22 VAC 40-61-40. Quality Assurance.

5. Assessment of the relationship of the program to the rest of the community service network. Clarification: Define what you mean by community service network.

22VAC40-61-120 Reports of abuse, neglect and exploitation

Proposed Language: B. The center shall notify the participants contact person or legal representative when a report is made as referenced in subsection A of this section, without identifying any confidential information.

Recommendation:

• Delete B.  In situations where the person suspected of alleged abuse is the contact person informing that person, prior to APS intervention, could put the participant at risk of retaliation or further abuse. It is best to allow the center to use the best judgment about notification of the contact person after speaking with the local department and/or APS hotline.

22VAC40-61-180 Staff records and health requirements

Proposed language: E. The following required health information shall be maintained at the center and be included in the staff record for each staff member and each volunteer who comes in contact with participants.

Recommendation:

• Remove requirement for volunteer having TB testing. Rather, except the volunteer that is included in the staff ratio that would be required TB screening annually.

22VAC 40-61-240 Participant agreement with the center.

Recommendation: 

• In the applicable sections of the regulation, add “authorized representative” as an option in the event a legal representative or family member is not available; consider including a definition for “authorized representative.”

22VAC 40-61-260. Physical examinations and report.

Proposed language: B. The report of the required physical examination shall be on file at the center and shall include…….:

Recommendation:

• B.1. Change address and telephone number to “Date of birth” because this is how the person is identified.
• B.5. Delete this requirement, and consider replacing it with “other health care conditions that may impact the need for care and supervision in the Adult Day Health Care environment.”
• B10. Add the statement: “The individual is physically and mentally capable or not capable of exiting a building in an emergency without the assistance of another person.”

22VAC 40-61-320 Assistance with activities of daily living.

Proposed language: C. Assistance with eating and feeding.

Recommendation:

• C.4. Change the second sentence to read, “Information about the need for eating adaptations shall be shared with the participant or the participant’s representative, and center staff shall assist the participant with utilization of the adaptive equipment or supplies that are provided by the participant or participant’s representative.”

22VAC 40-61-330 Activities.

Proposed language:

F. Schedule of activities:

b. The name, type, date, and hour of the activity.

K. In addition to the required scheduled activities, there shall be unscheduled staff and participant interaction throughout the day that fosters an environment that promotes socialization opportunities for participants.

Recommendation:

• F.1. b. Delete “Type” because there is not enough room on the calendar to include this information; furthermore, the activity implies the type of activity. 
• K. Delete the statement about staff to participant interactions. Instead say, “In addition to the required scheduled activities, center staff will foster an environment that promotes socialization opportunities for participants.”

22VAC 40-61-370. Observance of religious dietary practices.

Recommendation:

• Add the statement: In the event a participant has complex or cost prohibitive dietary needs or preferences that the facility is not able to accommodate, the participant may be expected to provide food items of their choice.

22VAC40-61-380. Transportation services.

Proposed Language: B. 1. The driver has a valid Virginia driver's license to operate the type of vehicle being used.

Recommendation:

• B1. The driver has a valid driver's license to operate the type of vehicle being used.

September 5, 2017

Annette Kelley: Licensing Consultant

VA Dept. of Social Services

801 East Main Street, Room 1507

Richmond, VA 23219

RE: Public Comment for Proposed Standards and Regulations for Licensed Adult Day Care Centers

Dear Ms. Kelley,

The disAbility Law Center of Virginia appreciates the opportunity to comment on the proposed standards and regulations for licensed adult day care centers. As you know, dLCV is the state’s designated organization to promote and protect the rights of people with disabilities.  We are, therefore, especially sensitive to the protection of those rights in the proposed standards and regulations.

Throughout the proposed standards, there are many requirements to notify family or legal representatives.  We are alarmed that those notification requirements do not extend to the individual.  As you are aware, “aging” is not equivalent to “incapacity.”  In fact, under Virginia law, capacity is presumed.  Therefore, the standards should not presume that the individual is not capable of receiving notifications.  We strongly urge that all the references to requirements to contact or share information, should indicate first the individual, and then any family or friend previously designated by that individual, or any legal representative.

The directions of the individual should be emphasized, for example, in 22VAC40-61-250 (B): Participant record. We recommend underscoring this right by changing Section B to reflect "...friends, or other people designated by the individual when possible or by his legal representative.” Similar changes should be made to 22VAC40-61-50 (E), 22VAC40-61-300 (F), 22VAC40-61-320 (F) (4) and (6), 22VAC40-61-520 (F) (1), and 22VAC40-61-560 (A) (6).

We are additionally concerned that the proposed regulations at 22VAC40-61-50 (Participant rights and responsibilities) may be in conflict with existing state law. As you may know, the Health Care Decisions Act requires two doctors to make a determination of incapacity.  The proposed regulations appear to state that this decision can be made by one physician.  We suggest changing the language to state: "…unless the participant has been determined incapacitated pursuant to Va. Code § 54.1-2983.2 and documentation is contained in the participant's record."

Section F of 22VAC40-61-300, Medication management, presents another concern.  Of course, if there is a medication error and the individual has an adverse reaction, the first priority is to deal with that adverse reaction.  However, if there is a med error with no immediate consequences to the individual, the center staff should first and foremost speak directly with the individual to explain the error and any possible adverse reactions that may occur because of the error.  We suggest, "If not contrary to immediate medical needs of the participant, the participant shall be notified of the error, the actions taken by center staff to protect the participant, and any possible adverse consequences of the error."

We are grateful that the regulations make clear that the use of restraints is absolutely prohibited.  However, to provide best direction to staff, we recommend that you include in 22VAC40-61-310: Restraints, a reference back to the required training in behavior management techniques in 22VAC40-61-110(B)(7), as follows: "Any behavior that poses a threat to the participant, other participants, or staff shall be handled according to the training received pursuant to subsection 110(B)(7) of this chapter."

In 22VAC40-61-320: Assistance with activities of daily living, we believe there should be something specific regarding identification of swallowing and choking issues. We suggest adding, "Staff shall observe participants for any possible swallowing or choking concerns and shall report these concerns to the director immediately. The director or designee shall take necessary action to ensure safety of participants who may exhibit issues with swallowing or choking, including making a referral to the appropriate medical professional for evaluation."

In 22VAC40-61-460: Restroom facilities, we recommend adding, “At least one sink shall be accessible to an individual using a wheelchair or other assistive technology.”

In 22VAC40-61-500: Telephones, we recommend adding, "C. Staff shall provide assistance to any participant upon request and shall provide immediate access and assistance if the participant requests contact with APS, an Ombudsman, or the disAbility Law Center of Virginia."

Thank you for your consideration of these comments.

Sincerely,

V. Colleen Miller

Director

22VAC40-61-120 Reports of abuse, neglect and exploitation

Proposed Language: B. The center shall notify the participants contact person or legal representative when a report is made as referenced in subsection A of this section, without identifying any confidential information.

Recommendation:

• Delete B.  In situations where the person suspected of alleged abuse is the contact person informing that person, prior to APS intervention, could put the participant at risk of retaliation or further abuse. It is best to allow the center to use the best judgment about notification of the contact person after speaking with the local department and/or APS hotline.

22VAC 40-61-260. Physical examinations and report.

Proposed language: B. The report of the required physical examination shall be on file at the center and shall include…….:

Recommendation:

• B.1. Change address and telephone number to “Date of birth” because this is how the person is identified.
• B.5. Delete this requirement, and consider replacing it with “other health care conditions that may impact the need for care and supervision in the Adult Day Health Care environment.”

22VAC 40-61-290 Infection Control

Recommendation:

• keep infection prevention compliant with OSHA

22Vac 40-61-330 Activities

Recommendation:

• no to always having a designated staff person on duty who meets specific qualifications as stated or add qualified program assistant

22VAC40-61-380. Transportation services.

Proposed Language: B. 1. The driver has a valid Virginia driver's license to operate the type of vehicle being used.

Recommendation:

• B1. The driver has a valid driver's license to operate the type of vehicle being used

I do not feel that it should be within the scope of licensing to be a part of  guaging quality assurance of any given Center.  It is licensing's job to have standards for the Centers to meet.  Above and beyond quality assurance is the responsibility of the governing bodies (i.e., Board of Directors) for each Center.  Also, quality assurance could lead to various interpretations and may be very subjective.

A Center SHOULD NOT be required to notify the participant's contact person or legal representative when a report is made.  Doing so could jepordize the safety of the person making the call, could impede the process of reporting, and could potentially cause disruptive behavior at the Center.  A confidential call is the best way to encourage that calls be made when necessary.

I think it is fine to require that all direct care have basic first aid however, I do not think it is necessary for all direct care to have CPR.  A  Center should have enough qualified people on staff  (2 on the floor, for example), who can perform cpr until emergency help arrives.  However, there may be very qualified staff who provide direct client care who are unable to perform CPR. This reguation would prevent them from eligibility as direct care staff.  In adult day health care, it is safe to say that almost all staff provide direct care at some point.  In large facilities, this is an expense both for cost of training and time out for training.   

 Second serving at no additional charge... IF seconds are available.  For example, if a Center caters their meals and orders food for 20 clients on a given day, they should not be required to order 25 servings just so extra food is available.  This is extrememly costly and unnecessary. Current copy of a diet manual?? Is that manual being made available to us?  Is it necessary when one follows the rda regulations?  

Thank you for your work on the enhanced ADC regulations and the opportunity for additional comments. The Office of the State Long-Term Care Ombudsman is in complete agreement with the comments on notification made by The disAbility Law Center of Virginia.   In addition, after careful consideration and attention to suggestions from others, we would recomment additional detail be added to 22VAC40-61-120.

22VAC40-61-120 Reports of abuse, neglect and exploitation

B. The center shall notify the participant’s contact person or legal representative when a report is made as referenced in subsection A of this section, without identifying any confidential information.

Additional precision in needed in this section.  Working from the principle that participants have the right to be involved with their care and services received, and the right to designate a representative to act on their behalf when the participant desires, the participant and designated person should be informed when a referral has been made to APS involving the participant, in situations when the alleged perpetrator is another participant, visitor or staff of the Center, or transportation provider.  However, as others have noted, if the suspected abuse, neglect or exploitation is allegedly occurring at home or by the participant’s representative, notification of APS referral should not be made by the Center in order to avoid additional abuse, neglect or exploitation from occurring before APS is able to investigate.

Thank you for your consideration.