6/11/2020 11:24 am Date / Time filed with the Register of Regulations | VA.R. Document Number: R____-______ |
Virginia Register Publication Information
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Transmittal Sheet: Response to Petition for Rulemaking
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Initial Agency Notice
Agency Decision
Promulgating Board: | State Board of Health |
Regulatory Coordinator: | Mylam Ly (804)864-7263 mylam.ly@vdh.virginia.gov,joe.hilbert@vdh.virginia.gov,alexandra.jansson@vdh.virginia.gov |
Agency Contact: | Rebekah E. Allen Sr. Policy Analyst (804)367-2102 regulatorycomment@vdh.virginia.gov |
Contact Address: | Virginia Department of Health Virginia Department of Health 9960 Mayland Drive, Ste. 401 Richmond, VA 23233 |
Chapter Affected: | |
12 vac 5 - 371: | Regulations for the Licensure of Nursing Facilities |
Statutory Authority: |
State: 32.1-127 Federal: |
Date Petition Received | 06/11/2020 |
Petitioner | James Sherlock |
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 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.
Publication Date | 07/06/2020 (comment period will also begin on this date) |
Comment End Date | 07/26/2020 |