CLIENT ADVISORY: Revised Standards for Licensed Assisted Living Facilities will Require Operational Changes

The previous Standards for Licensed Assisted Living Facilities (22VAC40-72) are being repealed and will be replaced with new comprehensive regulations (22VAC40-73).[1] The new regulations take effect on February 1, 2018, although the Department of Social Services has indicated that inspectors will permit a 60-day grace period prior to issuing citations as to changed standards under the new regulations. A 30-day public comment period begins on November 13, 2017. The new regulations are available here.

The new regulations are the first major overhaul since 2006. The stated purpose of the new regulatory scheme is to “allow greater flexibility to adjust the structure, format, and language to provide increased consistency and clarity[,]” and thereby improve regulatory compliance and residents’ safety. The final regulation adds and/or modifies significant portions of the prior regulatory scheme pertaining to residents’ fiduciary legal arrangements, living arrangements, health management, medication documentation, meal provisions, and visitation rights. It also requires that plans and programs be implemented or improved. Furthermore, staffing and staff training requirements are updated (and some increased). Finally, DSS updated requirements for emergency plans and health oversight requirements. Below are selected highlights of the changes contained in the new regulations.

General Provisions:

  • There is no longer an exception to the regulations for facilities which are licensed for fewer than 11 residents and which have no more than 3 residents with serious cognitive impairments.[2]

Legal Arrangements:

  • Licensees may no longer act as a trustee or attorney-in-fact for residents, unless (in any given case) the resident requests the licensee specifically and does not have another preferred designee.[3]
  • Facilities are expressly prohibited from requiring that residents relinquish their rights, articulated in Code of Virginia section 63.2-1808, “as a condition of admission or retention.”[4]
  • A written and signed agreement between a hospice care-provider and the assisted living facility is required. The agreement must specify communication and coordination policies, and the respective roles and responsibilities of the two organizations (including the services that each will render). The agreement also must articulate that the individual services provided to each resident will be specified on the resident’s individual service plan.[5]

Health & Safety:

  • Facilities must create and implement infection control programs that include measures to observe, prevent, and control infectious diseases. These must comply with CDC and OSHA guidelines and regulations.[6]
  • A written fall risk assessment is now required for residents who require assisted living care. This must be done by the time the comprehensive individualized service program (ISP) is completed. The assessment must be updated at least once each year, and each time the resident’s condition changes or the resident falls.[7] If such a resident does fall, then the “facility must show documentation of an analysis of the circumstances of the fall and interventions that were initiated to prevent or reduce [the] risk of subsequent falls”[8]
  • The personal and social information for all residents, prior to admission, must include (a) mental health or intellectual disability history and whether or not these are applicable to care, (b) “[c]urrent behavioral and social functioning including strengths and problems,” and (c) substance abuse history that is relevant for their care.[9]
  • If a facility employs a full-time, licensed healthcare professional, the minimum number of mandatory assessments per year shall now be one (instead of two, as was the case before).[10] Each resident must now be included in healthcare oversight.[11] Also:
    • The licensed healthcare professional must now, while at a site, evaluate whether residents who self-administer medications can do so safely.[12]
    • The licensed healthcare professional must evaluate restrained residents at least once every three months and “review the current condition and the records of restrained residents to assess the appropriateness of the restraint and progress toward its reduction or elimination.”[13]
  • Oversight of special diets by a dietician or nutritionist is now required at least once every six months, instead of at least once every three months.[14]
  • The medication administration record (MAR) may now contain a master list of staff who administer medications, in lieu of individual staff names, signatures, and initials on each MAR.[15]
  • Use of chemical, prone, and supine restraints, as well as any restraint which “restricts a resident’s breathing, interferes with a resident’s ability to communicate, or applies pressure on a resident’s torso” is now prohibited.[16] Also, a patient’s individual service plan must be reviewed within a week of emergency restraint-application.[17]
  • If a resident is unable to use the signaling device, this must now be included on their ISP. The ISP must specify minimal daily rounds by direct care staff. There is also an exception allowed under particular circumstances.[18]
  • Staff, residents, and volunteers must now review an emergency preparedness and response plan at least semi-annually, instead of quarterly. [19]
  • A first aid kit must now be available in each building (22VAC40-73-980(A), and no longer needs to contain activated charcoal.[20]
  • A minimum of 48-hours’ worth of food and drinking water “must be on site at any given time” for which the “rotating stock may be used.”[21]

Staff Training:

  • Administrators who supervise medication aides (but are not such aides themselves) must now undertake annual training in medication administration.[22]
  • Direct care staff who are not licensed health care professionals or certified nurse aides must now attend annual training amounting to 14 hours in facilities licensed only for residential living care, and 18 hours in facilities licensed for both residential and assisted living care. This is in addition to training in first aid, CPR, and (in the case of medication aides) continuing education required by the Virginia Board of Nursing.[23]
  • Staff must now complete uniform assessment instrument (UAI) training before they may complete individualized service plan (ISP) training.[24]
  • Staff currently on duty, instead of all staff, must take part in a resident emergency practice exercise every six months.[25]
  • The required training time for dealing with residents who have cognitive impairments has been increased for direct care staff and staff other than administrators. Direct care staff must now complete six hours of training, (22VAC40-73-1030(B)), and other non-administrator staff members must complete two hours of training.[26]
  • The training time requirements for staff, so far as training in cognitive impairment is concerned, have been updated. Now
    • the administrator must, within three months of starting employment, attend a minimum of 12 hours of training;[27]
    • direct care staff, within four months of starting employment, must attend 10 hours of training;[28] and
    • other staff who will interact with residents in a special care unit must undergo two hours of training, within one month of starting employment,[29]

Staffing Requirements:

  • If an administrator is unlicensed, shared amongst several facilities, and lacks a designated assistant, then the administrator must be on the premises of each facility for six hours during the day shift and a total of at least ten hours per week. The administrator must also be awake during the entire time.[30]
  • A new subsection now addresses requirements for private duty personnel.[31]
  • Each building must now have at least one first aid-certified individual and one CPR-certified individual at all times.[32]
  • For facilities licensed only for residential living care, specifically in buildings housing fewer than 20 residents, the staff member on duty does not need to be awake during the night – so long as the care needs of the residents do not require the staff member’s attention at night, and the facility complies with the provisions for signaling and call systems.[33]
  • At least two direct care staff must be awake and on duty when there are 20 or fewer residents in a special care unit. An additional direct care staff member is required for every additional 10 residents “or portion thereof”[34]

Resident Life:

  • A resident’s visiting hours cannot be restricted unless the resident chooses.[35]
  • Snacks must now be available to residents at all times.[36]
  • Residents can now decline to have certain furnishings (which are otherwise required) in their bedrooms.[37]
  • If only one resident resides in a bedroom which contains a thermostat, they may now determine their own temperature outside the otherwise allowable temperature range for resident rooms.[38]
  • There cannot be any more than two residents residing in one bedroom when there is a new facility licensee.[39]
  • Residents must now have access to at least 21 hours of scheduled activities each week, with no less than 2 hours available on any given day.[40]

Resident Rights:

  • The rights and responsibilities of the residents must now be printed in at least 14-point type. “The facility shall also post the . . . toll-free telephone number of the disAbility Law Center of Virginia” instead of the number for the Virginia Office of Protection and Advocacy.[41]

Each Assisted Living Facility in Virginia will need to understand and implement the new regulations prior to the February 1, 2016 effective date. Should you or your organization have any questions regarding the implementation of the new assisted living facility standard, please contact Peter Mellette or Harrison Gibbs at 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.

[1] Final Regulation Agency Background Document, State Board of Social Services (prepared Feb. 15, 2017) (last visited Sept. 15, 2017),\TownHall\docroot\73\3671\7452\AgencyStatement_DSS_7452_v3.pdf

[2] 22VAC40-73-1010; Cf. 22VAC40-72-990

[3] 22VAC40-73-90

[4] 22VAC40-73-310(G)

[5] 22VAC40-73-310(M)

[6] 22VAC40-73-100(A)

[7] 22VAC40-73-325

[8] 22VAC40-73-325(C)

[9] 22VAC40-73-380(A)(21) – 22VAC40-73-380(A)(23)

[10] 22VAC40-73-490(A)(1)(b)

[11] 22VAC40-73-490(A)(3)

[12] 22VAC40-73-490(B)(7)

[13] 22VAC40-73-490(C)(2)

[14] 22VAC40-73-620(A)

[15] 22VAC40- 73-680(I)(14)

[16] 22VAC40-73-710(A)

[17] 22VAC40-73-710(D)(7)

[18] 22VAC40-73-930(D)

[19] 22VAC40-73-950(C)

[20] 22VAC40-73-980

[21] 22VAC40-73-980(G)

[22] 22VAC40-73-160(D)

[23] 22VAC40-73-210

[24] 22VAC 40-73-450(B)

[25] 22VAC40-73-990(B)

[26] 22VAC40-73-1030(D)

[27] 22VAC40-73-1140(A)

[28] 22VAC40-73-1140(B)

[29] 22VAC40-73-1140(E)

[30] 22VAC40-73-170(A)(3)

[31] 22VAC40-73-220

[32] 22 VAC40-73-260

[33] 22VAC40-73-930

[34] 22VAC40-73-1130(A)

[35] 22VAC40-73-540(B)

[36] 22VAC40-73-590(B)

[37] 22VAC40-73-750(C)

[38] 22 VAC40-73-880(B)(3); 22 VAC40-73-880(C)(1)

[39] 22VAC40-73-900(5)(b)

[40] 22VAC40-73-1120(B

[41] 22VAC40-73-550(F)

Categories: Client Advisory