Tag Archives: James Sherlock

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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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

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

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

Even Guam Leads Virginia in COVID-19 Testing

Lowest ranked states and possessions for COVID-19 tests per million population.

by James C. Sherlock

Virginia trails almost all U.S. states and possessions in the percentage of the population tested for the COVID-19 virus — even as Governor Ralph Northam has made extensive testing a prerequisite for ending the shutdown. Guam has performed more tests per capita than Virginia. Among the 50 states, Virginia exceeds only Kansas by a slim margin.

The accompanying table draws from The COVID Tracking website, which in turn pulled data from Virginia Department of Health website, effective April 22, 2020. I used state population figures from latest Census Bureau estimates for July 1, 2019.

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Canterbury Needs a Federal Audit

by James C. Sherlock

The patient population of the Canterbury Rehabilitation and Healthcare Center, site of nearly 50 COVID-19 deaths, consists primarily of Medicaid recipients. The facility recently changed ownership and was previously known as Lexington Court Rehabilitation and Healthcare Center.

Nursing Home Compare Five-Star Quality Rating System

A nursing home is a place for people who can’t be cared for at home and need 24-hour nursing care.  This Medicare 5-star rating system was developed to help individuals, family members, and the public compare the quality of nursing homes more easily by synthesizing a large volume of information on the website into an easily viewable star rating system. CMS based the Overall Ratings on an algorithm that calculates a composite view of nursing homes from three measures: results from approximately three years of onsite inspections carried out by trained surveyors; performance on certain quality measures; and self-reported nursing staffing levels.

Nursing homes provide skilled care to people who can’t be cared for at home and need 24-hour nursing care. Skilled care includes skilled nursing or rehabilitation services to manage, observe, or assess a resident’s care. Examples of skilled care include occupational therapy, wound care, intravenous (IV) therapies, and physical therapy.

CMS creates the overall star rating for nursing homes from 3 parts: (1) Health inspections (2) Quality of resident care measures and (3) Staffing.

Inspection Data

CMS bases Five-Star quality ratings in the health inspection domain on the relative performance of facilities within a state. From Medicare.gov records, based on an October 3, 2019 inspection, Canterbury was deficient in both staffing and infection control. I reviewed the report of the October 3, 2019, inspection, and it referred to only a single instance of a staffing shortage.  The last of entries in the four-page report of the deficiency ID Prefix tag F 0725, “Provide enough nursing staff each day to meet the needs of every resident…” were: Continue reading

VDH Responsibilities Regarding Nursing Homes

The Canterbury Rehabilitation facility where 46 residents have died of COVID-19 in one of the worst outbreaks in the country.

by James C. Sherlock

I have been asked an excellent question: What are the Virginia Health Commissioner’s responsibilities under federal and state law to regulate nursing homes? I will provide what I hope is a sufficiently complete answer.

The question is relevant because we need to ensure that episodes like the Canterbury Rehabilitation tragedy don’t happen. It did, and, as I have written, we need to know why. We will need an audit of the records of the Virginia Department of Health to see if it complied with the laws and regulations below.

First, I first refer readers to the CMS State Operations Manual[1]. Second, I will provide relevant sections from the Code of Virginia.

CMS State Operations Manual

“Chapter 7 implements the nursing home survey, certification, and enforcement regulations at 42 CFR Part 488. No provisions contained in this chapter are intended to create any rights or remedies not otherwise provided in law or regulation. Continue reading

Why Was Canterbury Short of Staff?


by James C. Sherlock

The image above captures financial information about Canterbury Rehabilitation (known as Lexington Court until new ownership this year) published on the Virginia Health Information website for the fiscal year ending Oct. 31, 2018. That is the most recent data available to the public.

Canterbury, to refresh your memory is the privately owned Henrico County nursing home for Medicaid patients where the COVID-19 virus has killed 46 patients so far — the deadliest outbreak in any facility in the country. It is a national scandal that cries out for explanation. One angle worth exploring is whether the nursing home could have afforded to hire additional nurses, and whether better staffing could have prevented or slowed the spread of the disease.

I can’t answer the latter question, but the VHI data allows us to address the former. If we compute the nursing home’s operating margin by dividing operating income of $876,728 by operating revenue of $15,132,121, we get an operating margin of 5.8%. That is a healthy margin for a Medicaid nursing home. Continue reading

The Canterbury Tragedy and the Failed Virginia Department of Health


Key metrics for Canterbury Rehabilitation (also known as Lexington Court). Source: Virginia Health Information

by James C. Sherlock

One of the issues we are facing with the decline of regional newspapers is the decline of investigative reporting. The few reporters left in Virginia covering the Northam administration are printing press releases as stories and reporting press conferences for what is said, not what is unsaid or wrong. The national newspapers focus on President Trump. An article in the New York Times on the Canterbury disaster failed to mention the Northam administration at all, even though that facility is Medicaid funded and the state has a responsibility to oversee (Department of Medical Assistance Services (DMAS)), inspect and license (Virginia Department of Health (VDH)) it.

States have a contract with the Centers for Medicare/Medicaid Services (CMS) to monitor those nursing homes that want to be eligible for Medicare and Medicaid.  Canterbury Rehabilitation and Health Care Center is one of those.  Nursing facilities are inspected by VDH Division of Long Term Care:

  • every 2 years for Virginia state licensure; and
  • an average of every 12 months for Medicare/Medicaid certification.

Out of a potential five stars in the rating of nursing homes by Medicare based on VDH inspections, 59 of 286 Virginia nursing homes have been rated one star, a Much Below Average rating. Nine of those have been cited for abuse. Continue reading

The U.S., and Virginia, Soon Will have COVID-19 Testing Out the Wazoo

by James C. Sherlock

The Washington press corps has aggressively questioned President Trump about the need for aggressive nationwide testing before reversing social distancing measures and opening up the economy. Many have pointed to public health experts and other advisors who say the U.S. needs more testing first. The media gave considerable attention, for example, to a paper authored by former FDA commissioners, Mark McClellan and Scott Gottlieb, outlining the need for at least 750,000 tests per week.

The question is how to define “more” in a way that defines “enough.” We are unlikely to get a large number of public health experts, who are concerned for their reputations if they are proven “wrong,” or Democrats in Congress, who lack operational responsibility and want to preserve their option to criticize the President, to declare that any level is sufficient. So, the President and governors with an ear to their health advisors and an eye on the very damaging health and economic effects of the shutdown, will need to make the call.

The Virginia press corps has not been nearly as determined to pin down Governor Ralph Northam about testing in the Old Dominion. Public health authorities in Virginia have no valid information on the level of testing in the state for the straightforward reason that the Governor and his administration have not made it a priority to find out. Based on their thrice-weekly press conferences, they are more interested in race data on the toe tags of the dead than they are in testing the living. Continue reading

COVID-19 Testing at Urgent Care Clinics

BetterMed urgent care facility in Richmond area

by James C. Sherlock

This information on Urgent Care Clinic testing in Virginia is a follow-up to yesterday’s information on testing in general. It was developed by web searches in about two hours. It is representative, but not necessarily complete. The Governor can direct his staff to provide compete information updated daily on a virginia.gov webpage if he chooses.

As far as I know, all hospitals in Virginia offer COVID-19 testing through their emergency rooms. I have not checked on stand-alone emergency rooms.

Wherever a patient gets tested he or she should be given a Fact Sheet for Patients that contains information to help understand the risks and benefits of using this test and what FDA Emergency Use Authorization applies.

Richmond

The following Urgent Care Clinics offer COVID-19 testing within the city limits of Richmond, Virginia:

1. BetterMed Urgent Care
Regency Square 1380 N Parham Rd, Richmond, VA 23229 – open for COVID-19 testing only. Curbside. (804) 821-0010

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