No New Law or Regulation is Needed for VDH to Sanction Bad Nursing Homes

By James C. Sherlock

This is Part 2 of this series.  Part 1 is here.

I will offer here a deeper sense of Virginia’s bad nursing homes.  And of the historic lack of adequate regulation by the state.

Start with the fact that even the worst of them are still open.

Centers for Medicare & Medicaid Services (CMS) conduct and update at least quarterly a system of nursing home (and other facilities) assessments that is worthy of your trust.  I am cautious with all things government, but it has earned mine.

Nationally, 20% of nursing homes are rated one star overall by CMS.  In Virginia, 34% of nursing homes have that rating.

Don’t be mollified by the official designation of such facilities as “well below average.”  Many are places persons as vulnerable as nursing home residents should not be permitted to reside.

We are disgraced by having let that happen.   Virginians, through our state government, need to assure it does not continue.

VDH Inspections for CMS and the General Assembly.  The Health Commissioner who leads the Virginia Department of Health (VDH) is Virginia’s nursing home regulator.

The VDH Office of Licensure and Certifications (OLC) issues licenses, conducts licensing inspections, and is also the state nursing home inspection agent for CMS.  I have reported in the past that OLC has been very well led and very competent.  It is still both.

Healthcare facilities hate to be inspected.  Full stop.

CMS funds OLC for federal inspections.

But the state both underfunds OLC and restricts the periodicity of OLC inspections of healthcare facilities of all types.   State underfunding has led OLC to be badly understaffed for years.

The underfunding and inspection restrictions represent the spoils of over $124 million of campaign contributions to Virginia politicians of both parties from the healthcare industry over the years .

I have written about the situation more than once over the years to no effect.

Law and regulation.  Virginia law directs the issuance of regulations to nursing homes et. al. providing minimum standards for “the operation, staffing and equipping of hospitals, nursing homes and certified nursing facilities.”

The regulations on the books include 12VAC5-371-90. Administrative sanctions.

A. Nothing in this part shall prohibit the department from exercising its responsibility and authority to enforce the regulation, including proceeding directly to imposition of administrative sanctions, when the quality of care or the quality of life has been severely compromised.
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:

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

Those sanctions granted by the Board of Health by regulation are not fully representative of the range of options recommended by CMS, but they are more than sufficient to force action.

Sanctions for Violations.  It is past time to hold some of the nursing home operators to account.

I have heard the comment offered that it would be unfair to close bad nursing homes because the patients would have to move.  Utter nonsense.  Some of these places are dystopian.

More than a few are still operating and open to new patients that have been found guilty of patient abuse and are so labeled on the CMS website.

Here’s one inspection report from OLC of patient abuse.  Page down through the 66 page discrepancy form to page 11.  It describes a violation of an F 0600 standard:

Protect each resident from all types of abuse such as physical, mental, sexual abuse, physical punishment, and neglect by anybody.

Level of Harm – Actual harm.

Read it.

An incontinent resident, a stroke victim unable to talk, was tied to her bed by a staffer.  She was terrified.  In the investigation, lots of finger pointing.  Unable to pinpoint responsibility. Adult Protective Services found that the patient had been abused.  But good news:

Education on abuse policy, including use of restraints, has begun.”


Now go down to page 46.  See the violation of standard F 0726:

Have a registered nurse on duty 8 hours a day; and select a registered nurse to be the director of nurses on a full time basis.

Or see the next page for a violation of standard F 0742:

Provide the appropriate treatment and services to a resident who displays or is diagnosed with mental disorder or psychosocial adjustment difficulty, or who has a history of trauma and/or post-traumatic stress disorder.

Please note that the OLC professionals that conducted the inspection were very thorough and pulled no punches.

That particular 0600 violation is not nearly the worst of such offenses I have seen. Others document assaults and batteries that have resulted in emergency room admittance for broken limbs and other injuries.

OLC, severely handicapped as they are, have done their job when they have been able to inspect.

But are police notified?  They must be notified of patients arriving in emergency rooms, but do the nursing homes themselves report?  Do Commonwealth’s Attorneys prosecute?  We do not know.

We do know that historically nothing serious enough to change the pattern has happened in the way of sanctions.  Instead, bad nursing homes have increased in number from 54 in 2021 to 98 now.

The data on which the star ratings are based are backward looking in the case of inspections, so, no surprise, they got worse during COVID.  BR wrote about the horror stories a lot at the time.

But CMS data on staffing and quality measures are updated quarterly.

Staffing, especially at the supervisory level, remains the core problem at the bad facilities.  Poor healthcare quality and violations of standards inevitably follow.

Bottom line.  I thought readers should know that when we are talking about one-star facilities we are not talking about paperwork errors.

I contend that while VDH does not have from the Board of Health regulations all of the sanction options available in the federal program, it has sufficient authority to regulate nursing homes far more effectively that has been done historically.

HB 330/SB 406 in 2022 and a similar bill this year proposed a law on minimum staffing of nurses.  The bills were a byproduct of a report by Virginia’s Joint Commission on Health Care.  Opposed by the nursing home lobbyist organization Virginia Health Care Association (VHCA), the legislation went nowhere.

The measure was continued to 2023 by voice vote in a Health, Welfare and Institutions subcommittee.  Brave.  It met the same fate in 2023.

A VHCA spokesperson pleaded that “the workforce simply isn’t there.”

Got it.  But there is a very long list of things none of us can have if we are not willing to pay for them.  We don’t have enough nurses in Virginia or America.  But by definition any nursing home that is not sufficiently staffed with nurses to provide the care needed by vulnerable residents is not a nursing home.

The owners say they need a raise in reimbursements by Medicaid for residents with some specific behavioral health diagnoses.  If so, give it to them, but note that some facilities both make money and provide 5-star care.

My advice to such owners would be to pick one:

  1. hire the nurses needed at whatever it costs, or
  2. close the facility.

No new law or regulation is required for the state to impose sanctions for neglect of patients based on chronic understaffing as reflected in CMS assessments or on patterns of abuse.

The Commissioner need only make the determination that the violations “severely compromise” patient quality of care or the quality of life.

I have faith in Secretary of Health and Human Resources John Littel to take appropriate action.  I hope to interview those in charge.

But I reiterate my question about law enforcement involvement in cases of abuse.

Perhaps the Attorney General will investigate as well to see if there has been any pattern of lawbreaking by ownership or failures to notify law enforcement of batteries.

Better news next time.  Both the nursing home operators and readers will be glad to note that a future episode in this series will focus on Virginia’s best nursing homes, of which we also have more than our share.