Vol. 37 Iss. 18 - April 26, 2021



Agency Decision

Title of Regulation: 12VAC5-371. Regulations for the Licensure of Nursing Facilities.

Statutory Authority: §§ 32.1-12 and 32.1-127 of the Code of Virginia.

Name of Petitioner: James Sherlock.

Nature of Petitioner's Request: "Change Virginia Nursing Facility Licensure Regulations to Align with Federal Medicare/Medicaid Certification Regulations. The weaknesses of Virginia's nursing facility (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. 12VAC5-371 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 and 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 5.0% 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 ford 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 Decision: Request granted.

Statement of Reason for Decision: The State Health Commissioner, acting on behalf of the State Board of Health, has decided that a standard regulatory action should be initiated.

Agency Contact: Rebekah E. Allen, Senior Policy Analyst, Department of Health, 9960 Mayland Drive, Suite 401, Richmond, VA 23233, telephone (804) 367-2102, or email

VA.R. Doc. No. R20-54; Filed April 7, 2021, 9:08 a.m.