By James C. Sherlock

Nursing home chains headquartered in New Jersey, New York, and Atlanta have, in the last decade, plagued Virginia with their operations here to a degree that should have proven intolerable to the Governor and the General Assembly.  New Jersey-based Medical Facilities of America (MFA) is both the largest and the worst-performing chain operating in Virginia, but it is not alone in its practices here.

Too many facilities of out-of-state chains routinely neglect and abuse Virginians, causing patient injuries and wracked, premature deaths.  Those are matters of public record, not conjecture.  Many of their facilities and employees have been cited by Virginia Department of Health (VDH) inspection teams and, in some cases, the police at rates that far exceed those of their peers.

The most direct cause is a combination of understaffing and overpopulation, given existing facility staffing levels.  That is actually a model of operation that is imposed and enforced by some chains.  It is the core feature of a broader business model that maximizes both profits and tragedy.  

Because of Virginia’s weakest-in-the-nation nursing home laws, we present a target-rich environment to the unethical.  Many out-of-state owners treat their investments as commercial real estate plays and simply do not care about patient and resident outcomes.  Virginia regulators, restricted by the General Assembly in authority and personnel, have proven incapable of imposing penalties sufficient to deter them.  

Strong staffing minima have been successfully implemented in nearby states.  But none have addressed directly the specific problem posed by the understaff/overadmit business model featured by the worst chains.

We will highlight an existing option available to all states that is seldom used.

The problem posed

Every nursing facility is required by federal regulation to limit its capacity to the number and acuity of patients it can adequately support with qualified staff, and to update that assessment regularly.  Translation: 180 beds in the building do not mean the day-to-day functional capacity to care for residents is 180. 

Yet many of the worst-staffed facilities in Virginia have the highest occupancy rates.  They may complete a facility assessment, but if they do, they ignore it.  

In many cases, it is mathematically impossible for the existing staff at these facilities to provide adequate treatment and support given the number of residents and their assessed needs.  Those instances are demonstrable in the facility staffing and patient assessment data that chains themselves report to the government.  

Chains and their owners can fix the problem by limiting admissions to comply with the facility assessment.  The worst do not.  

Current authorities

From the Virginia Administrative Code:

The Commonwealth shall deny payment for new admissions when

• a nursing facility is not in substantial compliance three months after the last day of the survey identifying the noncompliance, or
• the survey agency (VDH) has cited a nursing facility with substandard quality of care on the last three consecutive standard surveys. 

A facility is in “substantial” compliance, as a practical matter, three months after a survey if it reports as much.   VDH usually does not physically reinspect to make that determination.  Three consecutive surveys can take six years in Virginia.  So, not much help.  

An underused federal option

But when VDH inspectors conduct Medicare certification surveys or complaint inspections under contract to CMS, they are acting under federal authority and responsibility.  Investigative Procedures for deficiency code F838 in the State Operations Manual used by those inspectors tells them to ask:

• Does the facility assessment include an evaluation of the resident population and its needs (e.g., acuity) based on evidence-based, data-driven methods? Does this reflect the population observed? Does it address the facility’s resident capacity?
• Does the facility assessment include information on the staffing level(s) needed for
  specific shifts, such as day, evening, and night and adjusted as necessary based on
  changes to resident population?
• Does the facility assessment address what skills and competencies are required by those providing care? (emphasis added)

CMS requires those same investigators to check CMS Payroll-based Journal data on nurse and non-nurse staffing in preparation for surveys.  So they know what to look for.  When observed staffing does not come close to meeting the needs of the observed population, inspectors can tag it as Immediate Jeopardy.  CMS will sanction the facility by denying payments for new admissions, hopefully until staffing shortfalls are remedied through lower resident headcounts, new hires, or both.    

Residents and their loved ones can assist in this process by filing complaints specific to the staffing/occupancy problem when it is observed.  Most neglect issues and many errors are traceable to understaffing.  For example, if a facility consistently takes an average of 30 minutes to answer a resident’s call bell, it has too few staff, too many residents, or bad management, or all three.  Residents often can’t directly observe management effects, but they surely know when the call bell goes unanswered.

New State Standards Needed

The 2025 session of the General Assembly convened immediately after the Colonial Heights scandal.  Since then, it has passed some good nursing home legislation.  But it has tabled actions that would matter most.  Here are some that will really help that have not been submitted for legislative approval:

1. Give the Health Commissioner state authority to sanction nursing homes for failure to conduct or failure to comply with facility assessments required under CFR 483.71; and
2. Direct VDH to license nursing home chains to do business in Virginia for three-year periods.  Define the maximum average total health scores and the minimum average Medicare staffing star ratings that are allowable across their portfolios over that period to renew their licenses.  Dealing with chains by defining staffing averages relative to national peers using star ratings and setting a performance minimum driven by inspection results will at least change the conversation that became embittered over specific minimum staffing numbers in Virginia.

The next sound you hear may be checks being written by industry lobbyists, but perhaps our elected representatives will do the right thing.

Next time, we will look in detail at nursing home and chain performances in Delaware and Virginia.  Delaware has stronger staffing criteria and strictly enforces them with far stiffer sanctions than are available here.  It cushions that with higher Medicaid per diems for long-term care.  It works.  The contrasts are stark.  

There is another reason to pick Delaware.  MFA operates there and here, and Prestige Healthcare Administrative Services, about to operate in Virginia, already has facilities in Delaware.  We’ll look.