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.