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04.05.2017 Legal News

Assisted Living Facilities: Preparation for Regulatory Changes

The Virginia Board of Social Services (Board) is working on a comprehensive overhaul of the regulations governing assisted living facilities.

The revised regulations are at the final regulations stage. The Board previously published the regulations and received feedback from the public, and is now finalizing the new regulatory scheme. The final regulations are being reviewed by the Virginia Secretary of Health and Human Resources (Secretary). Once the Secretary completes his review, the regulations will be forwarded to the Governor of Virginia for final approval. Once that is obtained, the regulations will be published in the Virginia Register of Regulations and will become effective. Further revisions to the regulations are not expected at this time.

The final regulations are highly detailed and include several new substantive provisions impacting assisted living facilities, including:

  • Addition of the licensee to the list of individuals prohibited from serving as the resident’s attorney-in-fact or trustee unless the resident has no other preferred designee and per the resident’s request. 22 VAC-40-73-90.
  • Assisted living facilities are required to develop and implement an enhanced infection control program. 22 VAC 40-73-100.
  • Administrators who are not registered medication aides, but supervise medication aides, must receive annual training in medication administration. 22 VAC 40-73-160.
  • Smaller residential living facilities that utilize an unlicensed shared administrator must ensure the administrator is present at the facility for ten hours a week, six of which must be during the day shift. 22 VAC 40-73-170.
  • Annual training hours for direct care staff will be increased to 14 hours for facilities licensed for residential care only and 18 hours for facilities licensed for residential and assisted living care. There is an exception for licensed health care professionals who are only required to attend 12 hours of training. 22 VAC 40-73-210.
  • Increased requirements for private duty personnel. 22 VAC 40-73-220.
  • First aid and CPR certification must be present in each building of the assisted living facility, not merely on the premises. 22 VAC 40-73-260.
  • Limitation of the exception permitting staff to sleep at night under certain circumstances to residential living care only facilities. 22 VAC 40-73-280.
  • Updated admission and retention requirements to include additional specifications for agreements between an assisted living facility and a hospice provider for hospice care to residents. 22 VAC 40-73-310.
  • Assisted living facilities are required to conduct a “fall risk rating” for residents meeting the criteria for assisted living services. 22 VAC 40-73-325.
  • Addition of mental health, behavioral, and substance abuse issues to the personal and social information obtained for all residents. 22 VAC 40-73-380.
  • Any staff member completing a resident’s individualized service plan will be required to complete uniform assessment instrument training. 22 VAC 40-73-450.
  • Updated rules for health care oversight to reduce the number of times health care oversight must occur annually if the facility employs a full-time licensed health care professional. It also requires that all residents be included annually for health care oversight, the evaluation of those residents who self-administer medication to determine if they can continue doing so safely, and additional oversight of restrained residents. 22 VAC 40-73-490.
  • Prohibition on assisted living facilities from restricting visiting hours unless a resident chooses to do so. 22 VAC 40-73-540.
  • Snacks must be made available to residents at all times. 22 VAC 40-73-590.
  • Reduced number of times that oversight of special diets must occur each year. 22 VAC 40-73-620.
  • Facilities are permitted to maintain a master list of staff who administer medications instead of individualized medication administration documentation. 22 VAC 73-680.
  • Prohibition of certain additional types of restraints. The regulation also requires a facility to review and revise a resident’s individualized service plan after the use of emergency restraints. 22 VAC 40-73-710.
  • Residents are permitted to determine not to have certain furnishings in their room, even if the furniture would otherwise be required. 22 VAC 40-73-750.
  • Residents residing alone in a bedroom with a thermostat may determine the temperature, even if it differs from what would otherwise be required. 22 VAC 40-73-880.
  • Prohibition of more than two residents per bedroom for any new facility licensee. 22 VAC 40-73-900.
  • The individualized service plan must reflect when residents are unable to use the call/signaling system and the frequency of rounds to check on the resident. The assisted living facility must conduct rounds a minimum of every two hours to check on residents after bed time unless a specified exception exists. 22 VAC 40-73-930.
  • Requirement for a semi-annual review of the facility’s emergency plan with staff, residents, and volunteers. 22 VAC 40-73-950.
  • First aid kits must be present in each building, and the facility must maintain 48 hours’ worth of emergency food and water. 22 VAC 40-73-980.
  • Resident emergency procedures must be reviewed with all staff every six months, and the resident emergency practice exercise required every six months must be performed by the staff on duty at the time. 12 VAC 40-730-990.
  • Elimination of the exception for facilities licensed for less than ten residents (with no more than three having serious cognitive impairment) from the requirements of mixed population.  22 VAC 40-73-1010.
  • Increased training requirements for residents with cognitive impairment for direct care staff. 22 VAC 73-1030.
  • Increased number of hours per week of activities for residents in a safe, secure environment. 22 VAC 40-73-1120.
  • At least two direct care staff members are required to be on duty and awake when there are 20 or fewer residents present in a special care unit. An additional staff member is required for every additional ten residents or any portion thereof. 12 VAC 40-73-1130.
  • The administrator is required to have additional hours of cognitive impairment training. 22 VAC 40-73-1140.

The proposed final regulations are available for review online at: Assisted living facilities should prepare for implementation of these regulations and consult legal counsel with any questions regarding the new rules’ applicability.