By James C. Sherlock
Those who read this blog know that Virginia has far more than its share of bad nursing homes. They just do not know what can or should be done about it.
This third in a current series on Virginia nursing homes will take on a problem that is self-inflicted – the state’s nursing home regulatory structure.
Virginia’s nursing home regulations, upon which Virginia licensing inspections are based, are promulgated by the Board of Health. They are at best redundant to federal requirements.
At worst they are different than federal standards, with no discernible gain in nursing home quality. Operators follow the federal rules anyway, because they are almost inevitably stricter than those of the state.
Virginia can improve its nursing home regulations by conforming them precisely to federal regulations. State law already requires them to be in “substantial conformity.”
This change, if accompanied by the combining of federal and state inspections which it would enable, would make everybody happy. It would also go a long way towards fixing the staffing problems at Virginia’s inspection agency by reducing significantly their required efforts.
Regulations. The state Board of Health promulgates the state regulations that the Health Commissioner is required to enforce and his Office of Licensing and Certification (OLC) is required to inspect.
Code of Virginia Title 32.1. Health » Chapter 5. Regulation of Medical Care Facilities and Services » Article 1. Hospital and Nursing Home Licensure and Inspection § 32.1-127. Regulations already requires Virginia regulations to 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 and Title XIX of the Social Security Act.
“Health and safety standards established under provisions of Title XVIII and Title XIX of the Social Security Act” are those of CMS. Why not precise conformity?
Facilities both licensed and certified follow the stricter requirements, regardless
of whether they are state or federal
In almost all areas, federal requirements are stricter.
So why not eliminate nearly all state nursing home regulations and replace them by adopting by reference the applicable federal regulations and guidance?
CMS will always have more resources assigned to regulation than will Virginia and they coordinate all changes with the national organizations representing the industry. Adopting the federal regulations by reference will automatically update state regulations.
Operators and inspectors would then have a single set of regulations, not two.
Everyone would have a single book from which to operate: CMS’ State Operations Manual, Chapter 7 – Survey and Enforcement Process for Skilled Nursing Facilities and Nursing Facilities is also regularly updated.
Inspections. The Virginia Department of Health is a State Survey Agency for CMS.
- VDH conducts federal surveys to certify if a provider is in compliance with Medicare and/or Medicaid regulations, per agreement under § 1864 of the Social Security Act
- Only VDH is authorized to contract with CMS for the purposes of conducting federal surveys
- Federal surveys are conducted in conformity with CMS’s State Operations Manual, Mission and Priorities Document, and other directives, as well as meeting metrics from the State Performance Standards System
- VDH conducts federal surveys for all Medicare and Medicaid provider types, regardless of whether state law requires a license, registration, or permit and whether VDH is responsible for state oversight.
State inspections and federal surveys are unannounced
- Inspections are mandated to occur at least biennially
- Surveys are mandated to occur between 12 and 15 months
Complaints are evaluated for alleged violations of federal and state law
- If a complaint would fall under both, VDH will investigate under federal authority first Deficiencies are scored according to scope and severity
- VDH’s Office of Licensure and Certification (OLC) also conducts licensure inspections for the state.
Federal and state nursing home inspections are key to providing oversight, finding violations and establishing patterns of violations subject to sanctions. They also drive the CMS ratings of nursing homes.
OLC. For OLC, state demands and state money do not begin to align.
OLC is troubled by a chronic shortage of staff to conduct all of the state and federal inspections with which it is currently tasked. See a snapshot from September of 2022 below.
Federal certification takes priority at OLC because CMS pays the bills. The state work is severely underfunded, yet state licensing inspections take a lot of their time.
OLC spent about 20,000 staff hours – roughly 10 full-time-equivalents – on state work in FYE 2020.
Bottom line. If the state regulations are put into precise conformity with the federal ones, the state licensing inspections and federal certification inspections can be combined.
There will need to be a couple of state licensure-specific questions. Add them.
Support should be strong. VDH would certainly support it. OLC would virtually be made whole from a staffing perspective. The nursing home operators would be subjected to fewer inspections.
Resistance should (always a risky word) be light. Perhaps non-existent. If there are obstacles, deal with them.
The nursing home representative on the Board of Health is in position to move things along.
I think this can be accomplished within Administrative Process Act requirements by the end of this year if the Board of Health will move on it.
I hope it will.
Then all that will need attention is the most important part, sanctions for the violators.