Pursuant to Virginia Code §2.2-4012.1, the Virginia Assisted Living Association (VALA) files this formal objection to the fast-track rulemaking process currently in progress to update 22VAC40-73, Standards for Licensed Assisted Living Facilities (Standards), to add an appeal process for the involuntary discharge of residents. We request the Virginia Department of Social Services (VDSS) and the State Board of Social Services (SBSS) to utilize the Standard Regulatory Process in amending the Standards to add an appeal process for discharge instead of using the Fast-Track regulatory process.

The 2022 amendments to Virginia Code §63.2-1805 specifically require, among other things, that the State Board of Social Services adopt regulations that establish a process for appeals filed pursuant to the amended subsection addressing the involuntary discharge of residents. The actual process and procedure for an appeal, as currently set forth in the proposed regulations, is vague, undefined, and incomplete.  As a result, a number of critical areas of concern involving the proposed appeal process and relevant procedures to be utilized for such an appeal have not been adequately addressed in the proposed regulations or the agency provided discharge notice form. A few examples of these areas of concern include, but are not limited to, the following:

• The failure to include a specified and acceptable timeframe for the department to notify the facility and resident of the receipt of the appeal, for setting of the appeal for hearing, and the ruling on an appeal;
• A listing of the documents that the facility and/or resident will be required to present for the appeal;
• Clarification that the requirement for facilities to assist a resident in the appeal is limited to assistance with the actual filing of the request and does not include assistance in the resident’s preparation for a hearing;
• The standard for granting an appeal and the applicable burden of proof;
• Information regarding the right to have an administrative or judicial review of the hearing officer’s decision, the timeframe for requesting same and whether the resident’s right to stay in the facility extends to this level of review.

All of the above noted deficiencies in the proposed regulations have significant cost implications to both residents and facilities. Virginia Code §63.2-1805 requires that the resident be allowed to stay in the facility pending finalization of the appeal unless the discharge is an emergency discharge or the resident has developed a prohibited condition or care need. Facilities faced with non-paying residents will already have significant account balances that necessitated discharge. Charges incurred during the required 30-day cure period, the 30-day notice of discharge period, and an appeal that might extend for multiple months will quickly increase the balances owed by the residents and their family members. It will be unlikely that facilities will be able to recover these balances. The obvious burden on the facilities must be addressed through the appeal process and procedures must be implemented to minimize the burden on the facilities.

In addition to addressing the concerns listed previously, we also recommend the below changes (in red) to the proposed text (dated 8/16/23) on the Virginia Regulatory Town Hall:

22VAC40-73-430. Discharge of Residents

B. 1. The facility shall assist the resident and resident's legal representative, if any, in the discharge or transfer process. The facility and the department shall help the resident prepare for relocation, including discussing the resident's destination. Primary responsibility for transporting the resident and his possessions rests with the resident or his legal representative.

• The Department should also provide assistance in relocating the resident.
• The primary responsibility for transporting the resident was eliminated in the proposed text but not requested to be eliminated by the Virginia General Assembly. This clarification should remain in the regulations.

B. 4. d. Place the resident will be discharged to or the name of the individual who will be relocating the resident.

• The facility may not always know where the resident will be residing after discharge. Sometimes, a family member or legal guardian will receive the resident and not disclose the resident’s next housing location.

E. 4. The resident develops a condition or care need that is prohibited pursuant to § 63.2-1805 D of the Code of Virginia and or 22VAC40-73-310 H.

• Should the Code or the Code of Virginia change prior to being changed by the other document, the facility should have the ability to comply with whichever is applicable, in case there is a conflict.

22VAC40-73-435. Appeal of an emergency or involuntary discharge

D. The facility shall provide, if requested by the resident, a postage prepaid envelope addressed to the department to use if the appeal is mailed, if requested by the resident.

• Clarification of wording and requirements

E. The facility shall inform the resident of the resident's rights to continue to reside in the facility, free from retaliation, until the appeal has a final department case decision 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.

1. The department will notify the resident and the facility within 5-days of receipt of the resident’s appeal form.

2. The department will notify the resident and the facility of the case decision within 30 days of receipt of the appeal.

• A timeline for decisions of appeals is crucial for the resident and the facility.

It is understood that the appeal process for involuntary discharge is mandated by statute and will have beneficial impacts for residents of assisted living facilities. However, more time is needed through the regular regulatory process for consideration of all relevant issues and crafting regulations to address the needs of all parties involved.

Thank you for considering these concerns. We welcome the opportunity to continue to work with VDSS and SBSS on creating and amending the regulations to best serve the industry including the residents and the facilities. Please let us know if you have any questions about these comments.