CLIENT ADVISORY: Assisted Living Facilities Classified as Type I-1 (Condition 2) Now Able to Serve More NonAmbulatory Residents

A recent guidance document published by the Virginia Department of Housing and Community Development (“DHCD”)—the “DHCD Matrix”—will allow ALFs classified as Type I-1 (Condition 2) buildings to serve a greater number of non-ambulatory residents. The DHCD Matrix is based on the 2012 Virginia Construction Code that is intended for use as a general guide for Assisted Living Facilities (“ALFs”) licensed by the Virginia Department of Social Services (“DSS”).

Until recently, a portion of the DHCD Matrix conflicted with the Virginia Statewide Building Code (“VBC”). As a result of the conflict contained in the Matrix, ALFs built and classified according to the VBC as “Group I-1 (Condition 2)” buildings may have received licenses from DSS that incorrectly limited the number of residents that could be served in such buildings if such residents required the assistance of one staff member to evacuate in the event of an emergency.

The DHCD Matrix was recently corrected to remove the inconsistency. ALFs classified as “Group I-1 (Condition 2)” buildings under the VBC should review their current license to ensure that it accurately reflects the facility’s ability to serve residents who would require assistance from staff to respond to an emergency. The corrected Matrix can be downloaded here.                                                     

Definitions of Ambulatory and Non-ambulatory and the DHCD Matrix

DSS issues licenses to ALFs as either “non-ambulatory” or “ambulatory” facilities. Virginia Code 63.2-1705(B) defines “ambulatory” as:

[T]he condition of a resident or participant who is physically and mentally capable of self-preservation by evacuating in response to an emergency to a refuge area as defined by the Uniform Statewide Building Code without the assistance of another person, or from the structure itself without the assistance of another person if there is no such refuge area within the structure, even if such resident or participant may require the assistance of a wheelchair, walker, cane, prosthetic device, or a single verbal command to evacuate.

In contrast, “non-ambulatory” is defined as:

[T]he condition of a resident or participant who by reason of physical or mental impairment is not capable of self-preservation without the assistance of another person.

In determining which facilities would be licensed as “ambulatory” or “non-ambulatory,” DSS has relied on the DHCD Matrix because Virginia Code § 63.2-1705 requires that ALFs be classified by and meet the specifications for the proper use group as required by the VBC. In addition, Virginia licensure rules allow ALFs to admit or retain individuals “as permitted by its use and occupancy classification and certificate of occupancy.” 22 VAC40-73-310. For ALFs designed to serve seventeen or more residents, two construction classifications are of particular importance to ALFs: Group I-1 (Condition 1) buildings and Group I-1 (Condition 2) buildings. Despite the very similar classification titles, the distinction between facilities classified as Condition 1 and Condition 2 under the VBC profoundly affects the types of residents that may be served in such facilities.

Under the VBC, Group I-1 Condition 1 includes:

Buildings in which all persons receiving custodial care who, without any assistance, are capable of responding to an emergency situation to complete building evacuation. Not more than five of the residents may require physical assistance from staff to respond to an emergency situation when all residents who may require the physical assistance reside on a single level of exit discharge. (emphasis added)

Group I-1 Condition 2 includes:

Buildings in which there are persons receiving custodial care who require assistance by not more than one staff member while responding to an emergency situation to complete building evacuation. Five of the residents may require physical assistance from more than one staff member to respond to an emergency. (emphasis added)

Thus, the VBC provides much greater flexibility to ALFs classified under Condition 2 to serve residents that would require staff assistance to respond to an emergency. Under the VBC, such facilities are classified to serve as many residents requiring the assistance of one staff member as the total number of residents the facility is approved to serve, and up to five residents that would require the assistance of more than one staff member.

DHCD’s prior matrix (published in 2014) was inconsistent with the VBC because it stated that an I-1 Condition 2 facility is limited to no more than five residents who require any level of physical assistance from staff to respond to an emergency situation. The current matrix now
reflects the current capabilities of facilities classified as Group I-1 (Condition 2):

Group I-1 (Condition 2) – Seventeen or more residents (308.3) who have the ability to respond to emergency situations with no more than one staff member providing assistance to complete building evacuation. Five of the residents may require physical assistance from more than one staff member to respond to an emergency situation (308.3.2). These facilities would be licensed as nonambulatory facilities by DSS.

Conclusion

All ALFs classified as Group I-1 (Condition 2) buildings should confirm that their license from DSS accurately reflects the ability to care for nonambulatory residents consistent with the VBC. For any licenses that limit such facilities to caring for no more than five residents who require any level of physical assistance in responding to an emergency may wish to contact their regional licensing office to request a correction.

Should you or your organization have questions about the updated Matrix or need assistance in licensing of an assisted living facility, please contact Peter Mellette (peter@mellettepc.com) or Nathan Mortier (nathan@mellettepc.com).

This Client Advisory is for general educational purposes only. It is not intended to provide legal advice specific to any situation you may have. Individuals desiring legal advice should consult legal counsel for up-to-date and fact-specific advice.

Categories: Client Advisory