On behalf of The Arc of Northern Virginia, a nonprofit organization that serves individuals with developmental disabilities (DD) and their families across the lifespan, we write in strong support of the proposed regulatory change requiring Assisted Living Facilities (ALFs) to provide discharge notices to the Virginia Department of Social Services.

This change represents a critical step forward in protecting the rights and dignity of some of the most vulnerable members of our community. Prior to this regulation, individuals and families impacted by improper or inappropriate discharges were left with limited and often ineffective avenues for recourse—such as filing a licensing complaint or pursuing a private contract dispute. This was especially problematic given the exclusion of certain ALFs from landlord-tenant protections under Virginia law, leaving residents without a clear path to challenge unjust discharges.

By requiring ALFs to notify the Department of all discharges, this regulation creates a mechanism to identify patterns of behavior that may indicate systemic issues. It allows for the collection of much-needed data on how often discharges occur, under what circumstances, and in which facilities. This data is essential for regulatory oversight, accountability, and ensuring that facilities are acting in the best interests of their residents.

Improper or rushed discharges can have devastating consequences, especially for individuals with developmental disabilities, many of whom rely on consistent, supportive environments to maintain their health, safety, and well-being. Discharge decisions should never be made lightly or used as a tool to remove individuals who may require more intensive support. Requiring transparency in discharge practices ensures that these decisions are subject to appropriate scrutiny and encourages facilities to exhaust all other support and behavioral intervention options before pursuing discharge.

This regulation also aligns with broader values of person-centered care, respect, and community integration. It affirms that ALFs are not just housing providers—they are responsible for ensuring that individuals, especially those with disabilities, are treated with fairness and compassion.

We urge the Virginia Department of Social Services to adopt and implement this regulation without delay. It is a necessary safeguard that will help prevent harm, promote accountability, and uphold the rights of individuals living in ALFs.

Thank you for your commitment to improving protections for vulnerable Virginians.

Sincerely,
Lucy Beadnell
The Arc of Northern Virginia

The Virginia Assisted Living Association (VALA) has worked with licensed assisted living providers to review the proposed changes to 22VAC40-73 regarding involuntary discharges within assisted living facilities. Listed below are some recommendations, marked in red and highlighted, to improve the proposed regulations in the best interest of the residents and the continued operation of the assisted living facility.

22VAC40-73-10. Definitions

"Involuntary discharge" means the permanent movement of a resident out of the assisted living facility that is initiated by the facility.

• Without including the word “permanent,” then a temporary transfer to a hospital or rehab center could technically be considered an “involuntary discharge.”

22VAC40-73-430. Discharge of Residents

E. 3. The resident's failure to substantially comply with the terms and conditions relating to the basis for discharge, as allowed by this chapter, of the resident agreement between the resident and the assisted living facility, provided that the resident and the resident's legal representative or designated contact person, if any, has been given written notice and at least 30 days to cure the basis for discharge.

• The stricken language is irrelevant, as E states “Involuntary discharge of residents may only occur under the following circumstances…”; therefore, 3 is only applicable to the basis for discharge.

I. The facility shall offer to provide relocation assistance for residents who are being involuntarily or emergency discharged, which shall include:

1. Assisting the resident and the resident's legal representative or designated contact person, if any, in the discharge or transfer process;

2. Providing the website address to search VDSS records of licensed assisted living facilities and the CMS Care Compare website for different types of Medicare providers a list of facilities that may be able to meet the resident's needs or arranging an appointment with to the resident and the resident's legal representative or designated contact person, if any, and, if requested, a case manager who can provide such information;

• The Virginia Department of Social Services and CMS maintains current listingS of licensed providers and should be a source for helping to find appropriate housing and services.

3. If needed, providing assistance with packing the resident's possessions or paying for a third party to do so, less any insurance, government, or other comparable assistance that the resident is entitled to receive; and

4. If needed, providing assistance with moving and transportation to the resident's new location or paying for a third party to provide such moving and transportation, less any insurance, government, or other comparable assistance that the resident is entitled to receive.

J. No facility shall be required to pay more for relocation assistance as described in subsection I of this section than the monthly charges for accommodations, services, and care as described in the resident agreement (22VAC40-73-390 A), and no facility shall be required to move and transport a resident's belongings outside the state unless such assistance is for a location outside the state within 50 miles of the facility.

K. If the facility employs a third party to pack, move, or transport the resident's belongings as described in subdivisions I 3 and I 4 of this section, no costs shall be billed to the resident.

• Requiring the assisted living facility to financially cover the discharge process of the resident was not directed by §63.2-1805 and could cause a significant burden on the facility. Requiring financial obligations such as with staff time and materials to pack belongings and to provide moving and transportation assistance to the new location is also in excess of what the federal government requires of skilled nursing facilities in discharges.

22VAC40-73-435. Involuntary and emergency discharge appeals

D. 1. Allow the resident to continue to reside in the facility, free from retaliation, until the lesser date of 1. the appeal has a final department case decision, as defined in § 2.2-4001 of the Code of Virginia, or 2. 30 days after confirmation of receipt of the discharge appeal hearing request form by the Division of Appeals and Fair Hearings unless the discharge is an emergency discharge or the resident has developed a condition or care need that is prohibited by 22VAC40-73-310 H in accordance with § 63.2-1805 D of the Code of Virginia, and the resident is no more than 30 days in arrears in monthly charges;

• Requiring the facility to retain a resident that has already potentially been in non-compliance of contractual agreements for extended periods of time after the initial notification periods can create significant burdens on the continued operation of the facility and the well-being of other residents. We recommend having defined timeframes for the continued residency during the appeal is needed. The resident should be required to be in compliance with the contracted payments to continue to reside at the facility during an appeal, or this will continue to exacerbate the financial burden on the community, which could impact services to other residents that are in compliance with their resident agreements.

D. 2. Assist the resident and the resident's legal representative or designated contact person, if any, with filing the appeal by providing the required information in § 63.2-1805 of the Code of Virginia and this chapter; and

• Adding this statement creates a clear understanding of how the facility is to assist with the appeal.
• While facilities are required to inform residents of their right to appeal an involuntary discharge, providing direct assistance in completing or submitting the appeal paperwork may create a legal and ethical conflict of interest. Because the facility is the initiating party in the proposed discharge, its interests are inherently adverse to the resident’s in the appeal process. Any involvement in drafting or influencing the appeal could undermine the resident’s autonomy, compromise the fairness of the proceeding, and expose the facility to allegations of coercion, manipulation, or obstruction of due process. To preserve the integrity of the appeal and ensure the resident's rights are protected, facilities should refer residents to independent advocates, such as the Long-Term Care Ombudsman Program, legal aid, or other neutral third parties who can assist without bias or conflicting interests.

E. 2. The Division of Appeals and Fair Hearings will provide written confirmation of receipt of the discharge appeal hearing request form to the resident and the resident's legal representative or designated contact person, if any, and the facility within 10 5 days of receipt of the discharge appeal hearing request form.

E. 3. The hearing officer will conduct an appeal hearing within 30 15 days following the date of confirmation, unless a different timeframe is agreed upon by the parties and the hearing officer.

E. 4. The burden of proof shall be upon the facility to present evidence to support that the discharge was in compliance with § 63.2-1805 of the Code of Virginia and this chapter.

5. A final written department case decision, as defined in § 2.2-4001 of the Code of Virginia, will be sent by mail and electronic mail to the resident and the resident's legal representative or designated contact person, if any, and the facility within 20 15 days of the hearing, unless the case record is held open by the hearing officer to receive additional evidence.

• Since the involuntary discharge is not initiated without an original 30-day window of noncompliance, the set timelines for the subsequent steps need to be narrowed to minimize the financial burden on the community, which could impact services to other residents that are in compliance with their resident agreements.

Thank you for considering these concerns. Please let us know if you have any questions about these comments.

On behalf of the Arlington Commission on Aging, we write in strong support of the proposed regulatory changes concerning involuntary discharge of residents.  The Commission on Aging serves as a key advisory body to the County Board of Arlington County with a mission to promote the quality of life for all older persons and to ensure their needs are included in all planning and activities. 

The proposed regulations provide a fundamental safeguard that will prevent serious harm to the highly vulnerable population of assisted living residents and their families who are currently at risk of inappropriate and unnecessary discharges.  Currently, while nursing home residents have access to discharge hearings and tenants have protections built into the eviction process, assisted living resident are left with little recourse.  As a result, involuntarily discharged residents may be shuffled into homeless shelters, hospital emergency rooms, or nursing homes where care costs may be unnecessarily heightened. 

Homelessness of older adults continues to spike in Arlington.  According to the 2025 annual point-in-time (PIT) survey of homelessness by the Metropolitan Washington Council of Governments, homelessness in Arlington increased for the fourth year in a row, with the 2024-2025 increase at 12 percent.  Adults represented the lion’s share of the homeless, with adults over age 55 representing 32% of all adults experiencing homelessness.  Improper assisted living discharges, especially of residents who require intensive supports, can only increase homelessness and the need for costly emergency protection measures.  

The regulation sets out a solid process for discharging residents only for allowable reasons, notifying residents of intended discharges, encouraging facilities to resolve issues short of discharge, and providing for facility assistance in relocation.  Further, the regulation provides that in involuntary and emergency discharge, the facility must provide a copy of the discharge notice to the licensing office and to the State Long-Term Care Ombudsman. This allows for intervention in cases of improper discharge, ensuring that such drastic action is in the best interest of the resident. It also enables the agency and ombudsman to track these discharges to discover trends and patterns on which to base improvements and training.

Currently there is scant data providing insight into how often discharges occur, under what circumstances, and in which facilities.  By requiring ALFs to notify the Department of all discharges, the regulation for the first time creates a needed mechanism to identify discharge patterns that may indicate facility-specific or system-wide issues.  Any additional administrative burden borne by facilities in carrying out the proposed regulation pales in comparison with the basic due process, safety, and dignity interests of residents.  

In 2024, the regulation was proposed to be fast-tracked, and many public comments identified ways in which the process could be improved to ensure the best interests of at-risk residents, as well as fairness to facilities. Changes responding to these comments have strengthened the regulation as it now stands.

The Arlington Commission on Aging urges the speedy adoption of the regulation to secure the most fundamental right of notice and opportunity to be heard in the face of pending discharge from care.  The regulation takes a major step in meeting the needs of assisted living residents in Virginia.

Dear Ms. Halbleib,

The disAbility Law Center of Virginia (dLCV) appreciates the opportunity to comment on the proposed regulation for the Standards for Licensed Assisted Living Facilities (ALF), 22VAC-40-73, as drafted by the Virginia Department of Social Services (DSS). dLCV is grateful for DSS working towards an effective appeals system for involuntary ALF discharges.

dLCV supports the proposed regulation for the following reasons: 

1. The involuntary discharge appeal process is necessary for all residents, but particularly those receiving Social Security (SSA) or Supplemental Security Income (SSI) benefits. SSA/SSI beneficiaries may not be able to make timely room and board payments for a number of reasons. New applicants for SSA/SSI benefits can experience long delays between their initial application and the first benefits payment. Delays at Social Security can also affect residents who are forced to change their representative payee when moving to a new ALF and might have to wait months for their new payee to receive conserved funds as well as monthly benefits. While many ALF administrators understand the delays at Social Security and are willing to work with their residents, others aren’t familiar with these issues or worse yet, willfully ignore the circumstances surrounding nonpayment. The appeals process allows residents and their designees to explain nonpayment and work with the ALF to ensure that payment is made once Social Security has resolved new applications or changes to representative payees.
2. For ALF residents whose funds are managed by a representative payee, conservator, or another third party, the appeals process provides an important safety net in the event of financial exploitation. When safety measures to monitor the performance these third parties fail, the risk of financial exploitation increases drastically. ALF residents should not be involuntarily discharged from a stable ALF placement because of mismanagement or outright financial exploitation by a third-party payor. Some ALF administrators are able to recognize these issues and make appropriate referrals, but that is not always the case. By requiring that ALFs provide a copy of the involuntary discharge notice to the Long-Term Care (LTC) Ombudsman, the new regulation creates a needed mechanism to ensure that ALF residents are protected from financial harm.
3. Section K of the proposed regulation prohibits facilities from charging residents for packing, moving, and transport costs. ALF residents who are supported by the Auxiliary Grant receive less than $100 per month to cover pharmacy, hygiene, and any other expenses. They simply do not have the funds to pay for packing, moving, or transportation services in the event of an involuntary or emergency discharge. dLCV appreciates DSS acknowledging these circumstances and ensuring that residents are not subject to additional financial hardship during the emergency/involuntary discharge process.
4. Requiring that ALFs send a copy of the discharge notice to DSS Licensing allows Licensing to track providers with frequent involuntary discharges. Ideally, Licensing can use this information to identify problematic providers and address issues with them. This data may also help Licensing identify trends throughout the state.

dLCV recommends the following:

1. Ensure that LTC Ombudsman offices are trained in reporting misuse by representative payees, conservators, and other third-party payors whose actions have resulted in involuntary discharge notices for beneficiaries in their care. LTC Ombudsman can report misuse directly to Social Security’s Fraud Hotline and to Adult Protective Services. The Ombudsman can also refer the beneficiary to dLCV to make a complaint about an organizational representative payee.
2. Once the proposed regulation has been finalized, dLCV recommends that fact sheets about involuntary discharge appeals be placed in common areas in all DSS licensed ALFs. It is imperative that ALF residents understand their rights under the final regulation.
3. Finally, DSS must hold mandatory trainings with all ALF administrators to explain the new regulation. dLCV also recommends that DSS provide manuals for ALF administrators to include instructions on how to follow the regulations, sample discharge notices, and fact sheets to post in common areas in their facilities.

Thank you again for the opportunity to comment on the proposed regulation for the Standards for Licensed Assisted Living Facilities, 22VAC-40-73. If you have questions, please do not hesitate to reach out to Robert Gray, Director of Compliance and Quality Assurance, at robert.gray@dlcv.org.

Sincerely,

Colleen Miller

Executive Director

disAbility Law Center of Virginia

On behalf of the Office of the State Long-Term Care Ombudsman (OSLTCO), I am submitting these comments in support of the proposed regulations to implement a process that enables assisted living facility (ALF) residents to appeal an involuntary discharge. The OSLTCO appreciates the opportunity to comment on these proposed regulations (Standards for Licensed Assisted Living Facilities, 22VAC-40-73), drafted by the Virginia Department of Social Services (DSS). We strongly support moving forward without delay in implementing the regulations to secure critically needed protections for our Commonwealth’s assisted living facility residents.

We commend the work of the Board in shaping these proposed regulations, and the dedicated efforts of the staff of DSS and its Division of Licensing Programs (DOLP) staff in working with our office, the Va. Poverty Law Center, assisted living providers, and multiple other stakeholders in development of these much- needed protections. These long-awaited discharge appeal rights will protect some of our most vulnerable Virginians from the unnecessary and traumatic displacement and upheaval that too often results from improper and unfair discharge decisions.  

The appeal right and process set forth in the proposed framework is extremely important for multiple reasons:

It addresses a dangerous gap in protections for our assisted living facility (ALF) residents that has existed for decades.

Assisted living facility (ALF) residents have fallen between the cracks when it comes to eviction protections. At the same time that law and regulation applicable to assisted living facilities and their residents have lacked any provision securing a right and process for  a resident to appeal an involuntary  discharge, such residents have simultaneously been excluded the protections against eviction that are afforded under landlord-tenant law, thus leaving them without any effective recourse when faced with an unwanted discharge that may be improper, arbitrary, and dangerous. While sudden ejection from the place that an individual has considered home is traumatizing to anyone, it is exceptionally so for older and/or disabled adults that require assistance with daily living.  The creation of a right of appeal and a sound process for that appeal finally addresses that glaring due process gap.

The need for these protections is clear. There is already substantial evidence of a need for these protections as well as a need for the collection of more comprehensive data as enabled by this law and implementing regulations in process.   

The Long-Term Care (LTC) Ombudsman Program advocates for LTC residents and specifically investigates and - whenever possible - resolves complaints regarding residents’ rights, quality of care, and quality of life. Complaints from ALF residents with regard to involuntary discharge regularly rank in the top five categories of complaints our program receives. 

In the process of working to put these appeal rights for residents into place, stakeholders were amazed to learn that there existed no mechanism by which DSS Division of Licensing Programs could systematically track the incidence of these involuntary discharges. An important feature of the law and process outlined in these draft regulations is the requirement of automatic notice of such actions to DSS as well as the LTC Ombudsman Program. This will not only ensure accurate data collection, but will also better enable appropriate assistance/ advocacy for residents navigating these crises. 

The urgent need for involuntary discharge appeal rights and process for ALF residents is demonstrated not only in the numbers (instances of improper involuntary discharge), but in the severity of impact on those residents affected. 

Because of the lack of effective recourse (for involuntary discharge) for residents to date, our program regularly witnesses the harmful impacts of such evictions, which summarily uproot a resident from the place that they have come to call home - often the only community they know. Our program experience points to the fact that it is often the most vulnerable residents (those without resources who may also have significant physical and mental health challenges that may make them particularly susceptible to eviction (and to the trauma brought on by such displacement) due to compromised coping skills and/or mental health stability. Sadly, for reasons that may be related to their disabilities and the way those disabilities translate in daily life interactions, there are often limited alternative care settings and no stable support system. For such individuals, ejection from the place they have called home can have tragic consequences.  

 The law and proposed regulations set clear (much-needed) criteria to guide providers and residents alike, and support pursuing less extreme options short of discharge. While important for any ALF resident – these protections could be nothing short of a ‘life preserver’ for certain residents struggling with complex and difficult challenges.

While the Long-Term Care Ombudsman Program regularly receives and responds to complaints from ALF residents subjected to inappropriate discharge decisions, the absence of clear criteria for what is an appropriate or an inappropriate reason for discharge has made it extremely challenging to effectively advocate and promote remedies for improper discharge actions when such actions are imposed. And while it can be traumatizing to individuals of any income or socio-economic status, it is particularly problematic and often dangerous for those with few or no alternative shelter options due to limited income, physical and mental health challenges, and lack of any support network. Too often those dealing with such additional challenges may end up in emergency rooms, shelters, or among the homeless.  The appeal law and regulations appropriately underscore the importance of providers engaging in problem-solving efforts short of eviction, and also enable needed support for ‘unbefriended’ or otherwise especially vulnerable residents through the required notice to the LTC Ombudsman Program. 

 In summary, we strongly support implementation of the regulations drafted to ensure that our assisted living facility residents can access these vital protections as soon as possible.    

Thank you for your consideration of these comments. 

The Virginia Health Care Association-Virginia Center for Assisted Living (VHCA-VCAL) submits this comment on behalf of its members.

22VAC40-73-430 Discharge of Residents

1. Recommended edits for clarity and practicality:

(I) 2. Providing access to a listing of licensed facilities that may be able to meet the resident's needs or arranging an appointment with the resident and the resident's legal representative or designated contact person, if any, and, if requested, the contact information for the local DSS agency to request a case manager who can provide such information;

2. Existing law or policy does not require facilities to pay for or handle packing and moving individuals. Adding such requirements could strain resources and create operational challenges and undue negative implications. The following language should be removed:

(I) 3. If needed, providing assistance with packing the resident's possessions or paying for a third party to do so, less any insurance, government, or other comparable assistance that the resident is entitled to receive; and

(I) 4. If needed, providing assistance with moving and transportation to the resident's new location or paying for a third party to provide such moving and transportation, less any insurance, government, or other comparable assistance that the resident is entitled to receive.

J. No facility shall be required to pay more for relocation assistance as described in subsection I of this section than the monthly charges for accommodations, services, and care as described in the resident agreement (22VAC40-73-390 A), and no facility shall be required to move and transport a resident's belongings outside the state unless such assistance is for a location outside the state within 50 miles of the facility.

K. If the facility employs a third party to pack, move, or transport the resident's belongings as described in subdivisions I 3 and I 4 of this section, no costs shall be billed to the resident.

22VAC40-73-435 Involuntary and emergency discharge appeals

1. Under the proposal, a person may stay at the facility for up to 80 days following an involuntary discharge notice. Given that a 30-day advance notice is required prior to discharge, it is recommended that the Division of Appeals and Fair Hearings adopt expedited timelines compared to those outlined in the proposed regulations. 

(E) 2. The Division of Appeals and Fair Hearings will provide written confirmation of receipt of the discharge appeal hearing request form to the resident and the resident's legal representative or designated contact person, if any, and the facility within 10 7 days of receipt of the discharge appeal hearing request form.

(E) 3. The hearing officer will conduct an appeal hearing within 30  15 days following the date of confirmation, unless a different timeframe is agreed upon by the parties and the hearing officer.

(E) 5. A final written department case decision, as defined in § 2.2-4001 of the Code of Virginia, will be sent by mail and electronic mail to the resident and the resident's legal representative or designated contact person, if any, and the facility within 20  7 days of the hearing, unless the case record is held open by the hearing officer to receive additional evidence.

Thank you for your consideration.