Section 345. Summary suspension procedures

A. In conjunction with any proceeding for revocation, denial, or other action when conditions or practices exist that pose an imminent and substantial threat to the health, safety and welfare of the residents, the commissioner may issue a summary suspension of the license to operate an assisted living facility or of certain authority of the licensee to provide certain services or perform certain functions.

B. Upon determining that summary suspension is appropriate, the hearing coordinator will select a hearing officer from a list prepared by the Executive Secretary of the Supreme Court of Virginia and will schedule the time, date, and location of the hearing to determine whether the suspension is appropriate as required by § 63.2-1709 C of the Code of Virginia.

C. Simultaneously with the issuance of a notice of revocation, denial or other action, the commissioner will issue to the licensee a notice of summary order of suspension setting forth the following:

1. The procedures for the summary order of suspension;

2. The hearing and appeal rights as set forth below;

3. Facts and evidence that formed the basis for which the summary order of suspension is sought; and

4. The time, date, and location of the hearing.

D. Notice of the summary order of suspension will be served on the licensee or his designee by personal service or by certified mail, return receipt requested, to the address of record of the licensee as soon as practicable after issuance thereof.

E. The hearing shall take place in the locality where the assisted living facility operates unless the licensee or his designee expressly waives this venue provision.

1. The hearing shall be held no later than 15 business days after service of notice on the licensee. The hearing officer may grant a continuance upon written request and for good cause shown. In no event shall any continuance exceed 10 business days after the initial hearing date.

2. The hearing coordinator will forward a copy of the relevant licensing standards to the hearing officer.

3. The hearing will be conducted in accordance with the procedures set forth in 22VAC40-80-480 through 22VAC40-80-500.

4. The department may be represented either by counsel or by agency staff authorized by § 2.2-509 of the Code of Virginia.

F. Within 10 days of the conclusion of the hearing, the hearing officer shall provide to the commissioner written findings and conclusions, together with a recommendation as to whether the license should be summarily suspended. The department shall have the burden of proof in any summary suspension hearing. The decision of the hearing officer shall be based on the preponderance of the evidence presented by the record and relevant to the basic law under which the agency is operating.

G. Within 10 days of receipt of the hearing officer's report and recommendation, the commissioner shall either (i) adopt the hearing officer's recommendation or (ii) reject the hearing officer's recommendation if it would be an error of law or department policy to accept it.

H. The commissioner shall issue and shall serve on the licensee or his designee by personal service or by certified mail, return receipt requested either:

1. A final order of summary suspension including (i) a detailed statement of the basis for rejecting the hearing officer's recommendation, if applicable, and (ii) notice that the licensee may appeal the commissioner's decision to the appropriate circuit court no later than 10 days following service of the order; or

2. A final order that summary suspension is not warranted by the facts and circumstances presented.

I. A copy of any final order of suspension shall be prominently displayed at each public entrance of the facility as required in 22VAC40-80-120.

J. The signed, original case decision shall remain in the custody of the agency as a public record, subject to the agency's records retention policy.

Historical Notes

Derived from Volume 23, Issue 06, eff. December 28, 2006.

Statutory Authority

§§ 63.2-217, 63.2-1732, 63.2-1733 and 63.2-1734 of the Code of Virginia.