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Virginia Regulatory Town Hall
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Health and Human Resources
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Virginia Department of Health
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State Board of Health
Petition 325
Petition Information
Petition Title Change Virginia Nursing Facility Licensure Regulations to Align with Federal Medicare/Medicaid Certification Regulations
Date Filed 6/11/2020    [Transmittal Sheet]
Petitioner James Sherlock 
Petitioner's Request

Change Virginia Nursing Facility Licensure Regulations to Align with Federal Medicare/Medicaid Certification Regulations

 

The weaknesses of Virginia’s nursing (NF) and skilled nursing facility (SNF) system have been exposed by COVID-19 with deadly consequences. Virginia’s regulations applicable to these facilities may be part of the problem.

 

12 VAC 5-371 Rules and Regulations for the Licensure of Nursing Facilities published by the Board of Health conflict with and are more permissive than the regulatory requirements for Medicare/Medicaid certification in 42 CFR Part 483 - REQUIREMENTS FOR STATES AND LONG TERM CARE FACILITIES. The Virginia Department of Health, the state agency contracted with the Centers for Medicare/Medicaid Services to conduct certification inspections, must at least in theory enforce both sets of regulations

 

However, the Virginia regulations have little practical effect in that 95% of Virginia NFs and SNF’s seek certification for Medicare and/or Medicaid and thus must comply with the more stringent federal regulations. Indeed many facilities contain both SNF and NF facilities and swing beds in a single complex. Under Medicaid regulations, NFs are required to meet virtually the same requirements that SNFs participating in Medicare must meet. There is no reason that Virginia regulations for licensing the other 5% should be different.

 

I thus recommend Virginia nursing facility licensing regulations either mirror or incorporate by reference 42 CFR Part 483. I also recommend that the Board of Nursing review 18VAC90-19-250. Criteria for Delegation and other nursing practice regulations to ensure they align with the federal rules for nursing homes.

 

I find important reasons why Virginia regulations should be aligned with federal regulations for the same facilities, and no provision in the Constitution of Virginia or existing Virginia law that prohibits such action. I also see no requirement for additional funding to do so.

 

A few of the federal statutes or 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 suggest that on the heels of the COVID-19 deaths, Virginia not waive or request a waiver for any federal nursing home regulation. But if such waivers exist, they should appear in the VAC in sequence with the federal regulation they waive.

 

It will also prove useful to create a single Nursing and Skilled Nursing Facilities section of the VAC to offer a complete reference for operators and inspectors.

 

Those actions will resolve current regulatory chaos and clarify the state’s

waivers of federal regulations.

 

They will also save whatever time and cost has historically been expended in drafting, seeking public comments, resolving disagreements and approving Virginia nursing facility licensure regulations that are, in the main, irrelevant.

 

 
Agency's Plan

In accordance with Virginia law, the petition has been filed with the Registrar of Regulations and will be published on July 6, 2020 and posted to the Virginia Regulatory Town Hall at www.townhall.virginia.gov.  Comment on the petition will be accepted until July 27, 2020.

Following receipt of all comment on the petition, and within 90 days of July 27, 2020, the matter will be considered by the State Health Commissioner, acting on behalf of the Board, in order to decide whether to grant or deny the petition or by the State Board of Health.

 
Comment Period red dot In Progress!
Ends 7/27/2020
Currently 0 comments
Agency Decision Pending    

Contact Information
Name / Title: Rebekah E. Allen  / Sr. Policy Analyst
Address: Virginia Department of Health
9960 Mayland Drive, Ste. 401
Richmond, 23233
Email Address: regulatorycomment@vdh.virginia.gov
Telephone: (804)367-2102    FAX: (804)527-4502    TDD: ()-