Nursing Facility Standards Enforcement

Updated Jan 27 @ 1700

by James C. Sherlock

Part One of this series served as an introduction to the circumstances surrounding one of the worst deaths humanly imaginable. It shows what happens when standards are not enforced.

Charges against staff. The government has alleged that the death was the result of criminal acts by facility staff at Colonial Heights Rehabilitation and Nursing Center (CHRNC) in Chesterfield County.

It appears they may have a case. But it better be a strong one.

The defense will plead that:

• facility owners were at fault for systematically understaffing the facility to increase profits; and
• the government was at fault for failing to oversee the facility and enforce federal law.

Both of those claims will have the distinct advantage of being true.

Charges against ownership? We do not know if indictments are pending against the owners of CHRNC. But that case may prove easier to make than the cases against staff.  

The data on staffing related to enforcement of federal law are incredibly granular to the level of hours of specific job codes on the payroll every day of every quarter. The data are submitted by the owners themselves, are auditable against payroll systems the coding of which is mandated by CMS, and are available going back to Q1 of 2017.

Because they control patient census, the owners will have limited options for defense to the charge of understaffing as a business model if the case is proven with their own data.

The tort bar. There will always be a key role for private lawsuits in causing owners to hew to standards. The data referenced above, which I will demonstrate in the next Part, combined with the new national staffing standards will make those cases easier to win.

Government. A tragedy like that poor woman’s suffering and death also represents a systemic failure that was both predictable and predicted, especially in Virginia. It could and should have been prevented. Neither the federal nor state governments have ever played an effective role in prevention.

State Government. The Virginia Department of Health (VDH) for four decades has been denied the staffing it needs to inspect nursing facilities and other healthcare providers with sufficient frequency to serve as a deterrent. The Office of Licensing and Certification (OLC), which conducts both state and federal nursing facility inspections, has only half of the staffing it needs and is unable to pay what the same recruits could demand in other medical jobs.

Legislation.  The governor is putting a bill before the General Assembly this session to provide sufficient funding to correct OLC’s staffing problem by increasing inspection fees on facilities. The industry has said it supports the bill, so it should pass if that is their position behind closed doors.

A second bill sponsored by the governor that will give the Health Commissioner intermediate authorities short of facility closure. I fully support it. But the industry opposes that one. It almost always controls enough votes to carry the day.  It will take citizen pressure to pass.

While they are at it, the General Assembly may wish to consider cancelling the protection from competition offered nursing facility owners by the Certificate of Public Need law. Look how well that has worked out. Virginia is in competition with Texas for having the worst portfolio of nursing facilities in the nation.

Current authority.  The Commissioner has several options to act against Colonial Heights under her current authorities .  I hope she will do so quickly.

Options to current ownership.  There are for-profit chains that operate excellent nursing facilities.  The state should solicit their interests in operating or expanding in Virginia. But options for purchasing the facilities are not limited to for-profit investors.

Cities and counties should look to the example of Orange County, which operates the outstanding Dogwood Village of Orange County Health and Rehab. To the best of my knowledge that facility uses no county funds.

Federal Government. The Center for Medicare and Medicaid Services (CMS) gathers broad and deep data that could easily be used to enforce all of the nursing home provisions of the Social Security Act, not just staffing. But the data lie largely unused.

Federal fines and mandated pauses in new admissions are based largely on the inspections (called surveys) that are conducted by OLC. Those only occur every two years or so, rather than every year as they should and will if the OLC funding bill is passed. Even when levied at appropriate intervals, the federal fines and admissions pauses simply do not cost owners as much as they save by ritual understaffing.

De-certification for Medicare and Medicaid, the ultimate CMS penalty, is very rarely used.

Government court proceedings. Citizens have a lot riding on success of the CHRNC cases. If they get verdicts against the owners, whether criminal convictions or major civil forfeitures including divestment, they will change the whole business in Virginia.

Prosecutors may wish to ask the Federal Trade Commission, which by agreement with the Justice Department oversees federal actions against nursing homes, to join the prosecution if they go after CHNRC owners who are based out of state. It is a felony to lie to the FBI.

I wish them well.