After years of doing 'nothing,' Virginia moves to use its powers against troubled nursing homes

RICHMOND, Virginia — After years of doing "nothing," the Virginia Department of Health (VDH) has finalized a plan to actually use its powers to hold nursing homes accountable for serious care and safety failures.

VDH has always had the authority to shut down nursing facilities, pause their admissions, or petition the court to appoint new management of them.

However, the agency has historically not used those powers, even as in recent years, complaints from families and residents have significantly increased, and as inspectors themselves documented an overall observation of worsening care in facilities.

“We always had the ability to take some type of sanction, some type of action against a nursing facility," VDH's licensing director April Dovel said at a September Nursing Home Oversight Advisory Panel meeting. "We did not have a consistent, clear framework to submit to you all as the public and for our staff to truly follow.”

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For the first time, Dovel said the agency has clearly defined its accountability framework.

It established guidance that generally calls for a sanction review, but does not require VDH to take action in any particular case, when inspectors find:

• Residents are harmed or put at risk
• Patterns of violations signal systemic failures
• Facilities fail to correct problems
  

VDH sought public feedback on the guidance beginning in August and received 49 comments, according to Virginia's regulatory town hall website.

An overwhelming majority of the comments were critical of nursing home care, conditions, and state oversight. Here's what some people wrote:

    "They get dinged by licensure but very little changes. I'm talking about neglect. Insects. Rodents. Floors sticky with urine. Broken heat &/or air conditioning. Unchanged bandages, unaddressed fractures. You wouldn't put a stray dog in some of these places."

    "VDH is way too lax with nursing homes and not holding them accountable ... Virginia has failed the most vulnerable population as many of them literally do not have a voice or fear of retaliation if they speak up."

    "If you treat a pet the way some people are treated in these facilities (not receiving proper care, food and treatment) it is a criminal act. Owners and CEOs should be in jail for allowing these conditions to exist for our sick, disabled, elderly and often defenseless family members - not just "sanctioned"!!! Why is this allowed to continue?"

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CBS 6 asked state health officials for their thoughts on the public comments after September's Nursing Home Oversight Advisory Panel meeting.

“Do you understand why people are so outraged, and do you agree with what they’re saying?” reporter Tyler Layne asked.

“These are individuals' family members, right? I had a loved one that was receiving care in a facility and recognized firsthand what my experience was like for me and how that impacted me as an individual and as a public servant and why I think we're here and having these conversations that are really crucial to moving the needle forward, and this is one step in that direction," Dovel responded.

Roughly half of the 49 comments identified staffing issues as a concern or called for minimum staffing mandates, which are not currently defined or enforced in Virginia.

Many comments also took aim at for-profit ownership or called for greater corporate accountability.

On the specific guidance document itself, the responses were mixed. Some comments suggested it was too weak while others cautioned that overly punitive sanctions could jeopardize a facility's ability to make improvements.

"Significant penalties and restrictions do not affect an organization in isolation. They can reduce resources available for staffing, recruitment, retention, education, and other investments that directly support residents. The unintended consequence can be the opposite of what [VDH] is trying to accomplish," one commenter said.

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After reviewing the feedback, VDH ultimately decided to finalize the guidance document with no edits, saying that many of the comments involved issues that, while important, were outside of the scope of this particular document.

So, what did VDH do before establishing this plan? Health Secretary Marvin Figueroa asked Dovel that question at September's meeting, and her response was candid.

"Nothing," Dovel replied.

She added that historically, VDH would defer to federal regulators with the Centers for Medicare and Medicaid Services (CMS) to impose penalties such as fines and denial of Medicare and Medicaid payments.

Internal communications, obtained by CBS 6 through a public records request, showed VDH is also exploring utilizing its powers to petition the court to appoint temporary management of struggling nursing homes.

A VDH senior policy analyst wrote in a July email that VDH has not used the authority "for several decades, in part because we do not have anyone whom we could present to the court as a potential appointee" and wanted to discuss the issue further with a consultant.

Moving forward, the agency said it will publish dashboards so the public can have insights into its sanctioning decisions.

CBS 6 is committed to sharing community voices on this important topic. Email your thoughts to the CBS 6 Newsroom.