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.

As a result, the rules and regulations in Virginia are non-compliant with federal requirements in extensive and very important ways, including in staffing regulations. That makes Virginia regulations also non-compliant with the requirements of Virginia law.

The Virginia Department of Health is required in its inspections of nursing homes for CMS to utilize federal regulations vice Virginia regulations. We hope that is what they do.

Yet in an earlier post, I documented the extreme lack of citations by VDH inspectors for nursing home nursing staffing violations. Lacking any other explanation for that discrepancy, the failure to adopt for Virginia the changes in federal regulations may prove a contributing factor.

If the Board of health is not too busy, perhaps it could start to adopt the necessary revisions. 12 VAC 5-371 currently is not worth the paper it is printed on. It would take about an hour to update the Virginia regulations by cut and paste from the federal regulations. It would take less time than that to delete the Virginia regulations and incorporate the federal regulations by reference.

How this failure of regulation may have contributed to Virginia’s nursing home COVID-19 disasters must be assessed.

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25 responses to “Virginia’s Nursing Home Regulations Non-compliant with Federal Regulations and Virginia Law

  1. You don’t expect a new regulation to be any better, do you? The nature of government regulation makes it almost impossible. What matters more would be a type of certification along the lines of a good housekeeping seal of approval and widespread dissemination of that information. The market would take care of the results in short order.

    My wife and I were thinking of Brandermill Woods. We would have learned nothing based on the government regulation. On the other hand, we have learned something based on the mere presence of COVIT 19 at Brandermill Woods: they didn’t do something right. And then, government regulation still stands in the way, in the way of better information. The government claims that Brandermill Woods may not reveal the nature of the problem, i.e., whether the problem is amongst people with underlying medical conditions, who’s allowed in or not to bring in disease, etc etc.

    Reliance on the government regulation is a fools’ errand; reliance on real information is much better. I would be willing to bet that there is real money to be made by an organization who would set standards and verify that those stands were being met by a senior citizen/nursing home looking for certification

    • Yes, I do think the disparity in regulations matter.
      In their inspection of nursing homes, VDH inspectors clearly work very hard (I have read at least 200 of their inspection reports). They are required to use federal standards when conducting those inspections for Medicare and Medicaid certifications. The revised staffing regulations were at the heart of the 2016 federal nursing home regulation update.
      I have been struggling with why VDH inspectors reported an above average number of discrepancies overall but reported very few staffing discrepancies when it is clear from other discrepancies that nurse, particularly registered nurse, staffing was a likely problem.
      While it does not forgive failure to comply with federal regulations, it is likely that the failure to update Virginia regulations, as required by Virginia law, either for the inspection teams or the facility owners, contributed to the problem.

    • In order for a facility to get a “good housekeeping seal of approval” there would need to be a set of standards against which the facility was measured. In essence, that is what regulations are. And the nursing homes do have that type of “approval”: the star rating system used by the federal government.

      • CMS contracts with each state to do the Medicare and Medicaid inspections. Unfortunately, it is not clear that the State Survey Agency (VDH) inspectors that are required to enforce federal standards or the nursing homes that are supposed to comply with those standards in Virginia are using the correct guidebook. If they are using the standards manual issued by the Commonwealth, they are not in possession of the current federal rules that are much stricter and more definitive than currently published Virginia regulations.

      • This discussion highlights one of the great plagues of modern government. Compliance with regulations become meaningless for any or many of a growing tangle of reasons. For example, the regulations become inaccessible to understanding, locked into gridlock of endless contradiction, and tell even the best of us nothing of relevance or consequence as to the subject at hand. Thus rules become thickets wherein everyone concerned can hide, while making fortunes pretending to solve problems. Left then are endless towers of babel arising above impenetrable thickets that nobody understands.

        Ultimately these impenetrable thickets are the intention of their makers. Then those expert builders of these thickets, folks like statisticians, bureaucrats, academicians, lawyers, all of them, have built the perfect tool that puts money into their pockets by fooling the public that they, and only them, do understand the nonsense and thievery that is going on in the thickets, and can make it all work, or make it all better.

        Thus all government and regulation becomes a meaningless, or highly dangerous game where means have become ends, while ends collapse.

        • “Thus all government and regulation becomes a meaningless, or highly dangerous game where means have become ends, while ends collapse.”

          This is one reason why the enormously complicated and costly health care system in the United States was so grossly unprepared in so many critical ways for the current Coved-19 pandemic. The gross failure of so many of American nursing homes, resulting in so many deaths of our most vulnerable citizens, perfectly illustrates this point.

          This includes the seemingly endless, inconclusive, and confused discussion on this blog as to what failed and why (after the fact of some many deaths) prove this point of worthless, ineffective regulation and its lack of proper enforcement that failed so many elders, prove this point in spades.

  2. Thank you for that vital information. Hopefully this is a topic that will not divide left and right. Nor should it lead to an unproductive “blame game”. Clearly, the Virginia General Assembly, which has been in control by both Parties since 2016, the Governor, and his head of VDH, and the Federal CMS all played a role. A question that needs to asked is what other state agencies are in non-compliance with Federal standards and requirements needed to have access to dollars from Washington. Can’t help but think this the tip of a very big iceberg.

  3. Thank you, James C Sherlock, for continuing to follow through on this.

    All 166 of the 1,2,3 star facilities were inspected within the last two years, but it’s been more than a year for 58.

    And there’s no way for the public to know if any of the 92 with identified infection prevention/control deficiencies corrected them. Four with those were inspected in January or February of this year. (That doesn’t include food prep workers who didn’t properly wash their hands during an inspection.)

  4. Jim,
    It would help if you could give a specific example or two in which Virginia regulations are “non-compliant” with federal regulations.

    It does not seem to me that the federal standards are all that rigorous. As I argued in past comments, it is likely that VDH inspectors “reported very few staffing discrepancies” because the federal regulations have few specific staffing requirements. I have looked at the federal regulations in CFR and can find only one that speaks to the number of nurses that a facility must have. That one is 483.35 and says that there must be at least one registered nurse on duty 8 hours a day, seven days a week. All the other regulations speak to quality of care. There must be sufficient numbers on duty on a 24-hour basis in accordance with the residents’ care plans. Section 483.25 sets out conditions for quality of care such skin integrity, mobility, incontinence, accidents, etc.

    I do not disagree with you that many facilities are probably not staffed at the level needed to provide good quality care. The problem is that neither state nor federal regulations provide specific staffing standards. As you have described, CMS has a fairly complicated methodology in devising its star rating system. It would be a simple matter for the Board of Health to require that all Virginia nursing homes achieve the “average ” or higher CMS rating.

  5. You asked for it. The differences in nurse staffing requirements could not be more profound, especially for registered nurses:
    Virginia Administrative Code, State Board of Health, 12 VAC 5-371 Rules and Regulations for the Licensure of Nursing Facilities
    12 VAC 5-371-210. Nurse staffing. (revised 1/11/2006)

    A. A nursing supervisor, designated by the director of nursing, shall be responsible for all nursing activities in the facility, or in the section to which assigned, including:
    Making daily visits to determine resident physical, mental, and emotional status and implementing any required nursing intervention;
    Reviewing medication records for completeness, accuracy in the transcription of physician orders, and adherence to stop-order policies;
    Reviewing resident plans of care for appropriate goals and approaches, and making revisions based on individual needs;
    Assigning to the nursing staff responsibility for nursing care;
    Supervising and evaluating performance of all nursing personnel on the unit; and
    Keeping the director of nursing services, or director of nursing designee, informed of the status of residents and other related matters.
    B. The nursing facility shall provide qualified nurses and certified nurse aides on all shifts, seven days per week, in sufficient number to meet the assessed nursing care needs of all residents.
    C. Nursing personnel, including registered nurses, licensed practical nurses, and certified nurse aides shall be assigned duties consistent with their education, training and experience.
    D. Weekly time schedules shall be maintained and shall indicate the number and classification of nursing personnel who worked on each unit for each shift. Schedules shall be retained for one year.
    E. All nursing services shall be directly provided by an appropriately qualified registered nurse or licensed practical nurse, except for those nursing tasks that may be delegated by a registered nurse according to 18 VAC 90-20-420 through 18 VAC 90-20-460 (now repealed) of the regulation of the Virginia Board of Nursing and with a plan developed and implemented by the facility.
    F. Before allowing a nurse aide to perform resident care duties, the nursing facility shall verify that the individual is:
    A certified nurse aide in good standing;
    Enrolled full-time in a nurse aide education program approved by the Virginia Board of Nursing; or
    Has completed a nurse aide education program or competency testing, but has not yet been placed on the nurse aide registry.
    G. Any person employed to perform the duties of a nurse aide on a permanent full-time, part-time, hourly, or contractual basis must be registered as a certified nurse aide within 120 days of employment.
    H. Nurse aides employed or provided by a temporary personnel agency shall be certified to deliver nurse aide services.
    I. The services provided or arranged with a temporary personnel agency shall meet professional standards of practice and be provided by qualified staff according to each resident’s comprehensive plan of care.

    42 CFR § 483.35 – Nursing services (revised Oct 4, 2016)
    The facility must have sufficient nursing staff with the appropriate competencies and skills sets to provide nursing and related services to assure resident safety and attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by resident assessments and individual plans of care and considering the number, acuity and diagnoses of the facility’s resident population in accordance with the facility assessment required at § 483.70(e).
    (a) Sufficient staff.
    (1) The facility must provide services by sufficient numbers of each of the following types of personnel on a 24-hour basis to provide nursing care to all residents in accordance with resident care plans:
    (i) Except when waived under paragraph (e) of this section, licensed nurses; and
    (ii) Other nursing personnel, including but not limited to nurse aides.
    (2) Except when waived under paragraph (c) of this section, the facility must designate a licensed nurse to serve as a charge nurse on each tour of duty.
    (3) The facility must ensure that licensed nurses have the specific competencies and skill sets necessary to care for residents’ needs, as identified through resident assessments, and described in the plan of care.
    (4) Providing care includes but is not limited to assessing, evaluating, planning and implementing resident care plans and responding to resident’s needs.
    (b) Registered nurse
    (1) Except when waived under paragraph (e) or (f) of this section, the facility must use the services of a registered nurse for at least 8 consecutive hours a day, 7 days a week.
    (2) Except when waived under paragraph (e) or (f) of this section, the facility must designate a registered nurse to serve as the director of nursing on a full time basis.
    (3) The director of nursing may serve as a charge nurse only when the facility has an average daily occupancy of 60 or fewer residents.
    (c) Proficiency of nurse aides
    The facility must ensure that nurse aides are able to demonstrate competency in skills and techniques necessary to care for residents’ needs, as identified through resident assessments, and described in the plan of care.
    (d) Requirements for facility hiring and use of nursing aides
    (1) General rule. A facility must not use any individual working in the facility as a nurse aide for more than 4 months, on a full-time basis, unless –
    (i) That individual is competent to provide nursing and nursing related services; and
    (A) That individual has completed a training and competency evaluation program, or a competency evaluation program approved by the State as meeting the requirements of §§ 483.151 through 483.154; or
    (B) That individual has been deemed or determined competent as provided in § 483.150(a) and (b).
    (2) Non-permanent employees. A facility must not use on a temporary, per diem, leased, or any basis other than a permanent employee any individual who does not meet the requirements in paragraphs (d)(1) (i) and (ii) of this section.
    (3) Minimum competency. A facility must not use any individual who has worked less than 4 months as a nurse aide in that facility unless the individual –
    (i) Is a full-time employee in a State-approved training and competency evaluation program;
    (ii) Has demonstrated competence through satisfactory participation in a State-approved nurse aide training and competency evaluation program or competency evaluation program; or
    (iii) Has been deemed or determined competent as provided in § 483.150(a) and (b).
    (4) Registry verification. Before allowing an individual to serve as a nurse aide, a facility must receive registry verification that the individual has met competency evaluation requirements unless –
    (i) The individual is a full-time employee in a training and competency evaluation program approved by the State; or
    (ii) The individual can prove that he or she has recently successfully completed a training and competency evaluation program or competency evaluation program approved by the State and has not yet been included in the registry. Facilities must follow up to ensure that such an individual actually becomes registered.
    (5) Multi-State registry verification. Before allowing an individual to serve as a nurse aide, a facility must seek information from every State registry established under sections 1819(e)(2)(A) or 1919(e)(2)(A) of the Act that the facility believes will include information on the individual.
    (6) Required retraining. If, since an individual’s most recent completion of a training and competency evaluation program, there has been a continuous period of 24 consecutive months during none of which the individual provided nursing or nursing-related services for monetary compensation, the individual must complete a new training and competency evaluation program or a new competency evaluation program.
    (7) Regular in-service education. The facility must complete a performance review of every nurse aide at least once every 12 months, and must provide regular in-service education based on the outcome of these reviews. In-service training must comply with the requirements of § 483.95(g).

    • I do not see significant differences that would make the Virginia regulations noncompliant. CMS regulations have just one requirement regarding the staffing level of registered nurses–1 full-time nurse, 7 days a week. Virginia is not that specific and should be more specific, but I would not deem this as so “profound” to say that Virginia regulations are way out of sync with CMS regulations.

      Federal–Must designate a registered nurse to be director of nursing
      Virginia–Has to have a director of nursing; “All nursing services shall be directly provided by an appropriately qualified registered nurse or licensed practical nurse.” Presumably, this “nursing service” would need to be performed by “an appropriately qualified registered nurse.”

      Federal–“the facility must use the services of a registered nurse for at least 8 consecutive hours a day, 7 days a week.”
      Virginia–does not have a comparable requirement, but does require a director of nursing, presumably a registered nurse.

      Federal–The facility must provide services by sufficient numbers of each of the following types of personnel on a 24-hour basis to provide nursing care to all residents in accordance with resident care plans.
      Virginia–The nursing facility shall provide qualified nurses and certified nurse aides on all shifts, seven days per week, in sufficient number to meet the assessed nursing care needs of all residents.

      • Glad you are comfortable with the differences, Dick. I only gave you a small part of both sets of regulations. Registered nurses are necessary to provide good nursing care for the residents, who need it 24/7. Not sure you would be comfortable with the differences if you were in a nursing home.

        • Plus the differences between nurses within the cohorts of Registered nurses varies enormously too. So where does get us at end of the day?

          Yet, in practical truth, a practiced eye can judge this matter of quality of care often on a quick walkabout. To them, and likely many of us too, much of the rest is irrelevant busy work. You know a warehouse hell hole when you walk through one. Are we down then to ethics, morality, caring, sense of responsibility, leadership and professionalism? How do we instill that?

          Regulations apparently accomplishes little today without our need for vast cultural change. That likely is the big lesson here.

        • Oh, I agree that registered nurses make the difference between good care and not-so-good care. No argument with you there. My point is that CMS does not set any minimum standard on the number of registered nurses a facility must have, beyond the one 8-hour nurse, 7 days a week, who could be the director of nursing.

          • They actually do. That is where the CMS payroll data come in. CMS runs algorithm that takes the patient care plan for each resident from one data base, the patient population from another and the payroll data form a third and calculates the RN and other staff norms for each nursing home. That is the meaning of below average and much below average. The inspectors are supposed to call up that data in preparation for each inspection and know what to look for. The prep instructions even tell them to look for discrepancies in care plans and in the charts for each patient to signal insufficient staff.

          • Dick Hall-Sizemore

            Well, as we delve into the details, I learn more and more. I appreciate your indulging me. Do those prep guidelines define what would constitute “insufficient staff”? Would “much below average” constitute insufficiency? As I understand it, CMS still reimburses the 1-star facilities.

        • It seems like in the best of old times, perhaps viewed through rose tinted glasses, those folks among us who looked after our elders did so out of the ethics of care and compassion and civic responsibility, the Little Sisters or missionary type of ethic often derived from our Judeo/Christian traditions imbued in our communities, drove their mission, as it did so many of our teachers of children.

          Increasingly, that all seems lost to us, a long ago relic of a lost age. And in its stead, what is growing apparent by some recent events suggests the congregate care nursing has in too many cases devolved down to pure business, with no sense of mission or humanity involved, just a selfish quest to maximize bottom line profits to owner / operators, similar to what has happened in much of today’s system of Higher Education. Both ruled now by dry, cool, ineffective government regulations detached from the reality of vulnerable peoples’ daily lives that are now run and often ruined by those rules, and those who operate and hide behind them.

          We are losing our humanity throughout our culture, hence for example the humanities of Western Civilization have all but disappeared from our high schools, colleges, and universities, having been ripped up and thrown away by those who now run those institutions as cold blooded businesses or weapons of culture wars. The great tragedy is that all this is likely downstream of our increasing desolate and barren culture, a refection of our shallow throw away society.

        • What we see here now likely is the dark side of the modern administrative state, one apparently dominated by those who own and operate these nursing homes, instead of those who are housed there, and those the homes were by charter and/or claim built to serve, or should have been built to serve.

          We can never expect the modern administrative state to fill the shoes of children or communities who have forgotten about their parents; and/or children who lack the financial means or power individually to change the conditions within which their elderly parents live out the end of their days.

          But surely, after all that has happened and all that we have learned over the past two months, there are groups of local citizens and responsible local politicians and community leaders who can rise up and insist that these nursing home conditions in their very own state and neighborhoods, serving their own elderly neighbors, be changed drastically.

          Why not? Why the need for the Federal Government to always have to act? These are local problems. These are local responsibilities. These are local elders, people who in their time built their communities, raised their children, and handed their legacy and life itself down to their children and communities. Why cannot the irreplaceable gifts given by these elders be returned by their progeny, if it only it be decent, safe, and respectable living quarters and care worthy of human beings?

          Why is this so complicated? Why so hard to do? Why can’t the richest, most advanced, and powerful society on earth, one that makes such grand claims about its virtue, simply take care of its own elders in a respectable safe way?

          Why, for instance, cannot there be in Virginia a fully independent, powerful, highly respected and competent Inspector General appointed to clean up any mess in Virginia he finds and keep it cleaned up? This Inspector General’s sole and only task would be to collect and study all quarterly reports issued on all nursing homes in Virginia, and to personally visit each and every home in Virginia at least once each year, and those found in violation as often as he deems it necessary to insure violation are promptly fixed, and shut down promptly, in his sole discretion, all nursing homes who fail to cure violations or to otherwise serve their elderly residents with the decent, safe, and respectable living quarters and care worthy of human beings?

          Why is this minimal care of elders so hard in Virginia? And claiming racism so easy.

          • Dick Hall-Sizemore

            This is fascinating. Most commenters on this blog are mostly conservative/libertarian, advocating for smaller government, less regulation, and freeing of the market. These nursing homes are operating in the true sense of capitalism–maximizing profits. But, you now want to give one person “sole discretion” to shut down any nursing home that does not meet his standards.

  6. Your idea about inspectors general in Virginia for each cabinet department is a potentially game changing one. Right now, in Virginia one must complain to the perpetrators of malfeasance to redress the wrongs they impose on the people. In the federal system, the inspectors general are watchdogs. May it be so in Virginia. The General Assembly should be the appointing authority for Inspectors General, and the IGs should report to the GA and the people of Virginia.

    • Virginia does have a state Office of the Inspector General. It has general power to investigate fraud, waste, corruption, and abuse. The Inspector General is appointed by the Governor for a term of four years, subject to confirmation by the General Assembly. The incumbent does not serve at the pleasure of the Governor, but can be removed by the governor for cause.

      This probably does not rise to the power you would like. However, the OSIG does have explicit power to inspect behavioral health facilities and make recommendations for corrective actions as needed. It would be easier to expand the duties of this office to include the inspection of nursing homes than to establish whole new regime of inspectors general for each Cabinet agency. That would be a major undertaking–politically, fiscally, and administatively.

  7. Dick, the federal government struggles with interest groups every bit the same way state government does. I personally think a one-star staffing rating based on payroll, which is most often awarded due to shortages of RNs, should result in automatic “show cause” orders requiring the facility to demonstrate to an inspection team that the facility is run safely with current staff.
    Failing to show cause, either by hiring more nurses or reducing patient load, would result in heavy fines in the quarter of the finding and closure in the second consecutive quarter.
    That would make the private equity firms that have bought a lot of nursing homes take notice as their properties became less valuable than when they were purchased.
    But that is not the way it is currently done. So adopting federal nursing home regulations by reference into the Virginia Administrative Code and retraining inspection teams on the relationship between care plans, patient records and staffing would be a good start.

    • I think we are coming around to common ground. You seem to be saying that the federal guidelines are not enough to sanction a nursing home due to having insufficient staff. I agree with all that you said. And I agree that Virginia, through either administrative initiative or legislative action, should use the CMS ratings as the base for nursing home inspections. If a nursing home does not achieve a 3-star rating (average), a “show cause” order would be issued under state regulations.

      It would probably be easier to reach this goal through the Board of Health than through the General Assembly. I do not know how much initiative there is in the Board to take this on. In my experience, agency oversight boards take their cues from the agency. So, we may be back where we started.

      • The federal guidelines are sufficient to sanction nursing homes, but only if such deficiencies are cited in an inspection. Currently the payroll-based numbers currently are advisory only. There are two target audiences for those payroll-based ratings – the general public and state inspectors. If the state inspection teams both understand the federal regulations and properly prepare for inspections by downloading CMS data including payroll-based staffing ratings, then it is reasonable to expect that system to work. It demonstrably doesn’t work well in Virginia.
        The fact that Virginia nursing home regulations are far less definitive on staffing requirements than are the federal standards may be one of the reasons.

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