The weaknesses of Virginia’s nursing facility (NF) and skilled nursing facility (SNF) system have been exposed by COVID-19 with deadly consequences.
Virginia’s licensing regulations applicable to these facilities are both part of the problem and violate Virginia law.
This essay recommends an straightforward permanent fix that will bring Virginia regulations into compliance with Virginia law, save considerable money and eliminate state standards that conflict with federal standards for the same facilities and thus contribute to regulatory chaos.
Virginia regulations must be changed to conform to federal Medicare and Medicaid regulations for long-term care facilities to comply with the clear direction of Code of Virginia § 32.1-127. That law requires that Virginia regulations for hospitals and nursing homes “conform” to “health and safety standards established under provisions of Title XVIII (Medicare) and Title XIX (Medicaid) of the Social Security Act.”
42 Code of Federal Regulations (CFR) Part 483 – Requirements for States and Long Term Care Facilities regulates Medicare and Medicaid certification pursuant to Title XVIII and Title XIX requirements.
12 VAC 5-371, Rules and Regulations for the Licensure of Nursing Facilities contains Virginia licensure regulations for the same facilities.
The Virginia licensure regulations not only do not conform to their federal certification counterparts, but are weaker across the board.
Ninety-Five percent of Virginia NFs and SNF’s seek certification for Medicare and/or Medicaid and thus must comply with the more stringent federal regulations.
There is no reason that Virginia regulations for licensing the other 5% should be different, and by Virginia law they may not be.
A few of the federal regulations allow for waivers in the presence of verified temporary shortages of health personnel or in the presence of equivalent alternative patient safeguards.
CMS Medicare SNF waiver authority is re-delegated to the CMS Regional Offices (ROs). Waivers for NFs to provide licensed personnel on a 24-hour basis repose with the States.
Life safety code waivers for NFs and Intermediate Care Facilities for Individuals with Intellectual Disabilities (ICF/IIDs) are the responsibility of the States [See 42 CFR 483.470(j)(2)(A)].
I recommend that the Board of Health delete the current contents of 12 VAC 5-371 and incorporate by reference 42 CFR Part 483 to comply with Virginia law. Incorporation by reference rather that mirroring the language will ensure that they are always in compliance with Virginia law and always up to date.
I also recommend that the Board of Nursing review 18VAC90-19-250. Criteria for Delegation and other nursing practice regulations to ensure they conform to the federal rules for nursing homes and hospitals. Similarly, the Department of Medical Assistance Services (DMAS) should review its regulations for conformity.
A list of waived and emergency regulations, whether for a single home or for the industry, can be maintained on a web page of the Department of Health.
I have not done the research to determine if the Virginia regulations for hospitals and other health services providers are as deficient in conformity with federal Medicare and Medicaid regulations as are those for long term care facilities, but I consider that likely since those regulations come from the same sources.
Code of Federal Regulations Title 42 – Public Health, Chapter IV Subchapter G – Standards and Certification, Parts 482, 483, 484, 485, 486, 488, 489, 491, 493, 494, 495, and 498 contain Medicare and Medicaid regulations for every type of healthcare facility and provider.
The Commonwealth will be well served if all of those are incorporated by reference into the Virginia Administrative Code and the parallel Virginia regulations deleted.
These changes will save the work and its costs that have historically been expended in drafting, seeking public comments, resolving disagreements and approving and then periodically reviewing Virginia licensure regulations that are, in the main, at best irrelevant and at worst confusing. The positions engaged in this work can be eliminated.
There is no principled reason to object to creating the conformity that Virginia law demands. No study commission is required.
The changes can be made quickly and easily, and should be accomplished immediately.