6/11/2020 11:28 am Date / Time filed with the Register of Regulations | VA.R. Document Number: R____-______ |
Virginia Register Publication Information
|
Transmittal Sheet: Response to Petition for Rulemaking
X
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 | Vic Nicholls |
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."
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.
Waivers
A few of the federal 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)].
Recommendations
I recommend that the Board of Health delete the current contents of 12 VAC 5-371 and
incorporate by reference 42 CFR Part 483 to comply with Virginia law. Incorporation
by reference rather that mirroring the language will ensure that they are always in
compliance with Virginia law and always up to date.
I also recommend that the Board of Nursing review 18VAC90-19-250. Criteria for Delegation and
other nursing practice regulations to ensure they conform to the federal rules for
nursing homes and hospitals. Similarly, the Department of Medical Assistance Services
(DMAS) should review its regulations for conformity.
A list of waived and emergency regulations, whether for a single home or for the industry,
can be maintained on a web page of the Department of Health.
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 |