Virginia: Nursing Homes – a Lawyer’s Regulations (September 6, 2014)

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All Virginia nursing facilities are regulated extensively by the Virginia Department of Health through the Virginia Administrative Code [“VAC”], including particularly re policies and procedures. Such Virginia law explicitly requires all nursing facilities to provide residents its policies and procedures merely “upon request”: “Policies shall be made available for review, upon request, to residents and their designated representatives.” 12 VAC 5-371-140(G)(emphasis added).

“The governing body [of the nursing facility] shall adopt written bylaws that describe the organizational structure and establish authority and responsibility in accordance with applicable laws, including a: Description of the methods of adoption, implementation and periodic review of policies and procedures.” 12 VAC 5-371-120(B)(3)(emphasis added). Correspondingly, lengthy companion Section 12 VAC 5-371-140, entitled “Policies and Procedures,” enumerates the details of implementation review, recordation, coverage, provision, and availability:

A. The nursing facility shall implement written policies and procedures approved by the governing body.

B. All policies and procedures shall be reviewed at least annually, with recommended changes submitted to the governing body for approval.

C. A written record of the annual policy review, including at least the review dates, participants, recommendations and action dates of the governing body, shall be maintained.

D. Administrative and operational policies and procedures shall include, but are not limited to:

1. Administrative records;

2. Admission, transfer and discharge;

3. Medical direction and physician services;

4. Nursing direction and nursing services;

5. Pharmaceutical services, including drugs purchased outside the nursing facility;

6. Dietary services;

7. Social services;

8. Activities services;

9. Restorative and rehabilitative resident services;

10. Contractual services;

11. Clinical records;

12. Resident rights and grievances;

13. Quality assurance and infection control and prevention;

14. Safety and emergency preparedness procedures;

15. Professional and clinical ethics, including:

a. Confidentiality of resident information;

b. Truthful communication with residents;

c. Observance of appropriate standards of informed consent and refusal of treatment; and

d. Preservation of resident dignity, with special attention to the needs of the aged, the cognitively impaired, and the dying; and

16. Facility security.

E.   Personnel policies and procedures shall include, but are not limited to:

1.   Written job descriptions that specify authority, responsibility, and qualifications for each job classification;

2.   An on-going plan for employee orientation, staff development, in-service training and continuing education;

3.   An accurate and complete personnel record for each employee including:

a. Verification of current professional license, registration, or certificate or completion of a required approved training course;

b. Criminal record check;

c. Verification that the employee has reviewed or received a copy of the job description;

d. Orientation to the nursing facility, its policies and to the position and duties assigned;

e. Completed continuing education program approved for the employee as determined by the outcome of the annual performance evaluation;

f. Annual employee performance evaluations; and

g. Disciplinary action taken; and

4.   Employee health-related information retained in a file separate from personnel files.

F.   Financial policies and procedures shall include, but not be limited to:

1.   Admission agreements;

2.   Methods of billing:

a. Services not included in the basic daily or monthly rate;

b. Services delivered by contractors of the nursing facility; and

c. Third party payers;

3.   Resident or designated representative notification of changes in fees and charges;

4.   Correction of billing errors and refund policy;

5.   Collection of delinquent resident accounts; and

6.   Handling of resident funds.

G. Policies shall be made available for review, upon request, to residents and their designated representatives.

H. Policies and procedures shall be readily available for staff use at all times.

(emphasis added). Also, 12 VAC 5-371-190 enumerates “Safety and Emergency Procedures”.

Where state healthcare regulation requires documents “in the regular course of the [healthcare provider’s] business, [they] are generally discoverable”. See, Tibbs v. Bunnell/Goff, No. 2012-SC-000603-MR, *13 (W.Va. Sup. Ct. Aug. 21, 2014)(“state-mandated information” of hospital not privileged). It is hornbook law that the specific controls over the general.

Further, 12 VAC 5-371-110(B)(3) entitled “Management and Administration,” expressly requires: “The nursing facility must comply with: its own policies and procedures.” (emphasis added). Therefore, when a nursing facility violates “its own [state-mandated] policies and procedures,” it necessarily is negligent per se – and its policies and procedures necessarily are admissible in evidence in medical malpractice cases as proof.