Chapter 1. Administration Generally.

Michie’s Jurisprudence.

For related discussion, see 9A M.J. Health and Sanitation, §§ 1, 4.

Article 1. General Provisions.

§ 32.1-1. References to former sections, articles and chapters of Title 32 and other titles.

Whenever any of the conditions, requirements, provisions or contents of any section, article or chapter of Title 32 or any other title of this Code as such titles existed prior to October 1, 1979, are transferred in the same or in modified form to a new section, article or chapter of this title or any other title of this Code and whenever any such former section, article or chapter is given a new number in this or any other title, all references to any such former section, article or chapter of Title 32 or other title appearing in this Code shall be construed to apply to the new or renumbered section, article or chapter containing such conditions, requirements, provisions or contents or portions thereof.

History. 1979, c. 711.

Editor’s note.

At its regular session of 1974, the General Assembly directed the Code Commission to study Title 32, Health, of the Code and to report its findings in the form of a recodification of that title. In December of 1978, the Commission sent to the Governor and General Assembly its report containing a proposed revision of Title 32 and also drafts of several companion bills which would accomplish additional changes sought by the State Department of Health. This report contains revisor’s notes and other explanatory matter which, while valuable, are too lengthy for inclusion here. The proposed revision of Title 32 was adopted by the 1979 General Assembly as chapter 711 of the Acts of 1979. Effective October 1, 1979, it repealed Title 32 and enacted in lieu thereof a new Title 32.1. It also repealed certain provisions of Titles 54 and 62.1 and incorporated substantially similar provisions in the new Title 32.1. The companion acts to Acts 1979, c. 711, repealed designated provisions of Title 32 and enacted substantially similar provisions in titles other than new Title 32.1. In addition to its revision by Chapter 711, former Title 32 was also amended by other acts passed at the 1979 session. As required by § 30-152, the Code Commission has incorporated these amendments into new Title 32.1, or into corresponding sections of other titles enacted by companion acts to Chapter 711. In addition, an amendment to § 54-524.109:18, which section was repealed by Chapter 711, has been incorporated in the corresponding new section, § 32.1-88.

Some of the cases cited in the notes under the various sections of this title were decided under corresponding provisions of former Title 32.

Acts 1979, c. 711, cl. 2 provides: “That the regulations of the State Board of Health and those of the Virginia Voluntary Formulary Board in effect on the effective date of this act [Oct. 1, 1979], shall continue in effect to the extent that they are not in conflict with this act and shall be deemed to be regulations promulgated under this act.”

Law Review.

For survey of Virginia law on governmental services and social welfare for the year 1978-1979, see 66 Va. L. Rev. 301 (1980).

§ 32.1-2. Finding and purpose.

The General Assembly finds that the protection, improvement and preservation of the public health and of the environment are essential to the general welfare of the citizens of the Commonwealth. For this reason, the State Board of Health and the State Health Commissioner, assisted by the State Department of Health, shall administer and provide a comprehensive program of preventive, curative, restorative and environmental health services, educate the citizenry in health and environmental matters, develop and implement health resource plans, collect and preserve vital records and health statistics, assist in research, and abate hazards and nuisances to the health and to the environment, both emergency and otherwise, thereby improving the quality of life in the Commonwealth.

This comprehensive program of preventive, curative, restorative, and environmental health services shall include prevention and education activities focused on women’s health, including, but not limited to, osteoporosis, breast cancer, and other conditions unique to or more prevalent among women.

History. 1979, c. 711; 1995, c. 78.

CIRCUIT COURT OPINIONS

Executive order requiring face masks. —

Winery was not entitled to a temporary injunction from enforcement of an executive order requiring face coverings to be worn by individuals in certain settings, because the Governor of Virginia and the Virginia State Health Commissioner validly enacted the order to limit the spread of COVID-19 and expressly waived the application of the criminal prohibition on the wearing of a mask to conceal one’s identity. The winery could not demonstrate a likely success as to the merits, irreparable harm, the balance of equities, and the public interest. Strother v. Northam, 105 Va. Cir. 233, 2020 Va. Cir. LEXIS 106 (Fauquier County June 29, 2020).

OPINIONS OF THE ATTORNEY GENERAL

Constitutionality. —

Commonwealth has authority to promulgate regulations for facilities in which first trimester abortions are performed as well as for providers of first trimester abortions, so long as the regulations adhere to constitutional limitations. See opinion of Attorney General to The Honorable Ralph K. Smith, Member, Senate of Virginia, 2010 Va. AG LEXIS 45 (8/20/10); Opinion of Attorney General to The Honorable Robert G. Marshall, Member, House of Delegates, 10-012, (8/20/10).

§ 32.1-3. Definitions.

As used in this title unless the context requires otherwise or it is otherwise provided:

“Board” or “State Board” means the State Board of Health.

“Commissioner” means the State Health Commissioner.

“Department” means the State Department of Health.

“Medical care facility” means any institution, place, building, or agency, whether or not licensed or required to be licensed by the Board or the Department of Behavioral Health and Developmental Services, whether operated for profit or nonprofit, and whether privately owned or privately operated or owned or operated by a local governmental unit, (i) by or in which health services are furnished, conducted, operated, or offered for the prevention, diagnosis, or treatment of human disease, pain, injury, deformity, or physical condition, whether medical or surgical, of two or more nonrelated persons who are injured or physically sick or have mental illness, or for the care of two or more nonrelated persons requiring or receiving medical, surgical, nursing, acute, chronic, convalescent, or long-term care services, or services for individuals with disabilities, or (ii) which is the recipient of reimbursements from third-party health insurance programs or prepaid medical service plans.

The term “medical care facility” does not include any facility of (a) the Department of Behavioral Health and Developmental Services; (b) any nonhospital substance abuse residential treatment program operated by or contracted primarily for the use of a community services board under the Department of Behavioral Health and Developmental Services’ Comprehensive State Plan; (c) an intermediate care facility for individuals with intellectual disability (ICF/IID) that has no more than 12 beds and is in an area identified as in need of residential services for individuals with intellectual disability in any plan of the Department of Behavioral Health and Developmental Services; (d) a physician’s office, except that portion of a physician’s office described in subdivision A 6 of § 32.1-102.1:3 ; (e) the Wilson Workforce and Rehabilitation Center of the Department for Aging and Rehabilitative Services; (f) the Department of Corrections; or (g) the Department of Veterans Services.

“Person” means an individual, corporation, partnership, or association or any other legal entity.

History. 1979, c. 711; 2020, c. 1271.

The 2020 amendments.

The 2020 amendment by c. 1271 deleted the subdivision designations 1 through 4; added the definition of “Medical care facility” and in the definition of “Person,” inserted the first “or.”

OPINIONS OF THE ATTORNEY GENERAL

“Medical care facility.” —

A freestanding emergency facility that is owned and operated by a licensed hospital is not required to be separately licensed unless it falls within one of the classifications of “hospital” set forth in regulations promulgated by the state Board of Health. Additionally, the establishment of a freestanding emergency facility is not subject to the issuance of a certificate of public need unless it qualifies as a “medical care facility” under § 32.1-102.1 . See opinion of Attorney General to The Honorable George L. Barker, Member, Senate of Virginia, 18-045, 2019 Va. AG LEXIS 6 (3/8/19).

§ 32.1-3.1. Certified mail; subsequent mail or notices may be sent by regular mail.

Whenever in this title the Board, the Commissioner, or the Department is required to send any mail or notice by certified mail and such mail or notice is sent certified mail, return receipt requested, then any subsequent, identical mail or notice that is sent by the Board, the Commissioner, or the Department may be sent by regular mail.

History. 2011, c. 566.

§ 32.1-4. Sovereign immunity.

Nothing contained in this title shall be construed to be a waiver of the defense of sovereign immunity except where expressly provided by the laws of this Commonwealth.

History. 1979, c. 711.

Article 2. State Board of Health.

§ 32.1-5. Appointment of members; terms and vacancies.

There shall be a State Board of Health which shall consist of 15 residents of the Commonwealth appointed by the Governor for terms of four years each. Two members of the Board shall be members of the Medical Society of Virginia, one member shall be a member of the Virginia Pharmaceutical Association, one member shall be a member of the State Dental Association, one member shall be a member of the Virginia Nurses’ Association, one member shall be a member of the Virginia Veterinary Medical Association, one member shall be a representative of local government, one member shall be a representative of the hospital industry, one member shall be a representative of the nursing home industry, one member shall be a representative of the licensed health carriers responsible under Title 38.2 for a managed care health insurance plan, one member shall be a corporate purchaser of health care, two members shall be consumers, one member shall have public environmental health expertise, and one member shall be a representative of the emergency medical services community recommended by the State Emergency Medical Services Advisory Board. A vacancy other than by expiration of term shall be filled by the Governor for the unexpired term.

No person shall be eligible to serve more than two full consecutive four-year terms.

History. Code 1950, § 32-1 ; 1956, c. 396; 1968, c. 371; 1972, c. 94; 1974, c. 67; 1978, c. 499; 1979, c. 711; 1989, c. 73; 1991, c. 93; 1998, c. 891; 2009, c. 128.

Editor’s note.

Acts 2021, Sp. Sess. I, c. 521, cl. 1 provides:

“Notwithstanding any other provision of law to the contrary, the local governing body of the County of Loudoun or Prince William or the City of Manassas or Manassas Park may enter into a contract with the State Board of Health (the Board) to provide local health services in such county or city. A local governing body that enters into a contract with the Board pursuant to this act shall not eliminate any service required by law or reduce the level of service below that required by law. In addition, such local governing body shall not eliminate or reduce the level of any service currently delivered in connection with the Commonwealth’s program of medical assistance.

“Any contract executed between the local governing body of the County of Loudoun or Prince William or the City of Manassas or Manassas Park and the Board shall set forth the rights and responsibilities of the local governing body for the delivery of health services and shall require that the local governing body, with the concurrence of the State Health Commissioner, appoint the local director of health services in accordance with local procedures, who shall be employed full time as an employee of the local governing body and shall be responsible for directing all state-mandated public health programs. All employees of the local health department operated by the local governing body shall be employees of the local governing body.

“The local governing body of a county or city that enters into a contract with the Board pursuant to this act shall operate the local health department, pursuant to the terms of the contract, with such local appropriations and any state funds as may be made available to it, pursuant to the general appropriation act. State funds for the operation of health services and facilities shall continue to be allocated to the county or city as if such services were provided in a county or city without such a contract.

“The local governing body of a county or city that enters into a contract with the Board pursuant to this act shall maintain and submit such financial and statistical records as may be required by the Board.

“Any county or city that enters into a contract with the Board pursuant to this act shall be the sole owner of all equipment and supplies, including all equipment and supplies used by the local health department at the time of execution of the contract, that were or are purchased for providing public health services, regardless of the source of the funds for such purchases.

“Notwithstanding any other provision of law to the contrary, any person who is transferred from state to local employment in accordance with a contract authorized by this act, and who is a member of the Virginia Retirement System at the time of the transfer, shall continue to be a member of the Virginia Retirement System during the period of local employment.

“The power to contract conferred by this act shall not be deemed to confer any additional authority to impose fees for local health services upon a county or city that enters into a contract with the Board pursuant to this act.”

The 2009 amendments.

The 2009 amendment by c. 128, in the first paragraph, substituted “15 residents” for “thirteen residents” in the first sentence and in the next-to-last sentence, deleted “and” following “purchaser of health care” and added “one member shall have public environmental health expertise, and one member shall be a representative of the emergency medical services community recommended by the State Emergency Medical Services Advisory Board.”

CASE NOTES

As to autonomy of State Department of Health, see Medicenters of Am., Inc. v. Virginia, 373 F. Supp. 305, 1974 U.S. Dist. LEXIS 9329 (E.D. Va. 1974) (decided under prior law).

§ 32.1-6. Meetings and chairman.

The Board shall meet annually in the City of Richmond and at such other times and places as it determines. It shall elect from its number a chairman who shall perform the usual duties of such officer in addition to the particular duties prescribed by law.

History. Code 1950, § 32-2; 1979, c. 711.

§ 32.1-7. Bylaws.

The Board may adopt bylaws for its operation.

History. Code 1950, § 32-3; 1979, c. 711.

§ 32.1-8. Quorum.

Six members of the Board shall constitute a quorum for the transaction of any lawful business.

History. Code 1950, § 32-4; 1974, c. 436; 1979, c. 711; 1989, c. 73.

§ 32.1-9. Secretary.

The Commissioner or, with the approval of the Board, his designee shall act as secretary of the Board and shall not be entitled to any additional compensation for such service.

History. Code 1950, § 32-5; 1979, c. 711.

§ 32.1-10. Repealed by Acts 1980, c. 728.

Cross references.

For present provisions as to compensation and expenses of boards, commissions and similar bodies, see § 2.2-2813.

§ 32.1-11. Environmental health, laboratory, and medical care services.

  1. The Board may formulate a program of environmental health services, laboratory services and preventive, curative and restorative medical care services, including home and clinic health services described in Titles V, XVIII and XIX of the United States Social Security Act and amendments thereto, to be provided by the Department on a regional, district or local basis.
  2. The Board shall define the income limitations within which a person shall be deemed to be medically indigent. Persons so deemed to be medically indigent shall receive the medical care services of the Department without charge. The Board may also prescribe the charges to be paid for the medical care services of the Department by persons who are not deemed to be medically indigent and may, in its discretion and within the limitations of available funds, prescribe a scale of such charges based upon ability to pay. Funds received in payment of such charges are hereby appropriated to the Board for the purpose of carrying out the provisions of this title.
  3. When the Department provides medical care services to a person who has private health insurance that covers the services provided, the Board shall authorize the Department to charge an amount equal to the allowable charge of such insurer for the services provided. If the insurer denies a claim for medical care services provided to such person, the patient portion of the bill shall not be greater than if the person did not have private health insurance.
  4. The Board shall review periodically the program and charges adopted pursuant to this section.

History. Code 1950, § 32-8.1; 1966, c. 529; 1970, c. 439; 1979, c. 711; 2008, cc. 42, 81.

The 2008 amendments.

The 2008 amendments by cc. 42 and 81 are identical, and added subsection C and redesignated former subsection C as subsection D.

Law Review.

For survey of Virginia law on governmental services and social welfare for the year 1978-1979, see 66 Va. L. Rev. 301 (1980).

§ 32.1-11.1. Board to establish acquired immunodeficiency syndrome services and education grants program.

With such funds as are appropriated for this purpose, the Board of Health shall establish the acquired immunodeficiency syndrome services and education grants program. The Board may award grants for (i) the provision of direct patient services including, but not limited to, mental health services, and home and community based health services; and (ii) broad-based community AIDS education efforts including, but not limited to, education of high risk populations, street outreach efforts and improvement of public knowledge, awareness and attitudes about human immunodeficiency virus infection and persons with acquired immunodeficiency syndrome.

The State Department of Health shall seek the advice of experts in the delivery of services to persons with AIDS and AIDS education to assist in the administration of the grants program.

History. 1989, c. 613; 2003, c. 453.

The 2003 amendments.

The 2003 amendment by c. 453 rewrote the last paragraph, which formerly read: “The Board shall appoint an advisory committee of experts in the delivery of services to persons with AIDS and AIDS education to assist in the development of the criteria for awarding such grants, the contents of the request for proposals, evaluation and ranking of the applications and making recommendations for the awarding of the grants.”

Michie’s Jurisprudence.

For related discussion, see 9A M.J. Health and Sanitation, § 1.

§ 32.1-11.2. Regional AIDS resource and consultation centers; HIV early intervention centers.

Utilizing existing state and local facilities and from such funds as are appropriated for this purpose, the Board of Health shall provide grants for no more than five regional AIDS resource and consultation centers and four HIV early intervention centers.

Each regional AIDS resource and consultation center shall be designed to address the need for expanded medical care and support services for persons with human immunodeficiency virus infection through education of health care professionals on a broad range of AIDS-related issues, clinical training for health care practitioners and students, medical consultation to community physicians and other health care providers, provision of current technical medical materials such as manuals and protocols for the management of HIV infection and medical literature, facilitation of access to health services, mental health and substance abuse services, support services and case management for HIV-infected persons. The regional AIDS resource and consultation centers shall cooperate with at least one of the medical schools located in the Commonwealth.

Each HIV early intervention center shall supply medical care and support services for persons with human immunodeficiency virus infection in accordance with its agreement with the Commissioner of Health.

The Board shall establish criteria for award of the grants. The criteria for the grants for the regional AIDS resource and consultation centers shall include, but not be limited to: (i) priority targeting of funds for services to high risk populations; (ii) geographical distribution of the centers in order to provide equal access to services throughout the Commonwealth; (iii) pro rata apportionment of funds according to the number of cases of acquired immunodeficiency syndrome in the various areas of the Commonwealth; (iv) development of innovative and flexible approaches to provision of services tailored to the specific needs of patients in the region; and (v) extensive community involvement.

History. 1989, c. 613; 1993, c. 664; 1994, c. 610.

Michie’s Jurisprudence.

For related discussion, see 9A M.J. Health and Sanitation, § 1.

§ 32.1-11.3. Patient and community health education services.

The Board shall formulate a program of patient and community health education services to be provided by the Department on a regional, district, or local basis. The program shall include services addressing health promotion and disease prevention and shall encourage the coordination of local and private sector health education services. This program shall include information on the causes, prevention, early detection, and treatment of osteoporosis.

History. 1991, c. 195; 1995, c. 78.

§ 32.1-11.4. Repealed by Acts 2007, c. 4, cl. 1.

Editor’s note.

Former § 32.1-11.4 , which authorized the Board to establish worksite health promotion grants program, was derived from Acts 1991, c. 196; 1995, c. 78.

§ 32.1-11.5. Repealed by Acts 2016, c. 495, cl. 2.

Editor’s note.

Former § 32.1-11.5 , pertaining to pilot programs for obstetrical and pediatric care in underserved areas, derived from Acts 2005, c. 926; 2011, c. 456.

§ 32.1-11.6. Virginia Pregnant Women Support Fund; purpose; guidelines.

  1. There is hereby created the Virginia Pregnant Women Support Fund (the Fund) as a special nonreverting fund to be administered by the Board of Health to support women and families who are facing unplanned pregnancy.
  2. The Board of Health shall have authority to solicit and accept gifts, donations, and bequests and to apply for grants on behalf of the Fund from any source and to deposit all moneys received in the Fund. The Council shall submit to the Governor an annual report of all gifts, donations, grants and bequests accepted; the names of the donors; and the respective amounts contributed by each donor.
  3. The Fund shall be established on the books of the Comptroller. All moneys received from any source pursuant to subsection B shall be paid into the state treasury and credited to the Fund. Interest earned on moneys in the Fund shall remain in the Fund and be credited to it. Any moneys remaining in the Fund, including interest thereon, at the end of each fiscal year shall not revert to the general fund but shall remain in the Fund. Moneys in the Fund shall be used solely for the purposes of carrying out the activities enumerated below:
    1. Purchasing or upgrading ultrasound equipment;
    2. Creating a separate program for domestic violence, dating violence, sexual assault and stalking screening against pregnant women and new mothers;
    3. Conducting a public campaign to increase public awareness;
    4. Providing support services for students of institutions of higher education;
    5. Providing funds to allow early childhood education programs to work with pregnant or parenting teens to complete high school and provide job training education; or
    6. Providing for teenage or first-time mothers education on the health needs of their infants through free home visits by registered nurses.
  4. The Board of Health shall establish an application process and related procedures for community health centers, migrant health centers, homeless health centers, and public-housing centers seeking grants from the Fund. A grant may be made only if an application for the grant is submitted to the Board of Health and the application is in such a form, is made in such a manner, and contains such agreements, assurances, and information as the Board determines to be necessary to carry out its functions.

History. 2007, cc. 780, 822.

Law Review.

For 2007 annual survey article, “Health Care Law,” see 42 U. Rich. L. Rev. 441 (2007).

§ 32.1-11.7. Guidelines for cleanup of residential property used to manufacture methamphetamine.

The Board, in consultation with the Department of Environmental Quality and other relevant entities, shall establish guidelines for the cleanup of residential property and other buildings formerly used as sites to manufacture methamphetamine to certify that the methamphetamine level at such property is at or below the post cleanup target.

History. 2012, c. 778; 2013, c. 557; 2014, c. 513.

Cross references.

Department of Environmental Quality, generally, see § 10.1-1182 et seq.

Editor’s note.

Acts 2013, c. 557, cl. 2 provides: “That the provisions of this act shall become effective on July 1, 2014, except that the provisions of this act in § 32.1-11.7 of the Code of Virginia shall become effective in due course.”

The 2013 amendments.

The 2013 amendment by c. 557 substituted “to manufacture methamphetamine” for “as a clandestine methamphetamine laboratory” at the end.

The 2014 amendments.

The 2014 amendment by c. 513 inserted “and other buildings,” “as sites,” and “to certify that the methamphetamine level at such property is at or below the post cleanup target.”

Research References.

Virginia Forms (Matthew Bender). No. 16-101 Residential Lease Agreement. No. 16-102 Simple Lease of Residential Property Exempt from Virginia Residential Landlord and Tenant Act. No. 16-126 Simple Month-to-Month Lease. No. 16-299.3 Disclosures by Landlord. No. 16-301 Application for Tenancy. No. 16-403 Residential Real Estate Contract. No. 16-404 Virginia Bar Association Residential Contract of Purchase.

§ 32.1-12. Regulations, variances and exemptions.

The Board may make, adopt, promulgate and enforce such regulations and provide for reasonable variances and exemptions therefrom as may be necessary to carry out the provisions of this title and other laws of the Commonwealth administered by it, the Commissioner or the Department.

History. Code 1950, § 32-6; 1972, c. 504; 1979, c. 711.

Cross references.

As to regulations for control of rabies, see §§ 32.1-48.1 through 32.1-48.4 . As to rules and regulations of the Waste Management Board relating to transportation of hazardous materials, see § 10.1-1450 et seq.

Editor’s note.

Acts 2016, c. 600, cl. 1 provides: “The State Board of Health (the Board) shall promulgate regulations, by July 1, 2017, for the audio-visual recording of residents in nursing facilities. Such regulations shall include provisions related to (i) resident privacy, (ii) notice and disclosure, (iii) liability, (iv) ownership and maintenance of equipment, (v) cost, (vi) recording and data security, and (vii) nursing facility options for both nursing facility-managed recording and resident-managed recording. The Department of Health shall convene a workgroup that includes representatives of nursing facilities, advocates for residents of nursing facilities, and other stakeholders to make recommendations to the Board on such regulations and shall report its recommendations to the Board and the General Assembly by December 1, 2016.”

Law Review.

For article, “Legal Issues Affecting Local Governments in Implementing the Chesapeake Bay Preservation Act,” see 24 U. Rich. L. Rev. 1 (1989).

For annual survey of Virginia law article, “Administrative Law,” see 47 U. Rich. L. Rev. 7 (2012).

OPINIONS OF THE ATTORNEY GENERAL

Constitutionality. —

Commonwealth has authority to promulgate regulations for facilities in which first trimester abortions are performed as well as for providers of first trimester abortions, so long as the regulations adhere to constitutional limitations. See opinion of Attorney General to The Honorable Ralph K. Smith, Member, Senate of Virginia, 2010 Va. AG LEXIS 45 (8/20/10); Opinion of Attorney General to The Honorable Robert G. Marshall, Member, House of Delegates, 10-012, (8/20/10).

§ 32.1-12.1. Board to establish regulations regarding human research.

The Board shall promulgate regulations pursuant to the Administrative Process Act (§ 2.2-4000 et seq.) to effectuate the provisions of Chapter 5.1 (§ 32.1-162.16 et seq.) of this title for human research, as defined in § 32.1-162.16 , to be conducted or authorized by the Department or any facilities or other entities operated, funded, or licensed by the Department. The regulations shall require the human research committee to submit to the Governor, the General Assembly, and the Commissioner or his designee at least annually a report on the human research projects reviewed and approved by the committee and shall require the committee to report any significant deviations from the proposals as approved.

History. 1992, c. 603.

§ 32.1-13. Emergency orders and regulations.

The Board may make separate orders and regulations to meet any emergency, not provided for by general regulations, for the purpose of suppressing nuisances dangerous to the public health and communicable, contagious and infectious diseases and other dangers to the public life and health.

History. Code 1950, § 32-12; 1979, c. 711.

Cross references.

As to duties of Potomac Aquifer Recharge Oversight Committee concerning imminent danger to the environment, public water supply or public health, see §§ 62.1-273 and 62.1-275.

CIRCUIT COURT OPINIONS

Constitutionality. —

Circuit court found that demurrer was appropriate as to a constitutional challenge to statutes promulgated in response to pandemic because the court found that the complaint failed to sufficiently allege that statutes were unconstitutional delegations of Virginia legislative authority. The court also found that the complaint failed to sufficiently allege a substantive due process, procedural due process, or equal protection violation. Dillon v. Northam, 108 Va. Cir. 367, 2021 Va. Cir. LEXIS 169 (Norfolk Aug. 13, 2021).

§ 32.1-13.1. Health policy responsibilities.

The Board of Health may direct the Department to inform it regarding health care policy and financing concerns through such studies as the Board may deem necessary and appropriate to be conducted. The Board may make recommendations concerning health care policy to the Governor, the General Assembly, and the Secretary of Health and Human Resources.

History. 1989, c. 73; 2002, c. 83.

The 2002 amendments.

The 2002 amendment by c. 83, in the first sentence, substituted “Board of Health may” for “Board shall,” substituted “inform it” for “inform the Board,” and deleted “with the advice of and in consultation with the Virginia Health Planning Board” at the end thereof; and in the second sentence, substituted “may” for “shall.”

§ 32.1-14. Annual report.

The Board shall submit an annual report to the Governor and General Assembly. Such report shall contain information on the Commonwealth’s vital records and health statistics and an analysis and summary of health care issues affecting the citizens of Virginia, including but not limited to, health status indicators, the effectiveness of delivery of health care, progress toward meeting standards and goals, the financial and geographic accessibility of health care, and the distribution of health care resources, with particular attention to health care access for those Virginia citizens in rural areas, inner cities, and with greatest economic need. Such report shall also contain statistics and analysis regarding the health status and conditions of minority populations in the Commonwealth by age, gender, and locality.

History. Code 1950, §§ 32-20, 32-30; 1979, c. 711; 1984, c. 734; 1989, c. 73; 1999, c. 579; 2004, c. 650.

The 2004 amendments.

The 2004 amendment by c. 650 deleted the last sentence, which formerly read: “The annual report shall be distributed in accordance with the provisions of § 2.2-1127.”

§ 32.1-15. Suggestions as to legislation.

The Board may, at each regular session of the General Assembly, suggest any legislative action deemed necessary for the better protection of life and public health.

History. Code 1950, § 32-21; 1979, c. 711.

§ 32.1-15.1. Certified community health workers.

  1. As used in this section, “certified community health worker” means a community health worker who has met the requirements of subsection B.
  2. No person shall use or assume the title “certified community health worker” unless he is a community health worker who (i) has received training and education as a community health worker from an entity approved by a body approved by the Board and (ii) is certified as a certified community health worker by a body approved by the Board.
  3. No entity shall hold itself out as providing training and education for certified community health workers required by subsection B unless its curriculum and training program has been approved by a body approved by the Board.
  4. The Board shall adopt regulations setting forth requirements for (i) use of the title “certified community health worker” and (ii) education and training programs necessary to meet the requirements for certification as a certified community health worker.

History. 2020, c. 363.

Article 3. Department of Health and State Health Commissioner.

§ 32.1-16. State Department of Health.

  1. There shall be a State Department of Health in the executive department responsible to the Secretary of Health and Human Resources. The Department shall be under the supervision and management of the State Health Commissioner. The Commissioner shall carry out his management and supervisory responsibilities in accordance with the policies, rules and regulations of the Board.
  2. In addition to other duties imposed on the Department pursuant to this title, the Department shall assist in the plan management functions of the federal health benefit exchange established by the Secretary of the U.S. Department of Health and Human Services pursuant to § 1321 of the Patient Protection and Affordable Care Act codified as 42 U.S.C. § 18041(c) in the Commonwealth, including providing assistance to the State Corporation Commission in its performance of plan management functions as set forth in § 38.2-326. The Department shall be compensated for expenses incurred in providing such services.

History. 1979, c. 711; 2013, cc. 670, 679.

Editor’s note.

Acts 2013, cc. 670 and 679, cl. 2 provides: “That no agent, employee, officer, or agency of the Commonwealth, including but not limited to the State Corporation Commission and the Virginia Department of Health, is authorized to take any action to establish, or that could be deemed to establish, a health benefit exchange pursuant to § 1311 of the Patient Protection and Affordable Care Act codified as 42 U.S.C. § 18031.”

Acts 2017, c. 172, cl. 1 provides: “That the Department of Health (the Department) shall convene a work group composed of stakeholders, including representatives of law enforcement, emergency medical services providers, health insurance providers, the Medevac Committee of the Emergency Medical Services Advisory Board, emergency physicians, and other interested stakeholders, to review the rules, regulations, and protocols governing use of air transportation services, also known as air ambulances, in emergency medical situations. The Department shall also review the rules, regulations, and protocols governing dispatch of air transportation services providers in response to emergency medical situations and develop recommendations for changes to such rules, regulations, and protocols that will address differences in procedures governing dispatch of air transportation services providers in emergency medical situations, differences in billing that may affect individuals involved in emergency medical situations during which air transportation services providers are dispatched for the provision of air transportation, and other issues related to the use of air transportation services in emergency medical situations. The Department shall report its findings and recommendations to the Governor and the General Assembly by December 1, 2017.”

Acts 2017, c. 476, cl. 1 provides: “That the Department of Health shall evaluate the need for 180-day biochemical oxygen demand sampling of small alternative onsite sewage systems that serve no more than three attached or detached single-family residences with a combined average flow of less than or equal to 1,000 gallons per day of residential strength sewage, or a structure with an average daily sewage flow of less than or equal to 1,000 gallons per day of residential strength sewage, and shall report its findings to the Chairmen of the House Committee on Health, Welfare and Institutions and the Senate Committee on Education and Health by December 1, 2017.”

Acts 2017, c. 602, cl. 1 provides: Ҥ 1. That the Department of Health shall take steps to begin eliminating site evaluation and design services for onsite sewage systems and private wells provided by the Department. In doing so, the Department shall:

“1. Require, in cases in which site evaluations and design services for onsite sewage systems and private wells are provided by private sector service providers, that such site evaluation and design service providers disclose to the property owner when a conventional onsite sewage system is an option;

“2. Revise agency regulations and policies to require Department staff to inspect all onsite sewage systems and private wells designed by private sector service providers;

“3. Expand efforts to educate the public concerning the design, operation, and maintenance of onsite sewage systems and private wells;

“4. Expand efforts to incorporate onsite sewage systems and private well data into community health assessments;

“5. Enhance quality assurance checks and inspection procedures for the review of evaluations, designs, and installations by private sector service providers and update its quality assurance manual to reflect this change in the agency’s business model;

“6. Consider separating work unit functions regarding permitting and enforcement for onsite sewage systems and private wells to ensure that staff reviewing evaluations and designs for permitting purposes are separate and independent from staff performing enforcement functions;

“7. Improve the collection and management of data about onsite sewage systems and private wells, including (i) creating a web-based reporting system for conventional onsite sewage system operation and maintenance, (ii) accepting applications and payments online, (iii) making onsite sewage system and private well records available online, (iv) creating a complete electronic record of all permitted onsite sewage systems and private wells in the Commonwealth, and (v) creating procedures for tracking Notices of Alleged Violations and corrective actions; and

“8. Revise agency policies to allow the transfer of valid construction permits for onsite sewage systems and private wells to new property owners.”

Acts 2017, c. 602, cl. 2 provides: “That the Department of Health shall report on its progress in implementing the provisions of this act and any recommendations for statutory, regulatory, policy or budgetary changes that may be necessary to implement the provisions of this act to the Secretary of Health and Human Resources and the Chairmen of the House Committee on Health, Welfare and Institutions and Senate Committee on Education and Health by November 1, 2017.”

Acts 2020, c. 677, cl. 1 provides: “That the Department of Education, in collaboration with the Department of Health and medical professional societies, shall develop and distribute for use by local school boards health and safety best practice guidelines for the effective integration of digital devices in public schools no later than the 2021-2022 school year. The guidelines shall be based on peer-reviewed, independently funded studies and shall at a minimum address digital device use for different age ranges and developmental levels, the amount of time spent on digital devices in the classroom, appropriate break frequency from the use of digital devices, physical positioning of digital devices in the classroom, the use of digital devices for homework, and recommended teacher training to ensure best practice implementation.”

Acts 2020, c. 932, cl. 1 provides: “That the Department of Health shall convene a work group to review and make recommendations on increasing the availability of the clinical workforce for nursing homes in the Commonwealth. The work group shall include representatives from the Virginia Health Care Association, the Virginia Center for Assisted Living, Dignity for the Aged, the Virginia Nurses Association, LeadingAge Virginia, and other stakeholders as appropriate. The Department shall collaborate with the Department of Health Professions, the Governor’s Chief Workforce Development Advisor, and other state agencies as appropriate. The Department shall report all recommendations to the Chairmen of the Senate Committee on Education and Health and the House Committee on Health, Welfare and Institutions on or before November 15, 2020.”

The 2013 amendments.

The 2013 amendments by cc. 670 and 679 are nearly identical, and inserted the subsection A designation and added subsection B.

Law Review.

For survey of Virginia law on governmental services and social welfare for the year 1978-1979, see 66 Va. L. Rev. 301 (1980).

OPINIONS OF THE ATTORNEY GENERAL

Employee of the Department of Health may operate consulting business specializing in radon testing, as long as the employee does so during nonworking hours in a manner that does not conflict with his responsibilities to the Commonwealth, and the business does not conflict with any Department of Health policies governing outside employment. See opinion of Attorney General to The Honorable Dave Nutter, Member, House of Delegates, 10-048, (9/10/10).

§ 32.1-17. Appointment of Commissioner; qualifications; term.

  1. There shall be a State Health Commissioner appointed by the Governor, subject to confirmation by each house of the General Assembly. The Commissioner shall be a physician licensed to practice medicine in this Commonwealth and shall be certified by the American Board of Preventive Medicine or a recognized board in a primary care specialty as approved by the American Board of Medical Specialties, experienced in public health duties, sanitary science and environmental health, and otherwise qualified to execute the duties incumbent upon him by law.
  2. The Commissioner shall be appointed for a term coincident with that of the Governor and shall serve at the pleasure of the Governor.

History. Code 1950, §§ 32-23, 32-25; 1979, c. 711; 2000, c. 168.

Editor’s note.

Acts 2020, c. 611, cl. 1 provides: “That the Commissioner of Health shall convene a work group to study the occurrence of perfluorooctanoic acid (PFOA), perfluorooctane sulfonate (PFOS), perfluorobutyrate (PFBA), perfluoroheptanoic acid (PFHpA), perfluorohexane sulfonate (PFHxS), perfluorononanoic acid (PFNA), and other perfluoroalkyl and polyfluoroalkyl substances (PFAS), as deemed necessary, in the Commonwealth’s public drinking water and may develop recommendations for specific maximum contaminant levels for PFOA, PFOS, PFBA, PFHpA, PFHxS, PFNA, and other PFAS, as deemed necessary, for inclusion in regulations of the Board of Health applicable to waterworks. Such work group shall include representatives of waterworks owners and operators, including owners and operators of community waterworks, private companies that operate waterworks, advocacy groups representing owners and operators of waterworks, consumers of public drinking water, a manufacturer with chemistry experience, and such other stakeholders as the Commissioner of Health shall deem appropriate. The Office of Drinking Water of the Department of Health shall provide administrative and technical support for the work group. In completing its work, the work group (i) shall (a) determine current levels of PFOA, PFOS, PFBA, PFHpA, PFHxS, PFNA, and other PFAS, as deemed necessary, contamination in the Commonwealth’s public drinking water, provided that in making such determination of current levels, the Department of Health shall sample no more than 50 representative waterworks and major sources of water; (b) identify possible sources of such contamination, where identified; and (c) evaluate existing approaches to regulating PFOA, PFOS, PFBA, PFHpA, PFHxS, PFNA, and other PFAS, as deemed necessary, in drinking water, including regulatory approaches adopted by other states and the federal government, and (ii) may develop recommendations for specific maximum contaminant levels for PFOA, PFOS, PFBA, PFHpA, PFHxS, PFNA, and other PFAS, as deemed necessary, to be included in regulations of the Board of Health applicable to waterworks. The work group shall report its findings and recommendations to the Governor and the Chairmen of the House Committees on Agriculture, Chesapeake and Natural Resources and Health, Welfare and Institutions and the Senate Committees on Agriculture, Conservation and Natural Resources and Education and Health by December 1, 2021.”

Acts 2021, Sp. Sess. I, c. 215, cl. 1 provides: Ҥ 1.That the State Health Commissioner shall establish the Task Force on Maternal Health Data and Quality Measures (the Task Force) for the purpose of evaluating maternal health data collection processes to guide policies in the Commonwealth to improve maternal care, quality, and outcomes for all birthing people in the Commonwealth. The Task Force shall consist of three members of the Senate to be appointed by the Senate Committee on Rules and five members of the House of Delegates to be appointed by the Speaker of the House of Delegates, the Director of the Department of Medical Assistance Services or his designee, the Director of the Office of Health Equity or his designee, the Director of the Virginia Neonatal Perinatal Collaborative or his designee, the Chief Executive Officer of Virginia Health Information or his designee, and such other persons as the State Health Commissioner deems appropriate, including: (i) two individuals who are licensed obstetricians or gynecologists practicing in the Commonwealth; (ii) two individuals who are licensed nurse practitioners or registered nurses who work in the area of maternal health in the Commonwealth; (iii) two experts in postpartum care and depression in the Commonwealth, ensuring regional representation; (iv) at least one individual who is an expert in maternal health data collection processes; (v) four representatives from organizations or groups in the Commonwealth that specialize in serving vulnerable populations and improving equity and outcomes in maternal health; (vi) individuals who are licensed in neonatal and premature infant care and nutrition; (vii) a representative in maternal health from each of the health care payers in the Commonwealth; (viii) health care experts who serve underserved and minority populations in the Commonwealth; (ix) two members of the Virginia Hospital and Healthcare Association; (x) the Program Manager for the Maternal Mortality Review Team; (xi) two individuals who are certified nurse midwives and one certified midwife and one certified professional midwife; and (xii) any other stakeholders as may be appropriate. The Task Force shall:

“1. Monitor progress and evaluate all data from state-level stakeholders, including third-party payers, and all available electronic claims data to examine quality of care with regard to race, ethnicity, and other demographic and clinical outcome data;

“2. Monitor progress and evaluate all data from existing state-level sources mandated for maternal care, including new Healthcare Effectiveness Data and Information Set (HEDIS) measure updates to Prenatal and Postpartum Care and Postpartum Depression;

“3. Examine the barriers preventing the collection and reporting of timely maternal health data from all stakeholders, including payers;

“4. Examine current maternal health benefit requirements and determine the need for additional benefits to protect the health of birthing people;

“5. Evaluate the impact of Social Determinants of Health (SDoH) screening on pregnant women and its impact on outcomes data;

“6. Collect and analyze data one year after delivery; and

“7. Develop recommendations for standard quality metrics on maternal care.

“All agencies of the Commonwealth shall provide assistance to the Task Force upon request. The Task Force shall report its findings and conclusions to the Governor and General Assembly by December 1 of each year regarding its activities and shall conclude its work by December 1, 2023.”

The 2000 amendments.

The 2000 amendment by c. 168 inserted “or a recognized board in a primary care specialty as approved by the American Board of Medical Specialties” in the second sentence of subsection A.

§ 32.1-18. Executive officer of Board.

The Commissioner shall be the executive officer of the Board but shall not be a member thereof.

History. Code 1950, § 32-24; 1979, c. 711.

§ 32.1-19. Duties prescribed by Board.

  1. The Commissioner shall perform such duties as the Board may require, in addition to the duties required by law.
  2. The Commissioner shall, along with the Superintendent of Public Instruction, work to combat childhood obesity and other chronic health conditions that affect school-age children.
  3. The Commissioner shall ensure, in the licensure of health care facilities, that quality of care, patient safety, and patient privacy are the overriding goals of such licensure and related enforcement efforts.
  4. The Commissioner shall coordinate the Department’s emergency preparedness and response efforts.
  5. The Commissioner shall ensure that prevention of disease and protection of public health remain the Department’s overriding goals.
  6. The Commissioner shall designate a senior staff member of the Department, who shall be a licensed physician, to oversee minority health efforts of the Department.
  7. The Commissioner shall designate a senior official of the Department, who shall be a licensed physician or nurse practitioner, to coordinate all women’s health efforts in the Department including, but not limited to, the “Every Woman’s Life Program,” and other efforts to prevent, detect, and treat breast cancer, cervical cancer, and other diseases that primarily affect women.

History. Code 1950, § 32-27; 1979, c. 711; 2007, cc. 43, 55, 320, 343, 793, 797.

Editor’s note.

Acts 2015, c. 241, cl. 1 provides: “§ 1. The Director of the Department of Environmental Quality, the State Health Commissioner, and the State Coordinator of Emergency Management shall evaluate existing statutory and regulatory tools for ensuring that chemical storage in the Commonwealth is conducted in a manner that is protective of human health, public safety, drinking water resources, and the environment of the Commonwealth. This evaluation may include (i) an examination of Virginia’s existing programs to protect drinking water resources from contamination from chemical storage; (ii) identification of any existing gaps or inadequacy in drinking water protections related to chemical storage; (iii) identification of any existing gaps or inadequacy in chemical storage standards; (iv) any recommendations on chemical storage in the Commonwealth to address protection of human health, public safety, drinking water resources, the environment, and the economy of the Commonwealth; and (v) other policies and procedures that the Director of the Department of Environmental Quality, the State Health Commissioner, and the State Coordinator of Emergency Management determine may enhance the protection of Virginia’s drinking water resources and the safe storage of chemicals in Virginia.

“The Director of the Department of Environmental Quality, the State Health Commissioner, and the State Coordinator of Emergency Management shall report the findings of the evaluation to the State Water Commission, the Chairman of the Senate Committee on Agriculture, Conservation and Natural Resources, and the Chairman of the House Committee on Agriculture, Chesapeake and Natural Resources no later than December 1, 2016.

“For purposes of this section, ‘chemical storage’ means those chemicals identified by the Superfund Amendments and Reauthorization Act (SARA) and the Emergency Planning and Community Right-To-Know Act (EPCRA) that provides for hazardous chemical storage reporting requirements in Section 312 of the SARA and are stored in excess of 10,000 gallons.”

Acts 2015, c. 241, cl. 2 provides: “That the provisions of this act shall expire on January 1, 2017.”

Acts 2016, c. 73, cl. 1 provides: “That the Department of Health shall convene a work group of stakeholders, which shall include representatives of the Department of Health, the Department of Emergency Management, the State Anatomical Program, procurement organizations, and local search and rescue teams and organizations, to (i) identify and evaluate options for using human remains donated to search and rescue teams and organizations as anatomical gifts for the purpose of training dogs to find human remains during search and rescue operations and (ii) establish policies and procedures to govern the process of using anatomical gifts for such purpose. In conducting its work, the work group shall respect the sensitive nature of donation for donors and families of decedents and assure that all policies and procedures reflect and incorporate this understanding. The work group shall report its activities, findings, and recommendations to the General Assembly by December 1, 2016.”

Acts 2020, cc. 236 and 368, cl. 1 provides: “That the Department of Health shall determine the feasibility of establishing a Medical Excellence Zone Program (the Program) to allow citizens of the Commonwealth living in rural underserved areas to receive medical treatment via telemedicine services as defined in § 38.2-3418.16 of the Code of Virginia. The Department shall set out the criteria that would be required for a locality or group of localities in the Commonwealth to be eligible for the designation as a medical excellence zone. Such criteria shall include that any locality or group of localities eligible for the Program must demonstrate economic disadvantage of residents in the proposed medical excellence zone. The Department of Health shall report its findings to the Senate Committee on Education and Health and the House Committee on Health, Welfare and Institutions by November 1, 2020.”

The 2007 amendments.

The 2007 amendments by cc. 43 and 55 are identical, and inserted subsection A designation; and added subsection B.

The 2007 amendments by cc. 320 and 797 are identical, and added subsections B through D (now C through E).

The 2007 amendment by c. 343 added subsection B (now F).

The 2007 amendment by c. 793 added subsection B (now G).

Law Review.

For 2007 annual survey article, “Health Care Law,” see 42 U. Rich. L. Rev. 441 (2007).

§ 32.1-19.1. Repealed by Acts 2004, c. 683.

Editor’s note.

Former § 32.1-19.1 , which required reporting of telemedicine initiatives, was enacted by Acts 1999, c. 1031.

§ 32.1-20. Vested with authority of Board.

The Commissioner shall be vested with all the authority of the Board when it is not in session, subject to such rules and regulations as may be prescribed by the Board.

History. Code 1950, § 32-28; 1979, c. 711.

Cross references.

As to regulations for control of rabies, see §§ 32.1-48.1 through 32.1-48.4 .

CIRCUIT COURT OPINIONS

Executive order requiring face masks. —

Winery was not entitled to a temporary injunction from enforcement of an executive order requiring face coverings to be worn by individuals in certain settings, because the Governor of Virginia and the Virginia State Health Commissioner validly enacted the order to limit the spread of COVID-19 and expressly waived the application of the criminal prohibition on the wearing of a mask to conceal one’s identity. The winery could not demonstrate a likely success as to the merits, irreparable harm, the balance of equities, and the public interest. Strother v. Northam, 105 Va. Cir. 233, 2020 Va. Cir. LEXIS 106 (Fauquier County June 29, 2020).

OPINIONS OF THE ATTORNEY GENERAL

Enforcement of quarantine in health emergency. —

The Governor, State Health Commissioner and Board of Health have the authority in a public health emergency to issue orders or regulations to enforce a quarantine. See opinion of Attorney General to The Honorable John M. O’Bannon, III, Member, House of Delegates, 02-069, (11/13/02).

§ 32.1-21. Salary; teaching activities.

The Commissioner shall receive such salary as is fixed by law and shall devote his entire time to his official duties; provided, however, that the Board, with the approval of the Governor, may authorize the Commissioner to accept or undertake teaching activities.

History. Code 1950, § 32-26; 1979, c. 711.

§ 32.1-22. Personnel; Deputy Commissioner.

  1. The Commissioner may employ such personnel as are necessary for the proper performance of his duties as executive officer of the Board.
  2. The Commissioner, subject to the approval of the Board, may appoint a Deputy Commissioner of Health who shall meet the qualifications for appointment as Commissioner and who may exercise the powers and perform the duties of the Commissioner in the case of the absence or inability to act of the Commissioner.

History. Code 1950, § 32-31; 1979, c. 711.

§ 32.1-23. Publication of information.

  1. The Commissioner may provide for the publication and distribution of such information as may contribute to the preservation of the public health and the prevention of disease.
  2. The Commissioner shall establish, maintain and publicize a toll-free number to provide resource and referral information on pharmaceutical companies’ free and discount drug programs for persons who demonstrate financial hardship or otherwise meet program eligibility criteria. Such information shall include, but not be limited to, available drugs, participating pharmaceutical companies, and application procedures for each of the pharmaceutical companies and dispensing methods. Such information shall also include the locations of various Pharmacy Connect programs accessible by that person. The Commissioner may contract with one or more public or private organizations to administer this resource and referral program.

History. Code 1950, § 32-11; 1979, c. 711; 2001, c. 823; 2002, c. 896.

Editor’s note.

Acts 2001, c. 823, cl. 2 provides: “That the provisions of this act shall not become effective until such time as funds are appropriated or available for this purpose.” Funds have been made available to the Virginia Department of Health to effectuate the provision adding subsection B of § 32.1-23 .

The 2001 amendments.

The 2001 amendment by c. 823 added subsection B. For effective date, see the Editor’s note.

The 2002 amendments.

The 2002 amendment by c. 896, in subsection B, inserted “and discount” preceding “drug programs” and “or otherwise meet program eligibility criteria” in the first sentence; inserted “and” preceding “application procedures” in the second sentence; and added the third sentence.

§ 32.1-23.01. Information about and resources on palliative care.

The Department shall make information about and resources on palliative care available to the public, health care providers, and health care facilities on its website. Such information shall include information about the delivery of palliative care in the home and in primary, secondary, and tertiary environments; best practices for the delivery of palliative care; consumer education materials and referral information for palliative care; and continuing education opportunities for health care providers.

History. 2017, cc. 471, 746.

Editor’s note.

Acts 2017, cc. 471 and 746 were codified as this section at the direction of the Virginia Code Commission.

§ 32.1-23.1. Alternative delivery of certain information; Commissioners to develop single application form for pharmaceutical assistance programs and pharmaceutical discount purchasing cards; certain analysis of access to The Pharmacy Connection program.

  1. The Commissioner shall create links from the Virginia Department of Health’s website to the Virginia Department for Aging and Rehabilitative Services’ website and its affiliated sites pertaining to pharmaceutical assistance programs and pharmaceutical discount purchasing cards. The Commissioner for Aging and Rehabilitative Services shall cooperate with the Commissioner of Health by ensuring that such information is available on the Department for Aging and Rehabilitative Services’ website.
  2. The Commissioner shall ensure that all clinical sites administered by local health departments are provided with adequate information concerning the services of the Virginia Department for Aging and Rehabilitative Services, including, but not limited to, its toll-free telephone number and its website information on pharmaceutical assistance programs and pharmaceutical discount purchasing cards.
  3. The Commissioner of Health and the Commissioner for Aging and Rehabilitative Services shall coordinate the dissemination of information to the public regarding any pharmaceutical discount purchasing card programs while maintaining a neutral posture regarding such programs.In addition, with such funds as may be made available, the Commissioner of Health and the Commissioner for Aging and Rehabilitative Services shall disseminate information to the public concerning recent congressional actions relating to pharmaceutical benefits to be provided under the Medicare program and how such benefits may help senior citizens with the costs of pharmaceutical benefits.
  4. The Commissioner shall establish a toll-free telephone number, to be administered by the Virginia Department of Health, which shall provide recorded information concerning services available from the Department for Aging and Rehabilitative Services, the Virginia Association of Area Agencies on Aging, and other appropriate organizations for senior citizens.
  5. The Commissioner of Health and the Commissioner for Aging and Rehabilitative Services shall develop a strategy, in coordination with the Virginia Association of Area Agencies on Aging and other private and nonprofit organizations, for disseminating information to the public concerning the availability of pharmaceutical assistance programs and for training senior citizen volunteers to assist in completing applications for pharmaceutical assistance programs and pharmaceutical discount purchasing cards.
  6. In addition to the responsibilities set forth in subsections A through E, the Commissioner of Health and the Commissioner for Aging and Rehabilitative Services shall encourage pharmaceutical manufacturers to include application forms for pharmaceutical discount purchasing card programs on their respective websites in a format capable of being downloaded and printed by consumers. When practicable, the website maintained by the Department for Aging and Rehabilitative Services shall include direct links to such forms. Further, the Commissioner of Health and the Commissioner for Aging and Rehabilitative Services shall report to the Governor and General Assembly by October 30, 2004, on the feasibility of developing a single application form for Virginians to use to seek eligibility for the nearly 50 pharmaceutical assistance programs and pharmaceutical discount purchasing cards.In determining feasibility, the Commissioners shall obtain copies of the application forms used by such pharmaceutical assistance programs and pharmaceutical discount purchasing cards in Virginia, compile a list of the various information required to complete such application forms, identify common elements, and analyze the forms for readability and simplicity. Upon completion of this analysis, the Commissioners shall assess the feasibility of designing a single, concise application form that is logically formatted, written in clear and easily comprehensible language, and covers any and all data that may be required to obtain eligibility for any such pharmaceutical assistance program or pharmaceutical discount purchasing card.
  7. In order to maximize the benefits of the new Medicare pharmaceutical discount card program for Virginia’s senior citizens, the Commissioner of Health shall annually for two years commencing on July 1, 2005, (i) analyze access to The Pharmacy Connection program vis-a-vis the Medicare pharmaceutical discount card program, the $600 transitional coverage provided under federal law, and pharmaceutical companies’ offers of “wrap-around” coverage for low-income seniors; and (ii) recommend, to the Virginia Health Care Foundation, the Secretary of Health and Human Resources, and the Governor, appropriate localities for expansion of access to The Pharmacy Connection program in Virginia, particularly in areas having high concentrations of low-income seniors. The goal of the Commissioner’s analysis shall be to facilitate statewide implementation of The Pharmacy Connection program. The Commissioner shall complete this analysis by October 31 of each year and shall immediately request an estimate of the costs of the recommended expansion of such access from the Virginia Health Care Foundation to be forwarded to the Secretary and the Governor, for inclusion in the appropriation act, in so far as possible and appropriate to promote the health and safety of Virginia’s senior citizens.
  8. To assist them in completing the responsibilities set forth in subsections E, F, and G, the Commissioners may appoint an advisory task force of stakeholders.

History. 2003, cc. 661, 674; 2004, cc. 73, 318; 2005, c. 715; 2012, cc. 803, 835.

The 2004 amendments.

The 2004 amendment by c. 73 added the second paragraph in subsection C; and added subsection E.

The 2004 amendment by c. 318 added the second paragraph in subsection C; and added subsections E through G.

The 2005 amendments.

The 2005 amendment by c. 715 inserted present subsection G; redesignated former subsection G as subsection H; inserted “and G” in subsection H; and made a related change.

The 2012 amendments.

The 2012 amendments by cc. 803 and 835, cl. 59, are identical, and in subsections A through F, substituted references to the “Department for Aging and Rehabilitative Services” for “Department for the Aging” or similar language; and in subsection E, inserted “Association of.”

§ 32.1-23.2. Sexual assault nurse examiner information.

  1. The Department shall develop and make available on a website maintained by the Department information about the availability of certified sexual assault nurse examiners in the Commonwealth. Such information shall include the name of the hospital at which a certified sexual assault nurse examiner is employed; the location, including street address, of the hospital; and the contact information for the hospital. A link to the information shall be prominently displayed on the Department’s website, and such information shall be made available in a format that is easily accessible to and navigable by members of the public.
  2. Every hospital licensed by the Department shall quarterly report to the Department, in a form and by such date as shall be designated by the Department, the total number of certified sexual assault nurse practitioners employed by the hospital and the location, including street address, and contact information for each location at which such certified sexual assault nurse practitioner provides services.

History. 2020, c. 1088.

§ 32.1-23.3. Eligible Health Care Provider Reserve Directory.

  1. As used in this section, “eligible health care provider” means (i) any person licensed, registered, or certified by a health regulatory board within the Department of Health Professions whose license, registration, or certification is in good standing, or was in good standing within five years or less prior and only lapsed because such person retired; (ii) any emergency medical services provider certified or licensed by the Department of Health whose certification or licensing is in good standing, or was in good standing within five years or less prior and only lapsed because such person retired; and (iii) any fourth-year medical student who is engaged in a course of study approved by the Board of Medicine and is in good standing with the student’s medical school and is scheduled to graduate early or on time who registers for the Eligible Health Care Provider Reserve Directory (the Directory).
  2. The Department shall establish an Eligible Health Care Provider Reserve Directory to collect information regarding eligible health care providers in the Commonwealth who are qualified and who may be available to assist in the response to a public health emergency. The Directory shall include the name, contact information, and licensure, certification, or registration type and status of the eligible health care provider or, if the eligible health care provider is a fourth-year medical student, academic standing and anticipated graduation date of the fourth-year medical student. Every health regulatory board of the Department of Health Professions, the Office of Emergency Medical Services of the Department of Health, and each medical school located in the Commonwealth, upon the request of a fourth-year medical student, shall provide such information to the Department for inclusion in the Directory.
  3. During a declared public health emergency, the Governor may request and the Commissioner may provide information regarding eligible health care providers from the Directory. Information obtained from the Directory may be used to (i) identify eligible health care providers who may be able to assist in responding to the public health emergency and (ii) contact such eligible health care providers to request assistance in responding to the public health emergency. Information contained in the Directory shall not be used for any other purpose.

History. 2021, Sp. Sess. I, c. 530.

Effective date.

This section is effective April 7, 2021, by emergency.

§ 32.1-23.4. Prescription drug price transparency; civil penalty.

  1. As used in this section, “nonprofit data services organization” means the nonprofit organization with which the Commissioner has negotiated and entered into a contract or agreement for the compilation, storage, analysis, and evaluation of data submitted by health care providers pursuant to § 32.1-276.4 .
  2. The Department shall negotiate and enter into a contract or agreement with a nonprofit data services organization to annually collect, compile, and make available on its website publicly available information about prescription drug prices submitted by health carriers and pharmacy benefits managers pursuant to § 38.2-3407.15:6, wholesale distributors pursuant to § 54.1-3436.1, and manufacturers pursuant to § 54.1-3442.02. Such data and information shall be made available in aggregate in a form and manner that does not disclose or tend to disclose proprietary or confidential information of any health carrier, pharmacy benefits manager, wholesale distributor, or manufacturer.
  3. A health carrier, pharmacy benefits manager, wholesale distributor, or manufacturer that fails to report information required to be reported pursuant to this section or § 38.2-3407.15:6, 54.1-3436.1, or 54.1-3442.02, respectively, shall be subject to a civil penalty not to exceed $2,500 per day from the date on which such reporting is required, to be collected by the Commissioner and deposited into the Literary Fund. However, the Commissioner may reduce or waive a civil penalty imposed pursuant to this section if he determines that the violation was reasonable or resulting from good cause.
  4. The Department shall adopt regulations to implement the provisions of this section, which shall include (i) provisions related to the specification of prescription drugs for the purpose of data collection and procedures for auditing information provided by health carriers, pharmacy benefits managers, wholesale distributors, and manufacturers and (ii) a schedule of civil penalties for failure to report information required pursuant to this section or § 38.2-3407.15:6, 54.1-3436.1, or 54.1-3442.02, which shall be based on the level of severity of the violation.
  5. All information submitted by a health carrier or pharmacy benefits manager pursuant to § 38.2-3407.15:6, a wholesale distributor pursuant to § 54.1-3436.1, or a manufacturer pursuant to § 54.1-3442.02 shall be confidential and exempt from disclosure under the Virginia Freedom of Information Act (§ 2.2-3700 et seq.), except to the extent that such information is included in an aggregated form in the report required pursuant to this section.

History. 2021, Sp. Sess. I, c. 304.

The number of this section was assigned by the Virginia Code Commission, the number in the 2021, Sp. Sess. I, act having been § 32.1-23.3 .

Editor’s note.

Acts 2021, Sp. Sess. I, c. 304, cl. 2 provides: “That the provisions of the first enactment of this act shall become effective on January 1, 2022.”

Acts 2021, Sp. Sess. I, c. 304, cl. 3 provides: “That the Department of Health shall promulgate regulations to implement the provisions of this act to be effective within 280 days of its enactment.”

Article 4. Procedures; Inspections; Orders; Penalties; Representation by Attorney General.

§ 32.1-24. Applicability of Administrative Process Act.

The provisions of the Administrative Process Act (§ 2.2-4000 et seq.) shall govern the procedures for rendering all case decisions, as defined in § 2.2-4001, and issuing all orders and regulations under the provisions of this Code administered by the Board, the Commissioner or the Department unless exempt from the Administrative Process Act.

History. 1979, c. 711.

Law Review.

For annual survey of Virginia law article, “Administrative Law,” see 47 U. Rich. L. Rev. 7 (2012).

CASE NOTES

Agency may be exempted from entire promulgated process under certain circumstances. —

The General Assembly clearly evinced its intent that regulations must be promulgated; however, it specifically provided that an agency may be exempted from the entire promulgation process under certain circumstances. Johnston-Willis, Ltd. v. Kenley, 6 Va. App. 231, 369 S.E.2d 1, 4 Va. Law Rep. 2665, 1988 Va. App. LEXIS 46 (1988).

§ 32.1-25. Right of entry to inspect, etc.; warrants.

Upon presentation of appropriate credentials and upon consent of the owner or custodian, the Commissioner or his designee shall have the right to enter at any reasonable time onto any property to inspect, investigate, evaluate, conduct tests or take samples for testing as he reasonably deems necessary in order to determine compliance with the provisions of any law administered by the Board, Commissioner or Department, any regulations of the Board, any order of the Board or Commissioner or any conditions in a permit, license or certificate issued by the Board or Commissioner. This right of entry shall not apply to privileged communications pursuant to § 8.01-581.17 . If the Commissioner or his designee is denied entry, he may apply to an appropriate circuit court for an inspection warrant authorizing such investigation, evaluation, inspection, testing or taking of samples for testing as provided in Chapter 24 (§ 19.2-393 et seq.) of Title 19.2.

History. 1979, c. 711; 1998, c. 772.

§ 32.1-26. Orders; hearing and notice.

The Board is authorized to issue orders to require any person to comply with the provisions of any law administered by it, the Commissioner or the Department or any regulations promulgated by the Board or to comply with any case decision, as defined in § 2.2-4001, of the Board or Commissioner. Any such order shall be issued only after a hearing with at least thirty days’ notice to the affected person of the time, place and purpose thereof. Such order shall become effective not less than fifteen days after mailing a copy thereof by certified mail to the last known address of such person. The provisions of this section shall not affect the authority of the Board to issue separate orders and regulations to meet any emergency as provided in § 32.1-13 .

History. 1979, c. 711.

§ 32.1-27. Penalties, injunctions, civil penalties and charges for violations.

  1. Any person willfully violating or refusing, failing or neglecting to comply with any regulation or order of the Board or Commissioner or any provision of this title shall be guilty of a Class 1 misdemeanor unless a different penalty is specified.
  2. Any person violating or failing, neglecting, or refusing to obey any lawful regulation or order of the Board or Commissioner or any provision of this title may be compelled in a proceeding instituted in an appropriate court by the Board or Commissioner to obey such regulation, order or provision of this title and to comply therewith by injunction, mandamus, or other appropriate remedy or, pursuant to § 32.1-27.1 , imposition of a civil penalty or appointment of a receiver.
  3. Without limiting the remedies which may be obtained in subsection B of this section, any person violating or failing, neglecting or refusing to obey any injunction, mandamus or other remedy obtained pursuant to subsection B shall be subject, in the discretion of the court, to a civil penalty not to exceed  $25,000 for each violation, which shall be paid to the general fund, except that civil penalties for environmental pollution shall be paid into the state treasury and credited to the Water Supply Assistance Grant Fund created pursuant to § 32.1-171.2 . Each day of violation shall constitute a separate offense.
  4. With the consent of any person who has violated or failed, neglected or refused to obey any regulation or order of the Board or Commissioner or any provision of this title, the Board may provide, in an order issued by the Board against such person, for the payment of civil charges for past violations in specific sums, not to exceed the limits specified in § 32.1-27.1 and subsection C of this section. Such civil charges shall be instead of any appropriate civil penalty which could be imposed under § 32.1-27.1 and subsection C of this section. When civil charges are based upon environmental pollution, the civil charges shall be paid into the state treasury and credited to the Water Supply Assistance Grant Fund created pursuant to § 32.1-171.2 .

History. Code 1950, §§ 32-6.4, 32-15; 1975, c. 564; 1976, c. 623; 1979, c. 711; 1980, c. 378; 1989, c. 618; 1999, c. 786; 2003, cc. 753, 762.

Cross references.

For additional civil penalty relating specifically to the statewide cancer registry, see § 32.1-71.01 .

As to punishment for Class 1 misdemeanors, see § 18.2-11 .

Editor’s note.

Acts 2003, cc. 753 and 762, cl. 3, provide: “That the provisions concerning reinstatement in effect prior to July 1, 2003, shall apply to individuals who have had their licenses revoked by a health regulatory board prior to the effective date of this act. Every license revoked after the effective date of this act shall be subject to all of the provisions of this act.”

The 2003 amendments.

The 2003 amendments by cc. 753 and 762 are identical, and substituted “$25,000” for “$10,000” in the first sentence of subsection D.

Law Review.

For annual survey article discussing the state of health care law in Virginia, see 38 U. Rich. L. Rev. 137 (2003).

CASE NOTES

Subsection A prosecutions are not actions Attorney General required to undertake. —

The General Assembly has not authorized either the State Board of Health or the State Health Commissioner to prosecute criminal violations of subsection A. Because the board and commissioner are without this power, prosecutions under subsection A are not among the “actions and proceedings” that the Attorney General is required to undertake on behalf of the board and commissioner pursuant to Section 32.1-28 . Cooper v. Commonwealth, 1997 Va. App. LEXIS 784 (Va. Ct. App. Dec. 23, 1997).

OPINIONS OF THE ATTORNEY GENERAL

COVID-19 vaccines. The religious exemption for childhood vaccinations contained in subsection D of § 32.1-46 , remains applicable during an epidemic unless the epidemic is directly related to a required vaccine-preventable disease. Parents or guardians choosing to obtain a religious exemption would not be subject to the penalties prescribed in § 32.1-27 for failure to immunize their children with the vaccines outlined in § 32.1-46 . See opinion of Attorney General to The Honorable Nicholas J. Freitas, Member, Virginia House of Delegates, 20-057, 2021 Va. AG LEXIS (12/30/21).

§ 32.1-27.1. Additional civil penalty or appointment of a receiver.

  1. In addition to the remedies provided in § 32.1-27 , the civil penalties set forth in this section may be imposed by the circuit court for the city or county in which the facility is located as follows:
    1. A civil penalty for a Class I violation shall not exceed the lesser of $25 per licensed or certified bed or $1,000 for each day the facility is in violation, beginning on the date the facility was first notified of the violation.
    2. A civil penalty for a Class II violation shall not exceed the lesser of $5 per licensed or certified bed or $250 per day for each day the facility is in violation, beginning on the date the facility was first notified of the violation.In the event federal law or regulations require a civil penalty in excess of the amounts set forth above for Class I or Class II violations, then the lowest amounts required by such federal law or regulations shall become the maximum civil penalties under this section. The date of notification under this section shall be deemed to be the date of receipt by the facility of written notice of the alleged Class I or Class II violation, which notice shall include specifics of the violation charged and which notice shall be hand delivered or sent by overnight express mail or by registered or certified mail, return receipt requested.All civil penalties received pursuant to this subsection shall be paid into a special fund of the Department for the cost of implementation of this section, to be applied to the protection of the health or property of residents or patients of facilities that the Commissioner or the United States Secretary of Health and Human Services finds in violation, including payment for the costs for relocation of patients, maintenance of temporary management or receivership to operate a facility pending correction of a violation, and for reimbursement to residents or patients of lost personal funds.
  2. In addition to the remedies provided in § 32.1-27 and the civil penalties set forth in subsection A of this section, the Commissioner may petition the circuit court for the jurisdiction in which any nursing home or certified nursing facility as defined in § 32.1-123 is located for the appointment of a receiver in accordance with the provisions of this subsection whenever such nursing home or certified nursing facility shall (i) receive official notice from the Commissioner that its license has been or will be revoked or suspended, or that its Medicare or Medicaid certification has been or will be cancelled or revoked; or (ii) receive official notice from the United States Department of Health and Human Services or the Department of Medical Assistance Services that its provider agreement has been or will be revoked, cancelled, terminated or not renewed; or (iii) advise the Department of its intention to close or not to renew its license or Medicare or Medicaid provider agreement less than ninety days in advance; or (iv) operate at any time under conditions which present a major and continuing threat to the health, safety, security, rights or welfare of the patients, including the threat of imminent abandonment by the owner or operator, or a pattern of failure to meet ongoing financial obligations such as the inability to pay for essential food, pharmaceuticals, personnel, or required insurance; and (v) the Department is unable to make adequate and timely arrangements for relocating all patients who are receiving medical assistance under this chapter and Title XIX of the Social Security Act in order to ensure their continued safety and health care.Upon the filing of a petition for appointment of a receiver, the court shall hold a hearing within ten days, at which time the Department and the owner or operator of the facility may participate and present evidence. The court may grant the petition if it finds any one of the conditions identified in (i) through (iv) above to exist in combination with the condition identified in (v) and the court further finds that such conditions will not be remedied and that the patients will not be protected unless the petition is granted.No receivership established under this subsection shall continue in effect for more than 180 days without further order of the court, nor shall the receivership continue in effect following the revocation of the nursing home’s license or the termination of the certified nursing facility’s Medicare or Medicaid provider agreement, except to enforce any post-termination duties of the provider as required by the provisions of the Medicare or Medicaid provider agreement.The appointed receiver shall be a person licensed as nursing home administrator in the Commonwealth pursuant to Title 54.1 or, if not so licensed, shall employ and supervise a person so licensed to administer the day-to-day business of the nursing home or certified nursing facility.The receiver shall have (i) such powers and duties to manage the nursing home or certified nursing facility as the court may grant and direct, including but not limited to the duty to accomplish the orderly relocation of all patients and the right to refuse to admit new patients during the receivership, (ii) the power to receive, conserve, protect and disburse funds, including Medicare and Medicaid payments on behalf of the owner or operator of the nursing home or certified nursing facility, (iii) the power to execute and avoid executory contracts, (iv) the power to hire and discharge employees, and (v) the power to do all other acts, including the filing of such reports as the court may direct, subject to accounting to the court therefor and otherwise consistent with state and federal law, necessary to protect the patients from the threat or threats set forth in the original petitions, as well as such other threats arising thereafter or out of the same conditions.The court may grant injunctive relief as it deems appropriate to the Department or to its receiver either in conjunction with or subsequent to the granting of a petition for appointment of a receiver under this section.The court may terminate the receivership on the motion of the Department, the receiver, or the owner or operator, upon finding, after a hearing, that either (i) the conditions described in the petition have been substantially eliminated or remedied, or (ii) all patients in the nursing home or certified nursing facility have been relocated. Within thirty days after such termination, the receiver shall file a complete report of his activities with the court, including an accounting for all property of which he has taken possession and all funds collected.All costs of administration of a receivership hereunder shall be paid by the receiver out of reimbursement to the nursing home or certified nursing facility from Medicare, Medicaid and other patient care collections. The court, after terminating such receivership, shall enter appropriate orders to ensure such payments upon its approval of the receiver’s reports.A receiver appointed under this section shall be an officer of the court, shall not be liable for conditions at the nursing home or certified nursing facility which existed or originated prior to his appointment and shall not be personally liable, except for his own gross negligence and intentional acts which result in injuries to persons or damage to property at the nursing home or certified nursing facility during his receivership.The provisions of this subsection shall not be construed to relieve any owner, operator or other party of any duty imposed by law or of any civil or criminal liability incurred by reason of any act or omission of such owner, operator, or other party.

History. 1989, c. 618; 1996, cc. 788, 797.

Editor’s note.

For Title XIX of the Social Security Act, referred to above, see generally, 42 U.S.C.S. § 1396.

§ 32.1-28. When Attorney General to represent Board; special counsel.

The Attorney General shall represent the Board and Commissioner in all actions and proceedings for the enforcement of regulations or orders of the Board or Commissioner or the provisions of this title except actions or proceedings to which the Commonwealth or any of its agencies or institutions is a party defendant. Upon approval by the Governor, the Board is authorized to employ special counsel in such actions or proceedings.

History. 1979, c. 711.

CASE NOTES

Attorney General not required to undertake prosecutions under subsection A of § 32.1-27 . —

The General Assembly has not authorized either the State Board of Health or the State Health Commissioner to prosecute criminal violations of subsection A of § 32.1-27 . Because the board and commissioner are without this power, prosecutions under subsection A of § 32.1-27 are not among the “actions and proceedings” that the Attorney General is required to undertake on behalf of the board and commissioner pursuant to this section. Cooper v. Commonwealth, 1997 Va. App. LEXIS 784 (Va. Ct. App. Dec. 23, 1997).

§ 32.1-29. Employment of attorney to defend Board members, employee, etc.

If the Commissioner, any Board member or any officer or employee of the Department is arrested, indicted or otherwise prosecuted on any criminal charge arising out of any act committed in the discharge of his duties as such, the Commissioner may employ an attorney approved by the Attorney General to defend such person. The compensation for such attorney shall, subject to the approval of the Attorney General, be paid out of the funds appropriated for the administration of the Department.

History. 1979, c. 711.

Article 5. Local Health Departments and Directors.

§ 32.1-30. Local health departments.

Each county and city shall establish and maintain a local department of health which shall be headed by a local health director. Each such local health director shall be a physician licensed to practice medicine in this Commonwealth.

History. 1979, c. 711.

§ 32.1-31. Operation of local health department under contract with Board; local health services advisory boards; district health departments.

  1. The governing body of any county or city may enter into a contract with the Board for the operation of the local health department in such county or city.
  2. Each contract between a county or city and the Board shall specify the services to be provided in addition to the services required by law and shall contain such other provisions as the Board and the governing body of the county or city may agree upon.
  3. Whenever in the opinion of the State Health Commissioner the operation of any local health departments operated under contractual agreement with the Board may be accomplished in a more efficient and economical manner by the consolidation of such local health departments, the Commissioner may propose the creation of a district health department composed of such local health departments. Such district health department shall be created by resolution duly adopted by the governing body of each county and city to be included in such district.
    1. Attend the meetings of the board;
    2. Provide information concerning the operation of the local health department as requested by the board; and
    3. Participate with the board in the preparation and review of the comprehensive plan.
  4. Whenever a contract is entered into between a county or city and the Board as provided in this section, the Commissioner shall appoint the health director for the local health department. Whenever a district health department is formed as provided in this section, the Commissioner shall appoint a district health director who shall be deemed to be the local health director of each county and city in the district. Each health director appointed by the Commissioner shall be employed full time and shall be a state employee. Such health director shall perform such duties as may be prescribed in the contract or contracts and, with the approval of the Commissioner, any other health-related duties prescribed by local ordinances.
  5. Every employee of a local or district health department operated under a contract with the Board shall be a state employee; but if such person was an employee of such political subdivision and a member of the local retirement system on the effective date of any such contract and does not elect, in writing and within sixty days after the effective date of such contract, to become a member of the Commonwealth’s retirement system, such employee shall remain a member of the local retirement system.In any case in which the effective date of such contract of affiliation is prior to July 1, 1977, any member of the Virginia Retirement System who became a member by such election and who has withdrawn his contributions from the local retirement system may be credited with his creditable service in such local system upon payment to the Virginia Retirement System of an amount equal to five percent of his salary rate at the date of payment multiplied by the number of years of service to be credited. Such crediting of service shall be allowed only if such member files written request therefor with the Board prior to October 1, 1977.

C1. The governing body of each city or county may appoint a local health services advisory board for the local health department that serves it. If a local health department serves more than one city or county, the governing bodies of the cities or counties that it serves shall be entitled to jointly appoint such a board. The board shall include representatives of health care providers, recipients of health department services, state and local agencies with programs operated in conjunction with the health department, and the public at large. No more than two elected officials shall serve on any board.The number of members appointed to each local board shall not be less than ten nor more than fifteen.The local board shall actively participate with community representatives in the formulation of a comprehensive plan for the development, coordination and evaluation of local health services systems and shall make formal recommendations to the governing authority or authorities at least annually concerning the comprehensive plan and its implementation during the ensuing year.It shall be the responsibility of the local health director to:

History. Code 1950, §§ 32-40.1, 32-40.2; 1954, c. 508; 1966, c. 535; 1977, c. 620; 1979, c. 711; 1987, c. 206.

§ 32.1-32. Independent local health departments.

  1. The governing body of any county or city which does not enter into a contract with the Board for the operation of the local health department shall appoint the local health director and may appoint a local board of health to establish policies and to advise the local health department.
  2. Each local health director and local board of health appointed by a governing body as provided in this section shall enforce all health laws of this Commonwealth and regulations of the State Board of Health. In case any such local health director or local board fails to enforce any such laws or regulations, the Commissioner may apply to the appropriate circuit court for an injunction, writ of mandamus or other appropriate remedy to compel such local health director or local board to enforce such laws or regulations.

History. 1979, c. 711.

§ 32.1-33. When Board to perform duties of local board.

If any governing body of a county or city which does not enter into a contract with the Board for the operation of the local health department does not appoint a local health director or establish a local health department, the Board may exercise the authority and perform the duties of the local health director or local health department until a local health director is appointed or local health department is established by the governing body. The compensation of all officers and agents appointed by the Board under this section and the expenses incurred by them shall be a charge upon and shall be paid by such governing body.

History. Code 1950, § 32-40; 1979, c. 711.

§ 32.1-34. Scope of local health ordinances and regulations.

No county, city or town ordinance or regulation shall be less stringent in the protection of the public health than any applicable state law or any applicable regulations of the Board.

History. 1979, c. 711.

§ 32.1-34.1. Power to seek and receive donations.

Any health department operating under the provisions of this article is empowered to seek and accept grants, bequests or donations of money and resources from private persons in support of projects conducted under the auspices of the Virginia Health Care Foundation or other preventive or primary health care projects. A separate fund shall be established so as to segregate the amounts appropriated and the amounts bequeathed or contributed thereto. No portion of this fund derived from private contributions or bequests and designated for support of Virginia Health Care Foundation projects shall be used for any other purpose. Any money remaining in this fund at the end of the biennium shall not revert to the general fund but shall remain in the fund described herein. Interest earned on such moneys shall remain in this fund and be credited to it. Money bequeathed or contributed to this fund shall not be used to supplant local or state appropriations.

History. 1995, c. 498.

§ 32.1-34.2. Human trafficking hotline; posted notice required.

Each local department of health shall post notice of the existence of a human trafficking hotline to alert possible witnesses or victims of human trafficking to the availability of a means to report crimes or gain assistance. The notice required by this section shall (i) be posted in a place readily visible and accessible to the public and (ii) meet the requirements specified in subsection C of § 40.1-11.3 .

History. 2018, c. 571.

§ 32.1-34.3. Funding local health departments; cooperative local health budget; report.

  1. As used in this section:“Cooperative local health budget” means the total amount of state funds, local matching funds, and estimated self-generated local service revenues allocated to support a local department of health.“Estimated self-generated local service revenues” means the amount of funds projected to be received by a local department of health from fees charged to individuals or third-party payment sources for services and permits.“Local matching funds” means the amount of funds that a county or city shall be required to contribute to the cooperative local health budget for the local health department that serves that county or city.“Revenue generation capacity factor” means the result of a formula that (i) determines a county’s or city’s revenue capacity relative to the state revenue capacity, (ii) determines a county’s or city’s median household income relative to the statewide median household income, and (iii) adjusts the amount determined in clause (i) by the amount determined in clause (ii).
  2. Funding for local health departments shall consist of such state funds as may be allocated for the operation of the local health department together with local matching funds and estimated self-generated local service revenues, the total amount of which shall constitute the collective local health budget available to a local department of health.
  3. The amount of local matching funds a county or city shall be required to contribute to the cooperative local health budget shall be determined by the Department on the basis of the county’s or city’s revenue generation capacity factor. However, in no case shall the amount of local matching funds required be greater than 45 percent or less than 18 percent of the total amount of the cooperative local health budget for the local health department that serves the county or city, after deducting estimated self-generated local service revenues.
  4. The Department shall biennially review the local matching fund amount for each county and city in the Commonwealth and determine whether such amount should be revised as a result of changes to the county’s or city’s revenue generation capacity factor. The Department shall report the results of such review and any recommendations for changes to a county’s or city’s local matching fund amount to the Governor and the General Assembly.

History. 2021, Sp. Sess. I, c. 203.

Effective date.

This section is effective July 1, 2021.

Chapter 2. Disease Prevention and Control.

Article 1. Reporting of Diseases.

§ 32.1-35. List and reports of diseases and dangerous microbes and pathogens.

The Board shall promulgate from time to time a list of diseases, including diseases caused by exposure to any toxic substance as defined in § 32.1-239 and including diseases that may be caused by exposure to an agent or substance that has the potential for use as a weapon, that shall be required to be reported. The Board shall also promulgate from time to time a list of dangerous microbes and pathogens that shall be required to be reported by laboratories. The Board may classify such diseases, microbes and pathogens and prescribe the manner and time of such reporting.

History. Code 1950, § 32-16; 1979, c. 711; 2002, cc. 100, 768.

Cross references.

As for system for sharing protected health information for the coordination of prevention and control of disease, including exposure to a toxic substance, as required by the Board of Health pursuant to § 32.1-35 , see § 32.1-127.1:04 .

As to the list promulgated under this section being exempt from the Administrative Process Act, see § 2.2-4002.

Editor’s note.

Acts 2017, cc. 185 and 280, cl. 1 provides: “That the Board of Health shall adopt regulations to include neonatal abstinence syndrome on the list of diseases that shall be required to be reported in accordance with § 32.1-35 of the Code of Virginia.”

The 2002 amendments.

The 2002 amendment by c. 100 added “and dangerous microbes and pathogens” to the section catchline; substituted “that shall be required” for “which shall be required” in the first sentence, and inserted the present second sentence.

The 2002 amendment by c. 768 inserted “and including diseases that may be caused by exposure to an agent or substance that has the potential for use as a weapon” in the first sentence.

Law Review.

For article surveying developments in health care law in Virginia, see 37 U. Rich. L. Rev. 199 (2002).

Data related to COVID-19 pandemic. Dissemination of data related to the COVID-19 pandemic by the Virginia Department of Health is permitted, and in some cases required, as set forth in Virginia Code § 32.1-37.01 and Acts 2020 Spec. Sess. I, c. 13, provided the release of such information preserves patient and practitioner anonymity pursuant to § 32.1-41 . See opinion of Attorney General to The Honorable Emmett W. Hanger, Jr. Member, Senate of Virginia, 21-032, (2/26/21).

§ 32.1-35.1. Information on health care-associated infections.

Health care facilities that are required to report information about health care-associated infections to the Centers for Disease Control and Prevention’s National Healthcare Safety Network (NHSN) pursuant to the Centers for Medicare and Medicaid Services reporting requirements shall release such data to the Board through the NHSN.

History. 2005, c. 444; 2019, c. 293.

Editor’s note.

Acts 2005, c. 444, cl. 2 provides: “That the provisions of this act shall become effective on July 1, 2008.”

The 2019 amendments.

The 2019 amendment by c. 293 rewrote the section, which read “Acute care hospitals shall report information about nosocomial infections to the Centers for Disease Control and Prevention’s National Healthcare Safety Network. Such hospitals shall release their infection data to the Board of Health. The specific infections to be reported, the hospitals required to report, and patient populations to be included shall be prescribed by Board regulation. Such hospital infection rate data may be released to the public by the Board, upon request.”

Data related to COVID-19 pandemic. Dissemination of data related to the COVID-19 pandemic by the Virginia Department of Health is permitted, and in some cases required, as set forth in Virginia Code § 32.1-37.01 and Acts 2020 Spec. Sess. I, c. 13, provided the release of such information preserves patient and practitioner anonymity pursuant to § 32.1-41 . See opinion of Attorney General to The Honorable Emmett W. Hanger, Jr. Member, Senate of Virginia, 21-032, (2/26/21).

§ 32.1-36. Reports by physicians and laboratory directors.

  1. Every physician practicing in this Commonwealth who shall diagnose or reasonably suspect that any patient of his has any disease required by the Board to be reported and every director of any laboratory doing business in this Commonwealth that performs any test whose results indicate the presence of any such disease shall make a report within such time and in such manner as may be prescribed by regulations of the Board. Any such report involving a disease that such physician or laboratory director has reason to believe may be caused by exposure to an agent or substance that has been or may be used as a weapon shall be reported directly to the Commissioner or his designee using an emergency response system maintained by the Department and operated twenty-four hours a day.
  2. Any physician who diagnoses a venereal disease in a child twelve years of age or under shall, in addition to the requirements of subsection A hereof, report the matter, in accordance with the provisions of § 63.2-1509, unless the physician reasonably believes that the infection was acquired congenitally or by a means other than sexual abuse.
  3. Any physician practicing in this Commonwealth shall report to the local health department the identity of any patient of his who has tested positive for exposure to human immunodeficiency virus as demonstrated by such test or tests as are approved by the Board for this purpose. However, there is no duty on the part of the physician to notify any third party other than the local health department of such test result, and a cause of action shall not arise from any failure to notify any other third party.
  4. Upon investigation by the local health department of a patient reported pursuant to subsection A, the Commissioner may, to the extent permitted by law, disclose the patient’s identity and disease to the patient’s employer if the Commissioner determines that (i) the patient’s employment responsibilities require contact with the public and (ii) the nature of the patient’s disease and nature of contact with the public constitutes a threat to the public health.The patient’s identity and disease state shall be confidential as provided in §§ 32.1-36.1 and 32.1-41 . Any unauthorized disclosure of reports made pursuant to this section shall be subject to the penalties of § 32.1-27 .
  5. Physicians and laboratory directors may voluntarily report additional information at the request of the Department of Health for special surveillance or other epidemiological studies.
    1. Every laboratory located in this Commonwealth shall file a written report with the Department of its inventory of dangerous microbes and pathogens on an annual basis. The laboratory shall supplement this report upon any change in such inventory as prescribed by the Board or immediately if any microbes or pathogens cannot be accounted for within twenty-four hours. F. 1. Every laboratory located in this Commonwealth shall file a written report with the Department of its inventory of dangerous microbes and pathogens on an annual basis. The laboratory shall supplement this report upon any change in such inventory as prescribed by the Board or immediately if any microbes or pathogens cannot be accounted for within twenty-four hours.
    2. Except as provided in this subsection, a report submitted pursuant to this subsection shall be confidential and shall not be a public record pursuant to the Freedom of Information Act (§ 2.2-3700 et seq.). The Department shall cooperate with and may share information submitted to it pursuant to this subsection with the United States Centers for Disease Control and Prevention, and state and federal law-enforcement agencies in any investigation involving the release, theft or loss of a dangerous microbe or pathogen required to be reported under this subsection.
    3. Any unauthorized disclosure of reports made pursuant to this subsection shall be subject to the penalties of § 32.1-27 .

History. Code 1950, § 32-48; 1976, c. 628; 1979, c. 711; 1981, c. 282; 1988, c. 130; 1989, c. 613; 1995, c. 534; 1997, c. 271; 2002, cc. 100, 768.

Cross references.

As to testing of convicted prostitutes and injection drug users for infection with human immunodeficiency viruses and hepatitis C, see § 18.2-346.1 .

The 2002 amendments.

The 2002 amendment by c. 100 substituted “that performs” for “which performs” in the first sentence in subsection A; and added subsection F.

The 2002 amendment by c. 768 added the second sentence in subsection A.

Law Review.

For note on AIDS in the public schools, see 29 Wm. & Mary L. Rev. 881 (1988).

For survey on evidence in Virginia for 1989, see 23 U. Rich. L. Rev. 647 (1989).

Michie’s Jurisprudence.

For related discussion, see 9A M.J. Health and Sanitation, § 1.; Dissemination of data related to the COVID-19 pandemic by the Virginia Department of Health is permitted, and in some cases required, as set forth in Virginia Code § 32.1-37.01 and Acts 2020 Spec. Sess. I, c. 13, provided the release of such information preserves patient and practitioner anonymity pursuant to § 32.1-41 . See opinion of Attorney General to The Honorable Emmett W. Hanger, Jr. Member, Senate of Virginia, 21-032, (2/26/21).

§ 32.1-36.1. Confidentiality of test for human immunodeficiency virus; civil penalty; individual action for damages or penalty.

  1. The results of every test to determine infection with human immunodeficiency virus shall be confidential. Such information may be released only to persons or entities permitted or authorized to obtain protected health information under any applicable federal or state law.
  2. In any action brought under this section, if the court finds that a person has willfully or through gross negligence made an unauthorized disclosure in violation of this section, the Attorney General, any attorney for the Commonwealth, or any attorney for the county, city or town in which the violation occurred may recover for the Literary Fund, upon petition to the court, a civil penalty of not more than $5,000 per violation.
  3. Any person who is the subject of an unauthorized disclosure pursuant to this section shall be entitled to initiate an action to recover actual damages, if any, or $100, whichever is greater. In addition, such person may also be awarded reasonable attorney’s fees and court costs.
  4. This section shall not be deemed to create any duty on the part of any person who receives such test results, where none exists otherwise, to release the results to a person listed herein as authorized to receive them.

History. 1989, c. 613; 1990, c. 777; 1993, cc. 97, 664; 2017, c. 178.

Cross references.

As to medical records of juvenile in secure facility, see § 16.1-248.3 . As to testing of prostitutes and injection drug users, see § 18.2-346.1 .

The 2017 amendments.

The 2017 amendment by c. 178 rewrote subsection A, removing the list of specific persons or entities authorized to obtain protected information.

Law Review.

For survey on evidence in Virginia for 1989, see 23 U. Rich. L. Rev. 647 (1989).

Michie’s Jurisprudence.

For related discussion, see 9A M.J. Health and Sanitation, § 1.

§ 32.1-37. Reports by persons other than physicians.

  1. The person in charge of any medical care facility shall immediately make or cause to be made a report of a disease required by the Board to be reported when such information is available to that person and that person has reason to believe that no physician has reported such disease as provided in § 32.1-36 . Such report shall be made to the local health director according to the provisions of the Board.
  2. The person in charge of any residential or day program, service or facility licensed or operated by any agency of the Commonwealth, school or summer camp as defined in § 35.1-1 shall immediately make or cause to be made a report of an outbreak of disease as defined by the Board. Such report shall be made by rapid means to the local health director or to the Commissioner.
  3. The person in charge of any medical care facility, residential or day program, service or facility licensed or operated by any agency of the Commonwealth, school, or summer camp as defined in § 35.1-1 may also voluntarily report additional information, including individual cases of communicable diseases, at the request of the Department of Health for special surveillance or other epidemiological studies.

History. Code 1950, § 32-49; 1979, c. 711; 1997, c. 271; 2008, cc. 367, 412.

The 2008 amendments.

The 2008 amendments by cc. 367 and 412 are identical, and in subsection A, deleted “school or summer camp as defined in § 35.1-1 ” near the beginning, deleted “by telephone or in person” and substituted “according to the provisions of the Board” for “or to the Commissioner” in the last sentence; rewrote subsection B; and added subsection C.

Data related to COVID-19 pandemic. Dissemination of data related to the COVID-19 pandemic by the Virginia Department of Health is permitted, and in some cases required, as set forth in Virginia Code § 32.1-37.01 and Acts 2020 Spec. Sess. I, c. 13, provided the release of such information preserves patient and practitioner anonymity pursuant to § 32.1-41 . See opinion of Attorney General to The Honorable Emmett W. Hanger, Jr. Member, Senate of Virginia, 21-032, (2/26/21).

§ 32.1-37.01. Posting of information about cases of communicable disease of public health threat.

  1. As used in this section:“Reporting entity” means a medical care facility, residential or day program, service or facility licensed or operated by any agency of the Commonwealth, school, or summer camp required to report an outbreak of a communicable disease pursuant to § 32.1-37 .
  2. Upon declaration of an emergency by the Governor pursuant to § 44-146.17 in response to a communicable disease of public health threat, the Department shall make information regarding outbreaks of such communicable disease of public health threat reported pursuant to § 32.1-37 available to the public on a website maintained by the Department, provided the release of such information does not violate the provisions of § 32.1-41 . Such information shall include (i) the name of the reporting entity at which an outbreak of such communicable disease of public health threat has been reported; (ii) the number of confirmed cases of such communicable disease of public health threat reported by such reporting entity; and (iii) the number of deaths resulting from such communicable disease of public health threat reported by such reporting entity.

History. 2020, Sp. Sess. I, cc. 12, 24.

Effective date.

This section is effective October 21, 2020, by emergency.

Data related to COVID-19 pandemic. Dissemination of data related to the COVID-19 pandemic by the Virginia Department of Health is permitted, and in some cases required, as set forth in Virginia Code § 32.1-37.01 and Acts 2020 Spec. Sess. I, c. 13, provided the release of such information preserves patient and practitioner anonymity pursuant to § 32.1-41 . See opinion of Attorney General to The Honorable Emmett W. Hanger, Jr. Member, Senate of Virginia, 21-032, (2/26/21).

§ 32.1-37.1. Report of diseases infecting dead human bodies.

Upon transferring custody of any dead body to any person practicing funeral services or his agent, any hospital, nursing facility or nursing home, assisted living facility, or correctional facility shall, at the time of transfer, notify the person practicing funeral services or his agent if the individual was known to have had immediately prior to death an infectious disease which may be transmitted through exposure to any bodily fluids.

Any facility or members of its staff specified in this section shall not be liable for injury resulting from ordinary negligence in failing to identify, as herein prescribed, a dead body of a person known to have had an infectious disease immediately prior to death.

The Board of Health shall determine the infectious diseases for which notification is required pursuant to this section.

History. 1988, c. 836; 1993, cc. 957, 993.

Editor’s note.

Acts 1993, cc. 957 and 993, which amended this section, provide in cl. 4: “That the provisions of this act shall be implemented to the extent funds are appropriated therefor.” See Acts 1993, c. 994, item 381 B, which relates to the extent funds have been appropriated for Acts 1993, cc. 957 and 993.

Michie’s Jurisprudence.

For related discussion, see 5C M.J. Dead Bodies, § 1.

§ 32.1-37.2. Consent for testing for human immunodeficiency virus; condition on disclosure of test results; counseling required; exceptions.

  1. Prior to performing any test to determine infection with human immunodeficiency virus, a medical care provider shall inform the patient that the test is planned, provide information about the test, and advise the patient that he has the right to decline the test. If a patient declines the test, the medical care provider shall note that fact in the patient’s medical file.
  2. Every person who has a confirmed positive test result for human immunodeficiency virus shall be afforded the opportunity for individual face-to-face disclosure of the test results and appropriate counseling. Appropriate counseling shall include, but not be limited to, the meaning of the test results, the need for additional testing, the etiology, prevention and effects of acquired immunodeficiency syndrome, the availability of appropriate health care, mental health care and social services, the need to notify any person who may have been exposed to the virus and the availability of assistance through the Department of Health in notifying such individuals.
  3. Opportunity for face-to-face disclosure of the test results and appropriate counseling shall not be required when the tests are conducted by blood collection agencies. However, all blood collection agencies shall notify the Board of Health of any positive tests.
  4. In the case of a person applying for accident and sickness or life insurance who is the subject of a test to determine infection for human immunodeficiency virus, insurers’ practices including an explanation of the meaning of the test, the manner of obtaining consent, the method of disclosure of the test results and any counseling requirements shall be as set forth in the regulations of the State Corporation Commission.

History. 1989, c. 613; 2008, c. 641.

The 2008 amendments.

The 2008 amendment by c. 641 rewrote subsection A; in subsection B, substituted “has a confirmed positive test result” for “is the subject of any test to determine infection”; and in subsection D, deleted “informed” following “manner of obtaining.”

Law Review.

For survey on evidence in Virginia for 1989, see 23 U. Rich. L. Rev. 647 (1989).

Research References.

Virginia Forms (Matthew Bender). No. 6-758 Petition to Test for Blood-Borne Pathogens.

Michie’s Jurisprudence.

For related discussion, see 9A M.J. Health and Sanitation, § 1.

§ 32.1-38. Immunity from liability.

Any person making a report or disclosure required or authorized by this chapter, including any voluntary reports submitted at the request of the Department of Health for special surveillance or other epidemiological studies, shall be immune from civil liability or criminal penalty connected therewith unless such person acted with gross negligence or malicious intent. Further, except for such reporting requirements as may be established in this chapter or by any regulation promulgated pursuant thereto, there shall be no duty on the part of any blood collection agency or tissue bank to notify any other person of any reported test results, and a cause of action shall not arise from any failure by such entities to notify others. Neither the Commissioner nor any local health director shall disclose to the public the name of any person reported or the name of any person making a report pursuant to this chapter. No person making a report required or authorized by this chapter shall be responsible for recognizing agents or suspecting the presence of any conditions beyond the competence of a reasonable person practicing his profession; however, any such person shall be immune as provided in this section when making reports in good faith without gross negligence and within the usual scope of his practice.

History. Code 1950, § 32-48; 1976, c. 628; 1979, c. 711; 1988, c. 130; 1990, c. 777; 1997, c. 271; 2002, c. 768.

The 2002 amendments.

The 2002 amendment by c. 768 added the last sentence.

CIRCUIT COURT OPINIONS

Statutory civil and criminal immunity applicable to physicians and medical care facilities was limited to claims arising from the act of reporting health-related confidential information to authorized state and local entities, not to acts of malfeasance that may have been described in the reports themselves. Alipio v. Fairridge OBGYN Assocs., P.C., 93 Va. Cir. 244, 2016 Va. Cir. LEXIS 83 (Fairfax County Apr. 28, 2016).

Data related to COVID-19 pandemic. Dissemination of data related to the COVID-19 pandemic by the Virginia Department of Health is permitted, and in some cases required, as set forth in Virginia Code § 32.1-37.01 and Acts 2020 Spec. Sess. I, c. 13, provided the release of such information preserves patient and practitioner anonymity pursuant to § 32.1-41 . See opinion of Attorney General to The Honorable Emmett W. Hanger, Jr. Member, Senate of Virginia, 21-032, (2/26/21).

Article 2. Investigation of Diseases.

§ 32.1-39. Surveillance and investigation.

  1. The Board shall provide for the surveillance of and investigation into all preventable diseases and epidemics in this Commonwealth and into the means for the prevention of such diseases and epidemics. Surveillance and investigation may include contact tracing in accordance with the regulations of the Board. When any outbreak or unusual occurrence of a preventable disease shall be identified through reports required pursuant to Article 1 (§ 32.1-35 et seq.) of this chapter, the Commissioner or his designee shall investigate the disease in cooperation with the local health director or directors in the area of the disease. If in the judgment of the Commissioner the resources of the locality are insufficient to provide for adequate investigation, he may assume direct responsibility and exclusive control of the investigation, applying such resources as he may have at his disposal. The Board may issue emergency regulations and orders to accomplish the investigation.
  2. When an investigation of any outbreak or occurrence of a disease identified through reports required pursuant to Article 1 (§ 32.1-35 et seq.) of this chapter indicates the reasonable possibility that the outbreak or occurrence was the result of exposure to an agent or substance used as a weapon, the Commissioner or his designee shall immediately report such finding to the Department of State Police for investigation. Reports, records, materials or other data reported to the Department of State Police pursuant to this section shall remain confidential and shall not be subject to the provisions of the Virginia Freedom of Information Act (§ 2.2-3700 et seq.). The Department of State Police, and any local law enforcement official, may release all or part of any report made or other information obtained pursuant to this section (i) where the release of such report or information may assist in the prevention of imminent harm to public health or safety, or (ii) where the release of such report or information, with patient identifying information removed, may be useful for education of the public on health, safety or homeland defense issues. Reports required by this section shall be maintained in the central repository established by the Department of State Police pursuant to the provisions of § 52-8.5 . The Department of State Police shall immediately transmit the report to the local chief of police or sheriff with law-enforcement responsibilities both where the patient resides and where he sought the medical treatment that resulted in the report. In addition, the Department of State Police may transmit the report to federal and military law-enforcement authorities. The Department of State Police and local law-enforcement authorities shall immediately determine and implement the appropriate law-enforcement response to such reports, in accordance with their jurisdiction.

History. Code 1950, §§ 32-10, 32-42; 1979, c. 711; 1989, c. 613; 2002, c. 768.

Cross references.

As to testing of convicted prostitutes and injection drug users for infection with human immunodeficiency viruses and hepatitis C, see § 18.2-346.1 .

The 2002 amendments.

The 2002 amendment by c. 768 added the subsection A designation and added subsection B.

Law Review.

For survey on evidence in Virginia for 1989, see 23 U. Rich. L. Rev. 647 (1989).

Michie’s Jurisprudence.

For related discussion, see 9A M.J. Health and Sanitation, § 1.

§ 32.1-40. Authority of Commissioner to examine medical records.

Every practitioner of the healing arts and every person in charge of any medical care facility shall permit the Commissioner or his designee to examine and review any medical records which he has in his possession or to which he has access upon request of the Commissioner or his designee in the course of investigation, research or studies of diseases or deaths of public health importance. No such practitioner or person shall be liable in any action at law for permitting such examination and review.

History. Code 1950, § 32-10.1; 1960, c. 507; 1979, c. 711.

Cross references.

As to hospitals and clinics making records concerning patients having malignant tumors or cancers available to the State Health Commissioner, see §§ 32.1-70 and 32.1-71 .

Data related to COVID-19 pandemic. Dissemination of data related to the COVID-19 pandemic by the Virginia Department of Health is permitted, and in some cases required, as set forth in Virginia Code § 32.1-37.01 and Acts 2020 Spec. Sess. I, c. 13, provided the release of such information preserves patient and practitioner anonymity pursuant to § 32.1-41 . See opinion of Attorney General to The Honorable Emmett W. Hanger, Jr. Member, Senate of Virginia, 21-032, (2/26/21).

§ 32.1-41. Anonymity of patients and practitioners to be preserved in use of medical records.

The Commissioner or his designee shall preserve the anonymity of each patient and practitioner of the healing arts whose records are examined pursuant to § 32.1-40 except that the Commissioner, in his sole discretion, may divulge the identity of such patients and practitioners if pertinent to an investigation, research or study. Any person to whom such identities are divulged shall preserve their anonymity.

History. Code 1950, §§ 32-10.2, 32-10.3; 1960, c. 507; 1979, c. 711.

Law Review.

For 2000 survey of Virginia health law, see 34 U. Rich. L. Rev. 853 (2000).

Data related to COVID-19 pandemic. Dissemination of data related to the COVID-19 pandemic by the Virginia Department of Health is permitted, and in some cases required, as set forth in Virginia Code § 32.1-37.01 and Acts 2020 Spec. Sess. I, c. 13, provided the release of such information preserves patient and practitioner anonymity pursuant to § 32.1-41 . See opinion of Attorney General to The Honorable Emmett W. Hanger, Jr. Member, Senate of Virginia, 21-032, (2/26/21).

Article 3. Disease Control Measures.

§ 32.1-42. Emergency rules and regulations.

The Board of Health may promulgate regulations and orders to meet any emergency or to prevent a potential emergency caused by a disease dangerous to public health, including, but not limited to, procedures specifically responding to any disease listed pursuant to § 32.1-35 that is determined to be caused by an agent or substance used as a weapon or any communicable disease of public health threat that is involved in an order of quarantine or an order of isolation pursuant to Article 3.02 (§ 32.1-48.05 et seq.) of this chapter.

History. 1979, c. 711; 2002, c. 768; 2004, cc. 773, 1021.

The 2002 amendments.

The 2002 amendment by c. 768 inserted “including procedures specifically responding to any disease listed pursuant to § 32.1-35 that is determined to be caused by an agent or substance used as a weapon.”

The 2004 amendments.

The 2004 amendments by c. 773, effective April 12, 2004, and c. 1021, effective April 21, 2004, are identical, and inserted “of Health,” “but not limited to” and added the language beginning “or any communicable disease” at the end.

CIRCUIT COURT OPINIONS

Executive order requiring face masks. —

Winery was not entitled to a temporary injunction from enforcement of an executive order requiring face coverings to be worn by individuals in certain settings, because the Governor of Virginia and the Virginia State Health Commissioner validly enacted the order to limit the spread of COVID-19 and expressly waived the application of the criminal prohibition on the wearing of a mask to conceal one’s identity. The winery could not demonstrate a likely success as to the merits, irreparable harm, the balance of equities, and the public interest. Strother v. Northam, 105 Va. Cir. 233, 2020 Va. Cir. LEXIS 106 (Fauquier County June 29, 2020).

§ 32.1-42.1. Administration and dispensing of necessary drugs and devices during a declared disaster or state of emergency.

The Commissioner, pursuant to § 54.1-3408, may authorize persons who are not authorized by law to administer or dispense drugs or devices to administer or dispense all necessary drugs or devices in accordance with protocols established by the Commissioner when (i) the Governor has declared a disaster or a state of emergency or the United States Secretary of Health and Human Services has issued a declaration of an actual or potential bioterrorism incident or other actual or potential public health emergency; (ii) it is necessary to permit the provision of needed drugs or devices; and (iii) such persons have received the training necessary to safely administer or dispense the needed drugs or devices. Such persons shall administer or dispense all drugs or devices under the direction, control and supervision of the Commissioner. For purposes of this section, “administer,” “device,” “dispense,” and “drug” shall have the same meaning as provided in § 54.1-3401. The Commissioner shall develop protocols, in consultation with the Department of Health Professions, that address the required training of such persons and procedures for such persons to use in administering or dispensing drugs or devices.

History. 2003, c. 794; 2007, cc. 699, 783.

Effective date.

This section became effective March 20, 2003.

The 2007 amendments.

The 2007 amendments by cc. 699 and 783 are identical, and deleted “caused by an act of terrorism” following “state of emergency.”

Law Review.

For 2007 annual survey article, “Health Care Law,” see 42 U. Rich. L. Rev. 441 (2007).

OPINIONS OF THE ATTORNEY GENERAL

Flu vaccinations. —

Emergency medical service providers may only administer vaccinations for the H1N1 flu or the seasonal flu when designated and authorized by the State Health Commissioner in accordance with § 32.1-42.1 and subsection P of § 54.1-3408. See opinion of Attorney General to The Honorable H. Morgan Griffith, Member, House of Delegates, 09-076, (10/23/09).

§ 32.1-42.2. Declared emergency; priority for personal protective equipment and immunization; funeral service licensees and funeral service establishment employees.

In any case in which the Board or the Commissioner has made an emergency order or regulation to meet an emergency, not provided for by general regulations, for the purpose of suppressing nuisances dangerous to the public health or a communicable, contagious, or infectious disease or other danger to the public life and health, funeral service licensees and any person employed by a funeral service establishment shall be included in any group afforded priority with regard to (i) access to personal protective equipment and (ii) administration of any vaccination against such communicable disease of public health threat during such emergency.

History. 2021, Sp. Sess. I, c. 216.

Effective date.

This section is effective March 18, 2021, by emergency.

§ 32.1-43. Authority of State Health Commissioner to require quarantine, etc.

The State Health Commissioner shall have the authority to require quarantine, isolation, immunization, decontamination, or treatment of any individual or group of individuals when he determines any such measure to be necessary to control the spread of any disease of public health importance and the authority to issue orders of isolation pursuant to Article 3.01 (§ 32.1-48.01 et seq.) of this chapter and orders of quarantine and orders of isolation under exceptional circumstances involving any communicable disease of public health threat pursuant to Article 3.02 (§ 32.1-48.05 et seq.) of this chapter.

History. Code 1950, § 32-8; 1979, c. 711; 1990, c. 958; 2004, cc. 773, 1021.

Cross references.

As to quarantine of prisoners in state correctional institutions and jails, see §§ 53.1-34 and 53.1-133.

The 2004 amendments.

The 2004 amendments by cc. 773, effective April 12, 2004, and 1021, effective April 21, 2004, are identical, and inserted “State Health,” substituted “have the authority” for “have authority,” “isolation, immunization, decontamination” for “vaccination,” inserted “or group of individuals,” and added the language beginning “and the authority to issue orders” at the end.

CIRCUIT COURT OPINIONS

Executive order requiring face masks. —

Winery was not entitled to a temporary injunction from enforcement of an executive order requiring face coverings to be worn by individuals in certain settings, because the Governor of Virginia and the Virginia State Health Commissioner validly enacted the order to limit the spread of COVID-19 and expressly waived the application of the criminal prohibition on the wearing of a mask to conceal one’s identity. The winery could not demonstrate a likely success as to the merits, irreparable harm, the balance of equities, and the public interest. Strother v. Northam, 105 Va. Cir. 233, 2020 Va. Cir. LEXIS 106 (Fauquier County June 29, 2020).

OPINIONS OF THE ATTORNEY GENERAL

Enforcement of quarantine in health emergency. —

The Governor, State Health Commissioner and Board of Health have the authority in a public health emergency to issue orders or regulations to enforce a quarantine. See opinion of Attorney General to The Honorable John M. O’Bannon, III, Member, House of Delegates, 02-069, (11/13/02).

§ 32.1-44. Isolated or quarantined persons.

The provisions of this chapter shall be construed to allow any isolated or quarantined person to choose his own treatment, whenever practicable and in the best interest of the health and safety of the isolated or quarantined person and the public; however, the conditions of any order of isolation issued pursuant to Article 3.01 (§ 32.1-48.01 et seq.) of this chapter involving a communicable disease of public health significance and any order of quarantine or order of isolation involving any communicable disease of public health threat pursuant to Article 3.02 (§ 32.1-48.05 et seq.) of this chapter shall remain in effect until the person or persons subject to such order of quarantine or order of isolation shall no longer constitute a threat to other persons.

History. Code 1950, § 32-13; 1979, c. 711; 1990, c. 958; 2004, cc. 773, 1021.

The 2004 amendments.

The 2004 amendments by cc. 773, effective April 12, 2004, and 1021, effective April 21, 2004, are identical, and rewrote the section.

§ 32.1-45. Expense of treatment.

Except as specifically provided by law, the provisions of this chapter shall not be construed as relieving any individual of the expense, if any, of any treatment, including any person who is subject to an order of isolation issued pursuant to Article 3.01 (§ 32.1-48.01 et seq.) of this chapter or an order of quarantine or an order of isolation issued pursuant to Article 3.02 (§ 32.1-48.05 et seq.) of this chapter.

History. Code 1950, § 32-56; 1973, c. 401; 1979, c. 711; 1990, c. 958; 2004, cc. 773, 1021.

The 2004 amendments.

The 2004 amendments by cc. 773, effective April 12, 2004, and 1021, effective April 21, 2004, are identical, and added the language beginning “including any person who is subject” at the end.

§ 32.1-45.1. Deemed consent to testing and release of test results related to infection with human immunodeficiency virus or hepatitis B or C viruses.

  1. Whenever any health care provider, or any person employed by or under the direction and control of a health care provider, is directly exposed to body fluids of a patient in a manner that may, according to the then current guidelines of the Centers for Disease Control and Prevention, transmit human immunodeficiency virus or hepatitis B or C viruses, the patient whose body fluids were involved in the exposure shall be deemed to have consented to testing for infection with human immunodeficiency virus or hepatitis B or C viruses. Such patient shall also be deemed to have consented to the release of such test results to the person who was exposed. In other than emergency situations, it shall be the responsibility of the health care provider to inform patients of this provision prior to providing them with health care services which create a risk of such exposure.
  2. Whenever any patient is directly exposed to body fluids of a health care provider, or of any person employed by or under the direction and control of a health care provider, in a manner that may, according to the then current guidelines of the Centers for Disease Control and Prevention, transmit human immunodeficiency virus or hepatitis B or C viruses, the person whose body fluids were involved in the exposure shall be deemed to have consented to testing for infection with human immunodeficiency virus or hepatitis B or C viruses. Such person shall also be deemed to have consented to the release of such test results to the patient who was exposed.
  3. For the purposes of this section, “health care provider” means any person, facility or agency licensed or certified to provide care or treatment by the Department of Health, Department of Behavioral Health and Developmental Services, Department of Rehabilitative Services, or the Department of Social Services, any person licensed or certified by a health regulatory board within the Department of Health Professions except for the Boards of Funeral Directors and Embalmers and Veterinary Medicine or any personal care agency contracting with the Department of Medical Assistance Services.
  4. “Health care provider,” as defined in subsection C, shall be deemed to include any person who renders emergency care or assistance, without compensation and in good faith, at the scene of an accident, fire, or any life-threatening emergency, or while en route therefrom to any hospital, medical clinic or doctor’s office during the period while rendering such emergency care or assistance. The Department of Health shall provide appropriate counseling and opportunity for face-to-face disclosure of any test results to any such person.
  5. Whenever any law-enforcement officer, salaried or volunteer firefighter, or salaried or volunteer emergency medical services provider is directly exposed to body fluids of a person in a manner that may, according to the then current guidelines of the Centers for Disease Control and Prevention, transmit human immunodeficiency virus or hepatitis B or C viruses, the person whose body fluids were involved in the exposure shall be deemed to have consented to testing for infection with human immunodeficiency virus or hepatitis B or C viruses. Such person shall also be deemed to have consented to the release of such test results to the person who was exposed. If the person whose body fluids were involved in the exposure is deceased, the decedent’s next of kin shall be deemed to have consented to testing of the decedent’s blood for infection with human immunodeficiency virus or hepatitis B or C viruses and release of such test results to the person who was exposed.
  6. Whenever a person is directly exposed to the body fluids of a law-enforcement officer, salaried or volunteer firefighter, or salaried or volunteer emergency medical services provider in a manner that may, according to the then current guidelines of the Centers for Disease Control and Prevention, transmit human immunodeficiency virus or hepatitis B or C viruses, the person whose body fluids were involved in the exposure shall be deemed to have consented to testing for infection with human immunodeficiency virus or hepatitis B or C viruses. The law-enforcement officer, salaried or volunteer firefighter, or salaried or volunteer emergency medical services provider shall also be deemed to have consented to the release of such test results to the person who was exposed.
  7. For the purposes of this section, “law-enforcement officer” means a person who is both (i) engaged in his public duty at the time of such exposure and (ii) employed by any sheriff’s office, any adult or youth correctional facility, or any state or local law-enforcement agency, or any agency or department under the direction and control of the Commonwealth or any local governing body that employs persons who have law-enforcement authority.
  8. Whenever any school board employee is directly exposed to body fluids of any person in a manner that may, according to the then current guidelines of the Centers for Disease Control and Prevention, transmit human immunodeficiency virus or hepatitis B or C viruses, the person whose body fluids were involved in the exposure shall be deemed to have consented to testing for infection with human immunodeficiency virus or hepatitis B or C viruses. Such person shall also be deemed to have consented to the release of such test results to the school board employee who was exposed.
  9. Whenever any person is directly exposed to the body fluids of a school board employee in a manner that may, according to the then current guidelines of the Centers for Disease Control and Prevention, transmit human immunodeficiency virus or hepatitis B or C viruses, the school board employee whose body fluids were involved in the exposure shall be deemed to have consented to testing for infection with human immunodeficiency virus or hepatitis B or C viruses. The school board employee shall also be deemed to have consented to the release of such test results to the person.
  10. For the purposes of this section, “school board employee” means a person who is both (i) acting in the course of employment at the time of such exposure and (ii) employed by any local school board in the Commonwealth.
  11. For purposes of this section, if the person whose blood specimen is sought for testing is a minor, consent for obtaining such specimen shall be obtained from the parent, guardian, or person standing in loco parentis of such minor prior to initiating such testing. If the parent or guardian or person standing in loco parentis withholds such consent, or is not reasonably available, the person potentially exposed to the human immunodeficiency virus or hepatitis B or C viruses, or the employer of such person, may petition the juvenile and domestic relations district court in the county or city where the minor resides or resided, or, in the case of a nonresident, the county or city where the health care provider, law-enforcement agency or school board has its principal office or, in the case of a health care provider rendering emergency care pursuant to subsection D, the county or city where the exposure occurred, for an order requiring the minor to provide a blood specimen or to submit to testing and to disclose the test results in accordance with this section.
  12. Except as provided in subsection K, if the person whose blood specimen is sought for testing refuses to provide such specimen, any person identified by this section who was potentially exposed to the human immunodeficiency virus or the hepatitis B or C viruses in the manner described by this section, or the employer of such person, may petition, on a form to be provided by the Office of the Executive Secretary of the Supreme Court of Virginia, the general district court of the county or city in which the person whose specimen is sought resides or resided, or, in the case of a nonresident, the county or city where the health care provider, law-enforcement agency or school board has its principal office or, in the case of a health care provider rendering emergency care pursuant to subsection D, the county or city where the exposure occurred, for an order requiring the person to provide a blood specimen or to submit to testing and to disclose the test results in accordance with this section. A hearing on such a petition shall be given precedence on the docket so as to be heard by the court within 48 hours of the filing of the petition, or, if the court is closed during such time period, such petition shall be heard on the next day that the court is in session. A copy of the petition, which shall specify the date and location of the hearing, shall be provided to the person whose specimen is sought. At any hearing before the court, the person whose specimen is sought or his counsel may appear. The court may be advised by the Commissioner or his designee prior to entering any testing order. If the general district court determines that there is probable cause to believe that a person identified by this section has been exposed in the manner prescribed by this section, the court shall issue an order requiring the person whose bodily fluids were involved in the exposure to provide a blood specimen or to submit to testing and to disclose the test results in accordance with this section. If a testing order is issued, both the petitioner and the person from whom the blood specimen is sought shall receive counseling and opportunity for face-to-face disclosure of any test results by a licensed practitioner or trained counselor.
  13. Any person who is subject to a testing order may appeal the order of the general district court to the circuit court of the same jurisdiction within 10 days of receiving notice of the order. Any hearing conducted pursuant to this subsection shall be held in camera as soon as practicable. The record shall be sealed. The order of the circuit court shall be final and nonappealable.
  14. No specimen obtained pursuant to this section shall be tested for any purpose other than for the purpose provided for in this section, nor shall the specimen or the results of any testing pursuant to this section be used for any purpose in any criminal matter or investigation. Any violation of this subsection shall constitute reversible error in any criminal case in which the specimen or results were used.

History. 1989, c. 613; 1993, c. 315; 1994, cc. 230, 236; 1997, c. 869; 2003, c. 1; 2008, cc. 191, 339; 2009, cc. 96, 478, 552, 813, 840; 2015, cc. 51, 502, 503; 2019, c. 27; 2020, c. 502.

Cross references.

As to guidelines for school attendance for children infected with human immunodeficiency virus and notification of school employees, see § 22.1-271.3.

The 2003 amendments.

The 2003 amendment by c. 1 redesignated former subsection H as present subsection L, and added present subsections H through K; and in the first sentence of present subsection L, added “Except as provided in subsection K” at the beginning, and substituted “provider, law-enforcement agency or school board” for “provider or law-enforcement agency.”

The 2008 amendments.

The 2008 amendments by cc. 191 and 339 are identical, and rewrote subsection K and inserted “or, in the case of a health . . . where the exposure occurred” in the first sentence of subsection L.

The 2009 amendments.

The 2009 amendments by cc. 96, 478 and 552 are identical, and substituted “that” for “which” and inserted “and Prevention” following “Centers for Disease Control” throughout the section; in subsections E and in two places in F, inserted “salaried or volunteer firefighter, paramedic or emergency medical technician” following “law-enforcement officer” and substituted “person” for “law-enforcement officer”; deleted the former last sentence in subsection E, which read: In other than emergency situations, it shall be the responsibility of the law-enforcement officer to inform the person of this provision prior to the contact which creates a risk of such exposure”; and added “who was exposed” at the end of the last sentence in subsection F.

The 2009 amendments by cc. 813 and 840 are identical, and substituted “Behavioral Health and Developmental” for “Mental Health, Mental Retardation and Substance Abuse” in subsection C.

The 2015 amendments.

The 2015 amendment by c. 51 added the third sentence in subsection H.

The 2015 amendments by cc. 502 and 503 are identical and throughout the section, substituted “salaried or volunteer emergency medical services provider” for “paramedic or emergency medical technician”; and deleted “of this section” following “subsection C” in subsection D.

The 2019 amendments.

The 2019 amendment by c. 27, in subsection H, deleted the last two sentences, which read: “If the person whose blood specimen is sought for testing is a minor, the parent, guardian, or person standing in loco parentis of such minor shall be notified prior to initiating such testing. In other than emergency situations, it shall be the responsibility of the school board employee to inform the person of this provision prior to the contact that creates a risk of such exposure”; in subsection K, deleted “and that minor refuses to provide such specimen” preceding “consent for obtaining”; in subsection L, substituted “identified by this section who was potentially exposed to the human immunodeficiency virus or the hepatitis B or C viruses in the manner described by this section, or the employer of such person, may petition, on a form to be provided by the Office of the Executive Secretary of the Supreme Court of Virginia” for “potentially exposed to the human immunodeficiency virus or hepatitis B or C viruses, or the employer of such person may petition” in the first sentence and added the second, third and sixth sentences; and added subsections M and N.

The 2020 amendments.

The 2020 amendment by c. 502 added the last sentence of subsection E.

Law Review.

For survey on evidence in Virginia for 1989, see 23 U. Rich. L. Rev. 647 (1989).

For annual survey article, “Health Care Law,” see 44 U. Rich. L. Rev. 473 (2009).

Research References.

Virginia Forms (Matthew Bender). No. 6-759 Petition to Require Blood Test. No. 9-4403 Petition to Require Blood Test.

Michie’s Jurisprudence.

For related discussion, see 9A M.J. Health and Sanitation, § 1.

CASE NOTES

Blood test sample was admissible and not subject to exclusionary rule. —

With regard to defendant’s conviction for assault and battery of a law-enforcement officer and his contention on appeal that the trial court erred by ordering him to submit to a blood test since the officer alleged that defendant transferred blood onto him via a handshake, the court held that the exclusionary rule did not apply, therefore, the trial court did not err by denying defendant’s motion to suppress the blood evidence. Application of the exclusionary rule was not the proper remedy since the defendant made no allegation of police misconduct relevant to the appeal. Harman v. Commonwealth, 2009 Va. App. LEXIS 74 (Va. Ct. App. Feb. 17, 2009).

§ 32.1-45.2. Public safety employees; testing for blood-borne pathogens; procedure available for certain citizens; definitions.

  1. If, in the course of employment, an employee of a public safety agency is involved in a possible exposure prone incident, the employee shall immediately, or as soon thereafter as practicable, notify the agency of the incident in accordance with the agency’s procedures for reporting workplace accidents.
  2. If, after reviewing the facts of the possible exposure prone incident with the employee and after medical consultation, the agency concludes that it is reasonable to believe that an exposure prone incident may have occurred, and the person whose body fluids were involved in the exposure prone incident is deceased, the agency shall (i) immediately contact the custodian of the remains and request that a specimen of blood be preserved for testing and (ii) contact the next of kin of the decedent and inform the next of kin that the specimen will be tested for hepatitis B or C viruses and human immunodeficiency virus and the results of such testing released to the person who was exposed.
  3. If, after reviewing the facts of the possible exposure prone incident with the employee and after medical consultation, the agency concludes that it is reasonable to believe that an exposure prone incident may have occurred and the person whose body fluids were involved in the exposure prone incident is alive, the agency shall request the person whose body fluids were involved to submit to testing for hepatitis B or C virus and human immunodeficiency virus as provided in § 32.1-37.2 and to authorize disclosure of the test results.
  4. If a person is involved in a possible exposure prone incident involving the body fluids of an employee of a public safety agency, the person may request the agency to review the facts of the possible exposure prone incident for purposes of obtaining the employee’s consent to test for hepatitis B or C virus and human immunodeficiency virus as provided in § 32.1-37.2 and to authorize disclosure of the test results. If, after reviewing the facts and after medical consultation, the agency concludes it is reasonable to believe an exposure prone incident involving the person and the employee may have occurred, (i) the agency shall request the employee whose body fluids were involved to give consent to submit to testing for hepatitis B or C virus and human immunodeficiency virus and to authorize disclosure of the test results or (ii) if the employee is deceased, the agency shall request the custodian of the remains to preserve a specimen of blood and shall request the decedent’s next of kin to provide consent, as provided in § 32.1-37.2 , to such testing and to authorize disclosure of the test results.
  5. If consent is refused under subsection C, the public safety agency or the employee may petition the general district court of the city or county in which the person resides or resided, or in the case of a nonresident, the city or county of the public safety agency’s principal office, to determine whether an exposure prone incident has occurred and to order testing and disclosure of the test results.If consent is refused under subsection D, the person involved in the possible exposure prone incident may petition the general district court of the city or county of the public safety agency’s principal office to determine whether an exposure prone incident has occurred and to order testing and disclosure of the test results.
  6. If the court finds by a preponderance of the evidence that an exposure prone incident has occurred, it shall order testing for hepatitis B or C virus and human immunodeficiency virus and disclosure of the test results. The court shall be advised by the Commissioner or his designee in making this finding. The hearing shall be held in camera as soon as practicable after the petition is filed. The record shall be sealed.
  7. A party may appeal an order of the general district court to the circuit court of the same jurisdiction within ten days from the date of the order. Any such appeal shall be de novo, in camera, and shall be heard as soon as possible by the circuit court. The circuit court shall be advised by the Commissioner or his designee. The record shall be sealed. The order of the circuit court shall be final and nonappealable.
  8. Disclosure of any test results provided by this section shall be made to the district health director of the jurisdiction in which the petition was brought or the district in which the person or employee was tested. The district health director or his designee shall inform the parties of the test results and counsel them in accordance with subsection B of § 32.1-37.2 .
  9. The results of the tests shall be confidential as provided in § 32.1-36.1 .
  10. No person known or suspected to be positive for infection with hepatitis B or C virus or human immunodeficiency virus shall be refused services for that reason by any public safety agency personnel.
  11. For the purpose of this section and for no other purpose, the term “employee” shall include: (i) any person providing assistance to a person employed by a public safety agency who is directly affected by a possible exposure prone incident as a result of the specific crime or specific circumstances involved in the assistance and (ii) any victim of or witness to a crime who is directly affected by a possible exposure prone incident as a result of the specific crime.
  12. This section shall not be deemed to create any duty on the part of any person where none exists otherwise, and a cause of action shall not arise from any failure to request consent or to consent to testing under this section. The remedies available under this section shall be exclusive.
  13. For the purposes of this section:“Exposure prone incident” means a direct exposure to body fluids of another person in a manner which may, according to the then current guidelines of the Centers for Disease Control and Prevention, transmit hepatitis B or C virus or human immunodeficiency virus and which occurred during the commission of a criminal act, during the performance of emergency procedures, care or assistance, or in the course of public safety or law-enforcement duties.“Public safety agency” means any sheriff’s office; any adult or youth correctional, law-enforcement, or fire safety organization; the Department of Forensic Science; or any agency or department that employs persons who have law-enforcement authority and which is under the direction and control of the Commonwealth or any local governing body.

History. 1992, c. 711; 1994, c. 146; 1997, cc. 722, 804; 2008, c. 641; 2014, c. 275; 2020, c. 502.

Editor’s note.

Acts 2020, c. 362, cl. 1 provides: “That the Secretaries of Health and Human Resources and Public Safety and Homeland Security (the Secretaries) shall establish a work group to develop a plan to improve the Commonwealth’s response to exposure-prone incidents involving employees of law-enforcement agencies, volunteers and employees of fire departments and companies, and volunteers and employees of emergency medical services agencies and other appropriate entities. The work group shall include (i) the Superintendent of State Police, the Commissioner of Health, the Executive Director of the Department of Fire Programs, and the Director of the Department of General Services, or their designees; (ii) representatives of local law-enforcement agencies, fire departments and companies, and emergency medical services agencies; (iii) representatives of organizations representing law-enforcement officers, salaried and volunteer firefighters, and salaried and volunteer emergency medical services providers; and (iv) such other stakeholders as the Secretaries shall deem appropriate.

“In conducting its work, the work group shall:

“1. Develop a plan for the establishment of an entity to assist with the management of exposure-prone incidents involving employees of law-enforcement agencies, volunteers and employees of fire departments and companies, and volunteers and employees of emergency medical services agencies and other appropriate entities. Such assistance shall include assistance with (i) the process of confirming whether a volunteer or employee has been involved in an exposure-prone incident and, as a result of such exposure-prone incident, has been exposed to the body fluids of another person in a manner that may, according to the then-current guidelines of the Centers for Disease Control and Prevention, transmit human immunodeficiency virus or hepatitis B or C viruses; (ii) coordinating the process by which specimens of a person’s body fluids are collected and tested to determine whether the person was infected with human immunodeficiency virus or hepatitis B or C viruses; and (iii) coordinating the care and treatment of a volunteer or employee for whom post-exposure prophylactic treatment or other treatment is required. Such entity shall also be charged with (a) providing training and education to designated infection control officers and others on topics related to preventing exposure-prone incidents, identifying and responding to exposure-prone incidents, and treatment and follow-up care for volunteers and employees involved in exposure-prone incidents and (b) collecting data from law-enforcement agencies, fire departments and companies, emergency medical services agencies, and others regarding the number of requests for assistance in determining whether an exposure-prone incident has occurred, the number of confirmed exposure-prone incidents, the number of cases involving an exposure-prone incident in which a specimen was collected and tested and whether the person from whom such specimen was collected was deceased or living, the number of cases in which post-exposure prophylaxis was required, and, in cases in which post-exposure prophylaxis was required, the duration and cost of such treatment. In developing the plan, the work group shall evaluate and provide recommendations related to the appropriate state agency or body to operate or provide oversight of the entity, the structure and organization of the entity, the specific powers and duties of the entity, and the cost to establish the entity. The work group shall also provide specific recommendations for legislative, regulatory, or budgetary actions necessary to establish the entity; and

“2. Study and develop recommendations related to developing the ability to perform postmortem testing for infection with human immunodeficiency virus or hepatitis B or C viruses through the Division of Consolidated Laboratory Services. Such study shall include analysis of (i) the steps necessary to implement postmortem testing for infection with human immunodeficiency virus or hepatitis B or C viruses using a screening assay that is licensed for such purpose by the U.S. Food and Drug Administration, (ii) the potential cost to the Commonwealth of developing the ability to perform postmortem testing for infection with human immunodeficiency virus or hepatitis B or C viruses using a screening assay that is licensed for such purpose by the U.S. Food and Drug Administration through the Division of Consolidated Laboratory Services, and (iii) any potential savings to the Commonwealth resulting from implementing postmortem testing for infection with human immunodeficiency virus or hepatitis B or C viruses using a screening assay that is licensed for such purpose by the U.S. Food and Drug Administration through the Division of Consolidated Laboratory Services.

“The work group shall report its findings, conclusions, and recommendations to the Governor and the General Assembly by December 1, 2020.”

The 2008 amendments.

The 2008 amendment by c. 641, in subsection B, deleted “give informed consent, as provided in § 32.1-37.2 , to” following “fluids were involved to” and inserted “as provided in § 32.1-37.2 ” in clause (i), deleted “provide informed” following “next of kin to” in clause (ii); in subsection C, substituted “employee’s consent” for “employee’s informed consent, as provided in § 32.1-37.2,” inserted “as provided in § 32.1-37.2,” deleted “informed” following “involved to give” and “kin to provide”; and in subsection D, deleted “informed” preceding “consent is refused” near the beginning of both paragraphs.

The 2014 amendments.

The 2014 amendment by c. 275, in subsection L, in the definition of “Public safety agency” deleted “and” following “sheriff’s office” and inserted “the Department of Forensic Science.”

The 2020 amendments.

The 2020 amendment by c. 502, rewrote former subsection B as current subsections B and C, with former subsection B having read, “If, after reviewing the facts of the possible exposure prone incident with the employee and after medical consultation, the agency concludes that it is reasonable to believe that an exposure prone incident may have occurred, (i) the agency shall request the person whose body fluids were involved to submit to testing for hepatitis B or C virus and human immunodeficiency virus as provided in § 32.1-37.2 and to authorize disclosure of the test results or (ii) if the person is deceased, the agency shall request the custodian of the remains to preserve a specimen of blood and shall request the decedent’s next of kin to consent, as provided in § 32.1-37.2 , to such testing and to authorize disclosure of the test results”; redesignated subsections C through L as subsections D through M; updated internal references; in subsection H, substituted “subsection C” for “subsection B” in the second sentence; and in subsection M, deleted “the following terms shall apply” at the end of the introductory language.

Research References.

Virginia Forms (Matthew Bender). No. 6-758 Petition to Test for Blood-Borne Pathogens.

§ 32.1-45.3. Repealed by Acts 2015, c. 301, cl. 1.

Editor’s note.

Former § 32.1-45.3 , pertaining to required testing of gamete donors and the establishment of testing protocol by the Board, derived from 1995, c. 519.

§ 32.1-45.4. Comprehensive harm reduction programs.

  1. The Commissioner or his designee may authorize the director of a local department of health, or any other organization that promotes scientifically proven methods of mitigating health risks associated with drug use and other high-risk behaviors, to establish and operate local or regional comprehensive harm reduction programs that include the provision of sterile hypodermic needles and syringes and disposal of used hypodermic needles and syringes. The objectives of such programs shall be to (i) reduce the spread of HIV, viral hepatitis, and other blood-borne diseases in the Commonwealth; (ii) reduce the transmission of blood-borne diseases through needlestick injuries to law-enforcement and other emergency personnel; (iii) provide information to individuals who inject drugs regarding addiction recovery treatment services and encourage such individuals to participate in evidence-based substance use treatment programs; (iv) prevent opioid overdose deaths through distribution of naloxone or other opioid antagonists; and (v) incentivize the safe return and disposal of hypodermic needles and syringes. Comprehensive harm reduction programs established by the Commissioner pursuant to this section shall be operated by local health departments or affiliated organizations with which the Department contracts.
  2. A comprehensive harm reduction program established pursuant to this section shall include (i) the disposal of used hypodermic needles and syringes; (ii) the provision of hypodermic needles and syringes and other injection supplies at no cost and in quantities sufficient to ensure that needles, hypodermic syringes, and other injection supplies are not shared or reused; (iii) reasonable and adequate security of program sites, equipment, and personnel; (iv) the provision of educational materials concerning (a) substance use disorder prevention, (b) overdose prevention, (c) the prevention of transmission of HIV, viral hepatitis, and other blood-borne diseases, (d) available mental health treatment options, including referrals for mental health treatment, and (e) available substance use disorder treatment options, which shall include options for medication assisted treatment of substance use disorder, including referrals for treatment; (v) access to overdose prevention kits that contain naloxone or other opioid antagonist approved by the U.S. Food and Drug Administration for opioid overdose reversal; (vi) individual harm reduction counseling, including individual consultations regarding appropriate mental health or substance use disorder treatment; and (vii) verification that a hypodermic needle or syringe or other injection supplies were obtained from a comprehensive harm reduction program established pursuant to this section.
  3. The director of a local health department or representative of any other organization authorized to establish a comprehensive harm reduction program pursuant to this section shall notify the Department, in a manner and form specified by the Department, of his intent to establish a comprehensive harm reduction program. Such notice shall include (i) the name of the local health department or organization that will operate the comprehensive harm reduction program, (ii) a description of the geographic area and population to be served by the comprehensive harm reduction program, and (iii) a description of the methods by which the comprehensive harm reduction program will comply with the requirements of subsection B, including a written security plan that provides for the reasonable and adequate security of the comprehensive harm reduction program site, equipment, and personnel.
  4. Written security plans required pursuant to clause (iii) of subsection C shall be filed annually with each local law-enforcement agency serving the jurisdiction in which the comprehensive harm reduction program is located for their consideration.
  5. The provisions of §§ 18.2-250 , 18.2-265.3 , and 54.1-3466 shall not apply to a person who dispenses or distributes hypodermic needles and syringes as part of a comprehensive harm reduction program established pursuant to this section.
  6. The provisions of §§ 18.2-250 , 18.2-265.3 , and 54.1-3466 relating to possession of a controlled substance, drug paraphernalia, and controlled paraphernalia shall not apply to any person acting on behalf or for the benefit of a comprehensive harm reduction program when such possession is incidental to the provision of services as part of a comprehensive harm reduction program established pursuant to this section.
  7. The provisions of §§ 18.2-250 , 18.2-265.3 , and 54.1-3466 relating to possession of a controlled substance, drug paraphernalia, and controlled paraphernalia shall not apply to any person receiving services from a comprehensive harm reduction program established pursuant to this section, when (i) such controlled substance is a residual amount contained in a used needle, used hypodermic syringe, or used injection supplies obtained from or returned to a comprehensive harm reduction program established pursuant to this section, or (ii) such paraphernalia is obtained from a comprehensive harm reduction program established pursuant to this section, as evidenced by the verification required pursuant to clause (vii) of subsection B.
  8. Every local health department or other organization operating a comprehensive harm reduction program pursuant to this section shall report annually by July 1 to the Department regarding, for the previous calendar year, (i) the number of individuals served by the comprehensive harm reduction program; (ii) the number of needles, hypodermic syringes, and other injection supplies distributed by the comprehensive harm reduction program; (iii) the number of overdose prevention kits described in clause (v) of subsection B distributed by the comprehensive harm reduction program; and (iv) the number and type of referrals to mental health or substance use disorder treatment services provided to individuals served by the comprehensive harm reduction program, including the number of individuals referred to programs that provide naloxone or other opioid antagonists approved by the U.S. Food and Drug Administration for opioid overdose reversal.
  9. Except in the case of a comprehensive harm reduction program established by the Commissioner, no state funds shall be used to purchase needles or hypodermic syringes distributed by a comprehensive harm reduction program established pursuant to this section.

History. 2017, c. 183; 2020, c. 839.

Editor’s note.

Acts 2017, c. 183, cl. 2 provides: “That the Virginia Department of Health shall submit, to the Governor and to the General Assembly, a progress report concerning any program established pursuant to this act by October 1, 2018, and a report evaluating the effectiveness of any program established pursuant to this act by October 1, 2019.”

Acts 2017, c. 183, cl. 3, which would have made this section expire July 1, 2020, was repealed by Acts 2020, cc. 212 and 303, cl. 1, and Acts 2020, c. 839, cl. 2.

The 2020 amendments.

The 2020 amendment by c. 839 rewrote the section.

§ 32.1-46. Immunization of patients against certain diseases.

  1. The parent, guardian or person standing in loco parentis of each child within this Commonwealth shall cause such child to be immunized in accordance with the Immunization Schedule developed and published by the Centers for Disease Control and Prevention (CDC), Advisory Committee on Immunization Practices (ACIP), the American Academy of Pediatrics (AAP), and the American Academy of Family Physicians (AAFP). The required immunizations for attendance at a public or private elementary, middle or secondary school, child care center, nursery school, family day care home, or developmental center shall be those set forth in the State Board of Health Regulations for the Immunization of School Children. The Board’s regulations shall at a minimum require:
    1. A minimum of three properly spaced doses of hepatitis B vaccine (HepB).
    2. A minimum of three or more properly spaced doses of diphtheria toxoid. One dose shall be administered on or after the fourth birthday.
    3. A minimum of three or more properly spaced doses of tetanus toxoid. One dose shall be administered on or after the fourth birthday.
    4. A minimum of three or more properly spaced doses of acellular pertussis vaccine. One dose shall be administered on or after the fourth birthday. A booster dose shall be administered prior to entry into the seventh grade.
    5. Two or three primary doses of Haemophilus influenzae type b (Hib) vaccine, depending on the manufacturer, for children up to 60 months of age.
    6. Two properly spaced doses of live attenuated measles (rubeola) vaccine. The first dose shall be administered at age 12 months or older.
    7. One dose of live attenuated rubella vaccine shall be administered at age 12 months or older.
    8. One dose of live attenuated mumps vaccine shall be administered at age 12 months or older.
    9. Two properly spaced doses of varicella vaccine. The first dose shall be administered at age 12 months or older.
    10. Three or more properly spaced doses of oral polio vaccine (OPV) or inactivated polio vaccine (IPV). One dose shall be administered on or after the fourth birthday. A fourth dose shall be required if the three dose primary series consisted of a combination of OPV and IPV.
    11. One to four doses, dependent on age at first dose, of properly spaced pneumococcal conjugate (PCV) vaccine for children up to 60 months of age.
    12. Two doses of properly spaced human papillomavirus (HPV) vaccine. The first dose shall be administered before the child enters the seventh grade.
    13. Two or three properly spaced doses of rotavirus vaccine, depending on the manufacturer, for children up to eight months of age.
    14. Two properly spaced doses of hepatitis A vaccine (HAV). The first dose shall be administered at age 12 months or older.
    15. Two properly spaced doses of meningococcal conjugate vaccine (MenACWY). The first dose shall be administered prior to entry to seventh grade. The second dose shall be administered prior to entry to twelfth grade.The parent, guardian or person standing in loco parentis may have such child immunized by a physician, physician assistant, nurse practitioner, registered nurse, or licensed practical nurse, or a pharmacist who administers pursuant to a valid prescription, or may present the child to the appropriate local health department, which shall administer the vaccines required by the State Board of Health Regulations for the Immunization of School Children without charge to the parent of or person standing in loco parentis to the child if (i) the child is eligible for the Vaccines for Children Program or (ii) the child is eligible for coverages issued pursuant to Title XVIII of the Social Security Act, 42 U.S.C. § 1395 et seq. (Medicare), Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq. (Medicaid), Title XXI of the Social Security Act, 42 U.S.C. § 1397aa et seq. (CHIP), or 10 U.S.C. § 1071 et seq. (CHAMPUS). In all cases in which a child is covered by a health carrier, Medicare, Medicaid, CHIP, or CHAMPUS, the Department shall seek reimbursement from the health carrier, Medicare, Medicaid, CHIP, or CHAMPUS for all allowable costs associated with the provision of the vaccine. For the purposes of this section, the Department shall be deemed a participating provider with a managed care health insurance plan as defined in § 32.1-137.1 .
  2. A physician, physician assistant, nurse practitioner, registered nurse, licensed practical nurse, pharmacist, or local health department administering a vaccine required by this section shall provide to the person who presents the child for immunizations a certificate that shall state the diseases for which the child has been immunized, the numbers of doses given, the dates when administered and any further immunizations indicated.
  3. The vaccines required by this section shall meet the standards prescribed in, and be administered in accordance with, the State Board of Health Regulations for the Immunization of School Children. The State Board of Health shall amend the State Board of Health Regulations for the Immunization of School Children as necessary from time to time to maintain conformity with evidence-based, routinely recommended vaccinations for children. The adoption of such regulations shall be exempt from the requirements of Article 2 (§ 2.2-4006 et seq.) of the Administrative Process Act (§ 2.2-4000 et seq.). However, the Department shall (i) provide a Notice of Intended Regulatory Action and (ii) provide for a 60-day public comment period prior to the Board’s adoption of the regulations.
  4. The provisions of this section shall not apply if:
    1. The parent or guardian of the child objects thereto on the grounds that the administration of immunizing agents conflicts with his religious tenets or practices, unless an emergency or epidemic of disease has been declared by the Board;
    2. The parent or guardian presents a statement from a physician licensed to practice medicine in Virginia, a licensed nurse practitioner, or a local health department that states that the physical condition of the child is such that the administration of one or more of the required immunizing agents would be detrimental to the health of the child; or
    3. Because the human papillomavirus is not communicable in a school setting, a parent or guardian, at the parent’s or guardian’s sole discretion, may elect for the parent’s or guardian’s child not to receive the human papillomavirus vaccine, after having reviewed materials describing the link between the human papillomavirus and cervical cancer approved for such use by the Board.
  5. For the purpose of protecting the public health by ensuring that each child receives age-appropriate immunizations, any physician, physician assistant, nurse practitioner, licensed institutional health care provider, local or district health department, the Virginia Immunization Information System, and the Department of Health may share immunization and patient locator information without parental authorization, including, but not limited to, the month, day, and year of each administered immunization; the patient’s name, address, telephone number, birth date, and social security number; and the parents’ names. The immunization information; the patient’s name, address, telephone number, birth date, and social security number; and the parents’ names shall be confidential and shall only be shared for the purposes set out in this subsection.
  6. The State Board of Health shall review this section annually and make recommendations for revision by September 1 to the Governor, the General Assembly, and the Joint Commission on Health Care.

History. Code 1950, § 32-57.1; 1968, c. 592; 1972, c. 558; 1979, c. 711; 1980, c. 410; 1989, c. 382; 1991, c. 133; 1992, cc. 127, 166; 1994, c. 62; 1995, cc. 729, 742; 1996, cc. 67, 533; 1999, cc. 632, 676, 738; 2000, c. 476; 2004, c. 855; 2005, cc. 643, 684; 2006, cc. 364, 396, 716; 2007, cc. 858, 922; 2011, c. 125; 2014, cc. 316, 344; 2016, c. 81; 2019, c. 222; 2020, c. 1223.

Cross references.

As to requirement of proof of childhood immunizations for children eligible for Temporary Assistance for Needy Families, and sanction for noncompliance, see § 63.2-603.

As to requirement that child day care centers operated by religious institutions that are exempt from licensure are in compliance with § 32.1-46 regarding childhood immunization, see § 63.2-1716.

Editor’s note.

Acts 2004, c. 855, cl. 2 provides: “That this act shall take effect 60 days following the effective date of the regulations promulgated by the Board of Medicine and Board of Nursing required by the third enactment clause of this act.” Emergency regulations were effective July 15, 2004.

Acts 2004, c. 855, cl. 3 provides: “That the Board of Medicine and Board of Nursing shall amend regulations governing the licensure of nurse practitioners to be effective within 280 days of enactment of this act. Such amendments shall require inclusion of the nurse practitioner’s authority for signatures, certifications, stamps, verifications, affidavits and endorsements in the written protocol between the supervising physician and the nurse practitioner.”

Acts 2006, c. 364, cl. 2 provides: “That the provisions of this act shall not become effective unless an appropriation of general funds effectuating the purposes of this act is included in the general appropriations act passed by the 2006 Session of the General Assembly, which becomes law.” Funding was provided; see Acts 2006, Sp. Sess. I, c. 3.

Acts 2006, c. 716, cl. 2 provides: “That the provisions of this act shall not become effective unless an appropriation of general funds effectuating the purposes of this act is included in the general appropriations act passed by the 2006 Session of the General Assembly, which becomes law.” Funding was provided; see Acts 2006, Sp. Sess. I, c. 3.

Acts 2020, c. 1223, cl. 2 provides: “That the Department of Health and the Department of Education shall jointly review §§ 22.1-271.2 and 32.1-46 of the Code of Virginia and report to the House Committee on Health, Welfare and Institutions and the Senate Committee on Education and Health on the effectiveness of the required vaccination program in promoting public health by December 1, 2021.”

Acts 2020, c. 1223, cl. 3 provides: “That the provisions of this act shall become effective on July 1, 2021.”

The 2000 amendments.

The 2000 amendment by c. 476 inserted “or registered nurse” in the second paragraph of subsection A and inserted “registered nurse” near the beginning of subsection B.

The 2004 amendments.

The 2004 amendment by c. 855, in subsection A, substituted “30 months” for “thirty months” and “12 months” for “twelve months”; substituted “that shall state” for “which shall state” in subdivision B; substituted “or a licensed nurse practitioner, that” for “which” in subdivision D 2; and inserted “nurse practitioner” following “any physician” in subsection E. For effective date, see Editor’s note.

The 2005 amendments.

The 2005 amendments by cc. 643 and 684 are identical, and in subsection E, inserted “the Virginia Immunization Information System” preceding “and the Department of Health,” “without parental authorization” preceding “including, but not limited to,” substituted “patient” for “child,” and “patient’s” for “child’s” two times.

The 2006 amendments.

The 2006 amendment by c. 364, in subsection A, inserted “and a booster dose of tetanus toxoid, reduced diphtheria toxoid, and acellular pertussis (Tdap)” in the third sentence, and added the fifth sentence. See Editor’s note.

The 2006 amendment by c. 396 inserted “physician assistant” in the first sentence in subsection E.

The 2006 amendment by c. 716, in subsection A, rewrote the first paragraph, inserted subdivisions A 1 to A 11, and substituted “the vaccines required by the State Board of Health Regulations for the Immunization of School Childen” for “the required vaccines” in the last paragraph; and added subsection F. See Editor’s note.

The 2007 amendments.

The 2007 amendments by cc. 858 and 922, effective October 1, 2008, are nearly identical, and inserted A 12 and D 3.

The 2011 amendments.

The 2011 amendment by c. 125, in subdivision D 2, inserted “or a local health department” and made a related change.

The 2014 amendments.

The 2014 amendment by c. 316, in the paragraph following subdivision A 12, added the language beginning “to the parent of or person” at the end of the first sentence, and added the last two sentences.

The 2014 amendment by c. 344 deleted the last sentence in subdivision A 2, which read “A booster dose shall be administered prior to entering the sixth grade if at least five years have passed since the last dose of diphtheria toxoid”; deleted the last sentence in subdivision A 3, which read “A booster dose of Tdap vaccine shall be administered prior to entering the sixth grade if at least five years have passed since the last dose of tetanus toxoid”; deleted “if at least five years have passed since the last dose of pertussis vaccine” at the end of subdivision A 4; deleted “susceptible” following “All” in subdivision A 9; and in subdivision A 11, substituted “One” for “Two,” “(PCV)” for “(PVC),” “up to 60 months” for “less than two years,” and deleted “7-valent” following “pneumococcal.”

The 2016 amendments.

The 2016 amendment by c. 81, in subdivision A 12, substituted “physician assistant, nurse practitioner, registered nurse, or licensed practical nurse, or a pharmacist who administers pursuant to a valid prescription” for “or registered nurse”; in subsection B, inserted “physician assistant, nurse practitioner,” and “licensed practical nurse, pharmacist.”

The 2019 amendments.

The 2019 amendment by c. 222 substituted “seventh grade” for “sixth grade” in subdivision A 4.

The 2020 amendments.

The 2020 amendment by c. 1223, effective July 1, 2021, rewrote subdivision A 9, which formerly read: “All children born on and after January 1, 1997, shall be required to have one dose of varicella vaccine on or after 12 months”; in subdivision A 12, in the first sentence, substituted “Two doses” for “Three doses” and deleted “for females” at the end, and substituted “seventh grade” for “sixth grade” in the second sentence; added subdivisions A 13 through A 15; and in subsection C, substituted “the State Board of Health Regulations for the Immunization of School Children” for “regulations of the Board” in the first sentence and added the second through fourth sentences.

Law Review.

For survey of Virginia law on governmental services and social welfare for the year 1978-1979, see 66 Va. L. Rev. 301 (1980).

For a note, “A One Shot Deal: The National Childhood Vaccine Injury Act,” see 41 Wm. & Mary L. Rev. 309 (1999).

For 2006 survey article, “Health Care Law,” see 41 U. Rich. L. Rev. 179 (2006).

For 2007 annual survey article, “Family and Juvenile Law,” see 42 U. Rich. L. Rev. 417 (2007).

Michie’s Jurisprudence.

For related discussion, see 9B M.J. Infants and Juveniles, § 81.

OPINIONS OF THE ATTORNEY GENERAL

COVID-19 vaccines. The religious exemption for childhood vaccinations contained in subsection D of § 32.1-46 , remains applicable during an epidemic unless the epidemic is directly related to a required vaccine-preventable disease. Parents or guardians choosing to obtain a religious exemption would not be subject to the penalties prescribed in § 32.1-27 for failure to immunize their children with the vaccines outlined in § 32.1-46 . See opinion of Attorney General to The Honorable Nicholas J. Freitas, Member, Virginia House of Delegates, 20-057, 2021 Va. AG LEXIS (12/30/21).

§ 32.1-46.01. Virginia Immunization Information System.

  1. The Board of Health shall establish the Virginia Immunization Information System (VIIS), a statewide immunization registry that consolidates patient immunization histories from birth to death into a complete, accurate, and definitive record that may be made available to participating health care providers throughout Virginia, to the extent funds are appropriated by the General Assembly or otherwise made available. The purposes of VIIS shall be to (i) protect the public health of all citizens of the Commonwealth, (ii) prevent under-immunization and over-immunization of children, (iii) ensure up-to-date recommendations for immunization scheduling to health care providers and the Board, (iv) generate parental reminder and recall notices and manufacturer recalls, (v) develop immunization coverage reports, (vi) identify areas of under-immunized population, and (vii) provide, in the event of a public health emergency, a mechanism for tracking the distribution and administration of immunizations, immune globulins, or other preventive medications or emergency treatments. Any health care provider, as defined in § 32.1-127.1:03 , in the Commonwealth that administers immunizations shall report such patient immunization information to VIIS pursuant to this section.
  2. The Board of Health shall promulgate regulations to implement the VIIS that shall address:
    1. Registration of participants, including, but not limited to, a list of those health care entities that are authorized and required to participate and any forms and agreements necessary for compliance with the regulations concerning patient privacy promulgated by the federal Department of Health and Human Services;
    2. Procedures for confirming, continuing, and terminating participation and disciplining any participant for unauthorized use or disclosure of any VIIS data;
    3. Procedures, timelines, and formats for reporting of immunizations by participants;
    4. Procedures to provide for a secure system of data entry that may include encrypted online data entry or secure delivery of data files;
    5. Procedures for incorporating the data reported on children’s immunizations pursuant to subsection E of § 32.1-46 ;
    6. The patient identifying data to be reported, including, but not limited to, the patient’s name, date of birth, gender, telephone number, home address, birth place, and mother’s maiden name;
    7. The patient immunization information to be reported, including, but not necessarily limited to, the type of immunization administered (specified by current procedural terminology (CPT) code or Health Level 7 (HL7) code); date of administration; identity of administering person; lot number; and if present, any contraindications, or religious or medical exemptions;
    8. Mechanisms for entering into data-sharing agreements with other state and regional immunization registries for the exchange, on a periodic nonemergency basis and in the event of a public health emergency, of patient immunization information, after receiving, in writing, satisfactory assurances for the preservation of confidentiality, a clear description of the data requested, specific details on the intended use of the data, and the identities of the persons with whom the data will be shared;
    9. Procedures for the use of vital statistics data, including, but not necessarily limited to, the linking of birth certificates and death certificates;
    10. Procedures for requesting immunization records that are in compliance with the requirements for disclosing health records set forth in § 32.1-127.1:03 ; such procedures shall address the approved uses for the requested data, to whom the data may be disclosed, and information on the provisions for disclosure of health records pursuant to § 32.1-127.1:03 ;
    11. Procedures for releasing aggregate data, from which personal identifying data has been removed or redacted, to qualified persons for purposes of research, statistical analysis, and reporting; and
    12. Procedures for the Commissioner of Health to access and release, as necessary, the data contained in VIIS in the event of an epidemic or an outbreak of any vaccine-preventable disease or the potential epidemic or epidemic of any disease of public health importance, public health significance, or public health threat for which a treatment or vaccine exists.The Board’s regulations shall also include any necessary definitions for the operation of VIIS; however, “health care entity,” “health care plan,” and “health care provider” shall be as defined in subsection B of § 32.1-127.1:03.
  3. The establishment and implementation of VIIS is hereby declared to be a necessary public health activity to ensure the integrity of the health care system in Virginia and to prevent serious harm and serious threats to the health and safety of individuals and the public. Pursuant to the regulations concerning patient privacy promulgated by the federal Department of Health and Human Services, covered entities may disclose protected health information to the secure system established for VIIS without obtaining consent or authorization for such disclosure. Such protected health information shall be used exclusively for the purposes established in this section.
  4. The Board and Commissioner of Health, any employees of the health department, any participant, and any person authorized to report or disclose immunization data hereunder shall be immune from civil liability in connection therewith unless such person acted with gross negligence or malicious intent.
  5. This section shall not diminish the responsibility of any physician or other person to maintain accurate patient immunization data or the responsibility of any parent, guardian, or person standing in loco parentis to cause a child to be immunized in accordance with the provisions of § 32.1-46 . Further, this section shall not be construed to require the immunization of any person who objects thereto on the grounds that the administration of immunizing agents conflicts with his religious tenets or practices, or any person for whom administration of immunizing agents would be detrimental to his health.
  6. The Commissioner may authorize linkages between VIIS and other secure electronic databases that contain health records reported to the Department of Health, subject to all state and federal privacy laws and regulations. These health records may include newborn screening results reported pursuant to § 32.1-65 , newborn hearing screening results reported pursuant to § 32.1-64.1 , and blood-lead level screening results reported pursuant to § 32.1-46.1 . Health care providers authorized to use VIIS may view the health records of individuals to whom the providers are providing health care services.

History. 2005, cc. 643, 684; 2012, c. 147; 2021, Sp. Sess. I, c. 211.

Editor’s note.

Acts 2021, cc. 1 and 2, effective February 15, 2021, cl. 1 provides:

“§ 1. As used in this act, “eligible health care provider” means any of the following who, due to their education and training, are authorized to administer drugs: (i) any person licensed by a health regulatory board within the Department of Health Professions whose license is in good standing, or was in good standing within the 20 years immediately prior to lapsing; (ii) any emergency medical services provider licensed or certified by the Department of Health (the Department) whose license or certification is in good standing, or was in good standing within the 20 years immediately prior to lapsing; and (iii) any health professions student enrolled in an accredited program in the Commonwealth who is in good academic standing with such student’s school and provided that the school certifies that the student has been properly trained in the administration of vaccines. Eligible health care providers may also be employees of localities, pharmacies, or hospitals. Localities, pharmacies, or hospitals that offer their employees to support vaccination clinics shall (i) verify employee certification or licensure, (ii) document completion of the required training, and (iii) provide a list of qualified and available vaccinators to the Department.

“§ 2. During a state of emergency related to the COVID-19 pandemic declared by the Governor pursuant to § 44-146.17 of the Code of Virginia, an eligible health care provider participating in the program established pursuant to § 3 of this act may administer the COVID-19 vaccine to citizens of the Commonwealth, in accordance with this act.

“§ 3. The Department shall establish a program to enable eligible health care providers to volunteer to administer the COVID-19 vaccine to residents of the Commonwealth during a state of emergency related to the COVID-19 pandemic declared by the Governor pursuant to § 44-146.17 of the Code of Virginia. Such program shall include (i) a process by which an eligible health care provider may register to participate in the program and (ii) the training requirements for participating eligible health care providers related to the administration of the COVID-19 vaccine, including training on the intramuscular injection of the COVID-19 vaccine and contraindications and side effects of the COVID-19 vaccine. For the purposes of such program, requirements related to background investigation, training, and orientation for Medical Reserve Corps volunteers shall be waived. To facilitate volunteering, the Department shall place a volunteer link on its website’s home page in the same visible location as the other links, such as ‘GET COVIDWISE,’ to make the process to volunteer as a health care provider easily accessible.

“The Department shall make a list of eligible health care providers who have registered pursuant to this section of the act and complied with requirements for training established by the Department available to each local health department and to hospitals operating community vaccination clinics, and the Department, a local health department, or a hospital operating a community vaccination clinic may request that an eligible health care provider included on such list administer the COVID-19 vaccine at a vaccination clinic operated by or in partnership with the Department, local health department, or hospital. Information included on the list shall not be used for any other purpose and shall not be used after the expiration or revocation of all states of emergency declared by the Governor related to the COVID-19 pandemic.

Ҥ 4. The Department shall ensure that each site at which COVID-19 vaccinations are provided by eligible health care providers who provide such vaccination in accordance with this act meet the following requirements:

“1. A sufficient number of eligible health care providers whose scope of practice includes administration of vaccines shall be available at each site at which COVID-19 vaccines are administered by eligible health care providers pursuant to this act to ensure appropriate oversight of administration of vaccines by eligible health care providers whose scope of practice does not include administration of vaccines.

“2. A sufficient number of eligible health care providers or other persons who are certified to administer cardiopulmonary resuscitation (CPR) are available at each site at which COVID-19 vaccines are administered by eligible health care providers pursuant to this act; however, a valid certification to perform CPR shall not be required to administer COVID-19 in accordance with this act.

“3. Any person who administers a COVID-19 vaccination in accordance with this act shall collect data, including data related to the race and ethnicity of the person to whom the vaccine is administered, and the person who administers a COVID-19 vaccination or the entity that operates a community vaccination site in accordance with this act shall report such data to the Virginia Immunization Information System established pursuant to § 32.1-46.01 of the Code of Virginia.

Ҥ 5. A person who is licensed as a nurse practitioner by the Boards of Medicine and Nursing or licensed as a physician assistant by the Board of Medicine who administers the COVID-19 vaccine pursuant to this act may administer such vaccine without a written or electronic practice agreement.

“A health professions student who administers the COVID-19 vaccine pursuant to this act shall be supervised by any eligible health care provider who holds a license issued by a health regulatory board within the Department of Health Professions, and the supervising health care provider shall not be required to be licensed in the same health profession for which the student is studying.

“§ 6. An eligible health care provider who is a health professions student shall, as part of the registration process established by the Department, provide such information necessary to demonstrate that he is in good academic standing with the accredited program in which he is enrolled and that he has been properly trained in the administration of vaccines as may be required by the Department. Information about a health professions student shall not be disclosed by the institution of higher education at which the health professions student is studying unless the health professions student has consented to such disclosure in accordance with the provisions of the federal Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g and § 23.1-405 of the Code of Virginia, as applicable.

“Clinical vaccination experience undertaken by a health professions student pursuant to this act may count toward meeting clinical hour requirements of the educational program in which the student is enrolled, subject to a requirement for written verification of such clinical vaccine experience.

“§ 7. In the absence of gross negligence or willful misconduct, any eligible health care provider or entity overseeing any eligible health care provider who administers the COVID-19 vaccine pursuant to this act shall not be liable for (i) any actual or alleged injury or wrongful death or (ii) any civil cause of action arising from any act or omission arising out of, related to, or alleged to have resulted in the contraction of or exposure to the COVID-19 virus or to have resulted from the administration of the COVID-19 vaccine.”

Acts 2021, cc. 1 and 2, effective February 15, 2021, cl. 2 provides:

“§ 1. That the Department of Health (the Department) shall establish a process by which entities, including medical care facilities, hospitals, hospital systems, corporations, businesses, pharmacies, public and private institutions of higher education, localities, and any other professional or community entity operating in the Commonwealth, may volunteer their facilities as sites at which the COVID-19 vaccine may be administered to citizens of the Commonwealth. The Department shall include on its website a link to information regarding such process and an online form that may be used by such entities to register their facilities to serve as sites at which the COVID-19 vaccine may be administered. The Commissioner of Health shall approve such sites in collaboration with local departments of health. In the absence of gross negligence or willful misconduct, any entity that volunteers its facility as a site at which the COVID-19 vaccine may be administered pursuant to this act and at which the COVID-19 vaccine is lawfully administered shall not be liable for (i) any actual or alleged injury or wrongful death or (ii) any civil cause of action arising from any act or omission arising out of, related to, or alleged to have resulted in the contraction of or exposure to the COVID-19 virus or to have resulted from the administration of the COVID-19 vaccine.”

Acts 2021, cc. 1 and 2, effective February 15, 2021, cl. 3 provides:

“§ 1. That a public institution of higher education or a private institution of higher education in the Commonwealth may volunteer to provide assistance to the Department of Health and local health departments for data processing, analytics, and program development related to the COVID-19 vaccine through the use of its employees, students, technology, and facilities. Such assistance may include collecting and organizing data on the administration of the COVID-19 vaccine and locations where the vaccine is being administered and performing other nonclinical staffing responsibilities. In the absence of gross negligence or willful misconduct, any institution or individual affiliated with an institution acting pursuant to this act shall not be liable for any civil or criminal penalties.”

Acts 2021, cc. 1 and 2, effective February 15, 2021, cl. 4 provides:

“§ 1. That localities with fire departments, emergency medical services departments, and volunteer rescue squads may establish and staff vaccine administration clinics for the purpose of administering COVID-19 vaccines. Vaccines shall be administered at such clinics only by EMTs, paramedics, licensed practical nurses, or registered nurses trained in the administration of vaccines and may be provided under the existing operating medical director (OMD) license for such local fire department or emergency medical services department. The Department of Health or hospitals serving the locality are authorized to provide vaccines to locality-created vaccine administration clinics upon the request of the locality, provided that such clinics meet the requirements under this act. In the absence of gross negligence or willful misconduct, any locality and OMD overseeing the administration of or EMT, paramedic, licensed practical nurse, or registered nurse who administers the COVID-19 vaccine pursuant to this act shall not be liable for (i) any actual or alleged injury or wrongful death or (ii) any civil cause of action arising from any act or omission arising out of, related to, or alleged to have resulted in the contraction of or exposure to the COVID-19 virus or to have resulted from the administration of the COVID-19 vaccine.”

Acts 2021, Sp. Sess. I, c. 211, cl. 2 provides: “That the provisions of this act shall become effective on January 1, 2022.”

The 2012 amendments.

The 2012 amendment by c. 147 added subsection F.

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 211, effective January 1, 2022, in subsection A, substituted “under-immunization and” for “under- and” in clause (ii), and added the last sentence; in subdivision B 1, deleted “voluntary” following “Registration of” and inserted “and required”; and in subsection D, substituted “any participant” for “any voluntary participant.”

§ 32.1-46.02. Administration of influenza vaccine to minors.

The Board shall, together with the Board of Nursing and by August 31, 2009, develop and issue guidelines for the administration of influenza vaccine to minors by licensed pharmacists, registered nurses, licensed practical nurses, or emergency medical services providers who hold an emergency medical technician intermediate or emergency medical technician paramedic certification issued by the Commissioner pursuant to § 54.1-3408. Such guidelines shall require the consent of the minor’s parent, guardian, or person standing in loco parentis and shall be consistent with applicable guidelines developed by the Centers for Disease Control and Prevention.

History. 2009, c. 110; 2010, cc. 179, 252; 2015, cc. 502, 503.

The 2010 amendments.

The 2010 amendments by c. 179, effective March 29, 2010, and by c. 252, effective April 8, 2010, are identical, and inserted “certified emergency medical technicians-intermediate, or emergency medical techicians-paramedic” and made a related change.

The 2015 amendments.

The 2015 amendments by cc. 502 and 503 are identical and substituted “or emergency medical services providers who hold an emergency medical technician intermediate or emergency medical technician paramedic certification issued by the Commissioner” for “certified emergency medical technicians intermediate, or emergency medical technicians-paramedic.”

§ 32.1-46.1. Board to establish protocol for identification of children with elevated blood-lead levels.

The Board shall promulgate regulations establishing a protocol for the identification of children at risk for elevated blood-lead levels which shall (i) require blood-lead level testing at appropriate ages and frequencies, when indicated, (ii) provide for criteria for determining low risk for elevated blood-lead levels and when such blood-lead level testing is not indicated, and (iii) require physicians to make available to parents information on the dangers of lead poisoning, along with a list of available resources, as part of regular well check visits for all children.

As deemed necessary by the Board, the protocol may also address follow-up testing for children with elevated blood-lead levels, dissemination of the protocol or other information to relevant health care professionals, appropriate information for parents, and other means of preventing lead poisoning among children. In promulgating such regulations, the Board shall consider the guidelines of the Centers for Disease Control and Prevention and may consider such other materials relating to lead poisoning prevention, testing, and treatment as it deems appropriate. The Board may also establish procedures governing how health care providers and laboratories report results to the Department of Health.

The Commissioner may authorize linkages between secure electronic data systems maintained by the Department of Health containing blood-lead level records and the Virginia Immunization Information System (VIIS) operated pursuant to § 32.1-46.01 . The Commissioner may authorize health care providers authorized to view VIIS to view blood-lead level records of individuals to whom the providers are providing health care services. The records may be made available until the child reaches seven years of age, after which the records shall not be made available through a linkage to VIIS. Such linkages shall be subject to all applicable state and federal privacy laws and regulations.

History. 2000, c. 907; 2003, c. 463; 2007, c. 691; 2012, c. 147.

Editor’s note.

Acts 2003, c. 463, cl. 2 provides: “That the Board and Department of Health shall not be responsible for enforcing any blood-lead level testing required by the regulations mandated in this provision; complaints relating to compliance by a practitioner with such regulations shall be directed to the appropriate health regulatory board and shall not be filed with the Board or the Department of Health.”

Acts 2003, c. 463, cl. 3 provides: “That, in order to avoid costs as much as possible during the regulatory process, the Board of Health shall, when in compliance with the Administrative Process Act (§ 2.2-4000, et seq.), notify, distribute, and provide public access and opportunity for comment via electronic media, including, but not limited to, posting documents to and receiving comments via the Department’s website, by email and fax. The Board shall, however, continue to provide public notice and participation to those persons who do not have access to the Internet or other forms of electronic media.”

The 2003 amendments.

The 2003 amendment by c. 463, in the first paragraph, substituted “(i) require” for “provide (i) for,” and inserted “provide” following “(ii)”; and substituted “or” for “and/or” following “protocol” in the first sentence of the second paragraph.

The 2007 amendments.

The 2007 amendment by c. 691 added the provisions of (iii) to the end of the first paragraph and made related changes.

The 2012 amendments.

The 2012 amendment by c. 147 added the last sentence in the next-to-last paragraph; and added the final paragraph.

§ 32.1-46.2. Certain testing or determination of low risk for elevated blood-lead levels required.

In accordance with the protocol required by § 32.1-46.1 and the regulations of the Board of Health promulgated thereto, the parent, guardian or other person standing in loco parentis of each child within the Commonwealth shall cause such child to be tested for elevated blood-lead levels or shall obtain a determination that the child is at low risk for elevated blood-lead levels.

The provisions of this section shall not apply to any child whose parent, guardian or other person having control or charge of such child shall object to such testing on the grounds that the procedure conflicts with his religious tenets or practices.

History. 2000, c. 907.

Editor’s note.

Acts 2000, c. 907, cl. 3, provides: “That § 32.1-46.2 shall become effective on July 1, 2001.”

§ 32.1-47. Exclusion from school of children not immunized.

Upon the identification of an outbreak, potential epidemic or epidemic of a vaccine-preventable disease in a public or private school, the Commissioner shall have the authority to require the exclusion from such school of all children who are not immunized against that disease.

History. 1979, c. 711.

§ 32.1-47.1. Vaccination of children; plan enhancements.

The Department shall include in its vaccination plans procedures to ensure the prompt vaccination of all persons of school age in the Commonwealth, without preference regarding the manner of compliance with the compulsory school attendance law set forth in § 22.1-254, upon declaration of a public health emergency involving a vaccine-preventable disease and consent of the parent or guardian of the person of school age if such person is a minor or, if the person of school age is not a minor, of the person. Vaccination plans developed pursuant to this section shall be consistent with applicable guidelines developed by the Centers for Disease Control and Prevention, and shall be subject to the same review and update requirements, process, and schedule as the State Emergency Operations Plan developed by the Department of Emergency Management pursuant to § 44-146.18.

History. 2010, c. 73.

§ 32.1-48. Powers of Commissioner in epidemic.

  1. Nothing in this article shall preclude the Commissioner from requiring immediate immunization of all persons in case of an epidemic of any disease of public health importance for which a vaccine exists other than a person to whose health the administration of a vaccine would be detrimental as certified in writing by a physician licensed to practice medicine in this Commonwealth.
  2. In addition, the State Health Commissioner shall hold the powers conferred pursuant to Article 3.02 (§ 32.1-48.05 et seq.) of this chapter to issue orders of quarantine or prepare orders of isolation for a communicable disease of public health threat.

History. 1979, c. 711; 2004, cc. 773, 1021.

The 2004 amendments.

The 2004 amendments by cc. 773, effective April 12, 2004, and 1021, effective April 21, 2004, are identical, and inserted the A designation at the beginning of the first paragraph and substituted “immunization” for “vaccination” in subsection A; and added subsection B.

Vaccine requirement. General Assembly could enact a statute requiring the COVID-19 vaccine for in-person school attendance as a valid exercise of the Commonwealth's police powers. See opinion of Attorney General to The Honorable Mark L. Keam, Member, House of Delegates, 21-030, (4/26/21).

Virginia's public institutions of higher education, as specified in Title 23.1 of the Code of Virginia, may condition in-person attendance on receipt of an approved COVID-19 vaccine during this time of pandemic. See opinion of Attorney General to The Honorable Mark L. Keam, Member, House of Delegates, 21-030, (4/26/21).

§ 32.1-48.001. (For contingent effective date, see Acts 2021, Sp. Sess. I, c. 472, cl. 2) Real-time information sharing for emergency medical services agencies.

  1. The Department shall develop and implement a system for sharing information regarding confirmed cases of communicable diseases of public health threat with emergency medical services agencies in real time during a declared public health emergency related to a communicable disease of public health threat, in order to protect the health and safety of emergency medical services personnel and the public. Such system shall include information about the location of confirmed cases of the communicable disease of public health threat, including the address of such location; the number of confirmed and suspected cases of the communicable disease of public health threat at each such location; any measures implemented at such location to prevent exposing others to the communicable disease of public health threat; and any other information that the Department shall deem appropriate. Such system shall be updated in real time to reflect each confirmed case of the communicable disease of public health threat.
  2. During a declared public health emergency related to a communicable disease of public health threat, every local and district health department in the Commonwealth shall report information regarding confirmed and suspected cases of the communicable disease of public health threat to the Department, in a format specified by the Board, for inclusion in the system developed pursuant to subsection A.
  3. Information contained in the system developed pursuant to subsection A shall be made available to every emergency medical services agency in the Commonwealth and shall be used by such emergency medical services agencies for the purpose of (i) developing protocols to ensure the safety of emergency medical services personnel and the public when responding to calls for assistance at locations at which a case of the communicable disease of public health threat has been confirmed, including protocols related to appropriate staffing of the emergency medical services agency and the availability and use of appropriate equipment, including personal protective equipment, by emergency medical services personnel when responding to such calls, and (ii) during a declared public health emergency related to a communicable disease of public health threat, identifying specific locations at which a case of such communicable disease of public health threat has been confirmed for the purpose of implementing such protocols when responding to calls for assistance.
  4. The Department shall make information submitted pursuant to subsection B and any other information contained in the system developed pursuant to subsection A available, upon request, to the Emergency Medical Services Advisory Board and each regional emergency medical services council, for the purpose of monitoring and improving the quality of emergency medical services in the Commonwealth.
  5. The Department shall regularly consult with the Emergency Medical Services Advisory Board to identify the types of information that should be included in the system developed pursuant to subsection A and to revise reporting requirements for local and district health departments pursuant to subsection B.
  6. Information contained in the system developed pursuant to subsection A shall be confidential and shall not be disclosed except in accordance with this section.

History. 2021, Sp. Sess. I, c. 472.

Editor’s note.

Acts 2021, Sp. Sess. I, c. 472, cl. 2 provides: “That the provisions of this act shall not become effective unless the Centers for Disease Control and Prevention (the CDC) approves a grant to the Commonwealth from the Epidemiology and Laboratory Capacity for Prevention and Control of Emerging Infectious Diseases (ELC) program that is sufficient to fund the costs of the Department of Health (the Department) to establish and implement the information-sharing system created by this act. The Department shall apply to the CDC for such funding and shall report to the Governor and the General Assembly on the outcome of its application.”

Article 3.01. Isolation of Certain Persons with Communicable Diseases of Public Health Significance.

§ 32.1-48.01. Definitions.

As used in this article, unless the context requires a different meaning:

“Appropriate precautions” means those specific measures which have been demonstrated by current scientific evidence to assist in preventing transmission of a communicable disease of public health significance. Appropriate precautions will vary according to the disease.

“At-risk behavior” means engaging in acts which a person, who has been informed that he is infected with a communicable disease of public health significance, knows may infect other persons without taking appropriate precautions to protect the health of the other persons.

“Communicable disease of public health significance” means an illness of public health significance, as determined by the State Health Commissioner, caused by a specific or suspected infectious agent that may be transmitted directly or indirectly from one individual to another.

“Communicable disease of public health significance” shall include, but may not be limited to, infections caused by human immunodeficiency viruses, blood-borne pathogens, and tubercle bacillus. The State Health Commissioner may determine that diseases caused by other pathogens constitute communicable diseases of public health significance. Further, “a communicable disease of public health significance” shall become a “communicable disease of public health threat” upon the finding of the State Health Commissioner of exceptional circumstances pursuant to Article 3.02 (§ 32.1-48.05 et seq.) of this chapter.

History. 1990, c. 958; 2004, cc. 773, 1021.

Cross references.

As to quarantine of prisoners in state correctional institutions and jails, see §§ 53.1-34 and 53.1-133.

The 2004 amendments.

The 2004 amendments by cc. 773, effective April 12, 2004, and 1021, effective April 21, 2004, are identical, and inserted “of public health significance” throughout the section; in the definition of “Communicable disease of public health significance,” substituted “State Health Commissioner” for “Commissioner of Health,” inserted “or suspected” and substituted “individual” for “person”; added the definition of “Communicable disease of public health significance”; and made a minor stylistic change.

§ 32.1-48.02. Investigations of verified reports or medical evidence; counseling; outpatient and emergency treatment orders; custody upon emergency order; application of article.

  1. Upon receiving at least two verified reports or upon receiving medical evidence that any person who is reputed to know that he is infected with a communicable disease of public health significance is engaging in at-risk behavior, the Commissioner or his designee may conduct an investigation through an examination of the records of the Department and other medical records to determine the disease status of the individual and that there is cause to believe he is engaging in at-risk behavior.
  2. If the investigation indicates that the person has a communicable disease of public health significance caused by a non-airborne microorganism and that there is cause to believe he is engaging in at-risk behavior, the Commissioner or his designee may issue an order for such person to report to the local or district health department in the jurisdiction in which he resides to receive counseling on the etiology, effects and prevention of the specific disease of public health significance. The person conducting the counseling shall prepare and submit a report to the Commissioner or his designee on the counseling session or sessions in which he shall document that the person so counseled has been informed about the acts that constitute at-risk behavior, appropriate precautions, and the need to use appropriate precautions. The counselor shall also report any statements indicating the intentions or understanding of the person so counseled.
  3. If the investigation, described in subsection A, indicates that the person has a communicable disease of public health significance caused by an airborne microorganism, such as tubercle bacillus, that causes serious disease and can result in death and that the person has refused or failed to adhere to a prescribed course of treatment and, despite counseling, is engaging in conduct that places uninfected persons at risk of contracting such airborne communicable disease of public health significance, the Commissioner or his designee may issue an outpatient treatment order for such person to report to the local or district health department in the jurisdiction in which he resides to receive appropriate outpatient treatment and education concerning his disease.
  4. If the investigation, described in subsection A, indicates that the person has a communicable disease of public health significance caused by an airborne microorganism, such as tubercle bacillus, which causes serious disease and can result in death and, despite documented and appropriate counseling, is engaging in conduct that unreasonably places uninfected persons at risk of contracting such airborne communicable disease of public health significance, such as tuberculosis, and medical data demonstrate that he poses an imminent threat to the health of others, the Commissioner may issue an emergency order requiring such person to be taken immediately into custody and placed, for a period, not to exceed 48 hours, in the least restrictive, willing facility providing protection of the health of others and appropriate treatment to the person upon finding that at least one of the following conditions is met:
    1. The person has refused or failed to report to the local health department after having been ordered to do so pursuant to subsection C, for appropriate outpatient treatment and education concerning his disease;
    2. The person has a documented history of failure to adhere to a prescribed course of treatment; or
    3. Documentation exists that the person has indicated that he will not comply with the prescribed treatment.If the specified 48-hour period terminates on a Saturday, Sunday or legal holiday, such person may be detained until the next day which is not a Saturday, Sunday, or legal holiday. During this period, the Commissioner shall proceed in accordance with § 32.1-48.03 .
  5. In order to implement an emergency order issued pursuant to subsection D of this section, all state and local law-enforcement officers are authorized to take custody of the subject of such emergency order immediately upon issuance of the emergency order by the Commissioner.
  6. The provisions of this article shall only apply to communicable diseases of public health significance and shall not apply to communicable diseases of public health threat.

History. 1990, c. 958; 1993, c. 705; 2001, c. 837; 2004, cc. 773, 1021.

Cross references.

As to authority of police officers to deliver, serve, execute, and enforce an emergency custody order, see § 15.2-1704 .

The 2001 amendments.

The 2001 amendment by c. 837, deleted the former second sentence of the second paragraph of subdivision D, which read: “In no event may the person be detained for longer than seventy -two hours or ninety-six hours when the specified forty-eight hour period terminates on a Saturday, Sunday or legal holiday. For purposes of this subsection, a Saturday, Sunday or legal holiday shall be deemed to include the time period up to 8:00 a.m. of the next day which is not a Saturday, Sunday, or legal holiday.”

The 2004 amendments.

The 2004 amendments by cc. 773, effective April 12, 2004, and 1021, effective April 21, 2004, are identical, and inserted “of public health significance” throughout the section; in subsection B, deleted “which” following “communicable disease” and inserted “such as tubercle bacillus, that” near the beginning; in subsection D, inserted “such as tubercle bacillus” near the beginning and “such as tuberculosis” near the middle; added subsection F; and made a minor stylistic change.

§ 32.1-48.03. Petition for hearing; temporary detention.

  1. Upon receiving a verified report or upon receiving medical evidence that any person who has been counseled pursuant to § 32.1-48.02 has continued to engage in at-risk behavior, the Commissioner or his designee may petition the general district court of the county or city in which such person resides to order the person to appear before the court to determine whether isolation is necessary to protect the public health from the risk of infection with a communicable disease of public health significance.
  2. If such person cannot be conveniently brought before the court, the court may issue an order of temporary detention. The officer executing the order of temporary detention shall order such person to remain confined in his home or another’s residence or in some convenient and willing institution or other willing place for a period not to exceed 48 hours prior to a hearing. An electronic device may be used to enforce such detention in the person’s home or another’s residence. The institution or other place of temporary detention shall not include a jail or other place of confinement for persons charged with criminal offenses.If the specified 48-hour period terminates on a Saturday, Sunday, legal holiday or day on which the court is lawfully closed, such person may be detained until the next day which is not a Saturday, Sunday, legal holiday or day on which the court is lawfully closed.
  3. Any person ordered to appear before the court pursuant to this section shall be informed of his right to be represented by counsel. The court shall provide the person with reasonable opportunity to employ counsel at his own expense, if so requested. If the person is not represented by counsel, the court shall appoint an attorney-at-law to represent him. Counsel so appointed shall be paid a fee of $75 and his necessary expenses.

History. 1990, c. 958; 2001, c. 837; 2004, cc. 773, 1021.

The 2001 amendments.

The 2001 amendment by c. 837 substituted “If the specified forty-eight-hour period terminates on a Saturday, Sunday, legal holiday or day on which the court is lawfully closed, such person may be detained until the next day which is not a Saturday, Sunday, legal holiday or day on which the court is lawfully closed” for “If the specified forty-eight-hour period terminates on a Saturday, Sunday, or legal holiday, such person may be detained until the next day which is not a Saturday, Sunday or legal holiday.”

The 2004 amendments.

The 2004 amendments by cc. 773, effective April 12, 2004, and 1021, effective April 21, 2004, are identical, and added “from the risk of infection with a communicable disease of public health significance” at the end in subsection A; twice substituted “48” for “forty-eight” in subsection B; and substituted “$75” for “seventy-five dollars” in subsection C.

§ 32.1-48.04. Isolation hearing; conditions; order for isolation; right to appeal.

  1. The isolation hearing shall be held within 48 hours of the execution of any temporary detention order issued or, if the 48-hour period terminates on a Saturday, Sunday, legal holiday or day on which the court is lawfully closed, the isolation hearing shall be the next day that is not a Saturday, Sunday, legal holiday or day on which the court is lawfully closed.Prior to the hearing, the court shall fully inform the person who is infected with the communicable disease of public health significance of the basis for his detention, if any, the basis upon which he may be isolated, and the right of appeal of its decision.
  2. An order for isolation in the person’s home or another’s residence or an institution or other place, including a jail when no other reasonable alternative is available, may be issued upon a finding by the court that the following conditions are met:
    1. The person is infected with a communicable disease of public health significance.
    2. The person is engaging in at-risk behavior.
    3. The person has demonstrated an intentional disregard for the health of the public by engaging in behavior which has placed others at risk for infection with the communicable disease of public health significance.
    4. There is no other reasonable alternative means of reducing the risk to public health.
  3. Any order for isolation in the person’s home or another’s residence or an institution or other place shall be valid for no more than 120 days, or for a shorter period of time if the Commissioner or his designee, or the court upon petition, determines that the person no longer poses a substantial threat to the health of others. Orders for isolation in the person’s home or another’s residence may be enforced through the use of electronic devices. Orders for isolation may include additional requirements such as participation in counseling or education programs. The court may, upon finding that the person no longer poses a substantial threat to the health of others, issue an order solely for participation in counseling or educational programs.
  4. Isolation orders shall not be renewed without affording the person all rights conferred in this article.Any person under an isolation order pursuant to this section shall have the right to appeal such order to the circuit court in the jurisdiction in which he resides. Such appeal shall be filed within 30 days from the date of the order. Notwithstanding the provisions of § 19.2-241 relating to the time within which the court shall set criminal cases for trial, any appeal of an isolation order shall be given priority over all other pending matters before the court, except those matters under appeal pursuant to § 37.2-821 , and shall be heard as soon possible by the court. The clerk of the court from which an appeal is taken shall immediately transmit the record to the clerk of the appellate court.The appeal shall be heard de novo. An order continuing the isolation shall only be entered if the conditions set forth in subsection B are met at the time the appeal is heard.If the person under an isolation order is not represented by counsel, the judge shall appoint an attorney-at-law to represent him. Counsel so appointed shall be paid a fee of $150 and his necessary expenses. The order of the court from which the appeal is taken shall be defended by the attorney for the Commonwealth.

History. 1990, c. 958; 2001, c. 837; 2004, cc. 773, 1021.

Editor’s note.

Acts 2004, cc. 773 and 1021, cl. 2, provide: “That the Board of Health shall promulgate regulations to implement the provisions of this act to be effective within 280 days of its enactment.”

The 2001 amendments.

The 2001 amendments by c. 837, in subsection A, deleted “or” preceding “legal holiday”, inserted “or day on which the court is lawfully closed,” preceding “the isolation hearing” and substituted “the next day that is not a Saturday, Sunday, legal holiday or day on which the court is lawfully closed” for “held within seventy-two or ninety-six hours of the execution of any such temporary detention order.”

The 2004 amendments.

The 2004 amendments by cc. 773, effective April 12, 2004, and 1021, effective April 21, 2004, are nearly identical, and twice substituted “48” for “forty-eight” in the first paragraph of subsection A; inserted “who is infected with the communicable disease of public health significance” in the last paragraph of subsection A; added “of public health significance” at the end in subdivision B 1; added “with the communicable disease of public health significance” at the end in subdivision B 3; and substituted “30” for “thirty” in the second paragraph of subsection D.

Article 3.02. Quarantine and Isolation of Persons with Communicable Diseases of Public Health Threat.

Effective date.

This article became effective April 12, 2004.

§ 32.1-48.05. Application of article; determination of exceptional circumstances; regulations; duties of the State Health Commissioner not be delegated.

  1. Upon a determination by the State Health Commissioner that exceptional circumstances exist relating to one or more persons in the Commonwealth who are known to have been exposed to or infected with or reasonably suspected to have been exposed to or infected with a communicable disease of public health threat and that such exceptional circumstances render the procedures of Article 3.01 (§ 32.1-48.01 et seq.) of this chapter to be insufficient control measures or that the individuals have failed or refused to comply voluntarily with the control measures directed by the State Health Commissioner in response to a communicable disease of public health threat, the State Health Commissioner may invoke the provisions of this article relating to quarantine and isolation.
  2. The Board of Health shall promulgate regulations for the implementation of this article that shall (i) address the circumstances that are subject to the application of Article 3.01 (§ 32.1-48.01 et seq.) of this chapter and the exceptional circumstances in which this article may be invoked by the State Health Commissioner; (ii) provide procedures to assure that any quarantine or isolation is implemented in the least restrictive environment; (iii) ensure that the essential needs of persons subject to an order of isolation issued pursuant to this article shall be met, including, but not limited to, food, water, and health care, e.g., medications, therapies, testing, and durable medical equipment; (iv) provide procedures for proper notice of orders of quarantine and orders of isolation; (v) provide procedures for the State Health Commissioner to issue an emergency detention order for persons for whom he has probable cause to believe that they may fail or refuse to comply with an order of quarantine or an order of isolation; and (vi) address any other issue or procedure covered herein that the Board deems to be properly the subject of regulation.
  3. The powers granted to the State Health Commissioner pursuant to this article shall not be delegated to or invoked by any local or district health department director. However, in the event the State Health Commissioner, duly appointed and confirmed pursuant to § 32.1-17 , shall be unable to perform his duties pursuant to this article, any Deputy Commissioner, appointed by the State Health Commissioner and approved by the Board pursuant to § 32.1-22 , shall be authorized to invoke the provisions of this article.

History. 2004, cc. 773, 1021.

Cross references.

As to exclusion of health records of any person or persons subject to an order of quarantine from the Virginia Freedom of Information Act, see § 2.2-3705.5.

§ 32.1-48.06. Definitions.

As used in this article, unless the context requires a different meaning:

“Affected area” means any part or the whole of the Commonwealth, which has been identified as where persons reside, or may be located, who are known to have been exposed to or infected with or who are reasonably suspected to have been exposed to or infected with a communicable disease of public health threat. “Affected area” shall include, but not be limited to, cities, counties, towns, and subsections of such areas, public and private property, buildings, and other structures.

“Communicable disease of public health threat” means an illness of public health significance, as determined by the State Health Commissioner in accordance with regulations of the Board of Health, caused by a specific or suspected infectious agent that may be reasonably expected or is known to be readily transmitted directly or indirectly from one individual to another and has been found to create a risk of death or significant injury or impairment; this definition shall not, however, be construed to include human immunodeficiency viruses or tuberculosis, unless used as a bioterrorism weapon. “Individual” shall include any companion animal. Further, whenever “person or persons” is used herein it shall be deemed, when the context requires it, to include any individual.

“Companion animal” means, consistent with the provisions of § 3.2-6500, any domestic or feral dog, domestic or feral cat, nonhuman primate, guinea pig, hamster, rabbit not raised for human food or fiber, exotic or native animal, reptile, exotic or native bird, or any feral animal or any animal under the care, custody, or ownership of a person or any animal that is bought, sold, traded, or bartered by any person. Agricultural animals, game species, or any animals regulated under federal law as research animals shall not be considered companion animals for the purposes of this article.

“Isolation” means the physical separation, including confinement or restriction of movement, of an individual or individuals who are infected with or are reasonably suspected to be infected with a communicable disease of public health threat in order to prevent or limit the transmission of the communicable disease of public health threat to other uninfected and unexposed individuals.

“Law-enforcement agency” means any sheriff’s office, police department, adult or youth correctional officer, or other agency or department that employs persons who have law-enforcement authority that is under the direction and control of the Commonwealth or any local governing body. “Law-enforcement agency” shall include, by order of the Governor, the Virginia National Guard.

“Quarantine” means the physical separation, including confinement or restriction of movement, of an individual or individuals who are present within an affected area, as defined herein, or who are known to have been exposed or may reasonably be suspected to have been exposed to a communicable disease of public health threat and who do not yet show signs or symptoms of infection with the communicable disease of public health threat in order to prevent or limit the transmission of the communicable disease of public health threat to other unexposed and uninfected individuals.

History. 2004, cc. 773, 1021; 2007, cc. 699, 783.

Editor’s note.

At the direction of the Virginia Code Commission, Title 3.2 references were substituted for Title 3.1 references to conform to the title revision by Acts 2008, c. 860, effective October 1, 2008.

The 2007 amendments.

The 2007 amendments by cc. 699 and 783 are identical, and added the last sentence to the definition of “Affected area.”

§ 32.1-48.07. Conditions for invoking the provisions of this article.

  1. Prior to issuing any order of quarantine or any order of isolation pursuant to this article, the State Health Commissioner shall ensure that:
    1. Any quarantine or isolation is implemented in the least restrictive environment necessary to contain the communicable disease of public health threat;
    2. Any quarantined persons shall be confined separately from any isolated persons, to the maximum extent practicable;
    3. Upon determining that any quarantined person can be reasonably believed to have become infected with a communicable disease of public health threat, the infected person shall be promptly removed from quarantine and placed in isolation;
    4. The health and disease status of any quarantined and isolated persons shall be monitored regularly to determine if such persons require continued quarantine or isolation;
    5. Any quarantined or isolated persons shall be immediately released from quarantine or isolation upon a determination by the State Health Commissioner that such quarantined or isolated persons pose no risk of transmitting the communicable disease of public health threat to other persons; and
    6. The site of any quarantine or isolation shall be, to the extent practicable, safely and hygienically maintained with adequate food, clothing, health care, and other essential needs made available to the persons who are subject to any order of quarantine or isolation.
  2. All persons subject to an order of quarantine or an order of isolation shall comply with the order and the conditions governing their quarantine or isolation.
  3. In the case of any person who has been quarantined or isolated in a location other than a medical care facility, the State Health Commissioner shall authorize health care professionals to enter the premises of quarantine or isolation. No person, other than such authorized health care professionals, shall enter the premises of quarantine or isolation, unless authorized by the State Health Commissioner. Upon determining that any person, who has entered the premises of quarantine or isolation, poses a threat to public health and safety, the State Health Commissioner may quarantine or isolate such person.

History. 2004, cc. 773, 1021.

§ 32.1-48.08. Declaration of quarantine.

  1. The State Health Commissioner may declare a quarantine of any person or persons or any affected area after he finds that the quarantine is the necessary means to contain a communicable disease of public health threat as defined in § 32.1-48.06 to which such person or persons or the people of an affected area have been or may have been exposed and thus may become infected.
  2. The State Health Commissioner shall record his findings and any information on which he has relied in making the finding required for quarantine pursuant to subsection A. The State Health Commissioner’s record of findings concerning any communicable disease of public health threat shall be confidential and shall not be disclosed in accordance with subdivision 12 of § 2.2-3705.5.
  3. The State Health Commissioner may order the quarantined person or persons to remain in their residences, to remain in another place where they are present, or to report to a place or places designated by the State Health Commissioner for the duration of their quarantine. An electronic device may be used to enforce any such quarantine. The Commissioner’s order of quarantine shall be for a duration consistent with the known incubation period for such disease or, if the incubation period is unknown, for a period anticipated as being consistent with the incubation period for other similar infectious agents.

History. 2004, cc. 773, 1021; 2017, c. 778.

The 2017 amendments.

The 2017 amendment by c. 778 substituted “subdivision 12 of § 2.2-3705.5” for “subdivision 17 of § 2.2-3705.5” in subsection B.

§ 32.1-48.09. Order of quarantine.

  1. The State Health Commissioner shall, prior to placing any person or persons under quarantine, issue an order of quarantine that shall: (i) identify the communicable disease of public health threat that is reasonably believed to be involved and the reasons why exceptional circumstances apply and the quarantine is the necessary means to contain the risks of transmission of the disease; (ii) contain sufficient information to provide reasonable notice to persons who are affected by the order of quarantine that they are subject to the order; (iii) specify the means by which the quarantine is to be implemented; (iv) establish clearly the geographic parameters of the quarantine, if involving an affected area; (v) specify the duration of the quarantine; (vi) provide sufficient directions for compliance with the quarantine to enable persons subject to the order to comply; (vii) provide timely opportunities, if not readily available under the circumstances, for the person or persons who are subject to the order to notify employers, next of kin or legally authorized representatives and the attorneys of their choice of the situation; (viii) specify the penalty or penalties that may be imposed for noncompliance with the order of quarantine pursuant to § 32.1-27 ; and (ix) include a copy of § 32.1-48.010 to inform any person or persons subject to an order of quarantine of the right to seek judicial review of the order.
  2. No affected area shall be the subject to an order of quarantine issued by the State Health Commissioner unless the Governor, pursuant to the authority vested in him pursuant to Chapter 3.2 (§ 44-146.13 et seq.) of Title 44, has declared a state of emergency for such affected area of the Commonwealth.
  3. The order of quarantine shall be delivered to any person or persons affected by the quarantine, in so far as practicable. However, if, in the opinion of the State Health Commissioner, the number of quarantined persons is too great to make delivery of copies of the order of quarantine to each person possible in a timely manner, or if the order of quarantine designates an affected area instead of a specific person or persons, the State Health Commissioner shall cause the order of quarantine to be communicated to the persons residing or located in the affected area.
  4. The State Health Commissioner or his legal representative shall, as soon as practicable following the issuance of an order of quarantine, file a petition seeking an ex parte court review and confirmation of the quarantine.
  5. The petition shall be filed in the circuit court for the city or county in which the person or persons resides or is located or, in the case of an affected area, in the circuit court of the affected jurisdiction or jurisdictions.The petition shall include (i) a copy of the order of quarantine or all information contained in the State Health Commissioner’s order of quarantine in some other format and (ii) a summary of the findings on which the Commissioner relied in deciding to issue the order of quarantine.Upon receiving multiple orders of quarantine, the court may, on the motion of any party or on the court’s own motion, consolidate the cases into a single proceeding for all orders when (i) there are common questions of law or fact relating to the individual claims or rights to be determined, (ii) the claims of the consolidated cases are substantially similar, and (iii) all parties to the orders will be adequately represented in the consolidation.
  6. Prior to the expiration of the original order of quarantine, the Commissioner may extend the duration of the original order upon finding that such an extension is necessary. The Commissioner, or his legal representative, shall, as soon as practicable following the extension of an order of quarantine, file a petition seeking court review and confirmation of the order to extend the duration of the quarantine.
  7. In reviewing the petition for review and confirmation of the order of quarantine or an extension of the order of quarantine, the court shall give due deference to the specialized expertise of the State Health Commissioner. The court shall grant the petition to confirm or extend the quarantine upon finding probable cause that quarantine was the necessary means to contain the disease of public health threat and is being implemented in the least restrictive environment to address the public health threat effectively, given the reasonably available information on effective control measures and the nature of the communicable disease of public health threat.
  8. The State Health Commissioner may, if he reasonably believes that public disclosure of the information contained in the order of quarantine or the petition for court review and confirmation or extension of the order of quarantine will exacerbate the public health threat or compromise any current or future criminal investigation or compromise national security, file some or all of any petition relating to an order of quarantine under seal. After reviewing any information filed under seal by the State Health Commissioner, the court shall reseal the relevant materials to the extent necessary to protect public health and safety.
  9. The State Health Commissioner shall ensure that the protected health information of any person or persons subject to the order of quarantine shall only be disclosed in compliance with § 32.1-127.1:03 of this title and the regulations relating to privacy of health records promulgated by the federal Department of Health and Human Services pursuant to the Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. § 1320d et seq.).
  10. Any law-enforcement officer, state or local health department employee, or any other person designated by a law-enforcement officer or state or local health department employee is empowered and authorized to deliver an order of quarantine.

History. 2004, cc. 773, 1021; 2007, cc. 699, 783.

Cross references.

As to authority of police officers to deliver, serve, execute, and enforce orders of isolation and quarantine, see § 15.2-1704 .

The 2007 amendments.

The 2007 amendments by cc. 699 and 783 are identical, and deleted “or to extend, when necessary, the duration of the quarantine” from the end of subsection D; inserted “is located or” in the first paragraph and added the final paragraph of subsection E; inserted subsection F and redesignated the remaining subsections accordingly; inserted “confirm or” in present subsection G; and added subsection J.

§ 32.1-48.010. Appeal of any order of quarantine.

  1. Any person or persons subject to an order of quarantine or a court-ordered extension of any such order pursuant to this article may file an appeal of the order of quarantine as such order applies to such person or persons in the circuit court for the city or county in which the subject or subjects of the order reside or are located or the circuit court for the jurisdiction or jurisdictions for any affected area. Any petition for appeal shall be in writing, shall set forth the grounds on which the order of quarantine is being challenged vis-a-vis the subject person or persons or affected area, and shall be served upon the State Health Commissioner or his legal representative.
  2. A hearing on the appeal of the order of quarantine shall be held within 48 hours of the filing of the petition for appeal or, if the 48-hour period terminates on a Saturday, Sunday, legal holiday or day on which the court is lawfully closed, the hearing shall be held on the next day that is not a Saturday, Sunday, legal holiday or day on which the court is lawfully closed.In extraordinary circumstances, for good cause shown, the Commissioner may request a continuance of the hearing, which the court shall only grant after giving due regard to the rights of the affected individuals, the protection of the public health and safety, the severity of the emergency, and the availability of witnesses and evidence.
  3. Any person appealing an order of quarantine shall have the burden of proving that he is not properly the subject of the order of quarantine.
  4. The filing of an appeal shall not stay any order of quarantine.
  5. Upon receiving multiple appeals of an order of quarantine that applies to a group of persons or an affected area, the court may, on the motion of any party or on the court’s own motion, consolidate the cases in a single proceeding for all appeals when (i) there are common questions of law or fact relating to the individual claims or rights to be determined; (ii) the claims of the consolidated cases are substantially similar; and (iii) all parties to the appeals will be adequately represented in the consolidation.
  6. The circuit court shall not conduct a de novo review of the order of quarantine; however, the court shall consider the existing record and such supplemental evidence as the court shall consider relevant. The court shall conduct the hearing on an appeal of an order of quarantine in a manner that will protect the health and safety of court personnel, counsels, witnesses, and the general public and in accordance with rules of the Supreme Court of Virginia pursuant to subsection C of § 17.1-503 . The court may, for good cause shown, hold all or any portion of the hearings in camera upon motion of any party or upon the court’s own motion.
  7. Upon completion of the hearing, the court may (i) vacate or modify the order of quarantine as such order applies to any person who filed the appeal and who is not, according to the record and the supplemental evidence, appropriately subject to the order of quarantine; (ii) vacate or modify the order of quarantine as such order applies to all persons who filed an appeal and who are not, according to the record and the supplemental evidence, appropriately subject to the order of quarantine; (iii) confirm the order of quarantine as it applies to any person or all appealing parties upon a finding that such person or persons are appropriately subject to the order of quarantine and that quarantine is being implemented in the least restrictive environment to address the public health threat effectively, given the reasonably available information on effective control measures and the nature of the communicable disease of public health threat; or (iv) confirm the order of quarantine as it applies to all persons subject to the order upon finding that all such persons are appropriately subject to the order of quarantine and that quarantine is being implemented in the least restrictive environment to address the public health threat effectively, given the reasonably available information on effective control measures and the nature of the communicable disease of public health threat.In any case in which the court shall vacate the order of quarantine as it applies to any person who has filed a request for review of such order and who is subject to such order or as it applies to all persons seeking judicial review who are subject to such order, the person or persons shall be immediately released from quarantine unless such order to vacate the quarantine shall be stayed by the filing of an appeal to the Supreme Court or the Court of Appeals. Any party to the case may file an appeal of the circuit court decisions to the Court of Appeals. Parties to the case shall include any person who is subject to an order of quarantine and has filed an appeal of such order with the circuit court and the State Health Commissioner.
  8. Appeals of any final order of any circuit court regarding the State Health Commissioner’s petition for review and confirmation or extension of an order of quarantine or any appeal of an order of quarantine by a person or persons who are subject to such order shall be appealable to the Court of Appeals, with an expedited review in accordance with the rules of the court pursuant to subsection C of § 17.1-503 .
  9. Appeals of any circuit court order relating to an order of quarantine shall not stay any order of quarantine.
  10. Persons requesting judicial review of any order of quarantine shall have the right to be represented by an attorney in all proceedings. If the person is unable to afford an attorney, counsel shall be appointed for the person by the circuit court for the jurisdiction in which the person or persons who are subject to the order of quarantine reside or, in the case of an affected area, by the circuit court for the jurisdiction or jurisdictions for the affected area. Counsel so appointed shall be paid at a rate established by the Supreme Court of Virginia from the Commonwealth’s criminal fund.

History. 2004, cc. 773, 1021; 2007, cc. 699, 783; 2021, Sp. Sess. I, c. 489.

Editor’s note.

Acts 2021, Sp. Sess. I, c. 489, cl. 3 provides: “That any case for which a notice of appeal to the Supreme Court has been filed prior to January 1, 2022, shall continue in the Supreme Court of Virginia and shall not be affected by the provisions of this act.”

Acts 2021, Sp. Sess. I, c. 489, cl. 4 provides: “That any case for which a petition for appeal in a criminal case to the Court of Appeals has been filed prior to January 1, 2022, and a decision on such petition remains pending, such petition for appeal shall be deemed granted and the clerk of the Court of Appeals shall certify the granting of such petition to the trial court and all counsel. Such case shall be considered mature for purposes of further proceedings from the date of such certificate.”

Acts 2021, Sp. Sess. I, c. 489, cl. 6 provides: “That the provisions of this act amending § 17.1-400 of the Code of Virginia shall become effective in due course and that the remaining provisions of this act shall become effective on January 1, 2022.”

The 2007 amendments.

The 2007 amendments by cc. 699 and 783 are identical, and inserted “or are located” in subsection A.

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 489, effective January 1, 2022, in subsection G in the second paragraph, substituted “Supreme Court or the Court of Appeals” for the first occurrence of “Supreme Court of Virginia” and “Court of Appeals” for second occurrence of “Supreme Court of Virginia”; and in subsection H, deleted “directly” following “appealable” and substituted “Court of Appeals” for “Supreme Court of Virginia.”

Cross references.

As to quarantine of individual exposed to contagious or infectious animal diseases, see § 3.2-6006.

As to appeal of orders relating to quarantine or isolation of persons to the Virginia Supreme Court, see Rule 5:41, Rules of the Virginia Supreme Court.

§ 32.1-48.011. Isolation may be ordered under certain exceptional circumstances; Commissioner authorized to require hospitalization or other health care.

  1. Whenever the State Health Commissioner makes a determination of exceptional circumstances pursuant to § 32.1-48.05 and that the isolation procedures set forth in Article 3.01 (§ 32.1-48.01 et seq.) of this chapter are insufficient control measures to contain a communicable disease of public health threat, the isolation procedures herein may be invoked.
  2. The State Health Commissioner may order the isolation of a person or persons upon a finding that (i) such person or persons are infected with or may reasonably be suspected to be infected with a communicable disease of public health threat and (ii) isolation is necessary to protect the public health, to ensure such isolated person or persons receive appropriate medical treatment, and to protect health care providers and others who may come into contact with such infected person or persons.
  3. The State Health Commissioner shall record his findings and any information on which he has relied in making the finding required for isolation pursuant to this section. The State Health Commissioner’s record of findings concerning any communicable disease of public health threat that is involved in an order of isolation shall be confidential and shall not be disclosed in accordance with subdivision 12 of § 2.2-3705.5.
  4. The Commissioner may order the isolated person or persons to remain in their places of residence, to remain in another place where they are present, or to report to a place or facility designated by the Commissioner for the duration of their isolation. An electronic device may be used to enforce any such isolation. The Commissioner’s order of isolation shall be for a duration consistent with the known course of such communicable disease of public health threat or, if the course of the disease is unknown or uncertain, for a period consistent with the probable course of the communicable disease of public health threat.
  5. To the extent that persons subject to an order of isolation pursuant to this article require hospitalization or other health care services, the State Health Commissioner shall be authorized to require that such services be provided.
  6. The State Health Commissioner shall also have the authority to monitor the medical condition of any person or persons subject to an order of isolation pursuant to this article through regular visits by public health nurses or such other means as the Commissioner shall determine to be necessary.

History. 2004, cc. 773, 1021; 2017, c. 778.

The 2017 amendments.

The 2017 amendment by c. 778 substituted “subdivision 12 of § 2.2-3705.5” for “subdivision 17 of § 2.2-3705.5” in subsection C.

§ 32.1-48.012. Isolation order.

  1. The State Health Commissioner shall, prior to placing any person or persons in isolation, prepare a written order of isolation that shall: (i) identify the person or persons subject to such order of isolation; (ii) identify the site of isolation, which may, in the Commissioner’s discretion, include the residence of any isolated individual; (iii) specify the date and time that isolation is to commence; (iv) identify the communicable disease of public health threat or the suspected communicable disease of public health threat with which the person or persons are known to be infected or reasonably suspected to be infected; (v) specify the bases for isolation, including why isolation is the necessary means to contain transmission of the disease, and any conditions of the isolation; (vi) provide timely opportunities, if not readily available under the circumstances, for the person or person who are subject to the order to notify employers, next of kin or legally authorized representatives and the attorneys of their choice of the situation; (vii) specify the penalty or penalties that may be imposed for noncompliance with order of isolation pursuant to § 32.1-27 ; and (viii) include a copy of § 32.1-48.013 to inform any person or persons subject to an order of isolation of the right to seek judicial review or the order.
  2. No affected area shall be the subject of an order of isolation prepared by the State Health Commissioner unless the Governor, pursuant to the authority vested in him pursuant to Chapter 3.2 (§ 44-146.13 et seq.) of Title 44, has declared a state of emergency for such affected area of the Commonwealth.
  3. The order of isolation shall be delivered to any person or persons affected by the isolation, in so far as practicable. However, if, in the opinion of the State Health Commissioner, the number of isolated persons is too great to make delivery of copies of the order of isolation to each person possible in a timely manner, or if the order of isolation designates an affected area instead of a specific person or persons, the State Health Commissioner shall cause the order of isolation to be communicated to the persons residing or located in the affected area.
  4. The State Health Commissioner shall, as soon as practicable following the issuance of an order of isolation, file a petition seeking an ex parte court order to review and confirm the isolation.
  5. The petition shall be filed in the circuit court for the city or county in which the person or persons resides or is located or, in the case of an affected area, in the circuit court of the affected jurisdiction or jurisdictions.Upon receiving multiple orders of isolation, the court may, on the motion of any party or on the court’s own motion, consolidate the cases into a single proceeding for all orders when (i) there are common questions of law or fact relating to the individual claims or rights to be determined, (ii) the claims of the cases are substantially similar, and (iii) all parties to the orders will be adequately represented in the consolidation.
  6. The petition shall include (i) a copy of the order of isolation or all information contained in the State Health Commissioner’s order of isolation in some other format and (ii) a summary of the findings on which the Commissioner relied in determining that an order of isolation was required to contain the transmission of the communicable disease of public health threat.
  7. Prior to the expiration of the original order of isolation, the Commissioner may extend the duration of the original order upon finding that such an extension is necessary. The Commissioner, or his legal representative, shall, as soon as practicable following the extension of an order of isolation, file a petition seeking court review and confirmation of the order to extend the duration of the isolation.
  8. In reviewing any petition for review and confirmation or extension of the order of isolation, the court shall give due deference to the specialized expertise of the State Health Commissioner. The court shall grant the petition to confirm or extend the isolation upon finding probable cause that isolation was the necessary means and remains the least restrictive environment to address the public health threat effectively, given the reasonably available information on effective control measures and the nature of the communicable disease of public health threat.
  9. The State Health Commissioner may, if he reasonably believes that public disclosure of the information contained in the order of isolation or the petition for review and confirmation or extension of the order of isolation will exacerbate the public health threat or compromise any current or future criminal investigation or compromise national security, file some or all of any petition to extend an order of isolation under seal. After reviewing any information filed under seal by the State Health Commissioner, the court shall reseal the relevant materials to the extent necessary to protect public health and safety.
  10. The State Health Commissioner shall ensure that the protected health information of any person or persons subject to the order of isolation shall only be disclosed in compliance with the regulations relating to privacy of health records promulgated by the federal Department of Health and Human Services pursuant to the Health Insurance Portability and Accountability Act of 1996.
  11. Any law-enforcement officer, state or local health department employee, or any other person designated by a law-enforcement officer or state or local health department employee is empowered and authorized to deliver an order of isolation.

History. 2004, cc. 773, 1021; 2007, cc. 699, 783.

Cross references.

As to authority of police officers to deliver, serve, execute, and enforce orders of isolation and quarantine, see § 15.2-1704 .

Editor’s note.

The Health Insurance Portability and Accountability Act, referred to in subsection J above, is codified generally as 42 U.S.C. § 1320d et seq.

The 2007 amendments.

The 2007 amendments by cc. 699 and 783 are identical, and deleted “or if necessary, to extend” preceding “the isolation” in subsection D; inserted “is located or” in the first paragraph and added the final paragraph in subsection E; inserted subsection G and redesignated the remaining subsections accordingly; and added subsection K.

§ 32.1-48.013. Appeal of any order of isolation.

  1. Any person or persons subject to an order of isolation or a court-ordered confirmation or extension of any such order pursuant to this article may file an appeal of the order of isolation in the circuit court for the city or county in which such person or persons reside or are located or, in the case of an affected area, in the circuit court for any affected jurisdiction or jurisdictions. Any petition for appeal shall be in writing, shall set forth the grounds on which the order of isolation is being challenged vis-a-vis the subject person or persons or affected area, and shall be served upon the State Health Commissioner or his legal representative.
  2. A hearing on the appeal of the order of isolation shall be held within 48 hours of the filing of the petition for appeal or, if the 48-hour period terminates on a Saturday, Sunday, legal holiday or day on which the court is lawfully closed, the hearing shall be held on the next day that is not a Saturday, Sunday, legal holiday or day on which the court is lawfully closed.In extraordinary circumstances, for good cause shown, the Commissioner may request a continuance of the hearing, which the court shall only grant after giving due regard to the rights of the affected individuals, the protection of the public health and safety, the severity of the emergency, and the availability of witnesses and evidence.
  3. Any person appealing an order of isolation shall have the burden of proving that he is not properly the subject of the order of isolation.
  4. An appeal shall not stay any order of isolation.
  5. Upon receiving multiple appeals of an order of isolation, the court may, on the motion of any party or on the court’s own motion, consolidate the cases in a single proceeding for all appeals when (i) there are common questions of law or fact relating to the individual claims or rights to be determined; (ii) the claims of the consolidated cases are substantially similar; and (iii) all parties to the appeals will be adequately represented in the consolidation.
  6. The circuit court shall not conduct a de novo review of the order of isolation; however, the court shall consider the existing record and such supplemental evidence as the court shall consider relevant. The court shall conduct the hearing on an appeal of an order of isolation in a manner that will protect the health and safety of court personnel, counsels, witnesses, and the general public and in accordance with rules of the Supreme Court of Virginia pursuant to subsection C of § 17.1-503 . The court may, for good cause shown, hold all or any portion of the hearings in camera upon motion of any party or the court’s own motion.
  7. Upon completion of the hearing, the court may (i) vacate or modify the order of isolation as such order applies to any person who filed the appeal and who is not, according to the record and the supplemental evidence, appropriately subject to the order of isolation; (ii) vacate or modify the order of isolation as such order applies to all persons who filed an appeal and who are not, according to the record and the supplemental evidence, appropriately subject to the order of isolation; (iii) confirm the order of isolation as it applies to any person or all appealing parties upon a finding that such person or persons are appropriately subject to the order of isolation and that isolation is being implemented in the least restrictive environment to address the public health threat effectively, given the reasonably available information on effective infection control measures and the nature of the communicable disease of public health threat; or (iv) confirm the order of isolation as it applies to all persons subject to the order upon finding that all such persons are appropriately subject to the order of isolation and that isolation is being implemented in the least restrictive environment to address the public health threat effectively given the reasonably available information on effective control measures and the nature of the communicable disease of public health threat.In any case in which the court shall vacate the order of isolation as it applies to any person who has filed a request for review of such order and who is subject to such order or as it applies to all persons seeking judicial review who are subject to such order, the person or persons shall be immediately released from isolation unless such order to vacate the isolation shall be stayed by the filing of an appeal to the Court of Appeals. Any party to the case may file an appeal of the circuit court decisions to the Court of Appeals. Parties to the case shall include any person who is subject to an order of isolation and has filed an appeal of such order with the circuit court and the State Health Commissioner.
  8. Appeals of any final order of any circuit court regarding the State Health Commissioner’s petition for review and confirmation or extension of an order of isolation or any appeal of an order of isolation by a person or persons who are subject to such order shall be appealable to the Court of Appeals, with an expedited review in accordance with the rules of the court pursuant to subsection C of § 17.1-503 .
  9. Appeals of any circuit court order relating to an order of isolation shall not stay any order of isolation.
  10. Persons appealing any order of isolation shall have the right to be represented by an attorney in all proceedings. If the person is unable to afford an attorney, counsel shall be appointed for the person by the circuit court for the jurisdiction in which the person or persons who are subject to the order of isolation reside or, in the case of an affected area, by the circuit court for the jurisdiction or jurisdictions for the affected area. Counsel so appointed shall be paid at a rate established by the Supreme Court of Virginia from the Commonwealth’s criminal fund.

History. 2004, cc. 773, 1021; 2007, cc. 699, 783; 2021, Sp. Sess. I, c. 489.

Editor’s note.

Acts 2021, Sp. Sess. I, c. 489, cl. 3 provides: “That any case for which a notice of appeal to the Supreme Court has been filed prior to January 1, 2022, shall continue in the Supreme Court of Virginia and shall not be affected by the provisions of this act.”

Acts 2021, Sp. Sess. I, c. 489, cl. 4 provides: “That any case for which a petition for appeal in a criminal case to the Court of Appeals has been filed prior to January 1, 2022, and a decision on such petition remains pending, such petition for appeal shall be deemed granted and the clerk of the Court of Appeals shall certify the granting of such petition to the trial court and all counsel. Such case shall be considered mature for purposes of further proceedings from the date of such certificate.”

Acts 2021, Sp. Sess. I, c. 489, cl. 6 provides: “That the provisions of this act amending § 17.1-400 of the Code of Virginia shall become effective in due course and that the remaining provisions of this act shall become effective on January 1, 2022.”

The 2007 amendments.

The 2007 amendments by cc. 699 and 783 are identical, and inserted “are located or” in subsection A.

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 489, effective January 1, 2022, in subsections G and H, substituted “Court of Appeals” for “Supreme Court of Virginia”; and in subsection H, deleted “directly” following “appealable.”

Cross references.

As to appeal of orders relating to quarantine or isolation of persons to the Virginia Supreme Court, see Rule 5:41, Rules of the Virginia Supreme Court.

§ 32.1-48.013:1. Electronic filings as protection from communicable disease.

Notwithstanding Rule 1:17 of the Supreme Court of Virginia, a court in its discretion may permit the electronic or facsimile filing of a petition, notice, brief, notice of appeal, or other legal document when such filing is necessary to expedite the proceedings or to protect the public, court officials, or others participating in the proceedings from exposure to a communicable disease.

History. 2007, cc. 699, 783.

Law Review.

For 2007 annual survey article, “Health Care Law,” see 42 U. Rich. L. Rev. 441 (2007).

§ 32.1-48.014. Enforcement of orders of quarantine or isolation; penalties.

  1. Any person who does not comply with a validly issued order of quarantine or order of isolation issued or prepared pursuant to this article shall be subject to the penalties provided in § 32.1-27 , including, upon conviction, a Class 1 misdemeanor and payment of civil penalties.
  2. Any order of quarantine or isolation shall be enforced by law-enforcement agencies, as directed by the State Health Commissioner. Any enforcement authority directed to law-enforcement agencies by the Commissioner shall expressly include, but need not be limited to, the power to detain or arrest any person or persons identified as in violation of any order of quarantine or isolation, or for whom probable cause exists that he may fail or refuse to comply with any such order.Any person or persons so detained shall be held in the least restrictive environment that can provide any required health care or other services for such person.
  3. Every attorney for the Commonwealth shall have the duty to prosecute, without delay, any violation of this chapter in accordance with the penalties set forth in § 32.1-27 .
  4. Pursuant to 42 U.S.C. 264 et seq. and 42 C.F.R. Parts 70 and 71, any order of quarantine or isolation issued by the Director of the Centers for Disease Control and Prevention affecting the Commonwealth or the Metropolitan Washington Airports Authority may be enforced by local law-enforcement officers or officers of the Metropolitan Washington Airports Authority with jurisdiction over the facility involved in the quarantine or isolation order.

History. 2004, cc. 773, 1021; 2007, cc. 699, 783.

Cross references.

As to authority of police officers to deliver, serve, execute, and enforce orders of isolation and quarantine, see § 15.2-1704 .

As to punishment for Class 1 misdemeanors, see § 18.2-11 .

The 2007 amendments.

The 2007 amendments by cc. 699 and 783 are identical, and rewrote the first paragraph of subsection B; deleted subsection C, pertaining to enforcement of an order of quarantine or isolation, and redesignated the remaining subsections accordingly; and added present subsection D.

§ 32.1-48.015. Authorization to disclose health records.

  1. The provisions of this article are hereby declared to be necessary to prevent serious harm and serious threats to the health and safety of individuals and the public in Virginia for purposes of authorizing the State Health Commissioner or his designee to examine and review any health records of any person or persons subject to any order of quarantine or order of isolation pursuant to this article and the regulations of the Department of Health and Human Services promulgated in compliance with the Health Insurance Portability and Accountability Act of 1996, as amended. The State Health Commissioner shall authorize any designee in writing to so examine and review any health records of any person or persons subject to any order of quarantine or order of isolation pursuant to this article.
  2. Pursuant to the regulations concerning patient privacy promulgated by the federal Department of Health and Human Services, covered entities may disclose protected health information to the State Health Commissioner or his designee without obtaining consent or authorization for such disclosure from the person who is the subject of the records. Such protected health information shall be used to facilitate the health care of any person or persons who are subject to an order of quarantine or an order of isolation. The State Health Commissioner or his designee shall only redisclose such protected health information in compliance with the aforementioned federal regulations. Further, the protected health information disclosed to the State Health Commissioner or his designee shall be held confidential and shall not be disclosed pursuant to the provisions of subdivision 12 of § 2.2-3705.5.
  3. Pursuant to subsection G of § 32.1-116.3 , any person requesting or requiring any employee of a public safety agency as defined in subsection M of § 32.1-45.2 to arrest, transfer, or otherwise exercise custodial supervision over an individual known to the requesting person (i) to be infected with any communicable disease or (ii) to be subject to an order of quarantine or an order of isolation pursuant to Article 3.02 (§ 32.1-48.05 et seq.) of Chapter 2 shall inform such employee of a public safety agency of the potential risk of exposure to a communicable disease.

History. 2004, cc. 773, 1021; 2007, cc. 699, 783; 2017, c. 778; 2020, c. 502.

Editor’s note.

The Health Insurance Portability and Accountability Act, referred to in subsection A above, is codified generally as 42 U.S.C. § 1320d et seq.

The 2007 amendments.

The 2007 amendments by cc. 699 and 783 are identical, and added subsection C.

The 2017 amendments.

The 2017 amendment by c. 778 substituted “subdivision 12 of § 2.2-3705.5” for “subdivision 17 of § 2.2-3705.5” in subsection B.

The 2020 amendments.

The 2020 amendment by c. 502 substituted “subsection M” for “subsection J” in subsection C.

§ 32.1-48.016. Immunity from liability.

Any person, including a person who serves in a Medical Reserve Corps (MRC) unit or on a Community Emergency Response Team (CERT), who, in good faith and in the performance of his duties, acts in compliance with this article and the Board of Health’s regulations shall not be liable for any civil damages for any act or omission resulting from such actions unless such act or omission was the result of gross negligence or willful misconduct.

History. 2004, cc. 773, 1021; 2005, c. 474.

The 2005 amendments.

The 2005 amendment by c. 474 inserted “including a person who serves in a Medical Reserve Corps (MRC) unit or on a Community Emergency Response Team (CERT).”

§ 32.1-48.017. Use of public or private property or facilities.

  1. Upon the declaration by the Governor of a state of emergency pursuant to § 44-146.17 , the State Health Commissioner, acting in concert with the Governor, shall be authorized to require the use of any public or private property, building or facility to implement any order of quarantine or order of isolation. The State Health Commissioner and the Governor shall find, together, that the use of the property, building or facility is necessary and appropriate to enforce an order of quarantine or an order of isolation in the least restrictive environment.
  2. If the Commissioner and the Governor elect to use any public or private property, building or facility pursuant to this article and this section, the Commissioner shall make accommodations, in conjunction with the owner or operator of the property, building or facility, for persons who are employed in, using or occupying the property, building or facility and who are not covered by the relevant order of quarantine or order of isolation.
  3. Owners or operators of any property, building or facility so commandeered shall be entitled to compensation.

History. 2004, cc. 773, 1021.

Article 3.1. Control of Rabies.

§ 32.1-48.1. Regulation of State Health Commissioner declaring existence of rabies; display and publication.

Whenever the State Health Commissioner is informed that an outbreak of rabies has occurred in a county or city, he may, after consulting with the Commissioner of Agriculture and Consumer Services and the Executive Director of the Department of Wildlife Resources, adopt a regulation declaring the existence of rabies in such county or city and containing such requirements as are hereinafter set forth. Such regulations shall be prominently displayed throughout the county or city and shall be published therein by signs or otherwise to call the attention of the public to the existence of such outbreak.

History. 1954, c. 339, § 29-213.1; 1987, c. 488; 2020, c. 958.

The 2020 amendments.

The 2020 amendment by c. 958 substituted “Department of Wildlife Resources” for “Department of Game and Inland Fisheries” in the first sentence.

Michie’s Jurisprudence.

For related discussion, see 9A M.J. Game and Game Laws, § 1.

§ 32.1-48.2. Regulation of Commissioner requiring vaccination or inoculation of dogs.

When the State Health Commissioner has declared that an outbreak of rabies exists in a county or city, he may adopt a regulation requiring all dogs therein to be vaccinated or inoculated against rabies, with such exceptions as he deems appropriate. Such regulation shall set forth the persons by whom and the time within which such vaccination or inoculation may be required. The State Health Commissioner may establish such clinics and furnish other services and supplies as will enable the prompt vaccination or inoculation of all dogs in such county or city.

History. 1954, c. 339, § 29-213.2; 1987, c. 488.

§ 32.1-48.3. Regulations of Commissioner covering local ordinances and requirements.

If the governing body of the county or city in which the outbreak exists does not adopt, under § 3.2-6522, subsection A of § 3.2-6525, §§ 3.2-6538, 3.2-6539, and 3.2-6546, ordinances, regulations and measures to prohibit the running at large of dogs and to prevent the spread of rabies, the State Health Commissioner is authorized to adopt regulations providing for the matters contained in such sections and to enforce the same in the same manner as if they had been specifically adopted by the governing body of the county or city involved, and the provisions of such sections shall apply mutatis mutandis to the regulations adopted by the Commissioner hereunder.

History. 1954, c. 339, § 29-213.3; 1987, c. 488; 2001, c. 674.

Editor’s note.

At the direction of the Virginia Code Commission, Title 3.2 references were substituted for Title 3.1 references to conform to the title revision by Acts 2008, c. 860, effective October 1, 2008.

The 2001 amendments.

The 2001 amendment by c. 674 substituted “subsection A of § 3.1-796.100” for “3.1-796.100,” and inserted “to” preceding “enforce the same.”

§ 32.1-48.4. Commissioner to cooperate with local governing bodies and agencies.

The Commissioner shall, insofar as practicable, cooperate with the local governing body and agencies of the county or city involved to the end that a joint program may be adopted and enforced for the reduction and elimination of rabies.

History. 1954, c. 339, § 29-213.4; 1987, c. 488.

Article 4. Tuberculosis.

§ 32.1-49. Tuberculosis required to be reported.

The Board shall include tuberculosis in the list of diseases provided for in § 32.1-35 which are required to be reported.

History. 1979, c. 711.

§ 32.1-49.1. Definitions.

“Active tuberculosis disease” means a communicable disease caused by an airborne microorganism and characterized by the presence of either (i) a specimen of sputum or other bodily fluid or tissue that has been found to contain tubercle bacilli as evidenced by culture or other definitive diagnostic test as established by the Commissioner, (ii) a specimen of sputum or other bodily fluid or tissue that is suspected to contain tubercle bacilli as evidenced by smear and sufficient clinical and radiographic evidence of active tuberculosis disease is present as determined by a physician licensed to practice medicine in the Commonwealth, or (iii) sufficient clinical and radiographic evidence of active tuberculosis disease as determined by the Commissioner is present, but a specimen of sputum or other bodily fluid or tissue containing or suspected to contain tubercle bacilli is unobtainable.

“Tubercle bacilli” means disease-causing organisms belonging to the Mycobacterium tuberculosis complex and includes Mycobacterium tuberculosis, Mycobacterium bovis, Mycobacterium africanum or other members as established by the Commissioner.

“Tuberculosis” means a disease caused by tubercle bacilli.

History. 2001, c. 459.

§ 32.1-50. Examination of persons suspected of having active tuberculosis disease; reporting; report forms; report schedule; laboratory reports and required samples.

  1. Any local health director may request any person having or reasonably suspected of having active tuberculosis disease to be examined immediately for the purpose of ascertaining the presence or absence of the disease. Such examination may be made by any licensed physician or licensed nurse practitioner selected by such person at his own expense and approved by the local health director or by the local health director at no cost to such person.
  2. Each physician or nurse practitioner practicing in the Commonwealth who diagnoses or treats a person for active tuberculosis disease, or a physician assistant who treats a person for active tuberculosis disease, as defined in § 32.1-49.1 and each person in charge of a medical care facility providing inpatient or outpatient diagnosis or treatment for active tuberculosis disease shall report to the local health director within such time period and in such manner as may be prescribed by regulations of the Board. Such report, at a minimum, shall include an initial report when there are reasonable grounds to believe that a person has active tuberculosis disease, and a subsequent report when a person ceases treatment for tuberculosis disease. Cessation of treatment may be inferred when the person (i) fails to keep a scheduled appointment, (ii) relocates without transferring care, or (iii) discontinues care either upon or against the advice of the treating physician, physician assistant, or nurse practitioner.
  3. The initial disease report shall include the following: the affected person’s name; date of birth; gender; address; pertinent clinical, radiographic, microbiologic, and pathologic reports, whether final or pending; such other information as is needed to locate the patient for follow-up; and any other information as prescribed by regulations of the Board.
  4. Subsequent reports shall be submitted within such time, at such frequency, and in such manner as may be prescribed by regulations of the Board and shall provide updated clinical status, bacteriologic and radiographic results, assessment of treatment adherence, name of current care provider, and any other information as prescribed by the Board.
  5. Every director of any laboratory doing business in the Commonwealth shall, according to the manner and schedule as determined by the Board, report any result diagnostic of or highly correlated with active tuberculosis disease, whether testing is done in-house or referred to an out-of-state laboratory, including cultures positive for tubercle bacilli and smears suggestive of tubercle bacilli, and shall report the results of tests for antimicrobial susceptibility performed on cultures positive for tubercle bacilli. Each director of any laboratory shall also submit a representative and viable sample of the initial culture to the Virginia Division of Consolidated Laboratory Services or other laboratory designated by the Board to receive such specimen in order to (i) ensure testing for antimicrobial susceptibility on each initial isolate from a person with active tuberculosis disease, and (ii) establish a library of such isolates for the purpose of disease strain analysis as indicated by epidemiological investigations.

History. Code 1950, § 32-85.1; 1956, c. 482; 1979, c. 711; 2001, c. 459; 2004, c. 855; 2006, cc. 46, 396, 822.

Editor’s note.

Acts 2004, c. 855, cl. 2 provides: “That this act shall take effect 60 days following the effective date of the regulations promulgated by the Board of Medicine and Board of Nursing required by the third enactment clause of this act.” Emergency regulations took effect July 15, 2004.

Acts 2004, c. 855, cl. 3 provides: “That the Board of Medicine and Board of Nursing shall amend regulations governing the licensure of nurse practitioners to be effective within 280 days of enactment of this act. Such amendments shall require inclusion of the nurse practitioner’s authority for signatures, certifications, stamps, verifications, affidavits and endorsements in the written protocol between the supervising physician and the nurse practitioner.”

Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 299 C, effective for the biennium ending June 30, 2022, provides: “The requirement for testing of tuberculosis isolates set out in § 32.1-50 E, Code of Virginia, shall be satisfied by the submission of samples to the Division of Consolidated Laboratory Services, or such other laboratory as may be designated by the Board of Health.”

The 2004 amendments.

The 2004 amendment by c. 855 inserted “or licensed nurse practitioner” following “licensed physician” in subsection A; and inserted “or nurse practitioner” following “physician” twice in subsection B.

The 2006 amendments.

The 2006 amendments by cc. 46 and 822 are identical, and in subsection E, in the second sentence, inserted the clause (i) designation, clause (ii) and made a related change and deleted “however, this requirement may be fulfilled by submission to the local health director of a report of antimicrobial drug susceptibility performed by a laboratory certified by existing state or national agencies to perform such testing”; and “The intention to file a written report shall be communicated to the local health director at the time the finding of a culture positive for tubercle bacilli is initially reported” at the end.

The 2006 amendment by c. 396, in subsection B, inserted “or a physician assistant who treats a person for active tuberculosis disease” in the first sentence and “physician assistant” in clause (iii).

Law Review.

For 2006 survey article, “Health Care Law,” see 41 U. Rich. L. Rev. 179 (2006).

§ 32.1-50.1. Treatment plan; submission of plan and mediation of disagreements; determination of cure.

  1. Each physician practicing in the Commonwealth who assumes responsibility for the treatment of a person for active tuberculosis as defined in this article and each person in charge of a medical care facility providing inpatient or outpatient treatment to a person with active tuberculosis shall, with the assistance and acknowledgement of that person, develop, maintain, and update as indicated, an individualized written plan of treatment tailored to the person’s medical and personal needs and identifying the method for effective treatment and prevention of transmission. At a minimum, the plan shall specifically include verified patient address, name of the medical provider who has assumed responsibility for treatment, planned course of anti-tuberculosis drug therapy, estimated date of treatment completion, and means of ensuring successful completion of that treatment.
  2. The written treatment plan shall upon request be submitted by the medical provider to the local health director in a manner determined by the Board and shall be subject to approval of the local health director. The Commissioner shall have the authority to settle, based on statewide standards, disagreements between the written plan so submitted and standards of care established by the local health director.
  3. Each treating physician of or person in charge of a medical facility providing outpatient or inpatient care to a person with active tuberculosis disease shall maintain and submit to the local health director, upon his request, written documentation of that person’s adherence to the treatment plan.
  4. Each person in charge of a medical care facility providing inpatient treatment to a person with active tuberculosis disease and each person in charge of a state correctional or local correctional or detention facility that has in its custody a person with active tuberculosis shall submit to the local health director, in the manner determined by the Board, the plan of treatment for such person as required in this article. The person in charge shall encourage the person to comply with such treatment plan; however, if such person with active tuberculosis indicates an unwillingness to comply with the treatment plan upon release, or exhibits behavior that indicates noncompliance, the person in charge, in conjunction with the local health director, may request the Commissioner to issue an emergency order requiring such person to be taken into custody pursuant to § 32.1-48.02 or other detention or custody options available pursuant to § 32.1-48.03 or § 32.1-48.04 .
  5. Once established in a person, active tuberculosis disease shall be considered present until (i) the person has received a complete and adequate course of antituberculosis drug therapy as established by the Commissioner in accordance with guidelines developed by the American Thoracic Society and Centers for Disease Control and Prevention and (ii) three successive cultures of specimens of sputum or other bodily fluid or tissue collected at intervals of no less than one week, or other definitive diagnostic test as established by the Commissioner demonstrate no viable tubercle bacilli, or the Commissioner or his designee determines that the clinical, laboratory, or radiographic evidence leads to a diagnosis other than active tuberculosis disease.

History. 2001, c. 459.

§ 32.1-50.2. Administration of tuberculin purified protein derivative by nurses; policies and guidelines.

The Department shall issue policies and guidelines governing the possession and administration of tuberculin purified protein derivative (PPD) by registered nurses and licensed practical nurses pursuant to § 54.1-3408.

History. 2003, c. 515.

§§ 32.1-51, 32.1-52. Repealed by Acts 1990, c. 958.

Cross references.

As to isolation of certain persons with communicable diseases, see § 32.1-48.01 et seq.

§ 32.1-53. Facilities and contracts for treatment of tuberculosis patients.

The Board may construct and operate hospitals and other facilities for the diagnosis and treatment of tuberculosis or enter into contractual arrangements with medical schools and hospitals in the Commonwealth for the care and treatment of tuberculosis patients.

History. Code 1950, § 32-312; 1979, c. 711.

§ 32.1-54. Commissioner authorized to charge patients for care.

When a tuberculosis patient is admitted to a facility operated by the Board or under contract with the Board, the Commissioner shall determine whether such patient or any person legally liable for such patient’s support is able to pay in whole or in part for such patient’s care. In making such determination, the Commissioner shall consider whether such patient or other person can make such payment and meet his other financial responsibilities for the support of himself and his family. Such determination may be made from time to time according to the circumstances of each case. If the Commissioner determines that a patient or person legally liable for his support can pay for the cost of his care or a portion thereof, the Commissioner shall collect for the cost of such care the actual average per diem cost or such portion thereof as the Commissioner may determine the patient should pay. The Commissioner shall also collect any third-party payments as may be available for the care and treatment of such patient unless other contractual arrangements are made.

History. Code 1950, § 32-312.1; 1954, c. 698; 1956, c. 499; 1979, c. 711.

Article 5. Venereal Diseases.

§ 32.1-55. Definition.

As used in this article, “venereal disease” includes syphilis, gonorrhea, chancroid, granuloma inguinale, lymphogranuloma venereum and any other sexually transmittable disease determined by the Board to be dangerous to the public health.

History. Code 1950, § 32-90; 1979, c. 711.

§ 32.1-55.1. Anonymous testing sites for human immunodeficiency virus.

From such funds as are appropriated for this purpose, the Board of Health shall make available in all health services areas of the Commonwealth anonymous testing for infection with human immunodeficiency virus.

History. 1989, c. 613.

Michie’s Jurisprudence.

For related discussion, see 9A M.J. Health and Sanitation, § 1.

§ 32.1-56. Information to be provided patients.

It shall be the duty of every physician or other person who examines or treats a person having a venereal disease to provide such person with information about the disease, including, as a minimum, the nature of the disease, methods of treatment, measures used in preventing the spread of such disease, and the necessity of tests to ensure that a cure has been accomplished.

History. Code 1950, § 32-92; 1979, c. 711.

§ 32.1-57. Examination, testing and treatment; failure to comply with order of examination.

  1. A local health director may require any person suspected of being infected with any venereal disease to submit to examination, testing and treatment if necessary.
  2. If any such person refuses to submit to an examination, testing or treatment or to continue treatment until found to be cured by proper test, the local health director may apply to the appropriate circuit court for an order compelling such examination, testing or treatment. Any person willfully failing to comply with such order shall be punishable as for contempt of court.
  3. If a person infected with venereal disease is required by the local health director to receive treatment therefor and such person receives such treatment from the local health department, no fee shall be charged.

History. Code 1950, § 32-93; 1979, c. 711; 1988, c. 399.

Law Review.

For survey on evidence in Virginia for 1989, see 23 U. Rich. L. Rev. 647 (1989).

§ 32.1-58. Persons convicted of certain crimes to be examined, tested and treated.

Each person convicted of a violation of § 18.2-346 , 18.2-346 .01, or 18.2-361 shall be examined and tested for venereal disease and treated if necessary.

History. Code 1950, § 32-94; 1979, c. 711; 2021, Sp. Sess. I, c. 188.

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 188, effective July 1, 2021, substituted “18.2-346.01, or 18.2-361 ” for “or § 18.2-361 .”

§ 32.1-59. Examination and treatment in certain institutions.

Every person admitted to any state correctional institution and every person admitted to a state hospital or training center operated by the Department of Behavioral Health and Developmental Services shall be examined and tested for venereal disease. If the person is found to be infected with a venereal disease, the person in charge of such institution or state hospital or training center shall promptly provide treatment and shall report such case as provided in § 32.1-37 .

History. Code 1950, § 32-104; 1979, c. 711; 2012, cc. 476, 507.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “admitted to a state hospital or training center operated by the Department of Behavioral Health and Developmental Services” for “who is confined to a state hospital for the mentally ill or mentally retarded” in the first sentence; and in the second sentence, substituted “If the person” for “If any such person” and inserted “or state hospital or training center.”

§ 32.1-60. Prenatal tests required.

Every physician, physician assistant, or nurse practitioner attending a pregnant woman during gestation shall examine and test such woman for such venereal diseases as the Board may designate within 15 days after beginning such attendance. Every other person permitted by law to attend upon pregnant women but not permitted by law to make such examinations and tests, shall cause such examinations and tests to be made by a licensed physician, licensed nurse practitioner, or clinic. Serological tests required by this section may be performed by the Department of General Services, Division of Consolidated Laboratory Services (DCLS).

History. Code 1950, § 32-104.1; 1950, p. 108; 1979, c. 711; 1980, c. 184; 1984, c. 140; 1993, c. 364; 2004, c. 855; 2006, c. 396.

Editor’s note.

Acts 2004, c. 855, cl. 2 provides: “That this act shall take effect 60 days following the effective date of the regulations promulgated by the Board of Medicine and Board of Nursing required by the third enactment clause of this act.” Emergency regulations took effect July 15, 2004.

Acts 2004, c. 855, cl. 3 provides: “That the Board of Medicine and Board of Nursing shall amend regulations governing the licensure of nurse practitioners to be effective within 280 days of enactment of this act. Such amendments shall require inclusion of the nurse practitioner’s authority for signatures, certifications, stamps, verifications, affidavits and endorsements in the written protocol between the supervising physician and the nurse practitioner.”

The 2004 amendments.

The 2004 amendment by c. 855 inserted “or nurse practitioner” following “Every physician” and substituted “15 days” for “fifteen days” in the first sentence; and inserted “licensed nurse practitioner” following “licensed physician” in the second sentence. For effective date, see Editor’s notes.

The 2006 amendments.

The 2006 amendment by c. 396 inserted “physician assistant” in the first sentence.

Law Review.

For 2006 survey article, “Health Care Law,” see 41 U. Rich. L. Rev. 179 (2006).

Article 6. Prevention of Blindness from Ophthalmia Neonatorum.

§ 32.1-61. Definition.

As used in this article, “ophthalmia neonatorum” means any inflammation, swelling or unusual redness in one or both eyes of any infant, either apart from or together with any unnatural discharge from the eye or eyes of such infant, independent of the nature of the infection, if any, occurring at any time within two weeks after the birth of such infant.

History. Code 1950, § 32-105; 1979, c. 711.

§ 32.1-62. Procedure upon infant’s birth.

In order to prevent ophthalmia neonatorum, the physician, nurse or midwife in charge of the delivery of a baby or, if none, the first attending physician shall, immediately after the baby’s birth, perform upon such baby the procedure prescribed by the Board. Such action shall be duly recorded in the medical record of the baby.

History. Code 1950, § 32-107; 1979, c. 711.

Law Review.

For article, “Allocation of Child Medical Care Decisionmaking Authority: A Suggested Interest Analysis,” see 62 Va. L. Rev. 285 (1976).

§ 32.1-63. Duty of physician, midwife or nurse noting ophthalmia neonatorum.

It shall be the duty of any physician, midwife or nurse who notes ophthalmia neonatorum within two weeks after the birth of an infant to perform or cause to be performed such tests as are necessary to ascertain the cause of such inflammation and to institute or have instituted appropriate therapy. When the cause of such inflammation is ascertained to be gonococcus, such physician, nurse or midwife shall report the infection to the local health director or the Commissioner as provided in § 32.1-36 .

History. Code 1950, § 32-106; 1979, c. 711.

§ 32.1-64. Duty of Board to provide for treatment.

The Board shall provide for the gratuitous distribution of the necessary treatment approved by it for ophthalmia neonatorum, together with proper directions for the use and administration thereof, to all physicians, midwives and hospitals requesting it. The Board shall provide free of charge in medically indigent cases the necessary treatment for ophthalmia neonatorum when the cause is ascertained to be gonococcus.

History. Code 1950, § 32-109; 1979, c. 711.

Article 6.1. Virginia Hearing Loss Identification and Monitoring System.

§ 32.1-64.1. Virginia Hearing Loss Identification and Monitoring System.

  1. In order to identify hearing loss at the earliest possible age among newborns and to provide early intervention for all infants so identified as having hearing loss, the Commissioner shall establish and maintain the Virginia Hearing Loss Identification and Monitoring System. This system shall be for the purpose of identifying and monitoring infants with hearing loss to ensure that such infants receive appropriate early intervention through treatment, therapy, training, and education.
  2. The Virginia Hearing Loss Identification and Monitoring System shall be initiated in all hospitals with neonatal intensive care services, in all hospitals in the Commonwealth having newborn nurseries, and in other birthing places or centers in the Commonwealth.
  3. In all hospitals with neonatal intensive care services, the chief medical officer of such hospitals or his designee shall identify infants at risk of hearing loss using criteria established by the Board. Beginning on July 1, 1999, all infants shall be given a hearing screening test, regardless of whether or not the infant is at risk of hearing loss, by the chief medical officer or his designee using methodology approved by the Board. The test shall take place before the infant is discharged from the hospital to the care of the parent or guardian or as the Board may by regulation provide.In all other hospitals and other birthing places or centers, the chief medical officer or his designee or the attending practitioner shall identify infants at risk of hearing loss using criteria established by the Board.
  4. Beginning on July 1, 2000, the Board shall provide by regulation for the giving of hearing screening tests for all infants born in all hospitals. The Board’s regulations shall establish when the testing shall be offered and performed and procedures for reporting.An infant whose hearing screening indicates the need for a diagnostic audiological examination shall be offered such examination at a center approved by the Board of Health. As a condition of such approval, such centers shall maintain suitable audiological support and medical and educational referral practices.
  5. The Commissioner shall appoint an advisory committee to assist in the design, implementation, and revision of this identification and monitoring system. The advisory committee shall meet at least four times per year. A chairman shall be elected annually by the advisory committee. The Department of Health shall provide support services to the advisory committee. The advisory committee shall consist of representatives from relevant groups including, but not limited to, the health insurance industry; physicians, including at least one pediatrician or family practitioner, one otolaryngologist, and one neonatologist; nurses representing newborn nurseries; audiologists; hearing aid dealers and fitters; teachers of the deaf and hard of hearing; parents of children who are deaf or hard of hearing; adults who are deaf or hard of hearing; hospital administrators; and personnel of appropriate state agencies, including the Department of Medical Assistance Services, the Department of Education, and the Department for the Deaf and Hard-of-Hearing. The Department of Education, the Department for the Deaf and Hard-of-Hearing, and the Department of Behavioral Health and Developmental Services shall cooperate with the Commissioner and the Board in implementing this system.
  6. With the assistance of the advisory committee, the Board shall promulgate such rules and regulations as may be necessary to implement this identification and monitoring system. These rules and regulations shall include criteria, including current screening methodology, for the identification of infants (i) with hearing loss and (ii) at risk of hearing loss and shall include the scope of the information to be reported, reporting forms, screening protocols, appropriate mechanisms for follow-up, relationships between the identification and monitoring system and other state agency programs or activities, and mechanisms for review and evaluation of the activities of the system. The identification and monitoring system shall collect the name, address, sex, race, and any other information determined to be pertinent by the Board, for infants who are screened pursuant to this section.
  7. In addition, the Board’s regulations shall provide that any person making a determination that an infant (i) is at risk for hearing loss, (ii) has failed to pass a hearing screening, or (iii) was not successfully tested shall notify the parent or guardian of the infant, the infant’s primary care practitioner, and the Commissioner. The Board may provide guidelines for the notification process.
  8. No testing required to be performed or offered by this section shall be performed if the parents of the infant object to the test based on their bona fide religious convictions.

History. 1986, c. 419; 1998, cc. 505, 506, 513; 2004, c. 855; 2009, cc. 813, 840; 2012, c. 147; 2019, c. 288.

Cross references.

As to coverage for infant hearing screenings and all necessary audiological examinations in state employee health insurance plans, see § 2.2-2818.

Editor’s note.

Acts 2004, c. 855, cl. 2 provides: “That this act shall take effect 60 days following the effective date of the regulations promulgated by the Board of Medicine and Board of Nursing required by the third enactment clause of this act.” Emergency regulations took effect July 15, 2004.

Acts 2004, c. 855, cl. 3 provides: “That the Board of Medicine and Board of Nursing shall amend regulations governing the licensure of nurse practitioners to be effective within 280 days of enactment of this act. Such amendments shall require inclusion of the nurse practitioner’s authority for signatures, certifications, stamps, verifications, affidavits and endorsements in the written protocol between the supervising physician and the nurse practitioner.”

Acts 2019, c. 288 substituted “hearing loss” for “hearing impairment” in the Article 6.1 heading.

The 2004 amendments.

The 2004 amendment by c. 855 substituted “practitioner” for “physician” in subsection G. For effective date, see Editor’s notes.

The 2009 amendments.

The 2009 amendments by cc. 813 and 840 are identical, and substituted “Behavioral Health and Developmental” for “Mental Health, Mental Retardation and Substance Abuse” near the end of subsection E.

The 2012 amendments.

The 2012 amendment by c. 147 deleted “having newborn nurseries” from the end in subsection B; substituted “for infants who are screened pursuant to this section” for “regarding infants determined to be at risk of hearing impairment or to have hearing loss” in the last sentence of subsection F; and added the last sentence in subsection G.

The 2019 amendments.

The 2019 amendment by c. 288 substituted “hearing loss” for “hearing impairment” throughout; and made stylistic changes.

§ 32.1-64.2. Confidentiality of records; publication; Commissioner required to contact parents, physicians, and relevant local early intervention program.

The Commissioner and all other persons to whom data is submitted pursuant to § 32.1-64.1 shall keep such information confidential. No publication of research or statistical data shall be made that identifies any infant with hearing loss or risk of hearing loss. The Commissioner shall contact the parents of children identified with hearing loss or at risk of hearing loss, their physicians, and the relevant local early intervention program to provide them with information about available public and private health care and educational resources, including any hearing loss clinics.

The Commissioner may authorize linkages between secure electronic data systems maintained by the Department of Health containing newborn hearing screening records and the Virginia Immunization Information System (VIIS) operated pursuant to § 32.1-46.01 . The Commissioner may authorize health care providers authorized to view VIIS to view newborn hearing screening records of individuals to whom the providers are providing health care services. The records may be made available until the child reaches seven years of age, after which the records shall not be made available through a linkage to VIIS. Such linkages shall be subject to all applicable state and federal privacy laws and regulations.

History. 1986, c. 419; 1998, cc. 505, 506, 513; 2012, c. 147; 2019, c. 288.

The 2012 amendments.

The 2012 amendment by c. 147, in the first paragraph, substituted “of research or statistical data shall be made that identifies any infant with hearing impairment or risk of hearing impairment” for “of information shall be made except in the form of statistical or other studies which do not identify individuals” in the second sentence, deleted “However,” at the beginning of the third sentence; and added the final paragraph.

The 2019 amendments.

The 2019 amendment by c. 288 substituted “hearing loss” for “hearing impairment” throughout.

Article 7. Newborn Screening.

§ 32.1-65. Certain newborn screening required.

In order to prevent intellectual disability and permanent disability or death, every infant who is born in the Commonwealth shall be subjected to screening tests for various disorders consistent with, but not necessarily identical to, the uniform condition panel recommended by the U.S. Secretary of Health and Human Services and the Secretary’s Advisory Committee on Heritable Disorders in Newborns and Children.

Any infant whose parent or guardian objects thereto on the grounds that such tests conflict with his religious practices or tenets shall not be required to receive such screening tests.

The physician or certified nurse midwife in charge of the infant’s care after delivery shall cause such tests to be performed. The screening tests shall be performed by the Division of Consolidated Laboratory Services or any other laboratory the Department of Health has contracted with to provide such service. Screening tests for time-critical disorders identified by the U.S. Department of Health and Human Services and the Secretary’s Advisory Committee on Heritable Disorders in Newborns and Children shall be performed seven days a week.

The program for screening infants for sickle cell diseases shall be conducted in addition to the programs provided for in Article 8 (§ 32.1-68 et seq.).

History. Code 1950, §§ 32-112.1, 32-112.9; 1966, c. 179; 1979, c. 711; 1983, c. 582; 1986, c. 172; 1988, c. 97; 1992, cc. 747, 873; 2001, c. 255; 2002, c. 440; 2004, c. 760; 2005, cc. 717, 721; 2012, cc. 147, 476, 507; 2018, c. 531.

Editor’s note.

At the direction of the Virginia Code Commission, the amendment of this section by Acts 1992, c. 873 has been given effect.

Acts 2005, cc. 717 and 721, cl. 2, effective March 1, 2006, repeals Acts 2002, c. 440, cl. 2, which made 2002 amendments to this section contingent on funding to 1) support Virginia Department of Health’s costs for start-up professional and family education and 2) purchase the necessary equipment for implementation of the testing program.

Acts 2018, c. 531, cl. 2 provides: “That the provisions of this act shall become effective on January 1, 2019.”

Acts 2018, cc. 562 and 563, cl. 1 provides: “That the Board of Health shall amend regulations governing newborn screening to include screening for Pompe disease and mucopolysaccharidosis type 1 (MPS-1).”

Acts 2019, c. 423, cl. 1 provides: “That the Board of Health shall amend regulations governing newborn screening to include screening for congenital cytomegalovirus in newborns who fail the newborn hearing screen.”

Acts 2020, c. 416, cl. 1 provides: “That the Department of Health shall review Krabbe disease and provide recommendations to the Board of Health regarding whether Krabbe disease should be included in the core panel of heritable disorders and genetic diseases for which newborn screening is conducted.”

The 2001 amendments.

The 2001 amendment by c. 255, effective January 1, 2002, in the first paragraph, inserted “congenital adrenal hyperplasia, ” and deleted “effective July 1, 1989 ” at the end of the first sentence.

The 2002 amendments.

The 2002 amendment by c. 440 inserted “medium-chain acyl-CoA dehydrogenase (MCAD or MCADH) deficiency” in the first sentence in the first paragraph. For effective date, see Editor’s note.

The 2004 amendments.

The 2004 amendment by c 760 substituted “physician or certified nurse midwife in charge of the infant’s care after delivery shall” for “physician, nurse or midwife in charge of the delivery of a baby or, if none, the first attending physician shall” in the third sentence of the first paragraph.

The 2005 amendments.

The 2005 amendments by cc. 717 and 721, effective March 1, 2006, are identical, and rewrote the first paragraph; substituted “tests conflict” for “test conflicts” in the second paragraph; and substituted “tests” for “test” in the second and third paragraphs.

The 2012 amendments.

The 2012 amendment by c. 147 substituted “U.S. Secretary of Health and Human Services and the Secretary’s Advisory Committee on Heritable Disorders in Newborns and Children” for “American College of Medical Genetics in its report, Newborn Screening: Toward a Uniform Screening Panel and System, that was produced for the U.S. Department of Health and Human Services. Further, upon the issuance of guidance for states’ newborn screening programs by the federal Department of Health and Human Services, every infant who is born in the Commonwealth shall be screened for a panel of disorders consistent with, but not necessarily identical to, the federal guidance document” in the first paragraph; and deleted “of this chapter” from the end of the final paragraph.

The 2012 amendments by cc. 476 and 507 are identical, and substituted “intellectual disability” for “mental retardation” and “U.S.” for “federal” in the first paragraph, and deleted “of this chapter” at the end of the fourth paragraph.

The 2018 amendments.

The 2018 amendment by c. 531, effective January 1, 2019, in the third paragraph, substituted “such service” for “this service” in the second sentence and added the third sentence.

§ 32.1-65.1. Critical congenital heart defect screening test required.

In order to prevent disability or death, the Board shall require every hospital in the Commonwealth having a newborn nursery to perform a critical congenital heart defect screening test using pulse oximetry or other Board-approved screening test that is based on standards set forth by the American Academy of Pediatrics on every newborn in its care when such infant is at least 24 hours old but no more than 48 hours old or, in cases in which the infant is discharged from the hospital prior to reaching 24 hours of age, prior to discharging the infant.

Any infant whose parent or guardian objects thereto on the grounds that such tests conflict with his religious practices or tenets shall not be required to receive such screening tests.

The physician or health care provider in charge of the infant’s care after delivery shall cause such tests to be performed.

History. 2014, cc. 4, 175.

Editor’s note.

Acts 2014, cc. 4 and 175, cl. 2 provides: “That the Board of Health shall promulgate regulations to implement the provisions of this act to be effective within 280 days of its enactment.”

Acts 2014, cc. 4 and 175, cl. 3 provides: “That the Board of Health shall convene a work group of health care providers and other stakeholders, which shall include representatives of the Department of Health, Department of Health Professions, Virginia Commonwealth University Health System, University of Virginia Health System, Eastern Virginia Medical School, American Heart Association, Children’s National Medical Center, March of Dimes Virginia Chapter, Virginia Chapter of the American Academy of Pediatrics, Virginia Hospital and Health Care Association, Medical Society of Virginia, Inova Fairfax Hospital, Carilion Clinic, and Virginia Chapter of the American College of Cardiology, to provide information and recommendations for the development of regulations to implement the provisions of this act.”

§ 32.1-66. Commissioner to notify physicians; reports to Commissioner.

Whenever a newborn screening test result indicates suspicion of any condition pursuant to § 32.1-65 , the Commissioner shall notify forthwith the attending physician and shall perform or provide for additional testing required to confirm or disprove the diagnosis. All physicians, certified nurse midwives, public health nurses, or any nurse receiving such test result, and administrators of hospitals in the Commonwealth, shall report the discovery of all cases of any condition for which newborn screening is conducted pursuant to § 32.1-65 to the Commissioner for infants and children up to two years of age.

History. Code 1950, § 32-112.5; 1966, c. 179; 1979, c. 711; 1986, c. 172; 1988, c. 97; 2005, cc. 717, 721.

The 2005 amendments.

The 2005 amendments by cc. 717 and 721, effective March 1, 2006, are identical, and rewrote the section.

§ 32.1-67. Duty of Board for follow-up and referral protocols; regulations.

Infants identified with any condition for which newborn screening is conducted pursuant to § 32.1-65 or 32.1-65.1 shall be eligible for the services of the Children with Special Health Care Needs Program administered by the Department of Health. The Board of Health shall promulgate such regulations as may be necessary to implement Newborn Screening Services and the Children with Special Health Care Needs Program. The Board’s regulations shall include, but not be limited to, a list of newborn screening tests conducted pursuant to §§ 32.1-65 and 32.1-65.1 , notification processes conducted pursuant to § 32.1-66 , follow-up procedures, appropriate referral processes, and services available for infants and children who have a heritable disorder or genetic disease identified through Newborn Screening Services.

History. Code 1950, § 32-112.6; 1966, c. 179; 1979, c. 711; 1980, c. 470; 1981, c. 164; 1986, c. 172; 1988, c. 97; 2000, c. 916; 2005, cc. 717, 721; 2012, c. 147; 2014, cc. 4, 175.

Editor’s note.

Acts 2000, c. 916, cl. 2 provides: “That the provisions of this act shall not become effective unless an appropriation effectuating the purposes of this act is included in the 2000 Appropriation Act, passed during the 2000 Session of the General Assembly and signed into law by the Governor.” The appropriation was made in item 307 of the Budget Bill, which increased the State Health Services appropriation.

Acts 2014, cc. 4 and 175, cl. 2 provides: “That the Board of Health shall promulgate regulations to implement the provisions of this act to be effective within 280 days of its enactment.”

Acts 2014, cc. 4 and 175, cl. 3 provides: “That the Board of Health shall convene a work group of health care providers and other stakeholders, which shall include representatives of the Department of Health, Department of Health Professions, Virginia Commonwealth University Health System, University of Virginia Health System, Eastern Virginia Medical School, American Heart Association, Children’s National Medical Center, March of Dimes Virginia Chapter, Virginia Chapter of the American Academy of Pediatrics, Virginia Hospital and Health Care Association, Medical Society of Virginia, Inova Fairfax Hospital, Carilion Clinic, and Virginia Chapter of the American College of Cardiology, to provide information and recommendations for the development of regulations to implement the provisions of this act.”

The 2000 amendments.

The 2000 amendment by c. 916 rewrote this section, which formerly read: “The Board shall recommend procedures for the treatment of biotinidase deficiency, phenylketonuria, hypothyroidism, homocystinuria, galactosemia, Maple Syrup Urine Disease and sickle cell diseases, and shall provide such treatment for infants in medically indigent families. The Board shall provide the parents or guardian of any child, who is a legal resident of the Commonwealth and who is diagnosed as requiring treatment for phenylketonuria, the special food products required in the management of phenylketonuria. The parents or guardian of any such child shall, in the discretion of the Department, reimburse to the local health department the cost of such special food products in an amount not to exceed two percent of their gross income. The reimbursement required by this section shall be payable quarterly by the first day of January, April, July, and October.”

The 2005 amendments.

The 2005 amendments by cc. 717 and 721, effective March 1, 2006, are identical, and rewrote the section.

The 2012 amendments.

The 2012 amendment by c. 147 inserted “notification processes conducted pursuant to § 32.1-66 ” in the last sentence.

The 2014 amendments.

The 2014 amendments by cc. 4 and 175 are identical, and added “or 32.1-65.1 ” in the first sentence and substituted “§§ 32.1-65 and 32.1-65.1 ” for “§ 32.1-65 ” in the last sentence.

§ 32.1-67.1. Confidentiality of records; prohibition of discrimination.

The results of the newborn screening services conducted pursuant to this article may be used for research and collective statistical purposes. No publication of research or statistical data shall be made that identifies any infant having a heritable or genetic disorder.

The Commissioner may authorize linkages between secure electronic data systems maintained by the Department of Health containing newborn screening records and the Virginia Immunization Information System (VIIS) operated pursuant to § 32.1-46.01 . The Commissioner may authorize health care providers authorized to view VIIS to view the newborn screening records of individuals to whom the providers are providing health care services. The records may be made available until the child reaches seven years of age, after which the records shall not be made available through a linkage to VIIS. Such linkages shall be subject to all applicable state and federal privacy laws and regulations.

History. 1988, c. 97; 2005, cc. 717, 721; 2012, c. 147.

The 2005 amendments.

The 2005 amendments by cc. 717 and 721, effective March 1, 2006, are identical, and in the first sentence, inserted “newborn” preceding “screening” and substituted “services” for “programs”; in the second sentence, substituted “that” for “which” and “heritable or genetic disorder” for “genetic disease”; and substituted “newborn screening services” for “the screening programs” in the last sentence.

The 2012 amendments.

The 2012 amendment by c. 147, in the first paragraph, substituted “research or statistical data” for “information, biomedical research, or medical data” in the next-to-last sentence and deleted the last sentence, which read: “All medical records maintained as part of newborn screening services shall be confidential and shall be accessible only to the Board, the Commissioner, or his agents”; and added the final paragraph.

Article 8. Voluntary Program for Control of Genetic and Metabolic Diseases.

§ 32.1-68. Commissioner to establish screening and treatment program; review by Board; program to include education and post-screening counseling; laboratory tests.

  1. The Commissioner, in cooperation with local health directors, shall establish a voluntary program for the screening of adults and children for the disease of sickle cell anemia or the sickle cell trait and for such other genetically related diseases and genetic traits and inborn errors of metabolism as the Board may deem necessary.
  2. The Board shall review the program from time to time to determine the appropriate age and the method of screening for such conditions or traits in the light of technological changes.
  3. The screening program shall include provisions for education concerning the nature and treatment of sickle cell anemia, other genetically related diseases and inborn errors of metabolism and a post-screening counseling program for the treatment of any person determined to have such a condition.
  4. The program may include the provision of laboratory testing.
  5. The Board shall adopt regulations to implement an adult and pediatric comprehensive sickle cell clinic network.

History. Code 1950, §§ 32-112.21, 32-112.22; 1973, c. 212; 1979, c. 711; 2020, c. 503.

The 2020 amendments.

The 2020 amendment by c. 503, in subsection A, substituted “adults and children” for “individuals” and added subsection E.

§ 32.1-69. Records confidential; disclosure of results of screening.

The results of any particular screening program shall be sent to the physician of the person tested, if known, and either to the parents when the person screened is under the age of eighteen or to the person if he is eighteen years of age or over. The results of a screening program may be used for research and collective statistical purposes. Except as hereinabove provided, all records maintained as part of any screening program shall be strictly confidential and shall be accessible only to the Board, the Commissioner or his agents or to the local health director who is conducting the screening program except by explicit permission of the person who has been screened if such person is eighteen years of age or over or of such person’s parent or guardian if he is under age eighteen.

History. Code 1950, § 32-112.23; 1973, c. 212; 1979, c. 711.

Article 8.1. Virginia Congenital Anomalies Reporting and Education System.

§ 32.1-69.1. Virginia Congenital Anomalies Reporting and Education System.

  1. In order to collect data to evaluate the possible causes of stillbirths and birth defects, improve the diagnosis and treatment of birth defects, and establish a mechanism for informing the parents of children identified as having birth defects and their physicians about the health resources available to aid such children, the Commissioner shall establish and maintain a Virginia Congenital Anomalies Reporting and Education System using data from birth and death certificates and fetal death reports filed with the State Registrar of Vital Records and data obtained from hospital medical records. The chief administrative officer of every hospital, as defined in § 32.1-123 , shall make or cause to be made a report to the Commissioner of any stillbirth and any person under two years of age diagnosed as having a congenital anomaly. The Commissioner may appoint an advisory committee to assist in the design and implementation of this reporting and education system with representation from relevant groups, including, but not limited to, physicians, geneticists, personnel of appropriate state agencies, persons with disabilities, and the parents of children with disabilities.
  2. The Commissioner shall provide for a secure system, which may include online data entry that protects the confidentiality of data and information for which reporting is required, to implement the Virginia Congenital Anomalies Reporting and Education System.At a minimum, data collected shall include, but need not be limited to, the following: (i) the infant’s first and last name, date of birth, gender, state of residence, birth hospital, physician’s name, date of admission, date of discharge or transfer, and diagnosis; (ii) the first and last names of the infant’s parents; (iii) the first and last name of the primary contact person for the infant; and (iv) data pertaining to stillbirths and birth defects reported by hospitals and derived from birth and death certificates and fetal death reports filed with the State Registrar of Vital Records and such other sources as may be authorized by the Commissioner.The Commissioner, as he deems necessary to facilitate the follow-up of infants whose data and health record information have been entered into the system, may authorize the integration or linking of the Virginia Congenital Anomalies Reporting and Education System with other Department of Health population-based surveillance systems.In addition, to minimize duplication and ensure accuracy during data entry, the Commissioner may authorize hospitals required to report stillbirth and birth defect data to the system to view such existing data and information as may be designated by the Commissioner.With the assistance of the advisory committee, the Board shall promulgate such regulations as may be necessary to implement this reporting and education system.
  3. As used in this section, “stillbirth” means an unintended, intrauterine fetal death occurring after a gestational period of 20 weeks.

History. 1985, c. 273; 1986, c. 136; 1988, cc. 459, 843; 1994, c. 854; 2006, cc. 699, 906; 2015, c. 661; 2020, c. 900.

The 2006 amendments.

The 2006 amendments by cc. 699 and 906 are identical, and in subsection A, in the first sentence, inserted “and death” and “and fetal records” and deleted the former third sentence, which read: “This report shall include information on the parent’s service in Vietnam, the duration of the service and possible exposure to Agent Orange through its development, testing, or use”; added the first three paragraphs in subsection B and deleted the last two sentences of the fourth paragraph, relating to the regulations regarding monitoring, collecting and reporting information.

The 2015 amendments.

The 2015 amendment by c. 661 in subsection A, inserted “stillbirths and” in the first sentence and “stillbirth and any” in the second sentence; in subsection B, inserted “stillbirths and” in the second paragraph and “stillbirth and” in the fourth paragraph; and added subsection C.

The 2020 amendments.

The 2020 amendment by c. 900 substituted “parents” for “mother and father” in subsection B, second paragraph, clause (ii).

§ 32.1-69.1:1. Dissemination of information regarding birth defects.

The Commissioner shall develop a publication concerning the role of folic acid in the prevention of birth defects for distribution to physicians, hospitals and other medical facilities, and local health departments for use with patients. The publication shall be distributed by the Virginia Department of Health to the offices of the clerks of the circuit courts and made available to applicants for marriage licenses.

History. 1999, c. 582; 2012, c. 802.

The 2012 amendments.

The 2012 amendment by c. 802 substituted “The publication shall be distributed by the Virginia Department of Health to the offices of the clerks of the circuit courts and made available to applicants for marriage licenses.” for “Such information shall also be provided to the clerks of county and city circuit courts for inclusion in health information required to be furnished to applicants for marriage licenses, pursuant to § 20-14.2 .”

§ 32.1-69.2. Confidentiality of records; publication; authority of Commissioner to contact parents and physicians.

The Commissioner and all other persons to whom data is submitted pursuant to § 32.1-69.1 shall keep such information confidential. For the purpose of only complying with the provisions of § 32.1-69.1 , hospitals required to report stillbirths, as defined in § 32.1-69.1 , and birth defects to the Virginia Congenital Anomalies Reporting and Education System and provide patient follow-up may view personally identifiable information in the system as approved by the Commissioner and upon receipt by the Commissioner of sworn affirmation from each such person that the confidentiality of the information will be preserved. No publication of information shall be made except in the form of statistical or other studies which do not identify individuals. However, the Commissioner may contact the parents of children identified as having birth defects and their physicians to collect relevant data and to provide them with information about available public and private health care resources.

History. 1985, c. 273; 2006, cc. 699, 906; 2015, c. 661.

The 2006 amendments.

The 2006 amendments by cc. 699 and 906 are identical, and inserted the second sentence.

The 2015 amendments.

The 2015 amendment by c. 661 inserted “stillbirths, as defined in § 32.1-69.1 , and” in the second sentence.

Article 8.2. Virginia Cord Blood Bank Initiative.

§ 32.1-69.3. Virginia Cord Blood Bank Initiative established.

  1. There is hereby established the Virginia Cord Blood Bank Initiative (hereinafter referred to as the Initiative) as a public resource for the treatment of patients with life-threatening diseases or debilitating conditions, for use in advancing basic and clinical research, and, in the event of a terrorist attack, to be used in the treatment of the injured.The Initiative shall be established as a nonprofit legal entity to collect, screen for infectious and genetic diseases, perform tissue typing on, cryopreserve, and store umbilical cord blood as a public resource and shall be formed as a collaborative consortium that covers all geographical regions of Virginia.
  2. The State Health Commissioner shall develop or shall arrange for or contract with a nonprofit entity for the development of the collaborative consortium to be known as the Initiative, which may consist of any entity having the expertise or experience or willingness to develop the expertise or experience necessary to participate in the Initiative.
  3. In developing the consortium, the Commissioner shall ensure that all geographical areas of the Commonwealth are included in the Initiative. To accomplish this goal, the Commissioner shall contact Eastern Virginia Medical School and its participating hospitals, Virginia Commonwealth University School of Medicine, Virginia Commonwealth University Health System, the University of Virginia School of Medicine, the University of Virginia Health System, and other entities located in Virginia, such as hospitals and hospital systems, biotechnology companies, regional blood banks, laboratories, or other health care providers or medical researchers, or local coalitions of health care providers that could provide coverage of the various geographical regions of Virginia, to request their participation in the Initiative consortium and assist in the design and implementation of the Initiative.
  4. Any nonprofit entity having an arrangement or contract with the Commissioner for the development of the Initiative and any medical school, hospital, or other health care provider choosing to participate in the Initiative shall submit an estimate of the costs of implementing the Initiative for the region in which it is located. The Commissioner shall assist in the development of the cost estimates, compare and evaluate such estimates, and negotiate with the various entities to implement the Initiative.Further, the Commissioner shall coordinate (i) appropriate contact with pregnant women to provide information about umbilical cord blood donations; (ii) the development of procedures for obtaining informed consent for cord blood donations; (iii) the design of the Initiative, including the period of years for storage of the cord blood to ensure the integrity of the cells; (iv) a system for recycling the blood at the end of the established storage period that provides for the sale or transfer of the cord blood samples being taken out of storage to be used in basic or clinical research development at reasonable rates and fees for cord blood products.
  5. The entities joining the Initiative shall work collaboratively, each with the community resources in its local or regional area. The Initiative participants shall align their outreach programs and activities to all geographic areas and ethnic and racial groups of the Commonwealth, and shall conduct specific and culturally appropriate outreach and research to identify potential donors among all ethnic and racial groups.
  6. The Commissioner shall disseminate information about the Initiative, focusing on hospitals, birthing facilities, physicians, midwives, and nurses, and providing information through local health departments.Initiative consortium participants shall also be encouraged to disseminate information about the Initiative.In addition, the Director of the Department of Medical Assistance Services shall include information about the Initiative in printed materials distributed by the Department to recipients of medical assistance services and persons enrolled in the Family Access to Medical Insurance Security Plan.
  7. Any woman admitted to a hospital or birthing facility for obstetrical services may be offered the opportunity to donate umbilical cord blood to the Initiative. However, no woman shall be required to make a cord blood donation.
  8. Any health care facility or health care provider receiving financial remuneration for the collection of umbilical cord blood shall, prior to harvesting the umbilical cord blood, disclose this information in writing to any woman postpartum or to the parent of a newborn from whom the umbilical cord blood is to be collected.
  9. This section shall not be construed to require participation in the Initiative on the part of any health care facility or health care provider who objects to transfusion or transplantation of blood on the basis of bona fide religious beliefs.
  10. The Initiative shall be implemented with such funds as may be appropriated or otherwise provided for its purpose. Upon implementation, the Commissioner shall initiate the development of a nonprofit entity to assume the operation and administration of the Initiative and may seek federal, state, and private grant funds for its continuation.

History. 2006, cc. 636, 735; 2008, c. 285.

Editor’s note.

Acts 2006, cc. 636 and 735, provide: “Whereas, umbilical cord blood is a unique source of large numbers of young, undifferentiated stem cells; and

“Whereas, umbilical cord blood is being used for the treatment of life-threatening illnesses and debilitating conditions and is being studied for its potential in the treatment of many disorders; and

“Whereas, umbilical cord blood can provide hope for patients and advance the science of stem cell research, while posing no health risk to either a mother or her newborn infant; and

“Whereas, umbilical cord blood can be easily collected and cost-effectively stored for medical and research use.”

The 2008 amendments.

The 2008 amendment by c. 285, in subsection A, deleted “for Virginians” following “as a public resource” near the beginning and “citizens of the Commonwealth” at the end of the first paragraph.

§ 32.1-69.4. Publication of information regarding cord blood education.

In addition to the requirements of § 32.1-69.3 , the Commissioner shall make publicly available, by posting on the public website of the Department of Health, resources relating to umbilical cord blood that have been developed by the Parent’s Guide to Cord Blood Foundation and include the following information:

  1. An explanation of the potential value and uses of umbilical cord blood, including cord blood cells and stem cells, for individuals who are, as well as individuals who are not, biologically related to a mother or her newborn child.
  2. An explanation of the differences between using one’s own cord blood cells and using related or unrelated cord blood stem cells in the treatment of disease.
  3. An explanation of the differences between public and private umbilical cord blood banking.
  4. The options available to a mother relating to stem cells that are contained in the umbilical cord blood after the delivery of her newborn, including (i) donating the stem cells to a public umbilical cord blood bank where facilities are available; (ii) storing the stem cells in a private family umbilical cord blood bank for use by immediate and extended family members; (iii) storing the stem cells for immediate or extended family members through a family or sibling donor banking program that provides free collection, processing, and storage where there is an existing medical need; and (iv) discarding the stem cells.
  5. The medical processes involved in the collection of cord blood.
  6. Medical or family history criteria that can impact a family’s consideration of umbilical cord blood banking, including the likelihood of using a baby’s cord blood to serve as a match for a family member who has a medical condition.
  7. Options for ownership and future use of donated umbilical cord blood.
  8. The average cost of public and private umbilical cord blood banking.
  9. The availability of public and private cord blood banks to Virginians, including (i) a list of public cord blood banks and the hospitals served by such banks; (ii) a list of private cord blood banks that are available; and (iii) the availability of free family banking and sibling donor programs where there is an existing medical need by a family member.
  10. An explanation of which racial and ethnic groups are in particular need of publicly donated cord blood samples based upon medical data developed by the U.S. Health Resources and Services Administration.

History. 2010, c. 69.

Cross references.

As to professional regulations requiring that cord blood banking be included in prenatal education, see § 54.1-2403.02.

Article 9. Statewide Cancer Registry.

§ 32.1-70. Information from hospitals, clinics, certain laboratories and physicians supplied to Commissioner; statewide cancer registry.

  1. Each hospital, clinic and independent pathology laboratory shall make available to the Commissioner or his agents information on patients having malignant tumors or cancers. A physician shall report information on patients having cancers unless he has determined that a hospital, clinic or in-state pathology laboratory has reported the information. This reporting requirement shall not apply to basal and squamous cell carcinoma of the skin. Such information shall include the name, address, sex, race, diagnosis and any other pertinent identifying information regarding each such patient and shall include information regarding possible exposure to Agent Orange or other defoliants through their development, testing or use or through service in the Vietnam War. Each hospital, clinic, independent pathology laboratory, or physician shall provide other available clinical information as defined by the Board of Health.
  2. From such information the Commissioner shall establish and maintain a statewide cancer registry. The purpose of the statewide cancer registry shall include but not be limited to:
    1. Determining means of improving the diagnosis and treatment of cancer patients.
    2. Determining the need for and means of providing better long-term, follow-up care of cancer patients.
    3. Conducting epidemiological analyses of the incidence, prevalence, survival, and risk factors associated with the occurrence of cancer in Virginia.
    4. Collecting data to evaluate the possible carcinogenic effects of environmental hazards including exposure to dioxin and the defoliant, Agent Orange.
    5. Collecting data to evaluate potential links between exposure to fire incidents and cancer incidence.
    6. Improving rehabilitative programs for cancer patients.
    7. Assisting in the training of hospital personnel.
    8. Determining other needs of cancer patients and health personnel.

History. Code 1950, § 32-388; 1950, p. 187; 1978, c. 792; 1979, c. 711; 1988, cc. 447, 459, 843; 1998, c. 315; 2018, c. 459.

Cross references.

As to physicians permitting the State Health Commissioner to examine records relating to death of patients during the conduct of studies, see §§ 32.1-40 and 32.1-41 .

As to requirement to notify patients concerned that personal information on them has been included in the registry, see § 32.1-71.01 .

The 2018 amendments.

The 2018 amendment by c. 459 redesignated former subdivision B 2a as subdivision B 3, inserted subdivision B 5, and redesignated the remaining subdivisions accordingly.

§ 32.1-70.1. Repealed by Acts 1998, c. 315.

Editor’s note.

Former § 32.1-70.1 , which authorized the Board to establish a schedule of fees for informational services, was derived from Acts 1984, c. 218.

§ 32.1-70.2. Collection of cancer case information by the Commissioner.

  1. Using such funds as may be appropriated therefor, the Commissioner or his designee may perform on-site data collection of the records of patients having malignant tumors or cancers at those consenting hospitals, clinics, independent pathology laboratories and physician offices required to report information of such patients pursuant to the reporting requirements of § 32.1-70 , in order to ensure the completeness and accuracy of the statewide cancer registry.
  2. The selection criteria for determining which consenting hospitals, clinics, independent pathology laboratories and physician offices may be subject to on-site data collection under the provisions of this section shall include, but shall not be limited to: (i) expected annual number of cancer case reports, (ii) historical completeness and accuracy of reporting rates, and (iii) whether the facility maintains its own cancer registry.
  3. The Board of Health shall promulgate regulations necessary to implement the provisions of this section.

History. 2000, cc. 74, 139.

§ 32.1-71. Confidential nature of information supplied; publication; reciprocal data-sharing agreements.

  1. The Commissioner and all persons to whom information is submitted in accordance with § 32.1-70 shall keep such information confidential. Except as authorized by the Commissioner in accordance with the provisions of § 32.1-41 , no release of any such information shall be made except in the form of statistical or other studies which do not identify individual cases.
  2. The Commissioner may enter into reciprocal data-sharing agreements with other cancer registries for the exchange of information. Upon the provision of satisfactory assurances for the preservation of the confidentiality of such information, patient-identifying information may be exchanged with other cancer registries which have entered into reciprocal data-sharing agreements with the Commissioner.

History. Code 1950, § 32-389; 1950, p. 187; 1979, c. 711; 1991, c. 319; 2000, cc. 74, 139.

Cross references.

As to penalty for unauthorized release of information submitted under this section, see § 32.1-71.01 .

The 2000 amendments.

The 2000 amendments by cc. 74 and 139 are identical, and in subsection A, inserted “Except as authorized by the Commissioner in accordance with the provisions of § 32.1-41 ,” at the beginning of the second sentence and substituted “release” for “publication” in that sentence.

§ 32.1-71.01. Penalties for unauthorized use of statewide cancer registry.

In addition to the remedies provided in § 32.1-27 , any person who uses, discloses or releases data maintained in the statewide cancer registry in violation of § 32.1-71 shall be subject, in the discretion of the court, to a civil penalty not to exceed $25,000 for each violation, which shall be paid to the general fund.

History. 2000, cc. 74, 139.

§ 32.1-71.02. Notification of cancer patients of statewide cancer registry reporting.

  1. Any physician diagnosing a malignant tumor or cancer shall, at such time and in such manner as considered appropriate by such physician, notify each patient whose name and record abstract is required to be reported to the statewide cancer registry pursuant to § 32.1-70 that personal identifying information about him has been included in the registry as required by law. Any physician required to so notify a patient that personal identifying information about him has been included in the cancer registry may, when, in the opinion of the physician, such notice would be injurious to the patient’s health or well-being, provide the required notice to the patient’s authorized representative or next of kin in lieu of notifying the patient.
  2. Upon request to the statewide cancer registry, the patient whose personal identifying information has been submitted to such registry shall have a right to know the identity of the reporter of his information to such registry.

History. 2000, c. 918; 2003, cc. 540, 548.

The number of this section was assigned by the Virginia Code Commission, the number in the 2000 act having been 32.1-71.01 .

Editor’s note.

Acts 2000, c. 918, cl. 2 provides: “That the Board of Health shall promulgate regulations to implement the provisions of this act within 280 days of enactment of this provision.”

The 2003 amendments.

The 2003 amendments by cc. 540 and 548 are identical, and rewrote the section.

Article 9.1. Statewide Alzheimer’s Disease and Related Disorder Registry.

§§ 32.1-71.1 through 32.1-71.4. Repealed by Acts 1994, c. 109.

Article 10. Laboratory Tests.

§ 32.1-72. Repealed by Acts 1992, cc. 747 and 873.

Article 11. Penalty.

§ 32.1-73. Failure to comply with provisions; grounds for revocation of license or permit.

The failure of any physician, nurse or midwife to comply with the provisions of § 32.1-60 , § 32.1-62 or § 32.1-65 shall, in addition to any other penalty prescribed by law, constitute grounds for revocation of the license or permit of such physician, nurse or midwife by the board issuing such license or permit.

History. 1979, c. 711.

Article 12. The Commonwealth Neurotrauma Initiative.

§§ 32.1-73.1 through 32.1-73.4. Repealed by Acts 2002, c. 60.

Cross references.

As to the Commonwealth Neurotrauma Initiative, see now § 51.5-178 et seq.

Editor’s note.

Acts 2002, c. 60, cl. 3 provides: “That the Commonwealth Neurotrauma Initiative Advisory Board as appointed pursuant to § 32.1-73.3 shall be continued as provided in § 51.5-12.3.”

Acts 2002, c. 60, cl. 4 provides: “That the regulations of the Board of Health and the grant application, review, and award procedures established pursuant to Article 12 (§ 32.1-73.1 et seq.) of Chapter 2 of Title 32.1 shall remain in force until the Commissioner of Rehabilitative Services promulgates regulations pursuant to this act.”

Article 13. Statewide Asthma Management.

§ 32.1-73.5. Comprehensive statewide asthma management plan.

  1. Using such funds as may be appropriated therefor, the Commissioner shall develop, maintain, and revise biennially a written comprehensive state plan for (i) reducing the rate of hospitalizations due to asthma and (ii) facilitating the effective management of persons with asthma residing in the Commonwealth. The plan shall address, but shall not be limited to, disease surveillance and investigation, public and professional education, identification and replication of best practices for public health and clinical interventions, public and private partnerships with health care providers, third-party payors, local school divisions, and community coalitions, and identification of sources of grant funding. The plan shall place primary emphasis on, but not be limited to, children between the ages of birth and eighteen years.
  2. In order to develop the comprehensive state plan, the Commissioner shall consult with representatives of the medical, nursing, pharmacy and allied health professions, public health agencies, community coalition leaders, insurers, hospital personnel, the Department of Education and local school divisions, and other appropriate entities.

History. 2000, cc. 73, 134.

§ 32.1-73.6. Implementation of state asthma management programs.

  1. Using such funds as may be appropriated for this purpose, the Commissioner shall implement programs to meet the objectives of the statewide asthma management plan. The Commissioner shall assure, to the extent feasible and appropriate, that existing Department programs, systems, and infrastructure are efficiently utilized as a basis for implementation.
  2. The Board shall promulgate regulations as necessary to implement the provisions of the statewide asthma management plan.
  3. The Commissioner shall report periodically to the Board concerning (i) the development and implementation of the statewide asthma management plan and (ii) the effectiveness of the Department programs in reducing the rate of hospitalizations due to asthma in the Commonwealth and facilitating more effective management of asthma.

History. 2000, cc. 73, 134.

Article 14. Youth Suicide Prevention.

§ 32.1-73.7. Department to be lead agency for youth suicide prevention.

With such funds as may be appropriated for this purpose, the Department, in consultation with the Department of Education, the Department of Behavioral Health and Developmental Services, community services boards and behavioral health authorities, and local departments of health, shall have the lead responsibility for the youth suicide prevention program within the Commonwealth. This responsibility includes coordination of the activities of the agencies of the Commonwealth pertaining to youth suicide prevention in order to develop and carry out comprehensive youth suicide prevention strategies addressing public awareness, the promotion of health development, early identification, intervention and treatment, and support to survivors. The strategies shall be targeted to the specific needs of children and adolescents. The Department shall cooperate with federal, state and local agencies, private and public agencies, survivor groups and other interested persons in order to prevent youth suicide within the Commonwealth.

The provisions of this section shall not limit the powers and duties of other state agencies.

History. 2001, cc. 275, 291; 2003, c. 885; 2005, cc. 336, 434; 2009, cc. 813, 840.

Editor’s note.

Acts 2003, c. 885, cl. 7 provides: “That all current members of the collegial bodies whose terms have been modified by this act shall be eligible, if reappointed, to the full number of terms provided by this act regardless of prior service.”

The 2003 amendments.

The 2003 amendment by c. 885 deleted “the Virginia Council on Coordinating Prevention” following “Abuse Services.”

The 2005 amendments.

The 2005 amendments by cc. 336 and 434 are identical, and in the first paragraph, inserted “and behavioral health authorities” in the first sentence; in the second sentence, substituted “develop and carry out” for “develop a,” “prevention strategies addressing public awareness” for “prevention plan addressing,” and “intervention and treatment” for “crisis intervention”; substituted “strategies” for “plan” in the third sentence; substituted “persons” for “individuals” in the fourth sentence; and deleted the last sentence, which formerly read: “The Department shall report annually by December 1 of each year to the Governor and the General Assembly on its youth suicide prevention activities.”

The 2009 amendments.

The 2009 amendments by cc. 813 and 840 are identical, and substituted “Behavioral Health and Developmental” for “Mental Health, Mental Retardation and Substance Abuse” near the beginning of the first sentence in the first paragraph.

Law Review.

For article, “Legal Issues Involving Children,” see 35 U. Rich. L. Rev. 741 (2001).

Article 15. Youth Health Risk Behavior Survey.

§ 32.1-73.8. Youth health risk behavior survey.

The Department shall, in cooperation with the Department of Behavioral Health and Developmental Services and the Superintendent of Public Instruction, develop and administer a survey of students to facilitate planning and implementation of effective programs for the prevention of substance abuse through collection of data and information to (i) identify trends in the use of alcohol, tobacco, and other drugs and (ii) assess the prevalence of risk and protective factors among the youth of the Commonwealth. In developing such survey, the Department may utilize all or part of an existing survey designed to collect such information developed by the Centers for Disease Control and Prevention. The survey shall be anonymous and administered in a manner designed to protect students’ privacy. Schools shall be randomly selected for participation in the survey. Schools selected to participate in the survey shall notify students and parents pursuant to § 22.1-79.3. A student whose parents have refused to consent to the student’s participation in the survey as provided in § 22.1-79.3 shall not be required to participate in the survey.

History. 2011, c. 726.

Article 16. Advisory Council on Pediatric Autoimmune Neuropsychiatric Disorders Associated with Streptococcal Infections and Pediatric Acute-onset Neuropsychiatric Syndrome.

§ 32.1-73.9. Advisory Council on Pediatric Autoimmune Neuropsychiatric Disorders Associated with Streptococcal Infections and Pediatric Acute-onset Neuropsychiatric Syndrome; membership.

  1. There is hereby created in the executive branch of state government the Advisory Council on Pediatric Autoimmune Neuropsychiatric Disorders Associated with Streptococcal Infections and Pediatric Acute-onset Neuropsychiatric Syndrome (the Advisory Council), for the purpose of advising the Commissioner of Health on research, diagnosis, treatment, and education relating to pediatric autoimmune neuropsychiatric disorders associated with streptococcal infections and pediatric acute-onset neuropsychiatric syndrome.
  2. The Advisory Council shall have a total membership of 16 members that shall consist of six legislative members, nine nonlegislative citizen members, and one ex officio member. Members shall be appointed as follows: four members of the House of Delegates to be appointed by the Speaker of the House of Delegates in accordance with the principles of proportional representation contained in the Rules of the House of Delegates; two members of the Senate to be appointed by the Senate Committee on Rules; and the following nine nonlegislative citizen members to be appointed by the Governor: one licensed health care provider who has expertise in treating persons with pediatric autoimmune neuropsychiatric disorders associated with streptococcal infections and pediatric acute-onset neuropsychiatric syndrome and autism; one pediatrician who has experience treating persons with pediatric autoimmune neuropsychiatric disorders associated with streptococcal infections and pediatric acute-onset neuropsychiatric syndrome; one child psychiatrist who has experience treating persons with pediatric autoimmune neuropsychiatric disorders associated with streptococcal infections and pediatric acute-onset neuropsychiatric syndrome; one immunologist with experience in treating persons with pediatric autoimmune neuropsychiatric disorders associated with streptococcal infections and pediatric acute-onset neuropsychiatric syndrome and the use of intravenous immunoglobulin; one medical researcher with experience conducting research concerning pediatric autoimmune neuropsychiatric disorders associated with streptococcal infections and pediatric acute-onset neuropsychiatric syndrome, obsessive-compulsive disorder, tic disorder, and other neurological disorders; one representative of a professional organization for school nurses in the Commonwealth; one representative of an advocacy and support group for individuals affected by pediatric autoimmune neuropsychiatric disorders associated with streptococcal infections and pediatric acute-onset neuropsychiatric syndrome; one representative of an advocacy and support group for individuals affected by autism; and one parent of a child who has been diagnosed with pediatric autoimmune neuropsychiatric disorders associated with streptococcal infections and pediatric acute-onset neuropsychiatric syndrome and autism. The Commissioner of Health or his designee shall serve ex officio without voting privileges. Nonlegislative members shall be citizens of the Commonwealth.Legislative members and the ex officio member of the Advisory Council shall serve terms coincident with their terms of office. Nonlegislative members shall be appointed for terms of two years. Appointments to fill vacancies, other than by expiration of a term, shall be for the unexpired terms. Vacancies shall be filled in the same manner as the original appointments. All members may be reappointed.
  3. Legislative members of the Advisory Council shall receive such compensation as provided in § 30-19.12. Nonlegislative members shall serve without compensation or reimbursement.
  4. The Advisory Council shall elect a chairman and a vice-chairman annually from among its legislative membership. A majority of the members shall constitute a quorum. The Advisory Council shall meet at such times as may be called by the chairman or a majority of the Advisory Council.
  5. Staff to the Advisory Council shall be provided by the Department of Health. All agencies of the Commonwealth shall provide assistance to the Advisory Council, upon request.

History. 2017, c. 466.

Cross references.

As to July 1, 2020, sunset provision for this Article, see § 32.1-73.11 .

Editor’s note.

Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 307 E, effective for the biennium ending June 30, 2022, provides: “Notwithstanding § 32.1-73.11 , Code of Virginia, the Advisory Council on Pediatric Autoimmune Neuropsychiatric Disorders Associated with Streptococcal Infections (PANDAS) and Pediatric Acute-onset Neuropsychiatric Syndrome (PANS), established by Chapter 466 of the 2017 Acts of Assembly, is hereby continued.”

§ 32.1-73.10. Advisory Council; report.

The Advisory Council shall report to the Governor and the General Assembly, by December 1 of each year, on the Advisory Council’s recommendations related to:

  1. Practice guidelines for the diagnosis and treatment of pediatric autoimmune neuropsychiatric disorders associated with streptococcal infections and pediatric acute-onset neuropsychiatric syndrome;
  2. Mechanisms to increase clinical awareness and education regarding pediatric autoimmune neuropsychiatric disorders associated with streptococcal infections and pediatric acute-onset neuropsychiatric syndrome among physicians, including pediatricians, school-based health centers, and providers of mental health services;
  3. Outreach to educators and parents to increase awareness of pediatric autoimmune neuropsychiatric disorders associated with streptococcal infections and pediatric acute-onset neuropsychiatric syndrome; and
  4. Development of a network of volunteer experts on the diagnosis and treatment of pediatric autoimmune neuropsychiatric disorders associated with streptococcal infections and pediatric acute-onset neuropsychiatric syndrome to assist in the delivery of education and outreach.

History. 2017, c. 466.

Cross references.

As to July 1, 2020, sunset provision for this Article, see § 32.1-73.11 .

Editor’s note.

Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 307 E, effective for the biennium ending June 30, 2022, provides: “Notwithstanding § 32.1-73.11 , Code of Virginia, the Advisory Council on Pediatric Autoimmune Neuropsychiatric Disorders Associated with Streptococcal Infections (PANDAS) and Pediatric Acute-onset Neuropsychiatric Syndrome (PANS), established by Chapter 466 of the 2017 Acts of Assembly, is hereby continued.”

§ 32.1-73.11. Sunset.

This article shall expire on July 1, 2020.

History. 2017, c. 466.

Editor’s note.

Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 307 E, effective for the biennium ending June 30, 2022, provides: “Notwithstanding § 32.1-73.11 , Code of Virginia, the Advisory Council on Pediatric Autoimmune Neuropsychiatric Disorders Associated with Streptococcal Infections (PANDAS) and Pediatric Acute-onset Neuropsychiatric Syndrome (PANS), established by Chapter 466 of the 2017 Acts of Assembly, is hereby continued.”

Article 17. Substance-Exposed Infants.

§ 32.1-73.12. Department to be lead agency for services for substance-exposed infants.

The Department shall serve as the lead agency with responsibility for the development, coordination, and implementation of a plan for services for substance-exposed infants in the Commonwealth. Such plan shall support a trauma-informed approach to identification and treatment of substance-exposed infants and their caregivers and shall include options for improving screening and identification of substance-using pregnant women; use of multidisciplinary approaches to intervention and service delivery during the prenatal period and following the birth of the substance-exposed child; and referral among providers serving substance-exposed infants and their families and caregivers. In carrying out its duties, the Department shall work cooperatively with the Department of Social Services, the Department of Behavioral Health and Developmental Services, community services boards and behavioral health authorities, local departments of health, the Virginia Chapter of the American Academy of Pediatrics, the American Congress of Obstetricians and Gynecologists, Virginia Section, and such other stakeholders as may be appropriate. The Department shall report annually on December 1 to the General Assembly regarding implementation of the plan.

History. 2018, cc. 695, 696.

Law Review.

For essay, “Virginia Ranks Forty-Ninth of Fifty: The Need for Stronger Laws Supporting Foster Youth,” see 53 U. Rich. L. Rev. 255 (2018).

Article 18. Alzheimer’s Disease.

§ 32.1-73.13. Alzheimer’s disease and related dementias; early detection and diagnosis; risk reduction and care planning.

Using such funds as may be available for such purpose, the Department, in consultation with the Department for Aging and Rehabilitative Services, shall have the lead responsibility for (i) educating and informing the public, based on evidence-based public health research and data, about Alzheimer’s disease and related dementias; (ii) supporting early detection and diagnosis of Alzheimer’s disease and related dementias; (iii) reducing the risk of potentially avoidable hospitalizations for individuals with Alzheimer’s disease and related dementias; (iv) reducing the risk of cognitive decline and cognitive impairment associated with Alzheimer’s disease and related dementias; and (v) supporting care planning and management for individuals with Alzheimer’s disease and related dementias. The Department shall use targeted strategies specific to the needs of persons with Alzheimer’s disease and related dementias. The Department shall cooperate with federal, state, and local agencies, private and public agencies, and other interested persons in order to address and reduce the risks and impairments associated with Alzheimer’s disease and related dementias within the Commonwealth.

The provisions of this section shall not limit the powers and duties of other state agencies.

History. 2020, c. 854.

Article 19. Rare Disease Council.

§ 32.1-73.14. Rare Disease Council; purpose.

There is hereby created in the executive branch of state government the Rare Disease Council (the Council) for the purpose of (i) advising the Governor and the General Assembly on the needs of individuals with rare diseases in the Commonwealth; (ii) identifying challenges that such individuals face, including delays in obtaining a diagnosis or the receipt of a misdiagnosis, shortages of medical specialists who can provide treatment, and lack of access to therapies and medication used to treat rare diseases; (iii) funding research related to rare diseases and the development of new treatments for rare diseases; and (iv) funding for supports for persons with rare diseases in the Commonwealth.

History. 2021, Sp. Sess. I, c. 303.

Effective date.

This article is effective July 1, 2021.

§ 32.1-73.15. Powers and duties of the Council.

The Council shall have the power and duty to:

  1. Within the first year, hold public hearings and make inquiries of and solicit comments from the public to assist the Council in understanding the scope of rare diseases in the Commonwealth and the impact of rare diseases on individuals in the Commonwealth.
  2. Conduct research and consult with experts to develop policy recommendations related to:
    1. Improving access to health care and other services for individuals with rare diseases, including access to health insurance, specialists, health care services, and other necessary services for individuals with rare diseases;
    2. The impact of health insurance coverage, cost sharing, tiers, or other utilization management procedures on access to health care and other necessary services; and
    3. The impact of providing coverage under the state program for medical assistance services for approved health care services and medications for rare diseases.
  3. Publish a list of existing publicly accessible resources on research, diagnosis, treatment, and education relating to rare diseases on the Council’s webpage.
  4. Submit annually by October 1 a report to the Governor and the General Assembly for publication as a report document as provided in the procedures of the Division of Legislative Automated Systems for the processing of legislative documents and reports. The annual report shall (i) describe the activities and recommendations of the Council and (ii) describe the status of funding available to the Council, including information regarding any grants applied for and received by the Council.
  5. Apply for, accept, and expend gifts, grants, and donations from public or private sources to enable the Council to better carry out its objectives.

History. 2021, Sp. Sess. I, c. 303.

Effective date.

This section is effective July 1, 2021.

§ 32.1-73.16. Membership; terms; quorum; meetings; staffing.

  1. The Council shall have a total membership of 21 members that shall consist of 18 nonlegislative citizen members and three ex officio members. The Governor shall appoint a chairman and vice-chairman who shall be residents of the Commonwealth and shall not be employed by any federal or state government. Nonlegislative citizen members shall be appointed by the Governor and shall include, in addition to the chairman and the vice-chairman, one representative from an academic research institution in the Commonwealth that receives any grant funding for rare disease research; one geneticist licensed and currently practicing in the Commonwealth; one registered nurse or advanced practice registered nurse licensed and currently practicing in the Commonwealth, with experience in treating rare diseases; two physicians with expertise in rare diseases who are licensed and currently practicing medicine in the Commonwealth; one hospital administrator, or his designee, from a hospital in the Commonwealth that provides care to persons diagnosed with rare diseases; two persons who are 18 years of age or older who have been diagnosed with a rare disease; two caregivers of persons with a rare disease; two representatives of rare disease patient organizations operating in the Commonwealth; one licensed pharmacist with experience with drugs used to treat rare diseases; one representative from the biopharmaceutical industry; one representative from health plan companies; and one member from the scientific community who is engaged in rare disease research, which may include a medical researcher with experience conducting research on rare diseases. The Commissioner of Health, the Director of the Department of Medical Assistance Services, and the Superintendent of Public Instruction, or their designees, shall serve ex officio with nonvoting privileges. Ex officio members of the Council shall serve terms coincident with their terms of office.Nonlegislative citizen members of the Council shall be citizens of the Commonwealth. Appointments to fill vacancies, other than by expiration of a term, shall be for the unexpired terms. Vacancies shall be filled in the same manner as the original appointments. After the initial staggering of terms, nonlegislative citizen members shall be appointed for a term of three years.Ex officio members of the Council shall serve terms coincident with their terms of office. Appointments to fill vacancies, other than by expiration of a term, shall be for the unexpired terms. Vacancies shall be filled in the same manner as the original appointments. After the initial staggering of terms, nonlegislative citizen members shall be appointed for a term of four years.
  2. The Council shall meet quarterly and the chairman and vice-chairman shall establish a meeting schedule on an annual basis. A majority of the members shall constitute a quorum.
  3. Members of the Council shall serve without compensation or reimbursement.
  4. The Department of Health shall provide staff support to the Council. All agencies of the Commonwealth shall provide assistance to the Council, upon request.

History. 2021, Sp. Sess. I, c. 303.

Editor’s note.

Acts 2021, Sp. Sess. I, c. 303, cl. 2 provides: “That the first meeting of the Rare Disease Council shall occur within 90 days of its effective date, July 1, 2021.”

Acts 2021, Sp. Sess. I, c. 303, cl. 3 provides: “That the initial appointments of nonlegislative citizen members of the Rare Disease Council shall be staggered as follows: (i) two persons who are 18 or older who have been diagnosed with a rare disease, two caregivers of persons with a rare disease, and two representatives of rare disease patient organizations operating in the Commonwealth shall be appointed for a term of one year; (ii) one licensed pharmacist, one registered nurse or advanced practice registered nurse licensed and currently practicing medicine in the Commonwealth, and the chairman and vice-chairman appointed by the Governor shall be appointed for a term of two years; (iii) one hospital administrator, or his designee, one representative from the biopharmaceutical industry, and one representative from health plan companies shall be appointed for a term of three years; and (iv) one representative from an academic research institution in the Commonwealth that receives any grant funding for rare disease research, one geneticist licensed and currently practicing in the Commonwealth, two physicians with expertise in rare diseases who are licensed and currently practicing medicine in the Commonwealth, and one member from the scientific community who is engaged in rare disease research shall be appointed for a term of four years.”

§ 32.1-73.17. Rare Disease Council Fund.

There is hereby created in the state treasury a special nonreverting fund to be known as the Rare Disease Council Fund, referred to in this section as “the Fund.” The Fund shall be established on the books of the Comptroller. All funds appropriated for such purpose and any gifts, grants, donations, and other funds received on its behalf shall be paid into the state treasury and credited to the Fund. Interest earned on moneys in the Fund shall remain in the Fund and be credited to it. Any moneys remaining in the Fund, including interest thereon, at the end of each fiscal year shall not revert to the general fund but shall remain in the Fund. Moneys in the Fund shall be used solely for the purpose of (i) funding research related to rare diseases and the development of new treatments for rare diseases and supports for persons with rare diseases in the Commonwealth and (ii) supporting the work of the Council. Expenditures and disbursements from the Fund shall be made by the State Treasurer on warrants issued by the Comptroller upon written request signed by the Commissioner of Health.

History. 2021, Sp. Sess. I, c. 303.

Effective date.

This section is effective July 1, 2021.

Chapter 3. Medical Care Services.

Article 1. Medical Assistance Program.

§§ 32.1-74 through 32.1-76.3. Repealed by Acts 1984, c. 781, effective March 1, 1985.

Cross references.

As to the Department of Medical Assistance Services, see now § 32.1-323 et seq.

Editor’s note.

Former § 32.1-76.1 was previously repealed by Acts 1984, c. 629.

Article 2. Maternal and Child Health Services and Crippled Children’s Services.

§ 32.1-77. State plans for maternal and child health services and children’s specialty services.

  1. The Board is authorized to prepare, amend from time to time and submit to the Secretary of the United States Department of Health and Human Services, state plans for maternal and child health services and children’s specialty services pursuant to Title V of the United States Social Security Act and any amendments thereto.
  2. The Commissioner is authorized to administer such plans and to receive and expend federal funds for the administration thereof in accordance with applicable federal and state laws and regulations.

History. Code 1950, § 32-165; 1979, c. 711; 1987, c. 427.

Law Review.

For survey of Virginia law on governmental services and social welfare for the year 1978-1979, see 66 Va. L. Rev. 301 (1980).

§ 32.1-77.1. State-certified doulas; certification.

  1. As used in this section, “state-certified doula” means a trained, community-based nonmedical professional who provides continuous physical, emotional, and informational support to a pregnant person during the antepartum or intrapartum period or during the period up to one year postpartum and who has been certified by a body approved by the Board for such purpose in accordance with the provisions of this section.
  2. No person shall use or assume the title “state-certified doula” unless such person is a community-based doula who (i) has received training and education as a doula from an entity approved by a body approved by the Board for such purpose and (ii) has been certified as a doula by a body approved by the Board for such purpose.
  3. No entity shall hold itself out as providing training and education necessary to meet the requirements of clause (i) of subsection B unless its curriculum and training program has been approved by a body approved by the Board for such purpose.
  4. The Board shall adopt regulations setting forth the requirements for (i) use of the title “state-certified doula” and (ii) training and education necessary to satisfy the requirements for certification by the Department as a state-certified doula.
  5. Notwithstanding the provisions of subsection B, a person who is certified by a national credentialing organization that is approved by a body approved by the Board for such purpose who does not meet the requirements of clause (i) of subsection B shall also be eligible for state certification.
  6. Certification requirements for state-certified doulas shall reflect national best practices pertaining to community-based doula training and certification.
  7. The Department shall make a registry of state-certified doulas in the Commonwealth available to the public through a body approved by the Board to certify doulas. The Department shall also make a list of entities approved to provide training and education necessary to meet the requirements of clause (i) of subsection B available to the public through a body approved by the Board to certify doulas.
  8. Nothing in this section shall prohibit any person from practicing as a doula in the Commonwealth, regardless of whether such person is certified in accordance with the provisions of this section.

History. 2020, c. 724.

§ 32.1-78. Reporting information about children with health problems or handicapping conditions.

Notwithstanding § 32.1-271 or any other law to the contrary, the Commissioner shall report to the Superintendent of Public Instruction or to the appropriate school division superintendent within the Commonwealth the identity of, and pertinent information about, children with health problems or handicapping conditions which might affect the child’s career in school and his need for special education.

History. Code 1950, § 32-11.1; 1972, c. 431; 1979, c. 711.

Article 3. Virginia Voluntary Formulary.

§§ 32.1-79 through 32.1-88. Repealed by Acts 2003, c. 639, cl. 2.

Cross references.

As to dispensing of therapeutically equivalent drug product, see § 54.1-3408.03.

Article 4. Miscellaneous Services.

§ 32.1-89. Health services for persons suffering from hemophilia and related diseases.

  1. The State Board of Health shall establish a program for the care and treatment of persons suffering from hemophilia and other related bleeding diseases who are unable to pay for the entire cost of such services on a continuing basis despite the existence of various types of hospital and medical insurance. The program may include (i) payments on behalf of such persons for obtaining blood, blood derivatives and concentrates, for necessary medical, surgical, dental, hospital and outpatient clinic services and for rehabilitation; (ii) the establishment of, or contracts for, hospital and clinic facilities for the diagnosis and treatment of such persons; (iii) participation in the cost of blood processing to the extent that such participation will facilitate the supplying of blood, blood derivatives and concentrates and other efficacious agents to such persons; and (iv) development of, or participation in the cost of developing, programs for the care and treatment of such persons, including self-administration, prevention and home care and medical and dental procedures and techniques designed to provide maximum control over bleeding episodes typical in such persons.
  2. The State Board of Health may provide home and clinic health services for persons suffering from hemophilia or other related bleeding diseases who are not eligible under subsection A. The State Board of Health may provide such services through cooperative agreements with medical facilities or other appropriate means. Charges for persons receiving care or treatment under this subsection shall be determined by the State Board of Health. Funds received in payment for such services are hereby appropriated to the State Board of Health for the purpose of carrying out the provisions of this section.
  3. The State Board of Health shall provide for the development, implementation, and sustainability of a process for the receipt and consideration of advice and policy recommendations at least annually from, and on behalf of, persons suffering from hemophilia and other related bleeding diseases, for the purpose of informing programs and services established under this section.

History. Code 1950, § 32-8.6; 1976, c. 296; 1979, c. 711; 1985, c. 448; 2002, c. 696; 2012, cc. 803, 835.

The 2002 amendments.

The 2002 amendment by c. 696 inserted “or licensed pharmacists” in the third sentence in subsection C.

The 2012 amendments.

The 2012 amendments by cc. 803 and 835, cl. 74, are identical, and deleted “of this section” from the end of the first sentence of subsection B; and rewrote subsection C, which pertained to the Hemophilia Advisory Board.

§ 32.1-90. Health services for persons suffering from epilepsy and cystic fibrosis.

The Board may provide, through cooperative agreements with medical facilities or other appropriate means, home and clinic health services for persons suffering from epilepsy and for persons not eligible for child supportive services suffering from cystic fibrosis. Monetary payments from persons for care or treatment under this section shall be determined by the Board. Funds received in payment for such services are hereby appropriated to the Board for the purpose of carrying out the provisions of this section.

History. Code 1950, §§ 32-8.3; 32-8.4; 1974, c. 562; 1975, c. 294; 1979, c. 711.

§ 32.1-91. Repealed by Acts 1980, c. 728.

Cross references.

For present provisions as to compensation and expenses of boards, commissions and similar bodies, see § 2.2-2813.

§ 32.1-92. Repealed by Acts 1982, c. 15.

§ 32.1-92.1. Funding of certain abortions where pregnancy results from rape or incest.

From the moneys appropriated to the Department from the general fund, the Board shall fund abortions for women who otherwise meet the financial eligibility criteria of the State Medical Assistance Plan in any case in which a pregnancy occurs as a result of rape or incest and which is reported to a law-enforcement or public health agency.

History. 1982, c. 644.

Law Review.

For note on abortion funding restrictions, see 39 Wash. & Lee L. Rev. 1469 (1982).

Michie’s Jurisprudence.

For related discussion, see 1A M.J. Abortion, § 1.

§ 32.1-92.2. Funding of certain abortions where fetus is believed to have incapacitating physical deformity or mental deficiency; physician’s certificate.

From the moneys appropriated to the Department from the general fund, the Board shall fund abortions for women who otherwise meet the financial eligibility criteria of the State Medical Assistance Plan in any case in which a physician who is trained and qualified to perform such tests certifies in writing, after appropriate tests have been performed, that he believes the fetus will be born with a gross and totally incapacitating physical deformity or with a gross and totally incapacitating mental deficiency.

History. 1982, c. 645.

The number of this section was assigned by the Virginia Code Commission, the number in the 1982 act having been 32.1-92.1 .

Law Review.

For note on abortion funding restrictions, see 39 Wash. & Lee L. Rev. 1469 (1982).

For essay, “How (Not) to Talk About Abortion,” see 47 U. Rich. L. Rev. 425 (2012).

Michie’s Jurisprudence.

For related discussion, see 1A M.J. Abortion, § 1.

Chapter 4. Health Care Planning.

Article 1. Medical Care Facilities Certificate of Public Need.

§§ 32.1-93 through 32.1-102. Repealed by Acts 1982, c. 388.

Cross references.

As to certificates of public need for medical care facilities, see now § 32.1-102.1 et seq.

Article 1.1. Medical Care Facilities Certificate of Public Need.

§ 32.1-102.1. Definitions.

As used in this article, unless the context indicates otherwise:

“Application” means a prescribed format for the presentation of data and information deemed necessary by the Board to determine a public need for a project.

“Bad debt” means revenue amounts deemed uncollectable as determined after collection efforts based upon sound credit and collection policies.

“Certificate” means a certificate of public need for a project required by this article.

“Charity care” means health care services delivered to a patient who has a family income at or below 200 percent of the federal poverty level and for which it was determined that no payment was expected (i) at the time the service was provided because the patient met the facility’s criteria for the provision of care without charge due to the patient’s status as an indigent person or (ii) at some time following the time the service was provided because the patient met the facility’s criteria for the provision of care without charge due to the patient’s status as an indigent person. “Charity care” does not include care provided for a fee subsequently deemed uncollectable as bad debt. For a nursing home as defined in § 32.1-123 , “charity care” means care at a reduced rate to indigent persons.

“Clinical health service” means a single diagnostic, therapeutic, rehabilitative, preventive or palliative procedure or a series of such procedures that may be separately identified for billing and accounting purposes.

“Health planning region” means a contiguous geographical area of the Commonwealth with a population base of at least 500,000 persons which is characterized by the availability of multiple levels of medical care services, reasonable travel time for tertiary care, and congruence with planning districts.

“Project” means any action described in subsection B of § 32.1-102.1:3 .

“Regional health planning agency” means the regional agency, including the regional health planning board, its staff and any component thereof, designated by the Virginia Health Planning Board to perform the health planning activities set forth in this chapter within a health planning region.

“State Health Services Plan” means the planning document adopted by the Board of Health which shall include, but not be limited to, (i) methodologies for projecting need for each type of medical care facility described in subsection A of § 32.1-102.1:3 and each type of project described in subsection B of § 32.1-102.1:3 ; (ii) statistical information on the availability of each type of medical care facility described in subsection A of § 32.1-102.1:3 and each type of project described in subsection B of § 32.1-102.1:3; and (iii) procedures, criteria, and standards for review of applications for projects for each type of medical care facility described in subsection A of § 32.1-102.1:3 and each type of project described in subsection B of § 32.1-102.1:3.

History. 1982, c. 388; 1983, c. 533; 1984, c. 740; 1985, c. 513; 1989, c. 517; 1991, c. 561; 1992, c. 612; 1993, c. 704; 1995, c. 524; 1996, c. 1050; 1997, c. 600; 1998, c. 289; 1999, cc. 899, 920, 922; 2000, cc. 850, 920; 2004, c. 75; 2007, c. 502; 2008, c. 664; 2009, cc. 67, 175, 813, 840; 2011, cc. 92, 150; 2012, cc. 476, 492, 507, 803, 835; 2015, cc. 541, 542, 651; 2017, cc. 458, 791; 2020, c. 1271.

Cross references.

As to retiree license for doctors, etc., providing charity care or health services for patients for whom travel is a barrier, § 54.1-2937.1.

Editor’s note.

Acts 2015, c. 541, cl. 2 provides: “That the Secretary of Health and Human Resources shall convene a workgroup that shall include health care providers, consumers of health care services, representatives of the business community, and other stakeholders to review the current certificate of public need process and the impact of such process on health care services in the Commonwealth, and the need for changes to the current certificate of public need process. In conducting such review, the work group shall evaluate: (i) the process by which applications for certificates of public need are reviewed, the criteria upon which decisions about issuance of certificates of public need are based, and barriers to issuance of a certificate of public need; (ii) the frequency with which applications for a certificate are approved or denied; (iii) fees charged for review of applications for a certificate of public need and the cost to the Commonwealth of processing applications for a certificate of public need; (iv) applications for and the impact of the current certificate of public need process on establishment of new health care services, including the establishment of new intermediate-level or specialty-level neonatal special care services and open heart surgery services and the addition of new beds or operating rooms at existing medical care facilities; (v) the relationship between the certificate of public need process and the provision of charity care in the Commonwealth and the impact of the certificate of public need process on the provision of charity care in the Commonwealth; (vi) the impact of the certificate of public need process on graduate medical education programs and teaching hospitals in the Commonwealth; (vii) the efficacy of regional health planning agencies, the role of regional health planning agencies in the certificate of public need process, and barriers to the continued role of regional health planning agencies in the certificate of public need process; and (viii) the frequency with which the State Medical Facilities Plan is updated and whether such plan should be updated more frequently. The work group shall develop specific recommendations for changes to the certificate of public need process to address any problems or challenges identified during such review, which shall include recommendations for changes to the process to be introduced during the 2016 Session of the General Assembly and any additional changes that may require further study or review. In conducting its review and developing its recommendations, the work group shall consider data and information about the current certificate of public need process in the Commonwealth, the impact of such process, and any data or information about similar processes in other states. The Secretary shall report on the recommendations developed by the work group by December 1, 2015.”

Acts 2017, c. 791, cl. 2 provides: “That the Commissioner of Health shall report to the Chairmen of the House Committees on Appropriations and Health, Welfare and Institutions and the Senate Committees on Finance and Education and Health by November 1, 2018, a data analysis comparing the value of (i) the total amount of charity care as defined in § 32.1-102.1 of the Code of Virginia, as amended by this act, that each medical care facility provided to indigent persons; (ii) the number of patients to whom charity care was provided; (iii) the specific services delivered to patients that are reported as charity care recipients; and (iv) the portion of the total amount of charity care provided that each service represents to comply with any conditions on such certificates based on the method utilized for valuing such care as of July 1, 2017, to the medical care facility’s cost using a method established by the nonprofit organization defined in § 32.1-276.3 of the Code of Virginia and to the value of such care based on the provider reimbursement methodology utilized by the Centers for Medicare and Medicaid Services for reimbursement under Title XVIII of the Social Security Act, 42 U.S.C. § 1395 et seq.”

Acts 2020, c. 1271, cl. 2 provides: “That the Department of Health develop recommendations to reduce the duration of the average review cycle for applications for certificates of public need to not more than 120 days from the date of receipt of a letter of intent. In doing so, the Department shall consider changes to the current process that may result in a reduction in the duration of the review period, including elimination or revision of the review of applications for completeness, reduction of the current 70-day period for review of an application by the Department, and a requirement that a public hearing be held earlier in the process. The Department shall report its recommendations to the Governor and the General Assembly by December 1, 2020.”

Acts 2020, c. 1271, cl. 3 provides: “That the Secretary of Health and Human Resources implement a system by January 1, 2023, or as soon as thereafter as practicable, to ensure that data needed to evaluate whether an application for a certificate of public need is consistent with the State Health Services Plan requirements is timely and reliable, with such funds as are available.”

Acts 2020, c. 1271, cl. 4 provides: “That the Secretary of Health and Human Resources implement a system by January 1, 2021, or as soon thereafter as practicable, to make an inventory of capacity authorized by certificates of public need, both operational and not yet operational, available in a digital format online, with such funds as are available.”

Acts 2020, c. 1271, cl. 5 provides: “That the Secretary of Health and Human Resources establish, by January 1, 2021, a public education and outreach program designed to improve public awareness of the certificate of public need process and the public’s role in such process, including the opportunity to provide written comments on applications and the process by which a member of the public may request a public hearing on an application.”

The 2000 amendments.

The 2000 amendments by cc. 850 and 920 are identical, and inserted “except for the purpose of nuclear cardiac imaging” near the end of the ninth clause in the paragraph defining “Medical care facility”; added the last sentence in the concluding paragraph under the definition of “Medical care facility”; and inserted “except for the purpose of nuclear cardiac imaging” in the fifth clause in the paragraph defining “Project.”

The 2004 amendments.

The 2004 amendment by c. 75, in the definition of “Medical care facility,” added the language beginning “except those intermediate care facilities” at the end of subdivision 4, inserted clause (iii), redesignated former clauses (iii) and (iv) as present clauses (iv) and (iv) and made minor stylistic changes in the first sentence of the last paragraph; and in the definition of “Project,” substituted “10” for “ten” in three places in subdivision 3, substituted “12” for “twelve” in subdivision 5, in subdivision 8, substituted “$5 million” for “five million dollars” in the first and last sentences and substituted “$1” for “one” in the last sentence.

The 2007 amendments.

The 2007 amendment by c. 502, in the definition of “Project,” in subdivision 8, substituted “$15 million” for “$5 million” in the first sentence, substituted “between $5 and $15 million” for “between $1 and $5 million” in the second sentence and added the last sentence.

The 2008 amendments.

The 2008 amendment by c. 664, under the definition for “Project,” rewrote subdivision 3.

The 2009 amendments.

The 2009 amendment by c. 67, in the definition of “Medical care facility,” in the first sentence of the last paragraph, added clause (vi) and made related changes.

The 2009 amendment by c. 175, effective March 25, 2009, substituted “stereotactic radiosurgery” for “gamma knife surgery” and inserted “stereotactic radiotherapy, proton beam therapy” following “radiation therapy” in subdivision 9 of the definition of “Medical care facility” and in subdivisions 5 and 7 of the definition of “Project”; in the definition of “Project,” added subdivision 9 and made related changes; and deleted the former definition of “Virginia Health Planning Board,” which read: “’Virginia Health Planning Board’ means the statewide health planning body established pursuant to § 32.1-122.02 which serves as the analytical and technical resource to the Secretary of Health and Human Resources in matters requiring health analysis and planning.”

The 2009 amendments by cc. 813 and 840 are identical, and in the definition of “Medical care facility,” substituted “Department of Behavioral Health and Developmental Services” for “State Mental Health, Mental Retardation and Substance Abuse Services Board” near the beginning of the first paragraph; substituted “individuals with mental retardation” for “the mentally retarded,” “individuals” for “people” and “Behavioral Health and Developmental” for “Mental Health, Mental Retardation and Substance Abuse” in subdivision 4; substituted “individuals with substance abuse” for “alcoholics or drug addicts” in subdivision 8; and in the last paragraph, substituted “Behavioral Health and Developmental” for “Mental Health, Mental Retardation and Substance Abuse” throughout and “individuals with mental retardation” for “the mentally retarded” in clause (iii).

The 2011 amendments.

The 2011 amendments by cc. 92 and 150 are identical, and in the definition for “Medical care facility,” added clause (vii) in the last paragraph and made related changes.

The 2012 amendments.

The 2012 amendments by cc. 476 and 507 are identical, and in the definition of “Medical care facility,” substituted “nonrelated persons who are injured or physically sick or have mental illness” for “nonrelated mentally or physically sick or injured persons” in the first sentence of the introductory paragraph and “with intellectual disability (ICF/MR)” for “with mental retardation” and “intellectual disability” for “mental retardation” in paragraph 4; rewrote paragraph 7, which read “Mental retardation facilities”; and in the concluding paragraph, substituted “individuals with intellectual disability (ICF/MR)” for “individuals with mental retardation” and “individuals with intellectual disability” for “people with mental retardation” in clause (iii) and deleted “above” following “described” in clause (iv).

The 2012 amendment by c. 492 substituted “pursuant to a Request for Applications (RFA)” for “under § 32.1-102.3:2 ” in subdivision 9 of the definition of “Project.”

The 2012 amendments by cc. 803 and 835, cl. 59, are identical, and in the definition for “Medical care facility,” in the last paragraph of subsection 11, in clause (iv), deleted “above” following “described,” and in clause (v), substituted “Department for Aging and Rehabilitative Services” for “Department of Rehabilitative Services.”

The 2015 amendments.

The 2015 amendments by cc. 541 and 651 are identical and substituted “does not include” for “shall not include” preceding “not” in the last paragraph of the definition for “medical care facility” and in subdivision 3 of the definition for “Project”; and in subdivision 8 of the definition for “Project,” substituted “on behalf” for “in behalf” substituted “other than a general hospital. Capital expenditures of $5 million or more by a general hospital and” for “However,” inserted “by a medical care facility other than a general hospital” and added the fourth sentence.

The 2015 amendment by c. 542 substituted “Wilson Workforce and Rehabilitation” for “Woodrow Wilson Rehabilitation” in subdivision (v) of the exclusions from the definition of “medical care facility.”

The 2017 amendments.

The 2017 amendment by c. 458 substituted “(ICF/IID)” for “(ICF/MR)”, and “developmental disabilities” for “intellectual disability” in the definition of “Medical care facility.”

The 2017 amendment by c. 791 added the definitions for “Bad debt” and “Charity care.”

The 2020 amendments.

The 2020 amendment by c. 1271 added the definition for “Application”; deleted the definition for “Medical care facility” (see now § 32.1-3 and subsection A of § 32.1-102.1:3 ); rewrote the definition for “Project” to refer to subsection B. of § 32.1-102.1:3 ; and in the last definition, substituted “Health Services” for “Medical Facilities” in the defined term and substituted “each type of medical care facility described in subsection A of § 32.1-102.1:3 and each type of project described in subsection B of § 32.1-102.1:3” for “medical care facility beds and services” in clause (i) and for “medical care facilities and services” in clauses (ii) and (iii).

Law Review.

For article, “The Changing Focus of Peer Review under Medicare,” see 20 U. Rich. L. Rev. 315 (1986).

As to certificates of public need, see 22 U. Rich. L. Rev. 667 (1988).

For survey of administrative procedure in Virginia for 1989, see 23 U. Rich. L. Rev. 431 (1989).

For 1992 survey of health care law in Virginia, see 26 U. Rich. L. Rev. 759 (1992).

For 2007 annual survey article, “Health Care Law,” see 42 U. Rich. L. Rev. 441 (2007).

For annual survey article, “Health Care Law,” see 44 U. Rich. L. Rev. 473 (2009).

Michie’s Jurisprudence.

For related discussion, see 9B M.J. Hospitals and Sanitariums, § 3.

CASE NOTES

Constitutionality. —

While commissioner’s determination that facility would be a specialized center or clinic developed for the provision of out-patient or ambulatory surgery, thus bringing it within the scope of this section’s definition of “medical care facility,” might leave room for argument, the determination did not pose an issue of classification that is unconstitutionally vague. Gordon v. Allen, 24 Va. App. 272, 482 S.E.2d 66, 1997 Va. App. LEXIS 120 (1997).

Virginia’s certificate of need requirement for establishment and expansion of medical facilities does not violate the dormant Commerce Clause, U.S. Const. art. I, § 8, cl. 3; discriminatory effect was not shown, nor were the incidental burdens on interstate commerce excessive in relation to the requirement’s putative local benefits, which included increased healthcare quality, assistance to underserved populations, and reduced costs to consumers. Colon Health Ctrs. of Am., LLC v. Hazel, 813 F.3d 145, 2016 U.S. App. LEXIS 1014 (4th Cir. 2016).

Twelve-month rule. —

Facility was not entitled to a subsection A of § 32.1-102.3 certificate of public need for an agreement it executed with a hospital ceasing operations to accept the hospital’s nursing home beds. It could obtain the certificate of public need to add nursing home beds in its planning district only if the Commissioner pursuant to § 32.1-102.3:2 issued a request for applications, which the Commissioner did not do, or if the “12-month rule” exception for relocated equipment set forth in § 32.1-102.1 applied, and that was not the case because the equipment expressly exempted did not include nursing home beds. Va. Dep't of Health v. NRV Real Estate, LLC, 278 Va. 181 , 677 S.E.2d 276, 2009 Va. LEXIS 74 (2009).

“Projects.” —

By exempting qualifying relocations from the definition of “project,” subsection B of § 32.1-102.3:5 renders inapplicable the elaborate procedures governing the approval of certificates of public need for projects — including § 32.1-102.6 ’s procedures for holding public hearings and granting good-cause standing to nonparties. Thus, a group of nursing homes that objected to the relocation of the beds lacked standing to challenge the relocation. Laurels of Bon Air, LLC v. Med. Facilities of Am. LIV Ltd. P'ship, 51 Va. App. 583, 659 S.E.2d 561, 2008 Va. App. LEXIS 189 (2008).

CIRCUIT COURT OPINIONS

Due process. —

Because the Virginia Administrative Procedures Act (VAPA), § 2.2-4000 et seq., was the exclusive avenue to challenge an administrative action involving the denial of a hospital’s certificate of public need application, because § 32.1-102.1 et seq., and the VAPA provided sufficient procedural due process, and because the hospital had an adequate remedy at law, the court lacked jurisdiction to hear the appeal; therefore, the competitors’ demurrers were sustained. Loudoun Hosp. Ctr. v. Stroube, 68 Va. Cir. 271, 2005 Va. Cir. LEXIS 229 (Loudoun County July 19, 2005).

OPINIONS OF THE ATTORNEY GENERAL

“Medical care facility.” —

A freestanding emergency facility that is owned and operated by a licensed hospital is not required to be separately licensed unless it falls within one of the classifications of “hospital” set forth in regulations promulgated by the state Board of Health. Additionally, the establishment of a freestanding emergency facility is not subject to the issuance of a certificate of public need unless it qualifies as a “medical care facility” under § 32.1-102.1 . See opinion of Attorney General to The Honorable George L. Barker, Member, Senate of Virginia, 18-045, 2019 Va. AG LEXIS 6 (3/8/19).

§ 32.1-102.1:1. Equipment registration required.

Within thirty calendar days of becoming contractually obligated to acquire any medical equipment for the provision of cardiac catheterization, computed tomographic (CT) scanning, stereotactic radiosurgery, lithotripsy, magnetic resonance imaging (MRI), magnetic source imaging (MSI), open heart surgery, positron emission tomographic (PET) scanning, radiation therapy, stereotactic radiotherapy, proton beam therapy, or other specialized service designated by the Board by regulation, any person shall register such purchase with the Commissioner and the appropriate regional health planning agency.

History. 1999, cc. 899, 922; 2000, c. 931; 2009, c. 175.

The 2000 amendments.

The 2000 amendment by c. 931 substituted “planning” for “systems”.

The 2009 amendments.

The 2009 amendment by c. 175, effective March 25, 2009, substituted “stereotactic radiosurgery” for “gamma knife surgery” and inserted “stereotactic radiotherapy, proton beam therapy” following “radiation therapy” and “regional” preceding “health planning agency.”

§ 32.1-102.1:2. Certificate of public need required; registration of certain equipment and capital projects required.

  1. No person shall undertake a project described in subsection B of § 32.1-102.1:3 or regulations of the Board at or on behalf of a medical care facility described in subsection A of § 32.1-102.1:3 without first obtaining a certificate from the Commissioner.
  2. No person shall acquire any replacement medical equipment for the provision of cardiac catheterization, computed tomographic (CT) scanning, magnetic resonance imaging (MRI), open heart surgery, positron emission tomographic (PET) scanning, radiation therapy, stereotactic radiotherapy other than radiotherapy performed using a linear accelerator or other medical equipment that uses concentrated doses of high-energy X-rays to perform external beam radiation therapy, proton beam therapy, or other specialized service designated by the Board by regulation without first registering such purchase with the Commissioner and the appropriate regional health planning agency. Such registration shall be made at least 30 calendar days prior to the date on which the person will become contractually obligated to acquire such medical equipment.
  3. No general hospital shall make any capital expenditure of $5 million or more and no medical care facility other than a general hospital shall make any capital expenditure between $5 million and the amount established by the Board as the minimum capital expenditure by a medical care facility other than a general hospital for which a certificate is required pursuant to subdivision B 8 of § 32.1-102.1:3 without first registering such capital expenditure with the Commissioner pursuant to regulations of the Board. The amounts specified in this subsection shall be revised annually to reflect inflation using appropriate measures incorporating construction costs and medical inflation.

History. 2020, c. 1271.

§ 32.1-102.1:3. Medical care facilities and projects for which a certificate is required.

  1. The following medical care facilities shall be subject to the provisions of this article:
    1. Any facility licensed as a hospital, as defined in § 32.1-123 ;
    2. Any hospital licensed as a provider by the Department of Behavioral Health and Developmental Services in accordance with Article 2 (§ 37.2-403 et seq.) of Chapter 4 of Title 37.2;
    3. Any facility licensed as a nursing home, as defined in § 32.1-123 ;
    4. Any intermediate care facility established primarily for the medical, psychiatric, or psychological treatment and rehabilitation of individuals with substance abuse licensed by the Department of Behavioral Health and Developmental Services in accordance with Article 2 (§ 37.2-403 et seq.) of Chapter 4 of Title 37.2;
    5. Any intermediate care facility for individuals with developmental disabilities other than an intermediate care facility established for individuals with intellectual disability (ICF/IID) that has not more than 12 beds and is in an area identified as in need of residential services for individuals with intellectual disability in any plan of the Department of Behavioral Health and Developmental Services; and
    6. Any specialized center or clinic or that portion of a physician’s office developed for the provision of outpatient or ambulatory surgery, cardiac catheterization, computed tomographic (CT) scanning, magnetic resonance imaging (MRI), positron emission tomographic (PET) scanning, radiation therapy, stereotactic radiotherapy other than radiotherapy performed using a linear accelerator or other medical equipment that uses concentrated doses of high-energy X-rays to perform external beam radiation therapy, or proton beam therapy.
  2. The following actions undertaken by or on behalf of a medical care facility described in subsection A shall constitute a project for which a certificate of public need is required pursuant to subsection A of § 32.1-102.1:2 :
    1. Establishment of a medical care facility described in subsection A;
    2. An increase in the total number of beds or operating rooms in an existing medical care facility described in subsection A;
    3. Relocation of beds from an existing medical care facility described in subsection A to another existing medical care facility described in subsection A;
    4. Addition of any new nursing home service at an existing medical care facility described in subsection A;
    5. Introduction into an existing medical care facility described in subsection A of any cardiac catheterization, computed tomographic (CT) scanning, magnetic resonance imaging (MRI), medical rehabilitation, neonatal special care, open heart surgery, positron emission tomographic (PET) scanning, psychiatric, organ or tissue transplant service, radiation therapy, stereotactic radiotherapy other than radiotherapy performed using a linear accelerator or other medical equipment that uses concentrated doses of high-energy X-rays to perform external beam radiation therapy, proton beam therapy, or substance abuse treatment when such medical care facility has not provided such service in the previous 12 months;
    6. Conversion of beds in an existing medical care facility described in subsection A to medical rehabilitation beds or psychiatric beds;
    7. The addition by an existing medical care facility described in subsection A of any new medical equipment for the provision of cardiac catheterization, computed tomographic (CT) scanning, magnetic resonance imaging (MRI), open heart surgery, positron emission tomographic (PET) scanning, radiation therapy, stereotactic radiotherapy other than radiotherapy performed using a linear accelerator or other medical equipment that uses concentrated doses of high-energy X-rays to perform external beam radiation therapy, or proton beam therapy, other than new medical equipment for the provision of such service added to replace existing medical equipment for the provision of such service;
    8. Any capital expenditure of $15 million or more, not defined as reviewable in subdivisions 1 through 7, by or on behalf of a medical care facility described in subsection A other than a general hospital. The amounts specified in this subdivision shall be revised annually to reflect inflation using appropriate measures incorporating construction costs and medical inflation. Nothing in this subdivision shall be construed to modify or eliminate the reviewability of any project described in subdivisions 1 through 7 when undertaken by or on behalf of a general hospital; and
    9. Conversion in an existing medical care facility described in subsection A of psychiatric inpatient beds approved pursuant to a Request for Applications (RFA) to nonpsychiatric inpatient beds.
  3. Notwithstanding the provisions of subsection A, any nursing home affiliated with a facility that, on January 1, 1982, and thereafter, (i) is operated as a nonprofit institution, (ii) is licensed jointly by the Department as a nursing home and by the Department of Social Services as an assisted living facility, and (iii) restricts admissions such that (a) admissions to the facility are only allowed pursuant to the terms of a “life care contract” guaranteeing that the full complement of services offered by the facility is available to the resident as and when needed, (b) admissions to the assisted living facility unit of the facility are restricted to individuals defined as ambulatory by the Department of Social Services, and (c) admissions to the nursing home unit of the facility are restricted to those individuals who are residents of the assisted living facility unit of the facility shall not be subject to the requirements of this article.
  4. Notwithstanding the provisions of subsection B, a certificate of public need shall not be required for the following actions undertaken by or on behalf of a medical care facility described in subsection A:
    1. Relocation of up to 10 beds or 10 percent of the beds, whichever is less, (i) from one existing medical care facility described in subsection A to another existing medical care facility described in subsection A at the same site in any two-year period or (ii) in any three-year period, from one existing medical care facility described in subsection A licensed as a nursing home to any other existing medical care facility described in subsection A licensed as a nursing home that is owned or controlled by the same person and located either within the same planning district or within another planning district out of which, during or prior to that three-year period, at least 10 times that number of beds have been authorized by statute to be relocated from one or more medical care facilities described in subsection A located in that other planning district, and at least half of those beds have not been replaced; or
    2. Use of up to 10 percent of beds as nursing home beds by a medical care facility described in subsection A licensed as a hospital, as provided in § 32.1-132 .
  5. The Department shall regularly review the types of medical care facilities subject to the provisions of this article and projects for which a certificate is required and provide to the Governor and the General Assembly, at least once every five years, a recommendation related to the continued appropriateness of requiring such types of medical care facilities to be subject to the provisions of this article and such types of projects to be subject to the requirement of a certificate. In developing such recommendations, the Department shall consider, for each type of medical care facility and project, the following criteria:
    1. The current and projected future availability of the specific type of medical care facility or project;
    2. The current and projected future demand for the specific type of medical care facility or project;
    3. The current and projected future rate of utilization of the specific type of medical care facility or project;
    4. The current and projected future capacity of existing medical care facilities or projects of that specific type;
    5. The anticipated impact of changes in population and demographics, reimbursement structures and rates, and technology on demand for and availability, utilization, and capacity of existing medical care facilities or projects of that specific type;
    6. Existing quality, utilization, and other controls applicable to the specific type of medical care facility or project; and
    7. Any risk to the health or well-being of the public resulting from inclusion of the specific type of medical care facility or project on such list.

History. 2020, c. 1271.

OPINIONS OF THE ATTORNEY GENERAL

“Medical care facility.” —

A freestanding emergency facility that is owned and operated by a licensed hospital is not required to be separately licensed unless it falls within one of the classifications of “hospital” set forth in regulations promulgated by the state Board of Health. Additionally, the establishment of a freestanding emergency facility is not subject to the issuance of a certificate of public need unless it qualifies as a “medical care facility” under § 32.1-102.1 . See opinion of Attorney General to The Honorable George L. Barker, Member, Senate of Virginia, 18-045, 2019 Va. AG LEXIS 6 (3/8/19).

§ 32.1-102.2. Regulations.

  1. The Board shall promulgate regulations that are consistent with this article and:
    1. Shall establish concise procedures for the prompt review of applications for certificates consistent with the provisions of this article which may include a structured batching process which incorporates, but is not limited to, authorization for the Commissioner to request proposals for certain projects. In any structured batching process established by the Board, applications, combined or separate, for computed tomographic (CT) scanning, magnetic resonance imaging (MRI), positron emission tomographic (PET) scanning, radiation therapy, stereotactic radiotherapy other than radiotherapy performed using a linear accelerator or other medical equipment that uses concentrated doses of high-energy X-rays to perform external beam radiation therapy, and proton beam therapy shall be considered in the radiation therapy batch. A single application may be filed for a combination of (i) radiation therapy, stereotactic radiotherapy other than radiotherapy performed using a linear accelerator or other medical equipment that uses concentrated doses of high-energy X-rays to perform external beam radiation therapy, and proton beam therapy and (ii) any or all of the computed tomographic (CT) scanning, magnetic resonance imaging (MRI), and positron emission tomographic (PET) scanning;
    2. May classify projects and may eliminate one or more or all of the procedures prescribed in § 32.1-102.6 for different classifications;
    3. May provide for exempting from the requirement of a certificate projects determined by the Commissioner, upon application for exemption, to be subject to the economic forces of a competitive market or to have no discernible impact on the cost or quality of health services;
    4. May establish a schedule of fees for applications for certificates or registration of a project to be applied to expenses for the administration and operation of the Certificate of Public Need Program;
    5. Shall establish an expedited application and review process for any certificate for projects reviewable pursuant to subdivision B 8 of § 32.1-102.1:3 . Regulations establishing the expedited application and review procedure shall include provisions for notice and opportunity for public comment on the application for a certificate, and criteria pursuant to which an application that would normally undergo the review process would instead undergo the full certificate of public need review process set forth in § 32.1-102.6 ;
    6. Shall establish an exemption from the requirement for a certificate, for a period of no more than 30 days, for projects involving a temporary increase in the total number of beds in an existing hospital or nursing home when the Commissioner has determined that a natural or man-made disaster has caused the evacuation of a hospital or nursing home and that a public health emergency exists due to a shortage of hospital or nursing home beds; and
    7. Shall require every medical care facility subject to the requirements of this article, other than a nursing home, that is not a medical care facility for which a certificate with conditions imposed pursuant to subsection B of § 32.1-102.4 has been issued and that provides charity care, as defined in § 32.1-102.1 , to annually report the amount of charity care provided.
  2. The Board shall promulgate regulations providing for time limitations for schedules for completion and limitations on the exceeding of the maximum capital expenditure amount for all reviewable projects. The Commissioner shall not approve any such extension or excess unless it complies with the Board’s regulations. However, the Commissioner may approve a significant change in cost for an approved project that exceeds the authorized capital expenditure by more than 20 percent, provided the applicant has demonstrated that the cost increases are reasonable and necessary under all the circumstances and do not result from any material expansion of the project as approved.
  3. The Board shall also promulgate regulations authorizing the Commissioner to condition approval of a certificate on the agreement of the applicant to provide a level of charity care to indigent persons or accept patients requiring specialized care. Such regulations shall include a methodology and formulas for uniform application of, active measuring and monitoring of compliance with, and approval of alternative plans for satisfaction of such conditions. In addition, the Board’s licensure regulations shall direct the Commissioner to condition the issuing or renewing of any license for any applicant whose certificate was approved upon such condition on whether such applicant has complied with any agreement to provide a level of charity care to indigent persons or accept patients requiring specialized care. Except in the case of nursing homes, the value of charity care provided to individuals pursuant to this subsection shall be based on the provider reimbursement methodology utilized by the Centers for Medicare and Medicaid Services for reimbursement under Title XVIII of the Social Security Act, 42 U.S.C. § 1395 et seq.
  4. The Board shall also promulgate regulations to require the registration of a project; for introduction into an existing medical care facility of any new lithotripsy, stereotactic radiosurgery, stereotactic radiotherapy performed using a linear accelerator or other medical equipment that uses concentrated doses of high-energy X-rays to perform external beam radiation therapy, obstetrical, or nuclear imaging services that the facility has never provided or has not provided in the previous 12 months; and for the addition by an existing medical care facility of any medical equipment for lithotripsy, stereotactic radiosurgery, stereotactic radiotherapy performed using a linear accelerator or other medical equipment that uses concentrated doses of high-energy X-rays to perform external beam radiation therapy, or nuclear imaging services. Replacement of existing equipment for lithotripsy, stereotactic radiosurgery, stereotactic radiotherapy other than radiotherapy performed using a linear accelerator or other medical equipment that uses concentrated doses of high-energy X-rays to perform external beam radiation therapy, or nuclear imaging services shall not require registration. Such regulations shall include provisions for (i) establishing the agreement of the applicant to provide a level of care in services or funds that matches the average percentage of indigent care provided in the appropriate health planning region and to participate in Medicaid at a reduced rate to indigents, (ii) obtaining accreditation from a nationally recognized accrediting organization approved by the Board for the purpose of quality assurance, and (iii) reporting utilization and other data required by the Board to monitor and evaluate effects on health planning and availability of health care services in the Commonwealth.

History. 1982, c. 388; 1991, c. 561; 1993, c. 704; 1996, c. 1050; 1999, cc. 899, 922, 926; 2003, cc. 61, 72; 2007, c. 502; 2009, c. 175; 2017, c. 791; 2019, cc. 136, 343, 839; 2020, c. 1271.

Editor’s note.

Acts 2017, c. 791, cl. 2 provides: “That the Commissioner of Health shall report to the Chairmen of the House Committees on Appropriations and Health, Welfare and Institutions and the Senate Committees on Finance and Education and Health by November 1, 2018, a data analysis comparing the value of (i) the total amount of charity care as defined in § 32.1-102.1 of the Code of Virginia, as amended by this act, that each medical care facility provided to indigent persons; (ii) the number of patients to whom charity care was provided; (iii) the specific services delivered to patients that are reported as charity care recipients; and (iv) the portion of the total amount of charity care provided that each service represents to comply with any conditions on such certificates based on the method utilized for valuing such care as of July 1, 2017, to the medical care facility’s cost using a method established by the nonprofit organization defined in § 32.1-276.3 of the Code of Virginia and to the value of such care based on the provider reimbursement methodology utilized by the Centers for Medicare and Medicaid Services for reimbursement under Title XVIII of the Social Security Act, 42 U.S.C. § 1395 et seq.”

Acts 2017, c. 791, cl. 3 provides: “That the provisions of this act amending §§ 32.1-102.2 and 32.1-102.4 of the Code of Virginia shall become effective on July 1, 2019.”

The 2003 amendments.

The 2003 amendments by cc. 61 and 72 are identical, and added the language beginning “In any structured ...” at the end of subdivision A 1.

The 2007 amendments.

The 2007 amendment by c. 502 added the last sentence in subsection B.

The 2009 amendments.

The 2009 amendment by c. 175, effective March 25, 2009, in subdivision A 1, inserted “sterotactic radiotherapy, proton beam therapy” following “radiation therapy” in the first sentence and in clause (i) of the last sentence; and added subdivision A 6 and made related changes.

The 2017 amendments.

The 2017 amendment by c. 791, effective July 1, 2019, in subsection A, substituted “that” for “which” in the introductory paragraph; and rewrote subsection C, which formerly read: “The Board shall also promulgate regulations authorizing the Commissioner to condition approval of a certificate on the agreement of the applicant to provide a level of care at a reduced rate to indigents or accept patients requiring specialized care. In addition, the Board’s licensure regulations shall direct the Commissioner to condition the issuing or renewing of any license for any applicant whose certificate was approved upon such condition on whether such applicant has complied with any agreement to provide a level of care at a reduced rate to indigents or accept patients requiring specialized care.”

The 2019 amendments.

The 2019 amendments by cc. 136 and 343 are nearly identical, added subdivision A 7, and made related changes.

The 2019 amendment by c. 839 added subdivision A 8; and made stylistic changes.

The 2020 amendments.

The 2020 amendment by c. 1271, in subdivision A 1, inserted “other than radiotherapy performed using a linear accelerator or other medical equipment that uses concentrated doses of high-energy X-rays to perform external beam radiation therapy” in the second and last sentences, deleted “or nuclear imaging” following “proton beam therapy” in the second sentence, and deleted “and nuclear medicine imaging” in the last sentence at the end; deleted subdivision A 4, pertaining to a requirement to establish specific criteria for determining need in rural areas, and redesignated the remaining subdivisions accordingly; in present subdivision A 4, deleted “on or after July 1, 1999” following “May establish,” inserted “or registration of a project,” and deleted the former second and third sentences pertaining to amount of fees; in subsection C, inserted the second sentence; added subsection D; updated references; and made stylistic changes.

Law Review.

For 2007 annual survey article, “Health Care Law,” see 42 U. Rich. L. Rev. 441 (2007).

§ 32.1-102.2:1. State Health Services Plan; Task Force.

  1. The Board shall appoint and convene a State Health Services Plan Task Force for the purpose of advising the Board on the content of the State Health Services Plan. The Task Force shall provide recommendations related to (i) periodic revisions to the State Health Services Plan, (ii) specific objective standards of review for each type of medical care facility or project type for which a certificate of public need is required, (iii) project types that are generally noncontested and present limited health planning impacts, (iv) whether certain projects should be subject to expedited review rather than the full review process, and (v) improvements in the certificate of public need process. All such recommendations shall be developed in accordance with an analytical framework established by the Commissioner that includes a specific evaluation of whether State Health Services Plan standards are consistent with the goals of (a) meeting the health care needs of the indigent and uninsured citizens of the Commonwealth, (b) protecting the public health and safety of the citizens of the Commonwealth, (c) promoting the teaching missions of academic medical centers and private teaching hospitals, and (d) ensuring the availability of essential health care services in the Commonwealth, and are aligned with the goals and metrics of the Commonwealth’s State Health Improvement Plan.
  2. The Task Force shall consist of no fewer than 19 individuals appointed by the Commissioner who are broadly representative of the interests of all residents of the Commonwealth and of the various geographic regions, including two representatives of the Virginia Hospital and Healthcare Association, the Medical Society of Virginia, the Virginia Health Care Association, and physicians or administrators representing teaching hospitals affiliated with a public institution of higher education; one representative each of the Virginia Association of Health Plans, the Virginia Association of Free and Charitable Clinics, the Virginia Community Healthcare Association, LeadingAge Virginia, a company that is self-insured or full-insured for health coverage, a nonprofit organization located in the Commonwealth that engages in addressing access to health coverage for low-income individuals, and a rural locality recognized as a medically underserved area; one individual with experience in health facilities planning; and such other individuals as the Commissioner determines is appropriate.
  3. The powers and duties of the Task Force shall be:
    1. To develop, by November 1, 2022, recommendations for a comprehensive State Health Services Plan for adoption by the Board that includes (i) specific formulas for projecting need for medical care facilities and services subject to the requirement to obtain a certificate of public need, (ii) current statistical information on the availability of medical care facilities and services, (iii) objective criteria and standards for review of applications for projects for medical care facilities and services, and (iv) methodologies for integrating the goals and metrics of the State Health Improvement Plan established by the Commissioner into the criteria and standards for review. Criteria and standards for review included in the State Health Services Plan shall take into account current data on drive times, utilization, availability of competing services, and patient choice within and among localities included in the health planning district or region; changes and availability of new technology; and other relevant factors identified by the Task Force. The State Health Services Plan shall also include specific criteria for determining need in rural areas, giving due consideration to distinct and unique geographic, socioeconomic, cultural, transportation, and other barriers to access to care in such areas and providing for weighted calculations of need based on the barriers to health care access in such rural areas in lieu of the determinations of need used for the particular proposed project within the relevant health planning district or region as a whole;
    2. To engage the services of private consultants or request the Department to contract with any private organization for professional and technical assistance and advice or other services to assist the Task Force in carrying out its duties and functions pursuant to this section. The Task Force may also solicit the input of experts with professional competence in the subject matter of the State Health Services Plan, including (i) representatives of licensed health care providers or health care provider organizations owning or operating licensed health facilities and (ii) representatives of organizations concerned with health care consumers and the purchasers and payers of health care services; and
    3. To review annually and, if necessary, develop recommendations for revisions to each section of the State Health Services Plan on a rotating schedule defined by the Task Force at least every two years following the last date of adoption by the Board.
  4. The Task Force shall exercise its powers and carry out its duties to ensure:
    1. The availability and accessibility of quality health services at a reasonable cost and within a reasonable geographic proximity for all people in the Commonwealth, competitive markets, and patient choice;
    2. Appropriate differential consideration of the health care needs of residents in rural localities in ways that do not compromise the quality and affordability of health care services for those residents;
    3. Elimination of barriers to access to care and introduction and availability of new technologies and care delivery models that result in greater integration and coordination of care, reduction in costs, and improvements in quality; and
    4. Compliance with the goals of the State Health Services Plan and improvement in population health.
  5. The Department shall post on its website information regarding the process by which the State Health Services Plan is created and the process by which the Department determines whether a proposed project complies with the State Health Services Plan on its website.

History. 2008, c. 501; 2009, c. 175; 2020, c. 1271.

The 2009 amendments.

The 2009 amendment by c. 175, effective March 25, 2009, deleted “Health” following “Department of” in the second sentence.

The 2020 amendments.

The 2020 amendment by c. 1271 rewrote the section, which formerly read: “The Board shall appoint and convene a task force of no fewer than 15 individuals to meet at least once every two years. The task force shall consist of representatives from the Department and the Division of Certificate of Public Need, representatives of regional health planning agencies, representatives of the health care provider community, representatives of the academic medical community, experts in advanced medical technology, and health insurers. The task force shall complete a review of the State Medical Facilities Plan updating or validating existing criteria in the State Medical Facilities Plan at least every four years.”

§ 32.1-102.3. Demonstration of public need required; criteria for determining need.

  1. No certificate may be issued unless the Commissioner has determined that a public need for the project has been demonstrated. If it is determined that a public need exists for only a portion of a project, a certificate may be issued for that portion and any appeal may be limited to the part of the decision with which the appellant disagrees without affecting the remainder of the decision. Any decision to issue or approve the issuance of a certificate shall be consistent with the most recent applicable provisions of the State Health Services Plan; however, if the Commissioner finds, upon presentation of appropriate evidence, that the provisions of such plan are not relevant to a rural locality’s needs, inaccurate, outdated, inadequate or otherwise inapplicable, the Commissioner, consistent with such finding, may issue or approve the issuance of a certificate and shall initiate procedures to make appropriate amendments to such plan. In cases in which a provision of the State Health Services Plan has been previously set aside by the Commissioner and relevant amendments to the Plan have not yet taken effect, the Commissioner’s decision shall be consistent with the applicable portions of the State Health Services Plan that have not been set aside and the remaining considerations in subsection B.
  2. In determining whether a public need for a project has been demonstrated, the Commissioner shall consider:
    1. The extent to which the proposed project will provide or increase access to health care services for people in the area to be served and the effects that the proposed project will have on access to health care services in areas having distinct and unique geographic, socioeconomic, cultural, transportation, and other barriers to access to health care;
    2. The extent to which the proposed project will meet the needs of people in the area to be served, as demonstrated by each of the following: (i) the level of community support for the proposed project demonstrated by people, businesses, and governmental leaders representing the area to be served; (ii) the availability of reasonable alternatives to the proposed project that would meet the needs of people in the area to be served in a less costly, more efficient, or more effective manner; (iii) any recommendation or report of the regional health planning agency regarding an application for a certificate that is required to be submitted to the Commissioner pursuant to subsection B of § 32.1-102.6 ; (iv) any costs and benefits of the proposed project; (v) the financial accessibility of the proposed project to people in the area to be served, including indigent people; and (vi) at the discretion of the Commissioner, any other factors as may be relevant to the determination of public need for a proposed project;
    3. The extent to which the proposed project is consistent with the State Health Services Plan;
    4. The extent to which the proposed project fosters institutional competition that benefits the area to be served while improving access to essential health care services for all people in the area to be served;
    5. The relationship of the proposed project to the existing health care system of the area to be served, including the utilization and efficiency of existing services or facilities;
    6. The feasibility of the proposed project, including the financial benefits of the proposed project to the applicant, the cost of construction, the availability of financial and human resources, and the cost of capital;
    7. The extent to which the proposed project provides improvements or innovations in the financing and delivery of health care services, as demonstrated by (i) the introduction of new technology that promotes quality, cost effectiveness, or both in the delivery of health care services; (ii) the potential for provision of health care services on an outpatient basis; (iii) any cooperative efforts to meet regional health care needs; and (iv) at the discretion of the Commissioner, any other factors as may be appropriate; and
    8. In the case of a project proposed by or affecting a teaching hospital associated with a public institution of higher education or a medical school in the area to be served, (i) the unique research, training, and clinical mission of the teaching hospital or medical school and (ii) any contribution the teaching hospital or medical school may provide in the delivery, innovation, and improvement of health care services for citizens of the Commonwealth, including indigent or underserved populations.

History. 1982, c. 388; 1984, c. 740; 1993, c. 704; 1999, c. 926; 2000, c. 931; 2004, cc. 71, 95; 2008, c. 292; 2009, c. 175; 2020, cc. 227, 558, 1271.

Editor’s note.

Acts 2010, c. 623, cl. 1 provides: “Notwithstanding (i) the provisions of §§ 32.1-102.3 and 32.1-102.3:2 of the Code of Virginia, (ii) any regulations of the Board of Health establishing standards for the approval and issuance of Requests for Applications, and (iii) any current Requests for Applications issued pursuant to § 32.1-102.3:2 of the Code of Virginia, the Commissioner of Health shall accept and review applications in any certificate of public need Batch Group G review cycle and may issue certificates of public need for the establishment of a psychiatric service as the result of a relocation of psychiatric beds from one hospital in Planning District 5 to another hospital in Planning District 5. No psychiatric beds relocated from one hospital to another hospital in Planning District 5 to establish a new psychiatric service shall be converted to any use other than inpatient psychiatric care.”

Acts 2011, c. 395, cl. 1 provides: “§ 1. Notwithstanding (i) the provisions of §§ 32.1-102.3 and 32.1-102.3:2 of the Code of Virginia, (ii) any regulations of the Board of Health establishing standards for the approval and issuance of Requests for Applications, and (iii) any current Requests for Applications issued pursuant to § 32.1-102.3:2 of the Code of Virginia, the Commissioner of Health shall accept and review applications and may issue certificates of public need for the addition of up to 10 Medicaid-eligible nursing home beds for a certified nursing home licensed for less than 60 beds, which is operated not for profit, is located in Planning District 15 but accepts patients from areas of the Commonwealth outside of the planning district, and provides care for patients regardless of ability to pay.”

Acts 2011, c. 395, cl. 2 provides: “That the provisions of this act shall not become effective unless an appropriation of general funds effectuating the purposes of this act is included in the general appropriation act passed by the 2011 Regular Session of the General Assembly and signed by the Governor and becomes law.” Funding was provided in the 2011 Appropriation Act.

Acts 2018, cc. 1 and 2, cl. 1 provides: Ҥ 1. That, notwithstanding any other provision of law, any license issued to an acute care hospital located in Patrick County that was valid on September 1, 2017, and remained valid on December 31, 2017, despite the closure of such hospital prior to December 31, 2017, shall continue to remain valid until December 31, 2018.

“§ 2. That, notwithstanding the requirements of § 32.1-102.3 of the Code of Virginia and regulations of the Board of Health, the recommencement of any project by an acute care hospital located in Patrick County that occurs as the result of the closure of an existing licensed hospital for which a certificate was previously issued or for which no certificate was required at the time at which the project was first commenced, and the subsequent sale and reestablishment of such hospital where such recommencement of such project. However, any conditions imposed on any such certificate issued to the existing licensed hospital prior to its closure, sale, or reestablishment shall continue to be in effect until such time as the conditions are satisfied or a new certificate is issued for the hospital.”

Acts 2018, cc. 1 and 2, cl. 2 provides: “That the provisions of this act shall be effective retroactively to December 31, 2017.”

Acts 2018, cc. 1 and 2, cl. 3 provides: “That an emergency exists and this act is in force from its passage [February 16, 2018].”

The 2000 amendments.

The 2000 amendment by c. 931 substituted “planning” for “systems” in subdivisions B 1 and B 2.

The 2004 amendments.

The 2004 amendments by cc. 71 and 95 are identical, and added “and the effects on accessibility of any proposed relocation of an existing service or facility” at the end of subdivision B 5.

The 2008 amendments.

The 2008 amendment by c. 292 added subdivision B 21.

The 2009 amendments.

The 2009 amendment by c. 175, effective March 25, 2009, added the last sentence in subsection A; and rewrote subsection B.

The 2020 amendments.

The 2020 amendments by cc. 227 and 558 are identical, and substituted “people in” for “residents of,” or similar language in subdivision B 1 and throughout subdivision B 2; in clause (i) in subdivision B 2, substituted “people” for “citizens,” and in clause (ii), substituted “people in the area to be served” for “the population”; and in subdivision B 4, substituted “people” for “persons” and made stylistic changes.

The 2020 amendment by c. 1271, substituted “State Health Services Plan” for “State Medical Facilities Plan” throughout in subsection A, deleted the first sentence, which read: “No person shall commence any project without first obtaining a certificate issued by the Commissioner”; in subdivision B 1, substituted “project” for “service or facility” twice, “health care services” for “needed services” twice and “to health care” for “to care”; inserted “proposed” throughout subdivisions B 2 and B 5 through B 7; substituted “proposed project” for “proposed service or facility” in subdivision B 2, clause (ii) and subdivision B 4; in subdivision B 3, substituted “proposed project” for “application”; in subdivision B 7, inserted “care” in the introductory language and “health care” in clause (ii), inserted “services” in subdivision B 8, clause (ii); and made stylistic changes.

Law Review.

For 2007 annual survey article, “Health Care Law,” see 42 U. Rich. L. Rev. 441 (2007).

Michie’s Jurisprudence.

For related discussion, see 9B M.J. Hospitals and Sanitariums, § 3.

CASE NOTES

Editor’s note.

Many of the decisions cited below were decided prior to 2009 amendments, which rewrote subsection B.

“Consistent with,” as used in the context of subsection A of this section, does not mean “exactly alike” or “the same in every detail.” It means, instead, “in harmony with,” “compatible with,” “holding to the same principles,” or “in general agreement with.” Roanoke Mem. Hosps. v. Kenley, 3 Va. App. 599, 352 S.E.2d 525, 3 Va. Law Rep. 1607, 1987 Va. App. LEXIS 145 (1987).

This section limits the authority of the Commissioner with respect to the issuance of a certificate of need. First, a decision to issue or approve the issuance of a certificate must be consistent with the most recent applicable provisions of the State Health Plan. Second, in determining whether such public need for a project has been demonstrated, the Commissioner must consider the 20 criteria set forth in subsection B. Roanoke Mem. Hosps. v. Kenley, 3 Va. App. 599, 352 S.E.2d 525, 3 Va. Law Rep. 1607, 1987 Va. App. LEXIS 145 (1987).

Justification for denial. —

While subsection A allows Commissioner to grant a Certificate of Public Need (COPN) if there is a need therefor and the Commissioner finds that the State Medical Facilities Plan C (SMFP) is outdated, the Commissioner cannot deny a COPN based on a finding that the existing SMFP is outdated. Sentara Norfolk Gen. Hosp. v. State Health Comm'r, 30 Va. App. 267, 516 S.E.2d 690, 1999 Va. App. LEXIS 462 (1999), rev'd, 260 Va. 267 , 534 S.E.2d 325, 2000 Va. LEXIS 115 (2000).

Substantial evidence in support of denial. —

Substantial evidence supported the State Health Commissioner’s denial of a certificate of public need for a computed tomography facility because (1) evidence showed the proposed new facility was inconsistent with the State Medical Facilities Plan, based on facility utilization in the health planning district as a whole, and (2) a public need was not shown. Levine v. Arlington Med. Imaging, LLC, 2018 Va. App. LEXIS 286 (Va. Ct. App. Oct. 23, 2018).

The State Health Commissioner did not err in failing to make specific findings on all 20 factors which he is required to consider under subsection B of this section; rather, the Commissioner’s decision must show that due consideration was given to the evidence bearing upon those factors which were relevant to the application under consideration, and the Commissioner’s decision, adopting the findings and conclusions of the hearing officer, complied with this standard. Bio-Medical Applications of Arlington, Inc. v. Kenley, 4 Va. App. 414, 358 S.E.2d 722, 4 Va. Law Rep. 58, 1987 Va. App. LEXIS 193 (1987).

Certificate of need. —

Under Virginia’s Health Care Planning law, before certain projects may be commenced, a medical care facility shall first obtain a certificate of need (CON) issued by the commissioner. The commissioner must determine that a public need for the project has been demonstrated and any decision to issue a CON must be consistent with the most recent applicable provisions of the State Health Plan (SHP) and the State Medical Facilities Plan (SMFP). If the commissioner finds that the provisions of either plan are inaccurate, outdated, inadequate, or otherwise inapplicable, the commissioner may nevertheless issue a CON and institute procedures to amend the plan appropriately. Johnston-Willis, Ltd. v. Kenley, 6 Va. App. 231, 369 S.E.2d 1, 4 Va. Law Rep. 2665, 1988 Va. App. LEXIS 46 (1988).

Nursing homes could not rely on § 32.1-102.3 to provide a vehicle by which they could challenge a competitor’s bed relocation request because the language of § 32.1-102.3:5 specifically exempted bed relocation requests from the formal procedures regarding certificates of public need, notwithstanding any language contained in § 32.1-102.3 .Laurels of Bon Air, LLC v. Med. Facilities of Am. LIV Ltd. P'ship, 51 Va. App. 583, 659 S.E.2d 561, 2008 Va. App. LEXIS 189 (2008).

Constitutionality of certificate of need requirement. —

District court properly dismissed the out-of-state medical providers’ Privileges and Immunities Clause claims challenging Virginia’s certificate-of-need requirement, given case law confining the reach of that clause to a set of national rights that did not include the right to pursue a particular occupation. Colon Health Ctrs. of Am., LLC v. Hazel, 733 F.3d 535, 2013 U.S. App. LEXIS 21515 (4th Cir. 2013).

District court properly dismissed the out-of-state medical providers’ Due Process Clause claims challenging Virginia’s certificate-of-need requirement where the state articulated a variety of legitimate purposes served by the statute, including ensuring geographically convenient access to healthcare for Virginia residents at a reasonable cost, and the providers’ cursory, unsubstantiated assertion that the statute failed to advance this purpose or any other was insufficient to merit further factual inquiry. Colon Health Ctrs. of Am., LLC v. Hazel, 733 F.3d 535, 2013 U.S. App. LEXIS 21515 (4th Cir. 2013).

District court properly dismissed the out-of-state medical providers’ Equal Protection Clause claims challenging Virginia’s certificate-of-need requirement where state legislators could reasonably have concluded, for instance, that nuclear cardiac imaging services were provided in a different market than other imaging services, and thus less susceptible to the dangers of excess capacity or geographical misallocation, and the providers had provided no general context or perspective to support their equal protection challenge. Colon Health Ctrs. of Am., LLC v. Hazel, 733 F.3d 535, 2013 U.S. App. LEXIS 21515 (4th Cir. 2013).

District court erred in dismissing the out-of-state medical providers’ Commerce Clause claims challenging Virginia’s certificate-of-need requirement where the allegations of discriminatory effect were rooted in the administrative process that raised practical questions of fact as to the functioning of the statute with respect to out-of-state versus in-state firms, and thus, the providers had raised their right to relief under the dormant Commerce Clause above the speculative level. Colon Health Ctrs. of Am., LLC v. Hazel, 733 F.3d 535, 2013 U.S. App. LEXIS 21515 (4th Cir. 2013).

Review of commissioner’s decisions. —

The commissioner’s decision on whether the State Health Plan or State Medical Facilities Plan is inaccurate, outdated, inadequate or otherwise inapplicable, is a decision within the specialized competence of the commissioner and is entitled to special weight in the courts. For that reason judicial interference is permissible only for relief against the arbitrary and capricious action that constitutes a clear abuse of the delegated discretion. Johnston-Willis, Ltd. v. Kenley, 6 Va. App. 231, 369 S.E.2d 1, 4 Va. Law Rep. 2665, 1988 Va. App. LEXIS 46 (1988).

Substantial evidence regarding deficiencies and circumstances that failed to comport with modern health care needs and expectations supported the Virginia State Health Commissioner’s decision that on-site replacement of a hospital’s physical plants was not feasible. Furthermore, the Commissioner’s decision, pursuant to subsection A of § 32.1-102.3 , was consistent with the Virginia State Medical Facilities Plan as the Commissioner was not required to mandate an unreasonable and infeasible expenditure of time, money, and effort to accomplish the replacement of existing facilities on site. Loudoun Hosp. Ctr. v. Stroube, 50 Va. App. 478, 650 S.E.2d 879, 2007 Va. App. LEXIS 371 (2007).

On appeal from the issuance of a certificate of public need to a healthcare provider, a hospital was an aggrieved party under § 2.2-4026 because its status as a provider of the same, competing services at a facility six miles from the healthcare provider’s facility placed a burden on it different from that suffered by the public generally. Furthermore, the hospital had an immediate, pecuniary, and substantial interest in the case decision by virtue of the fact that § 32.1-102.3 required the State Health Commissioner to consider the effect the issuance of the certificate would have had on the utilization and efficiency of the hospital’s nearby, competing services that were the same as those to be provided by the healthcare provider under the certificate. Reston Hosp. Ctr., LLC v. Remley, 59 Va. App. 96, 717 S.E.2d 417, 2011 Va. App. LEXIS 359 (2011).

When denying a hospital’s application for a certificate of public need to provide open heart surgery services, the State Health Commissioner did not fail to consider the most recent State Medical Facilities Plan because (1) the Commissioner stated the Commissioner considered “all 21 matters” in former subsection B of § 32.1-102.3 , which included the most recent State Medical Facilities Plan; (2) the Commissioner reviewed a recommended decision that considered the most recent State Medical Facilities Plan; and (3) former subsection B of § 32.1-102.3 did not require the Commissioner to make specific findings on each factor considered, so the Commissioner’s failure to specifically reference the State Medical Facilities Plan was not fatal. Petersburg Hosp. Co., LLC v. Remley, 2012 Va. App. LEXIS 55 (Va. Ct. App. Feb. 28, 2012).

Evidence of harm in the administrative record was not necessary to establish a medical center’s standing to appeal the issuance of a certificate of public need to a competitor because the administrative proceedings focused on evidence of public need, rather than of harm. Pleading harm that consisted of a decrease in utilization and efficiency of its services and an increased financial burden was sufficient to establish the medical center’s aggrieved party status. West Creek Med. Ctr., Inc. v. Romero, 2014 Va. App. LEXIS 29 (Va. Ct. App. Feb. 4, 2014).

Because nothing in the administrative record persuaded the appellate court that a reasonable mind would necessarily come to a different conclusion, the appellate court concluded that the State Health Commissioner lawfully issued a certificate of public need pursuant to this section authorizing the applicant to relocate a medical radiation therapy service and that the circuit court correctly rejected a competitor’s challenge to the Commissioner’s decision. Reston Hosp. Ctr., LLC v. Remley, 63 Va. App. 755, 763 S.E.2d 238, 2014 Va. App. LEXIS 331 (2014).

Consideration of statutory criteria. —

Virginia Division of Certificate of Public Need’s staff report applied the statutory utilization and occupancy criteria because the Division considered the relationship of a nursing home project to the existing health care system of the area to be served, including the utilization and efficiency, including cost or charges of other providers of nursing home care, as well as future needs. NHC Healthcare/Bristol, LLC v. Levine, 2017 Va. App. LEXIS 6 (Va. Ct. App. Jan. 10, 2017).

Certificate of public need denied. —

Facility was not entitled to a subsection A certificate of public need for an agreement it executed with a hospital ceasing operations to accept the hospital’s nursing home beds. It could obtain the certificate of public need to add nursing home beds in its planning district only if the Commissioner pursuant to § 32.1-102.3:2 issued a request for applications, which the Commissioner did not do, or if the “12-month rule” exception for relocated equipment set forth in § 32.1-102.1 applied, and that was not the case because the equipment expressly exempted did not include nursing home beds. Va. Dep't of Health v. NRV Real Estate, LLC, 278 Va. 181 , 677 S.E.2d 276, 2009 Va. LEXIS 74 (2009).

Hospital’s requested certificate of public need was inconsistent with the State Medical Facility Plan because (1) existing services met regional need, (2) the hospital sought to provide less than minimum services, (3) the hospital’s proposal was inconsistent with maximum regional services, and (4) the proposal would adversely affect an existing provider. Lewis-Gale Med. Ctr., LLC v. Romero, 2014 Va. App. LEXIS 158 (Va. Ct. App. Apr. 29, 2014).

Commissioner’s adoption of seventy-five percent minimum occupancy standard under State Health Plan not arbitrary and capricious, since the national guidelines are, at a minimum, suggestive, and the commissioner may properly consider the guidelines when exercising discretion given to him by the General Assembly. Johnston-Willis, Ltd. v. Kenley, 6 Va. App. 231, 369 S.E.2d 1, 4 Va. Law Rep. 2665, 1988 Va. App. LEXIS 46 (1988).

CIRCUIT COURT OPINIONS

Commissioner must state reasons for denial. —

When, in considering a request for a certificate of need to build a hospital, the health planning agency, while formally voting to recommend denial of the request, failed to formally state its reasons for the recommendation, the State Health Commissioner could not rely on reasons stated in letters from the agency’s director or its chairman because the required consensus was not indicated and the matter had to be remanded to the agency for such reasons so that the Commissioner could consider those reasons when reviewing the request under § 32.1-102.3 .N. Va. Cmty. Hosp. v. Stroube, 63 Va. Cir. 196, 2003 Va. Cir. LEXIS 265 (Loudoun County Oct. 3, 2003), dismissed, 68 Va. Cir. 271, 2005 Va. Cir. LEXIS 229 (Loudoun County July 19, 2005).

Consideration of existing hospitals. —

When, in considering a request for a certificate of need to build a hospital, hospitals within 20 miles of the proposed hospital were considered, this did not amount to the adoption of a new 20-mile standard for considering the new hospital’s impact on existing hospitals and these hospitals were relevant under § 32.1-102.3 .N. Va. Cmty. Hosp. v. Stroube, 63 Va. Cir. 196, 2003 Va. Cir. LEXIS 265 (Loudoun County Oct. 3, 2003), dismissed, 68 Va. Cir. 271, 2005 Va. Cir. LEXIS 229 (Loudoun County July 19, 2005).

When, in considering a request for a certificate of need to build a hospital, the project’s cost was reviewed under a cost per bed standard as well as the traditional cost per square foot standard, this did not create a new regulatory scheme and this analysis was relevant under § 32.1-102.3 .N. Va. Cmty. Hosp. v. Stroube, 63 Va. Cir. 196, 2003 Va. Cir. LEXIS 265 (Loudoun County Oct. 3, 2003), dismissed, 68 Va. Cir. 271, 2005 Va. Cir. LEXIS 229 (Loudoun County July 19, 2005).

Issuance of certificate of need does not deprive county of ability to make land use decisions. —

That the Virginia State Heath Commissioner issued a hospital owner a certificate of public need to build an acute care hospital did not prevent a county board of supervisors from denying the owner’s application to build it in a specific location. The board could exercise its authority to make land use decisions without undermining the Commissioner’s authority to evaluate health needs and to authorize the construction of health care facilities where needed. N. Va. Cmty. Hosp., L.L.C. v. Loudoun County Bd. of Supervisors, 70 Va. Cir. 283, 2006 Va. Cir. LEXIS 168 (Loudoun County Mar. 9, 2006).

Certificate of public need approved. —

Virginia State Health Commissioner’s approval of a hospital’s certificate of public need was appropriate because the letter of intent identified the project with sufficient particularity, the decision reflected a consideration of all the factors relevant to the issuance of the certificate of public need, the findings were thorough and complete, and the Commissioner did not err by failing to reduce the costs of the project when only part of the project was approved. Reston Hosp. Ctr., LLC v. Remley, 88 Va. Cir. 376, 2014 Va. Cir. LEXIS 74 (Fairfax County June 20, 2014).

OPINIONS OF THE ATTORNEY GENERAL

“Medical care facility.” —

A freestanding emergency facility that is owned and operated by a licensed hospital is not required to be separately licensed unless it falls within one of the classifications of “hospital” set forth in regulations promulgated by the state Board of Health. Additionally, the establishment of a freestanding emergency facility is not subject to the issuance of a certificate of public need unless it qualifies as a “medical care facility” under § 32.1-102.1 . See opinion of Attorney General to The Honorable George L. Barker, Member, Senate of Virginia, 18-045, 2019 Va. AG LEXIS 6 (3/8/19).

§ 32.1-102.3:1. Application for certificate not required of certain nursing facilities or nursing homes.

An application for a certificate that there exists a public need for a proposed project shall not be required for nursing facilities or nursing homes affiliated with facilities which, on January 1, 1982, and thereafter, meet all of the following criteria:

  1. A facility which is operated as a nonprofit institution.
  2. A facility which is licensed jointly by the Department as a nursing facility or nursing home and by the Department of Social Services as an assisted living facility.
  3. A facility which observes the following restrictions on admissions:
    1. Admissions are only allowed pursuant to the terms of a “life care contract” guaranteeing that the full complement of services offered by the facility is available to the resident as and when needed;
    2. Admissions to the assisted living facility unit are restricted to individuals defined as ambulatory by the Department of Social Services;
    3. Admissions to the nursing facility or nursing home unit are restricted to those individuals who are residents of the assisted living facility unit.

History. 1982, c. 659; 1993, cc. 957, 993; 2008, c. 857; 2009, c. 175; 2011, c. 155.

The number of this section was assigned by the Virginia Code Commission, the number in the 1982 act having been 32.1-96.1.

Editor’s note.

Acts 1993, cc. 957 and 993, cl. 4 provides “That the provisions of this act shall be implemented to the extent funds are appropriated therefor.” See Acts 1993, c. 994, item 381 B, which relates to the extent funds have been appropriated for Acts 1993, cc. 957 and 993.

The 2009 amendments.

The 2009 amendment by c. 175, effective March 25, 2009, deleted “Health” following “Department of” in subdivision 2.

The 2011 amendments.

The 2011 amendment by c. 155 deleted subdivision 4, which read: “A facility in which no resident receives federal or state public assistance funds during an open admissions period. However, a facility in Planning District 8 may apply for certification under the Medical Assistance Program in accordance with § 32.1-102.3:1.1 when an open admissions period has expired or when a facility agrees to voluntarily discontinue its open admissions period”; and deleted the last paragraph, which read: “For the purposes of this section, ‘open admissions period’ means a time during which a facility may take admissions directly into its nursing home beds without the signing of a standard contract.”

§ 32.1-102.3:1.1. Continuing care retirement communities accessing medical assistance.

  1. A nursing facility in Planning District 8 in a continuing care retirement community registered with the State Corporation Commission pursuant to Chapter 49 (§ 38.2-4900 et seq.) of Title 38.2, which is not already certified for participation in the Medical Assistance Program, may be certified for participation in the Medical Assistance Program, without regard to any condition of a certificate of public need, so long as:
    1. The nursing facility is no longer operating under an open admissions period;
    2. Any residents who qualify and receive medical assistance under the state program must have been residents of the continuing care retirement community for at least three years;
    3. Not more than 25 percent of the nursing home beds of the facility, or 15 nursing home beds, whichever is fewer, may be occupied by individuals receiving benefits at any given time; and
    4. Any resident who qualifies for and receives medical assistance under the state program in a continuing care retirement community nursing facility must have first exhausted any refundable entrance fee paid on the resident’s behalf, as defined in § 38.2-4900, as a result of expenditures for that resident’s care in the continuing care retirement community.
  2. Nothing in this section shall alter the conditions of a continuing care retirement community’s participation in the Medical Assistance Program if that continuing care retirement community was certified for participation prior to July 1, 2010.For the purposes of this section, “open admissions period” means a time during which a facility may take admissions directly into its nursing home beds without the signing of a standard contract.

History. 2008, c. 857; 2011, c. 155; 2019, cc. 299, 384.

The 2011 amendments.

The 2011 amendment by c. 155, in the introductory paragraph in subsection A, inserted “without regard to any condition of a certificate of public need”; deleted “as defined in § 32.1-102.3:1 ” from the end of subdivision A 1; deleted subsection B, which read: “Nothing in the conditions of any certificate of public need shall limit the ability of a continuing care retirement community to participate in the Medical Assistance Program”; redesignated former subsection C as subsection B; and added the last paragraph.

The 2019 amendment.

The 2019 amendments by cc. 299 and 384 are nearly identical, and in subsection A, deleted “On or after July 1, 2010” from the beginning; rewrote subdivision A 3, which read: “Not more than 10 percent of the facility may be receiving benefits at any given time; and.”

§ 32.1-102.3:2. Certificates of public need; applications to be filed in response to Requests for Applications (RFAs).

  1. Except for applications for continuing care retirement community nursing home bed projects filed by continuing care providers registered with the State Corporation Commission pursuant to Chapter 49 (§ 38.2-4900 et seq.) of Title 38.2 which comply with the requirements established in this section, the Commissioner shall approve, authorize or accept applications for the issuance of any certificate of public need pursuant to this article only in response to Requests for Applications (RFAs) for any project which would result in an increase in the number of beds in a planning district in which nursing facility or extended care services are provided, except as provided in § 32.1-102.3:7 .
  2. The Board shall adopt regulations establishing standards for the approval and issuance of Requests for Applications by the Commissioner. The standards shall include, but shall not be limited to, a requirement that determinations of need take into account any limitations on access to existing nursing home beds in the planning districts. The RFAs, which shall be published at least annually, shall be jointly developed by the Department and the Department of Medical Assistance Services. RFAs shall be based on analyses of the need, or lack thereof, for increases in the nursing home bed supply in each of the Commonwealth’s planning districts in accordance with standards adopted by the Board by regulation. The Commissioner shall only accept for review applications in response to such RFAs which conform with the geographic and bed need determinations of the specific RFA.
  3. Sixty days prior to the Commissioner’s approval and issuance of any RFA, the Board shall publish the proposed RFA in the Virginia Register for public comment together with an explanation of (i) the regulatory basis for the planning district bed needs set forth in the RFA and (ii) the rationale for the RFA’s planning district designations. Any person objecting to the contents of the proposed RFA may notify, within 14 days of the publication, the Board and the Commissioner of his objection and the objection’s regulatory basis. The Commissioner shall prepare, and deliver by registered mail, a written response to each such objection within two weeks of the date of receiving the objection. The objector may file a rebuttal to the Commissioner’s response in writing within five days of receiving the Commissioner’s response. If objections are received, the Board may, after considering the provisions of the RFA, any objections, the Commissioner’s responses, and if filed, any written rebuttals of the Commissioner’s responses, hold a public hearing to receive comments on the specific RFA. Prior to making a decision on the RFA, the Commissioner shall consider any recommendations made by the Board.
  4. Except for a continuing care retirement community applying for a certificate of public need pursuant to provisions of subsections A, B, and C, applications for continuing care retirement community nursing home bed projects shall be accepted by the Commissioner only if the following criteria are met: (i) the facility is registered with the State Corporation Commission as a continuing care provider pursuant to Chapter 49 (§ 38.2-4900 et seq.) of Title 38.2, (ii) the number of new nursing home beds requested in the initial application does not exceed the lesser of 20 percent of the continuing care retirement community’s total number of beds that are not nursing home beds or 60 beds, (iii) the number of new nursing home beds requested in any subsequent application does not cause the continuing care retirement community’s total number of nursing home beds to exceed 20 percent of its total number of beds that are not nursing home beds, and (iv) the continuing care retirement community has established a qualified resident assistance policy.
  5. The Commissioner may approve an initial certificate of public need for nursing home beds in a continuing care retirement community not to exceed the lesser of 60 beds or 20 percent of the total number of beds that are not nursing home beds which authorizes an initial one-time, three-year open admission period during which the continuing care retirement community may accept direct admissions into its nursing home beds. The Commissioner may approve a certificate of public need for nursing home beds in a continuing care retirement community in addition to those nursing home beds requested for the initial one-time, three-year open admission period if (i) the number of new nursing home beds requested in any subsequent application does not cause the continuing care retirement community’s total number of nursing home beds to exceed 20 percent of its total number of beds that are not nursing beds, (ii) the number of licensed nursing home beds within the continuing care retirement community does not and will not exceed 20 percent of the number of occupied beds that are not nursing beds, and (iii) no open-admission period is allowed for these nursing home beds. Upon the expiration of any initial one-time, three-year open admission period, a continuing care retirement community which has obtained a certificate of public need for a nursing facility project pursuant to subsection D may admit into its nursing home beds (a) a standard contract holder who has been a bona fide resident of the non-nursing home portion of the continuing care retirement community for at least 30 days, (b) a person who is a standard contract holder who has lived in the non-nursing home portion of the continuing care retirement community for less than 30 days but who requires nursing home care due to change in health status since admission to the continuing care retirement community, (c) a person who is a family member of a standard contract holder residing in a non-nursing home portion of the continuing care retirement community, (d) a person who is an employee or a member of the board of trustees or board of directors of the continuing care retirement community, (e) a person who is a family member of an employee or a member of the board of trustees or board of directors of the continuing care retirement community, or (f) a person who is an accredited practitioner of the religious organization or denomination with which the continuing care retirement community is affiliated.
  6. Any continuing care retirement community applicant for a certificate of public need to increase the number of nursing home beds shall authorize the State Corporation Commission to disclose such information to the Commissioner as may be in the State Corporation Commission’s possession concerning such continuing care retirement community in order to allow the Commissioner to enforce the provisions of this section. The State Corporation Commission shall provide the Commissioner with the requested information when so authorized.
  7. For the purposes of this section:“Family member” means spouse, mother, father, son, daughter, brother, sister, aunt, uncle, or cousin by blood, marriage, or adoption.“One-time, three-year open admission period” means the three years after the initial licensure of nursing home beds during which the continuing care retirement community may take admissions directly into its nursing home beds without the signing of a standard contract. The facility or a related facility on the same campus shall not be granted any open admissions period for any subsequent application or authorization for nursing home beds.“Qualified resident assistance policy” means a procedure, consistently followed by a facility, pursuant to which the facility endeavors to avoid requiring a resident to leave the facility because of inability to pay regular charges and which complies with the requirements of the Internal Revenue Service for maintenance of status as a tax exempt charitable organization under § 501(c)(3) of the Internal Revenue Code. This policy shall be (i) generally made known to residents through the resident contract and (ii) supported by reasonable and consistent efforts to promote the availability of funds, either through a special fund, separate foundation or access to other available funds, to assist residents who are unable to pay regular charges in whole or in part.This policy may (a) take into account the sound financial management of the facility, including existing reserves, and the reasonable requirements of lenders and (b) include requirements that residents seeking such assistance provide all requested financial information and abide by reasonable conditions, including seeking to qualify for other assistance and restrictions on the transfer of assets to third parties.A qualified resident assistance policy shall not constitute the business of insurance as defined in Chapter 1 (§ 38.2-100 et seq.) of Title 38.2.“Standard contract” means a contract requiring the same entrance fee, terms, and conditions as contracts executed with residents of the non-nursing home portion of the facility, if the entrance fee is no less than the amount defined in § 38.2-4900.
  8. This section shall not be construed to prohibit or prevent a continuing care retirement community from discharging a resident (i) for breach of nonfinancial contract provisions, (ii) if medically appropriate care can no longer be provided to the resident, or (iii) if the resident is a danger to himself or others while in the facility.
  9. The provisions of subsections D, E, and H shall not affect any certificate of public need issued prior to July 1, 1998; however, any certificate of public need application for additional nursing home beds shall be subject to the provisions of this act.

History. 1989, c. 517; 1990, cc. 191, 478, 753, 845; 1991, c. 561; 1992, cc. 612, 682; 1993, cc. 347, 474, 540, 564, 704, 762, 957, 993; 1994, cc. 57, 680, 711, 726, 797; 1995, cc. 505, 632, 641, 695, 753; 1996, cc. 531, 849, 901; 1998, c. 794; 2009, c. 175; 2012, c. 492; 2013, cc. 433, 515.

Editor’s note.

Acts 1993, cc. 957 and 993, cl. 4 provides: “That the provisions of this act shall be implemented to the extent funds are appropriated therefor. ” See Acts 1993, c. 994, item 381 B, which relates to the extent funds have been appropriated for Acts 1993, cc. 957 and 993.

Acts 1996, c. 531, cl. 3 provides: “[t]hat, except for this enactment clause, this act shall expire on July 1, 1996, unless the moratorium provided in § 32.1-102.3:2 remains in effect on July 1, 1996; the Commissioner, however, shall continue to review and may approve any applications accepted for review prior to July 1, 1996, pursuant to the exceptions included in § 32.1-102.3:2 , as it was in effect on the date this act becomes effective. The Commissioner shall take final action on all such applications by December 31, 1996.” The moratorium did not remain in effect on July 1, 1996, having been eliminated by Acts 1996, c. 901. Therefore, the amendment by c. 531 expired on July 1, 1996.

Acts 1996, c. 849, cl. 2 provides: “That, except for this enactment clause, this act shall expire on July 2, 1996, unless the moratorium provided in § 32.1-102.3:2 remains in effect. The Commissioner, however, shall continue to review and may approve any applications accepted for review through July 1, 1996, pursuant to the exceptions included in § 32.1-102.3:2 , as it was in effect on the date this act becomes effective. The Commissioner shall take final action on all such applications by December 31, 1996.” The moratorium did not remain in effect, having been eliminated by Acts 1996, c. 901. Therefore, the amendment by c. 849 expired on July 2, 1996.

Acts 2008, c. 802, cl. 1 provides: “§ 1. That, notwithstanding the provisions of § 32.1-102.3:2 of the Code of Virginia, any regulations of the Board of Health, or provisions of any current Request For Applications, the State Health Commissioner may issue a Request For Applications for 120 new nursing home or nursing facility beds in Planning District 3 when the Division of Certificate of Public Need of the Department of Health has determined, in its ‘Nursing Home Facility Beds and Utilization — Facility Fiscal Years Ending in 2006’ analysis, that at least one nursing facility in Planning District 3 is licensed for 120 beds but operated no Medicaid-certified beds in 2006.

“The Commissioner may accept applications for such 120 nursing home or nursing facility beds and may issue a certificate of public need for an increase of such 120 new beds in which nursing facility or extended care services are to be provided to establish a new facility in Planning District 3. The Commissioner shall consider any certificate of public need for the 120 beds to an applicant that proposes to establish a new nursing facility located within three miles of the boundary of the county seat or within the county seat of the county adjacent to the city or county in which is sited any facility in Planning District 3 determined by the Division of Certificate of Public Need, in its ‘Nursing Home Facility Beds and Utilization — Facility Fiscal Years Ending in 2006’ analysis, to be licensed for 120 beds but that operated no Medicaid-certified beds in 2006.”

Acts 2009, c. 394 provides: Ҥ 1. Amendment of certain certificate of public need authorized.

“Notwithstanding the provisions of subdivision 10 of § 32.1-102.3:2 of the Code of Virginia as in effect on June 30, 1996, or the provisions of Chapter 868 of the Acts of Assembly of 2000, Chapter 486 of the Acts of Assembly of 2003, and Chapter 776 of the Acts of Assembly of 2006, the Commissioner of Health may accept and approve a request, pursuant to this act, to amend the conditions of a certificate of need issued for an increase in beds in which nursing facility or extended care services are provided to allow such facility to continue to admit persons, other than residents of the cooperative units, to its nursing facility beds through June 30, 2012, when such facility (i) is operated by an association described in § 55-458 of the Code of Virginia; (ii) was created in connection with a real estate cooperative; (iii) offers its residents a level of nursing services consistent with the definition of continuing care in Chapter 49 (§ 38.2-4900 et seq.) of Title 38.2 of the Code of Virginia; and (iv) was issued a certificate of need prior to October 3, 1995.”

At the direction of the Virginia Code Commission, “Department of Behavioral Health and Developmental Services” was substituted for “Department of Mental Health, Mental Retardation, and Substance Abuse Services” to conform to the name change by Acts 2009, cc. 813 and 840.

Acts 2010, c. 623, cl. 1 provides: “Notwithstanding (i) the provisions of §§ 32.1-102.3 and 32.1-102.3:2 of the Code of Virginia, (ii) any regulations of the Board of Health establishing standards for the approval and issuance of Requests for Applications, and (iii) any current Requests for Applications issued pursuant to § 32.1-102.3:2 of the Code of Virginia, the Commissioner of Health shall accept and review applications in any certificate of public need Batch Group G review cycle and may issue certificates of public need for the establishment of a psychiatric service as the result of a relocation of psychiatric beds from one hospital in Planning District 5 to another hospital in Planning District 5. No psychiatric beds relocated from one hospital to another hospital in Planning District 5 to establish a new psychiatric service shall be converted to any use other than inpatient psychiatric care.”

Acts 2010, c. 688 provides: Ҥ 1. Amendment of certain certificate of public need authorized.

“Notwithstanding the provisions of subsection E of § 32.1-102.3:2 of the Code of Virginia, the Commissioner of Health may accept and approve a request to amend the conditions of a certificate of public need issued to a continuing care provider registered with the State Corporation Commission pursuant to Chapter 49 (§ 38.2-4900 et seq.) of Title 38.2 of the Code of Virginia in which nursing facility or extended care services are provided to allow such continuing care provider to continue to admit community patients, other than contract holders, to its nursing facility beds through December 31, 2013, if the following conditions are met: (i) the facility is located within the City of Norfolk and operated as a not-for-profit and (ii) the facility’s contract holder occupancy rate is less than 85 percent at the time of such application.”

Acts 2011, cc. 19 and 20, effective March 7, 2011, provides: “§ 1. That, notwithstanding the provisions of § 32.1-102.3:2 of the Code of Virginia, any regulations of the Board of Health, or provisions of any current Request for Applications, the Commissioner of Health shall accept applications for, including applications filed prior to the passage of this act, and may issue a certificate of public need authorizing an increase of no more than 50 nursing home beds for the establishment of a new 90-bed nursing home in Planning District 11, provided that (i) any such application to establish a new 90-bed nursing home in Planning District 11 shall also propose the replacement and relocation of all nursing home beds of an existing nursing home located in Planning District 11, licensed as of December 31, 2010, of no more than 45 licensed beds, all of which shall be relocated to the new 90-bed nursing home; (ii) Virginia Health Information shall have reported that the fiscal year 2009 occupancy rate of the nursing home to be replaced was at least 85 percent; and (iii) such new 90-bed nursing home shall be located in the city or county that is adjacent to the city or county of the nursing home that shall be replaced and relocated.”

Acts 2011, cc. 130 and 174 provide: “§ 1. Notwithstanding the provisions of subsection E of § 32.1-102.3:2 of the Code of Virginia, the Commissioner of Health shall accept and may approve a request to amend the conditions of a certificate of public need issued to a continuing care provider registered with the State Corporation Commission pursuant to Chapter 49 (§ 38.2-4900 et seq.) of Title 38.2 of the Code of Virginia in which nursing facility or extended care services are provided to allow such continuing care provider to continue to admit community patients, other than contract holders, to its nursing facility beds through December 31, 2014, if the following conditions are met: (i) the facility is located within the County of Botetourt and operated as a not-for-profit and (ii) the facility’s contract holder occupancy rate is less than 85 percent at the time of such application.”

Acts 2011, c. 167 provides: Ҥ 1. Amendment of certain certificate of public need authorized.

“Notwithstanding the provisions of subdivision E of § 32.1-102.3:2 of the Code of Virginia, the Commissioner of Health shall accept and may approve a request to amend the conditions of a certificate of public need issued to a continuing care provider registered with the State Corporation Commission pursuant to Chapter 49 (§ 38.2-4900 et seq.) of Title 38.2 of the Code of Virginia in which nursing facility or extended care services are provided to allow such continuing care provider to continue to admit community patients, other than contract holders, to its nursing facility beds through December 31, 2014, if the following conditions are met: (i) the facility is located within the City of Suffolk and operated as a not-for-profit and (ii) the facility’s contract holder occupancy rate is less than 85 percent at the time of such application.”

Acts 2011, c. 386 provides: Ҥ 1. Amendment of certain certificate of public need authorized.

“Notwithstanding the provisions of subdivision 10 of § 32.1-102.3:2 of the Code of Virginia as in effect on June 30, 1996, or the provisions of Chapter 868 of the Acts of Assembly of 2000, Chapter 486 of the Acts of Assembly of 2003, Chapter 776 of the Acts of Assembly of 2006, and Chapter 394 of the Acts of Assembly of 2009, the Commissioner of Health may accept and approve a request, pursuant to this act, to amend the conditions of a certificate of need issued for an increase in beds in which nursing facility or extended care services are provided to allow such facility to continue to admit persons, other than residents of the cooperative units, to its nursing facility beds when such facility (i) is operated by an association described in § 55-458 of the Code of Virginia; (ii) was created in connection with a real estate cooperative; (iii) offers its residents a level of nursing services consistent with the definition of continuing care in Chapter 49 (§ 38.2-4900 et seq.) of Title 38.2 of the Code of Virginia; and (iv) was issued a certificate of need prior to October 3, 1995.”

Acts 2011, c. 395, cl. 1 provides: “§ 1. Notwithstanding (i) the provisions of §§ 32.1-102.3 and 32.1-102.3:2 of the Code of Virginia, (ii) any regulations of the Board of Health establishing standards for the approval and issuance of Requests for Applications, and (iii) any current Requests for Applications issued pursuant to § 32.1-102.3:2 of the Code of Virginia, the Commissioner of Health shall accept and review applications and may issue certificates of public need for the addition of up to 10 Medicaid-eligible nursing home beds for a certified nursing home licensed for less than 60 beds, which is operated not for profit, is located in Planning District 15 but accepts patients from areas of the Commonwealth outside of the planning district, and provides care for patients regardless of ability to pay.”

Acts 2011, c. 395, cl. 2 provides: “That the provisions of this act shall not become effective unless an appropriation of general funds effectuating the purposes of this act is included in the general appropriation act passed by the 2011 Regular Session of the General Assembly and signed by the Governor and becomes law.” Funding was provided by the 2011 Appropriation Act.

Acts 2012, c. 301, cl. 2 provides: “That the Department of Health, in consultation with stakeholders including but not limited to representatives of the Virginia Health Care Association, the Virginia Hospital and Healthcare Association, and the Virginia Association of Nonprofit Homes for the Aging shall (i) review the provisions of § 32.1-102.3:5 and develop recommendations related to the Commissioner’s acceptance of applications for relocation of nursing home beds without prior issuance of a Request for Applications, and (ii) review provisions of § 32.1-102.3:2 related to continuing care retirement community open admissions periods and develop criteria and procedures for extensions of open admissions periods that include provisions for notice and written comment.”

Acts 2012, c. 301, cl. 3 provides: “That the provisions of this act shall not prevent any entity that has relocated beds pursuant to § 32.1-102.3:5 of the Code of Virginia and thereafter given the Commissioner of Health notice of its intention to close the facility on or before January 15, 2012, from relocating the remaining beds to another facility, either existing or new, under common ownership and control nor shall the provisions of this act prevent the Commissioner of Health from accepting an application and issuing a certificate of public need for such relocation.”

Acts 2013, c. 515, cl. 3 provides: “That the provisions of this act related to an open admission period for nursing facilities of continuing care retirement communities shall only apply to facilities for which an application for an initial three year open admission period was accepted by the Commissioner of Health on or after July 1, 2013.”

Acts 2013, c. 515, cl. 4 provides: “That the Commissioner shall accept and may approve applications for a three year open admission period for a continuing care retirement community approved as part of a certificate of public need issued pursuant to subsection E of § 32.1-102.3:2 prior to July 1, 2013 if the continuing care retirement community for which the open admissions period is sought (i) operates as a not-for-profit facility and (ii) can demonstrate that the facility’s average contract holder occupancy rate over the six month period immediately preceding submission of the application, as reported to the nonprofit organization with which the Commissioner has entered into a contract pursuant to § 32.1-276.4 , was less than 85 percent.”

The 2009 amendments.

The 2009 amendment by c. 175, effective March 25, 2009, deleted “of Health” following “Commissioner,” “Board” and “Department” throughout the section; in subsection A, deleted “only” preceding “approve,” inserted “only in response to Requests for Applications (RFAs)” and the clause (i) designation, substituted “extended care, psychiatric, or substance abuse treatment services are provided” for “or, extended care services are provided when such applications are filed in response to Requests For Applications (RFAs)” and added clause (ii) and made a related change; rewrote subsection B; and substituted “RFA” for “Request For Applications” in the first and last sentences of subsection C.

The 2012 amendments.

The 2012 amendment by c. 492, in subsection A, deleted the clause (i) designator and substituted “or extended care services are provided” for “extended care, psychiatric, or substance abuse treatment services are provided, or (ii) the establishment of new psychiatric or substance abuse treatment services”; in subsection B, deleted “psychiatric, or substance abuse treatment beds, or psychiatric or substance abuse services” following “nursing home beds” in the second sentence, substituted “the Department of Medical Assistance Services” for “(i) in the case of nursing home beds, the Department of Medical Assistance Services, or (ii) in the case of psychiatric or substance abuse treatment beds or services, the Department of Behavioral Health and Developmental Services” in the third sentence, substituted “nursing home bed supply” for “nursing home psychiatric, or substance abuse treatment bed supply or psychiatric or substance abuse treatment services” in the fourth sentence, and deleted the last sentence, which formerly read: “Any conversion of psychiatric or substance abuse treatment beds approved pursuant to this section to nonpsychiatric or non-substance abuse treatment inpatient beds shall constitute a project and shall be reviewable pursuant to this article”; deleted “above” following “subsections A, B, and C” in subsection D; redesignated former clauses (i) through (iii) designators as clause (a) through (c) designators in the last sentence of subsection E; redesignated former clauses (i) and (ii) designators as clauses (a) and (b) designators in the next-to-last paragraph of the definition of “Qualified resident assistance policy” in subsection G; and deleted “of this section” following “subsections D, E and H” in subsection I.

The 2013 amendments.

The 2013 amendment by c. 433, in subsection E, added clause (d) through (f) and made minor stylistic changes.

The 2013 amendment by c. 515 added “except as provided in § 32.1-102.3:7 ” at the end of subsection A. For applicability, see Editor’s notes.

CASE NOTES

Request for applications. —

Facility was not entitled to a subsection A of § 32.1-102.3 certificate of public need for an agreement it executed with a hospital ceasing operations to accept the hospital’s nursing home beds. It could obtain the certificate of public need to add nursing home beds in its planning district only if the Commissioner pursuant to subsection A of § 32.1-102.3:2 issued a request for applications, which the Commissioner did not do, or ifthe “12-month rule” exception for relocated equipment set forth in § 32.1-102.1 applied, and that was not the case because the equipment expressly exempted did not include nursing home beds. Va. Dep't of Health v. NRV Real Estate, LLC, 278 Va. 181 , 677 S.E.2d 276, 2009 Va. LEXIS 74 (2009).

§ 32.1-102.3:2.1. Repealed by Acts 1998, c. 794.

§ 32.1-102.3:2.2. Expired.

Editor’s note.

This section was enacted by Acts 1997, c. 568, effective March 20, 1997, and expired July 1, 1998, pursuant to the terms of Acts 1997, c. 568, cl. 3.

§§ 32.1-102.3:3, §§ 32.1-102.3:3, 32.1-102.3 4. Repealed by Acts 1992, c. 612.

§§ 32.1-102.3:5, §§ 32.1-102.3:5, 32.1-102.3 6.

Repealed by Acts 2012, c. 301, cl. 1.

Editor’s note.

Former § 32.1-102.3:5 , pertaining to relocation of certain nursing home beds under limited circumstances, derived from Acts 2007, c. 398; 2009, c. 175; 2011, c. 181.

Former § 32.1-102.3:6, pertaining to certificates for certain nursing home beds, derived from Acts 2010, cc. 54, 408.

§ 32.1-102.3:7. Application for transfer of nursing facility beds.

  1. Notwithstanding the provisions of § 32.1-102.3:2 , the Commissioner shall accept and may approve applications for the transfer of nursing facility beds from one planning district to another planning district when no Request for Applications has been issued in cases in which the applicant can demonstrate (i) there is a shortage of nursing facility beds in the planning district to which beds are proposed to be transferred, (ii) the number of nursing facility beds in the planning district from which beds are proposed to be moved exceeds the need for such beds, (iii) the proposed transfer of nursing facility beds would not result in creation of a need for additional beds in the planning district from which the beds are proposed to be transferred, and (iv) the nursing facility beds proposed to be transferred will be made available to individuals in need of nursing facility services in the planning district to which they are proposed to be transferred without regard to the source of payment for such services.
  2. Applications received pursuant to this section shall be subject to the provisions of this article governing review of applications for certificate of public need.

History. 2013, c. 515.

Editor’s note.

Acts 2013, c. 515, cl. 3 provides: “That the provisions of this act related to an open admission period for nursing facilities of continuing care retirement communities shall only apply to facilities for which an application for an initial three year open admission period was accepted by the Commissioner of Health on or after July 1, 2013.”

§ 32.1-102.3:8. Application for an open admission period for a continuing care retirement community.

  1. Notwithstanding the provisions of § 32.1-102.3:2 , the Commissioner shall accept and may approve applications for a two-year or three-year open admission period for a continuing care retirement community nursing facility approved as part of an initial certificate of public need pursuant to subsection E of § 32.1-102.3:2 .
  2. Any person seeking an open admission period pursuant to subsection A shall provide written notice of the proposed open admission period to all nursing facilities located within the planning district. The Commissioner shall accept public comment on an application for an open admission period pursuant to subsection A for a period of 14 days following submission of the application.

History. 2013, c. 515.

Editor’s note.

Acts 2013, c. 515, c. 2 provides: “That the Board of Health shall promulgate regulations to implement the provisions of this act, which shall include criteria for an open admission period for a continuing care retirement community pursuant to § 32.1-102.3:8 .”

Acts 2013, c. 515, cl. 3 provides: “That the provisions of this act related to an open admission period for nursing facilities of continuing care retirement communities shall only apply to facilities for which an application for an initial three year open admission period was accepted by the Commissioner of Health on or after July 1, 2013.”

§ 32.1-102.4. Conditions of certificates; monitoring; revocation of certificates; civil penalties.

  1. The Commissioner may, in accordance with regulations of the Board, condition issuance of a certificate on compliance with a schedule for the completion of the proposed project and a maximum capital expenditure amount for the proposed project. The approved schedule and maximum capital expenditure for a proposed project shall be issued together with the certificate. The approved schedule may not be extended and the maximum capital expenditure may not be exceeded without the approval of the Commissioner in accordance with the regulations of the Board. The Commissioner shall not approve an extension for a schedule for completion of any project or the exceeding of the maximum capital expenditure of any project unless such extension or excess complies with the limitations provided in the regulations promulgated by the Board pursuant to § 32.1-102.2 .The Commissioner shall monitor each project to determine its progress and compliance with the approved schedule and with the maximum capital expenditure, and may revoke the certificate for (i) lack of substantial and continuing progress toward completion of the project in accordance with the schedule or (ii) expenditures in excess of the approved maximum capital expenditure for the project.Any person willfully violating conditions imposed pursuant to this subsection shall be subject to a civil penalty of up to $100 per violation per day until the date of completion of the project which shall be collected by the Commissioner and paid into the Literary Fund.For the purposes of this subsection, “completion” means conclusion of construction activities necessary for the substantial performance of the contract.
  2. The Commissioner shall, pursuant to the regulations of the Board, condition the approval of a certificate upon the agreement of the applicant to provide care to individuals who are eligible for benefits under Title XVIII of the Social Security Act (42 U.S.C. § 1395 et seq.), Title XIX of the Social Security Act (42 U.S.C. § 1396 et seq.), and 10 U.S.C. § 1071 et seq. In addition, the Commissioner shall condition the approval of a certificate upon the agreement of the applicant to (i) provide a specified level of charity care to indigent persons or accept patients requiring specialized care, (ii) facilitate the development and operation of primary and specialty medical care services in designated medically underserved areas of the applicant’s service area, or (iii) all of the above. Except in the case of nursing homes, the value of charity care provided to individuals pursuant to this subsection shall be based on the provider reimbursement methodology utilized by the Centers for Medicare and Medicaid Services for reimbursement under Title XVIII of the Social Security Act, 42 U.S.C. § 1395 et seq.Every certificate holder shall develop a financial assistance policy that includes specific eligibility criteria and procedures for applying for charity care, which shall be provided to a patient at the time of admission or discharge or at the time services are provided, included with any billing statements sent to uninsured patients, posted conspicuously in public areas of the medical care facility for which the certificate was issued and posted on a website maintained by the certificate holder.The certificate holder shall annually provide documentation to the Department demonstrating that the certificate holder has satisfied the conditions of the certificate, including documentation of the amount of charity care provided to patients. If the certificate holder is unable or fails to satisfy the conditions of a certificate, the Department may approve alternative methods to satisfy the conditions pursuant to a plan of compliance, which shall identify a timeframe within which the certificate holder will satisfy the conditions of the certificate, and identify how the certificate holder will satisfy the conditions of the certificate, which may include (a) making direct payments to an organization authorized under a memorandum of understanding with the Department to receive contributions satisfying conditions of a certificate, (b) making direct payments to a private nonprofit foundation that funds basic insurance coverage for indigents authorized under a memorandum of understanding with the Department to receive contributions satisfying conditions of a certificate, or (c) other documented efforts or initiatives to provide primary or specialized care to underserved populations. In cases in which the certificate holder holds more than one certificate with conditions pursuant to this subsection, and the certificate holder is unable to satisfy the conditions of one certificate, such plan of compliance may provide for satisfaction of the conditions on that certificate by providing care at a reduced rate to indigent individuals in excess of the amount required by another certificate issued to the same holder, in an amount approved by the Department provided such care is offered at the same facility. Nothing in the preceding sentence shall prohibit the satisfaction of conditions of more than one certificate among various affiliated facilities or certificates subject to a system-wide or all-inclusive charity care condition established by the Commissioner. In determining whether the certificate holder has met the conditions of the certificate pursuant to a plan of compliance, only such actions undertaken after issuance of the conditioned certificate shall be counted towards satisfaction of conditions.Any person refusing, failing, or neglecting to honor such agreement shall be subject to a civil penalty of up to $100 per violation per day until the date of compliance which shall be collected by the Commissioner and paid into the Literary Fund. For the purpose of determining the amount of a civil penalty imposed pursuant to this subsection, the date on which the person began providing services in accordance with the original certificate shall be the date from which the period of noncompliance shall be calculated.
  3. The Commissioner shall (i) review every certificate of public need upon which conditions were imposed pursuant to subsection B at least once every three years to determine whether such conditions continue to be appropriate or should be revised and (ii) notify each certificate holder of his conclusions regarding (a) the appropriateness of conditions imposed on the certificate and whether such conditions should be revised and (b) the process by which the certificate holder may request amendments to conditions imposed on a certificate in accordance with subsection D.
  4. Pursuant to regulations of the Board, the Commissioner may accept requests for and approve amendments to conditions of existing certificates related to the provision of care at reduced rates or to patients requiring specialized care or related to the development and operation of primary medical care services in designated medically underserved areas of the certificate holder’s service area.
  5. In determining whether conditions imposed on a certificate of public need pursuant to subsection B are appropriate for the purposes of subsection C or should be amended in response to a request submitted pursuant to subsection D, the Commissioner shall consider any changes in the circumstances of the certificate holder resulting from changes in the financing or delivery of health care services, including changes to the Commonwealth’s program of medical assistance services, and any other specific circumstances of the certificate holder.

History. 1982, c. 388; 1991, c. 561; 1992, c. 682; 1993, cc. 668, 704; 1998, c. 794; 2009, cc. 175, 711, 796, 877; 2013, c. 460; 2017, cc. 768, 791; 2019, c. 839; 2020, c. 1271.

Editor’s note.

Acts 2013, c. 460, cl. 2 provides: “That the Board of Health shall promulgate regulations to implement the provisions of this act.”

Acts 2013, c. 460, cl. 3 provides: “That the Department of Health, in consultation with the Virginia Department of Veterans Services, Virginia Health Information Exchange, Virginia Hospital and Healthcare Association, and other industry stakeholders shall review the provisions of § 32.1-102.4 as amended by this act as well as the Patient Protection and Affordable Care Act, P.L. 111-148, related to the Commissioner’s imposition of conditions on certificates of public need. The workgroup shall consider the potential impacts of the Patient Protection and Affordable Care Act on Virginia’s uninsured population and certificate holders’ ongoing ability to meet their conditions. The workgroup shall also consider expanding the categories of patients whose care may be included in conditions on certificates, including disabled veterans with service-related injuries, patients receiving services under the state plan for medical assistance, and others.”

Acts 2017, c. 791, cl. 2 provides: “That the Commissioner of Health shall report to the Chairmen of the House Committees on Appropriations and Health, Welfare and Institutions and the Senate Committees on Finance and Education and Health by November 1, 2018, a data analysis comparing the value of (i) the total amount of charity care as defined in § 32.1-102.1 of the Code of Virginia, as amended by this act, that each medical care facility provided to indigent persons; (ii) the number of patients to whom charity care was provided; (iii) the specific services delivered to patients that are reported as charity care recipients; and (iv) the portion of the total amount of charity care provided that each service represents to comply with any conditions on such certificates based on the method utilized for valuing such care as of July 1, 2017, to the medical care facility’s cost using a method established by the nonprofit organization defined in § 32.1-276.3 of the Code of Virginia and to the value of such care based on the provider reimbursement methodology utilized by the Centers for Medicare and Medicaid Services for reimbursement under Title XVIII of the Social Security Act, 42 U.S.C. § 1395 et seq.”

Acts 2017, c. 791, cl. 3 provides: “That the provisions of this act amending §§ 32.1-102.2 and 32.1-102.4 of the Code of Virginia shall become effective on July 1, 2019.”

Acts 2020, c. 1289, Item 300 H, as added by Acts 2020, Sp. Sess. I, c. 552, effective for the biennium ending June 30, 2022, provides: “The provisions of § 32.1-102.4 (B), Code of Virginia, shall not apply to nursing homes.”

The 2009 amendments.

The 2009 amendments by cc. 175, 711, 796 and 877 are identical, and added the second paragraph in subsection F. The amendments by Acts 2009, c. 175, became effective March 25, 2005.

The 2013 amendments.

The 2013 amendments by c. 460 added subsection G and redesignated former subsection G as subsection H.

The 2017 amendments.

The 2017 amendment by c. 768 inserted the fourth and fifth sentences in the second paragraph of subsection F.

The 2017 amendment by c. 791, effective July 1, 2019, in subsection F, substituted “charity care to indigent persons” for “care at a reduced rate to indigents” and added the second sentence in the first paragraph, inserted “including documentation of the amount of charity care provided to patients” in the second paragraph and made stylistic changes.

The 2019 amendments.

The 2019 amendment by c. 839 added subsection G; redesignated former subsections G and H as H and I, respectively; and made stylistic changes.

The 2020 amendments.

The 2020 amendment by c. 1271 rewrote the section.

Law Review.

For article surveying developments in health care law in Virginia, see 37 U. Rich. L. Rev. 199 (2002).

§ 32.1-102.5. Certificate not transferable.

No certificate issued for a project shall be transferable.

History. 1982, c. 388.

§ 32.1-102.6. Administrative procedures.

  1. To obtain a certificate for a project, the applicant shall file a completed application for a certificate with the Department and the appropriate regional health planning agency if a regional health planning agency has been designated for that region. Such application shall be filed in accordance with procedures established by the Department. An application submitted for review shall be considered complete when all relevant sections of the application form have responses. The applicant shall provide sufficient information to prove public need for the requested project exists without the addition of supplemental or supporting material at a later date. The Department shall ensure that only data necessary for review of an application is required to be submitted and that the application reflects statutory requirements. Nothing in this section shall prevent the Department from seeking, at its discretion, additional information from the applicant or other sources.Within 10 calendar days of the date on which the document is received, the Department and the appropriate regional health planning agency, if a regional health planning agency has been designated, shall determine whether the application is complete or not and the Department shall notify the applicant, if the application is not complete, of the information needed to complete the application. If no regional health planning agency is designated for the health planning region in which the project will be located, no filing with a regional health planning agency is required and the Department shall determine if the application is complete and notify the applicant, if the application is not complete, of the information needed to complete the application.At least 30 calendar days before any person is contractually obligated to acquire an existing medical care facility, the cost of which is $600,000 or more, that person shall notify the Commissioner and the appropriate regional health planning agency, if a regional health planning agency has been designated, of the intent, the services to be offered in the facility, the bed capacity in the facility and the projected impact that the cost of the acquisition will have upon the charges for services to be provided. If clinical services or beds are proposed to be added as a result of the acquisition, the Commissioner may require the proposed new owner to obtain a certificate prior to the acquisition. If no regional health planning agency is designated for the health planning region in which the acquisition will take place, no notification to a regional health planning agency shall be required.
  2. For projects proposed in health planning regions with regional planning agencies, the appropriate regional health planning agency shall (i) review each completed application for a certificate within 60 calendar days of the day that begins the appropriate batch review cycle as established by the Board by regulation pursuant to subdivision A 1 of § 32.1-102.2 , such cycle not to exceed 190 days in duration; (ii) within 10 calendar days following the start of the review cycle, solicit public comment on such application by posting notice of such application and a summary of the proposed project on a website maintained by the Department; such notice shall include information about how comments may be submitted to the regional health planning agency and the date on which the public comment period shall expire, which shall be no later than 45 calendar days following the date of the public notice; and (iii) in the case of competing applications or in response to a written request by an elected local government representative, a member of the General Assembly, the Commissioner, the applicant, or a member of the public, hold one public hearing on each application in a location in the county or city in which the project is proposed or a contiguous county or city. Prior to any required public hearing, the regional health planning agency shall notify the local governing bodies in the planning district. At least nine days prior to the public hearing, the regional health planning agency shall cause notice of the public hearing to be published in a newspaper of general circulation in the county or city where the project is proposed to be located. The regional health planning agency shall consider the comments of the local governing bodies in the planning district and all other public comments in making its decision. Such comments shall be part of the record. In no case shall a regional health planning agency hold more than two meetings on any application, one of which shall be the public hearing required pursuant to clause (iii), if any, conducted by the board of the regional health planning agency or a subcommittee of the board. The applicant shall be given the opportunity, prior to the vote by the board of the regional health planning agency or a committee of the agency, if acting for the board, on its recommendation, to respond to any comments made about the project by the regional health planning agency staff, any information in a regional health planning agency staff report, or comments by those voting members of the regional health planning agency board; however, such opportunity shall not increase the 60-calendar-day period designated herein for the regional health planning agency’s review unless the applicant or applicants request a specific extension of the regional health planning agency’s review period.The regional health planning agency shall submit its recommendations on each application and its reasons therefor to the Department within 10 calendar days after the completion of its 60-calendar-day review or such other period in accordance with the applicant’s request for extension.If the regional health planning agency has not completed its review within the specified 60 calendar days or such other period in accordance with the applicant’s request for extension and submitted its recommendations on the application and the reasons therefor within 10 calendar days after the completion of its review, the Department shall, on the eleventh calendar day after the expiration of the regional health planning agency’s review period, proceed as though the regional health planning agency has recommended project approval without conditions or revision.If no regional health planning agency has been designated for a region, the Department shall (a) within 10 calendar days following the start of the review cycle, solicit public comment on such application by posting notice of such application and a summary of the proposed project on a website maintained by the Department; such notice shall include such information about how comments may be submitted to the Department and the date on which the public comment period shall expire, which shall be no later than 45 calendar days following the date of the public notice, and (b) in the case of competing applications or in response to a written request by an elected local government representative, a member of the General Assembly, the Commissioner, the applicant, or a member of the public, hold one hearing on each application in a location in the county or city in which the project is proposed or a contiguous county or city. Prior to any required hearing, the Department shall notify the local governing bodies in the planning district in which the project is proposed. At least nine days prior to the public hearing, the Department shall cause notice of the public hearing to be published in a newspaper of general circulation in the county or city where the project is proposed to be located. The Department shall consider the comments of the local governing bodies in the planning district and all other public comments in making its decision. Such comments shall be part of the record.
  3. After commencement of any public hearing and before a decision is made there shall be no ex parte contacts concerning the subject certificate or its application between (i) any person acting on behalf of the applicant or holder of a certificate or any person opposed to the issuance or in favor of revocation of a certificate of public need and (ii) any person in the Department who has authority to make a determination respecting the issuance or revocation of a certificate of public need, unless the Department has provided advance notice to all parties referred to in clause (i) of the time and place of such proposed contact.
  4. The Department shall commence the review of each completed application upon the day which begins the appropriate batch review cycle and simultaneously with the review conducted by the regional health planning agency, if a regional health planning agency has been designated.A determination whether a public need exists for a project shall be made by the Commissioner within 190 calendar days of the day which begins the appropriate batch cycle.The 190-calendar-day review period shall begin on the date upon which the application is determined to be complete within the batching process specified in subdivision A 1 of § 32.1-102.2 .If the application is not determined to be complete within 40 calendar days from submission, the application shall be refiled in the next batch for like projects.The Commissioner shall make determinations in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.) except for those parts of the determination process for which timelines and specifications are delineated in subsection E. Further, if an informal fact-finding conference is determined to be necessary by the Department or is requested by a person seeking good cause standing, the parties to the case shall include only the applicant, any person showing good cause, any third-party payor providing health care insurance or prepaid coverage to five percent or more of the patients in the applicant’s service area, and the relevant health planning agency.
  5. Upon entry of each completed application or applications into the appropriate batch review cycle:
    1. The Department shall establish, for every application, a date between the eightieth and ninetieth calendar days within the 190-calendar-day review period for holding an informal fact-finding conference, if such conference is necessary.
    2. The Department shall review every application at or before the seventy-fifth calendar day within the 190-calendar-day review period to determine whether an informal fact-finding conference is necessary.
    3. Any person seeking to be made a party to the case for good cause, no later than four days after the Department has completed its review and submitted its recommendation on an application and has transmitted the same to the applicants and to persons who have, prior to the issuance of the report, requested a copy in writing, shall notify the Commissioner, all applicants, and the regional health planning agency, in writing and under oath, stating the grounds for good cause and providing the factual basis therefor.
    4. In any case in which an informal fact-finding conference is held, a date shall be established for the closing of the record which shall not be more than 30 calendar days after the date for holding the informal fact-finding conference.
    5. In any case in which an informal fact-finding conference is not held, the record shall be closed on the earlier of (i) the date established for holding the informal fact-finding conference or (ii) the date that the Department determines an informal fact-finding conference is not necessary.
    6. The provisions of subsection C of § 2.2-4021 notwithstanding, if a determination whether a public need exists for a project is not made by the Commissioner within 45 calendar days of the closing of the record, the Commissioner shall notify the applicant or applicants and any persons seeking to show good cause, in writing, that the application or the application of each shall be deemed approved 25 calendar days after expiration of such 45-calendar-day period, unless the receipt of recommendations from the person performing the hearing officer functions permits the Commissioner to issue his case decision within that 25-calendar-day period. The validity or timeliness of the aforementioned notice shall not, in any event, prevent, delay or otherwise impact the effectiveness of this section.
    7. In any case when a determination whether a public need exists for a project is not made by the Commissioner within 70 calendar days after the closing of the record, the application shall be deemed to be approved and the certificate shall be granted.
    8. If a determination whether a public need exists for a project is not made by the Commissioner within 45 calendar days of the closing of the record, any applicant who is competing in the relevant batch or who has filed an application in response to the relevant Request For Applications issued pursuant to § 32.1-102.3:2 may, prior to the application being deemed approved, petition for immediate injunctive relief pursuant to § 2.2-4030, naming as respondents the Commissioner and all parties to the case. During the pendency of the proceeding, no applications shall be deemed to be approved. In such a proceeding, the provisions of § 2.2-4030 shall apply.
  6. Deemed approvals shall be construed as the Commissioner’s case decision on the application pursuant to the Administrative Process Act (§ 2.2-4000 et seq.) and shall be subject to judicial review on appeal as the Commissioner’s case decision in accordance with such act.Any person who has sought to participate in the Department’s review of such deemed-to-be-approved application as a person showing good cause who has not received a final determination from the Commissioner concerning such attempt to show good cause shall be deemed to be a person showing good cause for purposes of appeal of the deemed approval of the certificate.In any appeal of the Commissioner’s case decision granting a certificate of public need pursuant to a Request for Applications issued pursuant to § 32.1-102.3:2 , the court may require the appellant to file a bond pursuant to § 8.01-676.1 , in such sum as shall be fixed by the court for protection of all parties interested in the case decision, conditioned on the payment of all damages and costs incurred in consequence of such appeal.
  7. For purposes of this section, “good cause” means that (i) there is significant relevant information not previously presented at and not available at the time of the public hearing, (ii) there have been significant changes in factors or circumstances relating to the application subsequent to the public hearing, or (iii) there is a substantial material mistake of fact or law in the Department staff’s report on the application or in the report submitted by the health planning agency.
  8. The project review procedures shall provide for separation of the project review manager functions from the hearing officer functions. No person serving in the role of project review manager shall serve as a hearing officer.
  9. The applicants, and only the applicants, shall have the authority to extend any of the time periods specified in this section. If all applicants consent to extending any time period in this section, the Commissioner, with the concurrence of the applicants, shall establish a new schedule for the remaining time periods.
  10. This section shall not apply to applications for certificates for projects defined in subdivision A 8 of § 32.1-102.1:3 . Such projects shall be subject to an expedited application and review process developed by the Board in regulation pursuant to subdivision A 2 of § 32.1-102.2 .

History. 1982, c. 388; 1984, c. 740; 1991, c. 561; 1999, cc. 899, 922; 2000, c. 931; 2004, cc. 71, 95; 2005, c. 404; 2009, c. 175; 2010, c. 646; 2020, c. 1271.

The 2000 amendments.

The 2000 amendment by c. 931 rewrote the section.

The 2004 amendments.

The 2004 amendments by cc. 71 and 95 are identical, and in subsection A, substituted “10” for “ten” in the second paragraph and substituted “30” for “thirty” in the first sentence of the last paragraph; in subsection B, in the first paragraph, substituted “60” for “sixty” in the first sentence, inserted the fourth through sixth sentences, and substituted “60” for “sixty” in the last sentence, substituted “10” for “ten” in the second paragraph, and substituted “60” for “sixty” and “10” for “ten” in the third paragraph; substituted “40” for “forty” in the fourth paragraph of subsection D; substituted “30” for “thirty” in subdivision E 4; in subdivision E 6, substituted “45” for “forty-five” and “25” for “twenty-five” in two places in the first sentence; substituted “70” for “seventy” in subdivision E 7; and substituted “45” for “forty-five” in the first sentence of subdivision E 8.

The 2005 amendments.

The 2005 amendment by c. 404, in the last paragraph of subsection D, inserted “if an informal fact-finding conference is determined to be necessary by the Department or is requested by a person seeking good cause standing” and “relevant,” substituted “and” for “or,” and deleted “if its recommendation was to deny the application.”

The 2009 amendments.

The 2009 amendment by c. 175, effective March 25, 2009, inserted “regional” preceding “health planning” throughout the section; in subsection A, inserted “electronically” preceding “by certified mail” in the first paragraph, added the last sentence in the second paragraph, and added the last sentence in the last paragraph; in subsection B, inserted “For projects proposed in health planning regions with regional planning agencies” in the first sentence, inserted “or the Department if no regional health planning agency is designated” in the second, third and fourth sentences, inserted the sixth sentence, deleted “provided to the Department” at the end of the seventh sentence, and in the last sentence, inserted “regional health planning agency” and “members of the regional health planning agency board,” and added the last sentence in the last paragraph; substituted “this section” for “subdivision E 6 of § 32.1-102.6 ” in the last sentence of subdivision E 6; and added subsection J.

The 2010 amendments.

The 2010 amendment by c. 646, in subsection A, in the first paragraph, inserted “if a regional health planning agency has been designated for that region”; in subsection A, in the second and third paragraphs and in subsection D, inserted “if a regional health planning agency has been designated”; and in subsection B, rewrote the first paragraph; in the third paragraph, deleted the last sentence, which read: “If no regional health planning agency has been designated, recommendations and reasons therefore submitted by a health planning agency shall be reviewed by the Commissioner as public comment,” and added the last paragraph.

The 2020 amendments.

The 2020 amendment by c. 1271, in subsection A in the first paragraph, substituted the second through the sixth sentences for the second sentence, which read: “In order to verify the date of the Department’s and the appropriate regional health planning agency’s receipt of the application, the applicant shall transmit the document electronically, by certified mail or a delivery service, return receipt requested, or shall deliver the document by hand, with signed receipt to be provided”; in the first paragraph of subsection B, inserted clause (ii), added “in the case of competing applications or in response to a written request by an elected local government representative, a member of the General Assembly, the Commissioner, the applicant, or a member of the public” in clause (iii), substituted “any required public hearing” for “the public hearing” in the second sentence, and inserted “required pursuant to clause (iii), if any” in the sixth sentence; in the fourth paragraph of subsection B, inserted clause (a), added “in the case of competing applications . . . or a member of the public” in clause (b), and substituted “any required hearing” for “the hearing” in the second sentence; in subsection C, substituted “in clause (i)” for “in (i)”; in subsection D, last paragraph, first sentence, deleted “of this section” at the end; rewrote subdivision E 3, which read: “Any person seeking to be made a party to the case for good cause shall notify the Department of his request and the basis therefor on or before the eightieth calendar day following the day which begins the appropriate batch review cycle”; updated a reference; and made stylistic changes.

Law Review.

For 2000 survey of Virginia health law, see 34 U. Rich. L. Rev. 853 (2000).

Michie’s Jurisprudence.

For related discussion, see 9B M.J. Hospitals and Sanitariums, § 3.

CASE NOTES

Regulations allowing more than 120 days for case decision are invalid. —

By expressly eliminating any reference to “initial determination” in subsection E as it existed prior to the 1984 amendment and by placing the Commissioner’s determination under the provision of the Administrative Process Act, the General Assembly manifested its intent to simplify the review process and to place a 120-day limit on the time within which the case decision, i.e., the determination, could be made. Regulations adopted by the Board, to the extent that they allow a longer period of time, are invalid. State Bd. of Health v. Virginia Hosp. Ass'n, 1 Va. App. 5, 332 S.E.2d 793, 1985 Va. App. LEXIS 52 (1985) (decided prior to 2000 amendments).

“Person showing good cause.” —

A corporation was a “person showing good cause” when it demonstrated a material mistake of law in the report submitted by the health planning agency, recommending approval of a certificate of public need, because the average annual occupancy data supporting the report indicated an average annual occupancy approximately half that specified in the State Medical Facilities Plan. Chippenham & Johnston-Willis Hosps., Inc. v. Peterson, 36 Va. App. 469, 553 S.E.2d 133, 2001 Va. App. LEXIS 551 (2001).

Standing. —

Regional health agency lacks standing to challenge a decision of the State Health Commissioner that rejected the agency’s recommendation to deny a certificate of public need application to a hospital since the agency failed to demonstrate a substantial grievance or a substantial interest in the litigation to have been deemed an aggrieved party. Health Sys. Agency of N. Va., Inc. v. Stroube, 47 Va. App. 299, 623 S.E.2d 444, 2005 Va. App. LEXIS 530 (2005).

Based on § 32.1-102.3:5 , a group of nursing homes lacked standing to challenge a competitor’s request for approval of the relocation of beds between its facilities because § 32.1-102.3:5 exempted bed relocation requests from the procedures required for the approval of other certificates of public need, including the procedures under § 32.1-102.6 , which allowed for granting good-cause standing to nonparties. Laurels of Bon Air, LLC v. Med. Facilities of Am. LIV Ltd. P'ship, 51 Va. App. 583, 659 S.E.2d 561, 2008 Va. App. LEXIS 189 (2008).

Evidence of harm in the administrative record was not necessary to establish a medical center’s standing to appeal the issuance of a certificate of public need to a competitor because the administrative proceedings focused on evidence of public need, rather than of harm. Pleading harm that consisted of a decrease in utilization and efficiency of its services and an increased financial burden was sufficient to establish the medical center’s aggrieved party status. West Creek Med. Ctr., Inc. v. Romero, 2014 Va. App. LEXIS 29 (Va. Ct. App. Feb. 4, 2014).

Competitor was not entitled to good cause standing status in an application for a certificate of public need, for the construction of a nursing home, because the change in capital costs for the project from the time of the public hearing did not constitute significant relevant information and was not of such a degree as to constitute an amendment to the application. Moreover, the Virginia Division of Certificate of Public Need’s staff report applied the statutory utilization and occupancy criteria. NHC Healthcare/Bristol, LLC v. Levine, 2017 Va. App. LEXIS 6 (Va. Ct. App. Jan. 10, 2017).

Application to bed relocations. —

By exempting qualifying relocations from the definition of “project,” subsection B of § 32.1-102.3:5 renders inapplicable the elaborate procedures governing the approval of certificates of public need for projects — including § 32.1-102.6 ’s procedures for holding public hearings and granting good-cause standing to nonparties. Laurels of Bon Air, LLC v. Med. Facilities of Am. LIV Ltd. P'ship, 51 Va. App. 583, 659 S.E.2d 561, 2008 Va. App. LEXIS 189 (2008).

Certificate of need application by health care providers. —

Despite the local health planning agency making recommendation being improperly constituted pursuant to subsection B of § 32.1-122.05 , the state commissioner could still deny the health care providers’ applications for certificates of public need under § 32.1-102.6 although the state commissioner was required to consider the local health planning agency’s recommendation to be one of approval because of the improperly constituted local health planning agency. The local health planning agency’s staff report was properly in the agency record, the state commissioner had the power to consider the staff report, the state commissioner could decide what weight should be given to the staff report, and the denial of the certificates of public need was supported by substantial evidence in the record as required by § 2.2-4027. Doctors' Hosp. of Williamsburg, LLC v. Stroube, 52 Va. App. 599, 665 S.E.2d 862, 2008 Va. App. LEXIS 416 (2008).

CIRCUIT COURT OPINIONS

Standing. —

Hospital center’s action seeking review of the State Health Commissioner’s decisions denying the center party status and granting a community hospital an extension of its certificate of public need was dismissed for lack of standing because the center was not a named party, aggrieved party, necessary party, or party identified by Va. Sup. Ct. R. 2A:1; the facts upon which the certificate of public need was issued were not impacted by the request for an extension, and the relinquishment of the center’s sixteen beds, if and whenever that could occur, was not in the nature of an immediate interest that would support aggrieved party status. Inova Loudoun Hosp. v. Remley, 77 Va. Cir. 411, 2009 Va. Cir. LEXIS 96 (Loudoun County Mar. 6, 2009).

State Health Commissioner properly granted good cause standing to a hospital authority pursuant to § 32.1-102.6 because it demonstrated good cause standing to review of a second hospital authority’s certificate of public need application to establish open heart surgery services in the health planning district at issue where, inter alia, the second hospital authority had relied upon and cited utilization data that was over inclusive and counted more procedures than just open and closed heart surgeries a substantial or material mistake of law, the Commissioner’s findings were entitled to due deference, and her factual determinations were supported by substantial evidence in the administrative record. Chesapeake Hosp. Auth. v. State Health Comm'r, 105 Va. Cir. 555, 2019 Va. Cir. LEXIS 1207 (Chesapeake Mar. 27, 2019).

§ 32.1-102.6:1. Revocation of a certificate.

The Commissioner shall revoke a certificate of public need for:

  1. Failure to comply with the requirements of subsection A of § 32.1-102.4 regarding schedules for completion of a project or maximum capital expenditures for a project; or
  2. Willfully or recklessly misrepresented intentions or facts in obtaining a certificate.

History. 2020, c. 1271.

§ 32.1-102.7. Repealed by Acts 1984, c. 740.

§ 32.1-102.8. Enjoining project undertaken without certificate or registration.

On petition of the Commissioner, the Board or the Attorney General, the circuit court of the county or city where a project is under construction or is intended to be constructed, located, or undertaken shall have jurisdiction to enjoin any project that is constructed, undertaken, or commenced without a certificate or registration required by this article or to enjoin the admission of patients to the project or to enjoin the provision of services through the project.

History. 1982, c. 388; 2020, c. 1271.

The 2020 amendments.

The 2020 amendment by c. 1271 inserted “or registration required by this article” and made stylistic changes.

Law Review.

For survey on evidence in Virginia for 1989, see 23 U. Rich. L. Rev. 647 (1989).

§ 32.1-102.9. Designation of judge.

The judge of the court to which any appeal is taken as provided in § 32.1-102.6 and the judge of the court referred to in § 32.1-102.8 shall be designated by the Chief Justice of the Supreme Court from a circuit other than the circuit where the project is or will be under construction, located or undertaken.

History. 1982, c. 388; 1984, c. 740.

§ 32.1-102.10. Commencing project without certificate or registration grounds for refusing to issue license.

Commencing any project without a certificate or registration required by this article shall constitute grounds for refusing to issue a license for such project. Persons commencing any project without a certificate or registration as required by this article shall be subject to the penalties set forth in §§ 32.1-27 and 32.1-27.1 .

History. 1982, c. 388; 2009, c. 175; 2020, c. 1271.

The 2009 amendments.

The 2009 amendment by c. 175, effective March 25, 2009, added the last sentence.

The 2020 amendments.

The 2020 amendment by c. 1271 inserted “or registration” in both sentences.

§ 32.1-102.11. Application of article.

  1. Every project of an existing or proposed medical care facility described in subsection A of § 32.1-102.1:3 shall be subject to all provisions of this article unless, with respect to such project, the owner or operator of an existing medical care facility or the developer of a proposed medical care facility (i) has, by February 1, 1992, purchased or leased equipment subject to registration pursuant to former § 32.1-102.3:4, (ii) has, by February 1, 1992, initiated construction requiring a capital expenditure exceeding one million dollars, or (iii) has made or contracted to make or otherwise legally obligated to make, during the three years ending February 1, 1992, preliminary expenditures of $350,000 or more for a formal plan of construction of the specific project, including expenditures for site acquisition, designs, preliminary or working drawings, construction documents, or other items essential to the construction of the specific project.Any project exempted pursuant to subdivisions (ii) and (iii) of this subsection shall be limited to such construction, services, and equipment as specifically identified in the formal plan of construction which shall have existed and been formally committed to by February 1, 1992. Further, the equipment to be exempted pursuant to subdivisions (ii) and (iii) shall be limited to the number of units and any types of medical equipment, in the case of medical equipment intended to provide any services included in subdivision B 6 of § 32.1-102.1:3 , as are specifically identified in such plan and, in the case of all other equipment, such equipment as is appropriate for the construction and services included in such plan.None of the exemptions provided in this subsection shall be applicable to projects which required a certificate of public need pursuant to this article on January 1, 1992.
  2. Any medical care facility or entity claiming to meet one of the conditions set forth in subsection A of this section shall file a completed application for an exemption from the provisions of this article with the Commissioner by August 1, 1992. Forms for such application shall be made available by the Commissioner no later than April 1, 1992. The Commissioner may deny an exemption if the application is not complete on August 1, 1992, and the medical care facility or entity has not filed a completed application within forty-five days after notice of deficiency in the filing of the completed application. After receiving a completed application, the Commissioner shall determine whether the project has met one of the criteria for an exemption and is, therefore, exempt or has not met any of the criteria for an exemption and is, therefore, subject to all provisions of this article and shall notify the medical care facility or entity of his determination within sixty days of the date of filing of the completed application. If it is determined that an exemption exists for only a portion of a project, the Commissioner may approve an exemption for that portion and any appeal may be limited to the part of the decision with which the appellant disagrees without affecting the remainder of the decision. The Commissioner’s determination shall be made in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.), except that parties to the case shall include only those parties specified in § 32.1-102.6 .
  3. For the purposes of this section:“Formal plan of construction” means documentary evidence indicating that the facility, the owner or operator of the facility, or the developer of a proposed facility was formally committed to the project by February 1, 1992, and describing the specific project in sufficient detail to reasonably define and confirm the scope of the project including estimated cost, intended location, any clinical health services to be involved and any types of equipment to be purchased. Such documentary evidence shall include designs, preliminary or working drawings, construction documents or other documents which have been used to explicitly define and confirm the scope of the project for the purposes of seeking architectural or construction plans or capital to the extent that such capital was committed or agreed to be provided for such project prior to February 1, 1992.“Initiated construction” means an owner or operator of an existing facility or the developer of a proposed facility can present evidence for a specific project that (i) a construction contract has been executed; (ii) if applicable, short-term financing has been completed; (iii) if applicable, a commitment for long-term financing has been obtained; and (iv) if the project is for construction of a new facility or expansion of an existing facility, predevelopment site work and building foundations have been completed.“Leased” means that the owner or operator of an existing medical care facility or the developer of a proposed facility has a legally binding commitment to lease the equipment pursuant to an agreement providing for fixed, periodic payments commencing no later than June 30, 1992, including a lease-purchase agreement in which the owner or operator of the facility or developer has an option to purchase the equipment for less than fair market value upon conclusion of the lease or an installment sale agreement with fixed periodic payments commencing no later than June 30, 1992.“Purchased” means that the equipment has been acquired by the owner or operator of an existing medical care facility or the developer of a proposed medical care facility, or the owner or operator of the facility or the developer can present evidence of a legal obligation to acquire the equipment in the form of an executed contract or appropriately signed order or requisition and payment has been made in full by June 30, 1992.

History. 1982, c. 388; 1986, c. 615; 1992, c. 612; 2020, c. 1271.

The 2020 amendments.

The 2020 amendment by c. 1271, in subsection A in the first paragraph, substituted “Every” for “On and after July 1, 1992, every” and “described in subsection A of § 32.1-102.1:3 ” for “as defined in § 32.1-102.1 ” and in the second paragraph of subsection A, substituted “subdivision B 6 of § 32.1-102.1:3 ” for “subdivision 6 of the definition of project in § 32.1-102.1 ” in the second sentence.

§ 32.1-102.12. Repealed by Acts 2012, c. 123, cl. 1.

Editor’s note.

Former § 32.1-102.12 , pertaining annual report by Commissioner on status of Virginia’s certificate of public need program, derived from Acts 1997, c. 462; 1999, cc. 899, 922; 2009, c. 175.

§ 32.1-102.13. Repealed by Acts 2007, c. 5, cl. 1.

Article 2. Medical Care Facilities Development.

§§ 32.1-103 through 32.1-111. Repealed by Acts 1984, c. 424.

Article 2.1. Statewide Emergency Medical Services System and Services.

§ 32.1-111.1. Definitions.

As used in this article:

“Advisory Board” means the State Emergency Medical Services Advisory Board.

“Automated external defibrillator” means a medical device which combines a heart monitor and defibrillator and (i) has been approved by the United States Food and Drug Administration, (ii) is capable of recognizing the presence or absence of ventricular fibrillation or rapid ventricular tachycardia, (iii) is capable of determining, without intervention by an operator, whether defibrillation should be performed, and (iv) automatically charges and requests delivery of an electrical impulse to an individual’s heart, upon determining that defibrillation should be performed.

“Emergency medical services” or “EMS” means health care, public health, and public safety services used in the medical response to the real or perceived need for immediate medical assessment, care, or transportation and preventive care or transportation in order to prevent loss of life or aggravation of physiological or psychological illness or injury.

“Emergency medical services agency” or “EMS agency” means any person engaged in the business, service, or regular activity, whether for profit or not, of rendering immediate medical care and providing transportation to persons who are sick, injured, wounded, or otherwise incapacitated or helpless and that holds a valid license as an emergency medical services agency issued by the Commissioner in accordance with § 32.1-111.6 .

“Emergency medical services personnel” or “EMS personnel” means individuals who are employed by or members of an emergency medical services agency and who provide emergency medical services pursuant to an emergency medical services agency license issued to that agency by the Commissioner and in accordance with the authorization of that agency’s operational medical director.

“Emergency medical services physician” or “EMS physician” means a physician who holds a current endorsement from the Office of Emergency Medical Services (EMS) and may serve as an EMS agency operational medical director or training program physician course director.

“Emergency medical services provider” or “EMS provider” means any person who holds a valid certificate as an emergency medical services provider issued by the Commissioner.

“Emergency medical services system” or “EMS system” means the system of emergency medical services agencies, vehicles, equipment, and personnel; health care facilities; other health care and emergency services providers; and other components engaged in the planning, coordination, and delivery of emergency medical services in the Commonwealth, including individuals and facilities providing communication and other services necessary to facilitate the delivery of emergency medical services in the Commonwealth.

“Emergency medical services vehicle” means any vehicle, vessel, or aircraft that holds a valid emergency medical services vehicle permit issued by the Office of Emergency Medical Services that is equipped, maintained, or operated to provide emergency medical care or transportation of patients who are sick, injured, wounded, or otherwise incapacitated or helpless.

“Office of Emergency Medical Services” means the Office of Emergency Medical Services of the Department.

“Operational medical director” or “OMD” means an EMS physician, currently licensed to practice medicine or osteopathic medicine in the Commonwealth, who is formally recognized and responsible for providing medical direction, oversight, and quality improvement to an EMS agency.

History. 1996, c. 899; 1999, c. 1000; 2000, c. 939; 2008, c. 118; 2015, cc. 502, 503.

Cross references.

As to exclusion of health and social service records from the provisions of the Virginia Freedom of Information Act, see § 2.2-3705.5.

The 2000 amendments.

The 2000 amendment by c. 939 added the paragraph defining “Ambulance,” and rewrote the paragraph defining “Emergency medical services vehicle.”

The 2008 amendments.

The 2008 amendment by c. 118 added paragraphs defining “Emergency medical services physician,” “‘Emergency medical services provider’ or ‘EMS provider”’ and “‘Operational medical director’ or ‘OMD.”’

The 2015 amendments.

The 2015 amendments by cc. 502 and 503 are identical and rewrote the section.

OPINIONS OF THE ATTORNEY GENERAL

“Emergency medical services agency.” —

A locality may use Four-for-Life funds to provide funding for its local fire department pursuant to § 46.2-694. See opinion of Attorney General to The Honorable Riley E. Ingram, Member, House of Delegates, 18-017, (9/21/2018).

Flu vaccinations. —

Emergency medical service providers may only administer vaccinations for the H1N1 flu or the seasonal flu when designated and authorized by the State Health Commissioner in accordance with § 32.1-42.1 and subsection P of § 54.1-3408. See opinion of Attorney General to The Honorable H. Morgan Griffith, Member, House of Delegates, 09-076, (10/23/09).

§ 32.1-111.2. Exemptions from provisions of this article.

The following entities are exempted from the provisions of this article:

  1. Emergency medical services agencies based outside the Commonwealth, except that any such agency receiving a person who is sick, injured, wounded, incapacitated, or helpless within the Commonwealth for transportation to a location within the Commonwealth shall comply with the provisions of this article;
  2. Emergency medical services agencies operated by the United States government; and
  3. Wheelchair interfacility transport services and wheelchair interfacility transport service vehicles that are engaged, whether or not for profit, in the business, service, or regular activity of and exclusively used for transporting wheelchair bound passengers between medical facilities in the Commonwealth when no ancillary medical care or oversight is necessary. However, such services and vehicles shall comply with Department of Medical Assistance Services regulations regarding the transportation of Medicaid recipients to covered services.

History. 1996, c. 899; 2005, c. 778; 2015, cc. 502, 503.

The 2005 amendments.

The 2005 amendment by c. 778 added subdivision 3 and made minor stylistic and related changes.

The 2015 amendments.

The 2015 amendments by cc. 502 and 503 are identical, and substituted “services” for “service” preceding “agencies” in subdivisions 1 and 2.

§ 32.1-111.3. Statewide Emergency Medical Services Plan; Trauma Triage Plan; Stroke Triage Plan.

  1. The Board of Health shall develop a Statewide Emergency Medical Services Plan that shall provide for a comprehensive, coordinated, emergency medical services system in the Commonwealth and shall review, update, and publish the Plan triennially, making such revisions as may be necessary to improve the effectiveness and efficiency of the Commonwealth’s emergency medical services system. The Plan shall incorporate the regional emergency medical services plans prepared by the regional emergency medical services councils pursuant to § 32.1-111.4:2 . Publishing through electronic means and posting on the Department website shall satisfy the publication requirement. The objectives of such Plan and the emergency medical services system shall include the following:
    1. Establishing a comprehensive statewide emergency medical services system, incorporating facilities, transportation, manpower, communications, and other components as integral parts of a unified system that will serve to improve the delivery of emergency medical services and thereby decrease morbidity, hospitalization, disability, and mortality;
    2. Reducing the time period between the identification of an acutely ill or injured patient and the definitive treatment;
    3. Increasing the accessibility of high quality emergency medical services to all citizens of Virginia;
    4. Promoting continuing improvement in system components including ground, water, and air transportation; communications; hospital emergency departments and other emergency medical care facilities; health care provider training and health care service delivery; and consumer health information and education;
    5. Ensuring performance improvement of the emergency medical services system and emergency medical services and care delivered on scene, in transit, in hospital emergency departments, and within the hospital environment;
    6. Working with professional medical organizations, hospitals, and other public and private agencies in developing approaches whereby the many persons who are presently using the existing emergency department for routine, nonurgent, primary medical care will be served more appropriately and economically;
    7. Conducting, promoting, and encouraging programs of education and training designed to upgrade the knowledge and skills of emergency medical services personnel, including expanding the availability of paramedic and advanced life support training throughout the Commonwealth with particular emphasis on regions underserved by emergency medical services personnel having such skills and training;
    8. Consulting with and reviewing, with agencies and organizations, the development of applications to governmental or other sources for grants or other funding to support emergency medical services programs;
    9. Establishing a statewide air medical evacuation system which shall be developed by the Department of Health in coordination with the Department of State Police and other appropriate state agencies;
    10. Establishing and maintaining a process for designation of appropriate hospitals as trauma centers, certified stroke centers, and specialty care centers based on an applicable national evaluation system;
    11. Maintaining a comprehensive emergency medical services patient care data collection and performance improvement system pursuant to Article 3.1 (§ 32.1-116.1 et seq.);
    12. Collecting data and information and preparing reports for the sole purpose of the designation and verification of trauma centers and other specialty care centers pursuant to this section. All data and information collected shall remain confidential and shall be exempt from the provisions of the Virginia Freedom of Information Act (§ 2.2-3700 et seq.);
    13. Establishing and maintaining a process for crisis intervention and peer support services for emergency medical services personnel and public safety personnel, including statewide availability and accreditation of critical incident stress management or peer support teams and personnel. Such accreditation standards shall include a requirement that a peer support team be headed by a Virginia-licensed clinical psychologist, Virginia-licensed psychiatrist, Virginia-licensed clinical social worker, or Virginia-licensed professional counselor, who has at least five years of experience as a mental health consultant working directly with emergency medical services personnel or public safety personnel;
    14. Establishing a statewide program of emergency medical services for children to provide coordination and support for emergency pediatric care, availability of pediatric emergency medical care equipment, and pediatric training of health care providers;
    15. Establishing and supporting a statewide system of health and medical emergency response teams, including emergency medical services disaster task forces, coordination teams, disaster medical assistance teams, and other support teams that shall assist local emergency medical services agencies at their request during mass casualty, disaster, or whenever local resources are overwhelmed;
    16. Establishing and maintaining a program to improve dispatching of emergency medical services personnel and vehicles, including establishment of and support for emergency medical services dispatch training, accreditation of 911 dispatch centers, and public safety answering points;
    17. Identifying and establishing best practices for managing and operating emergency medical services agencies, improving and managing emergency medical services response times, and disseminating such information to the appropriate persons and entities;
    18. Ensuring that the Department of Criminal Justice Services and the Virginia Criminal Injuries Compensation Fund shall be contacted immediately to deploy assistance in the event there are victims as defined in § 19.2-11.01 , and that the Department of Criminal Justice Services and the Virginia Criminal Injuries Compensation Fund become the lead coordinating agencies for those individuals determined to be victims; and
    19. Maintaining current contact information for both the Department of Criminal Justice Services and the Virginia Criminal Injuries Compensation Fund.
  2. The Board of Health shall also develop and maintain as a component of the Emergency Medical Services Plan a statewide prehospital and interhospital Trauma Triage Plan designed to promote rapid access for pediatric and adult trauma patients to appropriate, organized trauma care through the publication and regular updating of information on resources for trauma care and generally accepted criteria for trauma triage and appropriate transfer. The Trauma Triage Plan shall include:
    1. A strategy for maintaining the statewide Trauma Triage Plan through development of regional trauma triage plans that take into account the region’s geographic variations and trauma care capabilities and resources, including hospitals designated as trauma centers pursuant to subsection A and inclusion of such regional plans in the statewide Trauma Triage Plan. The regional trauma triage plans shall be reviewed triennially. Plans should ensure that the Department of Criminal Justice Services and the Virginia Criminal Injuries Compensation Fund shall be contacted immediately to deploy assistance in the event there are victims as defined in § 19.2-11.01 , and that the Department of Criminal Justice Services and the Virginia Criminal Injuries Compensation Fund become the lead coordinating agencies for those individuals determined to be victims; and maintain current contact information for both the Department of Criminal Justice Services and the Virginia Criminal Injuries Compensation Fund.
    2. A uniform set of proposed criteria for prehospital and interhospital triage and transport of trauma patients developed by the Advisory Board, in consultation with the Virginia Chapter of the American College of Surgeons, the Virginia College of Emergency Physicians, the Virginia Hospital and Healthcare Association, and prehospital care providers. The Advisory Board may revise such criteria from time to time to incorporate accepted changes in medical practice or to respond to needs indicated by analyses of data on patient outcomes. Such criteria shall be used as a guide and resource for health care providers and are not intended to establish, in and of themselves, standards of care or to abrogate the requirements of § 8.01-581.20 . A decision by a health care provider to deviate from the criteria shall not constitute negligence per se.
    3. A performance improvement program for monitoring the quality of emergency medical services and trauma services, consistent with other components of the Emergency Medical Services Plan. The program shall provide for collection and analysis of data on emergency medical and trauma services from existing validated sources, including the emergency medical services patient care information system, pursuant to Article 3.1 (§ 32.1-116.1 et seq.), the Patient Level Data System, and mortality data. The Advisory Board shall review and analyze such data on a quarterly basis and report its findings to the Commissioner. The Advisory Board may execute these duties through a committee composed of persons having expertise in critical care issues and representatives of emergency medical services providers. The program for monitoring and reporting the results of emergency medical services and trauma services data analysis shall be the sole means of encouraging and promoting compliance with the trauma triage criteria.The Commissioner shall report aggregate findings of the analysis annually to each regional emergency medical services council. The report shall be available to the public and shall identify, minimally, as defined in the statewide plan, the frequency of (i) incorrect triage in comparison to the total number of trauma patients delivered to a hospital prior to pronouncement of death and (ii) incorrect interfacility transfer for each region.The Advisory Board or its designee shall ensure that each hospital director or emergency medical services agency chief is informed of any incorrect interfacility transfer or triage, as defined in the statewide Trauma Triage Plan, specific to the hospital or agency and shall give the hospital or agency an opportunity to correct any facts on which such determination is based, if the hospital or agency asserts that such facts are inaccurate. The findings of the report shall be used to improve the Trauma Triage Plan, including triage, and transport and trauma center designation criteria.The Commissioner shall ensure the confidentiality of patient information, in accordance with § 32.1-116.2 . Such data or information in the possession of or transmitted to the Commissioner, the Advisory Board, any committee acting on behalf of the Advisory Board, any hospital or prehospital care provider, any regional emergency medical services council, emergency medical services agency that holds a valid license issued by the Commissioner, or group or committee established to monitor the quality of emergency medical services or trauma services pursuant to this subdivision, or any other person shall be privileged and shall not be disclosed or obtained by legal discovery proceedings, unless a circuit court, after a hearing and for good cause shown arising from extraordinary circumstances, orders disclosure of such data.
  3. The Board shall also develop and maintain as a component of the Statewide Emergency Medical Services Plan a statewide prehospital and interhospital Stroke Triage Plan designed to promote rapid access for stroke patients to appropriate, organized stroke care through the publication and regular updating of information on resources for stroke care and generally accepted criteria for stroke triage and appropriate transfer. The Stroke Triage Plan shall include:
    1. A strategy for maintaining the statewide Stroke Triage Plan through development of regional stroke triage plans that take into account the region’s geographic variations and stroke care capabilities and resources, including hospitals designated as comprehensive stroke centers, primary stroke centers, primary stroke centers with supplementary levels of stroke care distinction, and acute stroke-ready hospitals through certification by the Joint Commission, DNV Healthcare, the American Heart Association, or a comparable process consistent with the recommendations of the Brain Attack Coalition, and inclusion of such regional plans in the statewide Stroke Triage Plan. The regional stroke triage plans shall be reviewed triennially.
    2. A uniform set of proposed criteria for prehospital and interhospital triage and transport of stroke patients developed by the Advisory Board, in consultation with the American Stroke Association, the Virginia College of Emergency Physicians, the Virginia Hospital and Healthcare Association, and prehospital care providers. The Board may revise such criteria from time to time to incorporate accepted changes in medical practice or to respond to needs indicated by analyses of data on patient outcomes. Such criteria shall be used as a guide and resource for health care providers and are not intended to establish, in and of themselves, standards of care or to abrogate the requirements of § 8.01-581.20 . A decision by a health care provider to deviate from the criteria shall not constitute negligence per se.
  4. Whenever any state-owned aircraft, vehicle, or other form of conveyance is utilized under the provisions of this section, an appropriate amount not to exceed the actual costs of operation may be charged by the agency having administrative control of such aircraft, vehicle, or other form of conveyance.

History. 1996, c. 899; 1997, c. 321; 1998, c. 317; 1999, c. 1000; 2005, cc. 632, 686; 2006, c. 412; 2007, c. 15; 2008, cc. 66, 567; 2009, cc. 222, 269; 2012, c. 418; 2014, c. 320; 2015, cc. 502, 503; 2017, c. 609; 2018, cc. 103, 109.

Cross references.

As to privileged communications for critical incident stress management team members, see § 19.2-271.4 .

The 2005 amendments.

The 2005 amendments by cc. 632 and 686 are nearly identical, and in subsection A, inserted “update and publish” and “to improve the effectiveness and efficiency of the Commonwealth’s emergency medical care system” at the end of the second sentence, inserted the third sentence, substituted “making” for “and make”; added the language beginning “including expanding” at the end of subdivision A 7; rewrote subdivision A 13; inserted subdivisions A 14 through A 17; and made minor stylistic changes. The acts added subdivisions A 13 through A 17 in a different order. The section has been set out in the form above at the direction of the Virginia Code Commission.

The 2006 amendments.

The 2006 amendment by c. 412, in the second sentence in the last paragraph of subsection B, deleted “or” preceding “any committee” and inserted “any regional emergency medical services council, permitted emergency medical services agency, or group or committee established to monitor the quality of care pursuant to this subdivision.”

The 2007 amendments.

The 2007 amendment by c. 15, in subdivision A 5, substituted “Ensuring performance improvement of the Emergency Medical Services system and” for “Improving the quality” at the beginning and “scene” for “site” near the middle; substituted “professional medical organizations” for “medical societies” in subdivision A 6; in subdivision A 11, substituted “Maintaining” for “Establishing” at the beginning and “performance improvement” for “evaluation” near the end; in subdivision B 1, substituted “maintaining the statewide” for “implementing the statewide” near the beginning and “plans that incorporate” for “plans developed by the regional emergency medical services councils which can incorporate” near the middle of the first sentence, and substituted “shall be reviewed triennially” for “shall be implemented by July 1, 1999, upon the approval of the Commissioner” at end of the second sentence; deleted “consistent with the trauma protocols of the American College of Surgeons’ Committee on Trauma,” from the first sentence in subdivision B 2; in subdivision B 3, inserted “performance improvement” near the beginning of the first sentence, deleted the former fourth sentence, which read: “The first such report shall be for the quarter beginning on July 1, 1999.” and inserted “Emergency Medical Services” in the present fourth sentence; deleted “with the first such report representing data submitted for the quarter beginning July 1, 1999, through the quarter ending June 30, 2000” at the end of the first sentence in the first undesignated paragraph of subdivision B 3; inserted “Emergency Medical Services” and inserted “or its designee” following “Advisory Board” near the beginning of the second undesignated paragraph of subdivision B 3; and inserted “Emergency Medical Services” twice and substituted “licensed” for “permitted” in the second sentence in the third undesignated paragraph of subdivision B 3.

The 2008 amendments.

The 2008 amendments by cc. 66 and 567 are identical, and redesignated former subsection C as present subsection D; and inserted present subsection D.

The 2009 amendments.

The 2009 amendments by cc. 222 and 269 are identical, and added subdivision A 18 and made related changes.

The 2012 amendments.

The 2012 amendment by c. 418 deleted “of this chapter” at the end of subdivision A 11 and in subdivision B 3; added “, and that the Department of Criminal Justice Services and the Virginia Criminal Injuries Compensation Fund become the lead coordinating agencies for those individuals determined to be victims; and” at the end of subdivision A 18, added subdivision A 19, and made related changes; and in subdivision B 1, deleted “of this section” at the end of the first sentence, and added the third sentence.

The 2014 amendments.

The 2014 amendment by c. 320, in subdivision C 1, inserted “DNV Healthcare” and made minor stylistic changes.

The 2015 amendments.

The 2015 amendments by cc. 502 and 503 are identical, and rewrote the section.

The 2017 amendments.

The 2017 amendment by c. 609 in subdivision A 13, substituted “or peer support teams and personnel” for “teams” in the first sentence and added the second sentence.

The 2018 amendments.

The 2018 amendments by cc. 103 and 109 are identical, and in subsection A, deleted “but not be limited to” preceding “the following” at the end of the introductory language; in subdivision A 10, inserted “certified stroke centers”; in subdivision C 1, inserted “comprehensive stroke centers,” “primary stroke centers with supplementary levels of stroke care distinction, and acute stroke-ready hospitals,” and “the American Heart Association.”

Law Review.

For 2007 annual survey article, “Health Care Law,” see 42 U. Rich. L. Rev. 441 (2007).

§ 32.1-111.4. Regulations; emergency medical services personnel and vehicles; response times; enforcement provisions; civil penalties.

  1. The Board shall prescribe by regulation:
    1. Requirements for recordkeeping, supplies, operating procedures, and other emergency medical services agency operations;
    2. Requirements for the sanitation and maintenance of emergency medical services vehicles and their medical supplies and equipment;
    3. Procedures, including the requirements for forms, to authorize qualified emergency medical services personnel to follow Do Not Resuscitate Orders pursuant to § 54.1-2987.1;
    4. Requirements for the composition, administration, duties, and responsibilities of the Advisory Board;
    5. Requirements, developed in consultation with the Advisory Board, governing the training, certification, and recertification of emergency medical services personnel;
    6. Requirements for written notification to the Advisory Board, the Office of Emergency Medical Services, and the Financial Assistance and Review Committee of the Board’s action, and the reasons therefor, on requests and recommendations of the Advisory Board, the Office of Emergency Medical Services, or the Financial Assistance and Review Committee, no later than five business days after reaching its decision, specifying whether the Board has approved, denied, or not acted on such requests and recommendations;
    7. Authorization procedures, developed in consultation with the Advisory Board, that allow the possession and administration of epinephrine or a medically accepted equivalent for emergency cases of anaphylactic shock by certain levels of certified emergency medical services personnel as authorized by § 54.1-3408 and authorization procedures that allow the possession and administration of oxygen with the authority of the local operational medical director and an emergency medical services agency that holds a valid license issued by the Commissioner;
    8. A uniform definition of “response time” and requirements, developed in consultation with the Advisory Board, for each emergency medical services agency to measure response times starting from the time a call for emergency medical services is received until the time (i) appropriate emergency medical services personnel are responding and (ii) appropriate emergency medical services personnel arrive on the scene, and requirements for emergency medical services agencies to collect and report such data to the Director of the Office of Emergency Medical Services, who shall compile such information and make it available to the public, upon request;
    9. Enforcement provisions, including, but not limited to, civil penalties that the Commissioner may assess against any emergency medical services agency or other entity found to be in violation of any of the provisions of this article or any regulation promulgated under this article. All amounts paid as civil penalties for violations of this article or regulations promulgated pursuant thereto shall be paid into the state treasury and shall be deposited in the emergency medical services special fund established pursuant to § 46.2-694, to be used only for emergency medical services purposes; and
    10. Procedures for when emergency medical services agencies in medically underserved areas as defined by the Board may transport patients to 24-hour urgent care facilities or appropriate medical care facilities other than hospitals. The regulations shall include provisions for what constitutes a medically underserved area, cases appropriate for transferring a patient to a medical facility other than a hospital, and other information deemed relevant by the Board.
  2. The Board shall classify emergency medical services agencies and emergency medical services vehicles by type of service rendered and shall specify the medical equipment, the supplies, the vehicle specifications, and the emergency medical services personnel required for each classification.
  3. In formulating its regulations, the Board shall consider the current Minimal Equipment List for Ambulances adopted by the Committee on Trauma of the American College of Surgeons.

History. 1996, c. 899; 1997, c. 248; 1998, cc. 803, 854; 2001, c. 466; 2003, c. 1020; 2005, c. 921; 2006, c. 194; 2015, cc. 502, 503; 2020, c. 930.

Editor’s note.

Acts 2020, c. 930 was codified as subdivision A 10 of this section at the direction of the Virginia Code Commission.

The 2001 amendments.

The 2001 amendment by c. 466, in subsection A, deleted “and” at the end of subdivision 5, inserted “and” at the end of subdivision 6 and added subdivision 7.

The 2003 amendments.

The 2003 amendment by c. 1020 rewrote subdivision A 7, which formerly read: “Requirements, developed in consultation with the Emergency Medical Services Advisory Board, which allow the possession and administration of epinephrine or a medically accepted equivalent by emergency medical services personnel and that develop appropriate training and education qualifications to carry out such function.”

The 2005 amendments.

The 2005 amendment by c. 921 inserted “training” in subdivision A 5, added subdivisions A 8 and A 9, and made a related change.

The 2006 amendments.

The 2006 amendment by c. 194 added the language beginning “and authorization procedures” at the end of subdivision A 7.

The 2015 amendments.

The 2015 amendments by cc. 502 and 503 are identical, and rewrote the section.

§ 32.1-111.4:1. State Emergency Medical Services Advisory Board; purpose; membership; duties; reimbursement of expenses; staff support.

  1. There is hereby created in the executive branch the State Emergency Medical Services Advisory Board for the purpose of advising the Board concerning the administration of the statewide emergency medical services system and emergency medical services vehicles maintained and operated to provide transportation to persons requiring emergency medical treatment and for reviewing and making recommendations on the Statewide Emergency Medical Services Plan. The Advisory Board shall be composed of 28 members appointed by the Governor as follows: one representative each from the Virginia Municipal League, Virginia Association of Counties, Virginia Hospital and Healthcare Association, and each of the 11 regional emergency medical services councils; one member each from the Medical Society of Virginia, Virginia Chapter of the American College of Emergency Physicians, Virginia Chapter of the American College of Surgeons, Virginia Chapter of the American Academy of Pediatrics, Emergency Nurses Association or the Virginia Nurses’ Association, Virginia State Firefighters Association, Virginia Fire Chiefs Association, Virginia Ambulance Association, Virginia Association of Governmental Emergency Medical Services Administrators, and Virginia Association of Public Safety Communications Officials; two representatives of the Virginia Association of Volunteer Rescue Squads, Inc.; one Virginia professional firefighter; and one consumer who shall not be involved in or affiliated with emergency medical services in any capacity. Each organization and group shall submit three nominees from among which the Governor may make appointments. Of the three nominees submitted by each of the regional emergency medical services councils, at least one nominee shall be a representative of providers of prehospital care. Any person appointed to the Advisory Board shall be a member of the organization that he represents. To ensure diversity in the organizations and groups represented on the Advisory Board, the Governor may request additional nominees from the applicable organizations and groups. However, the Governor shall not be bound to make any appointment from among any nominees recommended by such organizations and groups.The members of the Advisory Board shall not be eligible to receive compensation; however, the Department shall provide funding for the reimbursement of expenses incurred by members of the Advisory Board in the performance of their duties.
  2. Appointments shall be staggered as follows: nine members for a term of two years, nine members for a term of three years, and 10 members for a term of four years. Thereafter, appointments shall be for terms of three years, except an appointment to fill a vacancy, which shall be for the unexpired term. Appointments shall be in a manner to preserve insofar as possible the representation of the specified groups. No member shall serve more than two successive terms. No person representing any organization or group named in subsection A who has served as a member of the Advisory Board for two or more successive terms for any period or for six or more consecutive years shall be nominated for appointment or appointed to the Advisory Board unless at least three consecutive years have elapsed since the person has served on the Advisory Board.The chairman shall be elected from the membership of the Advisory Board for a term of one year and shall be eligible for reelection. The Advisory Board shall meet at least four times annually at the call of the chairman or the Commissioner.
  3. The Advisory Board shall:
    1. Advise the Board on the administration of this article;
    2. Review and make recommendations for the Statewide Emergency Medical Services Plan and any revisions thereto; and
    3. Review, on a schedule as it may determine, reports on the status of all aspects of the statewide emergency medical services system, including the Financial Assistance and Review Committee, the Rescue Squad Assistance Fund, the regional emergency medical services councils, and the emergency medical services vehicles, submitted by the Office of Emergency Medical Services.
  4. The Advisory Board shall establish an Advisory Board Executive Committee to assist in the work of the Advisory Board. The Advisory Board Executive Committee shall, in addition to those duties of the Advisory Board Executive Committee established by the Advisory Board, review the annual financial report of the Virginia Association of Volunteer Rescue Squads, as required by § 32.1-111.13 .
  5. The Office of Emergency Medical Services shall provide staff support to the Advisory Board.

History. 2015, cc. 502, 503.

§ 32.1-111.4:2. Regional emergency medical services councils.

The Board shall designate regional emergency medical services councils that shall be authorized to receive and disburse public funds. Each such council shall be charged with the development and implementation of an efficient and effective regional emergency medical services delivery system.

The Board shall review those agencies that were the designated regional emergency medical services councils. The Board shall, in accordance with the standards established in its regulations, review and may renew or deny applications for such designations every three years. In its discretion, the Board may establish conditions for renewal of such designations or may solicit applications for designation as a regional emergency medical services council.

Each regional emergency medical services council shall include, if available, representatives of the participating local governments, fire protection agencies, law-enforcement agencies, emergency medical services agencies, hospitals, licensed practicing physicians, emergency care nurses, mental health professionals, emergency medical services personnel, and other appropriate allied health professionals.

Each regional emergency medical services council shall adopt and revise as necessary a regional emergency medical services plan in cooperation with the Board.

The designated regional emergency services councils shall be required to match state funds with local funds obtained from private or public sources in the proportion specified in the regulations of the Board. Moneys received directly or indirectly from the Commonwealth shall not be used as matching funds. A local governing body may choose to appropriate funds for the purpose of providing matching grant funds for any designated regional emergency medical services council. However, this section shall not be construed to place any obligation on any local governing body to appropriate funds to any such council.

The Board shall promulgate, in cooperation with the Advisory Board, regulations to implement this section, which shall include, but not be limited to, requirements to ensure accountability for public funds, criteria for matching funds, and performance standards.

History. 2015, cc. 502, 503.

Editor’s note.

Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 296 E, effective for the biennium ending June 30, 2022, provides: “Notwithstanding any other provision of law or regulation, the Board of Health shall not modify the geographic or designated service areas of designated regional emergency medical services councils in effect on January 1, 2008, or make such modifications a criterion in approving or renewing applications for such designation or receiving and disbursing state funds.”

§ 32.1-111.4:3. Provision of emergency medical services.

  1. Any county, city, or town may provide emergency medical services to its citizens by (i) establishing an emergency medical services agency as a department of government pursuant to § 32.1-111.4:6 or (ii) contracting with or providing for the provision of emergency medical services by an emergency medical services agency established pursuant to § 32.1-111.4:7 .
  2. In cases in which a county, city, or town elects to contract with or provide for emergency medical services by an emergency medical services agency pursuant to clause (ii) of subsection A, the emergency medical services agency shall be deemed to be an instrumentality of the county, city, or town and, as such, exempt from suit for damages done incident to the provision of emergency medical services therein unless the emergency medical services agency is a private, for-profit emergency medical services agency.

History. 2015, cc. 502, 503.

§ 32.1-111.4:4. Emergency medical services personnel and equipment may in emergencies go or be sent beyond territorial limits.

Whenever the necessity arises during any actual or potential emergency resulting from fire, personal injury, or other public disaster, the emergency medical services personnel of any county, city, or town may, together with all necessary equipment, lawfully go or be sent beyond the territorial limits of such county, city, or town to any point within or without the Commonwealth to assist in meeting such emergency.

In such event, the acts performed by such fire or emergency medical services personnel and the expenditures made for such purpose by such county, city, or town shall be deemed conclusively to be for a public and governmental purpose, and all of the immunities from liability enjoyed by a county, city, or town when acting through its emergency medical services personnel for a public or governmental purpose within its territorial limits shall be enjoyed by it to the same extent when such county, city, or town is so acting, under this section or under other lawful authority, beyond its territorial limits.

Emergency medical services personnel of any county, city, or town, when acting hereunder or under other lawful authority beyond the territorial limits of such county, city, or town, shall have all the immunities from liability and exemptions from laws, ordinances, and regulations and shall have all of the pension, relief, disability, workers’ compensation, and other benefits enjoyed by them while performing their respective duties.

History. 2015, cc. 502, 503.

§ 32.1-111.4:5. Contracts of counties, cities, and towns to furnish emergency medical services; public liability insurance to cover claims arising out of mutual aid agreements.

  1. The governing body of any city or town may, in its discretion, authorize or require the emergency medical services agency thereof to render aid in cases of actual or potential medical emergencies occurring beyond its limits, may prescribe the conditions under which such aid may be rendered, and may enter into contracts with nearby, adjacent, or adjoining counties and cities, within or without the Commonwealth, including the District of Columbia, for rendering aid in the provision of emergency medical services in such counties, cities, or any district, or sanitary district thereof or in the District of Columbia, on such terms as may be agreed upon by such governing body and the governing body of the District of Columbia or of such counties and cities, or districts, including sanitary districts, provided that each of the parties to such agreement may contract as follows: (i) waive any and all claims against all the other parties thereto that may arise out of their activities outside their respective jurisdictions under such agreement; (ii) indemnify and save harmless the other parties to such agreement from all claims by third parties for property damage or personal injury that may arise out of the activities of the other parties to such agreement outside their respective jurisdictions under such agreement. When the emergency medical services agency of any city or town is operating under such permission or contracts on any call beyond the corporate limits of the city or town, it shall be deemed to be operating in a governmental capacity, and subject only to such liability for injuries as it would be if it were operating within the corporate limits of such city or town.
  2. Any county, city, or town may contract with the federal or state government to provide emergency medical services to federal or state property located within or without the boundaries of the county, city, or town. In the absence of a written contract, any acts performed and all expenditures made by a county, city, or town in providing emergency medical services to property owned by the federal government shall be deemed conclusively to be for a public and governmental purpose, and all of the immunities from liability enjoyed by a county, city, or town when acting through its emergency medical services personnel for a public or governmental purpose within or without its territorial limits shall be enjoyed by it to the same extent when such county, city, or town is so acting, under the provisions of this section or under other lawful authority.Emergency medical services personnel of any county, city, or town when acting hereunder, or under other lawful authority, shall have all of the immunities from liability and exemptions from laws, ordinances, and regulations and shall have all of the pension, relief, disability, workers’ compensation, and other benefits enjoyed by them while performing their respective duties. The amount of compensation to the county, city, or town pursuant to the contract shall be a matter within the sole discretion of the governing body of the county, city, or town.
  3. The governing body of any county adjoining or near any county, city, or town, within or without the Commonwealth, including the District of Columbia, having and maintaining emergency medical services equipment may contract with any such county, city, or town, upon such terms as such governing body may deem proper, for responding to medical emergencies in such county, city, or town and may prescribe the terms and conditions upon which such services may be provided on privately owned property in the county, city, or town and may raise funds with which to pay for such services, by levying and collecting annually, at such rates as such governing body may deem sufficient, a special tax upon the property in such county, or in any magisterial district thereof, subject to local taxation.
  4. The governing body of any county, city, or town in the Commonwealth is authorized to procure or extend the necessary public liability insurance to cover claims arising out of mutual aid agreements executed with other counties, cities, or towns outside the Commonwealth, including the District of Columbia.

History. 2015, cc. 502, 503.

§ 32.1-111.4:6. Establishment of an emergency medical services agency as a department of local government.

  1. The governing body of any county, city, or town may establish an emergency medical services agency as a department of government and may designate it by any name consistent with the names of its other governmental units. The head of such emergency medical services agency shall be known as “the emergency medical services agency chief” or “EMS chief.” As many other officers and employees may be employed in such emergency medical services agency as the governing body may approve.
  2. An emergency medical services agency established pursuant to subsection A may consist of government-employed emergency medical services personnel, volunteer emergency medical services personnel, or both. If an emergency medical services agency established pursuant to this section includes volunteer emergency medical services personnel, such volunteer emergency medical services agency shall be deemed an instrumentality of the county, city, or town and, as such, exempt from suit for damages done incident to providing emergency medical services to the county, city, or town.
  3. The governing body of any county, city, or town may empower an emergency medical services agency established therein pursuant to this section to make bylaws to promote its objects consistent with the laws of the Commonwealth and ordinances of the county, city, or town and may provide for the compensation of the officers and employees of such agency.
  4. All check stubs or time cards purporting to be a record of time spent on the job by emergency medical services personnel employed by an emergency medical services agency established pursuant to this section shall record all hours of employment, regardless of how spent. All check stubs or pay records purporting to show the hourly compensation of emergency medical services personnel employed by an emergency medical services agency established pursuant to this section shall show the actual hourly wage to be paid. Nothing in this section shall require the showing of such information on check stubs, time cards, or pay records; however, if such information is shown, the information shall be in compliance with this section.

History. 2015, cc. 502, 503.

§ 32.1-111.4:7. Establishment of an emergency medical services agency as a nongovernmental entity; dissolution.

  1. Any number of persons wishing to provide emergency medical services may establish an emergency medical services agency by (i) recording a writing stating the formation of such company, with the names of the members thereof thereto subscribed in the court of the county or city wherein such agency shall be located, (ii) complying with such local ordinances as may exist related to establishment of an emergency medical services agency, and (iii) obtaining a valid emergency medical services agency license from the Office of Emergency Medical Services together with such emergency medical services vehicle permits from the Office of Emergency Medical Services as the Office of Emergency Medical Services may require. The principal officer of such emergency medical services agency shall be known as “the emergency medical services agency chief” or “EMS chief.”
  2. The members of an emergency medical services agency established pursuant to subsection A may make regulations for effecting its objects consistent with the laws of the Commonwealth; the ordinances of the county, city, or town; and the bylaws of the emergency medical services agency thereof.
  3. In every county, city, or town in which an emergency medical services agency is established pursuant to this section, there shall be appointed, at such time and in such manner as the governing body of such county, city, or town in which the emergency medical services agency is located may prescribe, an emergency medical services agency chief and as many other officers of the emergency medical services agency as such governing body may direct.
  4. An emergency medical services agency established pursuant to this section may be dissolved when the local governing body of the county, city, or town in which the emergency medical services agency is located determines that the emergency medical services agency has failed, for three months successively, to have or keep in good and serviceable condition emergency medical services vehicles and equipment and other proper implements, or when the governing body of the county, city, or town for any reason deems it advisable.
  5. Upon dissolution of an emergency medical services agency established pursuant to this section, any property that was in the possession of such emergency medical services agency and that was purchased using public funds shall be offered to a city or county served by the emergency medical services agency to be used for the public good.

History. 2015, cc. 502, 503; 2020, c. 946.

The 2020 amendments.

The 2020 amendment by c. 946 added subsection E.

CASE NOTES

Dissolution not proper under this section. —

Circuit court erred in finding that the Board of County Supervisors of Prince William County, Virginia could dissolve the corporate status of the rescue squad pursuant to this section since the rescue squad was not an agency established pursuant to that Code section but was established under Va. Code Title 13.1 as a private, nonstock corporation. Dumfries-Triangle Rescue Squad, Inc. v. Bd. of County Supervisors, 299 Va. 226 , 849 S.E.2d 117, 2020 Va. LEXIS 123 (2020).

§ 32.1-111.4:8. Ordinances as to emergency medical services agencies.

The governing body of any county, city, or town in which an emergency medical services agency is established pursuant to § 32.1-111.4:6 or 32.1-111.4:7 may make such ordinances in relation to the powers and duties of emergency medical services agencies and emergency medical services agency chiefs or other officers of such emergency medical services agencies as it may deem proper.

History. 2015, cc. 502, 503.

§ 32.1-111.5. Certification and recertification of emergency medical services providers; appeals process.

  1. The Board shall prescribe by regulation the qualifications required for certification of emergency medical services providers, including those qualifications necessary for authorization to follow Do Not Resuscitate Orders pursuant to § 54.1-2987.1. Such regulations shall include criteria for determining whether an applicant’s relevant practical experience and didactic and clinical components of education and training completed during his service as a member of any branch of the armed forces of the United States may be accepted by the Commissioner as evidence of satisfaction of the requirements for certification.
  2. Each person desiring certification as an emergency medical services provider shall apply to the Commissioner upon a form prescribed by the Board. Upon receipt of such application, the Commissioner shall cause the applicant to be examined or otherwise determined to be qualified for certification. When determining whether an applicant is qualified for certification, the Commissioner shall consider and may accept relevant practical experience and didactic and clinical components of education and training completed by an applicant during his service as a member of any branch of the armed forces of the United States as evidence of satisfaction of the requirements for certification. If the Commissioner determines that the applicant meets the requirements for certification as an emergency medical services provider, he shall issue a certificate to the applicant. An emergency medical services provider certificate so issued shall be valid for a period required by law or prescribed by the Board. Any certificate so issued may be suspended at any time that the Commissioner determines that the holder no longer meets the qualifications prescribed for such emergency medical services provider. The Commissioner may temporarily suspend any certificate without notice, pending a hearing or informal fact-finding conference, if the Commissioner finds that there is a substantial danger to public health or safety. When the Commissioner has temporarily suspended a certificate pending a hearing, the Commissioner shall seek an expedited hearing in accordance with the Administrative Process Act (§ 2.2-4000 et seq.).
  3. The Board shall prescribe by regulation procedures and the qualifications required for the recertification of emergency medical services providers.
  4. The Commissioner may issue a temporary certificate when he finds that it is in the public interest. A temporary certificate shall be valid for a period not exceeding 90 days.
  5. The Board shall require each person who, on or after July 1, 2013, applies to be a volunteer with or employee of an emergency medical services agency to submit fingerprints and provide personal descriptive information to be forwarded along with his fingerprints through the Central Criminal Records Exchange to the Federal Bureau of Investigation, for the purpose of obtaining his criminal history record information. The Central Criminal Records Exchange shall forward the results of the state and national records search to the Commissioner or his designee, who shall be a governmental entity. If an applicant is denied employment or service as a volunteer because of information appearing on his criminal history record and the applicant disputes the information upon which the denial was based, the Central Criminal Records Exchange shall, upon written request, furnish to the applicant the procedures for obtaining a copy of the criminal history record from the Federal Bureau of Investigation.
  6. Notwithstanding the provisions of subsection E, an emergency medical services agency located in a locality having a local ordinance adopted in accordance with §§ 15.2-1503.1 and 19.2-389 shall require an applicant for employment or to serve as a volunteer to submit fingerprints and provide personal descriptive information to be provided directly to the Central Criminal Records Exchange to be forwarded to the Federal Bureau of Investigation for the purpose of obtaining criminal history records information for the applicant. The Central Criminal Records Exchange shall, upon receipt of an applicant’s records or notification that no records exists, forward the results of the state and national records search to the county, city or town manager or chief law-enforcement officer for the locality in which the agency is located, or his designee, who shall be associated with a governmental entity. Upon receipt of the results of the state and national criminal history records search, the county, city or town manager or chief law-enforcement officer for the locality, or his designee, shall notify the Office of Emergency Medical Services regarding the applicant’s eligibility for employment or to serve as a volunteer. Information provided to the Office of Emergency Medical Services shall be limited to notification as to whether the applicant is eligible for employment or to serve as a volunteer in accordance with requirements related to disqualifying offenses set forth in regulations of the Board and shall not include information regarding whether the applicant has been found ineligible for employment or to serve as a volunteer due to additional exclusionary criteria established by the locality. Whenever fingerprints are submitted to both authorities and it is deemed feasible and practical by the Central Criminal Records Exchange it shall forward the results of the fingerprint based state and national records search to the county, city or town manager or chief law enforcement officer for the locality in which the agency is located, or his designee, who shall be associated with a governmental entity, and to the Office of Emergency Medical Services.

History. 1996, c. 899; 1997, c. 248; 1998, cc. 803, 854; 2008, c. 660; 2011, c. 497; 2013, cc. 72, 176, 331, 407; 2015, cc. 362, 502, 503.

Cross references.

As to dissemination of juvenile record information, see § 19.2-389.1 .

Editor’s note.

Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 296 F, effective for the biennium ending June 30, 2022, provides: “Notwithstanding any other provision of law or regulation, funds from the $0.25 of the $4.25 for Life fee shall be provided for the payment of the initial basic level emergency medical services certification examination provided by the National Registry of Emergency Medical Technicians (NREMT). The Board of Health shall determine an allocation methodology upon recommendation by the State EMS Advisory Board to ensure that funds are available for the payment of initial NREMT testing and distributed to those individuals seeking certification as an Emergency Medical Services provider in the Commonwealth of Virginia.”

The 2008 amendments.

The 2008 amendment by c. 660 added the last two sentences to subsection B.

The 2011 amendments.

The 2011 amendment by c. 497, in subsection A, added the last sentence; and in subsection B, added the third sentence, and in the fourth sentence, substituted “meets the requirements for certification as emergency medical services personnel” for “meets the requirements of such regulations.”

The 2013 amendments.

The 2013 amendments by cc. 72 and 331 are identical, and substituted “emergency medical services providers” for “emergency medical care attendants” in the first sentence of subsection A; in subsection B, substituted “an emergency medical services provider” for “emergency medical services personnel” in the first and fourth sentences, substituted “emergency medical services provider” for “emergency medical services personnel” at the beginning of the fifth sentence and at the end of the sixth sentence, and deleted the former sixth sentence, which read: “The certificates may be renewed after successful reexamination of the holder.”; rewrote subsection C; and made a minor stylistic change.

The 2013 amendments by cc. 176 and 407 are identical, and made minor stylistic changes in subsections B and D; and added subsection E.

The 2015 amendments.

The 2015 amendment by c. 362 added subsection F.

The 2015 amendments by cc. 502 and 503 are identical and substituted “The Board” for “The State Board of Health” in subsection E.

§ 32.1-111.5:1. Emergency medical services personnel mental health awareness training.

  1. Each emergency medical services agency shall develop curricula for mental health awareness training for its personnel, which shall include training regarding the following:
    1. Understanding signs and symptoms of cumulative stress, depression, anxiety, exposure to acute and chronic trauma, compulsive behaviors, and addiction;
    2. Combating and overcoming stigmas;
    3. Responding appropriately to aggressive behaviors such as domestic violence and harassment; and
    4. Accessing available mental health treatment and resources.
  2. Any emergency medical services agency may develop the mental health awareness training curricula in conjunction with other emergency medical services agencies or emergency medical services personnel stakeholder groups or may use any training program, developed by any entity, that satisfies the criteria set forth in subsection A.
  3. Emergency medical services personnel who receive mental health awareness training in accordance with this section shall receive appropriate continuing education credits from the Office of Emergency Medical Services.

History. 2018, cc. 456, 658.

§ 32.1-111.6. Emergency medical services agency license; emergency medical services vehicle permits.

  1. No person shall operate, conduct, maintain, or profess to be an emergency medical services agency without a valid license issued by the Commissioner for such emergency medical services agency and a valid permit for each emergency medical services vehicle used by such emergency medical services agency.
  2. The Commissioner shall issue an original or renewal license for an emergency medical services agency or renewal permit for an emergency medical services vehicle that meets all requirements set forth in this article and in the regulations of the Board, upon application, on forms and according to procedures established by the Board. Licenses and permits shall be valid for a period specified by the Board, not to exceed two years.
  3. The Commissioner may issue (i) temporary licenses for emergency medical services agencies not meeting required standards, valid for a period not to exceed 60 days, and (ii) temporary permits for emergency medical services vehicles not meeting required standards, valid for a period of 90 days from the end of the month of issue, when the public interest will be served thereby.
  4. The issuance of a license or permit in accordance with this section shall not be construed to authorize any emergency medical services agency to operate any emergency medical services vehicle without a franchise, license, or permit in any county or municipality that has enacted an ordinance pursuant to § 32.1-111.14 making it unlawful to do so.
  5. The word “ambulance” shall not appear on any vehicle, vessel, or aircraft that does not hold a valid permit as an emergency medical services vehicle.

History. 1996, c. 899; 2015, cc. 502, 503; 2018, c. 279.

The 2015 amendments.

The 2015 amendments by cc. 502 and 503 are identical and inserted “emergency medical services” preceding “agency” or variants and substituted “license” for “permit” or variants throughout the section; inserted “a valid permit” in subsection A; inserted “renewal permit for an” and substituted “Licenses and permits” for “Permits” in subsection B; inserted “temporary permits for” in subsection C; inserted “license or” and substituted “in accordance with this section” for “hereunder” in subsection D; and added subsection E.

The 2018 amendments.

The 2018 amendment by c. 279 rewrote subsection C, which formerly read “The Commissioner may issue temporary licenses for emergency medical services agencies or temporary permits for emergency medical services vehicles not meeting required standards, valid for a period not to exceed 60 days, when the public interest will be served thereby.”

OPINIONS OF THE ATTORNEY GENERAL

“Emergency medical services agency.” —

A locality may use Four-for-Life funds to provide funding for its local fire department pursuant to § 46.2-694. See opinion of Attorney General to The Honorable Riley E. Ingram, Member, House of Delegates, 18-017, (9/21/2018).

§ 32.1-111.6:1. Commissioner to issue certain emergency medical services licenses or permits.

The Commissioner of Health shall issue licenses to emergency medical services agencies and permits for emergency medical services vehicles as needed to ensure compliance with federal regulations relating to reimbursement of emergency medical services vehicle transportation services pursuant to Medicare and Medicaid.

History. 2004, c. 139; 2015, cc. 502, 503.

Editor’s note.

Acts 2004, c. 139, cl. 1 was codified as this section at the direction of the Virginia Code Commission.

The 2015 amendments.

The 2015 amendments by cc. 502 and 503 are identical and substituted “issue licenses to” for “issue permits or licenses for”; inserted “permits for emergency medical services” preceding “vehicles”; and substituted “emergency medical services vehicle transportation” for “ambulance” following “of.”

OPINIONS OF THE ATTORNEY GENERAL

Billing for emergency services. —

Volunteer fire departments and rescue squads lack authority, either statutory or contractual, to bill home or automobile owners, or their insurance companies, for responding to a fire emergency. See opinion of Attorney General to The Honorable Clarence E. “Bud” Phillips, Member, Virginia House of Delegates, 11-052, 2011 Va. AG LEXIS 29 (5/13/11).

§ 32.1-111.7. Inspections.

Each emergency medical services agency for which a license has been issued and emergency medical services vehicle for which a permit has been issued shall be inspected as often as the Commissioner deems necessary and a record thereof shall be maintained. However, no emergency medical services agency or vehicle shall receive additional inspections until every other emergency medical services agency or vehicle in the Commonwealth has been inspected, unless the additional inspections are (i) necessary to follow up on a preoperational inspection or one or more violations, (ii) required by a uniformly applied risk-based schedule established by the Department, (iii) necessary to investigate a complaint regarding the emergency medical services agency or vehicle, or (iv) otherwise deemed necessary by the Commissioner or his designee to protect the health and safety of the public. Each such emergency medical services agency or emergency medical services vehicle, its medical supplies and equipment, and the records of its maintenance and operation shall be available at all reasonable times for inspection.

History. 1996, c. 899; 2015, cc. 502, 503; 2017, c. 465.

The 2015 amendments.

The 2015 amendments by cc. 502 and 503 are identical, and inserted “emergency medical services” preceding “agency” or “vehicle” throughout the section and substituted “for which a license has been issued and” for “and each” in the first sentence.

The 2017 amendments.

The 2017 amendment by c. 465 inserted the second sentence.

§ 32.1-111.8. Revocation and suspension of licenses and permits.

Whenever an emergency medical services agency or emergency medical services vehicle owned or operated by an emergency medical services agency is in violation of any provision of this article or any applicable regulation, the Commissioner shall have power to revoke or suspend such emergency medical services agency’s license and the permits of all emergency medical services vehicles owned or operated by the emergency medical services agency. The Commissioner may temporarily suspend any license for an emergency medical services agency or permit for an emergency medical services vehicle without notice, pending a hearing or informal fact-finding conference, if the Commissioner finds that there is a substantial danger to public health or safety. When the Commissioner has temporarily suspended a license or permit pending a hearing, the Commissioner shall seek an expedited hearing in accordance with the Administrative Process Act (§ 2.2-4000 et seq.).

History. 1996, c. 899; 2008, c. 660; 2015, cc. 502, 503.

The 2008 amendments.

The 2008 amendment by c. 660 added the last two sentences.

The 2015 amendments.

The 2015 amendments by cc. 502 and 503 are identical and inserted “emergency medical services” preceding “agency” throughout the section; substituted “license” for “permit” in the first and second sentences; substituted “an emergency medical services agency or permit for an” for “agencies or” in the second sentence; substituted “vehicle” for “vehicles” preceding “without”; and made stylistic changes.

§ 32.1-111.9. Applications for variances or exemptions.

  1. Prior to the submission of (i) an application for a variance to the Commissioner or (ii) an application for an exemption from any regulations promulgated pursuant to this chapter to the Board by an emergency medical services agency that holds a valid license issued by the Commissioner, the application shall be reviewed by the governing body or chief administrative officer of the jurisdiction in which the principal office of the emergency medical services agency is located. The recommendation of the governing body or chief administrative officer of the jurisdiction regarding the variance or exemption shall be submitted with the application, and the Commissioner or Board, whichever is appropriate, shall consider that recommendation for the purposes of granting or denying the variance or exemption.
  2. An individual who meets the definition of “emergency medical services personnel” in § 32.1-111.1 who is certified as an emergency medical services provider or is a candidate for certification by the Office of Emergency Medical Services shall not be required to submit an application for a variance or exemption to the local governing body or chief administrative officer of the jurisdiction for review, but shall submit the application for a variance or exemption to the Operational Medical Director and the emergency medical services agency chief with which he is affiliated, and shall include the recommendations of such Operational Medical Director and the emergency medical services agency chief together with the application for a variance or exemption. The recommendation of the Operational Medical Director and the emergency medical services agency chief with which the emergency medical services personnel is affiliated regarding the variance or exemption shall be submitted with the application and the Commissioner or Board, whichever is appropriate, shall consider that recommendation for the purposes of granting or denying the variance or exemption.
  3. An emergency medical services provider who is not affiliated with an emergency medical services agency shall submit an application for a variance or exemption to the Commissioner or Board, whichever is appropriate, and the Commissioner or Board, whichever is appropriate, shall consider the application for the purposes of granting or denying the variance or exemption. The Commissioner or Board, whichever is appropriate, may require an emergency medical services provider who is not affiliated with an emergency medical services agency to submit additional case-specific endorsements or supporting documentation as part of an application for a variance or exemption.
  4. The applicant shall have the right to appeal any denial by the Commissioner or Board of an application for a variance or exemption pursuant to the Administrative Process Act (§ 2.2-4000 et seq.).

History. 1996, c. 899; 2008, c. 61; 2011, c. 90; 2015, cc. 502, 503.

The 2008 amendments.

The 2008 amendment by c. 61 substituted “an agency, entity, or provider licensed or certified by the Office of Emergency Medical Services” for “a volunteer rescue squad” and “or legal residence of the agency, entity, or provider licensed or certified by the Office of Emergency Medical Services” for “of the volunteer rescue squad” in the first sentence of the first paragraph.

The 2011 amendments.

The 2011 amendment by c. 90 rewrote the former first paragraph, which read: “Prior to the submission to the Commissioner of Health by an agency, entity, or provider licensed or certified by the Office of Emergency Medical Services of an application for a variance, or to the Board of Health for an exemption from any regulations promulgated pursuant to this chapter, the application shall be reviewed by the governing body of the jurisdiction in which the principal office or legal residence of the agency, entity, or provider licensed or certified by the Office of Emergency Medical Services is located. The recommendation of the governing body regarding the variance or exemption shall be submitted with the application; and, absent compelling reasons to the contrary, the Commissioner or Board, whichever is appropriate, shall adopt that recommendation for the purposes of granting or denying the variance or exemption”; added the subsection A designation; added subsections B and C; and designated the former last sentence as subsection D.

The 2015 amendments.

The 2015 amendments by cc. 502 and 503 are identical and rewrote the section.

§ 32.1-111.9:1. Out-of-state emergency medical services providers.

  1. Notwithstanding the provisions of this article or any other law or regulation to the contrary, an emergency medical services provider who holds a valid license or certification in a state that borders the Commonwealth may provide emergency medical services in the Commonwealth if (i) such services are provided at a widely attended event open to the public; (ii) due to the expected number of attendees, the anticipated need for emergency medical services at the event is beyond the capacity of local emergency medical services providers; (iii) the organizers of the event notify the Commissioner at least 10 business days prior to the event that out-of-state emergency medical services providers will be onsite at the event; and (iv) the out-of-state medical services providers provide to the Commissioner relevant licensure or certification information and any other information deemed necessary by the Commissioner.
  2. The provisions of this section shall not be construed to supersede or affect the provisions of Chapter 18 (§ 32.1-371 ) or any other interstate agreement regarding emergency medical services providers. Any out-of-state emergency medical services provider who holds a license or certification in a state that has entered into an interstate compact of which the Commonwealth is a member or any other interstate agreement with the Commonwealth regarding emergency medical services providers shall be governed by the provisions of such compact or agreement.

History. 2018, c. 196.

§§ 32.1-111.10, 32.1-111.11. Repealed by Acts 2015, cc. 502 and 503, cl. 2.

Editor’s note.

Former § 32.1-111.10 , pertaining to the purpose, membership, duties, reimbursement of expenses and staff support of the State Emergency Medical Services Advisory Board, derived from 1996, cc. 899, 1017; 1997, c. 446; 1999, c. 1000; 2003, cc. 836, 852, 1033; 2005, cc. 112, 506; 2012, c. 502.

Former § 32.1-111.11, pertaining to regional emergency medical services councils, derived from 1996, c. 899; 2009, cc. 222, 269; 2012, c. 418.

§ 32.1-111.12. Virginia Rescue Squads Assistance Fund; disbursements.

  1. For the purpose of providing financial assistance to emergency medical services organizations in the Commonwealth, of providing the requisite training for emergency medical services personnel, and of purchasing equipment needed by such organizations, there is hereby created in the Department of the Treasury a special nonreverting fund that shall be known as the Virginia Rescue Squads Assistance Fund. The Fund shall be established on the books of the Comptroller, and any moneys remaining in such Fund at the end of each fiscal year shall not revert to the general fund but shall remain in the Fund. Interest earned on such moneys shall remain in the Fund and be credited to it. The Fund shall consist of any moneys appropriated for this purpose by the General Assembly and any other moneys received for such purpose by the Board. On and after July 1, 1996, any such moneys unexpended at the end of a fiscal biennium shall remain in the Fund and shall not revert to the general fund.
  2. In accordance with regulations of the Board, the Commissioner shall disburse and expend the moneys in the Virginia Rescue Squads Assistance Fund. No moneys shall be disbursed directly to any emergency medical services organization unless such organization operates on a nonprofit basis exclusively for the benefit of the general public.

History. 1996, c. 899; 2015, cc. 502, 503.

The 2015 amendments.

The 2015 amendments by cc. 502 and 503 are identical and in subsections A, deleted “rescue squads and other” preceding “emergency,” substituted “services” for “service” preceding “personnel,” deleted “rescue squads and” preceding “organizations”; in subsection B, deleted “rescue squad or other” preceding “emergency” and “squad or” preceding “organization.”

§ 32.1-111.12:01. Financial Assistance and Review Committee; appointment; terms; duties.

  1. For the purposes of administering the Virginia Rescue Squads Assistance Fund as provided in § 32.1-111.12 , there is hereby established the Financial Assistance and Review Committee. The Committee shall be composed of six members who shall be representatives of the regions encompassed by the emergency medical services councils and appointed by the State Emergency Medical Services Advisory Board. To ensure that each regional emergency medical services council is provided an opportunity to serve on the Committee, the Board of Health shall promulgate by regulation, after receiving the Advisory Board’s recommendation, a cycle which provides for rotating geographic representation among the councils.
  2. Members serving on the Financial Assistance and Review Committee on January 1, 1996, shall complete their current terms of office. Thereafter, appointments shall be made for terms of three years or the unexpired portions thereof in a manner to preserve, insofar as possible, the representation of the emergency medical services councils. No member may serve more than two successive terms. The chairman shall be elected from the membership of the Committee for a term of one year and shall be eligible for reelection. The Committee shall meet at least four times annually at the call of the chairman or the Commissioner.
  3. The Financial Assistance and Review Committee shall:
    1. Administer the Rescue Squads Assistance Fund in accordance with the rules and regulations of the State Board of Health as shall be established for the Fund;
    2. Review the Rescue Squads Assistance Fund grant applications from eligible emergency medical services agencies and make recommendations on the funding of such grant applications to the Commissioner of Health; and
    3. Report biannually, after each funding cycle, the number of grant applications received, the total costs of grant applications funded, the number of grant applications denied funding, the total costs of grant applications denied funding, and the nature of the denied requests and the reasons for denying funding, to the State Emergency Medical Services Advisory Board and the Commissioner.

History. 1996, c. 998.

Editor’s note.

Acts 1996, c. 998, cl. 1, enacted a new section, § 32.1-114.1, which falls within the span of sections repealed by Acts 1996, c. 899. At the direction of the Code Commission, this enactment has been recodified as § 32.1-111.12:01 , and placed within the span of new sections enacted by Acts 1996, c. 899.

§ 32.1-111.13. Annual financial reports.

The Virginia Association of Volunteer Rescue Squads shall submit an annual financial report on the use of funds received from the special emergency medical services fund to the Advisory Board Executive Committee on such forms and providing such information as may be required by the Advisory Board Executive Committee for such purpose.

History. 1996, c. 899; 2013, c. 517; 2015, cc. 502, 503.

The 2013 amendments.

The 2013 amendment by c. 517 deleted “its” following “the use of,” inserted “received from the special emergency medical services fund,” and inserted “Executive Committee” in two places.

The 2015 amendments.

The 2015 amendments by cc. 502 and 503 are identical and substituted “The” for “Effective on July 1, 1996, the” at the beginning of the paragraph and deleted “State Emergency Medical Services” preceding “Advisory.”

§ 32.1-111.14. Powers of governing bodies of counties, cities, and towns.

  1. Upon finding as fact, after notice and public hearing, that exercise of the powers enumerated below is necessary to assure the provision of adequate and continuing emergency medical services and to preserve, protect and promote the public health, safety and general welfare, the governing body of any county or city is empowered to:
    1. Enact an ordinance making it unlawful to operate any emergency medical services vehicle or class thereof established by the Board in such county or city without having been granted a franchise, license or permit to do so;
    2. Grant franchises, licenses or permits to emergency medical services agencies based within or outside the county or city; however, any emergency medical services agency in operation in any county or city on June 28, 1968, that continues to operate as such, up to and including the effective date of any ordinance adopted pursuant to this section, and that submits to the governing body of the county or city satisfactory evidence of such continuing operation, shall be granted a franchise, license or permit by such governing body to serve at least that part of the county or city in which the agency has continuously operated if all other requirements of this article are met;
    3. Limit the number of emergency medical services vehicles to be operated within the county or city and by any emergency medical services agency;
    4. Determine and prescribe areas of franchised, licensed or permitted service within the county or city;
    5. Fix and change from time to time reasonable charges for franchised, licensed or permitted services;
    6. Set minimum limits of liability insurance coverage for emergency medical services vehicles;
    7. Contract with franchised, licensed or permitted emergency medical services agencies for emergency medical services vehicle transportation services to be rendered upon call of a county or municipal agency or department and for transportation of bona fide indigents or persons certified by the local board of social services to be public assistance or social services recipients; and
    8. Establish other necessary regulations consistent with statutes or regulations of the Board relating to operation of emergency medical services vehicles.
  2. In addition to the powers set forth above, the governing body of any county or city is authorized to provide, or cause to be provided, services of emergency medical services vehicles; to own, operate and maintain emergency medical services vehicles; to make reasonable charges for use of emergency medical services vehicles, including charging insurers for emergency medical services vehicle transportation services as authorized by § 38.2-3407.9; and to contract with any emergency medical services agency for the services of its emergency medical services vehicles.
  3. Any incorporated town may exercise, within its corporate limits only, all those powers enumerated in subsections A and B either upon the request of a town to the governing body of the county wherein the town lies and upon the adoption by the county governing body of a resolution permitting such exercise, or after 180 days’ written notice to the governing body of the county if the county is not exercising such powers at the end of such 180-day period.
  4. No county ordinance enacted, or other county action taken, pursuant to powers granted herein shall be effective within an incorporated town in such county which is at the time exercising such powers until 180 days after written notice to the governing body of the town.
  5. Nothing herein shall be construed to authorize any county to regulate in any manner emergency medical services vehicles owned and operated by a town or to authorize any town to regulate in any manner emergency medical services vehicles owned and operated by a county.
  6. Emergency medical services vehicles operated by a county, city, or town under authority of this section shall be subject to the provisions of this article and to the regulations of the Board.

History. 1996, c. 899; 2002, c. 747; 2005, c. 182; 2015, cc. 502, 503.

The 2002 amendments.

The 2002 amendment by c. 747, effective October 1, 2002, substituted “social services to be public assistance or social services” for “public welfare or social services to be public assistance” in subdivision A 7; and deleted “of this section” following “subsections A and B” in subsection C.

The 2005 amendments.

The 2005 amendment by c. 182 inserted “including charging insurers for ambulance services as authorized by § 38.2-3407.9” in subsection B.

The 2015 amendments.

The 2015 amendments by cc. 502 and 503 are identical and throughout the section, inserted “emergency medical services” preceding “agency” or variants and “license” following “franchise” or variants; inserted “medical” preceding “services” in subsection A; in subdivision A 1, inserted “any” following “operate” and substituted “vehicle or class” for “vehicles or any class”; substituted “emergency medical services vehicle transportation services” for “transportation” preceding “to” in subdivision A 7; substituted “emergency medical services vehicle transportation” for “ambulance” in subsection B; in subsection F, deleted “Any” at the beginning of the paragraph and “adopted thereunder” at the end of the paragraph.

CASE NOTES

Equal protection rights of plaintiff were not violated where reasonable basis existed for municipality’s award of exclusive ambulance service contract to competitor which furthered its legitimate governmental interest in providing high quality service to local citizens. Forest Ambulance Serv., Inc. v. Mercy Ambulance of Richmond, Inc., 952 F. Supp. 296, 1997 U.S. Dist. LEXIS 346 (E.D. Va. 1997).

This section expressly allows municipality to adopt ordinances which set a limit on number of ambulances, and to regulate franchises and fees, even though effect may be anticompetitive. Forest Ambulance Serv., Inc. v. Mercy Ambulance of Richmond, Inc., 952 F. Supp. 296, 1997 U.S. Dist. LEXIS 346 (E.D. Va. 1997).

Ambulance service is governmental function. —

Suit against city was barred by doctrine of sovereign immunity since providing emergency ambulance services was governmental function where taking provisions A and B of this section together, city could not have established emergency ambulance services were it not exercising its police powers and where local government exercises powers delegated or imposed, it performs governmental function. Edwards v. City of Portsmouth, 237 Va. 167 , 375 S.E.2d 747, 5 Va. Law Rep. 1531, 1989 Va. LEXIS 21 (1989) (decided under former § 32.1-156).

CIRCUIT COURT OPINIONS

County had no authority to bill for corporation’s emergency medical services. —

County did not have the express statutory authority or the authority by implication to issue billings for a corporation’s emergency medical services or to collect the proceeds from such billings because § 32.1-111.14 provided that the county could make charges for emergency services vehicles it provided, caused to be provided, or contracted for, but under subsection A of § 32.1-111.14 , that power had not been granted with respect to other agencies to which franchises or permits were granted; the corporation, which was created without county involvement, was an agency that the county did not provide, cause to be provided, or contracted with for its emergency services. County of Campbell v. Altavista Lifesaving & First Aid Crew, Inc., 75 Va. Cir. 491, 2007 Va. Cir. LEXIS 304 (Campbell County Oct. 11, 2007).

Section expressly allows municipality to adopt ordinances. —

Article III, Chapter 10 of the Campbell County, Va., Code complied with subdivision A 2 of § 32.1-111.14 because it granted permits to various fire and rescue organizations in the county in order to allow them to furnish emergency medical services in accordance with § 32.1-111.14 ; the other provisions of Article III were well within the authority of the county to enact ordinances and regulations regulating Emergency Medical Service companies and departments granted by subdivision A 8 of § 32.1-111.14 and § 27-14 . County of Campbell v. Altavista Lifesaving & First Aid Crew, Inc., 75 Va. Cir. 491, 2007 Va. Cir. LEXIS 304 (Campbell County Oct. 11, 2007).

OPINIONS OF THE ATTORNEY GENERAL

Billing for emergency services. —

Section 27-14 does not permit a locality to adopt an ordinance authorizing a volunteer fire department to assess and charge a fee to an individual’s homeowners’ or automobile insurance policy for responding to a fire emergency. See opinion of Attorney General to The Honorable Clarence E. “Bud” Phillips, Member, Virginia House of Delegates, 11-082, 2011 Va. AG LEXIS 55 (7/22/11).

Volunteer fire departments and rescue squads lack authority, either statutory or contractual, to bill home or automobile owners, or their insurance companies, for responding to a fire emergency. See opinion of Attorney General to The Honorable Clarence E. “Bud” Phillips, Member, Virginia House of Delegates, 11-052, 2011 Va. AG LEXIS 29 (5/13/11).

§ 32.1-111.14:1. Repealed by Acts 2003, c. 978, cl. 2, effective April 2, 2003.

Cross references.

As to exemption from liability of persons operating an automated external defibrillator at the scene of an emergency, and training of the public on CPR and automated external defibrillator, see § 8.01-225 .

§ 32.1-111.14:2. Establishment of emergency medical services zones or districts; tax levies.

The governing bodies of the several counties or cities of the Commonwealth may create and establish, by designation on a map of the county or city showing current, official parcel boundaries, or by any other description that is legally sufficient for the conveyance of property or the creation of parcels, emergency medical services zones or districts in such counties or cities within which may be located and established one or more emergency medical services agencies for providing emergency medical services within such zones or districts.

In the event of the creation of such zones or districts in any county or city, the county or city governing body may acquire, in the name of the county or city, real or personal property to be devoted to the uses aforesaid and shall prescribe rules and regulations for the proper management, control, and conduct thereof. Such governing body shall also have authority to contract with, or secure the services of, any individual corporation, organization, or municipal corporation or any volunteer emergency medical services agency or emergency medical services provider for such emergency medical services as may be required.

To raise funds for the purposes aforesaid, the governing body of any county or city in which such zones or districts are established may levy annually a tax on the assessed value of all property, real and personal, within such zones or districts, subject to local taxation, which tax shall be extended and collected as other county or city taxes are extended and collected. However, any property located in Augusta County that has qualified for an agricultural or forestal use-value assessment pursuant to Article 4 (§ 58.1-3229 et seq.) of Chapter 32 of Title 58.1 may not be included within such a zone or district and may not be subject to such tax. In any county or city having a population between 25,000 and 25,500, the maximum rate of tax under this section shall be $0.30 on $100 of assessed value.

The amount realized from such levy shall be kept separate from all other moneys of the county or city and shall be applied to no other purpose than the maintenance and operation of the emergency medical services agencies established pursuant to this section.

History. 2015, cc. 502, 503.

§ 32.1-111.14:3. Exclusion of certain areas from emergency medical services zones or districts and exemption of such areas from certain levies.

The governing body of any county or city having an emergency medical services zone or district created under the provisions of § 32.1-111.14:2 , prior to June 1 of any calendar year, may alter the boundaries of such emergency medical services zone or district for the purpose of excluding an area of any such emergency medical services zone or district that is also within the boundaries of a sanitary district providing emergency medical services or under contract to a sanitary district providing emergency medical services.

Any area excluded from an emergency medical services zone or district as provided by this section shall not be subject to the levy set forth in § 32.1-111.14:2 for the year such area is excluded.

History. 2015, cc. 502, 503.

§ 32.1-111.14:4. Advances by county or city to emergency medical services zone or district; reimbursement; validation of prior advances.

  1. The governing body of any county or city in the Commonwealth may advance funds, not otherwise specifically allocated or obligated, from the general fund to an emergency medical services zone or district to assist the emergency medical services zone or district to exercise the powers set forth in § 32.1-111.14:2 .
  2. Notwithstanding the provisions of any other law, the governing body shall direct the treasurer to reimburse the general fund of the county or city from the proceeds of any funds to the credit of the emergency medical services zone or district, not otherwise specifically allocated or obligated, to the extent that the county or city has made advances to the emergency medical services zone or district from such general fund to assist the emergency medical services zone or district to exercise the powers set forth in § 32.1-111.14:2 .
  3. The advancement of any funds heretofore advanced from the general fund by the governing body of any county or city in the Commonwealth for the benefit of an emergency medical services zone or district in exercising the lawful powers of such emergency medical services zone or district is hereby validated and confirmed.

History. 2015, cc. 502, 503.

§ 32.1-111.14:5. Authority of emergency medical services agency incident commander when operating at an emergency incident; penalty for refusal to obey orders.

Except as provided in § 32.1-111.14:6 , while any emergency medical services personnel are in the process of operating at an emergency incident where there is imminent danger and when emergency medical services personnel are returning to the emergency medical services agency, the incident commander of such emergency medical services agency at that time shall have the authority to (i) maintain order at such emergency incident or its vicinity, (ii) direct the actions of emergency medical services personnel at the incident, (iii) notwithstanding the provisions of §§ 46.2-888 through 46.2-891, keep bystanders or other persons at a safe distance from the incident and emergency equipment, (iv) facilitate the speedy movement and operation of emergency equipment and emergency medical services personnel, and (v) until the arrival of a police officer, direct and control traffic in person or by deputy and facilitate the movement of traffic. The emergency medical services agency incident commander shall display his emergency medical services personnel’s badge or other proper means of identification. Notwithstanding any other provision of law, this authority shall extend to the activation of traffic control signals designed to facilitate the safe egress and ingress of emergency equipment at an emergency medical services agency. Any person refusing to obey the orders of the emergency medical services incident commander at that time is guilty of a Class 4 misdemeanor. The authority granted under the provisions of this section may not be exercised to inhibit or obstruct members of law-enforcement agencies or fire departments or fire companies from performing their normal duties when operating at such emergency incident, nor to conflict with or diminish the lawful authority, duties, and responsibilities of forest wardens, including but not limited to the provisions of Chapter 11 (§ 10.1-1100 et seq.) of Title 10.1. Personnel from the news media, such as the press, radio, and television, when gathering the news may enter at their own risk into the incident area only when the incident commander has deemed the area safe and only into those areas of the incident that do not, in the opinion of the incident commander, interfere with the emergency medical services personnel dealing with such emergencies, in which case the emergency medical services incident commander may order such person from the scene of the emergency incident.

History. 2015, cc. 502, 503.

§ 32.1-111.14:6. Supervision and control of joint services of emergency medical services agencies.

Whenever two or more emergency medical services agencies are called to provide joint services in any district or political subdivision, the incident commander of the first agency to arrive shall have general supervision and control of all such participating agencies until an officer of such district or political subdivision who is otherwise authorized by law to do so shall assume such general supervision and control.

History. 2015, cc. 502, 503.

§ 32.1-111.14:7. Penalty for disobeying emergency medical services agency chief or other officer in command.

If any person at a fire or medical emergency refuses or neglects to obey any order duly given by the individual having command of the incident in accordance with § 32.1-111.14:5 or 32.1-111.14:6 , he shall, upon conviction of such offense, be fined not to exceed $100.

History. 2015, cc. 502, 503.

§ 32.1-111.14:8. Purchase, maintenance, etc., of equipment; donated equipment.

  1. The governing body of every county, city, or town shall have power to provide for the purchase, operation, staffing, and maintenance of suitable equipment for providing emergency medical services in or upon the property of the county, city, or town and of its inhabitants and to prescribe the terms and conditions upon which the same will be used for providing emergency medical services in or upon privately owned property.
  2. Any emergency medical services agency donating equipment for providing emergency medical services to any other emergency medical services agency, which equipment met existing engineering and safety standards at the time of its purchase by the donating entity, shall be immune from civil liability unless the donating entity acted with gross negligence or willful misconduct.
  3. A safety inspection must be completed by a certified emergency medical services vehicle service center and a report designating any deficiencies shall be provided prior to the change in ownership of the donated emergency medical services vehicle.

History. 2015, cc. 502, 503.

§ 32.1-111.14:9. Entry of buildings and premises adjoining during a medical emergency.

  1. The incident commander at a medical emergency, and his subordinates, upon his order or direction, shall have the right at any time of the day or night to enter any building or upon any premises where a medical emergency is in progress, or any building or premises adjacent thereto for the purpose of providing emergency medical services.
  2. The incident commander at a medical emergency, and his subordinates upon his order or direction, shall have the right to remain at the scene of a medical emergency, including remaining in any building or house, for purposes of protecting the property and preventing the public from entry into the premises, until such reasonable time as the owner may resume responsibility for the protection of the property.

History. 2015, cc. 502, 503.

§ 32.1-111.15. Statewide poison control system established.

From such funds as may be appropriated for this purpose and from such gifts, donations, grants, bequests, and other funds as may be received, the Board shall establish a statewide poison control system. The funding mechanism for the system and its services shall be as provided in the appropriation act.

The Board shall establish poison control centers that meet national certification standards promulgated by the American Association of Poison Control Centers. If such national certification standards are eliminated, the Board shall establish minimum standards for the designation and operation of these poison control centers. The poison control centers established by the Board shall report to the Board by October 1 of each year regarding program operations; expenditures; revenues, including in-kind contributions; financial status; future needs; and summaries of human poison exposure cases for the most recent calendar year.

The statewide system shall provide, at a minimum, (i) consultation, by free, 24-hour emergency telephone or other means of communication, to the public and to health care providers regarding the ingestion or application of substances, including determinations of emergency treatment, coordination of referrals to emergency treatment facilities, and provision of appropriate information to the staffs of such facilities; (ii) prevention education and information about poison control services; (iii) training for health care providers in toxicology and medical management of poison exposure cases; and (iv) poison control surveillance through the collection and analysis of data from reported poison exposures to identify poisoning hazards, prevent poisonings, and improve treatment of poisoned patients.

History. 1996, c. 899; 2015, cc. 502, 503.

The 2015 amendments.

The 2015 amendments by cc. 502 and 503 are identical, substituted “Board” for “Board of Health” in the first sentence and twice substituted “providers” for “practitioners” in the third paragraph.

§ 32.1-111.15:1. Department responsible for stroke care quality improvement; sharing of data and information.

  1. The Department shall be responsible for stroke care quality improvement initiatives in the Commonwealth. Such initiatives shall include:
    1. Implementing systems to collect data and information about stroke care in the Commonwealth in accordance with subsection B;
    2. Facilitating information and data sharing and collaboration among hospitals and health care providers to improve the quality of stroke care in the Commonwealth;
    3. Requiring the application of evidence-based treatment guidelines for transitioning patients to community-based follow-up care following acute treatment for stroke; and
    4. Establishing a process for continuous quality improvement for the delivery of stroke care by the statewide system for stroke response and treatment in accordance with subsection C.
  2. The Department shall implement systems to collect data and information related to stroke care (i) that are nationally recognized data set platforms with confidentiality standards approved by the Centers for Medicare and Medicaid Services or consistent with the Get With The Guidelines-Stroke registry platform from hospitals designated as comprehensive stroke centers, primary stroke centers, or acute stroke-ready hospitals and emergency medical services agencies in the Commonwealth and (ii) from every primary stroke center with supplementary levels of stroke care distinction in the Commonwealth. Every hospital designated as a comprehensive stroke center, primary stroke center, or primary stroke center with supplementary levels of stroke care distinction shall report data and information described in clauses (i) and (ii) to the Department. The Department shall take steps to encourage hospitals designated as acute stroke-ready hospitals and emergency medical services agencies to report data and information described in clause (i) to the Department.
  3. The Department shall develop a process for continuous quality improvement for the delivery of stroke care provided by the statewide system for stroke response and treatment, which shall include:
    1. Collection and analysis of data related to stroke care in the Commonwealth;
    2. Identification of potential interventions to improve stroke care in specific geographic areas of the Commonwealth; and
    3. Development of recommendations for improvement of stroke care throughout the Commonwealth.
  4. The Department shall make information contained in the systems established pursuant to subsection B and data and information collected pursuant to subsection C available to licensed hospitals and the Virginia Stroke Systems Task Force, and, upon request, to emergency medical services agencies, regional emergency medical services councils, the State Emergency Medical Services Advisory Board, and other entities engaged in the delivery of emergency medical services in the Commonwealth to facilitate the evaluation and improvement of stroke care in the Commonwealth.
  5. The Department shall report to the Governor and the General Assembly annually on July 1 on stroke care improvement initiatives undertaken in accordance with this section. Such report shall include a summary report of the data collected pursuant to this section.
  6. Nothing in this article shall require or authorize the disclosure of confidential information in violation of state or federal law or regulations, including the Health Insurance Portability and Accountability Act, 42 U.S.C. § 1320d et seq.

History. 2018, cc. 198, 276.

Editor’s note.

Acts 2018, cc. 198 and 276, cl. 2 provides: “That the provisions of the first enactment of this act shall become effective on January 1, 2019.”

Acts 2018, cc. 198 and 276, cl. 3 provides: “That the Department of Health shall convene a group of stakeholders, which shall include representatives of (i) hospital systems, including at least one hospital system with at least six or more stroke centers in the Commonwealth, recommended by the Virginia Hospital and Healthcare Association; (ii) the Virginia Stroke Systems Task Force; and (iii) the American Heart Association/American Stroke Association, to advise on the implementation of the provisions of this act.”

Article 2.2. Evaluation of Director of Office of Emergency Medical Services.

§ 32.1-111.16. Director of Office of Emergency Medical Services annual performance evaluation.

Effective on and after July 1, 1996, the Commissioner of Health, in consultation with the State Emergency Medical Services Advisory Board, shall annually review and evaluate the performance of the Director of the Office of Emergency Medical Services. The Commissioner shall consider the Director’s effectiveness in operating and managing the programs, services, and personnel, of the Office of Emergency Medical Services and the statewide emergency medical care system established in Article 2.1 (§ 32.1-111.1 et seq.) of this chapter; any recommendations of the Advisory Board; and such other relevant information as may be made available to the Commissioner pertaining to the Director’s performance of his duties.

History. 1996, c. 192.

Editor’s note.

Acts 1996, c. 192, cl. 1, enacted a new section, § 32.1-112.2, which falls within the span of sections repealed by Acts 1996, c. 899. At the direction of the Code Commission, this enactment has been recodified as § 32.1-111.16 , and added as a new Article 2.2 of Chapter 4 of this title, following the span of sections enacted by Acts 1996, c. 899.

Article 3. Statewide Emergency Medical Care System.

§§ 32.1-112 through 32.1-116.01. Repealed by Acts 1996, c. 899.

Editor’s note.

Acts 1996, c. 192, cl. 1, enacted a new section, § 32.1-112.2, which falls within the span of sections repealed by Acts 1996, c. 899. At the direction of the Code Commission, this enactment has been recodified as § 32.1-111.16 , and added as a new Article 2.2 of Chapter 4 of this title, following the span of sections enacted by Acts 1996, c. 899.

Acts 1996, c. 998, cl. 1, enacted a new section, § 32.1-114.1, which falls within the span of sections repealed by Acts 1996, c. 899. At the direction of the Code Commission, this enactment has been recodified as § 32.1-111.12:01 , and placed within the span of new sections enacted by Acts 1996, c. 899.

Acts 1996, c. 1017, cl. 1, amended § 32.1-114, which was repealed by Acts 1996, c. 899, cl. 2. At the direction of the Code Commission, the amendment was implemented in former § 32.1-111.10 .

Section 32.1-112.1 was previously repealed by Acts 1984, c. 493.

Article 3.1. Emergency Medical Services Patient Care Information System.

§ 32.1-116.1. Prehospital patient care reporting procedure; trauma registry; confidentiality.

  1. In order to collect data on the incidence, severity, and cause of trauma; integrate the information available from other state agencies on trauma; improve the delivery of prehospital and hospital emergency medical services, the quality of patient care, and access to medical services; and make other system improvements, there is hereby established the Emergency Medical Services Patient Care Information System. The Emergency Medical Services Patient Care Information System shall include the Virginia Emergency Medical Services (EMS) Registry and the Virginia Statewide Trauma Registry.
  2. All licensed emergency medical services agencies shall participate in the Virginia EMS Registry by making available to the Commissioner or his designees the minimum data set in the format prescribed by the Board or any other format which contain equivalent information and meets any technical specifications of the Board. The minimum data set shall include, but not be limited to, the type of medical emergency or nature of the call, the response time, the treatment provided and other items as prescribed by the Board.Each licensed emergency medical services agency shall, upon request, disclose the prehospital care report to law-enforcement officials (i) when the patient is the victim of a crime or (ii) when the patient is in the custody of the law-enforcement officials and has received emergency medical services or has refused emergency medical services.The Commissioner may delegate the responsibility for collection of this data to the Office of Emergency Medical Services personnel or individuals under contract to the Office. The Advisory Board shall assist in the design, implementation, subsequent revisions and analyses of the data from the Virginia EMS Registry.
  3. All licensed hospitals which render emergency medical services shall participate in the Virginia Statewide Trauma Registry by making available to the Commissioner or his designees abstracts of the records of all patients admitted to the institutions with diagnoses related to trauma. The abstracts shall be submitted in the format prescribed by the Department and shall include the minimum data set prescribed by the Board. Such abstracts shall also be provided to regional emergency medical services councils upon request, for uses limited to monitoring and improving the quality of emergency medical services pursuant to § 32.1-111.3 .The Commissioner shall seek the advice and assistance of the Advisory Board and the Trauma System Oversight and Management Committee in the design, implementation, subsequent revisions and analyses of the Virginia Statewide Trauma Registry.
  4. Patient and other data or information submitted to the trauma registry or transmitted to the Commissioner, the Advisory Board, any committee acting on behalf of the Advisory Board, any hospital or prehospital care provider, any regional emergency medical services council, permitted emergency medical services agency, or other group or committee for the purpose of monitoring and improving the quality of care pursuant to § 32.1-111.3 , shall be privileged and shall not be disclosed or obtained by legal discovery proceedings, unless disclosure is made in accordance with § 32.1-116.2 or a circuit court, after a hearing and for good cause shown arising from extraordinary circumstances, orders disclosure of such data.
  5. The Commissioner shall make available and share all information contained in the Virginia Statewide Trauma Registry with the Department for Aging and Rehabilitative Services so that the Department may develop and implement programs and services for persons suffering from brain injuries and spinal cord injuries.

History. 1987, c. 480; 2002, cc. 568, 658; 2003, c. 471; 2006, c. 412; 2007, c. 13; 2008, c. 563; 2012, cc. 402, 803, 835; 2018, c. 195; 2020, c. 883.

Cross references.

As to release of prehospital patient care report to Commissioner of Labor and Industry, see § 40.1-8 .

Editor’s note.

Acts 2020, c. 883, cl. 2 provides: “That the Board of Health shall develop and approve a policy specific to the sharing of data from the Emergency Medical Services Patient Care Information System.”

The 2002 amendments.

The 2002 amendments by cc. 568 and 658 are identical, and inserted the present third paragraph in subsection A.

The 2003 amendments.

The 2003 amendment by c. 471 rewrote the third paragraph of subsection A, which formerly read: “When the patient is the victim of a crime, each licensed emergency medical services agency may disclose the prehospital patient care report to law-enforcement officials upon compliance with § 32.1-127.1:03 and a determination that such disclosure is not in violation of the federal Department of Health and Human Services regulations relating to the electronic transmission of data and patient privacy promulgated as required by the Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. § 1320d et seq.).”

The 2006 amendments.

The 2006 amendment by c. 412 added subsection C.

The 2007 amendments.

The 2007 amendment by c. 13, in subsection A, substituted “Virginia Emergency Medical Services (EMS) Registry” or “Virginia EMS Registry” for “prehospital patient care reporting procedure” and “Virginia Statewide Trauma Registry” for “trauma registry” throughout; in the first undesignated paragraph of subsection A, substituted “data set in the format prescribed by the Board or any other format which contain” for “data set on forms prescribed by the Board or locally developed forms which contain” and inserted “and meets any technical specifications of the Board” in the first sentence; in the third undesignated paragraph of subsection A, substituted “Office of Emergency Medical Services” for “Regional Emergency Medical Services Councils, Department of Health” near the beginning and “Office” for “Department” near the end of the first sentence; in subsection B, substituted “in the format prescribed” for “on forms provided” near the middle of the second sentence; and in the first undesignated paragraph of subsection B, substituted “Trauma System Oversight and Management Committee” for “Committee on Trauma of the Virginia Chapter of the American College of Surgeons” near the middle.

The 2008 amendments.

The 2008 amendment by c. 563 added subsection D.

The 2012 amendments.

The 2012 amendment by c. 402 added the third sentence of subsection B.

The 2012 amendment by cc. 803 and 835, cl. 59, are identical, and substituted “Department for Aging and Rehabilitative Services” for “Department of Rehabilitative Services” in subsection D.

The 2018 amendments.

The 2018 amendment by c. 195 redesignated the former second paragraph of subsection A as subsection B, redesignated former subsections B through D as C through E; in subsection E, deleted “Virginia” preceding “Department for Aging” and added “and spinal cord injuries” at the end.

The 2020 amendments.

The 2020 amendment by c. 883, in subsection A, inserted “the quality of patient care, and access to medical services; and make other system improvements” in the first sentence; in subsection D, inserted “disclosure is made in accordance with § 32.1-116.2 or” and made stylistic changes.

Law Review.

For article surveying developments in health care law in Virginia, see 37 U. Rich. L. Rev. 199 (2002).

§ 32.1-116.1:1. Disclosure of medical records.

Any licensed physician, licensed health care provider, or licensed health care facility may disclose to emergency medical services personnel, an emergency medical services physician, or their licensed parent agency the medical records of a sick or injured person to whom such emergency medical services personnel or emergency medical services physician is providing or has rendered emergency medical care for the purpose of promoting the medical education of the specific person who provided such care or for quality improvement initiatives of their agency or of the emergency medical services system as a whole. Any emergency medical services personnel or emergency medical services physician to whom such confidential records are disclosed shall not further disclose such information to any persons not entitled to receive that information in accordance with the provisions of this section.

History. 1988, c. 486; 2007, c. 13; 2008, c. 118; 2015, cc. 502, 503.

The 2007 amendments.

The 2007 amendment by c. 13 rewrote the first sentence and deleted “care attendant” following “Any emergency medical” near the beginning of the second sentence.

The 2008 amendments.

The 2008 amendment by c. 118 substituted “medical services provider, emergency medical services physician” for “medical technician, physician” and “such emergency medical services provider or emergency medical services physician” for “such technician or physician” in the first sentence and “medical services provider or emergency medical services physician” for “medical technician or physician” in the second sentence.

The 2015 amendments.

The 2015 amendments by cc. 502 and 503 are identical and substituted “personnel” for “provider” throughout the section, “emergency medical services personnel, an” for “an emergency medical services provider” in the first sentence and “emergency medical services” for “EMS” preceding “system.”

§ 32.1-116.1:2. Expired.

Editor’s note.

Acts 1992, c. 205, which enacted this section, provided in cl. 2 that the provisions of the act would expire on July 1, 1997.

§ 32.1-116.2. Confidential nature of information supplied; publication; liability protections.

  1. The Commissioner and all other persons to whom data is submitted shall keep patient information confidential. Mechanisms for protecting patient data shall be developed and continually evaluated to ascertain their effectiveness. No publication of information, research or medical data shall be made which identifies the patients by names or addresses, except as specified in subsection B. The Commissioner or his designees may utilize institutional data in order to improve the quality of and appropriate access to emergency medical services and to improve the health of citizens of the Commonwealth.
  2. In accordance with the State Board of Health’s regulations and applicable federal law and regulations, the Commissioner may disclose information, research, or medical data that identifies patients by name or address if the Commissioner determines that such disclosure is necessary to develop and implement programs that improve the quality of patient care, improve access to medical services, or make other system improvements. The Commissioner shall only disclose such information with entities, including but not limited to other Virginia state agencies and programs, federal agencies and programs, the National Registry of Emergency Medical Technicians, or recognized research institutions and organizations, that seek to improve quality of care, improve access to medical services, or make other system improvements.
  3. No individual, licensed emergency medical services agency, hospital, Regional Emergency Medical Services Council or organization advising the Commissioner shall be liable for any civil damages resulting from any act or omission preformed as required by this article unless such act or omission was the result of gross negligence or willful misconduct.

History. 1987, c. 480; 2020, c. 883.

Editor’s note.

Acts 2020, c. 883, cl. 2 provides: “That the Board of Health shall develop and approve a policy specific to the sharing of data from the Emergency Medical Services Patient Care Information System.”

The 2020 amendments.

The 2020 amendment by c. 883, in subsection A, added “except as specified in subsection B” in the second sentence, and in the last sentence, substituted “The” for “However, the” and added “and to improve the health of citizens of the Commonwealth” at the end; inserted subsection B and redesignated former subsection B as subsection C.

§ 32.1-116.3. Reporting of communicable diseases; definitions.

  1. For the purposes of this section:“Communicable disease of public health threat” means an illness of public health significance, as determined by the State Health Commissioner in accordance with regulations of the Board of Health, caused by a specific or suspected infectious agent that may be reasonably expected or is known to be readily transmitted directly or indirectly from one individual or person to another or to uninfected persons through airborne or nonairborne means and has been found to create a risk of death or significant injury or impairment; this definition shall not, however, be construed to include human immunodeficiency viruses or tuberculosis, unless used as a bioterrorism weapon. “Individual” shall include any companion animal.“Communicable diseases” means any airborne infection or disease, including, but not limited to, tuberculosis, measles, certain meningococcal infections, mumps, chicken pox and Hemophilus Influenzae Type b, and those transmitted by contact with blood or other human body fluids, including, but not limited to, human immunodeficiency virus, Hepatitis B and Non-A, Non-B Hepatitis.
  2. Every licensed health care facility that transfers or receives patients via emergency medical services vehicles shall notify the emergency medical services agencies providing such patient transport of the name and telephone number of the individual who is the infection control practitioner with the responsibility of investigating exposure to infectious diseases in the facility.Every emergency medical services agency that holds a valid license issued by the Commissioner and that is established in the Commonwealth shall notify all facilities to which it transports patients or from which it transfers patients of the names and telephone numbers of the members, not to exceed three persons, who have been appointed to serve as the exposure control officers. Every emergency medical services agency that holds a valid license issued by the Commissioner shall implement universal precautions and shall ensure that these precautions are appropriately followed and enforced.
  3. Upon requesting any emergency medical services agency that holds a valid license issued by the Commissioner to transfer a patient who is known to be positive for or who suffers from any communicable disease, the transferring facility shall inform the attendant-in-charge of the transferring crew of the general condition of the patient and the types of precautions to be taken to prevent the spread of the disease. The identity of the patient shall be confidential.
  4. If any firefighter, law-enforcement officer, or emergency medical services provider has an exposure of blood or body fluid to mucous membrane or non-intact skin or a contaminated needlestick injury, his exposure control officer shall be notified, a report completed, and the infection control practitioner at the receiving facility notified.
  5. If, during the course of medical care and treatment, any physician determines that a patient who was transported to a receiving facility by any emergency medical services agency that holds a valid license issued by the Commissioner (i) is positive for or has been diagnosed as suffering from an airborne infectious disease or (ii) is subject to an order of quarantine or an order of isolation pursuant to Article 3.02 (§ 32.1-48.05 et seq.) of Chapter 2, then the infection control practitioner in the facility shall immediately notify the exposure control officer who represents the transporting emergency medical services agency of the name of the patient and the date and time of the patient’s admittance to the facility. The exposure control officer for the transporting emergency medical services agency shall investigate the incident to determine if any exposure of emergency medical services personnel or other emergency personnel occurred. The identity of the patient and all personnel involved in any such investigation shall be confidential.
  6. If any firefighter, law-enforcement officer, or emergency medical services provider is exposed to a communicable disease, the exposure control officer shall immediately notify the infection control practitioner of the receiving facility. The infection control practitioner of the facility shall conduct an investigation and provide information concerning the extent and severity of the exposure and the recommended course of action to the exposure control officer of the transporting agency.
  7. Any person requesting or requiring any employee of a public safety agency as defined in subsection M of § 32.1-45.2 to arrest, transfer, or otherwise exercise custodial supervision over an individual known to the requesting person (i) to be infected with any communicable disease or (ii) to be subject to an order of quarantine or an order of isolation pursuant to Article 3.02 (§ 32.1-48.05 et seq.) of Chapter 2 shall inform such public safety agency employee of a potential risk of exposure to a communicable disease.
  8. Local or state correctional facilities which transfer patients known to have a communicable disease or to be subject to an order of quarantine or an order of isolation pursuant to Article 3.02 (§ 32.1-48.05 et seq.) of Chapter 2 shall notify the emergency medical services agency providing transportation services of a potential risk of exposure to a communicable disease, including a communicable disease of public health threat. For the purposes of this section, the chief medical person at a local or state correctional facility or the facility director or his designee shall be responsible for providing such information to the transporting agency.
  9. Any person who, as a result of this provision, becomes aware of the identity or condition of a person known to be (i) positive for or to suffer from any communicable disease, or to have suffered exposure to a communicable disease or (ii) subject to an order of quarantine or an order of isolation pursuant to Article 3.02 (§ 32.1-48.05 et seq.) of Chapter 2, shall keep such information confidential, except as expressly authorized by this provision.
  10. No person known to be (i) positive for or to suffer from any communicable disease, including any communicable disease of public health threat, or (ii) subject to an order of quarantine or an order of isolation pursuant to Article 3.02 (§ 32.1-48.05 et seq.) of Chapter 2, shall be refused transportation or service for that reason by an emergency medical services, law-enforcement, or public safety agency.

History. 1988, cc. 760, 789; 1989, c. 443; 1993, c. 655; 2004, cc. 773, 1021; 2008, c. 118; 2009, cc. 478, 552; 2015, cc. 502, 503; 2020, c. 502.

Cross references.

As to immunization requirements for full-time students at four-year public institutions of higher education, see § 23.1-800 .

The 2004 amendments.

The 2004 amendments by c. 773, effective April 12, 2004, and c. 1021, effective April 21, 2004, are identical, and added the subsection designations; inserted the definition of “Communicable disease of public health threat”; in subsection C, in the first sentence, inserted the clause (i) designation and “(ii) a patient . . . of this title”; in subsection E, in the first sentence, inserted the clause (i) designation and “or (ii) is . . . of this title”; in subsection G, inserted the clause (i) designation and “or (ii) to be . . . of this title”; in subsection H, in the first sentence, inserted “or to be subject . . . of this title” and “including a communicable disease of public health threat”; in subsection I, inserted the clause (i) designation and “or (ii) subject . . . of this title”; and in subsection J, inserted the clause (i) designation and “including any . . . of this title.”

The 2008 amendments.

The 2008 amendment by c. 118 substituted “provider” for “technician” near the beginning of subsections D and F.

The 2009 amendments.

The 2009 amendments by cc. 478 and 552 are identical, and substituted “exposure control” for “communicable disease liaison” in the second paragraph in subsection B and in subsections D through F; in subsection C, deleted the clause (i) designation following “transfer” and deleted “which, in the judgment of the physician authorizing the transfer or the facility’s infection control practitioner, presents any risk to the transporting emergency medical services personnel or to patients who may be subsequently transported in the same vehicle, or (ii) a patient who is known to be subject to an order of quarantine or an order of isolation pursuant to Article 3.02 (§ 32.1-48.05 et seq.) of Chapter 2 of this title” following “disease”; and deleted the former last sentence in subsection F, which read: “This section shall not be construed to create a duty by the receiving facility to perform any test or tests beyond those necessary for the medical management of the patient delivered by an emergency medical services agency to the receiving facility nor shall it affect the operation of the provisions of § 32.1-45.1 .”

The 2015 amendments.

The 2015 amendments by cc. 502 and 503 are identical and deleted “of this title” following “Chapter 2” throughout the section; deleted “licensed” preceding “emergency medical services agency” throughout subsections B and C and in the first sentence of subsection E; inserted “that holds a valid license issued by the Commissioner and that is” following “agency” throughout subsections B through E; in subsection B, substituted “vehicles” for “ambulances or mobile intensive care units” in the first sentence and “it transports patients or from which it transfers” for “they transport patients or from which they transfer” in the second paragraph; deleted “or paramedic” following “provider” in subsections D and F; and made stylistic changes.

The 2020 amendments.

The 2020 amendment by c. 502 substituted “subsection M” for “subsection J” in subsection G.

Law Review.

For annual survey article, “Health Care Law,” see 44 U. Rich. L. Rev. 473 (2009).

Article 4. Health Planning and Resources Development.

§§ 32.1-117 through 32.1-122. Repealed by Acts 1989, cc. 617, 633.

Cross references.

For current provisions as to health planning and resources development, see now § 32.1-122.01 et seq.

Article 4.1. Health Planning and Resources Development.

§ 32.1-122.01. Definitions.

As used in this article unless the context requires a different meaning:

“Board” means the State Board of Health.

“Commissioner” means the State Health Commissioner.

“Consumer” means a person who is not a provider of health care services.

“Department” means the Virginia Department of Health.

“Health planning region” means a contiguous geographical area of the Commonwealth with a population base of at least 500,000 persons, which is characterized by the availability of multiple levels of medical care services, reasonable travel time for tertiary care, and congruence with planning districts.

“Provider” means a licensed or certified health care practitioner, a licensed health care facility or service administrator, or an individual who has a personal interest in a health care facility or service as defined in the Virginia Conflict of Interests Act (§ 2.2-3100 et seq.).

“Regional health planning agency” means the regional agency, including the regional health planning board, its staff and any component thereof, designated by the Board to perform the health planning activities set forth in this chapter within a health planning region.

“Regional health planning board” means the governing board of the regional health planning agency as described in § 32.1-122.05 .

“Secretary” means the Secretary of Health and Human Resources of the Commonwealth of Virginia.

“State Health Plan” means the document so designated by the Board, which may include analysis of priority health issues, policies, needs, methodologies for assessing statewide health care needs, and such other matters as the Board shall deem appropriate.

“Tertiary care” means health care delivered by facilities that provide specialty acute care including, but not limited to, trauma care, neonatal intensive care and cardiac services.

History. 1989, cc. 617, 633; 2002, c. 83.

The 2002 amendments.

The 2002 amendment by c. 83 deleted the paragraphs defining “Planning Board” and “Virginia Health Planning Board”; in the paragraph defining “Regional health planning agency,” substituted “designated by the Board” for “designated by the Virginia Health Planning Board”; in the paragraph defining “State Health Plan,” substitiuted “document so designated by the Board, which may include analysis” for “document approved by the Virginia Health Planning Board which shall include, but not be limited to, analysis,” deleted “and” following “needs,” and added “and such other matters as the Board shall deem appropriate”; and in the paragraph defining “Tertiary care,” substituted “that provide” for “which provide.”

Law Review.

For survey of administrative procedure in Virginia for 1989, see 23 U. Rich. L. Rev. 431 (1989).

CASE NOTES

Standing. —

Regional health agency lacks standing to challenge a decision of the State Health Commissioner that rejected the agency’s recommendation to deny a certificate of public need application to a hospital since the agency failed to demonstrate a substantial grievance or a substantial interest in the litigation to have been deemed an aggrieved party. Health Sys. Agency of N. Va., Inc. v. Stroube, 47 Va. App. 299, 623 S.E.2d 444, 2005 Va. App. LEXIS 530 (2005).

§ 32.1-122.02. Repealed by Acts 2002, c. 83.

§ 32.1-122.03. State Health Plan.

  1. The Board may develop, and revise as it deems necessary, the State Health Plan with the support of the Department and the assistance of the regional health planning agencies. Following review and comment by interested parties, including appropriate state agencies, the Board may develop and approve the State Health Plan. The State Health Plan shall be developed in accordance with components and methodologies that take into account special needs or circumstances of local areas. The Plan shall reflect data and analyses provided by the regional health planning agencies and include regional differences where appropriate. The Board, in preparation of the State Health Plan and to avoid unnecessary duplication, may consider and utilize all relevant and formally adopted plans of agencies, councils, and boards of the Commonwealth.
  2. In order to develop and approve the State Health Plan, the Board may conduct such studies as may be necessary of critical health issues as identified by the Governor, General Assembly, Secretary or by the Board. Such studies may include, but not be limited to: (i) collection of data and statistics; (ii) analyses of information with subsequent recommendations for policy development, decision making and implementation; and (iii) analyses and evaluation of alternative health planning proposals and initiatives.

History. 1989, cc. 617, 633; 2002, c. 83.

The 2002 amendments.

The 2002 amendment by c. 83, in subsection A, substituted “The Board may develop, and revise as it deems necessary” for “The Planning Board shall develop, and revise as necessary” in the first sentence, substituted “the Board may develop and approve” for “the Planning Board shall approve” in the second sentence, substituted “that” for “which” in the third sentence, and deleted “Planning” preceding “Board” and substituted “may” for “shall” in the fifth sentence; and in subsection B, substituted “the Board may conduct” for “the Planning Board shall conduct” and “Secretary or by the Board” for “Secretary and Planning Board” in the first sentence.

CASE NOTES

The State Health Plan is a planning and development blueprint for the health activities of the Commonwealth. It forms the foundation upon which the Department of Health and the Commissioner operate. The State Health Plan, however, does not bind the Department and the Commissioner to act in accordance therewith. Roanoke Mem. Hosps. v. Kenley, 3 Va. App. 599, 352 S.E.2d 525, 3 Va. Law Rep. 1607, 1987 Va. App. LEXIS 145 (1987) (decided under prior law).

§ 32.1-122.03:1. Statewide Telehealth Plan.

  1. As used in this section:“Remote patient monitoring services” has the same meaning as in § 38.2-3418.16.“Telehealth services” means the use of telecommunications and information technology to provide access to health assessments, diagnosis, intervention, consultation, supervision, and information across distance. “Telehealth services” includes the use of such technologies as telephones, facsimile machines, electronic mail systems, store-and-forward technologies, and remote patient monitoring devices that are used to collect and transmit patient data for monitoring and interpretation. Nothing in this definition shall be construed or interpreted to amend the appropriate establishment of a bona fide practitioner-patient relationship, as defined in § 54.1-3303.“Telemedicine services” has the same meaning as in § 38.2-3418.16.
  2. The Board shall develop, by January 1, 2021, and maintain as a component of the State Health Plan a Statewide Telehealth Plan to promote an integrated approach to the introduction and use of telehealth services and telemedicine services.
  3. The Statewide Telehealth Plan shall include provisions for:
    1. The promotion of the inclusion of telehealth services and telemedicine services in the operating procedures of hospitals, primary care facilities, public primary and secondary schools, state-funded post-secondary schools, emergency medical services agencies, and such other state agencies and practices deemed necessary by the Board;
    2. The promotion of the use of remote patient monitoring services and store-and-forward technologies, including in cases involving patients with chronic illness;
    3. A uniform and integrated set of proposed criteria for the use of telehealth technologies for prehospital and interhospital triage and transportation of patients initiating or in need of emergency medical services developed by the Board in consultation with the Department of Health Professions, the Virginia College of Emergency Physicians, the Virginia Hospital and Healthcare Association, the Virginia Chapter of the American College of Surgeons, the American Stroke Association, the American Telemedicine Association, and prehospital care providers. The Board may revise such criteria from time to time to incorporate accepted changes in medical practice and appropriate use of new and effective innovations in telehealth or telemedicine technologies, or to respond to needs indicated by analysis of data on patient outcomes. Such criteria shall be used as a guide and resource for health care providers and are not intended to establish, in and of themselves, standards of care or to abrogate the requirements of § 8.01-581.20 . A decision by a health care provider to deviate from the criteria shall not constitute negligence per se;
    4. A strategy for integration of the Statewide Telehealth Plan with the State Health Plan, the Statewide Emergency Medical Services Plan, the Statewide Trauma Triage Plan, and the Stroke Triage Plan to support the purposes of each plan;
    5. A strategy for the maintenance of the Statewide Telehealth Plan through (i) the development of an innovative payment model for emergency medical services that covers the transportation of a patient to a destination providing services of appropriate patient acuity and facilitates in-place treatment of a patient at the scene of an emergency response or via telehealth services and telemedicine services, where appropriate; (ii) the development of collaborative and uniform operating procedures for establishing and recording informed patient consent for the use of telehealth services and telemedicine services that are easily accessible by those medical professionals engaging in telehealth services and telemedicine services; and (iii) appropriate liability protection for providers involved in such telehealth and telemedicine consultation and treatment; and
    6. A strategy for the collection of data regarding the use of telehealth services and telemedicine services in the delivery of inpatient and outpatient services, treatment of chronic illnesses, remote patient monitoring, and emergency medical services to determine the effect of use of telehealth services and telemedicine services on the medical service system in the Commonwealth, including (i) the potential for reducing unnecessary inpatient hospital stays, particularly among patients with chronic illnesses or conditions; (ii) the impact of the use of telehealth services and telemedicine services on patient morbidity, mortality, and quality of life; (iii) the potential for reducing unnecessary prehospital and interhospital transfers; and (iv) the impact on annual expenditures for health care services for all payers, including expenditures by third-party payers and out-of-pocket expenditures by patients.

History. 2020, c. 729.

§ 32.1-122.04. Responsibilities of the Department.

The Department shall have the following responsibilities as directed by the Board:

  1. To conduct the research for the health planning activities of the Commonwealth.
  2. To prepare, review and revise the State Health Plan when so directed by the Board.
  3. To develop, under the direction of the Board and with the cooperation of the regional health planning agencies, the components and methodology for the State Health Plan, including any research, issue analyses and related reports.
  4. To provide technical assistance to the regional health planning agencies.
  5. To perform such other functions relating to health planning in the Commonwealth as may be requested by the Governor or the Secretary.

History. 1989, cc. 617, 633; 2002, c. 83.

The 2002 amendments.

The 2002 amendment by c. 83 substituted “as directed by the Board” for “relative to to the State Health Plan” at the end of the introductory paragraph, substituted “revise the State Health Plan when so directed by the Board” for “revise as necessary the State Health Plan for review and adoption by the Planning Board” in subdivision 2, deleted former subdivision 3, which formerly read: “To provide staff and administrative services for the Planning Board and to assist the Planning Board in the performance of its functions”; redesignated former subdivisions 4 through 6 as present subdivisions 3 through 5; and deleted “Planning” preceding “Board” in subdivision 4.

CASE NOTES

Standing. —

Regional health agency lacks standing to challenge a decision of the State Health Commissioner that rejected the agency’s recommendation to deny a certificate of public need application to a hospital since the agency failed to demonstrate a substantial grievance or a substantial interest in the litigation to have been deemed an aggrieved party. Health Sys. Agency of N. Va., Inc. v. Stroube, 47 Va. App. 299, 623 S.E.2d 444, 2005 Va. App. LEXIS 530 (2005).

§ 32.1-122.05. Regional health planning agencies; boards; duties and responsibilities.

  1. For the purpose of representing the interests of health planning regions and performing health planning activities at the regional level, there are hereby created such regional health planning agencies as may be designated by the Board of Health.
  2. Each regional health planning agency shall be governed by a regional health planning board to be composed of not more than thirty residents of the region. The membership of the regional health planning boards shall include, but not be limited to, consumers, providers, a director of a local health department, a director of a local department of social services or welfare, a director of a community services board, a director of an area agency on aging and representatives of health care insurers, local governments, the business community and the academic community. The majority of the members of each regional health planning board shall be consumers. Consumer members shall be appointed in a manner that ensures the equitable geographic and demographic representation of the region. Provider members shall be solicited from professional organizations, service and educational institutions and associations of service providers and health care insurers in a manner that assures equitable representation of provider interest.The members of the regional health planning boards shall be appointed for no more than two consecutive terms of four years or, when appointed to fill an unexpired term of less than four years, for three consecutive terms consisting of one term of less than four years and two terms of four years. The boards shall not be self-perpetuating. The Board of Health shall establish procedures requiring staggered terms. The composition and the method of appointment of the regional health planning boards shall be established in the regulations of the Board of Health. In addition, the Board of Health shall require, pursuant to regulations, each regional health planning board to report and maintain a record of its membership, including, but not limited to, the names, addresses, dates of appointment, years served, number of consecutive and nonconsecutive terms, and the group represented by each member. These membership reports and records shall be public information and shall be published in accordance with the regulations of the Board.
  3. An agreement shall be executed between the Commissioner, in consultation with the Board of Health, and each regional health planning board to delineate the work plan and products to be developed with state funds. Funding for the regional health planning agencies shall be contingent upon meeting these obligations and complying with the Board’s regulations.
  4. Each regional health planning agency shall assist the Board of Health by: (i) conducting data collection, research and analyses as required by the Board; (ii) preparing reports and studies in consultation and cooperation with the Board; (iii) reviewing and commenting on the components of the State Health Plan; (iv) conducting needs assessments as appropriate and serving as a technical resource to the Board; (v) identifying gaps in services, inappropriate use of services or resources and assessing accessibility of critical services; (vi) reviewing applications for certificates of public need and making recommendations to the Department thereon as provided in § 32.1-102.6 ; and (vii) conducting such other functions as directed by the regional health planning board. All regional health planning agencies shall demonstrate and document accountability for state funds through annual budget projections and quarterly expenditure and activity reports that shall be submitted to the Commissioner. A regional health planning agency may designate membership and activities at subarea levels as deemed appropriate by its regional health planning board. Each regional health planning board shall adopt bylaws for its operation and for the election of its chairman and shall maintain and publish a record of its membership and any subarea levels as required by this section and the regulations of the Board of Health.

History. 1989, cc. 617, 633; 2002, cc. 83, 398.

The 2002 amendments.

The 2002 amendment by c. 83 deleted “Planning” preceding “Board” throughout the section; in subsection B, substituted “that” for “which” in the last two sentences of the first paragraph and in the first sentence of the second paragraph; and inserted “and” preceding “(vii)” in subsection D.

The 2002 amendment by c. 398 substituted “Board of Health” for “Planning Board” in subsection A; in subsection B, substituted “that” for “which” in the last two sentences of the first paragraph and rewrote the second paragraph; in subsection C, substituted “Board of Health” for “Planning Board” in the first sentence, and added “and complying with the Board’s regulations” at the end of the second sentence; and in subsection D, deleted “Planning” preceding “Board” throughout, inserted “of Health” near the end of the introductory phrase of the first sentence, substituted “that” for “which” in the second sentence, and added “and shall maintain and publish a record of its membership and any subarea levels as required by this section and the regulations of the Board of Health” at the end of the fourth sentence.

Law Review.

For survey of administrative procedure in Virginia for 1989, see 23 U. Rich. L. Rev. 431 (1989).

CASE NOTES

Standing. —

Regional health agency lacks standing to challenge a decision of the State Health Commissioner that rejected the agency’s recommendation to deny a certificate of public need application to a hospital since the agency failed to demonstrate a substantial grievance or a substantial interest in the litigation to have been deemed an aggrieved party. Health Sys. Agency of N. Va., Inc. v. Stroube, 47 Va. App. 299, 623 S.E.2d 444, 2005 Va. App. LEXIS 530 (2005).

Improper constitution of agency making recommendation. —

Despite the local health planning agency making recommendation being improperly constituted pursuant to subsection B of § 32.1-122.05 , the state commissioner could still deny the health care providers’ applications for certificates of public need under § 32.1-102.6 although the state commissioner was required to consider the local health planning agency’s recommendation to be one of approval because of the improperly constituted local health planning agency. The local health planning agency’s staff report was properly in the agency record, the state commissioner had the power to consider the staff report, the state commissioner could decide what weight should be given to the staff report, and the denial of the certificates of public need was supported by substantial evidence in the record as required by § 2.2-4027. Doctors' Hosp. of Williamsburg, LLC v. Stroube, 52 Va. App. 599, 665 S.E.2d 862, 2008 Va. App. LEXIS 416 (2008).

§ 32.1-122.06. Funds for regional health planning.

In the interest of maintaining a regional health planning mechanism in the Commonwealth, there is hereby established funding for regional health planning. From such moneys as may be available and appropriated, this fund shall provide support of a maximum of fifteen cents per capita for each regional health planning agency as may be designated. Per capita population figures shall be obtained from official population estimates. This funding may be used for the administration of the regional health planning agency, the analysis of issues, and such other health planning purposes as may be requested.

Any local governing body may choose to appropriate funds for the purpose of providing additional funds for a regional health planning agency. However, nothing in this section shall place any obligation on any local governing body to appropriate funds to any regional health planning agency.

Each regional health planning agency shall be required to apply to the Department for funding, which shall be distributed as grants. This funding shall be administered by the Department, and the Board shall promulgate regulations as are necessary and relevant to administer the funding. All applications for such funding shall be accompanied by letters of assurance that the applicant shall comply with all state requirements.

For purposes of this section, regional health planning agencies in existence as of July 1, 2002, shall be retained as designated regional health planning agencies unless (i) the Board, pursuant to its regulations, revises such designations, or (ii) any individual regional health planning agency ceases operation or the designation as a regional health planning agency is otherwise terminated in accordance with the agreement between the regional health planning agency and the Board.

The extent to which grants are awarded from this fund shall be dependent upon the amount of money appropriated to implement the provisions of this section.

History. 1989, cc. 617, 633; 1990, c. 391; 2002, c. 83; 2009, c. 175.

The 2002 amendments.

The 2002 amendment by c. 83 deleted “Planning” preceding “Board” in the second sentence of the third paragraph, and rewrote the fourth paragraph, which formerly read: “For purposes of this section, regional health planning agencies in existence as of July 1, 1989, shall be retained as transitional regional health planning agencies until July 1, 1990, or until an agency for that region is designated under this article, whichever occurs first. Representatives of the existing regional health planning boards shall serve on the Planning Board until regional health planning agencies are designated.”

The 2009 amendments.

The 2009 amendment by c. 175, effective March 25, 2009, in the next-to-last paragraph, inserted the clause (i) designation, added clause (ii) and made a related change.

§ 32.1-122.07. Authority of Commissioner for certain health planning activities; rural health plan; designation as a rural hospital.

  1. The Commissioner, with the approval of the Board, is authorized to make application for federal funding and to receive and expend such funds in accordance with state and federal regulations.
  2. The Commissioner shall administer section 1122 of the United States Social Security Act if the Commonwealth has made an agreement with the United States Secretary of Health and Human Services pursuant to such section.
  3. In compliance with the provisions of the Balanced Budget Act of 1997, P.L. 105-33, and any amendments to such provisions, the Commissioner shall submit to the appropriate regional administrator of the Centers for Medicare & Medicaid Services (CMS) an application to establish a Medicare Rural Hospital Flexibility Program in Virginia.
  4. The Commissioner shall develop and the Board of Health shall approve a rural health care plan for the Commonwealth to be included with the application to establish a Medicare Rural Hospital Flexibility Program. In cooperation and consultation with the Virginia Hospital and Health Care Association, the Medical Society of Virginia, representatives of rural hospitals, and experts within the Department of Health on rural health programs, the plan shall be developed and revised as necessary or as required by the provisions of the Balanced Budget Act of 1997, P.L. 105-33, and any amendments to such provisions. In the development of the plan, the Commissioner may also seek the assistance of the regional health planning agencies. The plan shall verify that the Commonwealth is in the process of designating facilities located in Virginia as critical access hospitals, shall note that the Commonwealth wishes to certify facilities as “necessary providers” of health care in rural areas, and shall describe the process, methodology, and eligibility criteria to be used for such designations or certifications. Virginia’s rural health care plan shall reflect local needs and resources and shall, at minimum, include, but need not be limited to, a mechanism for creating one or more rural health networks, ways to encourage rural health service regionalization, and initiatives to improve access to health services, including hospital services, for rural Virginians.
  5. Notwithstanding any provisions of this chapter or the Board’s regulations to the contrary, the Commissioner shall, in the rural health care plan, (i) use as minimum standards for critical access hospitals, the certification regulations for critical access hospitals promulgated by the Centers for Medicare & Medicaid Services (CMS) pursuant to Title XVIII of the Social Security Act, as amended; and (ii) authorize critical access hospitals to utilize a maximum of ten beds among their inpatient hospital beds as swing beds for the furnishing of services of the type which, if furnished by a nursing home or certified nursing facility, would constitute skilled care services without complying with nursing home licensure requirements or retaining the services of a licensed nursing home administrator. Such hospital shall include, within its plan of care, assurances for the overall well-being of patients occupying such beds.
  6. Nothing herein or set forth in Virginia’s rural health care plan shall prohibit any hospital designated as a critical access hospital from leasing the unused portion of its facilities to other health care organizations or reorganizing its corporate structure to facilitate the continuation of the nursing home beds that were licensed to such hospital prior to the designation as a critical access hospital. The health care services delivered by such other health care organizations shall not be construed as part of the critical access hospital’s services or license to operate.
  7. Any medical care facility licensed as a hospital shall be considered a rural hospital on and after September 30, 2004, pursuant to 42 U.S.C. § 1395ww(d)(8)(E)(ii)(II), if (i) the hospital is located in an area defined as rural by federal statute or regulation; (ii) the Board of Health defines, in regulation, the area in which the hospital is located as a rural health area or the hospital as a rural hospital; or (iii) the hospital was designated, prior to October 1, 2004, as a Medicare-dependent small rural health hospital, as defined in 42 U.S.C. § 1395ww(d)(5)(G)(iv).

History. 1989, cc. 617, 633; 2000, c. 903; 2002, c. 83; 2006, c. 378.

The 2000 amendments.

The 2000 amendment by c. 903 added subsections C through F.

The 2002 amendments.

The 2002 amendment by c. 83 substituted “Centers for Medicare & Medicaid Services (CMS)” for “Health Care Financing Administration (HCFA)” in subsection C; deleted “the Planning Board and” following “assistance of” in the third sentence of subsection D; and substituted “Centers for Medicare & Medicaid Services (CMS)” for “Health Care Financing Administration” in subsection E.

The 2006 amendments.

The 2006 amendment by c. 378 added subsection G.

CASE NOTES

Standing. —

Regional health agency lacks standing to challenge a decision of the State Health Commissioner that rejected the agency’s recommendation to deny a certificate of public need application to a hospital since the agency failed to demonstrate a substantial grievance or a substantial interest in the litigation to have been deemed an aggrieved party. Health Sys. Agency of N. Va., Inc. v. Stroube, 47 Va. App. 299, 623 S.E.2d 444, 2005 Va. App. LEXIS 530 (2005).

§ 32.1-122.08. Continuation of regulations.

Regulations promulgated by the Virginia Health Planning Board prior to July 1, 2002, concerning health planning and resources development shall remain in force and effect until any such regulation is amended, modified, or repealed by the Board.

History. 1989, cc. 617, 633; 2002, c. 83.

The 2002 amendments.

The 2002 amendment by c. 83 inserted “prior to July 1, 2002” and deleted “including but not limited to, the State Health Plan 1980-84 and all amendments thereto, and the State Medical Facilities Plan including all methodologies therein” following “development.”

Article 5. Perinatal Services.

§§ 32.1-122.1 through 32.1-122.4. Repealed by Acts 1992, c. 407.

Article 6. Primary Health Care System.

§ 32.1-122.5. Criteria to identify underserved areas.

The Board of Health shall establish criteria to identify medically underserved areas within the Commonwealth. These criteria shall consist of quantifiable measures sensitive to the unique characteristics of urban and rural jurisdictions which may include the incidence of infant mortality, the availability of primary care resources, poverty levels, and other measures indicating the inadequacy of the primary health care system as determined by the Board. The Board shall also include in these criteria the need for medical care services in the state facilities operated by the Departments of Corrections, Juvenile Justice, and Behavioral Health and Developmental Services.

History. 1990, cc. 874, 877; 2009, cc. 813, 840.

Cross references.

As to health workforce recruitment and retention programs for underserved populations, underserved areas, and health professional shortage areas, see § 32.1-122.20 et seq.

The 2009 amendments.

The 2009 amendments by cc. 813 and 840 are identical, and substituted “Behavioral Health and Developmental” for “Mental Health, Mental Retardation and Substance Abuse” near the end of the section.

§ 32.1-122.5:1. Conditional grants for certain medical students.

  1. With such funds as are appropriated for this purpose, the Board of Health shall establish, in addition to the scholarships established pursuant to § 32.1-122.6 , annual medical scholarships for students who (i) intend to enter one of the designated specialties of family practice medicine, general internal medicine, pediatrics, and obstetrics/gynecology and (ii) commit to practicing in a medically underserved area of Southwest Virginia. Such scholarships shall be awarded to students in good standing at the Quillen School of Medicine of East Tennessee State University, with preference being given to bona fide residents of Virginia, as determined by § 23.1-502 and specifically for bona fide residents of Southwest Virginia. The Board of Health shall request the governing board of East Tennessee State University to submit to the Commissioner the names of those eligible applicants who are most qualified as determined by the regulations of the Board for these medical scholarships. The Commissioner shall award the scholarships to applicants whose names are submitted by the governing board.
  2. The provisions of § 32.1-122.6 and all regulations of the Board promulgated pursuant to § 32.1-122.6 shall apply to the award of the scholarships established herein and to the applicants for and recipients of such scholarships. In addition to the regulations established pursuant to § 32.1-122.6, the Board shall define Southwest Virginia by designating Planning Districts one, two, and three as those jurisdictions in which eligible students shall be required to serve.

History. 1992, c. 358; 1994, c. 281.

Editor’s note.

At the direction of the Virginia Code Commission, “23.1-502” was substituted for “23-7.4” in subsection A to conform to the recodification of Title 23 by Acts 2016, c. 588, effective October 1, 2016.

§ 32.1-122.6. Conditional grants for certain medical students.

  1. With such funds as are appropriated for this purpose, the Board of Health shall establish annual medical scholarships for students who intend to enter the designated specialties of family practice medicine, general internal medicine, pediatrics, and obstetrics/gynecology and who are in good standing at a medical school in the United States that has received accreditation or provisional accreditation from the Liaison Committee on Medical Education or the Bureau of Professional Education of the American Osteopathic Association. No recipient shall be awarded more than five scholarships. The amount and number of such scholarships shall be determined annually as provided in the appropriation act. The Commissioner shall act as fiscal agent for the Board in administration of the scholarship funds.
  2. The Board shall promulgate regulations to administer this scholarship program that shall include:
    1. Qualifications of applicants;
    2. Criteria for award of the scholarships to assure that recipients will fulfill the practice obligations established in this section;
    3. Standards to assure that these scholarships increase access to primary health care for individuals who are indigent or who are recipients of public assistance;
    4. Assurances that bona fide residents of Virginia, as determined by § 23.1-502 , students of economically disadvantaged backgrounds and residents of medically underserved areas are given preference over nonresidents in determining scholarship eligibility and awards;
    5. Assurances that scholarship recipients will begin medical practice in one of the designated specialties in an underserved area of the Commonwealth within two years following completion of their residencies;
    6. Methods for reimbursement of the Commonwealth by recipients who fail to complete medical school or who fail to honor the obligation to engage in medical practice for a period of years equal to the number of annual scholarships received;
    7. Procedures for reimbursing any recipient who has repaid the Commonwealth for part or all of any scholarship and who later fulfills the terms of his contract; and
    8. Reporting of data related to the recipients of the scholarships by the medical schools.
  3. Prior to the award of any scholarship, the applicant shall sign a contract in which he agrees to engage continuously in one of the designated specialties of medical practice in an underserved area in Virginia for a period of years equal to the number of annual scholarships received. The contract shall specify that no form of medical practice such as military service or public health service may be substituted for the obligation to practice in one of the designated specialties in an underserved area in the Commonwealth.The contract shall provide that the applicant will not voluntarily obligate himself for more than the minimum period of military service required for physicians by the laws of the United States and that, upon completion of this minimum period of obligatory military service, the applicant will promptly begin to practice in an underserved area in one of the designated specialties for the requisite number of years. The contract shall include other provisions as considered necessary by the Attorney General and the Commissioner.The contract may be terminated by the recipient while the recipient is enrolled in medical school upon providing notice and immediate repayment of the total amount of scholarship funds received plus interest at the prevailing bank rate for similar amounts of unsecured debt.
  4. In the event the recipient fails to maintain a satisfactory scholastic standing, the recipient may, upon certification of the Commissioner, be relieved of the obligations under the contract to engage in medical practice in an underserved area upon repayment to the Commonwealth of the total amount of scholarship funds received plus interest at the prevailing bank rate for similar amounts of unsecured debt.
  5. In the event the recipient dies or becomes permanently disabled so as not to be able to engage in the practice of medicine, the recipient or his estate may, upon certification of the Commissioner, be relieved of the obligation under the contract to engage in medical practice in an underserved area upon repayment to the Commonwealth of the total amount of scholarship funds plus interest on such amount computed at eight percent per annum from the date of receipt of scholarship funds. This obligation may be waived in whole or in part by the Commissioner in his discretion upon application by the recipient or his estate to the Commissioner with proof of hardship or inability to pay.
  6. Except as provided in subsections D and E, any recipient of a scholarship who fails or refuses to fulfill his obligation to practice medicine in one of the designated specialties in an underserved area for a period of years equal to the number of annual scholarships received shall reimburse the Commonwealth three times the total amount of the scholarship funds received plus interest at the prevailing bank rate for similar amounts of unsecured debt. If the recipient has fulfilled part of his contractual obligations by serving in an underserved area in one of the designated specialties, the total amount of the scholarship funds received shall be reduced by the amount of the annual scholarship multiplied by the number of years served.
  7. The Commissioner shall collect all repayments required by this section and may establish a schedule of payments for reimbursement consistent with the regulations of the Board. No schedule of payments shall amortize the total amount due for a period of longer than two years following the completion of the recipient’s postgraduate training or the recipient’s entrance into the full-time practice of medicine, whichever is later. All such funds, including any interest thereon, shall be used only for the purposes of this section and shall not revert to the general fund. If any recipient fails to make any payment when and as due, the Commissioner shall notify the Attorney General. The Attorney General shall take such action as he deems proper. In the event court action is required to collect a delinquent scholarship account, the recipient shall be responsible for the court costs and reasonable attorney fees incurred by the Commonwealth in such collection.
  8. For purposes of this section, the term “underserved area” includes those medically underserved areas designated by the Board pursuant to § 32.1-122.5 and health professional shortage areas designated in accordance with the criteria established in 42 C.F.R. Part 5.

History. 1990, cc. 874, 877; 1991, c. 134; 1994, cc. 281, 867; 2000, c. 926; 2001, c. 188; 2002, cc. 87, 478; 2015, c. 532.

Editor’s note.

At the direction of the Virginia Code Commission, “23.1-502” was substituted for “23-7.4” in subdivision B 4 to conform to the recodification of Title 23 by Acts 2016, c. 588, effective October 1, 2016.

The 2000 amendments.

The 2000 amendment by c. 926 added subsection H.

The 2001 amendments.

The 2001 amendment by c. 188, in subsection G, inserted “including any interest thereon,” and substituted “used only for the purposes of this section and shall not revert to” for “transmitted to the Comptroller for deposit in.”

The 2002 amendments.

The 2002 amendments by cc. 87 and 478, effective March 4, 2002, and April 3, 2002, respectively, are identical, and substituted “Eastern Virginia Medical School” for “Medical College of Hampton Roads” in subsection A and in the introductory paragraph of subsection B; and inserted “of Virginia Commonwealth University” in the introductory paragraph of subsection B. For the effective date of the amendments, see the Editor’s notes.

The 2015 amendments.

The 2015 amendment by c. 532 rewrote subsections A through C; and substituted “attorney” for “attorneys”’ in subsection G and “includes” for “shall include” in subsection H.

§ 32.1-122.6:01. Board of Health to award certain scholarships and loan repayment funds.

  1. The Board of Health shall award to eligible part-time and full-time students the nursing scholarships available from the Nursing Scholarship and Loan Repayment Fund established in § 54.1-3011.2 pursuant to the procedures for the administration of the scholarships awarded through § 23.1-614 .Eligible part-time and full-time students shall be bona fide residents of Virginia as determined by § 23.1-502 , shall be enrolled in or accepted for enrollment in nursing education programs preparing them for examination for licensure as practical nurses or registered nurses, and shall also meet such other criteria as may be established by the Board of Health. Prior to awarding any scholarship, the Board of Health shall require the recipient to agree to perform a period of nursing service in this Commonwealth for each scholarship. The Board may establish variable periods of service as conditions for receipt of scholarships according to the amounts of the awards. In the event that fees are collected pursuant to § 54.1-3011.1, the Board shall award the scholarships funded through such fees to practical nurses and registered nurses in proportion to the funds generated by the fees for licensure from such nurses.Eligibility for these scholarships shall be limited to a total of four academic years. The scholarships shall be awarded on a competitive basis, considering the financial needs of the applicant, and all such funds shall be used only for payment of charges for tuition, fees, room, board, or other educational expenses as prescribed by the Board of Health.The Board of Health shall submit the names of the scholarship recipients to the Board of Nursing, which shall be responsible for transmission of the funds to the appropriate institution to be credited to the account of the recipient.
  2. The Board shall establish a nursing scholarship and loan repayment program for registered nurses, licensed practical nurses, and certified nurse aides who agree to perform a period of service in a Commonwealth long-term care facility pursuant to regulations promulgated by the Board in cooperation with the Board of Nursing. The Board shall submit the names of the scholarship and loan repayment recipients to the Board of Nursing, which shall be responsible for transmission of the funds to the appropriate educational or financial institution to be credited to the account of the recipient.
    1. The nursing scholarships authorized by this subsection shall be awarded to eligible part-time and full-time students who are bona fide residents of Virginia as determined by § 23.1-502 and who are (a) accepted for enrollment or are enrolled in approved nursing education programs preparing them for examination for licensure as practical nurses or registered nurses or (b) accepted for enrollment or enrolled in approved nurse aide education programs preparing them for certification as authorized in Chapter 30 (§ 54.1-3000 et seq.) of Title 54.1. Prior to awarding any scholarship, the Board shall require the recipient to agree to perform a period of nursing service in a long-term care facility in the Commonwealth for each scholarship. The Board may establish variable periods of service according to the amount of the award in a long-term care facility as a condition for receipt of a scholarship.Eligibility for these scholarships shall be limited to a total of four academic years. The scholarships shall be awarded on a competitive basis, considering the financial needs of the applicant, and all such funds shall be used only for payment of charges for tuition, fees, room, board, or other educational expenses as prescribed by the Board.
    2. The nursing loan repayment program authorized by this subsection shall be established for registered nurses, licensed practical nurses, and certified nurse aides who: (a) are bona fide residents of Virginia as determined by § 23.1-502 , (b) have graduated from an approved educational program pursuant to Chapter 30 (§ 54.1-3000 et seq.) of Title 54.1, and (c) meet such other criteria as determined by the Board. Prior to awarding any funds, the Board shall require the recipient to agree to perform a period of nursing service in a long-term care facility in the Commonwealth as a condition for loan repayment according to the amount of the award.

History. 1991, c. 669; 2000, cc. 240, 254; 2002, c. 290.

Cross references.

As to regulations governing the Virginia Medical Scholarship Program, see 12 VAC 5-530-10 et seq.

Editor’s note.

At the direction of the Virginia Code Commission, “23.1-614” was substituted for “23-35.9” in subsection A; “23.1-502” was substituted for “23-7.4” in subsection A and subdivisions B 1 and B 2 to conform to the recodification of Title 23 by Acts 2016, c. 588, effective October 1, 2016.

The 2000 amendments.

The 2000 amendments by cc. 240 and 254 are identical, and added “and loan repayment funds” in the section catchline, in subsection A inserted “and Loan Repayment” in the first paragraph and in the third sentence of the second paragraph inserted “In the event that fees are collected pursuant to § 54.1-3011.1”, substituted “the” for “these” preceding “scholarships” and inserted “funded through such fees” thereafter, and added subsection B.

§ 32.1-122.6:02. Conditional grants for certain nurse practitioner students.

  1. The Board of Health shall establish annual nursing scholarships for students who intend to enter an accredited nurse practitioner or nurse midwife program in designated schools. The amounts and numbers of such scholarships shall be determined annually as provided in the appropriation act. The Commissioner shall act as fiscal agent for the Board in administration of the scholarship program through a nursing scholarship committee.
  2. To administer the scholarship program, the Board shall promulgate regulations which shall include, but are not limited to:
    1. Qualifications of applicants;
    2. Criteria for award of the scholarship to assure that a recipient will fulfill the practice obligations established in this section;
    3. Standards to assure that these scholarships increase access to primary health care for individuals who are indigent or who are recipients of public assistance;
    4. Assurances that residents of Virginia, as determined by § 23.1-502 , minority students and residents of medically underserved areas are given preference in determining scholarship eligibility and awards;
    5. Assurances that a scholarship recipient will practice as a nurse practitioner or nurse midwife in an underserved area of the Commonwealth within two years following completion of training;
    6. Designations that students in nurse practitioner specialties, including nurse midwife, receive priority scholarships;
    7. Methods for reimbursement to the Commonwealth by a recipient who fails to complete the educational program or who fails to honor the obligation to engage in practice as a nurse practitioner or nurse midwife for a period of years equal to the number of annual scholarships received;
    8. Procedures for reimbursing any recipient who has repaid the Commonwealth for part or all of any scholarship and who later fulfills the terms of his contract; and
    9. Methods for reporting data related to the recipients of the scholarships.
  3. Until such time as a fully accredited nurse midwife education program is established at any health science center in the Commonwealth, the Board may designate that attendance at an accredited program in a nearby state is acceptable for scholarship eligibility.
  4. For purposes of this section, the term “underserved area” shall include those medically underserved areas designated by the Board pursuant to § 32.1-122.5 and health professional shortage areas designated in accordance with the criteria established in 42 C.F.R. Part 5.
  5. Any scholarship amounts repaid by recipients pursuant to subdivision B 7, and any interest thereon, shall be used only for the purposes of this section and shall not revert to the general fund.

History. 1993, cc. 197, 337; 2000, c. 926; 2001, c. 188.

Editor’s note.

At the direction of the Virginia Code Commission, “23.1-502” was substituted for “23-7.4” in subdivision B 4 to conform to the recodification of Title 23 by Acts 2016, c. 588, effective October 1, 2016.

The 2000 amendments.

The 2000 amendment by c. 926 added subsection D.

The 2001 amendments.

The 2001 amendment by c. 188 substituted “specialties” for “specialities” in subdivision B 6, and added subdivision E.

§ 32.1-122.6:03. Conditional grants for certain physician assistant students.

  1. The Board of Health shall establish annual physician assistant scholarships for students who intend to enter an accredited physician assistant program in designated schools. The amounts and numbers of such scholarships shall be determined annually as provided in the appropriation act. The Commissioner shall act as fiscal agent for the Board in administration of the scholarship program through a physician assistant scholarship committee.
  2. To administer the scholarship program, the Board shall promulgate regulations that shall include, but are not limited to:
    1. Qualifications of applicants;
    2. Criteria for awarding the scholarship to ensure that a recipient will fulfill the practice obligations established in this section;
    3. Standards to ensure that these scholarships increase access to primary health care for individuals who are indigent or who are recipients of public assistance;
    4. Assurances that residents of Virginia, as determined by § 23.1-502 , minority students and residents of medically underserved areas are given preference in determining scholarship eligibility and awards;
    5. Assurances that a scholarship recipient will practice as a physician assistant in an underserved area of the Commonwealth within two years following completion of training;
    6. Methods for reimbursement to the Commonwealth by a recipient who fails to complete the educational program or who fails to honor the obligation to engage in practice as a physician assistant for a period of years equal to the number of annual scholarships received;
    7. Procedures for reimbursing any recipient who has repaid the Commonwealth for part or all of any scholarship and who later fulfills the terms of his contract; and
    8. Methods for reporting data related to the recipients of the scholarships.
  3. Prior to promulgating any regulation establishing any preferences noted in subdivision B 4, the Board shall issue written findings stating the bases for its decisions that any such preferences provided by the regulation comply with constitutional principles of equal protection.
  4. Until such time as a fully accredited physician assistant education program is established at any health science center in the Commonwealth, the Board may designate that attendance at an accredited program in a nearby state is acceptable for scholarship eligibility.
  5. For purposes of this section, the term “underserved area” shall include those medically underserved areas designated by the Board pursuant to § 32.1-122.5 and health professional shortage areas designated in accordance with the criteria established in 42 C.F.R. Part 5.
  6. Any scholarship amounts repaid by recipients pursuant to subdivision B 6, and any interest thereon, shall be used only for the purposes of this section and shall not revert to the general fund.

History. 1997, c. 806; 2000, c. 926; 2001, c. 188.

Editor’s note.

At the direction of the Virginia Code Commission, “23.1-502” was substituted for “23-7.4” in subdivision B 4 to conform to the recodification of Title 23 by Acts 2016, c. 588, effective October 1, 2016.

The 2000 amendments.

The 2000 amendment by c. 926 added subsection E.

The 2001 amendments.

The 2001 amendment by c. 188 added subsection F.

§ 32.1-122.6:04. Nurse Loan Repayment Program.

  1. With such funds as are appropriated for this purpose, the Board shall establish a tuition loan repayment program for licensed practical nurses, licensed registered nurses, or certified nurse aides who meet criteria determined by the Board. The Commissioner shall act as the fiscal agent for the Board in administration of these funds. Prior to awarding any funds, the Board shall require the recipient to agree to perform a period of nursing service in this Commonwealth.
  2. The Board shall promulgate regulations for the implementation and administration of the Nurse Loan Repayment Program. Applications for participation in the program shall be accepted from graduates of nursing education programs that prepare them for examination for licensure as a practical nurse or registered nurse or certification as a certified nurse aide, but preference shall be given to graduates of nursing education programs located in the Commonwealth.
  3. Any loan repayment amounts repaid by recipients who fail to honor the obligation to perform a period of nursing service in the Commonwealth required by this section, and any interest thereon, shall be used only for the purposes of this section and shall not revert to the general fund.

History. 2001, c. 188; 2021, Sp. Sess. I, c. 238.

Cross references.

As to the Nursing Scholarship and Loan Repayment Fund, see § 54.1-3011.2.

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 238, effective July 1, 2021, in subsection A, substituted “licensed practical nurses, licensed registered nurses, or certified nurse aides” for “persons licensed as practical nurses or registered nurses”; and in subsection B, inserted “or certification as a certified nurse aide.”

§ 32.1-122.6:1. Physician Loan Repayment Program.

  1. With such funds as are appropriated for this purpose, the Board of Health shall establish a physician loan repayment program for graduates of accredited medical schools who have a specialty in the primary care areas of family practice medicine, general internal medicine, pediatrics, and obstetrics/gynecology, or who are currently employed in a geriatrics fellowship, and who meet other criteria as determined by the Board. The Commissioner shall act as the fiscal agent for the Board in administration of these funds. Prior to awarding any funds, the Board shall require the recipient to agree to perform a period of medical service in the Commonwealth in a medically underserved area as defined in § 32.1-122.5 or a health professional shortage area designated in accordance with the criteria established in 42 C.F.R. Part 5, or, in the case of graduates of accredited medical schools who are currently employed in a geriatrics fellowship, the Board shall require the recipient to agree to perform, at minimum, a two-year period of medical service in the Commonwealth.
  2. The Board shall promulgate regulations for the implementation of the Physician Loan Repayment Program. Applications for participation in the program will be accepted from a graduate of any accredited medical school, but preference will be given to graduates of medical schools located in the Commonwealth.
  3. Any loan repayment amounts repaid by recipients who fail to honor the obligation to perform a period of medical service in an underserved area or a two-year period as required by this section, and any interest thereon, shall be used only for the purposes of this section and shall not revert to the general fund.

History. 1994, c. 111; 2000, c. 926; 2001, c. 188; 2013, c. 255.

The 2000 amendments.

The 2000 amendment by c. 926 added the language following “§ 32.1-122.5 ” at the end of the first paragraph.

The 2001 amendments.

The 2001 amendment by c. 188 added the subsection A and B designators to the first and second paragraphs and added subsection C.

The 2013 amendments.

The 2013 amendment by c. 255, in subsection A, inserted “or who are currently employed in a geriatrics fellowship” in the first sentence, and “or, in the case of graduates of accredited medical schools who are currently employed in a geriatrics fellowship, the Board shall require the recipient to agree to perform, at minimum, a two-year period of medical service in the Commonwealth” at the end; and inserted “or a two-year period” in subsection C.

§ 32.1-122.7. Virginia Health Workforce Development Authority; purpose.

  1. There is hereby created as a public body corporate and as a political subdivision of the Commonwealth the Virginia Health Workforce Development Authority (the Authority), with such public and corporate powers as are set forth in § 32.1-122.7:2 . The Authority is hereby constituted as a public instrumentality, exercising public and essential governmental functions with the power and purpose to provide for the health, welfare, convenience, knowledge, benefit, and prosperity of the residents of the Commonwealth and such other persons who might be served by the Authority. The Authority is established to move the Commonwealth forward in achieving its vision of ensuring a quality health workforce for all Virginians.
  2. The mission of the Authority is to facilitate the development of a statewide health professions pipeline that identifies, educates, recruits, and retains a diverse, appropriately geographically distributed, and culturally competent quality workforce. The mission of the Authority is accomplished by: (i) providing the statewide infrastructure required for health workforce needs assessment and planning that maintains engagement by health professions training programs in decision making and program implementation; (ii) serving as the advisory board and setting priorities for the Virginia Area Health Education Centers Program; (iii) coordinating with and serving as a resource to relevant state, regional, and local entities, including the Department of Health Professions Workforce Data Center, the Joint Legislative Audit and Review Commission, the Joint Commission on Health Care, the Southwest Virginia Health Authority, or any similar regional health authority that may be developed; (iv) informing state and local policy development as it pertains to health care delivery, training, and education; (v) identifying and promoting evidence-based strategies for health workforce pipeline development and interdisciplinary health care service models, particularly those affecting rural and other underserved areas; (vi) supporting communities in their health workforce recruitment and retention efforts and developing partnerships and promoting models of participatory engagement with business and community-based and social organizations to foster integration of health care training and education; (vii) advocating for programs that will result in reducing the debt load of newly trained health professionals; (viii) identifying high priority target areas within each region of the Commonwealth and working toward health workforce development initiatives that improve health measurably in those areas; (ix) fostering or creating innovative health workforce development models that provide both health and economic benefits to the regions they serve; (x) developing strategies to increase diversity in the health workforce by examining demographic data on race and ethnicity in training programs and health professional licensure; (xi) identifying ways to leverage technology to increase access to health workforce training and health care delivery; and (xii) developing a centralized health care careers roadmap in partnership with the Department of Health Professions that includes information on both licensed and unlicensed professions and that is disseminated to the Commonwealth’s health care workforce stakeholders to raise awareness about available career pathways.

History. 1990, cc. 874, 877; 1997, c. 329; 2000, c. 480; 2010, cc. 187, 488; 2021, Sp. Sess. I, c. 264.

The 2000 amendments.

The 2000 amendment by c. 480 added the last sentence of subsection B.

The 2010 amendments.

The 2010 amendments by cc. 187 and 488 are identical, and rewrote the section.

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 264, effective July 1, 2021, added clauses (x) through (xii) at the end of subsection B and made stylistic changes.

§ 32.1-122.7:1. Board of Directors of the Virginia Health Workforce Development Authority.

The Virginia Health Workforce Development Authority shall be governed by a Board of Directors. The Board of Directors shall have a total membership of 15 members that shall consist of three legislative members, nine nonlegislative citizen members, and three ex officio members. Members shall be appointed as follows: two members of the House of Delegates, to be appointed by the Speaker of the House of Delegates in accordance with the principles of proportional representation contained in the Rules of the House of Delegates; one member of the Senate, to be appointed by the Senate Committee on Rules; and nine nonlegislative citizen members, three of whom shall be representatives of health professional educational or training programs, five of whom shall be health professionals or employers or representatives of health professionals, and one of whom shall be a representative of community health, to be appointed by the Governor. The Commissioner of Health or his designee, the Chancellor of the Virginia Community College System or his designee, and the Director of the Department of Health Professions or his designee shall serve ex officio with voting privileges. Members appointed by the Governor shall be citizens of the Commonwealth.

Legislative members and ex officio members shall serve terms coincident with their terms of office. All appointments of nonlegislative citizen members shall be for two-year terms following the initial staggering of terms. Appointments to fill vacancies, other than by expiration of a term, shall be for the unexpired terms. Legislative and citizen members may be reappointed; however, no citizen member shall serve more than four consecutive two-year terms. The remainder of any term to which a member is appointed to fill a vacancy shall not constitute a term in determining the member’s term limit. Vacancies shall be filled in the same manner as the original appointments.

The Board of Directors shall elect a chairman and vice-chairman annually from among its members. A majority of the members of the Board of Directors shall constitute a quorum.

The Board of Directors shall report biennially on the activities and recommendations of the Authority to the Secretary of Health and Human Resources, the Secretary of Education, the Secretary of Commerce and Trade, the Chief Workforce Development Advisor, the State Board of Health, the State Council of Higher Education for Virginia, the Joint Commission on Health Care, the Governor, and the General Assembly. In any reporting period where state general funds are appropriated to the Authority, the report shall include a detailed summary of how state general funds were expended.

The accounts and records of the Authority showing the receipt and disbursement of funds from whatever source derived shall be in a form prescribed by the Auditor of Public Accounts. The Auditor of Public Accounts, or his legally authorized representative, shall examine the accounts of the Authority as determined necessary by the Auditor of Public Accounts. The cost of such audit shall be borne by the Authority.

History. 2010, cc. 187, 488; 2014, c. 720; 2018, cc. 57, 307; 2021, Sp. Sess. I, c. 264.

Editor’s note.

Acts 2010, cc. 187 and 488, cl. 2 provides: “That upon the initial appointment of the Board of Directors for the Virginia Health Workforce Development Authority, § 32.1-122.21 of the Code of Virginia is repealed.”

Acts 2010, cc. 187 and 488, cl. 3 provides: “That the initial terms of nonlegislative citizen members of the Board of Directors for the Virginia Health Workforce Development Authority shall be staggered as follows: four members shall be appointed for terms of two years and three members shall be appointed for terms of one year.”

Acts 2014, c. 720, c. 2 provides: “That the provisions of this act shall not affect the length of any term that began prior to July 1, 2014.”

The 2014 amendments.

The 2014 amendment by c. 720, effective April 6, 2014, in the second paragraph substituted “four” for “two” in the fourth sentence.

The 2018 amendments.

The 2018 amendments by cc. 57 and 307 are identical, and in second sentence of the fifth paragraph, deleted “annually” preceding “examine” and inserted “as determined necessary by the Auditor of Public Accounts.”

The 2021 Sp. Sess. I amendments.

The 2021 amendment by Sp. Sess. I, c. 264, effective July 1, 2021, in the first paragraph, added the second sentence and in the third sentence, substituted “Members shall be” for “The Board shall consist of 13 members to be,” substituted “and nine” for “seven” following “Senate Committee on Rules,” substituted “five” for “three” following “training programs,” in the second paragraph, substituted “ex officio members” for “state government officials” in the first sentence, in the third paragraph, inserted “of Directors” following “Board of” in two places and deleted “legislative” following “among its” in the first sentence, in the fourth paragraph, inserted “the Chief Workforce Development Advisor” in the first sentence and made stylistic changes.

§ 32.1-122.7:2. Powers and duties of the Virginia Health Workforce Development Authority; exemptions.

  1. The Authority is authorized to serve as the incorporated consortium of allopathic and osteopathic medical schools in Virginia as required by federal statute to qualify for the receipt of Area Health Education Centers programs, legislatively mandated under the Public Health Service Act as amended, Title VII, Section 751, and 42 U.S.C. § 294a, and to administer federal, state, and local programs as needed to carry out its public purpose and objectives. The Authority is further authorized to exercise independently the powers conferred by this section in furtherance of its corporate and public purposes to benefit citizens and such other persons who might be served by the Authority.
  2. The Authority is authorized to monitor, collect, and track data pertaining to health care delivery, training, and education from Virginia educational institutions and other entities as needed to carry out its public purpose and objectives in areas where such data efforts do not already exist.
  3. The Authority shall have the authority to assess policies, engage in policy development, and make policy recommendations.
  4. The Authority shall have the authority to apply for and accept federal, state, and local public and private grants, loans, appropriations, and donations; hire and compensate staff, including an executive director; rent, lease, buy, own, acquire, and dispose of property, real or personal; participate in joint ventures, including to make contracts and other agreements with public and private entities in order to carry out its public purpose and objectives; and make bylaws for the management and regulation of its affairs.
  5. The Authority shall be exempt from the provisions of Chapters 29 (§ 2.2-2900 et seq.) and 43 (§ 2.2-4300 et seq.) of Title 2.2.
  6. The exercise of powers granted by this article and the undertaking of activities in the furtherance of the purpose of the Authority shall constitute the performance of essential governmental functions. Therefore, the Authority shall be exempt from any tax or assessment upon any project or property acquired or used by the Authority under the provisions of this article or upon the income therefrom, including sales and use taxes on tangible personal property used in the operation of the Authority. This exemption shall not extend to persons conducting business for which local or state taxes would otherwise be required.

History. 2010, cc. 187, 488.

§ 32.1-122.8. Board’s authority to receive and expend funds.

The Board of Health is hereby authorized to apply for, receive, and expend federal and any other available funds for the enhancement of the primary health care system including, but not limited to, any funds designated for any physician loan repayment program, medical scholarships, and area health education centers.

History. 1990, cc. 874, 877.

§ 32.1-122.9. Conditional grants for certain dental students.

  1. With such funds as are appropriated for this purpose, the Board of Health shall establish annual dental scholarships for students in good standing at Virginia Commonwealth University. No recipient shall be awarded more than five scholarships. The amount and number of such scholarships shall be determined annually as provided in the appropriation act. The Commissioner shall act as fiscal agent for the Board in administration of the scholarship funds.The governing board of Virginia Commonwealth University shall submit to the Commissioner the names of those eligible applicants who are most qualified as determined by the regulations of the Board for these dental scholarships. The Commissioner shall award the scholarships to the applicants whose names are submitted by the governing board.
  2. The Board, after consultation with the School of Dentistry of Virginia Commonwealth University, shall promulgate regulations to administer this scholarship program which shall include, but not be limited to:
    1. Qualifications of applicants;
    2. Criteria for award of the scholarships to assure that recipients will fulfill the practice obligations established in this section;
    3. Standards to assure that recipients participate in the Commonwealth’s medical assistance services program, established pursuant to § 32.1-325 , and the Family Access to Medical Insurance Security Plan, established pursuant to §