NEW REQUIREMENTS FOR PRIVATE DUTY PERSONNEL & VOLUNTEERS
The revised Virginia assisted living regulations are scheduled to go into effect February 1, 2018. Nixon Law Group is posting a series of summaries on some of the key changes under the new regulations. In this summary, we review changes related to the use of private duty personnel and volunteers.
Please note that these summaries are intended simply to break down what the regulations say. They should not be confused with advice on how to actually comply with the new requirements. Compliance with the new regulations will likely require—among other things—new and revised policies and procedures that are specific to your community. Remember: When it comes to compliance, there is no one-size-fits-all solution.
Private Duty Personnel: 22 VAC 40-73-220
The regulations include a new section specifying the requirements applicable to private duty personnel who provide services to residents in an ALF. The section distinguishes between private duty personnel who are employed by a licensed home care organization and those who are not. The following requirements apply when care or companion services are provided by personnel of a licensed home health company:
- Before services are initiated, the facility must obtain written information regarding the type and frequency of services, make a determination as to whether the proposed service plan is acceptable, and notify the home care organization of the need for any changes;
- Services provided, as well as the identified needs such services are intended to meet, must be reflected on the resident’s ISP;
- The facility must ensure the tuberculosis-related requirements at 22 VAC 40-73-250(D)(1)-(4) are applied to private duty personnel, and that appropriate records are maintained by the home care organization;
- The facility must provide orientation and training to private duty personnel regarding facility’s policies and procedures relevant to the duties of private duty personnel;
- The facility is responsible for ensuring that documentation is maintained of all required resident care; and
- The facility must monitor the delivery of care and services to residents by private duty personnel.
In addition to the above, when private duty personnel are not employees of a licensed home health organization, the facility must do the following before services are initiated:
- The facility must obtain written information regarding the type and frequency of services, make a determination as to whether the proposed service plan is acceptable, and notify the individual who engaged the private duty caregiver of the need for any changes;
- Ensure private duty personnel are qualified, according to the types of services to be provided, and maintain documentation of such qualifications;
- Review an original criminal history record report from the Virginia State Police, dated no more than 90 days prior to initiation of services; 
- Maintain a written policy regarding private duty personnel and criminal histories, which the administrator must use to determine an individual’s conformance with that policy;
- Provide a copy of the criminal history record report to any private duty person who is denied the ability to provide services due to convictions appearing on the report;
- Maintain reports and documentation of review for one year after the last date of services; and
- Otherwise maintain and disseminate criminal history record reports consistent with applicable law and regulation.
The section ends by specifying that these requirements for private duty personnel do not apply to those who provide only skilled nursing treatments.
Volunteers: 22 VAC 40-73-240 
The new regulations require that facilities maintain documentation of any qualifications, orientation, training, and education required of volunteers. The minimum required content of orientation is unchanged, but volunteers must sign and date a statement acknowledging receipt and understanding of this information.
NLG can assist your community in preparing for and implementing the new regulations — Contact an NLG attorney today to find out how! Make sure to also sign up for our newsletter for THE LATEST summaries and other healthcare updates.
 If a private duty person is engaged to provide services to a different resident in the same facility, a new criminal history record report is not required if the lapse in services does not exceed 60 days.
 There are no changes in the preceding section, “Staff duties performed by residents.” Regrettably, there is also no clarification regarding situations in which residents perform staff duties on a volunteer basis.