Author Archives: sherlockj

Virginia’s Certificate of Public Need Program – A New Sheriff in Town

Posted on August 15, 2023 | 25 comments

by James C. Sherlock

Everywhere counterproductive to competition, innovation and cost, Virginia’s Certificate of Public Need (COPN) program also has proven antithetical to quality and safety in nursing homes.

A thorough 2022 report by the National Academies of Sciences, Engineering and Medicine on improving nursing home quality had this to say about state Certificate of Need (CON) programs:

Certificate-of-need regulations and construction moratoria do not appear to have had their intended effect of holding down Medicaid nursing home spending; rather, these laws can discourage innovation and decrease access.

Certificate-of-need regulations may contribute to the perpetuation of larger nursing homes.

Despite the prominent role of nursing home oversight and regulation, the evidence base for its effectiveness in ensuring a minimum standard of quality is relatively modest.

The role of Virginia’s COPN program is as counterproductive to nursing home quality as is imaginable. Remember, COPN decisions happen before the state and federal regulators of the operations of nursing homes even get into the game.

Virginia’s COPN program is a statutory incumbent protection regime across all of its regulated targets. But it has gotten especially bad results with nursing homes, which by nearly every measure are among the worst in America.

In Virginia, the only realistic way to increase the size of a nursing facility is by COPN approval of the transfer of beds from one facility to another, often from one region of the state to another. Continue reading →

25 Comments

Posted in Central planning, General Assembly, Governance, Health Care, Long Term Care and Nursing Homes, Regulations and Government Oversight

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New Virginia Nursing Home Law Appears to Violate Federal Statute

Posted on August 12, 2023 | 12 comments

by James C. Sherlock

In addition to the General Assembly embarrassing themselves in the way they passed a law on nursing homes in this year’s session, they did it in an unseemly rush.

There was no pre-filing, a near-immediate and disgraceful floor “debate” led by the nursing industry’s lobbyist, and a rushed vote in the House Health, Welfare and Institutions Committee.  

A committee member in the House hearing asked for time to consider the bill. Her request was denied by the Chairman, who was the House patron of the bill. That was followed by a cursory review in the Senate Education and Health Committee before near-unanimous passage by both bodies.

Now it appears that the new state law they passed may violate the governing federal statute. Which, of course, state laws are not permitted to do under the supremacy clause. Continue reading →

12 Comments

Posted in General Assembly, Governance, Health Care, Long Term Care and Nursing Homes, Regulations and Government Oversight

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The Ongoing Tragedy of Virginia’s Nursing Homes

Posted on August 10, 2023 | 5 comments

by James C. Sherlock

Virginia’s Health Commissioners have a job that is broad and deep in its responsibilities and authorities.By statute, appointees must be physicians.

Each is the chief executive of the Virginia Department of Health (VDH): a central office in Richmond and 35 local health districts.

By Virginia statutes and regulations, they are also the final decision authorities on such issues as the licensing of hospitals and nursing homes and all Certificate of Public Need decisions.

Nursing homes. To the point of this particular discussion, Health Commissioners have since at least 1989 possessed statutory (Code of Virginia § 32.1-135) and regulatory 12VAC5-371-90. Administrative sanctions authority to sanction Virginia nursing homes.

B. The commissioner may impose such administrative sanctions or take such actions as are appropriate for violation of any of the standards or statutes or for abuse or neglect of persons in care. Such sanctions include:

  1. Restricting or prohibiting new admissions to any nursing facility;
  2. Petitioning the court to impose a civil penalty or to appoint a receiver, or both; or
  3. Revoking or suspending the license of a nursing facility.

The results of a FOIA request inform me that not one of them has ever used that authority.

Not once in 34 years. Continue reading →

5 Comments

Posted in General Assembly, Governance, Health Care, Long Term Care and Nursing Homes

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The Virginia Board of Health and Nursing Homes – A Strange Appointment

Posted on August 7, 2023 | 7 comments

by James C. Sherlock

I am starting to lose my sense of humor about the whole Virginia nursing home thing.

The Virginia Board of Health (VBOH) writes state regulations for every health facility and health services provider in Virginia, including nursing homes.

There is a statutory seat on the VBOH for a nursing home representative. (Of course there is.)

The incumbent, appointed by Governor Northam, is Melissa Green, RN. I am sure she is a good nurse and a good person.

But Ms. Green is also one of the three founders and the Chief Clinical Officer (CCO) of Trio Healthcare.

Trio is rated by the Centers for Medicare and Medicaid Services (CMS) as one of the worst nursing home chains in the entire country and the worst in Virginia.

The senses of humor of all of us are once again threatened by The Virginia Way. Continue reading →

7 Comments

Posted in General Assembly, Governance, Health Care

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Nurse Staffing in Virginia Nursing Homes in July Ranked 49th in the Nation

Posted on August 3, 2023 | 7 comments

by James C. Sherlock

The Centers for Medicare & Medicaid Services (CMS) has released its national nursing home quality data for July.

It provides summaries of nursing home performance for each state, the District of Columbia and three U.S. territories.

I sorted it for Reported Total Nurse Staffing Per Resident Per Day. I did that because Virginia’s lead nursing home lobbyist in January insisted, on video, to a hearing of an always-compliant General Assembly that the Commonwealth’s nursing homes be judged by that metric.

In July, our nursing homes ranked 49th by their own preferred total nurse staffing measure. Nurse shortages are nationwide, so that fact cannot explain it.

Those same nursing homes in those same data ranked 45th in total nurse turnover at 57.5% annually. Some of the worst individual Virginia nursing homes experience nearly 100% nursing turnover annually.

That creates a vicious cycle.

  • Virginia has too many nursing homes that are understaffed, some by design;
  • Nurses quite naturally don’t like to work in them and, with many job options, will not remain in such places;
  • When staffing falls, nurses know it from CMS data or reputation and won’t take a job where they will be overworked and unable to provide optimum care to patients;
  • The understaffed nursing homes get worse.

Continue reading →

7 Comments

Posted in Health Care, Long Term Care and Nursing Homes

Example Number 3,632 in the Decline of Local Newspapers in Virginia

Posted on August 2, 2023 | 34 comments

by James C. Sherlock

The newspaper business in Virginia continues its rapid descent into well-earned oblivion.

It is fair to disdain Donald Trump and hope that he is not our next president. Indeed, I have gone on record on BR with my views supporting that conclusion. This is an opinion blog.

But there is, or should be, such a thing as standards in newspapers. News here. Opinion there.

Many local newspapers now go too far as policy in a desperate attempt to survive. Or because the few remaining personnel simply don’t know any better. Or both. Continue reading →

34 Comments

Posted in Culture wars, Media

Virginia Redefines Student Progress in Grades 3-8 for Distributing Federal School Improvement Funds

Posted on August 2, 2023 | 5 comments

by James C. Sherlock

The Virginia Department of Education (VDOE) on June 16th notified the federal Department of Education (USDOE) of its updated State Plan.

Such updates are required annually to allow the states to receive federal school improvement funds appropriated for Elementary and Secondary Education Act (ESEA) as updated by the Every Student Succeeds Act (ESSA).

The change was designed under the Northam administration to give credit for the first time in Virginia to a school for the progress of any student who has:

  • failed two consecutive state assessments on SOLs or the Virginia Alternate Assessment Program (VAAP) test (eligible students with significant cognitive disabilities); but
  • does better in the current year than the previous one.

It has been in the works for several years. This past school year was the second year of data collected under that system. That in turn provides comparable year-to-year data to show progress or lack of same for a student and the work of his or her school. Thus, the formula change will be implemented in the coming school year.

The change was designed to help identify the schools in Virginia who most need the ESEA funding rather than repeated cycles of identifying the same schools with poor minority student populations without giving credit for such progress.

It appears to be at least partially an attempt to improve morale — to give teachers in such schools credit for improvements with kids, say, who enter 5th grade unable to read but show progress on the next set of tests.

I don’t know what effect it will have, but I believe it is a good thing to try.

We’ll look at the entire process for distributing that particular pot of federal money in Virginia. Continue reading →

5 Comments

Posted in Attendance, Discipline and Disorder, Education (K-12)

SCHEV on the Community College Guaranteed Admission and Credits Programs

Posted on August 1, 2023 | 11 comments

by James C. Sherlock

Image credit: Lumenlearning

I received a note from Peter Blake, director of the State Council of Higher Education for Virginia (SCHEV), in reference to my column on that program in early July.

He thanked, as do I, readers for their interest and supportive comments.

We agree with you that (Community College Guaranteed Admissions and Credits) are one of the most effective ways to expand access, improve retention and completion, and make college more affordable.

We (SCHEV) talk about it regularly in our various reports and recommendations.

We have a standing item in our annual tuition and fees report that calculates how much a student can save by following a pathway that goes through a community college.

For years, we have worked on improving systems that guarantee not only admission but also acceptance of community college credits toward a bachelor’s degree.

We could always do more outreach, so we appreciate your interest in the subject and the positive response you received from your readers.

It is important that the state offers a way to mitigate substandard K-12 educations. Virginia does that very well as far as I can tell.

It is important to spread the word.

But the Virginia Community College System (VCCS) cannot replace fully the lack of a solid grounding in life and academics in K-12. Continue reading →

11 Comments

Posted in Attendance, Discipline and Disorder, Education (higher ed), Education (K-12)

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Richmond’s 4th Circuit Court of Appeals Needs Better Judgment

Posted on July 29, 2023 | 30 comments

The 4th U.S. Circuit Court of Appeals in Richmond, Va. Acroterion/Wikipedia

by James C. Sherlock

Federal judges are supposed to call balls and strikes in relation to the Constitution and the law.

President Biden signed the Fiscal Responsibility Act into law on June 3.  Sec 324 of that law, Expediting Completion Of The Mountain Valley Pipeline,

  1. blocked any court from hearing cases about permits for the pipeline; and
  2. gave to the D.C. Circuit Court of Appeals jurisdiction over any other cases about that pipeline or about the law itself.

Judging federal agency decision cases is a traditional role for the D.C. Circuit Court of Appeals.

The 4th U.S. Circuit in Richmond, soon after the law was signed in Mountain Valley Pipeline, Llc V. Wilderness Society, Et Al. violated both key Sec. 324 provisions.

The Fourth Circuit had for years assumed for itself the role of federal and state regulator for pipelines in Virginia and wasn’t going to surrender that authority.

Having already multiple times rejected permits granted to the Mountain Valley and Atlantic Coast pipelines by the U.S. Fish and Wildlife Service and Corps of Engineers, among other federal and state agencies, it decided on July 10th and 11th to block construction once again while it reviewed challenges to yet more permits.

The Supreme Court overturned the decision very quickly and unanimously.

That was not an anomaly. The Conservative-Liberal split on the Supreme Court is 6-3.  Supreme Court rejections of 4th Circuit actions unanimously, 8-1 or 7-2, are becoming all too common. Continue reading →

30 Comments

Posted in Courts and law

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New CMS Hospital Quality Rankings – Virginia Facilities Ranked Exceptionally High

Posted on July 28, 2023 | 4 comments

by James C. Sherlock

UVa Hospital

The Centers for Medicare & Medicaid Services (CMS) on Wednesday released its latest annual hospital quality rankings .

Only 10.4% of the rated hospitals in the country were awarded the top ranking of five stars.  Of Virginia’s 74 rated hospitals, 13 received that top ranking. Almost 18%.

Nationally, 28% received one of the top two rankings.  In Virginia, 58%.

As a whole, Virginians are exceptionally well served.

By Hospital.  I have taken Virginia’s hospitals from the new national list and sorted them descending by star-ranking, 5 stars though 1 star.  The results are here.  

The footnote dictionary is here.  For the column header dictionary, see here.

By Hospital System.  Categorized by system and with computed system hospital averages, the system ranking is here, sorted, like the individual hospitals, descending from best to worst.

By Region.  See here.  Northern Virginia, with all of its hospitals 5- and 4-Star rated, may be the only region of its size in the country that can make that claim.

Regional wealth or poverty, and the attractiveness of the location to staff and management still matter.  Especially management.

The new rankings show significant changes.  We’ll take a look.

Continue reading →

4 Comments

Posted in Health Care

Youngkin Bans State Endorsements of Websites Targeted at Kids’ Sexuality That Do Not Require Parental Consent — WAPO Oobjects

Posted on July 27, 2023 | 36 comments

by James C. Sherlock

The Washington Post editorial board, like its news pages, has stubbornly and selectively ignored a lot of big news:

  • the ongoing emergence of testimony under oath of whistleblowers recounting the IRS and Justice Department’s handling of all things Biden;
  • evidence like strings of single-purpose bank accounts used by and for current residents of the White House to launder and distribute to the family a great deal of foreign money; and
  • the collapse of Hunter Biden’s plea deal.

Such things do not rise to be the subjects of editorials. Except one on June 20 that was not a proud moment. The title:

Why Hunter Biden’s plea deal is justified

A quote from that editorial:

The outcome appears similar to what other defendants might have gotten for similar violations of the law.

Another editorial praised the Justice Department as “steeped in a tradition of political noninterference.” Seriously. They wrote that.

But the same board is in full dudgeon today about Glenn Youngkin taking “vital resources away from LGBTQ+ youth.” So, did he cut funding to some important program? Did he ban something?

No, he:

quietly authorized the removal of a resource page for LGBTQ+ youths on the Virginia Department of Health website.

“Quietly”? Clearly not.

But for very good reasons. Continue reading →

36 Comments

Posted in Culture wars, LGBQT, Media

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Nursing Homes – What Could Go Wrong?

Posted on July 26, 2023 | 2 comments

Mt. Vernon Healthcare Center Alexandria

by James C. Sherlock

I have written a lot recently about staffing shortages in Virginia nursing homes and the Commonwealth’s national ranking near the bottom of the states for staffing measures.

It is appropriate to ask why that matters.

Federal analyses of Centers for Medicare & Medicaid Services (CMS) data offer the answer.

In proposing to adopt the Total Nursing Hours per Resident Day Staffing (Total Nurse Staffing) measure for the FY 2026 program year and subsequent years, the rule-makers offered this:

Staffing is a crucial component of quality care for nursing home residents. Numerous studies have explored the relationship between nursing home staffing levels and quality of care. The findings and methods of these studies have varied, but most have found a strong, positive relationship between staffing and quality outcomes.

Specifically, studies have shown an association between nurse staffing levels and hospitalizations, pressure ulcers, weight loss, functional status, and survey deficiencies, among other quality and clinical outcomes.

The strongest relationships have been identified for registered nurse (RN) staffing; several studies have found that higher RN staffing is associated with better care quality. We recognize that the relationship between nurse staffing and quality of care is multi-faceted, with elements such as staff turnover playing a critical role.

Remember, the surveys are conducted both for CMS certification and Virginia licensing by the Office of Licensure and Certification (OLC) of the Virginia Department of Health.

I have always found that office to be staffed by exemplary public servants, even while there have never been enough of them.

But we’ll get specific about Virginia nursing homes and survey deficiencies as the answer to the question:

“What could go wrong?”

Continue reading →

2 Comments

Posted in Crime, Corrections and Law Enforcement, Health Care, Long Term Care and Nursing Homes, Regulations and Government Oversight

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Staffing Has Collapsed in Many Virginia Nursing Homes, Creating a Health Crisis for Our Most Vulnerable Citizens

Posted on July 25, 2023 | 20 comments

by James C. Sherlock

I am seldom surprised by Virginia’s nursing home staffing problems, but new government data show no progress on staffing since October of last year.

Data from the Centers for Medicare & Medicaid Services show that the number of significantly understaffed facilities has not budged in seven months.

The numbers don’t lie.

And it undeniably represents a health crisis for our most vulnerable citizens.

The questions are: what are the facility operators and the Virginia Department of Health going to do about it? Continue reading →

20 Comments

Posted in Health Care, Long Term Care and Nursing Homes, Regulations and Government Oversight

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Understaffed Nursing Homes and the False Claims Act

Posted on July 22, 2023 | 26 comments

by James C. Sherlock

Nursing home operators, paid by government insurance programs on a per diem basis for caring for their patients, make higher profits if they understaff than otherwise.

The less staff they have, the higher their operating margins.

The federal government, with much experience in such situations, tries to offset those incentives with disincentives. It thinks, reasonably, that patients should actually receive the care that is paid for with government insurance funds.

In Virginia, some senior members of the health committees of the General Assembly are in love with our nursing home operators, offering legislation as gifts. That love is requited in the form of unlimited campaign contributions from the operators.

Touching story.

This being Virginia, that is legal. And too common.

However, help for patients is available and very active on another front: fraud charges brought by states and the Justice Department in federal court.

The unanimous Supreme Court opinion in Universal Health Servs., Inc. v. United States 136 S. Ct. 1989 (2016) • 195 L. Ed. 2d 348 Decided Jun 16, 2016 provided precedent for such filings under the False Claims Act.

The Court validated the government’s theory of law that a provider can be guilty of making a false claim based on the underlying representation that the care provided complies with the government Conditions of Participation.

Grossly understaffed nursing homes can be guilty of criminal or civil false claims or both by accepting payments for services which they do not provide or provide inadequately.

Both state and federal governments know exactly who those understaffed nursing homes are and have the payroll-based data to prove that some could not have provided it.

And they are taking the worst offenders to court. Continue reading →

26 Comments

Posted in Courts and law, Crime, Corrections and Law Enforcement, General Assembly, Governance, Health Care, Regulations and Government Oversight

An Utter (and Videotaped) Disgrace of the Virginia General Assembly

Posted on July 16, 2023 | 29 comments

by James C. Sherlock

Scott Johnson at the podium on Jan 17, 2023 testifying before the House Committee on Health, Welfare and Institutions.

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. Continue reading →

29 Comments

Posted in Campaign finance reform, General Assembly, Health Care, Labor and Workforce, Long Term Care and Nursing Homes, Medicaid, Money in politics, Regulations and Government Oversight, Social Services and Entitlements

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