Agency
Virginia Department of Health
 
Board
State Board of Health
 
Guidance Document Change: This guidance document summarizes how the State Health Commissioner (“The Commissioner”) of the Virginia Department of Health (VDH), through the Office of Licensure and Certification (OLC), may consider imposing administrative sanctions for nursing facilities under 12VAC5-371-90 and Va. Code §§ 32.1-27, 27.1, and 135. This guidance document does not create new requirements or mandatory enforcement levels. Decisions regarding sanctions will always be fact specific. This guidance document does not limit VDH's or the Commissioner’s authority to take any action authorized by law.
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9/9/26  6:41 pm
Commenter: Ashley

Comments Regarding Nursing Home Administrative Sanctions Guidance Document
 
Dear Office of Licensure and Certification:
 
Thank you for the opportunity to review and provide comments regarding the Virginia Department of Health’s proposed Nursing Home Administrative Sanctions Guidance Document. We recognize VDH’s responsibility to protect nursing home residents and support appropriate enforcement when resident health, safety, quality of care, or quality of life is jeopardized. We also appreciate the document’s acknowledgment that sanctions must be based on the specific facts and circumstances of each case, and that citation counts alone do not automatically warrant administrative sanctions.
 
However, several provisions would benefit from additional clarification to promote consistency, proportionality, transparency, and procedural fairness.
First, the terms “same or substantially similar regulatory requirement,” “same general regulatory area,” “systemic,” “persistent,” “meaningful resident risk,” “serious management failure,” and “severe compromise” should be clearly defined. Without objective definitions, facilities may be subject to inconsistent enforcement based on differing interpretations among survey teams or reviewers.
Second, citation counts should not be treated as presumptive evidence that a facility is unable or unwilling to maintain compliance. A citation may arise from an isolated event, involve different residents or circumstances, or occur despite substantial corrective actions. Citation counts should therefore be considered only after evaluating the scope and severity of each finding, actual resident outcomes, the facility’s good-faith corrective efforts, and whether the subsequent citation truly represents recurrence of the same underlying compliance failure.
 
Third, the proposed 18-month review period should distinguish between deficiencies involving actual harm or immediate jeopardy and lower-level findings involving no actual harm. Three lower-level citations within a broad regulatory area should not, without additional evidence, support a conclusion that the facility has experienced systemic failure or cannot safely admit additional residents.
Restrictions or prohibitions on admissions can significantly affect facility operations, staffing resources, access to care, and the residents already being served. Before imposing an admissions sanction, VDH should determine whether the sanction is reasonably connected to the cited deficiency and whether it will assist the facility in achieving compliance. The guidance should also identify measurable criteria for modifying or lifting the sanction once correction has been demonstrated.
 
The abuse and neglect provision should distinguish between the occurrence of an allegation or isolated act and a facility’s failure to prevent, identify, report, investigate, protect, or appropriately respond to the event. Facilities cannot eliminate every unforeseeable incident, particularly when caring for residents with dementia, behavioral-health conditions, impaired judgment, or other complex clinical needs. Enforcement should focus on whether the facility implemented reasonable preventive measures and responded promptly and appropriately after becoming aware of the concern.
 
A failed revisit should not automatically be viewed as evidence of unwillingness or inability to correct a deficiency. VDH should consider whether meaningful progress was made, whether the remaining concern was limited in scope, whether correction depended on external factors, and whether residents remained protected while the facility completed its corrective actions.
 
The guidance should include a structured pre-sanction review process. Before issuing a notice of intent, the facility should be given an opportunity to submit relevant documentation, explain its corrective response, identify factual inaccuracies, and present evidence of sustained compliance. This would improve the accuracy of enforcement decisions without limiting the Commissioner’s authority to act immediately when residents face an imminent and serious threat.
 
Respectfully, we recommend that the final guidance:
  1. Define the material terms used to determine sanction levels.
  2. Differentiate isolated events from systemic or repeated failures.
  3. Give appropriate weight to scope, severity, actual harm, foreseeability, and corrective action.
  4. Avoid relying primarily on citation counts or broadly grouped regulatory areas.
  5. Establish objective criteria and timelines for removing admission restrictions or prohibitions.
  6. Provide facilities a meaningful opportunity to submit information before sanctions are imposed, except when immediate action is necessary to protect residents.
  7. Clarify that allegations of abuse or neglect are not equivalent to substantiated facility noncompliance.
  8. Require documented supervisory review to support consistent application across facilities.
  9. Recognize demonstrated improvement and sustained correction as mitigating factors.
  10. Ensure that sanctions are proportional to the specific deficiency and reasonably related to resident protection.
We support strong and appropriate regulatory oversight. At the same time, administrative sanctions, particularly admission restrictions, admission prohibitions, and licensure actions, can have substantial consequences for residents, employees, facilities, and community access to long-term care. The final guidance should therefore provide sufficiently clear and objective standards to ensure that sanctions are applied consistently, proportionately, and only after full consideration of the relevant facts.
Thank you for considering these comments.
 
Respectfully submitted,
Dr. Ashley, LNHA
 
CommentID: 241179