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:
- 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.
The results of a FOIA request inform me that not one of them has ever used that authority.
Not once in 34 years.
Their failure to act in the face of overwhelming evidence of documented threats to the safety and health of patients is appalling. They did not even stop new admissions into some of the worst nursing homes in America. Patients suffered terribly and died prematurely every year in those facilities.
The Health Commissioners’ own VDH Office of Licensure and Certification (OLC) conducted very professional inspections that identified those violations and clearly reported the human tragedies that resulted.
No Health Commissioner levied a sanction. Not even once.
I have no idea why.
To cite only one example of the information available to Health Commissioners, the Centers for Medicare & Medicaid Services (CMS), in collaboration with the states and based on state inspections, designates a few nursing facilities in each state as either Special Focus Facilities or Special Focus Facility Candidates.
By CMS definition:
Special Focus Facilities (SFFs) and SFF Candidates are nursing homes that have a history of serious quality issues or are included in the Centers for Medicare & Medicaid Services (CMS) program to stimulate improvements in their quality of care.
Those on the list have shown that they have for at least three years
rarely address(ed) underlying systemic problems that give rise to repeated cycles of serious deficiencies, which pose risks to residents’ health and safety.
See here one such list from 2021. I have highlighted the Virginia facilities. One SFF and five SFF candidates out of 288 Virginia nursing homes in that year.
Then and now. The 2021 SFF facility, then called Envoy of Westover Hills and now Forest Hill Health and Rehabilitation, somehow graduated from the SFF list after at least three years with that designation in 2021.
It is still today one of the worst nursing homes in Virginia, one of only five out of 289 that have earned one star out of five in everything CMS measures.
It has today the third lowest Adjusted Total Nurse Staffing Hours per Resident per Day in the state. Which is worse than it was when the facility was on the SFF list.
Well done. I guess.
The 2021 SFF Candidates were:
- Battlefield Park Healthcare Center, Petersburg. It is no longer a SFF candidate, having been supplanted by ones that are worse. But it still rates one star overall, one star for inspections, and one star for staffing.
- Envoy of Williamsburg LLC. Now Williamsburg Post Acute and Rehabilitation. Moved from the 2021 SFF Candidate list to the current SFF list. It has been on one of those lists for four years.
- Hanover Health and Rehab Center in Mechanicsville. It is still, now more than two years later, on the SFF Candidate list. That is four years total.
- Martinsville Health and Rehab. No longer on the list. As with Battlefield Park, it was replaced by one even worse. And like Battlefield Park, it still rates one star overall, one star for inspections, and one star for staffing.
- The Laurels of University Park, Richmond. Same as Battlefield Park and Martinsville Health and Rehab. Off the list but only because others are worse now.
The for-profit nursing home industry. Nursing homes for private investors are at their core real estate plays.
- Investors buy the facilities and property and are paid money for rent and sometimes for ancillary services by the separate operating companies they set up;
- Rent and services payments are made before the profits of the operating companies are distributed to those same investors;
- They try to leave as little as possible in the accounts of the operating companies because nursing homes are sued all the time;
- Many operating companies lose money on the books but the investors get paid as landlords and some as vendors before operating company accounting shows profits and losses;
- Boosting operating margins through understaffing increases both the operating company payouts to investors and the value of the real estate.
Bottom line. The only readily accessible protection government has against dangerous facilities like those referenced above are the laws and regulations put in place to keep patients safe. They can at least make it unprofitable to continue what they are doing.
The federal government levies fines, but they are not high enough in general to avoid being considered just a cost of doing business compared to the profits available from understaffing.
But for years, up to this day, no Health Commissioner saw any reason to “restrict or prohibit new admissions.” That one sanction will quickly make bad conduct unprofitable without even proceeding to receiverships or closings.
My Suggestion: Block new admissions until the patient population and patient acuity are reduced to meet the nurse availability. Then limit them to keep the ratios in proportion.
But, in 2025, they won’t have that option unless Code of Virginia § 32.1-27.2. is repealed.
- That disgraceful new law was written by the nursing home lobby, and passed this year in a self-degrading performance by the General Assembly. It takes effect on July 1, 2025, to give new regulations time to make it through the Administrative Process Act requirements.
- It will block for five years the Health Commissioner from using his or her authority under Code of Virginia § 32.1-135.
That’s right. If you have been following along, the new law § 32.1-27.2. blocks the use of the very authority available under § 32.1-135 for a period longer than the term of office of any Health Commissioner .
It blocks the use of authority that none has ever employed.
The GA did not just go ahead and repeal § 32.1-135. Someone might have noticed.
I may write a book.
Next. We haven’t even talked about the Medicaid Managed Care and Medicare Advantage organizations that we pay to help us navigate the system. To keep us out of bad facilities.
Commonwealth Coordinated Care Plus (CCC Plus) is Virginia’s Medicaid Managed Care program for clients over 65.
DMAS’ CCC+ contractors have some questions to answer about their nursing home networks. I’ve looked.