After reviewing the proposed changes to the Standards for Licensed Assisted Living Facilities, we appreciate the diligence of the Virginia Department of Social Services (VDSS) staff in considering the intent and impact of the numerous changes made to the Standards. We understand the reasoning behind many of the changes; however, we cannot fully support every change that has been proposed. The primary reason for objecting to several of the proposed changes is the financial situation of the assisted living industry in Virginia with the lack of a Medicaid waiver for general assisted living services and the severely underfunded Auxiliary Grant (AG) program.

Some of the proposed changes have a very high probability of resulting in the closure of smaller assisted living communities as well as a closure for those assisted living communities that serve a larger population of residents receiving the AG rate due to the inability to afford the required changes. With the closure of even one assisted living community, there is a significant burden placed on the general community in finding new housing for residents, new employment for staff, new customers for business suppliers, and new business operators for the physical location of the closing assisted living community. Below are two examples of proposed changes that are very concerning to the continued operations of these communities, as well as potential replacement language to be considered.

22VAC40-73-1020. Staffing.

Exception: The requirements of subsections A and B of this section do not apply when facilities are licensed for 10 or fewer residents if no more than three of the residents have serious cognitive impairments. Each prospective resident or his legal representative shall be notified of this exception prior to admission.

We do not support the removal of this proposed language. Assisted living communities licensed for 10 or fewer residents with three or less residents who have a serious cognitive impairment will most likely be financially unable to comply with the removal of this exception due to the cost of adding an additional staff member. With the language in the other areas of the proposed regulations, larger providers are required to have at least 2 staff members awake and on duty for 20 residents with the possibility of the all of those 20 residents having a serious cognitive impairment resulting in a 1:10 ratio. The elimination of this exception would penalize the smaller providers by requiring a possible 1:5 ratio even during the evening hours when most, if not all, of the residents would be asleep. Two possible options for replacement language are listed below, of which one is to not strike the exception as it was previously published:

1. Exception: The requirements of subsections A and B of this section do not apply when facilities are licensed for 10 or fewer residents if no more than three of the residents have serious cognitive impairments. Each prospective resident or his legal representative shall be notified of this exception prior to admission.
2. Exception: The requirements of subsections A and B of this section do not apply when facilities are licensed for 10 or fewer residents if no more than three of the residents have serious cognitive impairments. Instead, each of these facilities would be required to have at least one direct care staff member awake and on duty at all times in each building who shall be responsible for the care and supervision of the residents. Each prospective resident or his legal representative shall be notified of this exception prior to admission.
3. Exception: The requirements of subsections A and B of this section do not apply when facilities are licensed for 10 or fewer residents if no more than three of the residents have serious cognitive impairments. Instead, each of these facilities would be required to have at least one direct care staff member awake and on duty during times when the majority of the residents are sleeping in each building who shall be responsible for the care and supervision of the residents. Each prospective resident or his legal representative shall be notified of this exception prior to admission.

22VAC40-73-1130. Staffing.

1. When 20 or fewer residents are present, at least two direct care staff members shall be awake and on duty at all times in each special care unit who shall be responsible for the care and supervision of the residents, except as noted in subsection B of this section. For every additional 10 residents, or portion thereof, at least one more direct care staff member shall be awake and on duty in the unit.
2. Only one direct care staff member has to be awake and on duty in the unit if sufficient to meet the needs of the residents, if (i) there are no more than five residents present in the unit and (ii) there are at least two other direct care staff members in the building, one of whom is readily available to assist with emergencies in the special care unity, provided that supervision necessary to ensure the health, safety, and welfare of the residents throughout the building is not compromised.

We do not support the inclusion of the words, “or portion thereof” as this could result in significant financial burdens on assisted living providers and could result in a staff to resident ratio of 1:7 should the assisted living community have 21 residents. This requirement may also result in providers refusing to accept emergency placements should they presently have an increment of residents similar to 20 or 30, where the addition of one resident would result in the requirement of one additional staff member for all shifts.

We do not support the inclusion of the words, “or portion thereof” especially for the time periods when the majority of residents are sleeping.

We recommend that language be added to allow for a staff member to take breaks, such as 15 minutes or 30 minutes, without having to bring on an additional staff member should the staff who is taking a break remain in the building and able to be called back to duty, and to have that on-site availability to be sufficient in meeting the staffing requirement.