Administrative Code

Virginia Administrative Code
5/14/2021

Part IV. The Licensing Process

22VAC40-80-130. Provider support services.

A. The programmatic regulations require both general and specific training in various subject areas. The department provides preapplication consultation, ongoing technical assistance and consultation, and formal training sessions. The department's licensing representatives will provide assistance to any person seeking information about obtaining a license and information about initial and ongoing training requirements.

B. Applicants for licensure shall complete a prelicensure orientation program that focuses on health and safety standards, and residents' rights where applicable, offered through or approved by the department. The commissioner may, at his discretion, waive the orientation requirement or issue a license conditioned upon the owner's or administrator's completion of the required training.

EXCEPTIONS: The following persons are exempt from the requirements of prelicensure training:

1. An applicant who has previously owned or managed a facility in satisfactory compliance with regulations; and

2. Applicants for adult day care centers and child welfare agencies if notified by the department that such training is unavailable.

Statutory Authority

§§ 63.2-217, 63.2-1732, 63.2-1733 and 63.2-1734 of the Code of Virginia.

Historical Notes

Derived from VR615-30-01 § 4.1, eff. July 1, 1989; amended, Virginia Register Volume 8, Issue 17, eff. July 1, 1992; Volume 11, Issue 3, eff. January 1, 1995; Volume 20, Issue 24, eff. November 1, 2004.

22VAC40-80-140. The initial application.

A. Upon request, the department will provide an application form for a license to operate a facility or agency. There are a number of licensing offices located throughout the state.

B. The department will consider an application complete when the application fee and all the required information is submitted in the form required by the department. The schedule of fees for licenses is provided in 22VAC40-160, Fee Requirements for Processing Applications. If the department finds the application incomplete, the applicant will be notified in writing within 15 days of receipt of the incomplete application. If the applicant does not resubmit a complete application within 30 days from the notification, all materials except the nonrefundable fee will be returned to the applicant.

C. The applicant shall complete and submit the application to the department at least 60 days prior to a planned opening date to allow the department time to act on the application.

D. The applicant may withdraw a request for a license.

Statutory Authority

§§ 63.2-217, 63.2-1732, 63.2-1733 and 63.2-1734 of the Code of Virginia.

Historical Notes

Derived from VR615-30-01 § 4.2, eff. July 1, 1989; amended, Virginia Register Volume 8, Issue 17, eff. July 1, 1992; Volume 11, Issue 3, eff. January 1, 1995; Volume 20, Issue 24, eff. November 1, 2004.

22VAC40-80-150. Approval of buildings and functional design features.

A valid certificate of occupancy is one prerequisite for licensure. When an application is for licensure of a building that has not previously been used for the type of license or use group being sought, or when renovations are made in the building, the department must approve functional design features of the building in accordance with applicable department regulations. The procedures are as follows:

1. Prior to beginning construction or renovation, the applicant or prospective applicant shall submit to the department floor plans that clearly indicate the use of space and other plans for compliance with all requirements for the building and physical environment contained in the applicable regulations.

(NOTE: Applicants and prospective applicants are urged to present their plans for compliance with departmental regulations to the department as early as possible and before entering into contracts in order to assure that the building can be preapproved as meeting the department's regulations. Architects, contractors, or building officials may not be thoroughly familiar with these functional design requirements, and costly errors can be avoided through early review by the department.)

2. The department will notify the applicant or prospective applicant within 10 working days of receipt if the plans to comply are incomplete, identifying the information still needed before the request can be considered complete.

3. When a complete plan is received, the department will issue within 20 days a Preliminary Approval Statement or a letter indicating disapproval of the plan and the reasons for disapproval.

(NOTE: A Preliminary Approval Statement does not imply that the department will approve the application for licensure since other factors will affect issuance decisions.)

4. All Preliminary Approval Statements are conditional upon there being no change in the proposal or the circumstances affecting them and upon approval of all required fire, health, or building officials.

5. The department will forward a copy of the Preliminary Approval Statement to the appropriate building official.

6. After construction or renovation, department staff will make an on-site inspection to evaluate compliance with the functional design requirements of the applicable regulations. Findings of this on-site inspection will be forwarded to the applicant and the local building official.

Statutory Authority

§§ 63.2-217, 63.2-1732, 63.2-1733 and 63.2-1734 of the Code of Virginia.

Historical Notes

Derived from VR615-30-01 § 4.3, eff. July 1, 1989; amended, Virginia Register Volume 8, Issue 17, eff. July 1, 1992; Volume 11, Issue 3, eff. January 1, 1995; Volume 20, Issue 24, eff. November 1, 2004.

22VAC40-80-160. Investigation.

A. Upon receipt of the application the commissioner shall:

1. Cause an investigation to be made of the activities, services, and facilities of the applicant, and of his character and reputation;

2. If the applicant is an association, partnership, limited liability company, or corporation, cause an investigation of the character and reputation of its officers and agents; and

3. Upon receipt of the initial application, cause an investigation of the applicant's financial responsibility.

B. At the time of the initial application and annually thereafter, the applicant or licensee shall be responsible for obtaining inspection reports from appropriate fire and health agencies to determine compliance with applicable regulations.

EXCEPTION: This subsection does not apply to child placing agencies or family day systems.

1. All buildings shall be inspected and approved by the local building official when required. This approval shall be documented by a Certificate of Use and Occupancy indicating that the building is classified for its proposed licensed purpose.

2. At the time of the initial application and at least annually thereafter, the applicant or licensee shall obtain an inspection report from state or local fire authorities, as applicable, to determine compliance of the building or buildings with the Virginia Statewide Fire Prevention Code.

3. At the time of the initial application and at least annually thereafter, the applicant or licensee shall obtain an inspection report from state or local health authorities that shall include approval of general sanitation and, if applicable, water supply, sewage disposal systems, and food service operations for the building or buildings in which the facility is operated.

C. The department's representative will make an on-site inspection of the proposed facility or agency and an investigation of the proposed services, as well as an investigation of the character, reputation, and financial responsibility of the applicant. Compliance with all standards will be determined by the Department of Social Services. The licensee is responsible for correcting any areas of noncompliance found during any on-site inspection.

NOTE: See 22VAC40-90, 22VAC40-190, or 22VAC15-50, as applicable.

D. The applicant or licensee shall at all times afford the department's representative reasonable opportunity to inspect all of the facility's or agency's buildings, books, and records. Records that contain confidential proprietary information furnished to the department pursuant to this section shall be exempt from disclosure pursuant to subdivision 4 of § 2.2-3705.5 of the Code of Virginia.

At the time of the initial application, the financial records of an applicant shall not be subject to inspection if the applicant submits an operating budget and at least one credit reference.

E. The applicant or licensee shall also allow the department's representative to interview the facility's or agency's agents, employees, residents, participants, and any person under its custody, control, direction, or supervision. Interviews with residents, participants, and any person under the facility's or agency's custody, control, direction, or supervision shall be:

1. Authorized by the person to be interviewed or his legally authorized representative; and

2. Limited to discussion of issues related to the applicant's or licensee's compliance with applicable laws and regulations, including ascertaining if assessments and reassessments of residents' cognitive and physical needs are performed as required under regulations for licensure of the facility or agency.

F. After the on-site inspection the licensing representative will discuss the findings of the investigation with the administrator, licensee or designee. As applicable, the applicant shall submit an acceptable plan for correcting any areas of noncompliance following these discussions.

G. At any time during the investigation, an applicant or licensee may request an allowable variance to any standard that creates a special hardship. (See Part V (22VAC40-80-230 et seq.) of this chapter Allowable Variances.)

Statutory Authority

§§ 63.2-217, 63.2-1732, 63.2-1733, and 63.2-1734 of the Code of Virginia.

Historical Notes

Derived from VR615-30-01 § 4.4, eff. July 1, 1989; amended, Virginia Register Volume 8, Issue 17, eff. July 1, 1992; Volume 11, Issue 3, eff. January 1, 1995; Volume 20, Issue 24, eff. November 1, 2004; Volume 27, Issue 10, eff. February 16, 2011; Volume 29, Issue 21, eff. July 17, 2013.

22VAC40-80-170. Notice to the applicant of issuance or denial of a license.

A. When the investigation is completed, the department will notify the applicant of its decision regarding the issuance of a license.

B. When the department intends to deny the license, the department will send a letter stating the reasons for this action and the applicant's right to appeal the decision. (See Part VIII (22VAC40-80-330 et seq.) of this chapter.)

Statutory Authority

§§ 63.2-217, 63.2-1732, 63.2-1733 and 63.2-1734 of the Code of Virginia.

Historical Notes

Derived from VR615-30-01 § 4.5, eff. July 1, 1989; amended, Virginia Register Volume 8, Issue 17, eff. July 1, 1992; Volume 11, Issue 3, eff. January 1, 1995; Volume 20, Issue 24, eff. November 1, 2004.

22VAC40-80-180. Determination of continued compliance (renewal and monitoring inspections).

A. In order to determine continued compliance with standards during the effective dates of the license, the department's licensing representative will make announced and unannounced inspections of the facility or agency during the hours of its operation. The licensee is responsible for correcting any areas of noncompliance found during renewal or monitoring inspections.

B. All licensed child welfare agencies shall be inspected at least twice a year. At least one unannounced inspection of each licensed facility shall be made each year.

C. Adult day care centers issued a license for a period of six months shall be inspected at least two times during the six-month period, and at least one of those inspections shall be unannounced. Adult day care centers issued a license for a period of one year shall be inspected at least three times each year, and at least two of those inspections shall be unannounced. Adult day care centers issued a license for a period of two years shall be inspected at least two times each year, and at least one of those inspections shall be unannounced. Adult day care centers issued a license for a period of three years shall be inspected at least one time each year, and that inspection shall be unannounced.

D. Assisted living facilities issued a license for a period of six months shall be inspected at least two times during the six-month period, and at least one of those inspections shall be unannounced.

E. Assisted living facilities issued a license for a period of one, two, or three years shall be:

1. Inspected at least once each year, and that inspection shall be unannounced; and

2. Inspected as needed based on compliance with applicable laws and regulations.

F. The department's representative may also make such inspections of any homes or facilities that are approved by the licensee for the placement or care of children as one of the licensed services of the agency.

G. For any licensed assisted living facility, adult day care center, or child welfare agency, the department may conduct such other announced or unannounced inspections as are considered appropriate.

NOTE: When necessary to respond to excessive workloads or to give priority to higher risk situations, the department may use its discretion to increase or decrease the frequency of announced and unannounced inspections made to licensed facilities during the year.

Statutory Authority

§§ 63.2-217 and 63.2-1734 of the Code of Virginia.

Historical Notes

Derived from VR615-30-01 § 4.6, eff. July 1, 1989; amended, Virginia Register Volume 8, Issue 17, eff. July 1, 1992; Volume 11, Issue 3, eff. January 1, 1995; Volume 20, Issue 24, eff. November 1, 2004; Volume 27, Issue 10, eff. February 16, 2011.

22VAC40-80-190. Modification.

A. The licensee may request a modification of the terms of a license at any time during the period of the license. The request must be submitted in writing to the department's representative.

The department will evaluate written information about any planned changes in operation that would affect either the terms of the license or the continuing eligibility for a license. A licensing representative may inspect the facility during the process of evaluating a proposed modification.

Examples of such changes are: changes in the number of children or adults to be served, staff responsibilities, availability and use of the physical plant, and changes in program focus or needs of the population to be served.

B. If a modification can be granted under the standards, the department will issue a modified license reflecting the changes. In the event that a new application is needed or the modification cannot be granted, the licensee will be advised by letter.

Statutory Authority

§§ 63.2-217, 63.2-1732, 63.2-1733 and 63.2-1734 of the Code of Virginia.

Historical Notes

Derived from VR615-30-01 § 4.7, eff. July 1, 1989; amended, Virginia Register Volume 8, Issue 17, eff. July 1, 1992; Volume 11, Issue 3, eff. January 1, 1995; Volume 20, Issue 24, eff. November 1, 2004.

22VAC40-80-200. Early compliance.

A. A provisional or conditional license may be voided and a regular license issued when all of the following conditions exist:

1. The facility or agency complies with all standards listed on the face of the provisional or conditional license prior to the mid-point of the licensure period or within 90 days of the expiration date of the provisional or conditional license, whichever comes first, and the facility or agency is in substantial compliance with all other standards.

2. Compliance has been verified by an on-site observation by the department's licensing representative or, when applicable, by written evidence provided by the licensee.

3. All other terms of the license remain the same.

B. The licensee shall make a written request to the licensing representative for replacement of a provisional or conditional license with a regular license.

C. When the request is approved by the department, the effective date of the new regular license will be the same as the beginning date of the voided license. When the request is not approved, the reasons for this action will be confirmed to the licensee in writing.

D. Early compliance shall not be considered once the facility or agency has filed a renewal application.

Statutory Authority

§§ 63.2-217, 63.2-1732, 63.2-1733 and 63.2-1734 of the Code of Virginia.

Historical Notes

Derived from VR615-30-01 § 4.8, eff. July 1, 1989; amended, Virginia Register Volume 8, Issue 17, eff. July 1, 1992; Volume 11, Issue 3, eff. January 1, 1995; Volume 20, Issue 24, eff. November 1, 2004.

22VAC40-80-210. Renewal process.

A. The department will send an application for renewal of the license to the licensee prior to the expiration date of the current license. The licensee shall submit the completed application form, including all attachments and the licensing application fee, in a timely manner to assure adequate time for processing by the department. In order for the application to be considered complete, the licensee must have paid any outstanding civil penalty assessed in a case decision.

B. The department will not process a renewal application that is not complete or when the current license is being denied or revoked in accordance with the provisions of the Administrative Process Act.

C. Should a current license expire before a new license is issued, the current license shall remain in effect provided that a complete application was filed prior to expiration of the current license and a decision for licensure is pending.

D. The department will follow the procedure for investigation and notice to the applicant previously outlined in 22VAC40-80-160, 22VAC40-80-170, and 22VAC40-80-180.

Statutory Authority

§§ 63.2-217, 63.2-1732, 63.2-1733 and 63.2-1734 of the Code of Virginia.

Historical Notes

Derived from VR615-30-01 § 4.9, eff. July 1, 1989; amended, Virginia Register Volume 8, Issue 17, eff. July 1, 1992; Volume 11, Issue 3, eff. January 1, 1995; Volume 20, Issue 24, eff. November 1, 2004.

22VAC40-80-220. (Repealed.)

Historical Notes

Derived from VR615-30-01 § 5.1, eff. July 1, 1989; amended, Virginia Register Volume 8, Issue 17, eff. July 1, 1992; Volume 11, Issue 3, eff. January 1, 1995; repealed, Virginia Register Volume 20, Issue 24, eff. November 1, 2004.

Website addresses provided in the Virginia Administrative Code to documents incorporated by reference are for the reader's convenience only, may not necessarily be active or current, and should not be relied upon. To ensure the information incorporated by reference is accurate, the reader is encouraged to use the source document described in the regulation.

As a service to the public, the Virginia Administrative Code is provided online by the Virginia General Assembly. We are unable to answer legal questions or respond to requests for legal advice, including application of law to specific fact. To understand and protect your legal rights, you should consult an attorney.