by James C. Sherlock
Whatever the Virginia Health Care Association (VHCA), the state’s nursing home lobbying organization, pays its General Counsel, Scott Johnson, it is not enough.
He has been representing them for 20 years, and he owns the General Assembly.
This is going to sound boring as I frame the background that is the subject of the hearing. But I feel I must try to explain the complexities to make what happened in the hearing understandable.
But I promise the hearing itself is not boring. There are heroes, heroines and villains.
That hearing was a thoroughgoing disgrace to the General Assembly of Virginia. Members are seen clearly to surrender their authority, their duties, and their personal dignity to an industry they are elected to oversee.
It was videotaped for posterity.
It represents the “Virginia Way.” a product of unlimited campaign donations. It is reprehensible.
The law passed through this process must be repealed in its entirety.
Background. I spent about four hours yesterday going back and forth through the video of a January 17th 2023 hearing by Chairman Bobby Orrock’s Health, Welfare and Institutions Committee on Orrock’s HB 1446, titled “Certified nursing facilities; minimum staffing standards, administrative sanctions”.
The name chosen for the bill exactly mimics a Democratic Congress that titled one of the largest spending bills in the history of the republic the “Inflation Reduction Act.”
Summary of HB 1446 as published:
“Sets nursing staffing requirements for certified nursing facilities, imposes administrative sanctions on a certified nursing facility if it does not comply with the staffing requirements, provides for exemptions to the administrative sanctions under certain circumstances, and directs the promulgation of regulations consistent with the bill. The bill has a delayed effective date of July 1, 2025. This bill is identical to SB 1339.”
The new law as passed and signed and effective July 1 of 2025 is § 32.1-27.2. Administrative sanctions.
To see the House Committee on Health, Welfare and Institutions hearing, go here, select January 17th on the calendar, scroll down to Health, Welfare and Institutions 8:30 AM – 10:30 AM, click on it, and click download media. When you open the downloaded mp3, you will see a screen that says “the meeting has ended.” Disregard that, and slide the bar to 8:36 and click start.
You will witness an absolutely stunning meeting, far worse than I, who have seen some bad hearings up there in my time, or hopefully most citizens, could have imagined.
That hearing, and the video of it, will remain as an enduring indictment of the entire General Assembly.
Mr. Johnson, from the audience, literally took over the hearing on the bill. I am told by insiders he has been doing that for a very long time. The bill was written by the VHCA. It was sponsored by Republican Orrock in the House and Democrat George Barker in the Senate, making it a “bipartisan” disgrace.
Watch as Johnson and Orrock, in partnership, take up the vast majority of the time at the hearing. Watch as they shut down speakers trying to present the government’s amendments.
Watch Johnson contradict the presenter from the Virginia Department of Medical Assistance Services (DMAS) on both Virginia Department of Health (VDH) and DMAS proposed amendments.
Watch as Johnson dismisses the arguments of Del. Vivian Watts, who has spent 20 years trying to hold nursing homes accountable for staffing, saying “her heart’s in the right place.” And then watch him contradict her true assertion that the new law, when activated in July of 2025, will block for five years the existing authority of the Health Commissioner to sanction nursing homes.
So, what going into the hearing was the VHCA so fearful of that Johnson took over the hearing and shut down both proposed government amendments and the questions and arguments of both members and government spokespersons?
Value-based purchasing (VBP) in Virginia Medicaid. The industry wants the new law in addition to Value-based Purchasing (VBP), a Virginia Medicaid program initiated by the General Assembly in 2021 to provide rewards for performance and improvement among nursing facilities receiving Medicaid payments.
For those new to the subject, among government insurance programs Medicare pays for relatively short term skilled nursing and rehabilitation after surgery or injury for all Medicare-eligible persons. So do private insurers.
Medicaid pays for long-term nursing care for the indigent who cannot take care of themselves in the activities of daily living. Please note: If candidates are not indigent, there is an entire section of the Virginia bar which will show relatives how to make them so within the law.
Dirty little secrets of VBP: Results of nursing home inspections by the Virginia Department of Health and star awards by CMS which overweight inspection results are not included in the VBP Attainment and Improvement thresholds.
Then they set the staffing thresholds so low that it is very difficult to get beneath them. But a lot of nursing homes still indeed allow that to happen.
We are left by this hearing on HB 1446 not to have to wonder how those provisions got in the law.
For VBP see here and go down to the Nursing Facility Value-based Purchasing Program report.
Select Autumn Care of Suffolk. You will see that it is currently sporting a CMS patient abuse warning and a CMS one-star rating for staffing, received $142,768 in VBP Attainment and Improvement Payments last year. For more details of that facility’s stomach-turning record, see here.
For the staffing record of the CMS one-star Colonial Health and Rehab Center in Virginia Beach, select it, and you will see it was awarded a VBP payment of $58,122 for “attainment and improvement” last year. See here for the actual story on Colonial.
You get will get the point.
Industry objectives. The industry wanted no reference in the bill to CMS data and thus the CMS algorithm on staffing, which feature registered nurse staffing as a criteria. RN staffing, the most crucial and the most expensive, is deeply discounted in the VBP algorithm.
They wanted no reference in the bill to turnover rates of registered nurses, all nurses, and administrators, which are also among the CMS criteria and calculated in its algorithm because that agency has found them each to have direct correlations to patient health and safety. Those measurements have no place at all in the VBP algorithm. We are not left to wonder why. We are not left to wonder who wrote the VBP law.
They wanted to retain the 5-year delay the VHCA authors had built into the bill before tough sanctions, currently available for use under existing law, are available under the new law.
Those current sanctions include receivership, denial of new patients, and shut down through withdrawal of state licenses granted by the VDH.
The “sanctions” in the new law are only small fines (after the third year of violations and two failed plans of correction) that no nursing home will ever pay because they are exempt from paying if they advertise for help. They are also subject to “probation.” whatever that means.
The industry wanted no reference in the hearing to the direct relationship between understaffing and the profitability of Virginia for-profit facilities, which are about 70% of the total number.
We know what Johnson’s objectives were. That is what he is paid to do. I do not fault him for representing his client.
I hold the committee responsible for letting him do it the way he did.
The Committee. The committee put up with Mr. Johnson taking over the hearing, shutting down and insulting to their faces both members and government witnesses.
Del. Adams asked one of the best questions. She asked Del. Orrock for more time to consider the details of this sweeping new bill that had not been filed until the first day of the session. Short answer: No.
Let’s go to the tape. I offer a summary of key points in the hearing that I created from the tape. It is as accurate as I was able to make it running and re-running that tape many times.
Orrock, as is the custom for a bill carried by a committee chair, passed the chair to the committee Vice Chair and took the floor to present his bill. Or that was the plan.
Orrock stated accurately that Virginia has neither the staffing or the training to get the staffing to provide the necessary personnel (to 289 nursing homes).
He then says at about 08:43 that he thinks that “all” would agree the one of the worst things we can do is come in and shut one of them down. (One out of 289). If there is one point in the hearing where the complete capture of the General Assembly by the nursing home industry is evident, it is here.
“All” certainly do not agree, Mr Chairman. Only the industry agrees.
“All” would not agree that a nursing home, as happened, found by VDH inspectors to have tied a stroke victim, unable to speak, to her bed and walked away and could not even identify who did it, should be allowed to keep accepting new patients.
From there, Mr. Johnson, the industry spokesperson, completely took over the hearing.
Johnson differentiated between DMAS’ Value-Based Purchasing (VBP) staffing data and CMS staffing data and made it clear that the industry does not want VDH to use CMS data.
A quote: “Data from CMS will be useless to “us.” Note the use of the imperial “us.” He then spoke to “why this (bill) “is written the way it is,” clearly indicating that VHCA wrote it.
Johnson, not Orrock, asked the committee to vote no on the VDH amendments. As it turned out, they never got a chance to vote on them at all.
Every time DMAS spokesperson Will Frank tried to offer DMAS or VDH amendments, Orrock or Johnson shut him down.
Sickles noted there or earlier in the hearing that, in VBP calculations, 20% of Virginia nursing homes are considerably understaffed. He did not mention, and I doubt he knew, that in CMS calculations 48% are rated one-star for staffing.
Del. Sickles asked Mr. Frank a question about his interrupted testimony. Johnson answered before Mr. Frank could speak.
Johnson and his association feared the government using CMS data, because it has much more complete data about and definitions of RN and overall staffing shortfalls, and RN, overall nursing, and administrator turnover than are not permitted by the bill to be used.
The industry wanted only overall nurse staffing data used, which is how the final version and the law reads.
VDH and DMAS proposed, or tried to, that CMS (Medicare and Medicaid) data be used to trigger the new sanctions. As I said, Orrock and Johnson shut them down.
Mr. Frank then withdrew VDH amendments pending talking to Johnson. He started to restate DMAS amendments, and Johnson stepped in and shut him down again.
Del. Vivian Watts spoke with conviction born of 20 years of experience with the subject of nursing home staffing. She objected to the multiple extensions of forgiveness in the bill so that no stronger action could be taken for 5 years.
She pointed out that this statute will be the one funded in the next biennial budget, so it had to be fixed. (It never was.)
At about the 52:19 point on the tape, Orrock interjected that they were running out of time.
Johnson, uninvited to do so, stepped to the podium again. He thanked Watts. He proceeded to say that her (Watts’) “heart’s in the right place.” (Some might find that both condescending and misogynistic. He may not have meant it that way, but often that does not matter).
Johnson then said that the new sanction authority in the bill “is in addition to HC’s current authority.” Here is the actual language in the new law, Code of Virginia § 32.1-27.2.(linked above):
“C. Prior to restricting or prohibiting new admissions to a certified nursing facility, suspending or refusing to renew or reinstate any nursing home license, or revoking any nursing home license issued pursuant to Article 1 (§ 32.1-123 et seq.) of Chapter 5, the Commissioner shall first impose the iterative administrative sanctions (in § 32.1-27.2.)” (emphasis added)
You can decide whether Watts or Johnson was correct. I pick Del. Watts.
The session was now put on the clock by the Acting Chair.
Johnson, not Orrock, introduced the chairman of industry association VHCA, who spoke for awhile. Reminiscing.
Orrock and the VHCA duo had now run out the clock.
ARP Virginia, Virginia Retired Teachers Association, and Virginia Poverty Law Center representatives were given less than a minute each to object to the bill. They did. All backed Watts.
Virginia Poverty Law Center’s Emily Hardy pointed out, for the first time in the hearing, that the bill provided for a minimum staffing level before sanctions of 3.08 hours of (total) nurse staff hours per resident per day, while the federal standard is 4.1.
I pointed to that as one of the dirty little secrets of VBP above. Her organization was not in favor of the bill.
Bottom line. I am writing this article to try to ensure that this performance, including the tape of it, will haunt the General Assembly, Orrock and his committee for years.
The Chairman, and the Committee, passed with a vote of 17-2 the Orrock amendments. They were never permitted to hear much less vote on proposed government amendments.
In the process of the hearing they surrendered all sense of duty, all sense of decorum and their self respect to an industry which they are elected to oversee.
The final bill, now law, contains everything the VHCA wanted when they wrote it. It contains nothing that Del. Watts proposed or that government witnesses attempted to propose as amendments to protect patients.
Perhaps I’ll review tomorrow the tape of the hearings on the identical bill in the Senate. It was heard by Louise Lucas’ Education and Health Committee. It was sponsored by committee-member and Chair of the Joint Healthcare Commission Sen. George Barker. The Bill was referred to the subcommittee chaired by Sen. Barker for consideration.
I wonder what we will see there, given that the contents of the final bill as passed and signed into law reflected exactly what the industry wanted.
I wonder if we will hear any discussion of the unchallengeable fact that reducing staff increases profits for the for-profit-dominated industry. And that only blocking new patients, forcing them into receivership and shutting some of them down can change that.
That is the reason that we have a new law blocking the Health Commissioner from using those authorities for five years in each case. Five years in a four-year term.
That law, passed in 2023, needs to be repealed at the first opportunity.
I hope that you and your loved ones, seeking a nursing home, don’t wind up in a rooming house. A rooming house with a nursing home sign on the lawn and a nursing home license framed in the lobby.
Welcome to Virginia and unlimited campaign donations.
Updated July 16 at 16:40 with additional images that are screen captures from the video of the testimony before the House Committee on Health, Welfare and Institutions on Jan 17, 2023. It includes some wording changes and a recommendation for repeal.
Updated July 16 at 17:45 to reflect that the Senate bill that was identical to HB 1446, Senator Barker’s SB 1339, was referred to Sen. Barker’s subcommittee for consideration and was subsequently passed in full committee and the full Senate.