Proposed Nursing Home Staffing Standards in Virginia Failed To Pass State House

Virginia is long overdue in mandating minimum staffing levels for skilled nursing facilities, explains Virginia nursing home attorney Jeffrey J. Downey. According to the Virginia Department of Health, between one and two million Americans aged 65 or older have been exploited, injured, or mistreated by someone responsible for their care.

Virginia is one of only 18 states that does not require a minimum number of staff hours per resident day. President Biden’s Build Back Better legislation, which had not passed the US Senate, would make minimum staffing levels a federal requirement.

The legislation that would have enacted those requirements at the state level, HB 646,  was tabled by the Virginia State House in February until the next legislative session in 2023.  As a practical matter, it is unlikely that the current Governor would approve such legislation, explains Virginia nursing home attorney Jeffrey Downey.

Were the legislation to be enacted, it would help clarify the minimum requirements for long-term staffing and could help prevent future neglect and abuse in Virginia nursing homes.

The Virginia House bill called for the State Board of Health to establish staffing and care standards in nursing homes to require a minimum of direct care services to reach residents per 24-hour period as follows:

  • 8 direct care hours provided by a nurse aide resident per day
  • 3 direct care hours provided a registered nurse or licensed practical nurse per resident, per day
  • 45 minutes out of a total of 4.1 hours provided by a registered nurse per resident, per day.

The federal regulations require staffing sufficient to meet the total care needs of the residents, but the minimum numbers of staffing are not set forth in those federal OBRA regulations, explains Downey.   42 C.F.R. 483.10, et seq.

Many nursing homes have suffered staffing issues as a result of Covid-19 and the legislature has given them partial immunity for staffing issues related to Covid.  I’ve written about this issue before. Unless we hold nursing homes and assisted living facilities responsible for the neglect of our elderly, we will only see more problems in long-term care facilities.  Patients in under-performing or poorly staffed nursing facilities are at risk of injuries due to malnutrition, pressure wounds (bed sores), falls, contractures, elopements, and wrongful death explain elder abuse attorney Jeffrey Downey.

In a recent article from Skilled Nursing News, the Virginia Health Care Association (VHCA) claims new staffing regulations could not be met by the current, available workforce.   Since February 2020, staffing levels have decreased nearly 9,000, to levels not seen since 2012.  Nationally, over 200,000 or approximately 14 percent of the skilled nursing workforce left during the ongoing pandemic, according to the Bureau of Labor Statistics.

The American Health Care Association estimated that an additional 150,000 direct care workers would be needed to meet the hourly requirements, and at least 21,000 more registered nurses would be needed to provide necessary around-the-clock care.

We are seeing a significant drop in nursing home staffing levels at the same time we are seeing more people going into long-term care, explains Downey.  The website indeed.com notes that the average nursing assistant salary in Virginia is only $15.91 per hour. That is hardly an incentive to undertake what can be an emotionally and physically demanding job in this industry, explains Downey.

“Virginia should be seeing how the implementation of that program works when we’re providing incentives for increased staffing, not sanctions and penalties as outlined in these other bills,” Amy Hewett said, Vice President for Strategy and Communications, adding that the state needs to better fund Medicaid as well.

Currently, Virginia’s Medicaid program would only cover the cost for half of the days that a patient was in the program, VHCA’s Hewett said.

Beginning July 2022, Virginia will begin a program that would incentivize nursing homes to increase staffing minimum hours, which is the Nursing Facility Value-Based Purchasing Program developed and led by the state’s Medicaid. https://www.dmas.virginia.gov/media/4207/final-dmas-sfy-2023-nf-vbp-program-methodology.pdf

As part of the program, the performance measure rates which would reward nursing facilities that have reached required staffing levels include:

1) number of registered nurse hours
2) total nurse staff hours per resident per day
3) number of hospitalizations (1000 long-stay resident days and emergency department visit
by such patients
4) Percentage of long-stay High-Risk Residents with Pressure Ulcers and Percentage of long
-stay Resident with urinary tract infection (UTI).

The program, which is set to begin July 2022, would determine the size of Medicaid reimbursements based on performance across six measures that delve into adequate staffing and “avoidance of negative care events,” according to program text.

It would also take into account quality of care investment for payments, separate from performance measures.

“Virginia should be seeing how the implementation of that program works when we’re providing incentives for increased staffing, not sanctions and penalties as outlined in these other bills,” Hewett said, adding that the state needs to better fund Medicaid as well.


Contact your local assemblyman or congressman to demand better staffing in nursing homes and support for HB 646

For more information about this issue or to learn about elder neglect and abuse case prosecutions in Virginia,  contact the law office of Jeffrey J. Downey for a free consultation.

Jeffrey J. Downey
8270 Greensboro Drive, Suite 810
McLean, VA 22102
Phone: 703-564-7318 or 703-564-7357 Fax: 703-883-0108

Website: https://www.jeffdowney.com/

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