Administrative Code

Virginia Administrative Code
4/14/2021

Part III. Administrative Services

Article 1
Management and Administration

12VAC35-105-140. License availability.

Article 1
Management and Administration

The current license or a copy shall be prominently displayed for public inspection in all service locations.

Statutory Authority

§ 37.2-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 18, eff. September 19, 2002; amended, Virginia Register Volume 28, Issue 5, eff. December 7, 2011.

12VAC35-105-150. Compliance with applicable laws, regulations and policies.

The provider including its employees, contractors, students, and volunteers shall comply with:

1. This chapter;

2. The terms and stipulations of the license;

3. All applicable federal, state, or local laws and regulations including:

a. Laws regarding employment practices including the Equal Employment Opportunity Act;

b. The Americans with Disabilities Act and the Virginians with Disabilities Act;

c. For home and community-based services waiver settings subject to this chapter, 42 CFR 441.301(c)(1) through (4);

d. Occupational Safety and Health Administration regulations;

e. Virginia Department of Health regulations;

f. Virginia Department of Health Professions regulations;

g. Virginia Department of Medical Assistance Services regulations;

h. Uniform Statewide Building Code; and

i. Uniform Statewide Fire Prevention Code.

4. Section 37.2-400 of the Code of Virginia and related human rights regulations adopted by the state board; and

5. The provider's own policies. All required policies shall be in writing.

Statutory Authority

§§ 37.2-302 and 37.2-400 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 18, eff. September 19, 2002; amended, Virginia Register Volume 28, Issue 5, eff. December 7, 2011; Volume 36, Issue 22, eff. August 1, 2020.

12VAC35-105-155. Preadmission-screening, discharge planning, involuntary commitment, and mandatory outpatient treatment orders.

A. Providers responsible for complying with §§ 37.2-505 and 37.2-606 of the Code of Virginia regarding community services board and behavioral health authority preadmission screening and discharge planning shall implement policies and procedures that include:

1. Identification, qualification, training, and responsibilities of employees responsible for preadmission screening and discharge planning.

2. Completion of a discharge plan prior to an individual's discharge in consultation with the state facility that:

a. Involves the individual or his authorized representative and reflects the individual's preferences to the greatest extent possible consistent with the individual's needs.

b. Involves mental health, developmental disability, substance abuse, social, educational, medical, employment, housing, legal, advocacy, transportation, and other services that the individual will need upon discharge into the community and identifies the public or private agencies or persons that have agreed to provide them.

B. Any provider who serves individuals through an emergency custody order, temporary detention order, or mandatory outpatient treatment order shall implement policies and procedures to comply with §§ 37.2-800 through 37.2-817 of the Code of Virginia.

Statutory Authority

§§ 37.2-302 and 37.2-400 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 28, Issue 5, eff. December 7, 2011; amended, Virginia Register Volume 36, Issue 22, eff. August 1, 2020.

12VAC35-105-160. Reviews by the department; requests for information; required reporting.

A. The provider shall permit representatives from the department to conduct reviews to:

1. Verify application information;

2. Assure compliance with this chapter; and

3. Investigate complaints.

B. The provider shall cooperate fully with inspections and investigations and shall provide all information requested by the department.

C. The provider shall collect, maintain, and review at least quarterly all serious incidents, including Level I serious incidents, as part of the quality improvement program in accordance with 12VAC35-105-620 to include an analysis of trends, potential systemic issues or causes, indicated remediation, and documentation of steps taken to mitigate the potential for future incidents.

D. The provider shall collect, maintain, and report or make available to the department the following information:

1. Each allegation of abuse or neglect shall be reported to the department as provided in 12VAC35-115-230 A.

2. Level II and Level III serious incidents shall be reported using the department's web-based reporting application and by telephone or email to anyone designated by the individual to receive such notice and to the individual's authorized representative within 24 hours of discovery. Reported information shall include the information specified by the department as required in its web-based reporting application, but at least the following: the date, place, and circumstances of the serious incident. For serious injuries and deaths, the reported information shall also include the nature of the individual's injuries or circumstances of the death and any treatment received. For all other Level II and Level III serious incidents, the reported information shall also include the consequences that resulted from the serious incident. Deaths that occur in a hospital as a result of illness or injury occurring when the individual was in a licensed service shall be reported.

3. Instances of seclusion or restraint shall be reported to the department as provided in 12VAC35-115-230 C 4.

E. A root cause analysis shall be conducted by the provider within 30 days of discovery of Level II serious incidents and any Level III serious incidents that occur during the provision of a service or on the provider's premises.

1. The root cause analysis shall include at least the following information:

a. A detailed description of what happened;

b. An analysis of why it happened, including identification of all identifiable underlying causes of the incident that were under the control of the provider; and

c. Identified solutions to mitigate its reoccurrence and future risk of harm when applicable.

2. The provider shall develop and implement a root cause analysis policy for determining when a more detailed root cause analysis, including convening a team, collecting and analyzing data, mapping processes, and charting causal factors, should be conducted. At a minimum, the policy shall require for the provider to conduct a more detailed root cause analysis when:

a. A threshold number, as specified in the provider's policy based on the provider's size, number of locations, service type, number of individuals served, and the unique needs of the individuals served by the provider, of similar Level II serious incidents occur to the same individual or at the same location within a six-month period;

b. Two or more of the same Level III serious incidents occur to the same individual or at the same location within a six-month period;

c. A threshold number, as specified in the provider's policy based on the provider's size, number of locations, service type, number of individuals served, and the unique needs of the individuals served by the provider, of similar Level II or Level III serious incidents occur across all of the provider's locations within a six-month period; or

d. A death occurs as a result of an acute medical event that was not expected in advance or based on a person's known medical condition.

F. The provider shall make available and, when requested, submit reports and information that the department requires to establish compliance with these regulations and applicable statutes.

G. Records that are confidential under federal or state law shall be maintained as confidential by the department and shall not be further disclosed except as required or permitted by law; however, there shall be no right of access to communications that are privileged pursuant to § 8.01-581.17 of the Code of Virginia.

H. Additional information requested by the department if compliance with a regulation cannot be determined shall be submitted within 10 business days of the issuance of the licensing report requesting additional information. Extensions may be granted by the department when requested prior to the due date, but extensions shall not exceed an additional 10 business days.

I. Applicants and providers shall not submit any misleading or false information to the department.

J. The provider shall develop and implement a serious incident management policy, which shall be consistent with this section and which shall describe the processes by which the provider will document, analyze, and report to the department information related to serious incidents.

Statutory Authority

§§ 37.2-302 and 37.2-400 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 18, eff. September 19, 2002; amended, Virginia Register Volume 28, Issue 5, eff. December 7, 2011; Volume 36, Issue 22, eff. August 1, 2020.

12VAC35-105-170. Corrective action plan.

A. If there is noncompliance with any applicable regulation during an initial or ongoing review, inspection, or investigation, the department shall issue a licensing report describing the noncompliance and requesting the provider to submit a corrective action plan for each violation cited.

B. The provider shall submit to the department a written corrective action plan for each violation cited.

C. The corrective action plan shall include a:

1. Detailed description of the corrective actions to be taken that will minimize the possibility that the violation will occur again and correct any systemic deficiencies;

2. Date of completion for each corrective action; and

3. Signature of the person responsible for oversight of the implementation of the pledged corrective action.

D. The provider shall submit a corrective action plan to the department within 15 business days of the issuance of the licensing report. One extension may be granted by the department when requested prior to the due date, but extensions shall not exceed an additional 10 business days. An immediate corrective action plan shall be required if the department determines that the violations pose a danger to individuals receiving the service.

E. Upon receipt of the corrective action plan, the department shall review the plan and determine whether the plan is approved or not approved. The provider has an additional 10 business days to submit a revised corrective action plan after receiving a notice that the department has not approved the revised plan. If the submitted revised corrective action plan is not approved, the provider shall follow the dispute resolution process identified in this section.

F. When the provider disagrees with a citation of a violation or the disapproval of a revised corrective action plan, the provider shall discuss this disagreement with the licensing specialist initially. If the disagreement is not resolved, the provider may ask for a meeting with the licensing specialist's supervisor, in consultation with the director of licensing, to challenge a finding of noncompliance. The determination of the director is final.

G. The provider shall implement their written corrective action plan for each violation cited by the date of completion identified in the plan.

H. The provider shall monitor implementation and effectiveness of approved corrective actions as part of its quality improvement program required by 12VAC35-105-620. If the provider determines that an approved corrective action was fully implemented, but did not prevent the recurrence of a regulatory violation or correct any systemic deficiencies, the provider shall:

1. Continue implementing the corrective action plan and put into place additional measures to prevent the recurrence of the cited violation and address identified systemic deficiencies; or

2. Submit a revised corrective action plan to the department for approval.

Statutory Authority

§§ 37.2-302 and 37.2-400 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 18, eff. September 19, 2002; amended, Virginia Register Volume 28, Issue 5, eff. December 7, 2011; Volume 36, Issue 22, eff. August 1, 2020.

12VAC35-105-180. Notification of changes.

A. The provider shall notify the department in writing prior to implementing changes that affect:

1. Organizational or administrative structure, including the name of the provider;

2. Geographic location of the provider or its services;

3. Service description as defined in these regulations;

4. Significant changes to the staffing plan, position descriptions, or employee or contractor qualifications; or

5. Bed capacity for services providing residential or inpatient services.

B. The provider shall not implement the specified changes without the prior approval of the department.

C. The provider shall provide any documentation necessary for the department to determine continued compliance with these regulations after any of these specified changes are implemented.

D. A provider shall notify the department in writing of its intent to discontinue services 30 days prior to the cessation of services. The provider shall continue to provide all services that are identified in each individual's ISP after it has given official notice of its intent to cease operations and until each individual is appropriately discharged. The provider shall further continue to maintain substantial compliance with all applicable regulations as it discontinues its services.

E. All individuals receiving services and their authorized representatives shall be notified of the provider's intent to cease services in writing 30 days prior to the cessation of services. This written notification shall be documented in each individual's ISP.

Statutory Authority

§ 37.2-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 18, eff. September 19, 2002; amended, Virginia Register Volume 28, Issue 5, eff. December 7, 2011.

12VAC35-105-190. Operating authority, governing body and organizational structure.

A. The provider shall provide the following evidence of its operating authority:

1. Public organizations shall provide documents describing the administrative framework of the governmental department of which it is a component or describing the legal and administrative framework under which it was established and operates.

2. All private organizations except sole proprietorships shall provide a certificate from the State Corporation Commission.

B. The provider shall provide an organizational chart that clearly identifies its governing body and organizational structure.

C. The provider shall document the role and actions of the governing body, which shall be consistent with its operating authority. The provider shall identify its operating elements and services, the internal relationship among these elements and services, and its management or leadership structure.

Statutory Authority

§ 37.2-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 18, eff. September 19, 2002; amended, Virginia Register Volume 28, Issue 5, eff. December 7, 2011.

12VAC35-105-200. Appointment of administrator.

The provider shall appoint qualified persons to whom it delegates, in writing, the authority and responsibility for the administrative direction and day-to-day operation of the provider and its services.

Statutory Authority

§ 37.2-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 18, eff. September 19, 2002.

12VAC35-105-210. Fiscal accountability.

A. The provider shall document financial arrangements or a line of credit that are adequate to ensure maintenance of ongoing operations for at least 90 days on an ongoing basis. The amount needed shall be based on a working budget showing projected revenue and expenses.

B. At the end of each fiscal year, the provider shall prepare, according to generally accepted accounting principles (GAAP) or those standards promulgated by the Governmental Accounting Standards Board (GASB) and the State Auditor of Public Accounts:

1. An operating statement showing revenue and expenses for the fiscal year just ended.

2. A balance sheet showing assets and liabilities for the fiscal year just ended. The department may require an audit of all financial records by an independent Certified Public Accountant (CPA) or as otherwise provided by law or regulation.

3. Providers operating as a part of a local government agency are not required to provide a balance sheet; however, they shall provide a financial statement.

C. The provider shall have written internal controls to minimize the risk of theft or embezzlement of provider funds.

D. The provider shall identify in writing the title and qualifications of the person who has the authority and responsibility for the fiscal management of its services. At a minimum, the person who has the authority and responsibility for fiscal management shall be bonded or otherwise indemnified.

E. The provider shall notify the department in writing when its line of credit or other financial arrangement has been cancelled or significantly reduced at any time during the licensing period.

Statutory Authority

§ 37.2-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 18, eff. September 19, 2002; amended, Virginia Register Volume 28, Issue 5, eff. December 7, 2011.

12VAC35-105-220. Indemnity coverage.

To protect the interests of individuals, employees, and the provider from risks of liability, there shall be indemnity coverage to include:

1. General liability;

2. Professional liability;

3. Commercial vehicular liability; and

4. Property damage.

Statutory Authority

§ 37.2-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 18, eff. September 19, 2002; amended, Virginia Register Volume 28, Issue 5, eff. December 7, 2011.

12VAC35-105-230. Written fee schedule.

If the provider charges for services, the written schedule of rates and charges shall be available to the individual or authorized representative upon request.

Statutory Authority

§ 37.2-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 18, eff. September 19, 2002; amended, Virginia Register Volume 28, Issue 5, eff. December 7, 2011.

12VAC35-105-240. Policy on funds of individuals receiving services.

A. The provider shall implement a policy for handling funds of individuals receiving services, including providing for separate accounting of individual funds.

B. The provider shall have documented financial controls to minimize the risk of theft or embezzlement of funds of individuals receiving services.

C. The provider shall purchase a surety bond or otherwise provide assurance for the security of all funds of individuals receiving services deposited with the provider.

Statutory Authority

§ 37.2-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 18, eff. September 19, 2002; amended, Virginia Register Volume 28, Issue 5, eff. December 7, 2011.

12VAC35-105-250. Deceptive or false advertising.

A. The provider shall not use any advertising that contains false, misleading or deceptive statements or claims, or false or misleading disclosure of fees and payment for services.

B. The provider's name and service names shall not imply the provider is offering services for which it is not licensed.

Statutory Authority

§ 37.2-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 18, eff. September 19, 2002.

Article 2
Physical Environment

12VAC35-105-260. Building inspection and classification.

Article 2
Physical Environment

All locations shall be inspected and approved as required by the appropriate building regulatory entity. Documentation of approval shall be a Certificate of Use and Occupancy indicating the building is classified for its proposed licensed purpose. The provider shall submit a copy of the Certificate of Use and Occupancy to the department for new locations. This section does not apply to correctional facilities or home and noncenter-based services. Sponsored residential service providers shall certify that their sponsored residential homes comply with this regulation.

Statutory Authority

§ 37.2-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 18, eff. September 19, 2002; amended, Virginia Register Volume 28, Issue 5, eff. December 7, 2011.

12VAC35-105-265. Floor plans.

All services shall submit floor plans with room dimensions to the department for new locations. This does not apply to home or noncenter-based services.

Statutory Authority

§ 37.2-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 28, Issue 5, eff. December 7, 2011.

12VAC35-105-270. Building modifications.

A. The provider shall submit building plans and specifications for any planned construction at a new location, changes in the use of existing locations, and any structural modifications or additions to existing locations where services are provided for review by the department to determine compliance with the licensing regulations. This section does not apply to correctional facilities, jails, or home and noncenter-based services.

B. The provider shall submit an interim plan to the department addressing safety and continued service delivery if new construction involving structural modifications or additions to existing buildings is planned.

Statutory Authority

§ 37.2-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 18, eff. September 19, 2002; amended, Virginia Register Volume 28, Issue 5, eff. December 7, 2011.

12VAC35-105-280. Physical environment.

A. The physical environment, design, structure, furnishings, and lighting shall be appropriate to the individuals served and the services provided.

B. The physical environment shall be accessible to individuals with physical and sensory disabilities, if applicable.

C. The physical environment and furnishings shall be clean, dry, free of foul odors, safe, and well-maintained.

D. Floor surfaces and floor coverings shall promote mobility in areas used by individuals and shall promote maintenance of sanitary conditions.

E. The physical environment shall be well ventilated. Temperatures shall be maintained between 65°F and 80°F in all areas used by individuals.

F. Adequate hot and cold running water of a safe and appropriate temperature shall be available. Hot water accessible to individuals being served shall be maintained within a range of 100-110°F. If temperatures cannot be maintained within the specified range, the provider shall make provisions for protecting individuals from injury due to scalding.

G. Lighting shall be sufficient for the activities being performed and all areas within buildings and outside entrances and parking areas shall be lighted for safety.

H. Recycling, composting, and garbage disposal shall not create a nuisance, permit transmission of disease, or create a breeding place for insects or rodents.

I. If smoking is permitted, the provider shall make provisions for alternate smoking areas that are separate from the service environment. This subsection does not apply to home-based services.

J. For all program areas added after September 19, 2002, minimum room height shall be 7-1/2 feet.

K. This section does not apply to home and noncenter-based services. Sponsored residential services shall certify compliance of sponsored residential homes with this section.

Statutory Authority

§ 37.2-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 18, eff. September 19, 2002; amended, Virginia Register Volume 19, Issue 24, eff. September 18, 2003; Volume 28, Issue 5, eff. December 7, 2011.

12VAC35-105-290. Food service inspections.

Any location where the provider is responsible for preparing or serving food shall request inspection and shall obtain approval by state or local health authorities regarding food service and general sanitation at the time of the original application and annually thereafter. Documentation of the most recent three inspections and approval shall be kept on file. This section does not apply to sponsored residential services or to group homes or community residential homes.

Statutory Authority

§ 37.2-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 18, eff. September 19, 2002; amended, Virginia Register Volume 28, Issue 5, eff. December 7, 2011.

12VAC35-105-300. Sewer and water inspections.

A. Service locations shall be on a public water and sewage system or on a nonpublic water and sewage system. Prior to a location being licensed, the provider shall obtain the report from the building inspector pertaining to the septic system and its capacity. Nonpublic water and sewer systems shall be maintained in good working order and in compliance with local and state laws. Providers of sponsored residential home services shall certify that their sponsored residential homes comply with this section.

B. Service locations that are not on a public water system shall have a water sample tested prior to being licensed and annually by an accredited, independent laboratory for the absence of chloroform. The water sample shall also be tested for lead or nitrates if recommended by the local health department. Documentation of the three most recent inspections shall be kept on file.

Statutory Authority

§ 37.2-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 18, eff. September 19, 2002; amended, Virginia Register Volume 28, Issue 5, eff. December 7, 2011.

12VAC35-105-310. Weapons.

The provider or facility shall have and implement a written policy governing the use and possession of firearms, pellet guns, air rifles, and other weapons on the premises, including parking areas, of the provider's services. The policy shall provide that no firearms, pellet guns, air rifles, and other weapons shall be permitted unless the weapons are:

1. In the possession of licensed security or sworn law-enforcement personnel;

2. Kept securely under lock and key; or

3. Used under the supervision of a responsible adult in accordance with policies and procedures developed by the provider for the weapons' lawful and safe use.

Statutory Authority

§ 37.2-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 18, eff. September 19, 2002; amended, Virginia Register Volume 28, Issue 5, eff. December 7, 2011.

12VAC35-105-320. Fire inspections.

The provider shall document at the time of its original application and annually thereafter that buildings and equipment in residential service locations serving more than eight individuals are maintained in accordance with the Virginia Statewide Fire Prevention Code (13VAC5-51). This section does not apply to correctional facilities or home and noncenter-based or sponsored residential home services.

Statutory Authority

§§ 37.2-302 and 37.2-400 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 18, eff. September 19, 2002; amended, Virginia Register Volume 28, Issue 5, eff. December 7, 2011; Volume 36, Issue 22, eff. August 1, 2020.

12VAC35-105-325. Community liaison.

Each residential service shall designate a staff person as a community liaison responsible for facilitating cooperative relationships with neighbors, local law-enforcement personnel, local government officials, and the community at large.

Statutory Authority

§ 37.2-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 28, Issue 5, eff. December 7, 2011.

Article 3
Physical Environment of Residential and Inpatient Service Locations

12VAC35-105-330. Beds.

Article 3
Physical Environment of Residential and Inpatient Service Locations

A. The provider shall not operate more beds than the number for which its service location is licensed.

B. An ICF/IID may not have more than 12 beds at any one location. This applies to new applications for services and not to existing services or locations licensed prior to December 7, 2011.

Statutory Authority

§§ 37.2-302 and 37.2-400 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 18, eff. September 19, 2002; amended, Virginia Register Volume 28, Issue 5, eff. December 7, 2011; Volume 36, Issue 22, eff. August 1, 2020.

12VAC35-105-340. Bedrooms.

A. Bedrooms shall meet the following square footage requirements:

1. Single occupancy bedrooms shall have no less than 80 square feet of floor space.

2. Multiple occupancy bedrooms shall have no less than 60 square feet of floor space per individual.

3. This subsection does not apply to community gero-psychiatric residential services.

B. No more than four individuals shall share a bedroom, except in group homes where no more than two individuals shall share a room. This does not apply to group home locations licensed prior to December 7, 2011.

C. Each individual shall have adequate private storage space accessible to the bedroom for clothing and personal belongings.

D. This section does not apply to correctional facilities and jails. Providers of sponsored residential home services shall certify that their sponsored residential homes comply with this section.

Statutory Authority

§ 37.2-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 18, eff. September 19, 2002; amended, Virginia Register Volume 28, Issue 5, eff. December 7, 2011.

12VAC35-105-350. Condition of beds.

Beds shall be clean, comfortable, and equipped with a mattress, pillow, blankets, and bed linens. When a bed is soiled, providers shall assist individuals with bathing as needed, and provide clean clothing and bed linen. Providers of sponsored residential home services shall certify that their sponsored residential homes comply with this section.

Statutory Authority

§ 37.2-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 18, eff. September 19, 2002; amended, Virginia Register Volume 28, Issue 5, eff. December 7, 2011.

12VAC35-105-360. Privacy.

A. Bedroom and bathroom windows and doors shall provide privacy.

B. Bathrooms intended for use by more than one individual at the same time shall provide privacy for showers and toilets.

C. No required path of travel to the bathroom shall be through another bedroom.

D. This section does not apply to correctional facilities and jails. Providers of sponsored residential home services shall certify that their sponsored residential homes comply with this section.

Statutory Authority

§ 37.2-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 18, eff. September 19, 2002; amended, Virginia Register Volume 28, Issue 5, eff. December 7, 2011.

12VAC35-105-370. Ratios of toilets, basins, and showers or baths.

For all residential and inpatient locations established, constructed, or reconstructed after January 13, 1995, there shall be at least one toilet, one hand basin, and shower or bath for every four individuals. This section does not apply to correctional facilities or jails. Providers of sponsored residential home services shall certify that their sponsored residential homes comply with this section .

Statutory Authority

§ 37.2-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 18, eff. September 19, 2002; amended, Virginia Register Volume 28, Issue 5, eff. December 7, 2011.

12VAC35-105-380. Lighting.

Each service location shall have adequate lighting in halls and bathrooms at night. Providers of sponsored residential home services shall certify that their sponsored residential homes comply with this section.

Statutory Authority

§ 37.2-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 18, eff. September 19, 2002; amended, Virginia Register Volume 28, Issue 5, eff. December 7, 2011.

Article 4
Human Resources

12VAC35-105-390. Confidentiality and security of personnel records.

Article 4
Human Resources

A. The provider shall maintain an organized system to manage and protect the confidentiality of personnel files and records.

B. Physical and data security controls shall exist for personnel records maintained in electronic databases.

C. Providers shall comply with requirements of the Americans with Disabilities Act and the Virginians with Disabilities Act regarding retention of employee health-related information in a file separate from personnel files.

Statutory Authority

§ 37.2-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 18, eff. September 19, 2002; amended, Virginia Register Volume 28, Issue 5, eff. December 7, 2011.

12VAC35-105-400. Criminal background checks and registry searches.

A. Providers shall comply with the requirements for obtaining criminal history background checks as outlined in §§ 37.2-416, 37.2-506, and 37.2-607 of the Code of Virginia for individuals hired after July 1, 1999.

B. The provider shall develop a written policy for criminal history background checks and registry searches. The policy shall require at a minimum a disclosure statement stating whether the person has ever been convicted of or is the subject of pending charges for any offense and shall address what actions the provider will take should it be discovered that a person has a founded case of abuse or neglect or both, or a conviction or pending criminal charge.

C. The provider shall submit all information required by the department to complete the criminal history background checks and registry searches.

D. The provider shall maintain the following documentation:

1. The disclosure statement from the applicant stating whether he has ever been convicted of or is the subject of pending charges for any offense; and

2. Documentation that the provider submitted all information required by the department to complete the criminal history background checks and registry searches, memoranda from the department transmitting the results to the provider, if applicable, and the results from the Child Protective Registry search.

Statutory Authority

§§ 37.2-302 and 37.2-400 of the Code of Virginia.f the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 18, eff. September 19, 2002; amended, Virginia Register Volume 28, Issue 5, eff. December 7, 2011; Volume 36, Issue 22, eff. August 1, 2020.

12VAC35-105-410. Job description.

A. Each employee or contractor shall have a written job description that includes:

1. Job title;

2. Duties and responsibilities required of the position;

3. Job title of the immediate supervisor; and

4. Minimum knowledge, skills, and abilities, experience or professional qualifications required for entry level as specified in 12VAC35-105-420.

B. Employees or contractors shall have access to their current job description. The provider shall have written documentation of the mechanism used to advise employees or contractors of changes to their job responsibilities.

Statutory Authority

§ 37.2-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 18, eff. September 19, 2002; amended, Virginia Register Volume 28, Issue 5, eff. December 7, 2011.

12VAC35-105-420. Qualifications of employees or contractors.

A. Any person who assumes the responsibilities of any position as an employee or a contractor shall meet the minimum qualifications of that position as determined by job descriptions.

B. Employees and contractors shall comply, as required, with the regulations of the Department of Health Professions. The provider shall design, implement, and document the process used to verify professional credentials.

C. Supervisors shall have experience in working with individuals being served and in providing the services outlined in the service description.

D. Job descriptions shall include minimum knowledge, skills and abilities, professional qualifications and experience appropriate to the duties and responsibilities required of the position.

E. All staff shall demonstrate a working knowledge of the policies and procedures that are applicable to his specific job or position.

Statutory Authority

§ 37.2-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 18, eff. September 19, 2002; amended, Virginia Register Volume 28, Issue 5, eff. December 7, 2011.

12VAC35-105-430. Employee or contractor personnel records.

A. Employee or contractor personnel records, whether hard-copy or electronic, shall include:

1. Individual identifying information;

2. Education and training history;

3. Employment history;

4. Results of any provider credentialing process including methods of verification of applicable professional licenses or certificates;

5. Results of reasonable efforts to secure job-related references and reasonable verification of employment history;

6. Results of the required criminal background checks and searches of the registry of founded complaints of child abuse and neglect;

7. Results of performance evaluations;

8. A record of disciplinary action taken by the provider, if any;

9. A record of adverse action by any licensing and oversight bodies or organizations, if any; and

10. A record of participation in employee development activities, including orientation.

B. Each employee or contractor personnel record shall be retained in its entirety for a minimum of three years after the employee's or contractor's termination of employment.

Statutory Authority

§ 37.2-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 18, eff. September 19, 2002; amended, Virginia Register Volume 28, Issue 5, eff. December 7, 2011.

12VAC35-105-440. Orientation of new employees, contractors, volunteers, and students.

New employees, contractors, volunteers, and students shall be oriented commensurate with their function or job-specific responsibilities within 15 business days. The provider shall document that the orientation covers each of the following policies, procedures, and practices:

1. Objectives and philosophy of the provider;

2. Practices of confidentiality including access, duplication, and dissemination of any portion of an individual's record;

3. Practices that assure an individual's rights including orientation to human rights regulations;

4. Applicable personnel policies;

5. Emergency preparedness procedures;

6. Person-centeredness;

7. Infection control practices and measures;

8. Other policies and procedures that apply to specific positions and specific duties and responsibilities; and

9. Serious incident reporting, including when, how, and under what circumstances a serious incident report must be submitted and the consequences of failing to report a serious incident to the department in accordance with this chapter.

Statutory Authority

§§ 37.2-302 and 37.2-400 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 18, eff. September 19, 2002; amended, Virginia Register Volume 28, Issue 5, eff. December 7, 2011; Volume 36, Issue 22, eff. August 1, 2020.

12VAC35-105-450. Employee training and development.

The provider shall provide training and development opportunities for employees to enable them to support the individuals receiving services and to carry out their job responsibilities. The provider shall develop a training policy that addresses the frequency of retraining on serious incident reporting, medication administration, behavior intervention, emergency preparedness, and infection control, to include flu epidemics. Employee participation in training and development opportunities shall be documented and accessible to the department.

Statutory Authority

§§ 37.2-302 and 37.2-400 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 18, eff. September 19, 2002; amended, Virginia Register Volume 28, Issue 5, eff. December 7, 2011; Volume 36, Issue 22, eff. August 1, 2020.

12VAC35-105-460. Emergency medical or first aid training.

There shall be at least one employee or contractor on duty at each location who holds a current certificate (i) issued by the American Red Cross, the American Heart Association, or comparable authority in standard first aid and cardiopulmonary resuscitation (CPR) or (ii) as an emergency medical technician. A licensed medical professional who holds a current professional license shall be deemed to hold a current certificate in first aid, but not in CPR. The certification process shall include a hands-on, in-person demonstration of first aid and CPR competency.

Statutory Authority

§§ 37.2-302 and 37.2-400 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 18, eff. September 19, 2002; amended, Virginia Register Volume 28, Issue 5, eff. December 7, 2011; Volume 36, Issue 22, eff. August 1, 2020.

12VAC35-105-470. Notification of policy changes.

All employees or contractors shall be kept informed of policy changes that affect performance of duties. The provider shall have written documentation of the process used to advise employees or contractors of policy changes.

Statutory Authority

§ 37.2-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 18, eff. September 19, 2002; amended, Virginia Register Volume 28, Issue 5, eff. December 7, 2011.

12VAC35-105-480. Employee or contractor performance evaluation.

A. The provider shall implement a written policy for evaluating employee and contractor performance.

B. Employee development needs and plans shall be a part of the performance evaluation.

C. The provider shall evaluate employee and contractor performance at least annually.

Statutory Authority

§ 37.2-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 18, eff. September 19, 2002; amended, Virginia Register Volume 28, Issue 5, eff. December 7, 2011.

12VAC35-105-490. Written grievance policy.

The provider shall implement a written grievance policy and shall inform employees of grievance procedures. The provider shall have documentation of the process used to advise employees of grievance procedures.

Statutory Authority

§ 37.2-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 18, eff. September 19, 2002; amended, Virginia Register Volume 28, Issue 5, eff. December 7, 2011.

12VAC35-105-500. Students and volunteers.

A. The provider shall implement a written policy that clearly defines and communicates the requirements for the use and responsibilities of students and volunteers including selection and supervision.

B. The provider shall not rely on students or volunteers to supplant direct care positions. The provider staffing plan shall not include volunteers or students.

Statutory Authority

§§ 37.2-302 and 37.2-400 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 18, eff. September 19, 2002; amended, Virginia Register Volume 28, Issue 5, eff. December 7, 2011; Volume 36, Issue 22, eff. August 1, 2020.

12VAC35-105-510. Tuberculosis screening.

A. Each new employee, contractor, student, or volunteer who will have direct contact with individuals receiving services shall obtain a statement of certification by a qualified licensed practitioner indicating the absence of tuberculosis in a communicable form within 30 days of employment or initial contact with individuals receiving services. The employee shall submit a copy of the original screening to the provider. A statement of certification shall not be required for a new employee who has separated from service with another licensed provider with a break in service of six months or less or who is currently working for another licensed provider.

B. All employees, contractors, students, or volunteers in substance abuse co-occurring outpatient or residential treatment services shall be certified as tuberculosis free on an annual basis by a qualified licensed practitioner.

C. Any employee, contractor, student, or volunteer who comes in contact with a known case of active tuberculosis disease or who develops symptoms of active tuberculosis disease (including, but not limited to fever, chills, hemoptysis, cough, fatigue, night sweats, weight loss , or anorexia) of three weeks duration shall be screened as determined appropriate for continued contact with employees, contractors, students, volunteers, or individuals receiving services based on consultation with the local health department.

D. An employee, contractor, student, or volunteer suspected of having active tuberculosis shall not be permitted to return to work or have contact with employees, contractors, students, volunteers , or individuals receiving services until a physician has determined that the person is free of active tuberculosis.

Statutory Authority

§ 37.2-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 18, eff. September 19, 2002; amended, Virginia Register Volume 28, Issue 5, eff. December 7, 2011.

Article 5
Health and Safety Management

12VAC35-105-520. Risk management.

Article 5
Health and Safety Management

A. The provider shall designate a person responsible for the risk management function who has completed department approved training, which shall include training related to risk management, understanding of individual risk screening, conducting investigations, root cause analysis, and the use of data to identify risk patterns and trends.

B. The provider shall implement a written plan to identify, monitor, reduce, and minimize harms and risk of harm, including personal injury, infectious disease, property damage or loss, and other sources of potential liability.

C. The provider shall conduct systemic risk assessment reviews at least annually to identify and respond to practices, situations, and policies that could result in the risk of harm to individuals receiving services. The risk assessment review shall address at least the following:

1. The environment of care;

2. Clinical assessment or reassessment processes;

3. Staff competence and adequacy of staffing;

4. Use of high risk procedures, including seclusion and restraint; and

5. A review of serious incidents.

D. The systemic risk assessment process shall incorporate uniform risk triggers and thresholds as defined by the department.

E. The provider shall conduct and document that a safety inspection has been performed at least annually of each service location owned, rented, or leased by the provider. Recommendations for safety improvement shall be documented and implemented by the provider.

F. The provider shall document serious injuries to employees, contractors, students, volunteers, and visitors that occur during the provision of a service or on the provider's property. Documentation shall be kept on file for three years. The provider shall evaluate serious injuries at least annually. Recommendations for improvement shall be documented and implemented by the provider.

Statutory Authority

§§ 37.2-302 and 37.2-400 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 18, eff. September 19, 2002; amended, Virginia Register Volume 28, Issue 5, eff. December 7, 2011; Volume 36, Issue 22, eff. August 1, 2020.

12VAC35-105-530. Emergency preparedness and response plan.

A. The provider shall develop a written emergency preparedness and response plan for all of its services and locations that describes its approach to emergencies throughout the organization or community. This plan shall include an analysis of potential emergencies that could disrupt the normal course of service delivery including emergencies that would require expanded or extended care over a prolonged period of time. The plan shall address:

1. Specific procedures describing mitigation, preparedness, response, and recovery strategies, actions, and responsibilities for each emergency.

2. Documentation of coordination with the local emergency authorities to determine local disaster risks and community-wide plans to address different disasters and emergency situations.

3. The process for notifying local and state authorities of the emergency and a process for contacting staff when emergency response measures are initiated.

4. Written emergency management policies outlining specific responsibilities for provision of administrative direction and management of response activities, coordination of logistics during the emergency, communications, life safety of employees, contractors, students, volunteers, visitors, and individuals receiving services, property protection, community outreach, and recovery and restoration.

5. Written emergency response procedures for initiating the response and recovery phase of the plan including a description of how, when, and by whom the phases will be activated. This includes assessing the situation; protecting individuals receiving services, employees, contractors, students, volunteers, visitors, equipment, and vital records; and restoring services. Emergency procedures shall address:

a. Warning and notifying individuals receiving services;

b. Communicating with employees, contractors, and community responders;

c. Designating alternative roles and responsibilities of staff during emergencies including to whom they will report in the provider's organization command structure and when activated in the community's command structure;

d. Providing emergency access to secure areas and opening locked doors;

e. Evacuation procedures, including for individuals who need evacuation assistance;

f. Conducting evacuations to emergency shelters or alternative sites and accounting for all individuals receiving services;

g. Relocating individuals receiving residential or inpatient services, if necessary;

h. Notifying family members or authorized representatives;

i. Alerting emergency personnel and sounding alarms;

j Locating and shutting off utilities when necessary; and

k. Maintaining a 24 hour telephone answering capability to respond to emergencies for individuals receiving services.

6. Processes for managing the following under emergency conditions:

a. Activities related to the provision of care, treatment, and services including scheduling, modifying, or discontinuing services; controlling information about individuals receiving services; providing medication; and transportation services;

b. Logistics related to critical supplies such as pharmaceuticals, food, linen, and water;

c. Security including access, crowd control, and traffic control; and

d. Back-up communication systems in the event of electronic or power failure.

7. Specific processes and protocols for evacuation of the provider's building or premises when the environment cannot support adequate care, treatment, and services.

8. Supporting documents that would be needed in an emergency, including emergency call lists, building and site maps necessary to shut off utilities, designated escape routes, and list of major resources such as local emergency shelters.

9. Schedule for testing the implementation of the plan and conducting emergency preparedness drills. Fire and evacuation drills shall be conducted at least monthly.

B. The provider shall evaluate each individual and, based on that evaluation, shall provide appropriate environmental supports and adequate staff to safely evacuate all individuals during an emergency.

C. The provider shall implement annual emergency preparedness and response training for all employees, contractors, students, and volunteers. This training shall also be provided as part of orientation for new employees and cover responsibilities for:

1. Alerting emergency personnel and sounding alarms;

2. Implementing evacuation procedures, including evacuation of individuals with special needs (i.e., deaf, blind, nonambulatory);

3. Using, maintaining, and operating emergency equipment;

4. Accessing emergency medical information for individuals receiving services; and

5. Utilizing community support services.

D. The provider shall review the emergency preparedness plan annually and make necessary revisions. Such revisions shall be communicated to employees, contractors, students, volunteers, and individuals receiving services and incorporated into training for employees, contractors, students, and volunteers and into the orientation of individuals to services.

E. In the event of a disaster, fire, emergency, or any other condition that may jeopardize the health, safety, or welfare of individuals, the provider shall take appropriate action to protect the health, safety, and welfare of individuals receiving services and take appropriate actions to remedy the conditions as soon as possible.

F. Employees, contractors, students, and volunteers shall be knowledgeable in and prepared to implement the emergency preparedness plan in the event of an emergency. The plan shall include a policy regarding regularly scheduled emergency preparedness training for all employees, contractors, students, and volunteers.

G. In the event of a disaster, fire, emergency, or any other condition that may jeopardize the health, safety, or welfare of individuals, the provider should first respond and stabilize the disaster or emergency. After the disaster or emergency is stabilized, the provider should report the disaster or emergency to the department, but no later than 24 hours after the incident occurs.

H. Providers of residential services shall have at all times a three-day supply of emergency food and water for all residents and staff. Emergency food supplies should include foods that do not require cooking. Water supplies shall include one gallon of water per person per day.

I. All provider locations shall be equipped with at least one approved type ABC portable fire extinguisher with a minimum rating of 2A10BC installed in each kitchen.

J. All provider locations shall have an appropriate number of properly installed smoke detectors based on the size of the location, which shall include at a minimum:

1. At least one smoke detector on each level of multi-level buildings, including the basement;

2. At least one smoke detector in each bedroom in locations with bedrooms;

3. At least one smoke detector in any area adjacent to any bedroom in locations with bedrooms; and

4. Any additional smoke detectors necessary to comply with all applicable federal and state laws and regulations and local ordinances.

K. Smoke detectors shall be tested monthly for proper operation.

L. All provider locations shall maintain a floor plan identifying locations of:

1. Exits;

2. Primary and secondary evacuation routes;

3. Accessible egress routes;

4. Portable fire extinguishers; and

5. Flashlights.

M. This section does not apply to home and noncenter-based services.

Statutory Authority

§§ 37.2-302 and 37.2-400 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 18, eff. September 19, 2002; amended, Virginia Register Volume 28, Issue 5, eff. December 7, 2011; Volume 36, Issue 22, eff. August 1, 2020.

12VAC35-105-540. Access to telephone in emergencies; emergency telephone numbers.

A. Telephones shall be accessible for emergency purposes.

B. Instructions for contacting emergency services and telephone numbers shall be prominently posted near the telephone including how to contact provider medical personnel if appropriate.

C. This section does not apply to home and noncenter-based services and correctional facilities.

Statutory Authority

§ 37.2-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 18, eff. September 19, 2002; amended, Virginia Register Volume 28, Issue 5, eff. December 7, 2011.

12VAC35-105-550. First aid kit accessible.

A. A well-stocked first aid kit shall be maintained and readily accessible for minor injuries and medical emergencies at each service location and to employees or contractors providing in-home services or traveling with individuals. The minimum requirements of a well-stocked first aid kit that shall be maintained include a thermometer, bandages, saline solution, band-aids, sterile gauze, tweezers, instant ice-pack, adhesive tape, first-aid cream, and antiseptic soap.

B. A cardiopulmonary resuscitation (CPR) face guard or mask shall be readily accessible.

Statutory Authority

§ 37.2-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 18, eff. September 19, 2002; amended, Virginia Register Volume 28, Issue 5, eff. December 7, 2011.

12VAC35-105-560. Operable flashlights or battery lanterns.

Operable flashlights or battery lanterns shall be readily accessible to employees and contractors in services that operate between dusk and dawn to use in emergencies. This section does not apply to home and noncenter-based services.

Statutory Authority

§ 37.2-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 18, eff. September 19, 2002; amended, Virginia Register Volume 28, Issue 5, eff. December 7, 2011.

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