Discharge Appeal Process

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. Further consideration of the obvious and inherent conflict of interest in requiring such facility assistance is required;
• 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. 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.

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 the all relevant issues and crafting regulations to address the needs of all parties involved.

Discharge Appeal Process

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. Further consideration of the obvious and inherent conflict of interest in requiring such facility assistance is required;

·         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. 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.

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 the all relevant issues and crafting regulations to address the needs of all parties involved.

Discharge Appeal Process

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. Further consideration of the obvious and inherent conflict of interest in requiring such facility assistance is required;

·         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. 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.

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 the all relevant issues and crafting regulations to address the needs of all parties involved.

Discharge Appeal Process

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. Further consideration of the obvious and inherent conflict of interest in requiring such facility assistance is required;
• 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. 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.

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 the all relevant issues and crafting regulations to address the needs of all parties involved.

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.

Thank you for considering and approving a fast track for assisted living regulations. 

Please approve the fast track for Virginia Assisted Living Facilities 

Please help out assisted living facility with better regulations and faster actions

I added a comment and forgot the word do not need fast track for discharge 

Please stop the fast track

Please do not fast track

Fast track is not good

Changes should be considered under the Regular Regulatory Process.  

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.

As a long-term care ombudsman I strongly support the importance of the appeal rights and the need for swift development of regulations to fully implement the process.  Residents can be given a 2 week notice to leave a facility and have no right to appeal the decision.  They often have no where to go and the facility can give the notice without a valid reason.  Therefore, I strongly support the appeal rights of residents in assisted lliving facilities.

As a long-term care ombudsman in Virginia, I have witnessed residents having no place to go and have no recourse to appeal an arbitrary or retaliatory discharge. This needs to be addressed yesterday and residents in licensed assisted living in Virginia should be afforded the right to appeal discharge actions taken against them and take comfort in that this protection is in place. Eviction protections and appeals exist in other sects such as the community and nursing homes, so make it so for those who reside in assisted living facilities. I strenuously support fast tracking these regulations.

Hello, I am opposed to using the fast track process rather than the normal regulatory promulgation process for the Involuntary Discharge regulations because ALFs need more information about the new appeals process and the role of the Division of Appeals and Fair Hearings. 

The proposed regulations do not provide enough detail for ALFs to know what the newly created “Division of Appeals and Fair Hearing” process for appeals will require, such as when a resident may have filed an appeal, the documentation required to be submitted to the Division and the timeframe for response to such requests, as well as the timelines DSS will use for conducting an appeal hearing and providing the notice of findings to the resident and facility.

Thank you

I do not support the fast track of this proposed regulation; rather it would be beneficial for all parties involved for the proposed change to the regulation to undergo the standard regulatory process in order to allow sufficient time for analysis of its possible impact. Additionally, the proposed regulation in question, in reference to the state's final disposition [ruling] should have a specific time frame of less than 10 days. A long, process without a specific time frame will result in greater, more adverse financial loss to assisted living providers.

I do not support the fast track of this proposed regulation.  The impact to the communities by allowing residents to stay within a community greatly deminishes the ability of the care givers and the community to provide proper care.  This detracts from companies being able to afford to have care givers due to the reduction in resources.  Executive Directors down to front line staff perform their jobs because they have servant hearts, but the reality is that companies have to be able to pay their employees.  This process needs to go through the standard regulatory process and create real positive change to an already taxed industry.

I do not support the fast track of this proposed regulation. It is important for communities to recognize when they can not provide the proper care or meet the needs of residents.  Allowing the fast track can cause a significant negative impact on the communities team members as well as financially causing a burden that will be spread to other areas of the business.  There needs to be an extensive deep dive into all the areas that this will affect prior to making such a large and unnecessary change.

Thank you for the opportunity to weigh in on these proposed changes to the discharge procedures.  I would like to enter in as an objection to the Fast Track process on a decision to allow adequate time in evaluating the potential outcomes as a result of the proposed.  It is important to note that a resident's best interest is always at the core of the any decision made.  In addition, a business must have appropriate avenues to access to ensure the best decision can be carried out for all parties involved.  As others have commented, there's language in the proposed that should receive attention for change due to uncertainty of interpretation.          

I object to the utilization of the fast-track process, as opposed to the customary regulatory promulgation process, for the implementation of the Involuntary Discharge regulations. It is my firm belief that Assisted Living Facilities (ALFs) require more comprehensive information regarding the new appeals process and the role of the newly established Division of Appeals and Fair Hearings.

The proposed regulations, unfortunately, lack the requisite level of detail necessary for ALFs to fully comprehend the intricacies of the appeals process. Specifically, there is a notable absence of information regarding when a resident may initiate an appeal, the precise documentation that must be submitted to the Division, the expected timeframe for response to such requests, as well as the timelines that the Department of Social Services (DSS) will adhere to when conducting an appeal hearing and disseminating the notice of findings to both the resident and the facility.

Given the significance of these matters, it is imperative that ALFs are provided with clear guidelines and instructions, enabling them to navigate the appeals process with confidence and precision. The current lack of specificity within the proposed regulations not only hampers ALFs' ability to comply effectively but also raises concerns about the potential for procedural ambiguities and inconsistencies.

I respectfully urge you to reconsider the use of the fast-track process and instead opt for the customary regulatory promulgation process. By doing so, we can ensure that ALFs are equipped with the necessary information and guidance to effectively administer the appeals process in accordance with the established protocols.

Thank you, 

Chloe Burke

I do not support the fast-tracking of this regulation. It would be beneficial for all parties involved for the proposed change to the regulation to undergo the standard regulatory process in order to allow sufficient time for analysis of its possible impact. The proposed regulation in question should impose a specific time frame of less than 10 days for the state’s final disposition. 

I do not support the fast-tracking of this regulation. It would be beneficial for all parties involved for the proposed change to the regulation to undergo the standard regulatory process in order to allow sufficient time for analysis of its possible impact. The proposed regulation in question should impose a specific time frame of less than 10 days for the state’s final disposition [ruling].

The 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. Further consideration of the obvious and inherent conflict of interest in requiring such facility assistance is required.
• 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. 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.

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.

The facility is left with the burden of finding placement.  

Need fast track for appeal regulations

As an advocate for assisted living residents, I strongly support the proposed appeal regulations, and the need for fast tracking the approval process.  Appeals are in place for nursing home residents; and those in the community have certain safeguards against evictions --  but there is no recourse for assisted living residents who are inappropriately discharged.  Some residents have nowhere to go and end up in shelters.  Older adults are making up an increasingly higher percentage of the homeless population. Assisted living residents need the protection of an appeal process -- and because of the lack of affordable housing that can accommodate their needs, they require this protection quickly.  Time is of the essence to protect them. 

I am a longtime advocate for older adults.  I strongly support the proposed regulations and their consideration on a fast track.  Nursing hone residents have appeal rights and, in Virignia, many assisted living residents are as impaired as nursing home residents in other states. Tenants in multifamily housing have some safeguards against evictions.  Howevefr, thre is no such protection for assisted living residents.  We have seen discharged residents sent to homeless shelters, and shelters are not equipped to serve people who have that level of service need.  Assisted living residents need the protection of an appeal process and they need this protection quickly.

Please enact these regulations on the fast track.

I do not support the fast-tracking of this regulation. It would be beneficial for all parties involved for the proposed change to the regulation to undergo the standard regulatory process in order to allow sufficient time for analysis of its possible impact. The proposed regulation in question should impose a specific time frame of less than 10 days for the state’s final disposition [ruling].

I am not in favor of the fast tracking of the proposed changes to the discharge process of residents in any assisted living facility. It would be beneficial to all parties involved for the proposed change to the regulation to undergo the standard regulatory process in order to allow sufficient time for analysis of its possible impact. The proposed regulation in question should impose a specific time frame of less than 10 days for the state's final disposition (ruling).

I have been an advocate for residents of long-term care facilities for over thirty years - both in the District of Columbia and now in Virginia. As the attorney for the D.C. Long-Term Care Ombudsman Program (LTCOP) (until 1995), I wrote the District of Columbia Nursing Homes and Community Residence Facilities Protections Act, granting assisted living facility ( called community facilities (CRFs) in D.C.) residents extensive due process rights in involuntary discharge situations, as well as authorizing the long-term ombudsman to request hearings on behalf of residents. See, D.C. Code secs. 44-1000.01, et seq.

I represented both the LTCO and CRF residents in many administrative hearings dealing with involuntary discharge. 

ALF residents in Virginia should be accorded the same due process rights as nursing home residents and tenants in the community. Often these hearings are the only forum in which residents can raise quality of care issues, which are usually the real basis for an involuntary discharge. The District of Columbia more extensive law (than the proposed rule) has stood the test of time - over thirty years. Assisted Living Facilities (i.e., Community Residence Facilities in D.C.) - large and small -  have been able to adapt to the law, and residents have been protected. There is no legitimate reason to delay the adoption of this proposed rule. 

I do not support the fast-tracking of this regulations.  It would be beneficial for all parties involved for the proposed change to the regulation to undergo the standard regulatory process in order to allow sufficient time for analysis of its possible impact.  The proposed regulation in question should impose a specific time frame of less than 10 days for the state's final disposition.

I believe that our advocacy for seniors must never take a back seat.   We must have strong protection and appeal rights for assisted living residents.  An appeal is the right to examine; to shape a point-of-view.  We must support the appeal process and all it entails. 

Assisted living facilities cannot have the latitude to discharge occupants and send them to unacceptable domains such as: shelters for the homeless, shelters unfit and ineffectual in caring for residents with particular needs.  The time is now.  Assisted living residents must have the protection of an appeals process; the protection of which has to be rapid and functional.

That is why I endorse the proposed regulation.

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            

ALFs have the unchecked and unregulated ability to evict residents on short notice, and have used this to unnecessarily and unfairly discharge residents for items such as raising issues about improper care, asking questions, or to sell the resident’s room to a higher bidder.

The elderly and infirm, who are often paying everything they have worked for their entire lives to these private pay facilities, currently have no rights, protections, or reasonable due process in this area.

The implementation of an Appeals Process and protections against this form of elder abuse from ALFs is long overdue.

Any ALF company that can’t work with these reasonable protections for the elderly and infirm can leave the state. There will be a more humane company to take their place.

ALFs use the ability to discharge residents at will, without protection/regulation, as a means to intimidate residents and families, and this is well documented. ALFs scare and threaten families with this unregulated ability to discharge residents at their whim. The message is that the elderly have no voice and no rights. This also creates an atmosphere where residents are afraid to organize a residents council even though they have the explicit right to do so, to share feedback about their community; and there is a general environment where residents are afraid to voice fair and reasonable issues, or concerns. Or basic needs. It is a grave imbalance that is being abused, and is abusive to ALF residents.

Elderly and impaired Virginians deserve much better than that. Even more so at the prices these profit-driven companies charge. They are more concerned with Executive and Manager bonuses. They charge as much as possible, and pay their staff as little as possible. The margins are significant. Profit as the priority, far exceeds a focus on care.

The companies that are most vocally against this, and protesting as a group — those companies should raise the most eyebrows among DSS inspectors, state ombudsmen, and the media / journalists.

Virginians need an appeals process yesterday, and so we as an organization of Virginia ALF families and residents, support fast tracking the appeals process, for the law that was passed a year and 1/2 ago.

Also, there should be something in the regulation that puts the onus of documenting any issues with the resident in writing, and the resident or their representative needs to confirm receipt.  

In the regulation, residents should be granted a remedy period to correct or react to any written communications from the ALF.

We have seen too often a facility discharging a resident with absolutely no documentation of any issues, and they do not put anything in writing to the resident or family. That must change.

Too often the ALF is serving discharges for untoward and unethical reasons, out of left field to the resident or family, and the ALF has absolutely no documentation for any communication about it. They must be required to provide notices in writing to prevent abuse.

Please fast track these long overdue rights and access to due process for the voters of Virginia.

I have a family member in Assited Living. I'm aware that Virginia ALF residents have no due process or protections against unlawful or unnecessary evictions. Our elders in Virginia deserve better. Please do not delay the implementation of an appeals process for ALF residents.

In support of all the other many commenters here who have highlighted the very serious issues that come with not having any current appeals process for Involuntary Discharge, I strongly advocate for an appeals process for residents on the Fast Track.

We must not delay this fair and reasonable due process right for the elderly in Virginia.

I am distressed by the loophole that Assisted Living Facilities are using to unnecessarily discharge seniors for unethical and even illegal motivations. Creating great distress and harm that could be avoided, if the appeals process was in place.

We must close this loophole immediately and give our elderly and impaired the right to appeal and have a voice. These Virginia residents have been needlessly and unfairly exposed, unprotected, and without due process for too long.

It is concerning to see how many Assisted Living Communities are trying to delay this and drag it out.

VCAL opposes the Fast-Track Process to update the Standards for Licensed Assisted Living Facilities to Add Appeal Process for Discharges

The proposed changes do not provide adequate details for the new Division of Appeals and Fair Hearing, therefore more time is needed for DSS to develop and publish those pertinent details for proper review and comment from stakeholders.