policy must be consistent with auxiliary grant program policy and
guidance. ]
22VAC40-73-430. Discharge of residents.
A. When actions, circumstances, conditions, or care needs
occur that will result in the discharge of a resident, discharge planning shall
begin immediately, and there shall be documentation of such, including the
beginning date of discharge planning. The resident shall be moved within 30
days, except that if persistent efforts have been made and the time frame is
not met, the facility shall document the reason and the efforts that have been
made.
B. As soon as discharge planning begins, the assisted
living facility shall notify the resident, the resident's legal representative
and designated contact person if any, of the planned discharge, the reason for
the discharge, and that the resident will be moved within 30 days unless there
are extenuating circumstances relating to inability to place the resident in
another setting within the time frame referenced in subsection A of this
section. Written notification of the actual discharge date and place of
discharge shall be given to the resident, the resident's legal representative
and contact person, if any, and additionally for public pay residents, the
eligibility worker and assessor, at least 14 days prior to the date that the
resident will be discharged.
C. The assisted living facility shall adopt and conform to
a written policy regarding the number of days notice that is required when a
resident wishes to move from the facility. Any required notice of intent to
move shall not exceed 30 days.
D. The facility shall assist the resident and his legal
representative, if any, in the discharge or transfer process. The facility
shall help the resident prepare for relocation, including discussing the
resident's destination. Primary responsibility for transporting the resident
and his possessions rests with the resident or his legal representative.
E. When a resident's condition presents an immediate and
serious risk to the health, safety, or welfare of the resident or others and
emergency discharge is necessary, [ the ] 14-day
[ advance ] notification of planned discharge does not
apply, although the reason for the relocation shall be discussed with the
resident and, when possible, his legal representative prior to the move.
F. Under emergency conditions, the resident's legal
representative, designated contact person, family, caseworker, social worker,
or any other persons, as appropriate, shall be informed as rapidly as possible,
but [ by no later than ] the close of the
day following discharge, of the reasons for the move. For public pay residents,
the eligibility worker and assessor shall also be [ so ] informed
[ of the emergency discharge ] within the same time frame.
No later than five days after discharge, the information shall be provided in
writing to all those notified.
G. For public pay residents, in the event of a resident's
death, the assisted living facility shall provide written notification to the
eligibility worker and assessor within five days after the resident's death.
H. Discharge statement.
1. At the time of discharge, the assisted living facility
shall provide to the resident and, as appropriate, his legal representative and
designated contact person a dated statement signed by the licensee or
administrator that contains the following information:
a. The date on which the resident, his legal representative,
or designated contact person was notified of the planned discharge and the name
of the legal representative or designated contact person who was notified;
b. The reason or reasons for the discharge;
c. The actions taken by the facility to assist the resident
in the discharge and relocation process; and
d. The date of the actual discharge from the facility and
the resident's destination.
2. [ When the termination of care is due to
emergency conditions, the dated statement shall contain the information in
subdivisions 1 a through 1 d of this subsection as appropriate and shall be
provided or mailed to the resident, his legal representative, or designated
contact person within 48 hours from the time of the decision to discharge. 3.
A copy of the written statement shall be retained in the resident's record.
I. When the resident is discharged and moves to another
caregiving facility, the assisted living facility shall provide to the
receiving facility such information related to the resident as is necessary to
ensure continuity of care and services. Original information pertaining to the
resident shall be maintained by the assisted living facility from which the
resident was discharged. The assisted living facility shall maintain a listing
of all information shared with the receiving facility.
J. Within 60 days of the date of discharge, each resident
or his legal representative shall be given a final statement of account, any
refunds due, and return of any money, property, or things of value held in
trust or custody by the facility.
Part VI
Resident Care and Related Services
22VAC40-73-440. Uniform assessment instrument (UAI).
A. All residents of and applicants to assisted living
facilities shall be assessed face to face using the uniform assessment
instrument in accordance with Assessment in Assisted Living Facilities
(22VAC30-110). The UAI shall be completed prior to admission, at least
annually, and whenever there is a significant change in the resident's
condition.
B. [ For private pay individuals, the UAI shall
be completed by one of the following qualified assessors:
1. An assisted living facility staff person who has
successfully completed state-approved training on the uniform assessment
instrument and level of care criteria for either public or private pay
assessments, provided the administrator or the administrator's designated
representative has successfully completed such training and approves and then
signs the completed UAI, and the facility maintains documentation of completed
training;
2. An independent physician; or
3. A qualified public human services agency assessor.
C. For a private pay individual, if the UAI is completed
by an independent physician or a qualified human services agency assessor, the
assisted living facility shall be responsible for coordinating with the
physician or the agency assessor to ensure that the UAI is completed as
required.
D. For private pay individuals, the assisted living
facility shall ensure that the uniform assessment instrument is completed as
required by 22VAC30-110.
E. For public pay individuals, the UAI shall be completed
by a case manager or qualified assessor as specified in 22VAC30-110.
F. ] The UAI shall be completed within 90 days
prior to admission to the assisted living facility, except that if there has
been a change in the resident's condition since the completion of the UAI that
would affect the admission, a new UAI shall be completed.
[ C. G. ] When a resident
moves to an assisted living facility from another assisted living facility or
other long-term care setting that uses the UAI, if there is a completed UAI on
record, another UAI does not have to be completed except that a new UAI shall
be completed whenever:
1. There is a significant change in the resident's
condition; or
2. The previous assessment is more than 12 months old.
[ D. H. ] Annual reassessments and
reassessments due to a significant change in the resident's condition, using
the UAI, shall be utilized to determine whether a resident's needs can continue
to be met by the facility and whether continued placement in the facility is in
the best interest of the resident.
[ E. I. ] During an
inspection or review, staff from the department, the Department of Medical
Assistance Services, or the local department of social services may initiate a
change in level of care for any assisted living facility resident for whom it
is determined that the resident's UAI is not reflective of the resident's
current status.
[ F. J. ] At the request of
the assisted living facility, the resident's legal representative, the
resident's physician, the department, or the local department of social
services an independent assessment using the UAI shall be completed to
determine whether the resident's care needs are being met in the assisted
living facility. The assisted living facility shall assist in obtaining the
independent assessment as requested. An independent assessment is one that is
completed by a qualified entity other than the original assessor.
[ G. For private pay individuals, the assisted
living facility shall ensure that the uniform assessment instrument is
completed as required by 22VAC30-110.
H. For a private pay resident, if the UAI is completed
by an independent physician or a qualified human services agency assessor, the
assisted living facility shall be responsible for coordinating with the
physician or the agency assessor to ensure that the UAI is completed as
required.
I. K. ] The assisted living
facility shall be in compliance with the requirements set forth in 22VAC30-110.
[ J. L. ] The facility
shall maintain the completed UAI in the resident's record.
22VAC40-73-450. Individualized service plans.
A. On [ or within seven days prior to ]
the day of admission, [ unless a comprehensive individualized
service plan is completed during that time, ] a preliminary
plan of care shall be developed to address the basic needs of the resident
[ , which that ] adequately protects his
health, safety, and welfare. The preliminary plan shall be developed by a staff
person with the qualifications specified in subsection B of this section and in
conjunction with the resident, and, as appropriate, other individuals noted in
subdivision B 1 of this section. [ The preliminary plan shall be
identified as such and be signed and dated by the licensee, administrator, or
his designee (i.e., the person who has developed the plan), and by the resident
or his legal representative.
Exception: A preliminary plan of care is not necessary if
a comprehensive individualized service plan is developed, in conformance with
this section, on the day of admission. ]
B. The licensee, administrator, or his designee who has
successfully completed the department-approved individualized service plan
(ISP) training, provided by a licensed health care professional practicing
within the scope of his profession, shall develop a comprehensive ISP to meet
the resident's service needs. [ State approved private pay UAI
training must be completed as a prerequisite to ISP training. ] An
individualized service plan is not required for those residents who are
assessed as capable of maintaining themselves in an independent living status.
1. The licensee, administrator, or designee shall develop
the ISP in conjunction with the resident and, as appropriate, with the
resident's family, legal representative, direct care staff members, case
manager, health care providers, qualified mental health professionals, or other
persons.
2. The plan shall [ reflect the
resident's assessed needs and ] support the principles of
individuality, personal dignity, freedom of choice, and home-like environment
and shall include other formal and informal supports [ in addition
to those included in subdivision C 2 of this section ] that may
participate in the delivery of services. Whenever possible, residents shall be
given a choice of options regarding the type and delivery of services.
3. The plan shall be designed to maximize the resident's
level of functional ability.
C. The comprehensive individualized service plan shall be
completed within 30 days after admission and shall include the following:
1. Description of identified needs and date identified
based upon the (i) UAI; (ii) admission physical examination; (iii) interview
with resident; (iv) fall risk assessment, if appropriate; (v) assessment of
psychological, behavioral, and emotional functioning, if appropriate; and (vi)
other sources;
2. A written description of what services will be provided
to address identified needs, and if applicable, other services, and who will
provide them;
3. When and where the services will be provided;
4. The expected outcome and time frame for expected
outcome;
5. Date outcome achieved; and
6. For a facility licensed for residential living care
only, if a resident lives in a building housing 19 or fewer residents, a
statement that specifies whether the [ person
resident ] does [ need ] or does not
need to have a staff member awake and on duty at night.
D. When hospice care is provided to a resident, the
assisted living facility and the licensed hospice organization shall
communicate and establish [ and agree an agreed ]
upon [ a ] coordinated plan of care for the
resident. The services provided by each shall be included on the individualized
service plan.
E. The individualized service plan shall be signed and
dated by the licensee, administrator, or his designee, (i.e., the person who
has developed the plan), and by the resident or his legal representative. The
plan shall also indicate any other individuals who contributed to the
development of the plan, with a notation of the date of contribution. The title
or relationship to the resident of each person who was involved in the
development of the plan shall be [ so noted included ].
These requirements shall also apply to reviews and updates of the plan.
F. Individualized service plans shall be reviewed and
updated at least once every 12 months and as needed as the condition of the
resident changes. The review and update shall be performed by a staff person
with the qualifications specified in subsection B of this section and in
conjunction with the resident and, as appropriate, with the resident's family,
legal representative, direct care staff, case manager, health care providers,
qualified mental health professionals, or other persons.
G. The master service plan shall be filed in the resident's
record. A current copy shall be provided to the resident and shall also be
maintained in a location accessible at all times to direct care staff, but that
protects the confidentiality of the contents of the service plan. Extracts from
the plan may be filed in locations specifically identified for their retention.
H. The facility shall ensure that the care and services
specified in the individualized service plan are provided to each resident,
except that:
1. There may be a deviation from the plan when mutually
agreed upon between the facility and the resident or the resident's legal
representative at the time the care or services are scheduled or when there is
an emergency that prevents the care or services from being provided.
2. Deviation from the plan shall be documented in writing,
including a description of the circumstances, the date it occurred, and the
signatures of the parties involved, and the documentation shall be retained in
the resident's record.
3. The facility may not start, change, or discontinue
medications, dietary supplements, diets, medical procedures, or treatments
without an order from a physician or other prescriber.
22VAC40-73-460. Personal care services and general
supervision and care.
A. The facility shall assume general responsibility for
the health, safety, and well-being of the residents.
B. Care provision and service delivery shall be
resident-centered to the maximum extent possible and include:
1. Resident participation in decisions regarding the care
and services provided to him;
2. Personalization of care and services tailored to the
resident's circumstances and preferences; and
3. Prompt response by staff to resident needs as reasonable
to the circumstances.
C. Care shall be furnished in a way that fosters the
independence of each resident and enables him to fulfill his potential.
D. The facility shall provide supervision of resident
schedules, care, and activities, including attention to specialized needs, such
as prevention of falls and wandering from the premises.
E. The facility shall regularly observe each resident for
changes in physical, mental, emotional, and social functioning.
1. Any notable change in a resident's condition or
functioning, including illness, injury, or altered behavior, and [ any
corresponding ] action taken shall be documented in the resident's
record.
2. The facility shall provide appropriate assistance when
observation reveals unmet needs.
F. The facility shall notify the next of kin, legal
representative, designated contact person, or, if applicable, any responsible
social agency of any incident of a resident falling or wandering from the
premises, whether or not it results in injury. This notification shall occur as
soon as possible but [ at least within no later than ]
24 hours from the time of initial discovery or knowledge of the incident.
The resident's record shall include documentation of the notification,
including date, time, caller, and person or agency notified.
Exception: If the whereabouts of a resident are unknown
and there is reason to be concerned about his safety, the facility shall
immediately notify the appropriate law-enforcement agency. The facility shall
also immediately notify the resident's next of kin, legal representative,
designated contact person, or, if applicable, any responsible social agency.
G. The facility shall provide care and services to each
resident by staff who are able to communicate with the resident in a language
the resident understands or shall make provisions for communications between
staff and residents to ensure an accurate exchange of information.
H. The facility shall ensure that personal assistance and
care are provided to each resident as necessary so that the needs of the
resident are met, including [ but not limited to ] assistance
or care with:
1. The activities of daily living:
a. Bathing - at least twice a week, but more often if
needed or desired;
b. Dressing;
c. Toileting;
d. Transferring;
e. Bowel control;
f. Bladder control; and
g. [ Eating or feeding
Eating/feeding ];
2. The instrumental activities of daily living:
a. Meal preparation;
b. Housekeeping;
c. Laundry; and
d. Managing money;
3. Ambulation;
4. Hygiene and grooming:
a. Shampooing, combing, and brushing hair;
b. Shaving;
c. Trimming fingernails and toenails (certain medical
conditions necessitate that this be done by a licensed health care
professional);
d. Daily tooth brushing and denture care; and
e. Skin care at least twice daily for those with limited
mobility; and
5. Functions and tasks:
a. Arrangements for transportation;
b. Arrangements for shopping;
c. Use of the telephone; and
d. Correspondence.
I. Each resident shall be dressed in clean clothing and be
free of odors related to hygiene. Each resident shall be encouraged to wear day
clothing when out of bed.
J. Residents who are incontinent shall have a full or
partial bath and clean clothing and linens each time their clothing or bed
linen is soiled or wet.
K. The facility shall ensure each resident is able to
obtain individually preferred personal care items when:
1. The preferred personal care items are reasonably
available; and
2. The resident is willing and able to pay for the
preferred items.
22VAC40-73-470. Health care services.
A. The facility shall ensure, either directly or
indirectly, that the health care service needs of residents are met. The ways
in which the needs may be met include [ , but are not limited to ]:
1. Staff of the facility providing health care services;
2. Persons employed by a resident providing health care
services; or
3. The facility assisting residents in making appropriate
arrangements for health care services.
a. When a resident is unable to participate in making
appropriate arrangements, the resident's family, legal representative,
designated contact person, cooperating social agency, or personal physician
shall be notified of the need.
b. When mental health care is needed or desired by a
resident, this assistance shall include securing the services of the local
community services board, [ behavioral health authority, ]
state or federal mental health clinic, or similar facility or agent in the
private sector.
B. A resident's need for skilled nursing treatments within
the facility shall be met by the facility's employment of a licensed nurse or
contractual agreement with a licensed nurse, or by a home health agency or by a
private duty licensed nurse.
C. Services shall be provided to prevent clinically
avoidable complications, including [ but not limited to ]:
1. Pressure ulcer development or worsening of an ulcer;
2. Contracture;
3. Loss of continence;
4. Dehydration; and
5. Malnutrition.
D. The facility shall develop and implement a written
policy to ensure that staff are made aware of [ allergies and
allergic reactions and ] any life-threatening conditions of
residents, [ including but not limited to allergic reactions, ]
and actions that staff may need to take.
E. When care for gastric tubes is provided to a resident
by unlicensed direct care facility staff as allowed in clause (ii) of
22VAC40-73-310 K, the following criteria shall be met:
1. Prior to the care being provided, the facility shall
obtain an informed consent, signed by the resident or his legal representative,
that includes at a minimum acknowledgment that:
a. An unlicensed person will routinely be providing the
gastric tube care and feedings under the delegation of a registered nurse (RN)
who has assessed the resident's care needs and the unlicensed person's ability
to safely and adequately meet those needs;
b. Delegation means the RN need not be present in the
facility during routine gastric tube care and feedings;
c. Registered medication aides are prohibited from
administering medications via gastric tubes and medications may only be
administered by licensed personnel (e.g., a licensed practical nurse (LPN) or
RN);
d. The tube care and feedings provided to the resident and
the supervisory oversight provided by the delegating RN will be reflected on
the individualized service plan as required in 22VAC40-73-450; and
e. The signed consent shall be maintained in the resident's
record.
2. Only those direct care staff with written approval from
the delegating [ nurse RN ] may provide the
tube care and feedings. In addition to the approval, the RN shall document:
a. The general and resident-specific instructions he
provided to the staff person; and
b. The staff person's successful demonstration of
competency in tube care,
3. The delegating RN shall be employed by or under contract
with the licensed assisted living facility and shall have supervisory
authority over the direct care staff being approved to provide gastric tube
care and feedings.
4. The supervisory responsibilities of the delegating [ nurse
RN ] include [ , but are not limited to ]:
a. Monitoring the direct care staff performance related to
the delegated tasks;
b. Evaluating the outcomes for the resident;
c. Ensuring appropriate documentation; and
d. Documenting relevant findings and recommendations.
5. The delegating RN shall schedule supervisory oversight
based upon the following criteria:
a. The stability and condition of the resident;
b. The experience and competency of the unlicensed direct
care staff person;
c. The nature of the tasks or procedures being delegated;
and
d. The proximity and availability of the delegating
[ nurse RN ] to the unlicensed direct care
staff person when the nursing tasks will be performed.
6. Prior to allowing direct care staff to independently
perform care for gastric tubes as provided for in this subsection, [ each
person such staff ] must be able to successfully
demonstrate performance of the entire procedure correctly while under direct
observation of the delegating RN. Subsequently, each [ person
direct care staff ] shall be directly observed no less than monthly
for at least three consecutive months, after which direct observation shall be
conducted no less than every six months or more often if indicated. The
delegating RN shall retain documentation at the facility of all supervisory
activities and direct observations of staff.
7. Contact information for the delegating RN shall be
readily available to all staff responsible for tube feedings when an RN or LPN
is not present in the facility.
8. Written protocols that encompass the basic policies and
procedures for the performance of gastric tube feedings, as well as any
resident-specific instructions, shall be available to any direct care staff
member responsible for tube feedings.
9. The facility shall have a written back-up plan to ensure
that [ a an RN, LPN, or ] person who is
qualified as specified in this subsection is available if the direct care staff
member who usually provides the care is absent.
F. When the resident suffers serious accident, injury,
illness, or medical condition, or there is reason to suspect that such has
occurred, medical attention from a licensed health care professional shall be
secured immediately. The circumstances involved and the medical attention
received or refused shall be documented in the resident's record. The date and
time of occurrence, as well as the personnel involved shall be included in the
documentation.
1. The resident's physician, if not already involved, next
of kin, legal representative, designated contact person, case manager, and any
responsible social agency, as appropriate, shall be notified as soon as
possible but [ at least within no later than ]
24 hours [ of from ] the situation and
action taken, or if applicable, the resident's refusal of medical attention. If
a resident refuses medical attention, the resident's physician shall be
notified immediately.
2. A notation shall be made in the resident's record of
such notice, including the date, time, caller, and person notified.
G. If a resident refuses medical attention, the facility
shall assess whether it can continue to meet the resident's needs.
22VAC40-73-480. Restorative, habilitative, and
rehabilitative services.
A. Facilities shall [ assure
ensure ] that all restorative care and habilitative service needs
of the residents are met. Facilities shall coordinate with appropriate
professional service providers and ensure that any facility staff who assist
with support for these service needs are trained by and receive direction from
qualified professionals. Restorative and habilitative care includes [ ,
but is not limited to, ] range of motion, assistance with
ambulation, positioning, assistance and instruction in the activities of daily
living, psychosocial skills training, and reorientation and reality
orientation.
B. In the provision of restorative and habilitative care,
staff shall emphasize services such as the following:
1. Making every effort to keep residents active, within the
limitations set by physicians' or other prescribers' orders;
2. Encouraging residents to achieve independence in the
activities of daily living;
3. Assisting residents to adjust to their disabilities, to
use their prosthetic devices, and to redirect their interests if they are no
longer able to maintain past involvement in particular activities;
4. Assisting residents to carry out prescribed physical
therapy exercises between appointments with the physical therapist; and
5. Maintaining a bowel and bladder training program.
C. Facilities shall arrange for specialized rehabilitative
services by qualified personnel as needed by the resident. Rehabilitative
services include physical therapy, occupational therapy, and speech-language
pathology services. Rehabilitative services may be indicated when the resident
has lost or has shown a change in his ability to respond to or perform a given
task and requires professional rehabilitative services in an effort to regain
lost function. Rehabilitative services may also be indicated to evaluate the
appropriateness and individual response to the use of assistive technology.
D. All rehabilitative services rendered by a
rehabilitative professional shall be performed only upon written medical
referral by a physician or other qualified health care professional.
E. The physician's or other prescriber's orders, services
provided, evaluations of progress, and other pertinent information regarding
the rehabilitative services shall be recorded in the resident's record.
F. Direct care staff who are involved in the care of
residents using assistive devices shall know how to operate and utilize the
devices.
22VAC40-73-490. Health care oversight.
A. Each assisted living facility shall retain a licensed
health care professional who has at least two years of experience as a health
care professional in an adult residential facility, adult day care center,
acute care facility, nursing home, or licensed home care or hospice
organization, either by direct employment or on a contractual basis, to provide
on-site health care oversight.
1. For residents who meet the criteria for residential
living care:
a. The licensed health care professional, practicing within
the scope of his profession, shall provide [ the ] health
care oversight at least every six months, or more often if indicated, based on
his professional judgment of the seriousness of a resident's needs or the
stability of a resident's condition; or
b. If the facility employs a licensed health care
professional who is on site on a full-time basis, [ the
a ] licensed health care professional, practicing within the scope
of his profession, shall provide [ the ] health
care oversight at least annually, or more often if indicated, based on his
professional judgment of the seriousness of a resident's needs or stability of
a resident's condition.
2. For residents who meet the criteria for assisted living
care:
a. The licensed health care professional, practicing within
the scope of his profession, shall provide [ the ] health
care oversight at least every three months, or more often if indicated, based
on his professional judgment of the seriousness of a resident's needs or
stability of a resident's condition; or
b. If the facility employs a licensed health care
professional who is on site on a full-time basis, [ the
a ] licensed health care professional, practicing within the scope
of his profession, shall provide [ the ] health
care oversight at least every six months, or more often if indicated, based on
his professional judgment of the seriousness of a resident's needs or stability
of a resident's condition.
3. All residents shall be included at least annually in
[ the ] health care oversight.
B. While on site, as specified in subsection A of this
section, the licensed health care professional shall provide health care
oversight of the following and make recommendations for change as needed:
1. Ascertain whether a resident's service plan
appropriately addresses the current health care needs of the resident.
2. Monitor direct care staff performance of health-related
activities.
3. Evaluate the need for staff training.
4. Provide consultation and technical assistance to staff
as needed.
5. Review documentation regarding health care services,
including medication and treatment records, to assess that services are being
provided in accordance with physicians' or other prescribers' orders.
6. Monitor conformance to the facility's medication
management plan and the maintenance of required medication reference materials.
7. [ Evaluate the ability of residents who
self-administer medications to continue to safely do so.
7. 8. ] Observe infection control
measures and consistency with the infection control program of the facility.
[ 8. Review the current condition and the records
of restrained residents to assess the appropriateness of the restraint and
progress toward its reduction or elimination.
C. For all restrained residents, onsite health care
oversight shall be provided by a licensed health care professional at least
every three months and include the following: ]
[ a. 1. ] The licensed
health care professional shall be at a minimum a registered nurse [ who
meets the experience requirements in subdivision A of this section ].
[ 2. The licensed health care professional shall review
the current condition and the records of restrained residents to assess the
appropriateness of the restraint and progress toward its reduction or
elimination. ]
[ b. 3. ] The licensed
health care professional providing the oversight for this subdivision shall
also provide the oversight for subdivisions [ B ] 1
through [ 7 B 8 ] of this [ subsection
section ] for restrained residents.
[ c. The health care oversight for all restrained
residents shall be provided at least every three months.
d. 4. ] The oversight provided
shall be a holistic review of the physical, emotional, and mental health of the
resident and identification of any unmet needs.
[ e. 5. ] The oversight
shall include review of physician's orders for restraints to determine whether
orders are no older than three months, as required by 22VAC40-73-710 [ C
E ] 2.
[ f. 6. ] The oversight
shall include an evaluation of whether direct care staff have received the
restraint training required by 22VAC40-73-270 and whether the facility is
meeting the requirements of 22VAC40-73-710 regarding the use of restraints.
[ 7. The licensed health care professional shall make
recommendations for change as needed. ]
[ 9. Certify D. The licensed
health care professional who provided the health care oversight shall certify ]
that the requirements of [ subdivisions 1 through 8 of this ]
subsection [ B and, if applicable, C of this section ]
were met, including the dates of the health care oversight. The specific
residents for whom the oversight was provided must be identified. The
administrator shall be advised of the findings of the health care oversight and
any recommendations. All of the requirements of this [ subdivision
subsection ] shall be (i) in writing, (ii) signed and dated by the
health care professional, (iii) provided to the administrator within 10 days of
the completion of the oversight, and (iv) maintained in the facility files for
at least two years, with any specific recommendations regarding a particular
resident also maintained in the resident's record.
[ 10. E. ] Action taken in
response to the recommendations noted in [ subdivision 9 of this ]
subsection [ D of this section ] shall be documented
in the resident's record if resident specific, and if otherwise, in the
facility files.
22VAC40-73-500. Access by community services boards, certain
local government departments, and behavioral health authorities.
All assisted living facilities shall provide reasonable
access to staff or contractual agents of community services boards, local
government departments with policy-advisory community services boards, or
behavioral health authorities as defined in § 37.2-100 of the Code of
Virginia for the purposes of:
1. Assessing or evaluating clients residing in the
facility;
2. Providing case management or other services or
assistance to clients residing in the facility; or
3. Monitoring the care of clients residing in the facility.
Such staff or contractual agents also shall be given
reasonable access to other facility residents who have previously requested
their services.
22VAC40-73-510. Mental health services coordination and
support.
A. For each resident requiring mental health services, the
services of the local community services board, [ behavioral health
authority, ] or a public or private mental health clinic,
rehabilitative services agency, treatment facility or agent, or qualified
health care professional shall be secured as appropriate based on the
resident's current evaluation and to the extent possible, the resident's
preference for service provider. The assisted living facility shall assist the
resident in obtaining the services. If the services are not able to be secured,
the facility shall document the reason for such and the efforts made to obtain
the services. If the resident has a legal representative, the representative
shall be notified of failure to obtain services and the notification shall be
documented.
B. Written procedures to ensure communication and
coordination between the assisted living facility and the mental health service
provider shall be established to [ assure ensure ]
that the mental health needs of the resident are addressed.
C. Efforts, which must be documented, shall be made by the
assisted living facility to assist in ensuring that prescribed interventions
are implemented, monitored, and evaluated for their effectiveness in addressing
the resident's mental health needs.
D. If efforts to obtain the recommended services are
unsuccessful, the facility must document:
1. Whether it can continue to meet all other needs of the
resident.
2. How it plans to ensure that the failure to obtain the
recommended services will not compromise the health, safety, or rights of the
resident and others who come in contact with the resident.
3. Details of additional steps the facility will take to
find alternative providers to meet the resident's needs.
[ E. Any contracts for mental health services between
the facility and the mental health services provider:
1. Shall not contain terms that conflict with the
regulations; and
2. Shall be provided to the regional licensing office
within 10 days of entering into the contract. ]
22VAC40-73-520. Activity and recreational requirements.
A. Activities for residents shall:
1. Support the skills and abilities of residents in order
to promote or maintain their highest level of independence or functioning;
2. Accommodate individual differences by providing a
variety of types of activities and levels of involvement; and
3. Offer residents a varied mix of [ weekly ]
activities [ weekly ] including [ ,
but not limited to, ] those that are physical; social;
cognitive, intellectual, or creative; productive; sensory; reflective or
contemplative; [ involve ] nature or the natural
world; and weather permitting, outdoor [ activity ].
Any given activity may involve more than one of these. Community resources as
well as facility resources may be used to provide activities.
B. Resident participation
in activities.
1. Residents shall be encouraged but not forced to
participate in activity programs offered by the facility and the community.
2. During an activity, each resident shall be encouraged
but not coerced to join in at his level of functioning, to include observing.
3. Any restrictions on participation imposed by a physician
shall be documented in the resident's record.
C. Activities shall be planned under the supervision of
the administrator or other qualified staff person who shall encourage
involvement of residents and staff in the planning.
D. In a facility licensed for residential living care
only, there shall be at least 11 hours of scheduled activities available to the
residents each week for no less than one hour each day.
E. In a facility licensed for both residential and
assisted living care, there shall be at least 14 hours of scheduled activities
available to the residents each week for no less than one hour each day.
F. During an activity, when needed to ensure that each of
the following is adequately accomplished, there shall be staff persons or
volunteers to:
1. Lead the activity;
2. Assist the residents with the activity;
3. Supervise the general area;
4. Redirect any [ individuals
residents ] who require different activities; and
5. Protect the health, safety, and welfare of the residents
participating in the activity.
G. The staff person or volunteer leading the activity
shall have a general understanding of the following:
1. Attention spans and functional levels of the residents [ in
the group ];
2. Methods to adapt the activity to meet the needs and
abilities of the residents;
3. Various methods of engaging and motivating [ individuals
residents ] to participate; and
4. The importance of providing appropriate instruction,
education, and guidance throughout the activity.
H. Adequate supplies and equipment appropriate for the
program activities shall be available in the facility.
I. There shall be a written schedule of activities that
meets the following criteria:
1. The schedule of activities shall be developed at least
monthly.
2. The schedule shall include:
a. Group activities for all residents or small groups of
residents; and
b. The name, if any, and the type, date, and hour of the
activity.
3. If one activity is substituted for another, the change
shall be noted on the schedule.
4. The current month's schedule shall be posted in a conspicuous
location in the facility or otherwise be made available to residents and their
families.
5. The schedule of activities for the past two years shall
be kept at the facility.
6. If a resident requires an individual schedule of
activities, that schedule shall be a part of the individualized service plan.
J. The facility shall promote access to the outdoors.
K. In addition to the required scheduled activities, there
shall be unscheduled staff and resident interaction throughout the day that
fosters an environment that promotes socialization opportunities for residents.
22VAC40-73-530. Freedom of movement.
A. Any resident who does not have a serious cognitive
impairment shall be allowed to freely leave the facility. A resident who has a
serious cognitive impairment shall be subject to the provisions set forth in
22VAC40-73-1040 A or 22VAC40-73-1150 A.
B. Doors leading to the outside shall not be locked from
the inside or secured from the inside in any manner that amounts to a lock,
except that doors may be locked or secured in a manner that amounts to a lock
in special care units as provided in 22VAC40-73-1150 A. Any devices used to
lock or secure doors in any manner must be in accordance with applicable
building and fire codes.
C. The facility shall provide freedom of movement for the
residents to common areas and to their personal spaces. The facility shall not
lock residents out of or inside their rooms.
22VAC40-73-540. Visiting in the facility.
A. Daily visits to residents in the facility shall be permitted.
B. Visiting hours shall not be restricted, except by a
resident when it is the resident's choice.
C. The facility may establish a policy or guidelines so
that visiting is not disruptive to other residents and facility security is not
compromised. However, daily visits and visiting hours shall not be restricted
as provided in subsections A and B of this section.
D. The facility shall encourage regular family involvement
with the resident and shall provide ample opportunities for family participation
in activities at the facility.
22VAC40-73-550. Resident rights.
A. The resident shall be encouraged and informed of
appropriate means as necessary to exercise his rights as a resident and a
citizen throughout the period of his stay at the facility.
B. The resident has the right to voice or file grievances,
or both, with the facility and to make recommendations for changes in the
policies and services of the facility. The residents shall be protected by the
licensee or administrator, or both, from any form of coercion, discrimination,
threats, or reprisal for having voiced or filed such grievances.
C. Any resident of an assisted living facility has the
rights and responsibilities as provided in § 63.2-1808 of the Code of
Virginia and this chapter.
D. The operator or administrator of an assisted living
facility shall establish written policies and procedures for implementing
§ 63.2-1808 of the Code of Virginia.
E. The facility shall make its policies and procedures for
implementing § 63.2-1808 of the Code of Virginia available and accessible
to residents, relatives, agencies, and the general public.
F. The rights and responsibilities of residents shall be
printed in at least [ 12-point 14-point ] type
and posted conspicuously in a public place in all assisted living facilities.
The facility shall also post the name and telephone number of the appropriate
regional licensing supervisor of the department, the Adult Protective Services'
toll-free telephone number, the toll-free telephone number of the Virginia Long-Term
Care Ombudsman Program and any substate (i.e., local) ombudsman program serving
the area, and the toll-free telephone number of the [ Virginia
Office for Protection and Advocacy disAbility Law Center of Virginia ].
G. The rights and responsibilities of residents in
assisted living facilities shall be reviewed annually with each resident or his
legal representative or responsible individual as stipulated in subsection H of
this section and each staff person. Evidence of this review shall be the resident's,
his legal representative's or responsible individual's, or staff person's
written acknowledgment of having been so informed, which shall include the date
of the review and shall be filed in the resident's or staff person's record.
H. If a resident is unable to fully understand and
exercise the rights and responsibilities contained in § 63.2-1808 of the
Code of Virginia [ and does not have a legal representative ],
the facility shall require that a responsible individual, of the resident's
choice when possible, designated in writing in the resident's record annually
be made aware of each item in § 63.2-1808 and the decisions that affect
the resident or relate to specific items in § 63.2-1808. [ The
responsible individual shall not be the facility licensee, administrator, or
staff person or family members of the licensee, administrator, or staff person. ]
1. A resident shall be assumed capable of understanding and
exercising these rights unless a physician determines otherwise and documents
the reasons for such determination in the resident's record.
2. The facility shall seek a determination and reasons
for the determination from a resident's physician regarding the resident's
capability to understand and exercise these rights when there is reason to believe
that the resident may not be capable of such.
22VAC40-73-560. Resident records.
A. The facility shall establish written policy and
procedures for documentation and recordkeeping to ensure that the information
in resident records is accurate and clear and that the records are
well-organized.
B. Resident records shall be identified and easily located
by resident name, including when a resident's record is kept in more than one
place. This shall apply to both electronic and hard copy material.
C. Any physician's notes and progress reports in the
possession of the facility shall be retained in the resident's record.
D. Copies of all agreements between the facility and the
resident and official acknowledgment of required notifications, signed by all
parties involved, shall be retained in the resident's record. Copies shall be
provided to the resident and to persons whose signatures appear on the
document.
E. All resident records shall be kept current, retained at
the facility, and kept in a locked area, except that information shall be made
available as noted in subsection F of this section.
F. The licensee shall [ assure
ensure ] that all records are treated confidentially and that
information shall be made available only when needed for care of the resident.
All records shall be made available for inspection by the department's
representative.
G. Residents shall be allowed access to their own records.
A legal representative of a resident shall be provided access to the resident's
record or part of the record as allowed by the scope of his legal authority.
H. The complete resident record shall be retained for at
least two years after the resident leaves the facility.
1. For at least the first year, the record shall be
retained at the facility.
2. After the first year, the record may be retained off
site in a safe, secure area. The record must be available at the facility
within 48 hours.
I. A current picture of each resident shall be readily
available for identification purposes or, if the resident refuses to consent to
a picture, there shall be a narrative physical description, which is annually
updated, maintained in his file.
22VAC40-73-570. Release of information [ from
resident's record regarding resident's personal affairs and
records ].
A. The resident or the appropriate legal representative
has the right to release information from the resident's record to persons or
agencies outside the facility.
B. The licensee is responsible for making available to
residents and legal representatives a form which they may use to grant their
written permission for the facility to release information to persons or
agencies outside the facility. The facility shall retain a copy of any signed
release of information form in the resident's record.
C. Only under the following circumstances is a facility
permitted to release information from the resident's records or information
regarding the resident's personal affairs without the written permission of the
resident or his legal representative, where appropriate:
1. When records have been properly subpoenaed;
2. When the resident is in need of emergency medical care
and is unable or unwilling to grant permission to release information or his
legal representative is not available to grant permission;
3. When the resident moves to another caregiving facility;
4. To representatives of the department; or
5. As otherwise required by law.
D. When a resident is hospitalized or transported by
emergency medical personnel, information necessary to the care of the resident shall
be furnished by the facility to the hospital or emergency medical personnel.
Examples of such information include [ medications a
copy of the current medication administration record (MAR) ], a Do
Not Resuscitate (DNR) Order, advance directives, and organ donation
information. The facility shall also provide the name, address, and telephone
number of the resident's designated contact person to the hospital or emergency
medical personnel.
22VAC40-73-580. Food service and nutrition.
A. When any portion of an assisted living facility is
subject to inspection by the Virginia Department of Health, the facility shall
be in compliance with those regulations, as evidenced by an initial and
subsequent annual reports from the Virginia Department of Health. The report
shall be retained at the facility for a period of at least two years.
B. All meals shall be served in the dining area as
designated by the facility, except that:
1. If the facility, through its policies and procedures,
offers routine or regular room service, residents shall be given the option of
having meals in the dining area or in their rooms, provided that:
a. There is a written agreement to this effect, signed and
dated by both the resident and the licensee or administrator and filed in the
resident's record.
b. If a resident's individualized service plan, physical
examination report, mental health status report, or any other document
indicates that the resident has a psychiatric condition that contributes to
self-isolation, a qualified mental health professional shall make a
determination in writing whether the [ person
resident ] should have the option of having meals in his room. If
the determination is made that the resident should not have this option, then
the resident shall have his meals in the dining area.
2. Under special circumstances, such as temporary illness,
temporary incapacity, temporary agitation of a resident with cognitive
impairment, or occasional, infrequent requests due to a resident's personal
preference, meals may be served in a resident's room.
3. When meals are served in a resident's room, a sturdy
table must be used.
C. Personnel shall be available to help any resident who
may need assistance in reaching the dining room or when eating.
D. A minimum of 45 minutes shall be allowed for each
resident to complete a meal. If a resident has been assessed on the UAI as
dependent in [ eating or feeding eating/feeding ],
his individualized service plan shall indicate an approximate amount of time
needed for meals to ensure needs are met.
E. Facilities shall develop and implement a policy to
monitor each resident for:
1. Warning signs of changes in physical or mental status
related to nutrition; and
2. Compliance with any needs determined by the resident's
individualized service plan or prescribed by a physician or other prescriber,
nutritionist, or health care professional.
F. Facilities shall implement interventions as soon as a
nutritional problem is suspected. These interventions shall include [ ,
but are not limited to ] the following:
1. Weighing residents at least monthly to determine whether
the resident has significant weight loss (i.e., 5.0% weight loss in one month,
7.5% in three months, or 10% in six months); and
2. Notifying the attending physician if a significant
weight loss is identified in any resident who is not on a physician-approved
weight reduction program and obtaining, documenting, and following the
physician's instructions regarding nutritional care.
G. Residents with independent living status who have
kitchens equipped with stove, refrigerator, and sink within their individual
apartments may have the option of obtaining meals from the facility or from
another source. If meals are obtained from another source, the facility must
ensure availability of meals when the resident is sick or temporarily unable to
prepare meals for himself.
22VAC40-73-590. Number of meals and availability of snacks.
A. At least three well-balanced meals, served at regular
intervals, shall be provided daily to each resident, unless contraindicated as
documented by the attending physician in the resident's record or as provided
for in 22VAC40-73-580 G.
B. [ Bedtime and between meal snacks
Snacks ] shall be made available [ at all times ]
for all residents [ desiring them ] or in
accordance with their physician's or other prescriber's orders.
1. Appropriate adjustments in the provision of snacks to a
resident shall be made when orders from the resident's physician or other
prescriber in the resident's record limits the receipt or type of snacks.
2. Vending machines shall not be used as the only source
for snacks.
22VAC40-73-600. Time interval between meals.
A. Time between the [ scheduled ] evening
meal and [ scheduled ] breakfast the following
morning shall not exceed 15 hours.
B. There shall be at least four hours between [ scheduled ]
breakfast and lunch and at least four hours between [ scheduled ]
lunch and supper.
C. When multiple seatings are required due to limited
dining space, scheduling shall ensure that these time intervals are met for all
residents. Schedules shall be made available to residents, legal
representatives, staff, volunteers, and any other persons responsible for
assisting residents in the dining process.
22VAC40-73-610. Menus for meals and snacks.
A. Food preferences of residents shall be considered when
menus are planned.
B. Menus for meals and snacks for the current week shall
be dated and posted in an area conspicuous to residents.
1. Any menu substitutions or additions shall be recorded on
the posted menu.
2. A record shall be kept of the menus served for two
years.
C. Minimum daily menu.
1. Unless otherwise ordered in writing by the resident's
physician or other prescriber, the daily menu, including snacks, for each
resident shall meet the current guidelines of the U.S. Department of
Agriculture's food guidance system or the dietary allowances of the Food and
Nutritional Board of the National Academy of Sciences, taking into
consideration the age, sex, and activity of the resident.
2. Other foods may be added.
3. Second servings and snacks shall be available at no
additional charge.
4. At least one meal each day shall include a hot main
dish.
D. When a diet is prescribed for a resident by his
physician or other prescriber, it shall be prepared and served according to the
physician's or other prescriber's orders.
E. A copy of a diet manual containing acceptable practices
and standards for nutrition shall be kept current and [ on file
in the dietary department readily available to personnel responsible
for food preparation ].
F. The facility shall make drinking water readily
available to all residents. Direct care staff shall know which residents need
help getting water or other fluids and drinking from a cup or glass. Direct
care staff shall encourage and assist residents who do not have medical
conditions with physician or other prescriber ordered fluid restrictions to
drink water or other beverages frequently.
22VAC40-73-620. Oversight of special diets.
A. There shall be oversight at least every six months of
special diets by a dietitian or nutritionist for each resident who has such a
diet. Special diets may also be referred to using terms such as medical
nutrition therapy or diet therapy. The dietitian or nutritionist must meet the
requirements of § 54.1-2731 of the Code of Virginia [ and
18VAC75-30, Regulations Governing Standards for Dietitians and Nutritionists ].
B. The oversight specified in subsection A of this section
shall be on site and include the following:
1. A review of the physician's or other prescriber's order
and the preparation and delivery of the special diet.
2. An evaluation of the adequacy of the resident's special
diet and the resident's acceptance of the diet.
3. Certification that the requirements of this subsection
were met, including the date of the oversight and identification of the
residents for whom the oversight was provided. The administrator shall be
advised of the findings of the oversight and any recommendations. All of the
requirements of this subdivision shall be (i) in writing, (ii) signed and dated
by the dietitian or nutritionist, (iii) provided to the administrator within 10
days of the completion of the oversight, and (iv) maintained in the files at
the facility for at least two years, with any specific recommendations regarding
a particular resident also maintained in the resident's record.
4. Upon receipt of recommendations noted in subdivision 3
of this subsection, the administrator [ or the, ]
dietitian, or nutritionist shall report them to the resident's physician. Documentation
of the report shall be maintained in the resident's record.
5. Action taken in response to the recommendations noted in
subdivision 3 of this subsection shall be documented in the resident's record.
22VAC40-73-630. Observance of religious dietary practices.
A. The resident's religious dietary practices shall be
respected.
B. Religious dietary practices of the administrator or
licensee shall not be imposed upon residents unless [ mutually
specifically ] agreed upon in the admission [ agreement
agreement/acknowledgment ] between administrator or licensee and
resident.
22VAC40-73-640. Medication management plan and reference
materials.
A. The facility shall have, keep current, and implement a
written plan for medication management. The facility's medication plan shall
address procedures for administering medication and shall include:
1. Methods to ensure an understanding of the
responsibilities associated with medication management;
2. Standard operating procedures, including [ but
not limited to ] the facility's standard dosing schedule and
any general restrictions specific to the facility;
3. Methods to prevent the use of outdated, damaged, or
contaminated medications;
4. Methods to ensure that each resident's prescription
medications and any over-the-counter drugs and supplements ordered for the
resident are filled and refilled in a timely manner to avoid missed dosages;
5. Methods for verifying that medication orders have been
accurately transcribed to medication administration records (MARs) [ ,
including ] within 24 hours of receipt of a new order or change
in an order;
6. Methods for monitoring medication administration and the
effective use of the MARs for documentation;
7. [ Methods to ensure that MARs are maintained
as part of the resident's record; ]
8. ] Methods to ensure accurate counts of all
controlled substances whenever assigned medication administration staff
changes;
[ 8. 9. ] Methods to ensure
that staff who are responsible for administering medications meet the qualification
requirements of 22VAC40-73-670;
[ 9. 10. ] Methods to ensure
that staff who are responsible for administering medications are adequately
supervised, including periodic direct observation of medication administration;
[ 10. 11. ] A plan for
proper disposal of medication;
[ 11. 12. ] Methods to
ensure that residents do not receive medications or dietary supplements to
which they have known allergies;
[ 12. 13. ] Identification
of the medication aide or the person licensed to administer drugs responsible for
routinely communicating issues or observations related to medication
administration to the prescribing physician or other prescriber;
[ 13. 14. ] Methods to
ensure that staff who are responsible for administering medications are trained
on the facility's medication management plan; and
[ 14. 15. ] Procedures for
internal monitoring of the facility's conformance to the medication management
plan.
B. The facility's written medication management plan
requires approval by the department.
C. Subsequent changes shall be reviewed as part of the
department's regular inspection process.
D. In addition to the facility's written medication
management plan, the facility shall [ maintain, as reference
materials for medication aides, have readily accessible ] at
least one pharmacy reference book, drug guide, or medication handbook for
nurses that is no more than two years old [ as reference materials
for staff who administer medications ].
22VAC40-73-650. Physician's or other prescriber's order.
A. No medication, dietary supplement, diet, medical
procedure, or treatment shall be started, changed, or discontinued by the
facility without a valid order from a physician or other prescriber.
Medications include prescription, over-the-counter, and sample medications.
B. Physician or other prescriber orders, both written and
oral, for administration of all prescription and over-the-counter medications
and dietary supplements shall include the name of the resident, the date of the
order, the name of the drug, route, dosage, strength, how often medication is
to be given, and identify the diagnosis, condition, or specific indications for
administering each drug.
C. Physician's or other prescriber's oral orders shall:
1. Be charted by the individual who takes the order. That
individual must be one of the following:
a. A licensed health care professional practicing within
the scope of his profession; or
b. A medication aide.