Author Archives: sherlockj

Virginia Board of Health & the Infrastructure of Influence

by James C. Sherlock

The Virginia Board of Health (the Board) is by law a policy board (§ 2.2-2100) appointed by the Governor with the majority of seats specifically reserved for representatives of interests regulated by the Department of Health.

Virginia law gives the Board broad policy, regulation and enforcement responsibilities and duties to communicate to the General Assembly.

This arrangement puts representatives of regulated businesses in charge of developing and enforcing the regulations that govern their businesses. The Board then assures us they are advocating for the citizens and cites “advocacy concerning health care reform” as one of its core functions.

Really.  I could not make that up.

Continue reading

A Great Idea from Pennsylvania to Help Nursing Homes

by James C. Sherlock

Perhaps the Governor can call the General Assembly into special session to copy the best idea I have heard for a short-term fix to nursing home medical care.

The Pennsylvania House of Representatives has just passed the “Senior Protection Act” by a vote of 201-1 to appoint the state’s academic medical centers to take over responsibility for infection control, testing, surveillance and medical care supervision in the state’s nursing homes.

Says Pennsylvania Speaker of the House Mike Turzai:

“To ensure consistency of programs, response and study of clinical and public health outcomes, the legislation would establish a coordinated, collaborative public-private-partnership approach of regional health system collaboratives. These health collaboratives would administer/manage personnel, protocols, testing and expenditures to protect the seniors in these facilities.”

A 125-member Virginia COVID-19 Long-Term Care Facility Task Force was established on April 10. Go to https://www.vdh.virginia.gov/emergency-preparedness/ and click on Partner Briefing COVID19 Healthcare Coordination 5/8/2020 to find out what they have done. Continue reading

Virginia Disaster Law is Fatally Flawed

by James C. Sherlock

Executive Summary
It is an urgent legal necessity to revise the Commonwealth of Virginia Emergency Services and Disaster Law of 2000. That law has never been tested in court. It has many flaws that both hinder good governance in Virginia and will be exposed as potentially unconstitutional in any judicial review.

1. The law gives the governor authority to declare a state of emergency and thus activate his or her emergency powers without any review or authority to repeal the declaration by the General Assembly, even ex post facto. That gives the authority to the governor to grant himself the powers to both create offenses by decree and to police them.

2. The law gave the General Assembly no role in emergency response, even if it is in regular session and/or the emergency lasts for a very long time.

3. 1. and 2. provide clear challenges to the Guarantee Clause (Article IV, Section 4) of the U.S. Constitutio:. “The United States shall guarantee to every state in this union a republican form of government.”

4. The law did not provide for a General Assembly role in confirming or rejecting executive orders that restrict constitutionally guaranteed freedoms. Such restrictions have far stronger chance of being upheld in state and federal courts if the General Assembly plays a role, at least ex post facto, to confirm, modify or reject such an order.

5. The law puts no reasonable time limits on either the state of emergency itself or the executive orders resulting from the emergency. Under the current law both the state of emergency and executive orders, absent action by the governor that proclaimed both, expire on June 30, 2021, at which point he can renew them.

6. The law does not make provisions to put the General Assembly in position to participate in emergency response in a streamlined, more time sensitive manner and efficient manner.

7. All of these mistakes perhaps can be shown to have resulted from the consideration of only short duration disasters such as the ones listed in the law, not a pandemic of the duration of the one we are facing.

With the arrival of a pandemic, both sides of the aisles in both houses of the General Assembly have realized that law both makes them irrelevant and makes the law itself a prime target for judicial reversal. It is time to change the law. The August special session is the venue.
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Wisconsin Supreme Court calls a Halt to Governance by Decree

by James C. Sherlock

The creation of laws in America is subject to separation of powers, as is their review for constitutionality by the courts.

The question in the current crisis is about executive orders. One-person rule was the primary fear of the founders of the republic and is exquisitely guarded against by separation of powers structures and specified individual rights in the Constitutions of the United States and of each sovereign state. Where a state doesn’t guarantee individual rights, the U.S. Constitution is supreme.

Virginia’s law granting unlimited executive authority for an unlimited period in a crisis that the Governor himself declares is a prima facie violation of both the Virginia and U.S. Constitutions.

There is a readily available remedy — participation by the General Assembly in decisions for which the Governor is instead empaneling citizen committees and then ignoring them (see in Virginia the 24-person panel on openings).

There are three available paths to the remedy:
1. The courts can find the law unconstitutionally vague and sweeping and declare it unconstitutional;
2. State legislatures can fix the problem by changing the law and overriding any gubernatorial veto, which needs to be done regardless of court actions;
3. Both Continue reading

Rorschach Test

Look at this map that shows the relative percentages of stay at home by citizens on the week ending April 30 and comment on what you see and why you think that is. The darker the shading, the more people stayed at home.

Private Lab COVID testing and Medical Supplies in Virginia

by James C. Sherlock

PBS posted an excellent article yesterday relating that:

“Virginia (Virginia Department of Emergency Management (VDEM)) is in the process of finalizing contracts with private labs to expand COVID-19 testing in Virginia. Gov. Ralph Northam has said that widespread testing of at least 10,000 people per day is key to reopening the government. State officials claim Virginia is doing enough testing to partially reopen this Friday, although new studies suggest otherwise. Supply shortages have also hindered expanded testing.”

“In the process of finalizing” – take that however you will. No word on when the process started. Not sure what remains in the negotiations, since the labs are offering the test kits and the processing of those kits at the price that Medicare will reimburse. “I believe [the $100 per test rate] seemed to be about the going rate when we talked to the other companies, said VDEM’s Stern.”

Meanwhile, supplies required for the safe practice of medicine and for testing remain in short supply for front line practitioners other than hospitals.

We have discussed in this space for at least six weeks that Virginia needs to “create a distribution pipeline for PPEs for independent physicians in our community. We cannot risk a shortage of physicians, nurses and ancillary providers due to lack of protection.” – Soheila Rostomi, MD, President, Medical Society of Northern Virginia Board of Directors quoted March 28. Continue reading

Virginia’s Nursing Home Regulations Non-compliant with Federal Regulations and Virginia Law

by James C. Sherlock
(Updated 1 PM Sunday, May 10)

In 2016 the federal Department of Health and Human Services, Centers for Medicare & Medicaid Services (CMS) revised the regulations for nursing homes seeking certification under Medicare and Medicaid, which is effectively all nursing homes. The overall title of the changes was Medicare and Medicaid Programs; Reform of Requirements for Long-Term Care Facilities.

The final rule was published in the Federal Register on Oct. 4, 2016. The changes were extensive and implemented in three phases, the last of which was to be completed by November 28, 2019. These regulations were revised pursuant to Titles XVIII (Medicare) and XIX (Medicaid) of the Social Security Act.

The Code of Virginia § 32.1-127 requires that “the regulations promulgated by the Board (of Health) … shall be in substantial conformity to the standards of health, hygiene, sanitation, construction and safety as established and recognized by medical and health care professionals and by specialists in matters of public health and safety, including health and safety standards established under provisions of Title XVIII (Medicare) and Title XIX (Medicaid) of the Social Security Act, and to the provisions of Article 2 (§ 32.1-138 et seq.).

Yet the State Board of Health’s 12 VAC 5-371 Rules and Regulations for the Licensure of Nursing Facilities was last amended on March 1, 2007. Continue reading

Limit the Governor’s Power to Restrict Constitutional Freedoms at His Sole Discretion

by James C. Sherlock
Updated May 9 at 8:15 AM

The U.S. Constitution proceeded from and combined with the Declaration of Independence to form the basis on which we the people agreed to form a government. At its core it limits government so that government cannot limit freedom. The separation of powers within each state government and all laws of each state must conform to its requirements.

Judge Andrew Napolitano sees violations of the U.S. Constitution in the responses of some Governors to COVID-19. We need not agree to see what can be done to limit the power of a single individual to restrict freedoms while preserving state capabilities to act in extremis.

The law change I propose for Virginia is appropriate for every state in the country that gives its Governor the unfettered authority to declare an emergency and then, by virtue of that declaration, govern through executive orders and levy penalties for their violation without approval of the General Assembly.

I am going to take the judge’s findings and offer a layman’s assessment of current law and the constitution of Virginia of what might be done to meet potential U.S. constitutional objections.

The findings here about the shortcomings in Virginia law reflect objective assessment of Virginia law as written and of the U.S. Constitution.

My proposition is that if changes can be made in Virginia law to protect rights without negatively affecting state government response, then they must be made. Continue reading

COVID-19 – Virginia is the Most Under Tested State in the Union

by James C. Sherlock

I have told readers that I will update the state testing rankings here regularly. In a spreadsheet that I constructed using testing data from the COVID Tracking Project and Bureau of the Census data for population of 50 states and D.C., Virginia ranks 48th in testing per 100,000 citizens as of Monday May 4.

Virginia had tested 1,321 people per 100,000 citizens. Top ranked Rhode Island had tested 6,996 per 100,000. Second ranked New York 5,178. Neighboring Maryland 2,266. Tennessee 3,096. North Carolina 1,396. West Virginia 2,971.

Readers will have their own theories why we continue to lag so badly in testing, but lag we do.

Unfortunately, there is another statistic in which we rank much higher – percent of processed tests returning positive. In that statistic, we rank 14th, at 17.4% positive results. All of the states that have a higher percentage of tests returning positive have tested a far greater percentage of their populations than Virginia.

So one easily can make the case that Virginia is the most under tested of any state in the union given the need for testing demonstrated by our confirmed positive rate. That is really not a hard call.

Virginia Department of Health and the Staffing of Nursing Homes

by James C. Sherlock

Virginia announced on Friday that the state’s tally of COVID-19 deaths in long- term care facilities had reached 311. That can be traced at least in part to understaffing of nurses in nursing homes such as Canterbury (49 deaths) in Richmond in which Virginia’s sickest un-hospitalized patients reside.

Under Dr. Oliver’s leadership, the Virginia Department of Health has failed in its job to ensure its nursing homes are properly staffed. The Centers for Medicare/Medicaid Services 5-Star Nursing Home Compare system rates more than half of Virginia nursing homes as below (2 stars) or much below (1 star) national averages in the metric of registered nurse staffing that is critical to the care of patients. Virginia finds itself among the bottom 10 states in those staffing rankings.

This essay will provide evidence that nurse staffing deficiencies appear not to be consistently and properly reported in inspections, leaving operators unthreatened by corrective actions that require major expenditures in hiring additional nurses. Continue reading

Things You Need to Know about Nursing Homes

James C. Sherlock

Nursing homes are certified as nursing facilities (NF), skilled nursing facilities (SNF) or both for Medicare and Medicaid participation based on inspections by the state survey agency (Virginia Department of Health). I have italicized skilled nursing facility where it occurs to make it easier to distinguish between those two types of facilities and related care in this article.

The term nursing home is often used in COVID-19-related statistics, reports and opinion pieces. That term and its meaning and implications may be understood at varying levels by caregivers for nursing home patients, but it is not clear that the general public knows much about them. This article is designed to provide a baseline.

Who Pays for Nursing Home Care?

If a citizen is over 65, he or she is qualified for Medicare and may also be qualified for Medicaid. Everyone eligible for Social Security Disability Insurance (SSDI) benefits is also eligible for Medicare after a 24-month qualifying period. The first 24 months of disability benefit entitlement is the waiting period for Medicare coverage. Continue reading

Virginia’s Nursing Homes – Sources of Data and Ratings

James C. Sherlock

I am being flooded with very good questions from readers and private correspondents on what sources of information go in to the ratings of nursing homes.  

There are two primary sources, 

  • Center for Medicaid and Medicare Services (CMS) data, some of which comes from the states and most from its own massive databases; and 
  • State data, some of which comes from its own inspections, some from CMS, and some from audited annual financial reports of its nursing homes.  

This column will attempt to provide a comprehensive view. 

CMS Data

CMS data is accessible through the Medicare Nursing Home Compare website

Most of my commentary concerns staffing. The rating for staffing comes from a combination of the Payroll-Based Journal (PBJ) system that provides the data on actual levels of staffing each day of each quarter and the Minimum Data Set (MDS) national database that provides the data on needs for staffing for each patient and resident census. You will also see that the CMS gets its information on penalties assessed on private nursing homes from the state inspection data, not the other way around. If the state itself owns a nursing home or homes, those facilities are inspected and penalties assessed by the regional CMS office.   Continue reading

Update: Virginia COVID-19 Testing and Nursing Home Data

by James C. Sherlock

I update here the continuing scandals in Virginia nursing home understaffing and COVID-19 testing.

In a quarterly update, the percentage of understaffed nursing homes and the Virginia’s relative standing among the states and D.C. in that statistic every quarter are posted on Medicare Nursing Home Compare. Here are the data from 03/30/2020:

  • Fifty-one percent of Virginia nursing homes are understaffed (below average or much below average).
  • Virginia ranks 45th worst of 51 among states and D.C. in percentage of nursing homes understaffed.
  • Forty-two Virginia nursing homes are rated one star (much below average)

I will update Virginia COVID-19 testing data weekly.

  • Virginia testing per million persons ranks 50th of 51 among states and D.C. (Only Kentucky is worse).  Source covidtracking.com uses only official state government data and is updated daily. This ranking is from 04/24/2020

Who Is Tommy East?

Tommy East

James C. Sherlock

Tommy East sits as the Nursing Home Industry representative on the Virginia Board of Health. He is the President & CEO of Heritage Hall Healthcare and Rehabilitation Centers, an operator of nursing homes headquartered in Roanoke.

In 2014, he was appointed by Governor McAuliffe to serve on the Commonwealth of Virginia Board of Health. In 2018, he was reappointed by Governor Northam.

East has served on the Board of Directors and the Executive Board for the Virginia Health Care Association (Nursing Homes). The Virginia Healthcare Association over the years has contributed more than $2.5 million to candidates and PACs in Virginia.

Medicare Nursing Home Compare data and the state records maintained by Virginia Health Information were last updated on March 30, 2020, from facility payroll reports. In those data, 42 of Virginia’s 286 Medicare and Medicaid long-term care facilities reported one-star (much below average) staffing levels. More than half of the 286 were rated much below average or below average. Continue reading