Virginia Regulatory Town Hall
Virginia Department of Health
State Board of Health
Regulations for the Licensure of Nursing Facilities [12 VAC 5 ‑ 371]


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7/10/20  9:36 am
Commenter: James C. Sherlock, Retired

State Board of Health Regulations are Fundamentally Flawed

Healthcare facilities and providers in Virginia are subject to dueling regulations - one set for state licensure and another for Medicare/ Medicaid certification.  Virginia’s regulations in these cases are not just a waste of time on the government side, the administrative burden on healthcare providers is very heavy and entirely unnecessary and the regulations violate both Virginia law and the Governor’s executive order on regulations.  

Code of Virginia § 32.1-127.
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.” 
For example, virtually all of Virginia’s hospitals and hospices and 95% of Virginia’s nursing facilities are certified providers of Medicare or Medicaid or both.  It is expensive, counterproductive and in some cases illegal under Virginia law for Virginia to have different regulations for the same facilities, yet we do.  
Governor Northam’s Executive Order number 14, Development and Review of State Agency Regulations.  
Compliance with that Executive Order that sets out procedures and requirements to ensure the efficiency and quality of Virginia’s regulatory process demands changes in Virginia’s current healthcare regulations.
Federal Healthcare Regulations duplicated in the Virginia Administrative Code
Code of Federal Regulations Title 42 – Public Health, Chapter IV Subchapter G – Standards and Certification, contain Medicare and Medicaid regulations for every type of healthcare facility and provider.  Examples
include Parts 
    • 482 (Hospitals), 
    • 483 (States and Long Term Care Facilities), 
    • 484 (Home health services), 
    • 485 (Conditions of participation: Specialized workers), 
    • 486 (conditions for coverage of specialized services furnished by suppliers), 
    • 488 (Survey, certification and enforcement), 
    • 489 (provider agreements and supplier approval), 
    • 491 (Rural Health clinics), 
    • 493 (Laboratory requirements), 
    • 494 (end stage renal facilities), 
    • 495 (electronic health record technology incentive program), and 
    • 600.1 SubPart B (Establishment and Certification of State Basic Health Programs) 
An Example - Nursing Home Regulations

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.


The Commonwealth will be well served if all relevant federal Medicare/Medicaid regulations are incorporated by reference into the Virginia Administrative Code and the parallel Virginia regulations deleted.  Any Virginia-specific regulations not covered by federal regulations or state waivers authorized in federal regulations can be provided as an addendum to the incorporated federal reference.

Budget Savings

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.  It will also save a tremendous amount of administrative work for the medical care providers no longer having to comply with one set of regulations for state licensure and another for Medicare/Medicaid certification.

Bottom Line

There is no principled reason to object to creating the conformity that Virginia law demands. No study commission is required.  A major advantage not measurable in dollar terms will be the de-politicalization of the health care regulatory process in the General Assembly and the Department of Health.

The changes can be made quickly and easily, and should be accomplished immediately.  
CommentID: 83882