INTRODUCTION

The first enactment clause of SB 827 from the 2023 Regular Session requires the State Board of Health to amend its hospital regulations to require hospitals with emergency departments “to establish a security plan…using standards established by the International Association for Healthcare Security and Safety or other industry standard” and that is “based on the results of a security risk assessment of each emergency department location of the hospital.” This security plan must “include the presence of at least one off-duty law-enforcement officer or trained security personnel who is present in the emergency department at all times as indicated to be necessary and appropriate by the security risk assessment.” SB 827 further enumerates what identified risks that hospitals must consider when developing security plans and training requirements for security personnel. SB 827 authorizes the State Health Commissioner to “provide a waiver from the requirement that at least one off-duty law-enforcement officer or trained security personnel be present at all times in the emergency department if the hospital demonstrates that a different level of security is necessary and appropriate for any of its emergency departments based upon findings in the security risk assessment.”

The second enactment clause of SB 827 exempts the regulatory action from the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia), provided that the State Board of Health gives an opportunity for public comment prior to adoption. This General Notice serves as this opportunity.

In drafting the proposed regulatory text, the Virginia Department of Health (VDH) sought to address (i) development of security plans using standards other than those established by the International Association for Healthcare Security and Safety, (ii) the minimum information needed to evaluate requests for waivers of the requirement of “one off-duty law-enforcement officer or trained security personnel who is present in the emergency department at all times”, (iii) updates to security plans and duration of waivers, and (iv) protection of sensitive security and operational information about hospitals that VDH has in its possession as part of the waiver process.

VDH also took into consideration that currently all general hospitals in Virginia are certified by the Centers of Medicare and Medicaid Services (CMS) as hospitals or critical access hospitals and that some may seek CMS certification as rural emergency hospitals. CMS requires these all of these providers to develop and maintain emergency preparedness plans that include facility- and community-based risk assessments, which are required to be updated at least every 2 years (see 42 C.F.R. §§ 482.15(a), 485.542(a), and 485.625(a)). To reduce the administrative burden on hospitals while ensuring that security plans required by SB 827 are kept current, VDH proposes to have security plans be updated at the same interval as the emergency preparedness since both plans have similar components.

PUBLIC COMMENT PERIOD

April 10, 2023 to May 10, 2023

HOW TO COMMENT

Anyone wishing to submit comments may do so through the Public Comment Forum feature of the Virginia Regulatory Town Hall web site at: https://townhall.virginia.gov. Members of the public may also submit comments by mail, email or fax to Rebekah E. Allen, Senior Policy Analyst, 9960 Mayland Drive, Suite 401, Henrico, Virginia, 23233, phone: (804) 367-2102, fax: (804) 527-4502, email: regulatorycomment@vdh.virginia.gov.

All comments must be received during the comment period.

Commenters are strongly encouraged to provide their name, organization they represent (if any), mailing address or email address, and telephone number.

DRAFT REGULATORY TEXT

The draft exempt regulations are available for review below. Stricken text indicates existing text that is proposed to be repealed. Underlined text indicates new text that is proposed to be promulgated.

12VAC5-410-280. Emergency service.

A. Hospitals with an emergency department/service shall have 24-hour staff coverage and shall have at least one physician on call at all times. Hospitals without emergency service shall have written policies governing the handling of emergencies.

B. No less than one registered nurse shall be assigned to the emergency service on each shift. Such assignment need not be exclusive of other duties, but must have priority over all other assignments.

C. Those hospitals that provide ambulance services shall comply with Article 2.1 (§ 32.1-111.1 et seq.) of Chapter 4 of Title 32.1 of the Code of Virginia and 12VAC5-31.

D. The hospital shall provide equipment, drugs, supplies, and ancillary services commensurate with the scope of anticipated needs, including radiology and laboratory services and facilities for handling and administering of blood and blood products. Emergency drugs and equipment shall remain accessible in the emergency department at all times.

E. Current roster of medical staff members on emergency call, including alternates and medical specialists or consultants shall be posted in the emergency department.

F. Hospitals shall make special training available, as required, for emergency department personnel.

G. Toxicology reference material and poison antidote information shall be available along with telephone numbers of the nearest poison control centers.

H. Each emergency department shall post notice of the existence of a human trafficking hotline to alert possible witnesses or victims of human trafficking to the availability of a means to gain assistance or report crimes. This notice shall be in a place readily visible and accessible to the public, such as the patient admitting area or public or patient restrooms. The notice shall meet the requirements of § 40.1-11.3 C of the Code of Virginia.

I. Every hospital with an emergency department shall establish protocols to ensure that security personnel of the emergency department receive training appropriate to the populations served by the emergency department. This training may include training based on a trauma-informed approach in identifying and safely addressing situations involving patients or other persons who pose a risk of harm to themselves or others due to mental illness or substance abuse or who are experiencing a mental health crisis. a security plan for each emergency department that:

1. Is developed using standards established in the Healthcare Security Industry Guidelines, 13th Edition (International Association for Healthcare Security and Safety), except as provided in subdivision J 2 of this section;

2. Is based on:

a. The results of a security risk assessment of each emergency department location of the hospital; and

b. Risks for the emergency department identified in consultation with the emergency department medical director and nurse director, including:

(1) Trauma level designation;

(2) Overall patient volume;

(3) Volume of psychiatric and forensic patients.

(4) Incidents of violence against staff;

(5) Level of injuries sustained from such violence; and

(6) Prevalence of crime in the community;

3. Includes the presence of at least one off-duty law-enforcement officer or trained security personnel who is present in the emergency department at all times as indicated to be necessary and appropriate by the security risk assessment, except as provided in subsection K of this section; and

4. Outlines training requirements for security personnel in:

a. The potential use of and response to weapons;

b. Defensive tactics;

c. De-escalation techniques;

d. Appropriate physical restraint and seclusion techniques;

e. Crisis intervention;

f. Trauma-informed approaches; and

g. Safely addressing situations involving patients, family members, or other persons who pose a risk of harm to themselves or others due to mental illness or substance abuse or who are experiencing a mental health crisis.

J. The hospital may:

1. Accept from its security personnel the satisfactory completion of the Department of Criminal Justice Services minimum training standards for auxiliary police officers as required by § 15.2-1731 of the Code of Virginia in lieu of the training prescribed by subdivision I 4 of this section; and

2. Request to use industry standards other than those specified in subdivision I 1 of this section by submitting a written request for alternative industry standards to the OLC that:

a. Specifies the title, edition, and author of the alternative industry standards; and

b. Provides an explanation of how the alternative industry standards are substantially similar to those specified in subdivision I 1 of this section.

K. Every hospital with an emergency department shall update its security plan, including its security risk assessment, for each emergency department location of the hospital as often as necessary but not to exceed 2 years.

L. The commissioner shall provide a waiver from the requirement that at least one off-duty law-enforcement officer or trained security personnel be present at all times in the emergency department if the hospital demonstrates that a different level of security is necessary and appropriate for any of its emergency departments based upon findings in the security risk assessment.

1. A hospital shall submit a written request for a waiver pursuant to this subsection and shall:

a. Specify the location of the emergency department for which the waiver is requested;

b. Provide a dated copy of the security risk assessment performed for the specified emergency department that has been reviewed and approved by the governing body or its designee; and

c. Indicate the requested duration of the waiver.

2. If the commissioner grants a waiver pursuant to this subsection, he shall specify:

a. The location of the emergency department for which the waiver is granted;

b. The level of security to be provided at the specified emergency department location;

c. The effective date of the waiver; and

d. The duration of the waiver, which may not exceed two years from the date of issuance.

3. A hospital granted a waiver pursuant to this subsection shall:

a. Notify the commissioner in writing no less than 30 calendar days after its security risk assessment changes and if such change impacts when and how many off-duty law-enforcement officers or trained security personnel should be present at the emergency department for which a waiver was granted;

b. Provide a dated copy of the changed security risk assessment performed for the specified emergency department that has been reviewed and approved by the governing body or its designee; and

c. Indicate whether the hospital is:

(1) Requesting a modification to its existing waiver; or

(2) Surrendering its existing waiver.

4. The commissioner may request additional information from the hospital in evaluating the requested waiver.

5. The commissioner may modify or rescind a waiver granted pursuant to this subsection if:

a. The security risk assessment changes;

b. Additional information becomes known which alters the basis for the original decision; or

c. Results of the waiver jeopardize the health or safety of patients, employees, contractors, or the public.

6. Pursuant to the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia), the Department of Health:

a. May not release to the public information that a hospital discloses pursuant to this subsection, the waiver request, and the response to the waiver to the extent those records are exempt from disclosure; and

b. Shall notify the Secretary of Public Safety and Homeland Security of any request for records specified in subdivision L 6 a of this section, the person making such request, and the Department of Health’s response to the request.

J. M. Each hospital with an emergency department shall establish a protocol for treatment of individuals experiencing a substance use-related emergency to include the completion of appropriate assessments or screenings to identify medical interventions necessary for the treatment of the individual in the emergency department. The protocol may also include a process for patients who are discharged directly from the emergency department for the recommendation of follow-up care following discharge for any identified substance use disorder, depression, or mental health disorder, as appropriate, that may include:

1. Instructions for distribution of naloxone;

2. Referrals to peer recovery specialists and community-based providers of behavioral health services; or

3. Referrals for pharmacotherapy for treatment of drug or alcohol dependence or mental health diagnoses.

Documents Incorporated by Reference (12VAC5-410)

Guidelines for Design and Construction of Hospitals, 2018 Edition, Facility Guidelines Institute, Washington D.C., http://www.fgiguidelines.org

Guidelines for Design and Construction of Outpatient Facilities, 2018 Edition, Facility Guidelines Institute, Washington, D.C., https://fgiguidelines.org

Healthcare Security Industry Guidelines, International Association for Healthcare Security and Safety, 13th Edition, https://www.iahss.org/