Nursing home advocates and observers say Virginia’s staffing mandate adequately melds direct care hours with financial incentives for facilities and punitive flexibility by state regulators.
The measure will require nursing homes to provide at least 3.08 hours of total nursing care per resident per day. The General Assembly approved the legislation last week, and it awaits the signature of Gov. Glenn Youngkin (R). Once it takes effect in July 2025, there would be just 14 states without minimum staffing standards.
But unlike some other states, Virginia allows for any category of nurse to fulfill the required hours.
The law also gives the state Health Commissioner discretion to waive sanctions and penalties if facilities show good-faith efforts toward hiring and training skilled nursing staff.
“The nuanced details really matter,” said Steven Littlehale, a gerontological clinical nurse specialist and chief innovation officer at Zimmet Healthcare Services Group.
Virginia’s use of payroll-based journal data plus its inclusion of nursing directors and others who perform administrative as counting toward the daily hours duties differs from other states. It also links the staffing requirement to facilities’ Medicaid value-based purchasing program.
“Simply put, [nursing homes] have financial incentives to meet the staffing requirement,” said Littlehale, an expert columnist at mcknights.com.
Those measures helped win the support of the Virginia Health Care Association, which lobbied for required funding for the state’s share of implementation costs and delayed enactment to be included in the bill to give the sector a chance to recover from historic, pandemic-related job losses. Nursing homes and residential care facilities in the state are down nearly 7,000 employees since February 2020, according to the association.
Staffing mandates have been controversial elsewhere with nursing home providers and advocates pleading either for program suspensions or waivers against penalties. But the Virginia Health Care Association said its membership supports this bill because of the included flexibilities and delayed enactment. The Health Commissioner also could issue waivers in the event of a declared emergency or due to a facility’s location in a medically underserved area that limits recruiting and retaining staff.
Virginia’s measure could be rendered moot, though, once CMS issues its staffing rule. The federal agency has been studying the issue for nearly a year now — ever since the White House released a 21-point nursing home reform plan that hinges on a federal mandate. Seven Democratic US senators recently sent a strongly-worded letter to CMS Administrator Chiquita Brooks-LaSure urging her to wrap up the analysis and begin with implementation plans.
The letter did encourage the agency to take into account the significant problems that rural providers and those in underserved areas already have maintaining adequate staffing.
Sector observers expect CMS’ rule to require approximately 4.1 hours of nursing care per day per patient; that would supersede Virginia and any other state with a lower requirement. There has been no indication of what penalties for noncompliance could be or when a federal rule would take effect.
Facilities found in noncompliance with Virginia’s staffing mandate would have to submit a corrective action plan to the state. Nursing homes out of compliance two years in a row could face fines as high as $50,000 and be placed on probation if noncompliance continues a third year.
David Grabowski, a member of the Medicare Payment Advisory Commission and a professor at Harvard Medical School, said the uncertainty of the federal timing created a pathway for states to develop their own measures, which could prove wise.
“All signs suggest CMS is moving forward with a minimum staffing rule, but it is not official until it is implemented,” Grabowski told McKnights Long Term Care News Friday. “The federal rule has received a lot of pushback, and it may reach a point where states have to fall back on their own rule.”