September 25, 2023

Department of Social Services

ATTN:  Sharon Lindsay, DSS Associate Director

801 East Main Street

Richmond, VA  23219

RE: Comment on 22VAC40-73. Standards for Licensed Assisted Living Facilities (Fast Track)

Dear Ms. Lindsay:

The disAbility Law Center of Virginia (dLCV) thanks you for this opportunity to comment on State Board of Social Services 22VAC40-73. Standards for Licensed Assisted Living Facilities (Fast Track). As the designated Protection and Advocacy System for the Commonwealth of Virginia, dLCV routinely works with people with disabilities receiving services in Virginia. In addition, dLCV receives calls from residents in Assisted Living Facilities (ALF) and their legal representatives. During the past two years, dLCV conducted an ALF Monitoring Project where our advocates and attorneys visited 75 ALF throughout Virginia and interviewed both residents and administrators. 

As stated by The Consumer Voice for Quality Long Term Care, “The threat of transfer or discharge . . . can be both frightening and stressful for residents and their families.  Too often, a facility may respond to a resident’s difficulties, increasing need for care, or repeated questions or complaints from family members by attempting to transfer or discharge the resident.” In our experiences as advocates, we have seen this happen often. 

 As a result, dLCV fully supports the right to appeal an involuntary discharge from an ALF and the need for the swift development of regulations to fully implement the appeal process. Specific and consistent regulations with long needed protections need to be implemented sooner rather than later to protect residents who are being involuntarily discharged from their home. 

General Concerns

1. The regulations should require a “safe” discharge for residents who have mental illness, cognitive impairment, physical disability, no support system, limited income, and no safe, accessible and appropriate place to live.  The previous living arrangement may no longer be available or safe and may be inhabitable.  A family member’s home may have stairs leading into the dwelling and may not have space or an accessible bathroom. The regulations  must address the options when no safe discharge has been found.

2. Since the resident can be discharged for not following the “terms and conditions of the resident agreement between the resident and the ALF” (presumed to be the Admissions Contract), the regulations must require documentation that the resident or legal representative signed and was given a copy of the resident agreement. The regulations must require that contract be written and explained in a way that the resident can understand.

3. The regulations must require that conditions in the agreement may not be designed to adversely impact residents.  

4. Prior to or at admission, the long-term costs and possibility of discharge when resident funds are depleted, must be addressed and documented.

5. The regulations must include a provision for when the representative payee, responsible party or guardian receives the resident’s funds but is not paying the resident’s bill. Adult Protective Services should be notified and the resident protected from discharge.

6. The regulations must include a provision for assistance in the administrative hearing process. In some areas of the state, a lawyer may be available through legal aid, or the local long-term ombudsman may be able to assist. If these resources are not available, other resources must be available. 

7. The regulations should require the treating physician, psychiatrist, or psychologist to document their review of the discharge.

8. The regulations must specify the recourse if the resident successfully appeals but had already been discharged.

9. If the ALF decides to no longer participate in Auxiliary Grant program, they must be responsible for assisting the resident to obtain another Auxiliary Grant placement.

10. The regulations must make clear that an ALF cannot discharge to a homeless shelter absent express consent. The regulations must identify resources available to assist the resident where no legal representative or designated contact person or family member who is able or willing to assist.

dLCV’s Recommendations: 22VAC40-73-10. Definition

The terms used in the regulations, ALF Discharge Notice Form and ALF Discharge Appeal Hearing Request Form should be listed in the Definition section,  In particular,

1. There should be a definition of Auxiliary Grant, which is referenced in private pay and public pay definitions. 

2. Add Designated Contact Person which is used on the ALF Discharge Notice Form.

3. Either use Developmental Disability, which would include intellectual disability and autism spectrum disorder, or use Intellectual Disability but include Autism Spectrum Disorder.

4. Revise the definition for Involuntary Discharge to read "Involuntary discharge" means when a facility requires a resident to move out of the assisted living facility and not be allowed to return.”

5. Define Assessor for Public Pay Residents.  This term will be unfamiliar to many residents.

6. Define Memory Care Unit.

7. Include a definition of Representative Payee.

8. Define Resident Agreement, as facilities often use other terminology such as which we assume is the Admission Agreement or Admission Contract.

9. Add State Long-Term Care Ombudsman. We recommend that the State Long-Term Care Ombudsman be added as a resource on the ALF Discharge Notice Form.  

dLCV’s Recommendations: 22VAC40-73-435. Appeal of an emergency or involuntary discharge

1. The Regulations state, “D. The facility shall provide a postage prepaid envelope addressed to the department to use if the appeal is mailed, if requested by the resident.” We recommend that the facility fax the appeal if requested by the resident.

2. The State Long-Term Care Ombudsman and The disAbility Law Center of Virginia be added as possible resources.

dLCV’s Recommendations: ALF Discharge Notice Form (22VAC40-73-430)

1. Align the Involuntary Discharge Notice with that used by nursing facilities.

2. We note that when viewed online, the print is too small for an older adult, even one without visual impairment. However, when printed, the font size is adequate.

3. The mailing address or email of the legal representative should be included.

4. The form should include list the acceptable reasons for discharge. The form should specify the only acceptable reasons for discharge, and not allow for any added reasons.

5. Include a space for the resident to sign as receiving the Discharge Form.

6. Include the disAbility Law Center of Virginia and State Long-Term Care Ombudsman, and their toll-free numbers, as possible resources. Do not suggest sending discharge notices to dLCV. 

dLCV’s Recommendations: ALF Discharge Appeal Hearing Request Form

1. Add “Resident” to “Resident/Appellant” Information. The term “Appellant” will be unfamiliar to many.

2. The resident needs to be able to appoint someone to act on their behalf if they are not able to act, with space for such appointment resident on the form. 

Thank you for opportunity to comment on this document. We appreciate the time and effort taken by your agency to protect the residents who make an Assisted Living Facility their home. If you have further questions regarding our concerns and/or recommendations, please direct them to Robert Gray, dLCV Director of Compliance and Quality Assurance, at 804-662-7188 or Robert.gray@dlcv.org. 

Sincerely,

Colleen Miller

Executive Director