HD83 - Report on the Implementation of 2005 Legislation for Assisted Living Facilities


Executive Summary:
The 2005 General Assembly passed legislation to amend the Code of Virginia relative to assisted living facilities. The legislation was intended to increase the care and protection of some of the Commonwealth's most vulnerable adult population. The ninth enactment clause in Chapter 924 of the 2005 Acts of Assembly directs the Department of Social Services to submit a report on the implementation of the assisted living facility legislation to the Governor and the chairmen of the Joint Commission on Health Care, the House Committee on Health, Welfare and Institutions, and the Senate Committee on Rehabilitation and Social Services by November 1, 2005.

The 2005 legislation was proposed in response to growing concerns over the care and protection of Virginia's vulnerable adult population residing in assisted living facilities. A number of stakeholders and agencies representing a wide range of concerns provided input into the legislation.

Elements of Chapter 924 of the 2005 Appropriations Act include the following:

• Increases the ratio of long term care ombudsman to one ombudsman per 2000 long term care beds, subject to sufficient appropriation by the General Assembly;
• Requires licensure of assisted living administrators;
• Requires registration of medication aides;
• Requires applicants for licensure to have background checks;
• Requires provisional licenses to be posted;
• Creates a provision for appointing an interim manager in assisted living facilities;
• Grants authority to the Commissioner for summary suspension of licenses;
• Creates a provision for partial de-licensure in lieu of forcible closure;
• Increases the maximum for civil penalties to $ 1 0,000 within a 24-month period;
• Adds a statutory base for allowable variances;
• Requires regulations for direct care staff qualifications and training;
• Requires a facility medication management plan;
• Requires a limit on the number of facilities an administrator may be responsible for overseeing;
• Provides requirements for public disclosure of information; and
• Requires referral for MI/MR/SAS populations.

In addition, enactment clauses require the following actions by the Department of Social Services (DSS).

Requires the State Board of Social Services to promulgate regulations within 280 days of enactment;

• Requires DSS to develop a training module on regulations and statutes, and train all adult inspectors;
• Requires DSS to seek consultation on development of regulations and integrate recommendations from the Department of Mental Health, Mental Retardation and Substance Abuse Services; and
• Requires protocol for the expedited appointment of hearing officers in summary suspension appeals.

Implementation of Legislation

• The state long-term care ombudsman program was granted a ratio of one ombudsman to every 2000 long-term care beds, subject to sufficient appropriation by the General Assembly. This provision was not funded.

• The Department of Health Professions (DHP) Board of Long-Term Care Administrators was established to administer and regulate the licensure of assisted living facility administrators. The first meeting was held in August 2005 and a task force was appointed to develop the curriculum and criteria for licensure. The DHP Board of Nursing has also established a task force to develop the registration process for medication aides and has started meeting. The DSS serves on both of these task forces.

• An exempt regulatory action was approved by the State Board of Social Services on April20, 2005 to require applicants for licensure to have background checks. This became effective on July 1, 2005.

• An emergency regulation and proposed replacement regulation for 22 VAC 40-80, General Procedures and Information for Licensure, were approved by the State Board of Social Services on August 17, 2005. The effective date of the emergency regulation is December 28, 2005. The regulations provide for implementation of the following provisions:

* The requirement for provisional licenses to be posted;
* Procedures for the summary suspension of a license to operate an assisted living facility when conditions or practices exist that pose imminent threat to the health, safety, and welfare of the residents; and
* Procedures for denying, revoking or summarily suspending a portion of a license to operate an assisted living facility when conditions or practices exist that pose imminent threat to the health, safety, and welfare of the residents have been added to the General Procedures.

Appropriate provisions for allowable variances already exist in the General Procedures regulation.

• An emergency and proposed replacement regulation for 22 VAC 40-71, Standards and Regulations for Licensed Assisted Living Facilities, were approved by the State Board of Social Services on August 17, 2005. The effective date of the emergency regulation is December 28, 2005. The regulations provide for implementation of the following provisions:

* Increased requirements for direct care staff qualifications and training;
* Requirements for a facility medication management plan;
* Requirements for determining the number of facilities an administrator may administer;
* Requirements for information a facility must disclose to the public; and
* Requirements for the referral of residents diagnosed with mental illness, mental retardation or substance abuse or who exhibit patterns of behavior related to these diagnoses to a mental health.

In addition, the following steps have been taken by the State Board of Social Services and DSS:

• Protocols for the implementation of the provision for an interim manager when conditions or practices exist that pose an imminent and substantial threat to the health, safety, and welfare of the residents have been developed by the DSS Division of Licensing Programs.

• Criteria that allow a maximum of $1 0,000 in civil penalties to be issued in any 24-Month period was approved by the State Board of Social Services in August 2005. Staff will be trained on these procedures in October 2005.

• The DSS Division of Licensing Programs developed a training module on regulations and statutes relevant to assisted living facilities that was presented to all adult care licensing inspectors in August and September 2005 and is supplemented by a self-paced workbook with exercises and a final knowledge check.

• Sections of the revised regulation for assisted living facilities related to mental health, mental retardation and substance abuse were submitted to DMHMRSAS in April 2005, for input and recommendations. Written recommendations received by DSS from DMHMRSAS were incorporated into the emergency and proposed regulations for assisted living facilities.

• The Office of the Executive Secretary of the Supreme Court of Virginia informed DSS in April 2005 that a protocol regarding the expedited appointment of hearing officers in summary suspension appeals was unnecessary and that the Supreme Court would be required to comply with established timeframes.

• The DSS Division of Licensing Programs will meet with and provide progress updates no less than every six weeks to the Assisted Living Advisory Committee and interested parties.