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.