Part I. Definitions and General Information
12VAC5-371-10. Definitions.
The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:
"Abuse" means the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish, or deprivation by an individual, including caretaker, of goods or services that are necessary to attain or maintain physical, mental, and psychosocial well-being. This includes verbal, sexual, physical, or mental abuse.
"ACIP" means the Advisory Committee on Immunization Practices of the CDC.
"Administrator" means the individual licensed by the Board of Long-Term Care Administrators who has the necessary authority and responsibility for management of the nursing facility.
"Admission" means the process of acceptance into a nursing facility, including orientation, rules and requirements, and assignment to appropriate staff. Admission does not include readmission to the facility after a temporary absence.
"Advance directive" means (i) a witnessed written document, voluntarily executed by the declarant in accordance with the requirements of § 54.1-2983 of the Code of Virginia, or (ii) a witnessed oral statement, made by the declarant subsequent to the time the declarant is diagnosed as suffering from a terminal condition and in accordance with the provisions of § 54.1-2983 of the Code of Virginia.
"Assessment" means the process of evaluating a resident for the purpose of developing a profile on which to base services. Assessment includes information gathering, both initially and on an ongoing basis, designed to assist the multi-disciplinary staff in determining the resident's need for care, and the collection and review of resident-specific data.
"Attending physician" means a physician currently licensed by the Board of Medicine and identified by the resident, or legal representative, as having the primary responsibility in determining the delivery of the resident's medical care.
"Barrier crime" means any offense set forth in clause (i) of the definition of barrier crime in § 19.2-392.02 of the Code of Virginia.
"Board" means the State Board of Health.
"Business day" means any day that is not a Saturday, Sunday, legal holiday, or day on which the OLC is closed. For the purposes of this chapter, any day on which the Governor authorizes the closing of the state government shall be considered a legal holiday.
"Cannabis oil" means the same as the term is defined in § 54.1-3408.3 A of the Code of Virginia.
"CDC" means the Centers for Disease Control and Prevention.
"Certified nurse aide" means the title that can only be used by individuals who have met the requirements to be certified, as defined by the Board of Nursing, and who are listed in the nurse aide registry.
"Chemical restraint" means a psychopharmacologic drug (a drug prescribed to control mood, mental status, or behavior) that is used for discipline or convenience and not required to treat medical symptoms or symptoms from mental illness or intellectual disability that prohibit an individual from reaching his highest level of functioning.
"Clinical record" means the documentation of health care services, whether physical or mental, rendered by direct or indirect resident-provider interactions. An account compiled by physicians and other health care professionals of a variety of resident health information, such as assessments and care details, including testing results, medicines, and progress notes.
"CMS" means the Centers for Medicare and Medicaid Services.
"Commissioner" means the State Health Commissioner.
"Complaint" means any allegation received by the Virginia Department of Health other than an incident reported by the facility staff. Such allegations include abuse, neglect, exploitation, or violation of state or federal laws or regulations.
"Comprehensive plan of care" means a written action plan based on assessment data that identifies a resident's clinical and psychosocial needs, the interventions to meet those needs, and treatment goals that are measurable and that documents the resident's progress toward meeting the stated goals.
"Construction" means the building of a new nursing facility or the expansion, remodeling, or alteration of an existing nursing facility and includes the initial and subsequent equipping of the facility.
"Criminal record report" means either the criminal record clearance with respect to convictions for barrier crimes or the criminal history record from the Central Criminal Records Exchange of the Virginia Department of State Police.
"Department" means the Virginia Department of Health.
"Dignity" means staff, in their interactions with residents, carry out activities that assist a resident in maintaining and enhancing the resident's self-esteem and self-worth.
"Discharge" means the process by which the resident's services, delivered by the nursing facility, are terminated.
"Discharge summary" means the final written summary of the services delivered, goals achieved, and post-discharge plan or final disposition at the time of discharge from the nursing facility. The discharge summary becomes a part of the clinical record.
"Drug" means (i) articles or substances recognized in the official United States "Drug" Pharmacopoeia National Formulary or official Homeopathic Pharmacopoeia of the United States, or any supplement to any of them; (ii) articles or substances intended for the use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animal; (iii) articles or substances, other than food, intended to affect the structure or any function of the body of man or other animal; and (iv) articles or substances intended for use as a component of any article specified in clause (i), (ii), or (iii). This does not include devices or their components, parts, or accessories.
"Electronic monitoring" means the use of a surveillance device with a fixed position video camera or recording device, or a combination thereof, that is installed in a resident's room and broadcasts or records activities or sounds occurring within the confines of the room. Electronic monitoring does not include use of a device that enables audio communication into the resident's room from another source.
"Emergency preparedness plan" means a component of a nursing facility's safety management program designed to manage the consequences of natural disasters or other emergencies that disrupt the nursing facility's ability to provide care.
"Employee" means a person who performs a specific job function for financial remuneration on a full-time or part-time basis.
"Facility-managed" means an electronic monitoring system that is installed, controlled, and maintained by the nursing facility with the knowledge of the resident or legal representative in accordance with the facility's policies.
"Family member" means the resident's spouse, parent, stepparent, child, stepchild, brother, sister, half-brother, half-sister, grandparent, or grandchild.
"Full-time" means a minimum of 35 hours or more worked per week in the nursing facility.
"Inspector" means an individual employed by or contracted by the department and designated by the commissioner to conduct inspections, investigations, or evaluations.
"Intelligent personal assistant" means a combination of an electronic device and a specialized software application designed to assist users with basic tasks using a combination of natural language processing and artificial intelligence, including such combinations known as digital assistants or virtual assistants.
"Legal representative" means a person legally responsible for representing or standing in the place of the resident for the conduct of the resident's affairs. This may include a guardian, conservator, attorney-in-fact under durable power of attorney, trustee, or other person expressly named by a court of competent jurisdiction or the resident as the resident's agency in a legal document that specifies the scope of the representative's authority to act. A legal representative may only represent or stand in the place of a resident for the function for which the representative has legal authority to act.
"Licensee" means a person that has received and maintains an active license under the provisions of Article 1 (§ 32.1-123 et seq.) of Chapter 5 of Title 32.1 of the Code of Virginia and this chapter.
"Medication" means any substance, whether prescription or over-the-counter drug, that is taken orally or injected, inserted, topically applied, or otherwise administered.
"Neglect" means a failure to provide timely and consistent services, treatment, or care to a resident necessary to obtain or maintain the resident's health, safety, or comfort or a failure to provide timely and consistent goods and services necessary to avoid physical harm, mental anguish, or mental illness.
"Nursing facility" means any nursing home as defined in § 32.1-123 of the Code of Virginia.
"OLC" means the Office of Licensure and Certification of the Virginia Department of Health.
"Person" means any individual, corporation, partnership, association, trust, or other legal entity, whether governmental or private, owning, managing, or operating a nursing facility.
"Physical restraint" means any manual method or physical or mechanical device, material, or equipment attached or adjacent to the resident's body that the individual cannot remove easily that restricts freedom of movement or normal access to one's own body.
"Policy" means a written statement that describes the principles and guides and governs the activities, procedures, and operations of the nursing facility.
"Procedures" means a series of activities designed to implement program goals or policy, which may or may not be written, depending upon the specific requirements within this chapter. For inspection purposes, there must be evidence that procedures are actually implemented.
"Progress note" means a written statement signed and dated by the person delivering the care consisting of a pertinent, chronological report of the resident's care. A progress note is a component of the clinical record.
"Qualified" means meeting current legal requirements of licensure, registration, or certification in Virginia; having appropriate training and experience commensurate with assigned responsibilities; or, if referring to a professional, possessing an appropriate degree or having documented equivalent education, training, or experience.
"Quality assurance" means systematic activities performed to determine the extent to which clinical practice meets specified standards and values with regard to such things as appropriateness of service assignment and duration, appropriateness of facilities and resources utilized, adequacy, and clinical soundness of care given. Such activities should also ensure changes in practice that do not meet accepted standards. Examples of quality assurance activities include the establishment of facility-wide goals for resident care, the assessment of the procedures used to achieve the goals, and the proposal of solutions to problems in attaining those goals.
"Readmission" means a planned return to the nursing facility following a temporary absence for hospitalization, off-site visit or therapeutic leave, or a return stay or confinement following a formal discharge terminating a previous admission.
"Resident" means the primary service recipient admitted to the nursing facility, whether that person is referred to as a client, consumer, patient, or other term.
"Resident-managed" means an electronic monitoring system that is installed, controlled, and maintained by the resident with the knowledge of the nursing facility.
"Supervision" means the ongoing process of monitoring the skills, competencies, and performance of the individual supervised and providing regular, face-to-face guidance and instruction.
"Sworn disclosure" means a written statement or affirmation disclosing any criminal convictions or any pending criminal charges, whether within or outside the Commonwealth, by an applicant for compensated employment with a nursing facility.
"Volunteer" means a person who, without financial remuneration, provides services to the nursing facility.
Statutory Authority
§§ 32.1-12 and 32.1-127 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 13, Issue 17, eff. July 1, 1997; amended, Virginia Register Volume 23, Issue 10, eff. March 1, 2007; Volume 26, Issue 26, eff. September 30, 2010; Volume 35, Issue 5, eff. December 13, 2018; Volume 36, Issue 23, eff. August 6, 2020; Volume 37, Issue 17, eff. May 27, 2021; Volume 38, Issue 4, eff. November 11, 2021; Volume 42, Issue 5, eff. November 19, 2025; Volume 42, Issue 23, eff. August 13, 2026.
12VAC5-371-20. (Repealed.)
Historical Notes
Derived from Virginia Register Volume 13, Issue 17, eff. July 1, 1997; repealed, Virginia Register Volume 23, Issue 10, eff. March 1, 2007.
12VAC5-371-30. License.
A. This chapter is not applicable to:
1. Those entities listed in § 32.1-124 of the Code of Virginia; or
2. Facilities established or operated for the practice of religious tenets pursuant to § 32.1-128 of the Code of Virginia, except that such facilities shall comply with the statutes and regulations on environmental protection and life safety.
B. A license to operate a nursing facility shall be issued to a person.
C. Each license shall expire at 11:59 p.m. on December 31 of the year issued. A nursing facility shall operate within the terms of its license, which include the:
1. Name of the nursing facility;
2. Name of the operator;
3. Physical location of the nursing facility;
4. Maximum number of beds allowed, except as provided in 12VAC5-371-40 G; and
5. Date the license expires.
D. A separate license shall be required for nursing facilities maintained on separate premises, even if the facilities are owned or operated under the same management.
E. Every nursing facility shall be designated by a permanent and unique name.
F. The number of resident beds allowed in a nursing facility shall be determined by the commissioner.
G. Long-term care nursing units located in and operated by hospitals shall be licensed under Regulations for the Licensure of Hospitals in Virginia (12VAC5-410). Approval for such units shall be included on the annual license issued to each hospital.
H. Any person establishing, conducting, maintaining, or operating a nursing facility without a license shall be guilty of a Class 6 felony.
I. The licensee shall at all times:
1. Maintain an active and accurate license; and
2. Post its current license in a place readily visible and accessible to the public at the nursing facility.
Statutory Authority
§§ 32.1-12, 32.1-125, and 32.1-127 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 13, Issue 17, eff. July 1, 1997; amended, Virginia Register Volume 23, Issue 10, eff. March 1, 2007; Volume 35, Issue 24, eff. August 23, 2019; Volume 37, Issue 17, eff. May 27, 2021; Volume 42, Issue 23, eff. August 13, 2026; Errata, 42:24 VA.R. 2223 July 13, 2026.
12VAC5-371-40. Licensing process.
A. Upon request, the OLC will provide consultation to any person seeking information about obtaining a license. The purpose of such consultation is to:
1. Explain the standards and the licensing process;
2. Provide assistance in locating other sources of information;
3. Review the potential applicant's proposed program plans, forms, and other documents, as they relate to standards; and
4. Alert the potential applicant regarding the need to meet other state and local ordinances, such as fire and building codes and environmental health standards, where applicable.
B. Licensees and applicants shall obtain licensure applications from the OLC.
C. The OLC shall consider the application complete when all requested information and the application fee is submitted with the form required. If the OLC finds the application incomplete, the applicant will be notified of receipt of the incomplete application.
D. The applicant shall complete and submit the initial application to the OLC at least 30 days prior to a planned opening date to allow the OLC time to act on the application. An application for a license may be withdrawn at any time.
E. A nursing facility may not be licensed without first complying with the requirements for a Certificate of Public Need as required by Article 1.1. (§ 32.1-102.1 et seq.) of Chapter 4 of Title 32.1 of the Code of Virginia.
1. Application for initial license of a nursing facility shall include a statement of any agreement made with the commissioner as a condition for Certificate of Public Need approval to provide a level of care at a reduced rate to indigents or accept patients requiring specialized care.
2. Any initial license issued to any nursing facility that made such agreement as a condition of its Certificate of Public Need approval shall not be renewed without demonstrating prior to or at the time of applying for renewal that it is substantially complying with its agreement.
F. The renewal of a nursing facility license shall be conditioned upon the up-to-date payment of any civil penalties owed as a result of willful refusal, failure, or neglect to honor certain conditions established in their award of a Certificate of Public Need pursuant to § 32.1-102.4 B of the Code of Virginia.
G. Nursing facilities shall be exempt, for a period of no more than 30 days, from the requirement to obtain a license to add temporary beds when the commissioner has determined that a natural or man-made disaster has caused the evacuation of a hospital or nursing home and that a public health emergency exists due to a shortage of hospital or nursing home beds.
H. The licensee shall submit the completed renewal application form along with any required attachments and the application fee by the date indicated in the cover letter.
I. It is the licensee's responsibility to complete and return the application to assure timely processing. Should a current license expire before a new license is issued, the current license shall remain in effect provided the complete and accurate application was filed on time.
Statutory Authority
§§ 32.1-12 and 32.1-127 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 13, Issue 17, eff. July 1, 1997; amended, Virginia Register Volume 18, Issue 10, eff. February 28, 2002; Volume 23, Issue 10, eff. March 1, 2007; Volume 35, Issue 24, eff. August 23, 2019; Volume 37, Issue 17, eff. May 27, 2021.
12VAC5-371-50. (Repealed.)
Historical Notes
Derived from Virginia Register Volume 13, Issue 17, eff. July 1, 1997; repealed, Virginia Register Volume 23, Issue 10, eff. March 1, 2007.
12VAC5-371-55. Plan of correction.
A. Upon receipt of a written inspection report, the administrator or the administrator's designee shall prepare a written plan of correction addressing each licensing violation cited at the time of inspection.
B. The administrator or the administrator's designee shall submit to the OLC a written plan of correction no more than 15 business days after receipt of the inspection report. The plan of correction shall contain, for each licensing violation cited:
1. A description of the corrective action to be taken and the position title of the employees to implement the corrective action. If employees share the same position title, the administrator or the administrator's designee shall assign the employees a unique identifier to distinguish them;
2. The expected correction date, not to exceed 45 business days from the exit date of the inspection; and
3. A description of the measures implemented to prevent a recurrence of each licensing violation.
C. The administrator or the administrator's designee shall ensure that the person responsible for the validity of the plan of correction signs, dates, and indicates the person's title on the plan of correction.
D. The OLC shall notify the administrator or the administrator's designee if the OLC determines any item in the plan of correction is unacceptable.
E. The OLC may conduct an inspection to verify any portion of a plan of correction has been implemented.
F. The administrator or the administrator's designee shall ensure the plan of correction is implemented and monitored so that compliance is maintained.
G. The commissioner may deny licensure or renewal of licensure or revoke licensure if the administrator or the administrator's designee fails to submit an acceptable plan of correction or fails to implement an acceptable plan of correction.
H. The OLC shall consider the submission date of a plan of correction to be the date the plan of correction is postmarked or the date it is received, whichever is earlier.
Statutory Authority
§§ 32.1-12 and 32.1-127 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 42, Issue 23, eff. August 13, 2026.
12VAC5-371-60. Inspection procedure.
A. The OLC shall make periodic unannounced on-site inspections of the nursing facility as necessary but not less often than biennially. The OLC may make on-site inspections of applicants for licensure. Compliance with all standards shall be determined by the OLC.
B. The licensee or applicant shall:
1. Make available to the inspector any requested records;
2. Permit an inspector to enter upon and into the licensee's or applicant's property to inspect or investigate, as the inspector reasonably deems necessary, in order to determine the state of compliance with the provisions of this chapter and all laws administered by the board; and
3. Allow the inspector access to interview the agents, employees, independent contractors, residents, legal representatives, resident's family members, and any person under the licensee's or applicant's control, direction, or supervision.
C. After the on-site inspection, the inspector shall:
1. Discuss the findings of the inspection with the administrator or the administrator's designee; and
2. Provide a written inspection report to the administrator or the administrator's designee.
D. If the OLC cites one or more licensing violations in the written inspection report, the administrator or the administrator's designee shall submit a plan of correction in accordance with 12VAC5-371-55.
Statutory Authority
§§ 32.1-12, 32.1-25, and 32.1-127 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 13, Issue 17, eff. July 1, 1997; amended, Virginia Register Volume 23, Issue 10, eff. March 1, 2007; Volume 37, Issue 17, eff. May 27, 2021; Volume 42, Issue 23, eff. August 13, 2026.
12VAC5-371-70. Complaint investigation.
A. The OLC shall investigate complaints and determine if an investigation requires an on-site inspection. In making this determination, the OLC shall consider several factors, to include:
1. Whether the complainant has first-hand knowledge of the alleged incident;
2. The nursing facility's regulatory history, including the number and severity of substantiated prior complaints;
3. Whether the OLC has recently inspected the nursing facility and whether the alleged incident would have been reviewed during the prior inspection;
4. The nature of the complaint, including degree of potential serious harm to residents; and
5. Whether the complaint may be investigated pursuant to Title XVIII or Title XIX of the Social Security Act (42 USC § 301 et seq.).
B. The OLC may request records from the licensee to assist in making a determination pursuant to subsection A of this section. The licensee shall provide the requested records no more than seven calendar days after OLC makes a request pursuant to this subsection.
C. The OLC may receive complaints in written or oral form and may receive anonymous complaints.
D. When the investigation is complete, the OLC shall notify the licensee and the complainant, if known, in writing of the findings of the investigation.
E. For any licensing violation cited during a complaint investigation, the administrator or the administrator's designee shall submit a plan of correction in accordance with 12VAC5-371-55.
Statutory Authority
§§ 32.1-12 and 32.1-127 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 13, Issue 17, eff. July 1, 1997; amended, Virginia Register Volume 23, Issue 10, eff. March 1, 2007; Volume 37, Issue 17, eff. eff. May 27, 2021; Volume 42, Issue 23, eff. August 13, 2026.
12VAC5-371-75. Criminal records check.
A. A nursing facility may not hire for compensated employment a person who has been convicted of a barrier crime, unless:
1. The person has been convicted of a single barrier crime punishable as a misdemeanor;
2. The conviction does not involve abuse or neglect; and
3. Five years have elapsed since the conviction.
B. A nursing facility shall:
1. Obtain from an applicant for compensated employment a sworn disclosure;
2. Attach the sworn disclosure to and file it with the criminal record report; and
3. Obtain a criminal record report on applicants for compensated employment from the Virginia Department of State Police no more than 30 calendar days after employment begins.
C. A nursing facility may not accept:
1. A criminal record report dated more than 90 calendar days prior to the start date of employment; or
2. Duplicates or copies of the original criminal record report, except as provided in subsection D of this section.
D. If a nursing facility uses a temporary staffing agency for substitute staff, a nursing facility shall obtain a letter from the temporary staffing agency that includes:
1. The name of the substitute staffing person;
2. The date of employment by the temporary staffing agency; and
3. A statement verifying that the criminal record report:
a. Has been obtained within 30 calendar days of employment at the temporary staffing agency;
b. Is on file at the temporary staffing agency; and
c. Does not contain a conviction for a barrier crime, or indicates the substitute staffing person has been convicted of a single barrier crime punishable as a misdemeanor that does not involve abuse or neglect and five years have elapsed since the conviction.
E. A nursing facility may not permit a compensated employee to work in a position that involves direct contact with a patient until an original criminal record report has been received by the nursing facility or temporary staffing agency, unless the employee works under the direct supervision of another compensated employee for whom a background check has been completed in accordance with subsection B of this section.
F. A nursing facility shall obtain a new criminal record report and a new sworn disclosure if an individual:
1. Terminates compensated employment at one nursing facility and begins compensated employment at another nursing facility, unless the nursing facilities are owned by the same entity. The employee's file shall contain a statement indicating the original criminal record report has been transferred or forwarded to the new work location; or
2. Takes a leave of absence exceeding six consecutive months.
G. A nursing facility shall provide a copy of the criminal record report to an applicant denied compensated employment because of convictions appearing on his criminal record report.
H. A nursing facility shall maintain the confidentiality of criminal record reports and store criminal record reports in locked files accessible only to the administrator or designee.
I. A nursing facility may not disseminate the criminal record report and sworn disclosure except to a federal or state authority or court as may be required to comply with an express requirement of law for such further dissemination.
Statutory Authority
§§ 32.1-12 and 32.1-127 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 37, Issue 17, eff. May 27, 2021.
12VAC5-371-75. Criminal records check.
A. A nursing facility may not hire for compensated employment a person who has been convicted of a barrier crime, unless:
1. The person has been convicted of a single barrier crime punishable as a misdemeanor;
2. The conviction does not involve abuse or neglect; and
3. Five years have elapsed since the conviction.
B. A nursing facility shall:
1. Obtain from an applicant for compensated employment a sworn disclosure;
2. Attach the sworn disclosure to and file it with the criminal record report; and
3. Obtain a criminal record report on applicants for compensated employment from the Virginia Department of State Police no more than 30 calendar days after employment begins.
C. A nursing facility may not accept:
1. A criminal record report dated more than 90 calendar days prior to the start date of employment; or
2. Duplicates or copies of the original criminal record report, except as provided in subsection D of this section.
D. If a nursing facility uses a temporary staffing agency for substitute staff, a nursing facility shall obtain a letter from the temporary staffing agency that includes:
1. The name of the substitute staffing person;
2. The date of employment by the temporary staffing agency; and
3. A statement verifying that the criminal record report:
a. Has been obtained within 30 calendar days of employment at the temporary staffing agency;
b. Is on file at the temporary staffing agency; and
c. Does not contain a conviction for a barrier crime, or indicates the substitute staffing person has been convicted of a single barrier crime punishable as a misdemeanor that does not involve abuse or neglect and five years have elapsed since the conviction.
E. A nursing facility may not permit a compensated employee to work in a position that involves direct contact with a patient until an original criminal record report has been received by the nursing facility or temporary staffing agency, unless the employee works under the direct supervision of another compensated employee for whom a background check has been completed in accordance with subsection B of this section.
F. A nursing facility shall obtain a new criminal record report and a new sworn disclosure if an individual:
1. Terminates compensated employment at one nursing facility and begins compensated employment at another nursing facility, unless the nursing facilities are owned by the same entity. The employee's file shall contain a statement indicating the original criminal record report has been transferred or forwarded to the new work location; or
2. Takes a leave of absence exceeding six consecutive months.
G. A nursing facility shall provide a copy of the criminal record report to an applicant denied compensated employment because of convictions appearing on his criminal record report.
H. A nursing facility shall maintain the confidentiality of criminal record reports and store criminal record reports in locked files accessible only to the administrator or designee.
I. A nursing facility may not disseminate the criminal record report and sworn disclosure except to a federal or state authority or court as may be required to comply with an express requirement of law for such further dissemination.
Statutory Authority
§§ 32.1-12 and 32.1-127 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 37, Issue 17, eff. May 27, 2021.
12VAC5-371-75. Criminal records check.
A. A nursing facility may not hire for compensated employment a person who has been convicted of a barrier crime, unless:
1. The person has been convicted of a single barrier crime punishable as a misdemeanor;
2. The conviction does not involve abuse or neglect; and
3. Five years have elapsed since the conviction.
B. A nursing facility shall:
1. Obtain from an applicant for compensated employment a sworn disclosure;
2. Attach the sworn disclosure to and file it with the criminal record report; and
3. Obtain a criminal record report on applicants for compensated employment from the Virginia Department of State Police no more than 30 calendar days after employment begins.
C. A nursing facility may not accept:
1. A criminal record report dated more than 90 calendar days prior to the start date of employment; or
2. Duplicates or copies of the original criminal record report, except as provided in subsection D of this section.
D. If a nursing facility uses a temporary staffing agency for substitute staff, a nursing facility shall obtain a letter from the temporary staffing agency that includes:
1. The name of the substitute staffing person;
2. The date of employment by the temporary staffing agency; and
3. A statement verifying that the criminal record report:
a. Has been obtained within 30 calendar days of employment at the temporary staffing agency;
b. Is on file at the temporary staffing agency; and
c. Does not contain a conviction for a barrier crime, or indicates the substitute staffing person has been convicted of a single barrier crime punishable as a misdemeanor that does not involve abuse or neglect and five years have elapsed since the conviction.
E. A nursing facility may not permit a compensated employee to work in a position that involves direct contact with a patient until an original criminal record report has been received by the nursing facility or temporary staffing agency, unless the employee works under the direct supervision of another compensated employee for whom a background check has been completed in accordance with subsection B of this section.
F. A nursing facility shall obtain a new criminal record report and a new sworn disclosure if an individual:
1. Terminates compensated employment at one nursing facility and begins compensated employment at another nursing facility, unless the nursing facilities are owned by the same entity. The employee's file shall contain a statement indicating the original criminal record report has been transferred or forwarded to the new work location; or
2. Takes a leave of absence exceeding six consecutive months.
G. A nursing facility shall provide a copy of the criminal record report to an applicant denied compensated employment because of convictions appearing on his criminal record report.
H. A nursing facility shall maintain the confidentiality of criminal record reports and store criminal record reports in locked files accessible only to the administrator or designee.
I. A nursing facility may not disseminate the criminal record report and sworn disclosure except to a federal or state authority or court as may be required to comply with an express requirement of law for such further dissemination.
Statutory Authority
§§ 32.1-12 and 32.1-127 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 37, Issue 17, eff. May 27, 2021.
12VAC5-371-80. Variances.
A. The commissioner may authorize variances only to its own licensing standards, not to regulations of another agency or to any requirements in federal, state, or local laws.
B. A nursing facility may request a variance to a particular standard or requirement contained in this chapter when the standard or requirement poses a special hardship and when a variance to it would not endanger the safety or well-being of residents, employees, or the public.
C. Upon finding that the enforcement of one or more of the standards would be clearly impractical, the commissioner shall have the authority to waive, either temporarily or permanently, the enforcement of one or more of these standards, provided safety, resident care and services are not adversely affected.
D. The commissioner may rescind or modify a variance if (i) conditions change; (ii) additional information becomes known which alters the basis for the original decision; (iii) the nursing facility fails to meet any conditions attached to the variance; or (iv) results of the variance jeopardize the safety, comfort, or well-being of residents, employees and the public.
E. Consideration of a variance is initiated when a written request is submitted to the director of the OLC. The OLC may provide consultation in the development of the written request and throughout the variance process.
F. The request for a variance must describe the special hardship to the existing program or to a planned innovative or pilot program caused by the enforcement of the requirements. When possible, the request should include proposed alternatives to meet the purpose of the requirements which will ensure the protection and well-being of residents, employees, and the public.
G. The OLC shall notify the nursing facility of the receipt of the request for a variance. The commissioner may attach conditions to the granting of the variance in order to protect persons in care.
H. When the decision is to deny a request for a variance, the reason shall be provided in writing to the licensee.
I. When a variance is denied, expires, or is rescinded, routine enforcement of the standard or portion of the standard shall be resumed. The nursing facility may at any time withdraw a request for a variance.
Statutory Authority
§§ 32.1-12 and 32.1-127 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 13, Issue 17, eff. July 1, 1997; amended, Virginia Register Volume 23, Issue 10, eff. March 1, 2007; Volume 37, Issue 17, eff. eff. May 27, 2021.
12VAC5-371-90. Disciplinary action.
A. The licensee may not:
1. Violate the provisions of this chapter or Article 1 (§ 32.1-123 et seq.) or 2 (§ 32.1-138 et seq.) of Chapter 5 of Title 32.1 of the Code of Virginia;
2. Permit, aid, or abet the commission of any illegal act in the nursing facility; or
3. Engage in a pattern of violations of § 38.2-3445.01 of the Code of Virginia.
B. The commissioner may:
1. For each violation of subsection A of this section:
a. Deny, revoke, or suspend the license to operate the nursing facility;
b. Restrict or prohibit new admissions to any nursing facility in accordance with the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia);
c. Refer the licensee for criminal prosecution pursuant to § 32.1-27 A of the Code of Virginia;
d. Petition an appropriate court for an injunction, mandamus, or other appropriate remedy against the licensee pursuant to § 32.1-27 B of the Code of Virginia;
e. Petition an appropriate court for imposition of a civil monetary penalty against the licensee pursuant to § 32.1-27 C or 32.1-27.1 A of the Code of Virginia; or
f. Petition an appropriate court for appointment of a receiver pursuant to § 32.1-27.1 B of the Code of Virginia; and
2. For each violation of subdivision A 3 of this section, levy a fine upon the licensee in an amount not to exceed $1,000 per violation, in accordance with the Administrative Process Act.
C. Suspension of a license shall in all cases be for an indefinite time.
D. For each violation of subsection A of this section and with the consent of the person who has violated subsection A of this section, the board may provide, in an order issued by the board, for the payment of civil charges for past violations in specific sums, which may not exceed the limits specified in § 32.1-27 or 32.1-27.1 of the Code of Virginia.
E. Upon receipt of a completed application and a nonrefundable service charge, the commissioner may issue a new license to the licensee that has had its license revoked if the commissioner determines that:
1. The conditions upon which revocation was based have been corrected; and
2. The applicant is in compliance with this chapter, Articles 1 (§ 32.1-123 et seq.) and 2 (§ 32.1-138 et seq.) of Chapter 5 of Title 32.1 of the Code of Virginia, and all other applicable state and federal law and regulations.
F. Upon receipt of a completed application, the commissioner may partially or completely restore a suspended license to the licensee if the commissioner determines that:
1. The conditions upon which suspension was based have been completely or partially corrected; and
2. The interests of the public will not be jeopardized by resumption of operation.
G. The commissioner may not require an additional fee for restoring a license pursuant to subsection F of this section.
H. The licensee shall submit evidence relevant to subdivisions E 1, E 2, F 1, and F 2 of this section that is satisfactory to the commissioner or the commissioner's designee. The commissioner or the commissioner's designee may conduct an inspection prior to making a determination.
Statutory Authority
§§ 32.1-12, 32.1-27, 32.1-27.1, and 32.1-127 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 13, Issue 17, eff. July 1, 1997; amended, Virginia Register Volume 23, Issue 10, eff. March 1, 2007; Volume 42, Issue 23, eff. August 13, 2026.
12VAC5-371-100. Surrender of license; mid-term change of license.
A. Upon revocation or suspension of a license, the licensee shall surrender its license to the OLC.
B. A licensee shall notify the director of the OLC in writing by submitting a mid-term change application no fewer than 30 calendar days in advance of implementing any:
1. Change of location of the nursing facility;
2. Change of ownership of the nursing facility;
3. Change of operator of the nursing facility;
4. Change of name of the nursing facility;
5. Change of bed capacity, except as provided in 12VAC5-371-40 G, which shall be accompanied by an approved Certificate of Public Need if the requested change is for an increase in bed capacity;
6. Change in management contract or lease agreement to operate the nursing facility;
7. Change of services being provided, including any proposed addition or discontinuation, regardless of whether licensure is required for the service; or
8. Closure of the nursing facility.
C. The OLC shall:
1. Consider the submission date of a mid-term change application to be the date the application is postmarked or the date it is received, whichever is earlier; and
2. Notify the licensee in writing if the commissioner will issue a changed license.
D. The commissioner's issuance of changed license to the licensee shall satisfy the requirements of subdivision C 2 of this section.
E. Upon receipt of the changed license, the licensee shall surrender its prior license issued by the commissioner to the OLC and destroy any copies of the prior license.
F. A license may not be transferred or assigned. The commissioner may not issue a changed license in response to a change of operator of the nursing facility, but shall instead require the nursing facility to obtain a new license. If the nursing facility intends to implement a change of operator, it shall:
1. File for a new license, in accordance with 12VAC5-371-40, no fewer than 30 calendar days in advance of any operator change; and
2. Upon receipt of the new license, surrender its prior license issued by the commissioner to the OLC and destroy any copies of the prior license.
G. If the nursing facility is closing or will otherwise no longer be operational, it shall:
1. Notify residents, legal representatives, and the OLC no fewer than seven calendar days prior to closing or ceasing operations, where all clinical records are to be located following closure or cessation of operations; and
2. Surrender its license to the OLC and destroy all copies of its license no more than five calendar days after the nursing facility closes or ceases operations.
H. The OLC shall determine if any changes listed in subsection B of this section affect the terms of the license or the continuing eligibility for a license. An inspector may inspect the nursing facility during the process of evaluating a proposed change.
Statutory Authority
§§ 32.1-12, 32.1-125, and 32.1-127 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 13, Issue 17, eff. July 1, 1997; amended, Virginia Register Volume 23, Issue 10, eff. March 1, 2007; Volume 42, Issue 23, eff. August 13, 2026.