RICHMOND, Va. — Virginia was set to implement a nursing home minimum staffing standard this month as a state law passed more than two years ago, but with a delayed implementation date, took effect. But the staffing requirement is facing even more delays, with Governor Glenn Youngkin's administration pointing to restrictions lobbied for by the industry as the reason.
It's widely agreed upon among consumer advocates, industry professionals, and lawmakers that higher staffing in nursing facilities leads to better outcomes for residents. And yet, Virginia has remained in the minority of states without a minimum staffing requirement in place.
Tracey Pompey, whose father died in a Henrico County nursing home that was cited for failures related to his care, feels legislators have slow-walked what should have been a critical priority.
“It angers me. This has been happening for too long. This has been happening for decades, and you still can't do anything?” Pompey said. "After all the advocacy, after all the families that they know about that's going through this, it doesn't move them in any way."
But that changed in 2023, when the General Assembly passed a state-level staffing requirement which was endorsed by provider organizations including the Virginia Health Care Association (VHCA), which represents for-profit nursing homes, and LeadingAge Virginia, which represents non-profit nursing homes.
“We too agree that staffing is the greatest proxy for quality of care," said Dana Parsons, Vice President and Legislative Counsel at LeadingAge Virginia. “We supported that legislation, and we worked with the patrons of the legislation. As soon as it dropped, we started informing our members about it, talking with our members and educating them.”
The law requires facilities to provide at least 3.08 total nurse staff hours per resident per day and creates "numerous exceptions to the applicability of the staffing standards," according to an overview by the Board of Health.
The minimum requirement was a disappointment to some advocates who pushed for a higher standard. For comparison, the Centers for Medicare and Medicaid Services (CMS) determined 3.48 nurse staff hours per resident per day was the appropriate minimum to reduce the risks of unsafe and low-quality care. However, industry lobbyists considered Virginia's standard to be fair, especially considering the workforce challenges exasperated by the pandemic.
Democratic Delegate Vivian Watts, who has introduced other nursing home staffing bills for two decades, said the law that passed allows facilities to remain out of compliance for multiple years before facing consequences like fines up to $50,000 or action against their license. She ultimately supported the 2023 legislation to ensure there was "some degree of a staffing standard established."
“I objected again and again to the lack of serious enforcement where you could go on [out of compliance] year after year after year, again and again. The word ‘may’ rather than ‘shall’ was throughout the legislation. It was very, very open ended, and it did not contain the level of oversight that we need to have," Watts said.
Sponsor of the bill Republican Delegate Bobby Orrock declined CBS 6's interview request.
The legislation also came with a delayed implementation date of July 1, 2025 — so this month, the standard was expected to be in place.
However, it remains in limbo because the regulations have not been finalized, and in fact, they're still in the first phase of a three-phase regulatory process nearly two years after the Virginia Department of Health initiated action.
From start to finish, the regulatory process typically takes 18-24 months. The review of the proposed regulations by the health secretary and governor took nearly one year and ten months.
“It's been quite a confusing picture going forward," State Health Commissioner Dr. Karen Shelton said about the process.
Spokesperson for Governor Youngkin's Office Peter Finocchio said the confusion was due to "restrictions on state law advocated for by the industry" that created a conflict with federal law.
There was a clause in the law that deemed the state-level staffing standard void in the event of a federal staffing standard. And last year, CMS finalized a rule that set a higher standard than Virginia's. However, the CMS standard was legally challenged by industry groups and attorneys general including Jason Miyares, was struck down by a U.S. district court judge in Texas, and delayed by ten years in implementation through the adoption of the One Big Beautiful Bill.
So now, Shelton said VDH is working to identify next steps, but implementation is behind schedule.
“It's very disappointing, because we've been waiting. We’ve been waiting for this. I'm sure our elderly in nursing facilities have been waiting for this and then to get shot down again," Pompey said.
Regardless of the regulatory process, Finocchio said, “Nursing homes should move to the higher standard of care voluntarily without waiting for state enforcement.”
At LeadingAge, Parsons said members are already meeting or exceeding it.
“As not-for-profit providers, they are mission driven, and quality of care is paramount along with staffing. So I would say that our members at this time are not really confused about it not going into effect on July 1 because they were already implementing it," Parsons said.
Meanwhile, VHCA spokesperson Amy Hewett said there is "considerable uncertainty" surrounding the implementation and enforcement of the staffing standard.
She said the law came with an aspect that prevented enforcement of the staffing mandate if Medicaid funding was not appropriated to cover the state's share of costs necessary for facilities to meet the requirement.
"To date, the Commonwealth has not appropriated funds for the additional direct care staff costs at the level needed to meet the 3.08 hours of total nurse staffing per patient day requirement through the Medicaid payment rate," Hewett said in a statement.
Earlier this year, Governor Youngkin rejected a proposed amendment to the second year of the state's biennium budget that would give an extra $21 million in Medicaid payments to nursing homes for staffing purposes.
Though House Clerk Paul Nardo found Youngkin's veto unconstitutional, Hewett said Virginia's Medicaid agency did not reflect the additional funding in its new rates that took effect July 1. Still, Hewett said the funding was "insufficient relative to fully funding the staffing mandate" according to a VHCA cost analysis and was "never purported to be sufficient for such purpose by the General Assembly."
Hewett declined to provide a copy of the analysis but said VHCA used federal staffing ratio data and state wage survey data to make its determination.
Consumer advocates have argued a lack of financial transparency and data on related-party transactions, particularly in some for-profit facilities, make it difficult to fully understand how money is being spent.
As to any future hurdles that may arise with the state staffing standard, Youngkin's administration said that'll be the legislature's problem to fix.
"The General Assembly will have to address additional roadblocks to state enforcement advocated for by the industry in a future session," Finocchio said.
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