Administrative Code

Virginia Administrative Code
1/22/2022

Part II. Administrative Services

12VAC5-371-110. Management and administration.

A. No person shall own, establish, conduct, maintain, manage, or operate any nursing facility, as defined in § 32.1-123 of the Code of Virginia, without having obtained a license.

B. The nursing facility must comply with:

1. These regulations (12VAC5-371);

2. Other applicable federal, state, or local laws and regulations; and

3. Its own policies and procedures.

C. The nursing facility shall submit, or make available, reports and information necessary to establish compliance with these regulations and applicable statutes.

D. The nursing facility shall submit, in a timely manner as determined by the OLC, and implement a written plan of action to correct any noncompliance with these regulations identified during an inspection. The plan shall include:

1. Description of the corrective action or actions to be taken;

2. Date of completion for each action; and

3. Signature of the person responsible for the operation.

E. The nursing facility shall permit representatives from the OLC to conduct inspections to:

1. Verify application information;

2. Determine compliance with this chapter;

3. Review necessary records; and

4. Investigate complaints.

F. A nursing facility shall give written notification 30 calendar days in advance of implementation of changes affecting the accuracy of the license. Changes affecting the accuracy of the license are:

1. Address;

2. Operator;

3. Name of the nursing facility;

4. Any proposed change in management contract or lease agreement to operate the nursing facility;

5. Implementing any proposed addition, deletion, or change in nursing facility services whether or not licensure is required;

6. A change in ownership; or

7. Bed capacity.

Notices shall be sent to the attention of the director of the OLC.

G. The current license from the commissioner shall be posted in a place clearly visible to the general public.

H. The nursing facility shall fully disclose its admission policies, including any preferences given, to applicants for admission.

I. The nursing facility shall identify its operating elements and programs, the internal relationship among these elements and programs, and the management or leadership structure.

J. The nursing facility shall provide, or arrange for, the administration to its residents of an annual influenza vaccination and a pneumonia vaccination according to the "Prevention and Control of Seasonal Influenza with Vaccines: Recommendations of the Advisory Committee on Immunization Practices — United States, 2020–21 Influenza Season" and "Guidelines for Preventing Health-Care-Associated Pneumonia" from the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention, unless the vaccination is medically contraindicated or the resident declines the vaccination offer.

K. Upon request of the nursing facility's family council, the nursing facility shall send notices and information about the family council mutually developed by the family council and the administration of the nursing facility, and provided to the nursing facility for such purpose, to the legal representative or a contact person of the resident's choice up to six times a year. Such notices may be included together with a monthly billing statement or other regular communication. Notices and information shall also be posted in a designated location within 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 20, Issue 26, eff. September 27, 2004; Volume 23, Issue 10, eff. March 1, 2007; Volume 27, Issue 24, eff. September 1, 2011; Volume 37, Issue 17, eff. May 27, 2021.

12VAC5-371-120. Governing body.

A. The nursing facility shall have a governing body that is legally responsible for the management of the operation.

B. The governing body shall adopt written bylaws that describe the organizational structure and establish authority and responsibility in accordance with applicable laws, including a:

1. Statement of purpose;

2. Description of the functions of the governing body members, officers and committees;

3. Description of the method of adoption, implementation, and periodic review of policies and procedures; and

4. Description of the methods to be utilized to assure compliance with this chapter.

C. The governing body shall disclose the names and addresses of any individual or entity that holds 5.0% or more ownership interest in the operation of the nursing facility.

D. When the governing body is not the owner of the physical plant, the governing body shall disclose the name and address of the individual or entity responsible for the alterations, modifications, maintenance and repairs to the building.

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. May 27, 2021.

12VAC5-371-130. Administrator.

A. The governing body shall appoint an individual, on a full-time basis, to serve as its on-site agent, responsible for the day-to-day administration and management.

B. The governing body shall provide the OLC with evidence that the individual appointed as administrator is:

1. Currently licensed by the Virginia Board of Long-Term Care Administrators; or

2. Holds a current administrator's license in another state and has filed an application for license with the Virginia Board of Long-Term Care Administrators.

C. Within five working days of the effective date of termination of the administrator's employment, the governing body shall notify the OLC, in writing, of the name and qualifications of the replacement administrator or the acting administrator.

D. The governing body shall appoint a qualified administrator within 90 days of the effective date of the termination of the previously qualified administrator, and shall provide the OLC with written notification of the administrator's name, license number, and effective date of employment.

An additional 30-day extension may be granted if a written request provides documentation that the individual designated as administrator is awaiting the final licensing decision of the Virginia Board of Long-Term Care Administrators.

E. The governing body shall assure that administrative direction is provided at all times. The governing body, the administrator, or the chief executive officer shall designate, in writing, a qualified individual to act as the alternate nursing home administrator in the absence of the administrator .

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. May 27, 2021.

12VAC5-371-140. Policies and procedures.

A. The nursing facility shall implement written policies and procedures approved by the governing body.

B. All policies and procedures shall be reviewed at least annually, with recommended changes submitted to the governing body for approval.

C. A written record of the annual policy review, including at least the review dates, participants, recommendations and action dates of the governing body, shall be maintained.

D. Administrative and operational policies and procedures shall include:

1. Administrative records;

2. Admission, transfer and discharge;

3. Medical direction and physician services;

4. Nursing direction and nursing services;

5. Pharmaceutical services, including drugs purchased outside the nursing facility;

6. Dietary services;

7. Social services;

8. Activities services;

9. Restorative and rehabilitative resident services;

10. Contractual services;

11. Clinical records;

12. Resident rights and grievances;

13. Quality assurance and infection control and prevention;

14. Safety and emergency preparedness procedures;

15. Professional and clinical ethics, including:

a. Confidentiality of resident information;

b. Truthful communication with residents;

c. Observance of appropriate standards of informed consent and refusal of treatment; and

d. Preservation of resident dignity, with special attention to the needs of the aged, the cognitively impaired, and the dying; and

16. Nursing facility security.

E. Personnel policies and procedures shall include:

1. Written job descriptions that specify authority, responsibility, and qualifications for each job classification;

2. An on-going plan for employee orientation, staff development, in-service training and continuing education;

3. An accurate and complete personnel record for each employee including:

a. Verification of current professional license, registration, or certificate or completion of a required approved training course;

b. Criminal record check;

c. Verification that the employee has reviewed or received a copy of the job description;

d. Orientation to the nursing facility, its policies and to the position and duties assigned;

e. Completed continuing education program approved for the employee as determined by the outcome of the annual performance evaluation;

f. Annual employee performance evaluations; and

g. Disciplinary action taken; and

4. Employee health-related information retained in a file separate from personnel files.

F. Financial policies and procedures shall include:

1. Admission agreements;

2. Methods of billing:

a. Services not included in the basic daily or monthly rate;

b. Services delivered by contractors of the nursing facility; and

c. Third party payers;

3. Resident or designated representative notification of changes in fees and charges;

4. Correction of billing errors and refund policy;

5. Collection of delinquent resident accounts; and

6. Handling of resident funds.

G. A nursing facility shall establish and implement policies to ensure the permissible access to and use of an intelligent personal assistant provided by a patient while receiving inpatient services. Such policies shall ensure protection of health information in accordance with the requirements of the federal Health Insurance Portability and Accountability Act of 1996 (42 USC § 1320d et seq.).

H. Policies shall be made available for review, upon request, to residents and their designated representatives.

I. Policies and procedures shall be readily available for staff use at all times.

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 27, Issue 24, eff. September 1, 2011; Volume 37, Issue 17, eff. May 27, 2021; Volume 38, Issue 4, eff. November 11, 2021.

12VAC5-371-150. Resident rights.

A. The nursing facility shall develop and implement policies and procedures that ensure resident's rights as defined in §§ 32.1-138 and 32.1-138.1 of the Code of Virginia.

B. The procedures shall:

1. Not restrict any right a resident has under law;

2. Provide staff training to implement resident's rights; and

3. Include grievance procedures.

C. The name and telephone number of the complaint coordinator of the OLC, the Adult Protective Services toll-free telephone number, and the toll-free telephone number for the State Ombudsman shall be conspicuously posted in a public place.

D. Copies of resident rights shall be given to residents upon admittance to the nursing facility and made available to residents currently in residence, to legal representatives, next of kin, or sponsoring agency or agencies, and to the public.

E. The nursing facility shall have a plan to review resident rights with each resident annually, or with the legal representative at least annually, and have a plan to advise each staff member at least annually.

F. The nursing facility shall certify, in writing, that it is in compliance with the provisions of §§ 32.1-138 and 32.1-138.1 of the Code of Virginia, relative to resident rights, as a condition of license issuance or renewal.

G. The nursing facility shall register with the Department of State Police to receive notice of the registration or reregistration of any sex offender within the same or a contiguous zip code area in which the nursing facility is located pursuant to § 9.1-914 of the Code of Virginia.

H. Prior to admission, each nursing facility shall determine if a potential resident is a registered sex offender when the potential resident is anticipated to have a length of stay:

1. Greater than three days; or

2. In fact stays longer than three days.

I. The nursing facility shall not restrict the rights of a resident's family and legal representative to meet in the nursing facility with the families and legal representatives of other residents .

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 17, Issue 1, eff. October 27, 2000; Volume 23, Issue 10, eff. March 1, 2007; Volume 24, Issue 11, eff. March 5, 2008; Volume 34, Issue 11, eff. February 21, 2018; Volume 37, Issue 17, eff. May 27, 2021.

12VAC5-371-160. Financial controls and resident funds.

A. All financial records, including resident funds, shall be kept according to generally accepted accounting principles (GAAP).

B. Each nursing facility shall maintain liability insurance coverage in a minimum of $1 million and professional liability coverage in an amount at least equal to the recovery limit set forth in § 8.01-581.15 of the Code of Virginia to compensate residents or individuals for injuries and losses resulting from the negligent or criminal acts of the nursing facility. Failure to maintain minimum insurance shall result in revocation of the nursing facility's license.

C. Nursing facilities choosing to handle resident funds shall:

1. Comply with § 32.1-138 A 7 of the Code of Virginia regarding resident funds;

2. Purchase a surety bond or otherwise provide assurance for the security of all personal funds deposited with the nursing facility; and

3. Provide for separate accounting for resident funds.

D. In the event the nursing facility is sold, the nursing facility shall provide written verification that all resident funds have been transferred and shall obtain a signed receipt from the new owner. Upon receipt, the new owner shall provide an accounting of resident funds.

E. Each nursing facility shall be required to provide a full refund of any unexpended patient funds on deposit with the nursing facility following the discharge or death of a patient, other than entrance related fees, within 30 days of a written request for such funds by the discharged patient or, in the case of the death of a patient, the person administering the patient's estate in accordance with the Virginia Small Estate Act (§ 64.2-600 et seq. of the Code of Virginia).

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 30, Issue 3, eff. November 8, 2013; Volume 34, Issue 11, eff. February 21, 2018; Volume 37, Issue 17, eff. May 27, 2021.

12VAC5-371-170. Quality assessment and assurance.

A. The nursing facility shall maintain a quality assessment and assurance committee consisting of at least the following individuals:

1. The director of nursing services;

2. A physician designated by the nursing facility; and

3. At least three other members of the nursing facility staff, one of whom demonstrates an ability to represent the rights and concerns of residents.

B. The quality assessment and assurance committee shall:

1. Meet at least quarterly to identify issues which would improve quality of care and services provided to residents; and

2. Develop and implement appropriate plans of action to correct identified deficiencies.

C. The nursing facility shall document compliance with these requirements.

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 37, Issue 17, eff. May 27, 2021.

12VAC5-371-180. Infection control.

A. The nursing facility shall establish and maintain an infection control program designed to provide a safe, sanitary, and comfortable environment and to prevent the development and transmission of disease and infection.

B. The infection control program shall encompass the entire physical plant and all services.

C. The infection control program addressing the surveillance, prevention and control of infections in the nursing facility shall include:

1. Procedures to isolate the infecting organism;

2. Access to handwashing equipment for staff;

3. Training of staff in proper handwashing techniques, according to accepted professional standards, to prevent cross contamination;

4. Implementation of universal precautions by direct resident care staff;

5. Prohibiting employees with communicable diseases or infections from direct contact with residents or their food, if direct contact will transmit disease;

6. Monitoring staff performance of infection control practices;

7. Handling, storing, processing and transporting linens, supplies and equipment in a manner that prevents the spread of infection;

8. Handling, storing, processing and transporting regulated medical waste in accordance with applicable regulations;

9. Maintaining an effective pest control program; and

10. Staff education regarding infection risk-reduction behavior.

D. The nursing facility shall report promptly to its local health department diseases designated as "reportable" according to 12VAC5-90-80 when such cases are admitted to or are diagnosed in the nursing facility and shall report any outbreak of infectious disease as required by 12VAC5-90. An outbreak is defined as an increase in incidence of any infectious disease above the usual incidence at the nursing facility.

E. During a declared public health emergency related to a communicable disease of public health threat, the nursing facility shall establish a protocol to allow residents to receive visits from a rabbi, priest, minister, or clergy of any religious denomination or sect consistent with guidance from the Centers for Disease Control and Prevention and the Centers for Medicare and Medicaid Services and subject to compliance with any executive order, order of public health, department guidance, or any other applicable federal or state guidance having the effect of limiting visitation.

1. Such protocol may restrict the frequency and duration of visits and may require visits to be conducted virtually using interactive audio or video technology.

2. Any such protocol may require the person visiting a resident pursuant to this subsection to comply with all reasonable requirements of the nursing facility adopted to protect the health and safety of the person, residents, and staff of 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 22, Issue 7, eff. January 11, 2006; Volume 37, Issue 17, eff. May 27, 2021; Volume 38, Issue 4, eff. November 11, 2021.

12VAC5-371-190. Safety and emergency procedures.

A. A written emergency preparedness plan shall be developed, reviewed, and implemented when needed. The plan shall address responses to natural disasters, as well as fire or other emergency which disrupts the normal course of operations. The plan shall address provisions for relocating residents and also address staff responsibilities for:

1. Alerting emergency personnel and sounding alarms;

2. Implementing evacuation procedures including the evacuation of residents with special needs;

3. Using, maintaining and operating emergency equipment;

4. Accessing resident emergency medical information; and

5. Utilizing community support services.

B. All staff shall participate in periodic emergency preparedness training.

C. Staff shall have documented knowledge of, and be prepared to implement, the emergency preparedness plan in the event of an emergency.

D. At least one telephone shall be available in each area to which residents are admitted and additional telephones or extensions as are necessary to ensure availability in case of need.

E. In the event of a disaster, fire, emergency or any other condition that may jeopardize the health, safety and well-being of residents, the nursing facility shall notify the OLC of the conditions and status of the residents and the physical plant as soon as possible.

F. The nursing facility shall have a policy on smoking.

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. May 27, 2021.

12VAC5-371-191. Electronic monitoring in resident rooms.

A. All requests for electronic monitoring shall be made in writing and signed by the resident or legal representative if the resident has been properly assessed incapable of requesting and authorizing the monitoring.

B. Only electronic monitoring in accordance with this section is permitted.

C. A nursing facility shall not refuse to admit an individual and shall not discharge or transfer a resident due to a request to conduct authorized electronic monitoring.

D. Family members cannot obtain electronic monitoring over the objections of the resident, the resident's roommate, or the resident's legal representative. No equipment may be installed pursuant to subsection Q of this section over the objections of the resident or legal representative. Nursing facilities shall not use monitoring equipment in violation of the law based solely on a family member's request or approval.

E. Consent for electronic monitoring shall be kept in the resident's medical record.

F. Nursing facilities shall designate one staff person to be responsible for managing the electronic monitoring program.

G. Nursing facilities may designate custodial ownership of any recordings from monitoring devices to the resident or legal representative. Nursing facility retained recordings shall be considered part of the resident's medical record and shall be retained for no less than two years or as required by state and federal laws.

H. If a nursing facility chooses to retain ownership of recordings, the nursing facility shall not permit viewings of recordings without consent of the resident or legal representative except to the extent that disclosure is required by law through a court order or pursuant to a lawful subpoena duces tecum. Should the resident or legal representative approve viewing, the nursing facility shall accommodate viewing of any recordings in a timely manner, including providing:

1. Appropriate playing or viewing equipment;

2. Privacy during viewing; and

3. Viewing times convenient to the resident or legal representative.

If unauthorized viewing is discovered, the nursing facility shall report any such violation to the Office of Long-Term Care Ombudsman and to the OLC.

I. A nursing facility shall require its staff to report any incidents regarding safety or quality of care discovered as a result of viewing a recording immediately to the administrator and to the OLC. Nursing facilities shall instruct the resident or legal representative of this reporting requirement and shall provide the resident or legal representative with the OLC's complaint hotline telephone number.

J. A nursing facility shall have no obligation to seek access to a recording in its possession or to have knowledge of a recording's content, unless the nursing facility is aware of a recorded incident of suspected abuse, neglect, accident, or injury, or the resident, legal representative, or a government agency seeks to use a recording. Nursing facilities shall immediately report suspected abuse and neglect discovered as a result of using monitoring devices, as required by law.

K. A nursing facility may require the resident or legal representative to be responsible for all aspects of the operation of the monitoring equipment, including the removal and replacement of recordings; adherence to local, state, and federal privacy laws; and for firewall protections to prevent images that would violate obscenity laws from being inadvertently shown on the Internet.

L. A nursing facility shall prohibit assigned staff from refusing to enter a resident's room solely because of electronic monitoring.

M. Any electronic monitoring equipment shall be installed in a manner that is safe for residents, employees, or visitors who may be moving about the resident's room.

N. A nursing facility shall make reasonable physical accommodation for monitoring equipment, including:

1. Providing a reasonably secure place to mount the device; and

2. Providing access to power sources for the device.

O. A nursing facility may require a resident or legal representative to pay for all costs, other than the cost of electricity, associated with installing electronic monitoring equipment. Such costs shall be reasonable and may include equipment, recording media and installation, compliance with life safety and building and electrical codes, maintenance or removal of the equipment, posting and removal of any public notices, or structural repairs to the building resulting from the removal of the equipment. Nursing facilities shall give 45 days' notice of an increase in monthly monitoring fees.

P. Any equipment installed for the purpose of monitoring a resident's room shall be fixed and unable to rotate.

Q. The informed consent of all residents or residents' legal representatives assigned to the monitored room shall be obtained prior to any electronic monitoring equipment being installed.

R. A copy of any signed consent form shall be kept in the resident's medical record as well as on file with the nursing facility's designated electronic monitoring coordinator.

S. Any resident or legal representative of a resident of a monitored room may condition consent for use of monitoring devices. Such conditions may include pointing the camera away or limiting or prohibiting the use of certain devices. If conditions are placed on consent, then electronic monitoring shall be conducted according to those conditions.

T. The nursing facility shall conspicuously post and maintain a notice at the entrance to the resident's room stating that an electronic monitoring device is in operation.

U. Nursing facilities shall notify all staff and the long-term care division of the OLC that electronic monitoring is in use.

V. A nursing facility shall prohibit staff from covert monitoring in violation of this chapter. Nursing facilities shall instruct the resident or legal representative of this prohibition and shall provide the resident or legal representative with the OLC's complaint hotline telephone number.

W. If covert monitoring is discovered, the nursing facility shall report any such violation to the Office of Long-Term Care Ombudsman and OLC, and the nursing facility may require a resident or legal representative to meet all the requirements for authorized monitoring, if permitted by the nursing facility.

X. Each nursing facility, including those that choose not to offer electronic monitoring, shall adopt policies and procedures for electronic monitoring. These policies and procedures shall address all the elements of this section.

Y. A nursing facility shall prohibit staff from tampering with electronic monitoring in violation of this chapter. Nursing facilities shall instruct the resident or legal representative of this prohibition and shall provide the resident or legal representative with the OLC's complaint hotline telephone number.

Statutory Authority

§§ 32.1-12 and 32.1-127 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 35, Issue 5, eff. December 13, 2018; amended, Virginia Register Volume 37, Issue 17, eff. May 27, 2021.

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