Comprehensive Revisions to Virginia Assisted Living Regulations
Scheduled for Publication Today*
Final regulations that comprehensively revise Virginia’s current Standards for Licensed Assisted Living Facilities were scheduled for publication in today’s Virginia Register of Regulations. The new regulations will be under 22 VAC 40-73 and are scheduled to take effect February 1, 2018. This is the first in a series of summaries on key changes under the new assisted living regulations that NLG will be posting between now and February.
Definitions: 22 VAC 40-73-10
The regulations include a number of new definitions and revisions to current definitions. Two key areas of change are new and revised definitions regarding restraints and various decision-making roles. In addition to continuing to define chemical and physical restraints, there is a new definition for “Medical/orthopedic restraint,” which is “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.” The regulations also define the baseline term “Restraint,” as meaning “either ‘physical restraint’ or ‘chemical restraint’ as these terms are defined in this section.”
Revisions related to decision-making roles include a new definition for “Attorney-in-fact,” which means “strictly, one who is designated to transact business for another: a legal agent.” The definition of “Legal representative” was correspondingly revised to include additional language noted here in italic, “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.”
Program of Care: 22 VAC 40-73-30
Changes to Program of Care language reflect an overall trend in healthcare regulation toward principles of person-centered care. Rather than meeting the “resident population’s” needs, facilities are now specifically charged with meeting “the resident’s” needs. While this may not represent a significant practical change for facilities, it is an interesting shift in focus from a concept of community good to an emphasis on the needs and preferences of the individual.
The new regulations also require that facilities meet a resident’s “spiritual” needs, in addition to his/her physical, mental, emotional, and psychosocial needs, and the facility must design and implement a program of care that “[p]romotes the resident’s highest level of functioning.” The program must also promote a resident’s sense of independence and his/her involvement in “appropriate programs and community resources based on the resident’s needs and interests.”
Licensee: 22 VAC 40-73-40
The regulations include additional specific responsibilities and requirements for licensees. These include a requirement that licensees provide evidence of “financial responsibility and solvency.” The licensee is also identified as the individual responsible for ensuring that the licensee, his/her agents, the administrator, facility staff, or any relatives of the aforementioned do not “act as, seek to become, or become the conservator or guardian of any resident unless specifically so appointed by a court … .” While this restriction on guardian-/conservatorship is part of the existing regulations, there was no delegation of responsibility for its enforcement to any particular role within the facility. The new regulations also make the licensee responsible for ensuring the proper destruction of records in a manner that ensures confidentiality.
Additional changes to this section include:
Removal of current language requiring that a facility sponsored by a religious organization, corporation, or voluntary association be controlled by a board of directors with the duties of the licensee;
Clarification that required training for new licensees be completed before the granting of an initial license (versus simply requiring training “at the time of initial application”);
Specification of additional parties to receive notice of intended sale or closure of the facility.
If your assisted living community has questions or requires assistance preparing for and implementing the new regulations, please Contact Us. Also, make sure to sign up for NLG e-mail updates for the latest summaries and other healthcare happenings.
 The regulations were scheduled for publication today and, according to the Virginia Regulatory Town Hall website, were published in today’s issue of the Virginia Register of Regulations (available here). However, the Chapter containing the new Standards for Licensed Assisted Living Facilities (22 VAC 40-73, previously 22 VAC 40-72) does not appear in today’s issue. The reason for this is unclear and, by statute, the 30-day final adoption period begins to run when the final regulation is published in the Virginia Register (see § 2.2-4015(A), cross referencing § 2.2-4013(D) stating, “A thirty-day final adoption period for regulations shall commence upon the publication of the final regulation in the Register”). Nonetheless, because the regulations were not scheduled to take effect until February 1, 2018, facilities should anticipate that the regulations will still go into effect as scheduled.
*EDIT: As of 9/19/17, the Virginia Regulatory Town Hall website has updated this regulatory action to state that the regulations will be published in the Virginia Register on 11/13/17. The effective date of the new regulations remains February 1, 2018.
 See 22 VAC 40-72-120, “Conservator or Guardian.”
 Despite the new language, “In all cases, such training shall be completed prior to the granting of any initial license,” 22 VAC 40-73-40(C) (emphasis added), the regulations retain the provision that “[t]he commissioner may, at his discretion, issue a license conditioned upon completion … of the required training,” at 22 VAC 40-73-40(C)(4).