CLIENT ADVISORY: Alien Alert! New ALF Rules Propose Staff English Literacy Requirement, Changes in Incident Report Timing, and New Resident Rights

The Virginia Department of Social Services (DSS) recently proposed new regulations for Assisted Living Facilities (ALFs). While many of the revisions are aimed at improving clarity through reorganizing regulation sections and updating language to reflect state and federal terminology, some of the changes substantively affect operating requirements for ALFs. Below are details on some of the more significant revisions.

Incident Reports

One such substantive change requires ALFs to report incidents within 24 hours. This requirement is similar in appearance to the current requirement that ALFs report incidents “by the next working day.” However, the proposed change could significantly affect facility reporting standards. For example, if an incident occurs at 8 a.m. on Wednesday, the incident report must be sent by 8 a.m. on Thursday, instead of at any time during the day on Thursday. Similarly, facilities may have a policy that allows staff to report an incident that occurred on Friday or Saturday on the following Monday; this policy would not comply with the new regulations. Further, upon documenting an incident ALFs may no longer merely document the resolution of the incident but instead must identify the actions it has taken or will take to prevent recurrence of the incident.

Additional Resident Rights

The proposed regulations augment a number of established resident rights, including those rights associated with resident participation in facility activities, resident mail, and ALF responses to resident concerns. The proposed regulations state that while residents should be encouraged to participate in activities, they should never be forced or coerced to engage in an activity. Furthermore, the new regulations require that any restrictions on resident participation in facility activities be clearly documented in the resident’s record by a physician.

While ALFs are currently permitted to open resident mail with the resident or legal representative’s permission, the proposed regulations go one step further by requiring facility staff to open the mail in the presence of the resident.

ALFs must also provide residents with written documentation in response to resident concerns. This includes providing residents with a detailed written report of an investigation following any resident report of lost property. Facilities must also provide a written response to the residents’ council regarding any recommendations to address problems or concerns the council brings to facility administration.

Resident Admission

The proposed regulations contain additional requirements for ALF admission agreements. Agreements with auxiliary grant recipients must contain a list of the specific services to which grant recipients are entitled and an acknowledgment that the ALF may not charge these residents an advance fee or deposit. The proposed regulations also require additional acknowledgements by the resident of receipt of facility policies on pets, visitation, and any facility requirements or rules regarding resident conduct, restrictions, or any facility-specific conditions.

Currently, the ALF regulations permit residents to be admitted without a mental health screening and state that the screening should be conducted “as soon as possible.” The proposed regulations modify this exception by directing that the screening must be conducted no later than 30 days after admission. However, the proposed rules completely remove the mental health screening requirement for individuals who are under the care of a qualified mental health professional immediately prior to admission if that professional can provide adequate documentation of the resident’s mental health.

Finally, DSS added a section to the ALF regulations that exempts residents receiving respite care from some ALF requirements. This includes removing the expected outcome from the individual service plan expectations, limiting resident evaluation mandates on return to the ALF, and exempting respite care residents records from medication review.

Resident Discharge

The proposed regulations add eligibility workers and assessors to the list of individuals who must be informed when a public pay resident is discharged. Additionally, if a public pay resident dies, the time period for notifying the eligibility worker and assessor has been changed from ten days to five days.

The proposed regulations require that the ALF’s procedures on TDO resident readmission include the following:

• A written recommendation from a qualified mental health professional regarding supportive services to address the mental health needs of the resident returning to the facility,
• Documentation of whether the supportive services can be implemented with facility or community resources or whether needs cannot be met and the resident must be discharged,
• Updates to the resident’s individualized service plan,
• Educating direct care staff regarding the behavioral and emotional health needs of the resident and any indicators of a possible crisis situation.

DNRs and Advance Directives

The proposed regulations add a new section on advance directives, which lists the required information an ALF must obtain upon learning that a resident has executed an advance directive. ALFs will also be required to have a system in place to ensure that all staff members are aware of all residents who have Do Not Resuscitate (DNR) orders and any residents with life threatening conditions (including allergies). Staff must ensure that DNRs are provided to emergency service personnel when needed and that a treating hospital receives contact information for the resident’s designated contact person. Finally, if a facility determines that it will not honor DNR orders, the ALF must develop a policy and disseminate it to all residents and legal representatives upon admission for acknowledgement.

Requirements for staff

New general staffing qualifications require ALF staff to be able to speak, read, and write in English to the extent necessary to carry out their job duties. For facilities providing only residential care or facilities small enough to share an administrator, the administrator or manager must have a bachelor’s degree or be a licensed nurse. Additionally, at least 15 of the credit hours for the bachelor’s must have been taken in business or human services. All staff must also have a documented disease risk assessment that includes documentation of the absence of tuberculosis. This risk assessment must be conducted at least seven days and no more than 30 days before the staff member’s first day of work.

The proposed regulations place more oversight on medication administration. The requirements include more internal checks on staff to ensure that controlled substances are accounted for, physician orders and records are accurately maintained, and medication aides are adequately supervised.

Conclusion

The Virginia Center for Assisted Living also recently published an informational document detailing other substantive changes including: infection control program requirements; staff continuing education and certification requirements; updated staffing numbers for certain units; requirements for agreements with hospice; timing of health care oversight; additional resident rights, including visiting hours, room furnishing, cleaning supplies, room temperature, and activity time; additional requirements for disaster and emergency planning; additional training requirements for staff who interact with residents with cognitive impairments; and additional documentation requirements for individualized service plans. The document detailing these changes is available here.

DSS is accepting comments on the proposed regulations through November 6, 2015. Interested parties may review the proposed regulations and enter comments here. If you have any questions about the applicability of these standards to your facility or complying with the new regulations, please contact Peter Mellette (Peter@mellettepc.com), Harrison Gibbs (Harrison@mellettepc.com) or Elizabeth Dahl (Elizabeth@mellettepc.com), or call Mellette PC at (757) 259-9200.

This Client Advisory is for general educational purposes only. It is not intended to provide legal advice specific to any situation you may have. Individuals desiring legal advice should consult legal counsel for up to date and fact specific advice.