by James C. Sherlock
Virginia Department of Health inspectors, on page 11 of 66 of a statement of deficiencies dated June 21, 2021, wrote of a gut-wrenching discovery.
They found an incontinent patient at Autumn Care of Suffolk, a stroke victim unable to talk, tied to her bed by a staffer. She was terrified and humiliated.
The investigation resulted in lots of finger pointing but failed to pinpoint responsibility. Adult Protective Services found that the patient had been abused. The facility promised better training.
Autumn Care of Suffolk last quarter offered 17 minutes of registered nurse (RN) time per resident per weekday vs. a national average of 39 minutes. It provided five minutes of RN staffing per resident per day on weekends vs. a 26-minute national average. It is currently open and accepting new patients.
This article is for that poor woman.
And it is for the nurses, heroines and heroes of the pandemic, who consider nursing a vocation as well as a job. There was a shortage of RNs going into the pandemic. It is worse now because of burnout.
The National Council of State Boards of Nursing estimates that the RN shortfall has reached 100,000. Those remaining, their salaries finally improved by COVID-induced supply-demand, ask only that they be permitted to do their lifesaving work in conditions that will let them do it well.
The General Assembly, by near unanimous votes this year, whether members understood it or not, passed identical bills (HB 1446 / SB 1339) Certified nursing facilities; minimum staffing standards, administrative sanctions that told both that woman and the nurses to go to hell.
And the Governor, undoubtedly similarly unaware of the poison pill in complex bipartisan legislation that promised in its title new regulation of nursing homes, signed the legislation.
They reasonably can claim ignorance for the rather convincing reason that they and their families are put at risk by it.
But some knew.
A skilled nursing facility (SNF). Your government and private insurance will no longer pay hospital costs when your doctor determines both:
- that you need residential skilled nursing supervised and provided by registered nurses to recover from surgery and any injuries; and
- that you no longer need care that only a hospital can provide.
When both conditions are satisfied, all insurers, government and private, require that you be transferred to an SNF. So that RNs can supervise and attend personally to your recovery.
That should, in theory and in practice, work fine for you. “Should” is the operative word.
Neither your insurance company nor your doctor wants you transferred to a rooming house full of injured people. And you certainly do not wish to be lying hurt in one.
But too many Virginia nursing homes, far above the national average, that proclaim themselves skilled nursing facilities are for much of the time without sufficient registered nurses.
They are at that point expensive and dangerous rooming houses.
Virginia has 289 facilities with signs on the lawn that say they provide skilled nursing services. Some are quite excellent. But 139 of them, 48%, are rated one star out of five by the Centers for Medicare/Medicaid Services (CMS) for staffing today. Nationally 20% are.
Definitive Healthcare reported two days ago that the average “staffing” score for Virginia nursing homes is 2.1 out of a possible five. Among the states, only Indiana, Ohio, Louisiana and Texas rank lower. In the CMS “overall” score, only five rank lower. Barely.
I exempt the current Health Commissioner from any blame in this. She has been there a little over a month.
But previous Health Commissioners have known who the bad actors are.
They have known from the same sources I do, from the Centers for Medicare/Medicaid Services (CMS) monthly (to them) staffing reports that I see quarterly, and from biennial inspections by their own Office of Licensure and Certification (OLC).
More than a few of the OLC reports of conditions found during inspections of understaffed nursing homes have caused me to question the humanity of letting such things happen, much less causing them to happen.
Virginia, which does not clean up its nursing home messes, has more grossly understaffed nursing homes, boarding houses with sick people, that almost any other state. That is the reason that a large number of our nursing homes are owned by unscrupulous investors from other states.
A new Virginia law virtually assures that deficiencies will not be corrected. Starting July 1, 2025, understaffing will be protected by law and remain profitable for many years before sanctions can be levied.
The Health Commissioner. Current law and regulations empower the Health Commissioner at her discretion (uses the word may) to invoke the following civil penalties:
- “restrict or prohibit new admissions to any nursing home or certified nursing facility, or petition the court to impose a civil penalty against any nursing home or certified nursing facility or
- to appoint a receiver for such nursing home or certified nursing facility, or both, or
- revoke the certification or revoke or suspend the license of a hospital or nursing home or the certification of any certified nursing facility for violation of any provision of this article or Article 2 (§ 32.1-138 et seq.) of this chapter or of any applicable regulation promulgated under this chapter or for permitting, aiding, or abetting the commission of any illegal act in the hospital or nursing home.”
Under existing regulations,
“C. The following reasons may be considered by the department for the imposition of administrative sanctions or the imposition of civil penalties:
1. Failure to demonstrate or maintain compliance with applicable standards or for violations of the provisions of the Code of Virginia;
2. Permitting, aiding, or abetting the commission of any illegal act in the nursing facility; or
3. Deviating significantly from the program or services for which a license was issued without obtaining prior written approval from the OLC, or failure to correct such deviations within a specified time.”
D. Violations which in the judgment of the OLC jeopardize the health and safety of residents shall be sufficient cause for immediate imposition of this section.
“Judgment of the OLC.” Applicable standards like staffing. Illegal acts like assault.
In a testimony to the capture of the process by the nursing home operators, including their designated seat on the Board of Health, I have found no instance in which that authority has been exercised.
Starting with a lengthy series of reports in the fall of 2021 and again this year, I made the case here on BR that the Health Commissioner must use his/her authority to protect patients and nurses.
Not the least because some nursing home chains demonstrably have been leveraging that reluctance as a business model to maximize profits.
The Joint Commission on Healthcare (JCHC) investigated nursing home staffing issues in 2021. The report Workforce Challenges in Virginia’s
Nursing Homes got a lot of things right, including this recommendation.
“JCHC could introduce legislation to amend section § 32.1-127 of the Code of Virginia to require nursing homes to provide at least the number of expected total direct care hours and total RN hours that are calculated by CMS based on resident acuity in each nursing home.” (emphasis added)
The report also found:
“In general, facilities with fewer staff also have a higher concentration of Medicaid recipients and Black residents.” (emphasis added)
That must not have resonated with the Legislative Black Caucus.
Virginia’s nursing home owners, unamused by the shining of lights on their businesses, struck back in this year’s General Assembly at any attempts at reform.
The legislation. JCHC, in the persons of its Chairman Democratic Senator George Barker and Vice Chairman Republican Delegate Bobby Orrock, carried legislation that twisted that recommendation to fit what the nursing home operators wanted it to say. It specifically excluded RN staffing assessments.
The new fines authorized by the bill are set, starting at year three of uncorrected staffing deficiencies that have been subjects of failed corrective action plans, at a maximum of $50,000 annually, a cost half of the price of adding a single RN?
A $50,000 fine for a nursing home like the one who I found advertising
“Registered Nurses wanted. All shifts.”
To an RN who considers nursing a vocation, that ad is like a running wood chipper. She doesn’t have to stick her hand in it to know she’s not going to like it.
To accomplish the RN exclusion, the bill could not and thus did not leverage the existing CMS reporting and assessment structures.
The bill exempts from sanctions
- “facilities that the Commissioner finds have been advertising for more staff; and
- any facility located in a “medically underserved area” that “limited its ability to recruit and retain direct care staff”?
No nursing home will ever pay those fines. They all advertise for staff. Even the wood chippers.
The only people left unprotected are the patients and the nurses.
Virginia politicians call that healthcare reform. But, then, they don’t call unrestricted campaign donations bribes.
Members of the General Assembly and the governor might have asked why CMS cares specifically about and measures RN staffing and RN turnover, not just total nurse staffing that includes RNs, licensed practical nurses (LPN), and nurse aides as a group.
If they had asked, they would have found out that RNs are the medical professionals directly responsible for carrying out the physicians orders. LPNs are not licensed to execute the most critical parts of the care, much less supervise it.
Most, I expect, had not read or been briefed on the JCHC report and recommendation. Even if they had, many were unlikely to notice that the identical bills carried by the Chair and Vice Chair of JCHC had twisted it beyond recognition.
Those worthies, Barker and Orrock, were each recipients of massive campaign donations from the healthcare lobby.
They carried bills that require the Commissioner to consider only total nurse staffing hours.
Not content with the instructions that ignored RN staffing, they banned it from ever being used as a criteria for reporting or levying new sanctions.
Then, to be kind to them, many must not have noticed that, under the bills for which they voted were these words:
“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 following iterative administrative sanctions:
They failed to notice that those “iterative” delays require five years of harmless sanctions that, because of exemptions, will never be levied.
Five years after the Commissioner first becomes aware that a nursing facility is understaffed to the point that patients are at risk. Before she, or her successor, can block it from accepting you as a new patient. Five years is an interesting number. It assures that no single Health Commissioner can finish what she starts.
It will not surprise those familiar with both our legislature and campaign donations that the bills were carried by:
- Democratic Senator George Barker, the Chair of the Joint Commission on Health Care and a member of Louise Lucas’ Senate Education and Health Committee; and
- Republican Delegate Bobby Orrock, the Chair of the House Health, Welfare and Institutions Committee and the Vice Chair of the JCHC.
The Senate bill was supported by Sen. L. Louise Lucas, Chair of the Senate Education and Health Committee, who knows something about healthcare. She is in the business. She did not recuse herself.
All three knew.
- Barker and Orrock orchestrated that both bills were, according to the time stamps on the bills, “pre-filed” on the day that the General Assembly convened. That is a much-used strategy by senior members to ensure that bills get as little scrutiny as possible.
- The “identical bill” strategy eliminated the requirement for crossover, and the additional scrutiny that brings.
- As “bi-partisan” identical bills from the JCHC leadership, it was perhaps reasonable for members to think nothing was amiss. But a couple of them protested, only to be shut down.
- Lucas is not only Chair of Education and Health, but als0 a member of the JCHC. She may not have noticed when the JCHC staff informed the Commission in a brief that Black people are disproportionately affected by understaffed facilities. Or maybe she did not care.
VPAP reveals that Sen. Barker, now retired by a loss in his redistricted primary, raked in over $500,000 from Virginia healthcare interests over his career. Del. Orrock, there much longer, has collected nearly three quarters of a million dollars from those same businesses.
Sen. Lucas has received over $420,000. She is in that business.
Barker and Orrock knew. Louise Lucas knew.
They knew that some Virginia skilled nursing facilities are, too much of the time, rooming houses with very sick people in them. Without RN supervision and hands on care.
All three knew that OLC reports have shown for a long time that some patients are humiliated, terrified, assaulted, injured and die prematurely because of it.
Barker and Orrock knew. They carried the bills anyway.
Barker is gone. Orrock should resign.
There are three nursing homes in Louise Lucas’ Portsmouth. All three are rated one star for staffing. She should resign for letting her constituents down so thoroughly and crassly.
The Governor and the rest of the General Assembly have two years to correct what they have done.
The Health Commissioner and OLC can get started right away in culling the herd.
Six Virginia nursing homes are rated one star by CMS across the board — overall, inspections, staffing and quality measures. Use the filters like this. They show right up. Perhaps start there.
Or wherever OLC points you.
Appoint receivers. Stop the admission of new patients. Use Virginia state hospitals to help with the transitions for existing patients.
Then close the worst ones down. Let’s see how we fare with, say, 283 instead of 289 SNFs.
The operators will likely sue. The Attorney General will defend the actions. The law will be on his side.
Unscrupulous owners trying to profit from the lack of oversight will notice.
Updated July 17 at 09:45 with technical corrections and the elimination of the term “roaches” as perhaps accurate, but unnecessary to the discussion.