September 5, 2017

Annette Kelley: Licensing Consultant

VA Dept. of Social Services

801 East Main Street, Room 1507

Richmond, VA 23219

RE: Public Comment for Proposed Standards and Regulations for Licensed Adult Day Care Centers

Dear Ms. Kelley,

The disAbility Law Center of Virginia appreciates the opportunity to comment on the proposed standards and regulations for licensed adult day care centers. As you know, dLCV is the state’s designated organization to promote and protect the rights of people with disabilities.  We are, therefore, especially sensitive to the protection of those rights in the proposed standards and regulations.

Throughout the proposed standards, there are many requirements to notify family or legal representatives.  We are alarmed that those notification requirements do not extend to the individual.  As you are aware, “aging” is not equivalent to “incapacity.”  In fact, under Virginia law, capacity is presumed.  Therefore, the standards should not presume that the individual is not capable of receiving notifications.  We strongly urge that all the references to requirements to contact or share information, should indicate first the individual, and then any family or friend previously designated by that individual, or any legal representative.

The directions of the individual should be emphasized, for example, in 22VAC40-61-250 (B): Participant record. We recommend underscoring this right by changing Section B to reflect "...friends, or other people designated by the individual when possible or by his legal representative.” Similar changes should be made to 22VAC40-61-50 (E), 22VAC40-61-300 (F), 22VAC40-61-320 (F) (4) and (6), 22VAC40-61-520 (F) (1), and 22VAC40-61-560 (A) (6).

We are additionally concerned that the proposed regulations at 22VAC40-61-50 (Participant rights and responsibilities) may be in conflict with existing state law. As you may know, the Health Care Decisions Act requires two doctors to make a determination of incapacity.  The proposed regulations appear to state that this decision can be made by one physician.  We suggest changing the language to state: "…unless the participant has been determined incapacitated pursuant to Va. Code § 54.1-2983.2 and documentation is contained in the participant's record."

Section F of 22VAC40-61-300, Medication management, presents another concern.  Of course, if there is a medication error and the individual has an adverse reaction, the first priority is to deal with that adverse reaction.  However, if there is a med error with no immediate consequences to the individual, the center staff should first and foremost speak directly with the individual to explain the error and any possible adverse reactions that may occur because of the error.  We suggest, "If not contrary to immediate medical needs of the participant, the participant shall be notified of the error, the actions taken by center staff to protect the participant, and any possible adverse consequences of the error."

We are grateful that the regulations make clear that the use of restraints is absolutely prohibited.  However, to provide best direction to staff, we recommend that you include in 22VAC40-61-310: Restraints, a reference back to the required training in behavior management techniques in 22VAC40-61-110(B)(7), as follows: "Any behavior that poses a threat to the participant, other participants, or staff shall be handled according to the training received pursuant to subsection 110(B)(7) of this chapter."

In 22VAC40-61-320: Assistance with activities of daily living, we believe there should be something specific regarding identification of swallowing and choking issues. We suggest adding, "Staff shall observe participants for any possible swallowing or choking concerns and shall report these concerns to the director immediately. The director or designee shall take necessary action to ensure safety of participants who may exhibit issues with swallowing or choking, including making a referral to the appropriate medical professional for evaluation."

In 22VAC40-61-460: Restroom facilities, we recommend adding, “At least one sink shall be accessible to an individual using a wheelchair or other assistive technology.”

In 22VAC40-61-500: Telephones, we recommend adding, "C. Staff shall provide assistance to any participant upon request and shall provide immediate access and assistance if the participant requests contact with APS, an Ombudsman, or the disAbility Law Center of Virginia."

Thank you for your consideration of these comments.

Sincerely,

V. Colleen Miller

Director