How Many Nursing Home Exposés Does It Take to Wake People Up?

by James C. Sherlock

The New York Times today published a nearly 5000-word article “Maggots, Rape and Yet Five Stars: How U.S. Ratings of Nursing Homes Mislead the Public.” It is extremely well done. I recommend it to everyone.

The did not mention corruption at the state inspection level except to mention that nursing homes all over the country seemed to know when the “surprise” inspections were coming. Criminal convictions have exposed payments as high as $500,000 to individuals with knowledge of the schedule for a heads up to nursing home operators.

Carol Bova, Jim Bacon and I have been writing about the political corruption that hamstrings the Virginia Department of Health’s inspectors for more than a year.

To remind of some of the key issues, in response to a FOIA request, I received the following response from the Virginia Department of Health (VDH) on November 30, 2020:

This is in response to your recent email about the April 2017 performance review conducted by the Office of the State Inspector General. Thank you for contacting us with your concerns.

The Virginia Department of Health (VDH) Office of Licensure and Certification (OLC) is responsible for licensing and inspecting health care facilities in the Commonwealth of Virginia. OLC’s overall situation with respect to funding and staffing has not improved since April 2017. OLC’s current authorized staffing is 127 positions, with current actual staffing being 105 (95 FTEs and 10 wage positions) and current vacancies being 22 (20 FTEs and 2 wage positions). Neither the current authorized staffing nor the current actual staffing allow OLC to meet its statutory and regulatory mandates. The specific shortfalls affecting OLC are the lack of sufficient medical facilities inspectors (MFIs) to conduct state licensure inspections. Even if OLC had every MFI vacancy filled, it would still not be enough to meet the statutorily prescribed 2-year interval between routine state licensure inspections. OLC has calculated the number of licensed facilities that have exceeded the 2-year inspection interval:

• Inpatient hospitals (IHs): 97.1%
• Outpatient surgical hospitals (OSHs): 86.4%
• Hospice and hospice facilities: 74.1%
• Home care organizations (HCOs): 88.2%
• Nursing homes (NHs): 47.9%

OLC has calculated it would need at least 10 additional MFIs for IHs and OSHs, 13 additional MFIs for hospice and HCOs, and 3 additional MFIs for NHs in order to fully meet its statutory and regulatory mandates. However, OLC’s ability to hire additional staff is directly tied to the licensure fee revenue it receives, as general appropriations to this office have been flat for many years. Unfortunately, OLC cannot raise fees for IHs, OSHs, and NHs because these fees are set by statute. The statutory fee structure for these facilities is $1.50/bed with a $500 fee cap; this fee structure has not been changed in 41 years.

VDH has previously sought, without success, to have legislation introduced to remove these fees from statute and authorize the State Board of Health (Board) to set fees via regulatory action so that sufficient licensure fee revenue could be generated to support the necessary staff to conduct licensure inspections. Given the continued limited availability of state general funds, VDH again sought to have such legislation introduced during the 2021 Session. The Board already has fee-setting authority for the hospice and HCO program and OLC has initiated a regulatory action for the HCO regulations, which will include increasing licensure fees, as well as planning a regulatory action for the hospice regulations that will likewise include fee increases. It should be noted that normally, these type of regulatory actions taken two years to accomplish; this timeline has been complicated by the COVID-19 pandemic and VDH’s role in responding to that crisis.

Current turnover of qualified staff does continue to impact the ability of OLC to carry out its duties. For federal fiscal year 2019, OLC’s turnover rate was 18.8% and for federal fiscal year 2020 (during which the COVID-19 pandemic has taken place), OLC’s turnover rate was 15.2%. This turnover rate is roughly twice or more that of the VDH overall. This turnover has largely impacted OLC’s MFI staff in the Division of Long Term Care Services and support staff throughout the office. Another hindrance to OLC’s ability to carry out its duties is the passage of Chapter 465 (2017 Acts of Assembly), which prevents OLC from re-inspecting a facility unless all other facilities of that same type have received an inspection. Prior to this legislative act, OLC would schedule inspections based on geographic closeness of facilities, to better utilize the MFIs’ time and state resources; after the passage of Chapter 465, MFIs travel greater distances between inspections so that inspections can be conducted in order. This increased travel increases the length of inspections, which means less inspections are conducted annually, and increases the cost of inspections, which compounds OLC’s financial situation.

OLC has a single policy analyst responsible for all legislative work, budget requests, and regulatory actions for the 10 state programs that OLC manages. OLC has previously requested additional funding for another policy analyst, and currently has a pending budget request. This budget request is in the process of being reviewed by both the offices of the Secretary of Health and Human Resources and of the Governor. OLC does not have any further information at this time to indicate whether this request will be included in the Governor’s proposed budget for the 2021 session of the General Assembly.

In regards to your question regarding OLC’s capability to “easily identify inspection issues and evaluate trends and optimum staffing levels,” OLC had previously reached an initial agreement with VDH’s Office of Information Management (OIM) wherein OIM would build an automated online licensing system for the Division of Long Term Care Services, at OIM’s expense, which would allow supervisors to run ad hoc reports so trends and issues could be easily identified. Provided this system was successful for the Division of Long Term Care Services, OLC had planned to expand the system to the other divisions within OLC. However, OIM subsequently declined to pursue development on any system unless OLC was responsible for the costs associated with development. As noted above, OLC is operating under severe financial constraints and is not able to do so at this time. OLC has repeatedly requested funding to support development of an automated online licensing system; these funding requests have been unsuccessful to date. OLC will continue to pursue funding for this purpose.

We want all residents in Virginia to have access to safe and high quality health care.

I published that information  on that same date I received it. I have sent a follow-up FOIA to determine if the OLC received any relief from any of this in the 2021 session. I hope so, but I doubt it.


Other columns by Carol and I that apply are:

And really, who is Tommy East?

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2 responses to “How Many Nursing Home Exposés Does It Take to Wake People Up?”

  1. Wahoo'74 Avatar

    Great article, Jim, and a topic we all need to expose.

  2. Nancy Naive Avatar
    Nancy Naive

    Wow! That place sounds like Walter Reed in the early 2000s.

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