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.