Virginia Law

Article 2. Rights and Responsibilities of Patients in Nursing Homes.

A. The governing body of a nursing home facility required to be licensed under the provisions of Article 1 (§ 32.1-123 et seq.) of this chapter, through the administrator of such facility, shall cause to be promulgated policies and procedures to ensure that, at the minimum, each patient admitted to such facility:

1. Is fully informed, as evidenced by the patient's written acknowledgment, prior to or at the time of admission and during his stay, of his rights and of all rules and regulations governing patient conduct and responsibilities;

2. Is fully informed, as evidenced by the patient's written acknowledgment, prior to or at the time of admission and during his stay, of services available in the facility, the terms of such services, and related charges, including any charges for services not covered under Titles XVIII or XIX of the United States Social Security Act or not covered by the facility's basic per diem rate;

3. Is fully informed in summary form of the findings concerning the facility in federal Centers for Medicare & Medicaid Services surveys and investigations, if any;

4. Is fully informed by a physician, a physician assistant, or an advanced practice registered nurse of his medical condition unless medically contraindicated as documented by a physician, a physician assistant, or an advanced practice registered nurse in his medical record and is afforded the opportunity to participate in the planning of his medical treatment and to refuse to participate in experimental research;

5. Is transferred or discharged only for medical reasons, or for his welfare or that of other patients, or for nonpayment for his stay except as prohibited by Titles XVIII or XIX of the United States Social Security Act, and is given reasonable advance notice as provided in § 32.1-138.1 to ensure orderly transfer or discharge, and such actions are documented in his medical record;

6. Is encouraged and assisted, throughout the period of his stay, to exercise his rights as a patient and as a citizen and to this end may voice grievances and recommend changes in policies and services to facility staff and to outside representatives of his choice, free from restraint, interference, coercion, discrimination, or reprisal;

7. May manage his personal financial affairs, or may have access to records of financial transactions made on his behalf at least once a month and is given at least a quarterly accounting of financial transactions made on his behalf should the facility accept his written delegation of this responsibility to the facility for any period of time in conformance with state law;

8. Is free from mental and physical abuse and free from chemical and, except in emergencies, physical restraints except as authorized in writing by a physician for a specified and limited period of time or when necessary to protect the patient from injury to himself or to others;

9. Is assured confidential treatment of his personal and medical records and may approve or refuse their release to any individual outside the facility, except in case of his transfer to another health care institution or as required by law or third-party payment contract;

10. Is treated with consideration, respect, and full recognition of his dignity and individuality, including privacy in treatment and in care for his personal needs;

11. Is not required to perform services for the facility that are not included for therapeutic purposes in his plan of care;

12. May associate and communicate privately with persons of his choice and send and receive his personal mail unopened, unless medically contraindicated as documented by his physician in his medical record;

13. May meet with and participate in activities of social, religious and community groups at his discretion, unless medically contraindicated as documented by his physician, physician assistant, or advanced practice registered nurse in his medical record;

14. May retain and use his personal clothing and possessions as space permits unless to do so would infringe upon rights of other patients and unless medically contraindicated as documented by his physician, physician assistant, or advanced practice registered nurse in his medical record;

15. If married, is assured privacy for visits by his or her spouse and if both are inpatients in the facility, is permitted to share a room with such spouse unless medically contraindicated as documented by the attending physician, physician assistant, or advanced practice registered nurse in the medical record; and

16. Is fully informed, as evidenced by the written acknowledgment of the resident or his legal representative, prior to or at the time of admission and during his stay, that he should exercise whatever due diligence he deems necessary with respect to information on any sexual offenders registered pursuant to Chapter 9 (§ 9.1-900 et seq.) of Title 9.1, including how to obtain such information. Upon request, the nursing home facility shall assist the resident, prospective resident, or the legal representative of the resident or prospective resident in accessing this information and provide the resident, prospective resident, or the legal representative of the resident or prospective resident with printed copies of the requested information.

B. All established policies and procedures regarding the rights and responsibilities of patients shall be printed in at least 12-point type and posted conspicuously in a public place in all nursing home facilities required to be licensed under the provisions of Article 1 (§ 32.1-123 et seq.) of this chapter. These policies and procedures shall include the name and telephone number of the complaint coordinator in the Division of Licensure and Certification of the Virginia Department of Health, the Adult Protective Services' toll-free telephone number, as well as the toll-free telephone number for the Virginia Long-Term Care Ombudsman Program and any substate ombudsman program serving the area. Copies of such policies and procedures shall be given to patients upon admittance to the facility and made available to patients currently in residence, to any guardians, responsible party as defined in regulation, next of kin, or sponsoring agency or agencies, and to the public.

C. The provisions of this section shall not be construed to restrict any right that any patient in residence has under law.

D. Each facility shall provide appropriate staff training to implement each patient's rights included in subsection A hereof.

E. All rights and responsibilities specified in subsection A hereof and § 32.1-138.1 as they pertain to (i) a patient adjudicated incapacitated in accordance with state law, (ii) a patient who is found, by his physician, to be medically incapable of understanding these rights, or (iii) a patient who is unable to communicate with others shall devolve to such patient's guardian, responsible party as defined in regulation, next of kin, sponsoring agency or agencies, or representative payee, except when the facility itself is representative payee, selected pursuant to section 205(j) of Title II of the United States Social Security Act. The persons to whom such rights and responsibilities have devolved shall be deemed to have legal authority to act on the patient's behalf with respect to the matters specified in this section.

F. Nothing in this section shall be construed to prescribe, regulate, or control the remedial care and treatment or nursing service provided to any patient in a nursing institution to which the provisions of § 32.1-128 are applicable.

G. It shall be the responsibility of the Commissioner to insure that the provisions of this section and the provisions of § 32.1-138.1 are observed and implemented by nursing home facilities. Each nursing home facility to which this section and § 32.1-138.1 are applicable shall certify to the Commissioner that it is in compliance with the provisions of this section and the provisions of § 32.1-138.1 as a condition to the issuance or renewal of the license required by Article 1 (§ 32.1-123 et seq.) of this chapter.

Code 1950, § 32-296.1; 1976, c. 349; 1979, c. 711; 1987, c. 221; 1997, c. 801; 1999, c. 783; 2000, c. 177; 2004, c. 855; 2006, c. 396; 2007, cc. 120, 163; 2010, c. 57; 2023, c. 183.

A. To implement and conform with the provisions of subdivision A 4 of § 32.1-138, a facility may discharge the patient, or transfer the patient, including transfer within the facility, only:

1. If appropriate to meet that patient's documented medical needs;

2. If appropriate to safeguard that patient or one or more other patients from physical or emotional injury;

3. On account of nonpayment for his stay except as prohibited by Titles XVIII or XIX of the United States Social Security Act and the Virginia State Plan for Medical Assistance Services; or

4. With the informed voluntary consent of the patient, or if incapable of providing consent, with the informed voluntary consent of the patient's authorized decision maker pursuant to § 54.1-2986 acting in the best interest of the patient, following reasonable advance written notice.

B. Except in an emergency involving the patient's health or well being, no patient shall be transferred or discharged without prior consultation with the patient, the patient's family or responsible party and the patient's attending physician. If the patient's attending physician is unavailable, the facility's medical director in conjunction with the nursing director, social worker or another health professional, shall be consulted. In the case of an involuntary transfer or discharge, the attending physician of the patient or the medical director of the facility shall make a written notation in the patient's record approving the transfer or discharge after consideration of the effects of the transfer or discharge, appropriate actions to minimize the effects of the transfer or discharge, and the care and kind of service the patient needs upon transfer or discharge.

C. Except in an emergency involving the patient's health or well being, reasonable advance written notice shall be given in the following manner. In the case of a voluntary transfer or discharge, notice shall be reasonable under the circumstances. In the case of an involuntary transfer or discharge, reasonable advance written notice shall be given to the patient at least five days prior to the discharge or transfer.

D. Nothing in this section or in subdivision A 4 of § 32.1-138 shall be construed to authorize or require conditions upon a transfer within a facility that are more restrictive than Titles XVIII or XIX of the United States Social Security Act or by regulations promulgated pursuant to either title.

1987, c. 221; 1993, c. 692.

No contract or agreement for nursing home care shall contain any provisions which restrict or limit the ability of a resident to apply for and receive Medicaid or which require a specified period of residency prior to applying for Medicaid. The resident may be required to notify the facility when an application for Medicaid has been made. No contract or agreement may require a deposit or other prepayment from Medicaid recipients. No contract or agreement shall contain provisions authorizing the facility to refuse to accept retroactive Medicaid benefits.

1987, c. 221.

Any facility certified under Title XVIII or XIX of the United States Social Security Act shall not require a third party guarantee of payment to the facility as a condition of admission or of expedited admission to, or continued stay in, the facility. This section shall not be construed to prevent a facility from requiring an individual who has legal access to a resident's income or resources which are available to pay for care in the facility to sign a contract without incurring personal financial liability except for breach of the duty to provide payment from the resident's income or resources for such care.

For purposes of this section, the resident's income or resources shall include any amount deemed to be income or resources of the resident for purposes of Medicaid eligibility and any resources transferred by the resident to a third party if the transfer disqualifies the resident from Medicaid coverage for nursing facility services.

1989, c. 193.

No nursing facility may retaliate or discriminate in any manner against any person who (i) in good faith complains or provides information to, or otherwise cooperates with, the Department or any other agency of government or any person or entity operating under contract with an agency of government, having responsibility for protecting the rights of patients of nursing facilities or (ii) attempts to assert any right protected by state or federal law.

1994, c. 941.

Whenever the Department conducts inspections and investigations in response to complaints received from the public, the identity of the complainant and the identity of any patient who is the subject of the complaint, or identified therein, shall be treated as confidential and shall not be open to inspection by members of the public. Identities of the complainant and patient who is the subject of the complaint shall be revealed only if a court order so requires. Nothing contained herein shall prevent the Department, in its discretion, from disclosing to the nursing facility the nature of the complaint or the identity of the patient who is the subject of the complaint. Nothing contained herein shall prevent the Department or its employees from making reports under § 63.2-1603 et seq. If the Department intends to rely, in whole or in part, on any statements made by the complainant, at any administrative hearing brought against the nursing facility, the Department shall disclose the identity of the complainant to the nursing facility a reasonable time in advance of such hearing.

1994, c. 941.

A. As used in this section:

"Electronic monitoring" means the use of a surveillance device with a fixed position video camera or audio 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 shall not include use of a device that enables audio communication into the resident's room from another source.

"Family member" means the resident's spouse, parent, stepparent, child, stepchild, brother, sister, half-brother, half-sister, grandparent, or grandchild.

"Legal representative" means a person legally responsible for representing or standing in the place of the resident for the conduct of his 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 his 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 he has legal authority to act.

B. All requests for electronic monitoring shall be made in writing and signed by the resident or, if the resident has been legally deemed incompetent, the resident's legal representative. Only electronic monitoring in accordance with this section is permitted.

Electronic monitoring shall be permitted only:

1. Upon the informed consent of the resident or resident's legal representative, which shall be obtained prior to the installation or use of any electronic monitoring device. Consent for electronic monitoring shall be kept in the resident's medical record;

2. When the resident resides:

a. In a room with no roommates; or

b. In a room with any roommates and obtains written consent to visual recording from such roommates or, if any roommate has been legally deemed incompetent, such roommate's legal representative. When a resident resides with any roommates, only video electronic monitoring shall be permitted pursuant to this subsection;

3. Upon execution of an agreement for the sharing and release of medical data and information protected by the federal Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. § 1320d et seq.) signed by the resident or resident's legal representative or, if applicable, any such agreement signed by any roommate or roommate's legal representative shall be kept in all consenting individuals' medical records; and

4. When the nursing facility has secured and password-protected wireless Internet access or other means available to operate the electronic monitoring device without modification to the nursing facility or a change in level or capacity of Internet access.

C. A nursing facility shall allow electronic monitoring of a resident of a nursing facility if the electronic monitoring is conducted in accordance with this section. 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 shall not implement or activate electronic monitoring over the objections of or contrary to the instructions of the resident or the resident's legal representative. No electronic monitoring equipment may be installed over the objections of or contrary to the instructions of the resident or resident's legal representative.

E. Nursing facilities shall designate one or more staff persons to be the point of contact for electronic monitoring requests and for providing information and policies upon request during normal business hours.

F. Except as provided in subsection O, nursing facilities may assume custodial ownership of any recordings from electronic monitoring devices from the resident or resident's legal representative. Recordings from electronic monitoring devices shall not be considered part of the resident's medical record.

G. If a nursing facility chooses to assume ownership of recordings from electronic monitoring devices pursuant to subsection F, the nursing facility shall not permit viewings of recordings without consent of the resident or resident's legal representative except to the extent that disclosure is required by law or for quality assurance purposes.

H. A nursing facility shall not be held liable for any breach of data or privacy related to the presence of the electronic monitoring device.

I. A nursing facility shall require its staff to immediately report any incidents regarding safety or quality of care discovered or reported to staff as a result of viewing a recording from an electronic monitoring device to the administrator of the nursing facility.

J. A nursing facility shall have no obligation to seek access to a recording for which it has not assumed custodial ownership or to have knowledge of a recording's content unless (i) the nursing facility is aware of a recorded incident of suspected abuse or neglect or of an accident or injury based upon a report received by the facility of such incident, accident, or injury or (ii) the resident, the resident's legal representative, or a government agency seeks to use a recording.

K. Unless a nursing facility chooses to assume ownership of any recordings from an electronic monitoring device, the resident or resident's legal representative shall be responsible for all aspects of the operation of the electronic monitoring device, including the removal and replacement of recordings; adherence to local, state, and federal privacy laws; and use of 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. A nursing facility shall make reasonable physical accommodations for electronic monitoring devices, including:

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

2. Providing reasonable access to power sources if already in proximity to the device.

N. A nursing facility shall require a resident or resident's legal representative to pay for all costs, other than the cost of electricity, associated with the purchase and installation of the electronic monitoring device. In addition, a nursing facility offering facility-managed electronic monitoring may charge a one-time fee not to exceed $150 when the electronic monitoring device is installed along with a security deposit not to exceed $250. A nursing facility may charge a monthly fee not to exceed $10 to cover costs associated with the electronic monitoring device. Such costs may include equipment, secured and password-protected wireless Internet and server capabilities, 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 fees.

O. The resident or resident's legal representative of a room with an electronic monitoring device may verbally or in writing condition consent to the installation or use of the electronic monitoring device. Such conditions on consent may include: (i) the ability of the resident, any roommate, or staff at the request of the resident or any roommate, to turn off or disable the audio or video electronic monitoring device during certain periods of time and (ii) a prohibition on the ability of the nursing facility to, pursuant to subsection F, choose to assume custodial ownership of any recordings from the electronic monitoring device after the electronic monitoring device has been installed and is operational. If the resident or resident's legal representative or any roommate or roommate's legal representative places any such conditions on consent, the nursing facility and staff shall ensure that the installation, use, and operation of the electronic monitoring device and any electronic monitoring or other activities conducted in connection therewith are conducted in compliance with such conditions.

P. 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.

Q. Nursing facilities shall notify assigned staff for the resident when electronic monitoring is in use in a resident's room pursuant to this section.

R. Each nursing facility shall adopt policies and procedures for electronic monitoring consistent with this section.

S. Each nursing facility shall adopt a policy prohibiting staff from willfully tampering with electronic monitoring devices in violation of this section. Adjusting or disabling an electronic monitoring device during the provision of patient care shall not constitute willful tampering if such adjusting or disabling is done in order to protect the dignity of a resident or at the direction of the resident or resident's legal representative.

T. If the placement or position of the electronic monitoring device creates risk to a nursing facility employee, resident, or any roommate, or if the resident or resident's legal representative or family member violates the nursing facility's policies and procedures for electronic monitoring, the equipment may be disabled and removed and the resident, resident's legal representative, or family member responsible for the camera shall be notified of the removal.

2025, c. 432.