By James C. Sherlock
I saw a comment somewhere that medical facilities are the second most regulated industry in America, just behind nuclear power.
Yet we see that it has not been working in Virginia in the case of nursing homes. And compliance is considerably harder in the other medical facilities and services in Virginia than it needs to be.
A big part of the reason is that Virginia has laws and regulations that either:
- Do not implement federal laws or regulations that require the state to do so for facilities accepting Medicare or Medicaid/Children’s Health Improvement Program (CHIP); or
- Conflict with the Social Security Act and its executing regulations, which take precedence in the case of those federally-funded programs; or
- Both.
In case of omission or conflict with the federal guidelines, state laws and regulations do not add value, just complexity and confusion.
And to no avail.
An example. Virginia state laws on medical facilities and services are the subject of fierce and effective lobbying of the General Assembly by the industries affected. Most recently they passed a bill to write specific minimums for nursing facility staffing that are far too low.
The law is supposed to take effect in 2025. It should be repealed. If it takes effect, it won’t matter. CMS has announced a rule for new minimums which are higher.
Everyone in the business knew the rule was coming when the General Assembly passed the new law. Virginia should have waited to see what it required.
Two hundred and eighty seven Virginia nursing facilities accept Medicare, Medicaid or both. Something like six do not. It is doubtful that the General Assembly passed and the Governor signed a law meant to govern six nursing homes.
And the Board of Health is directed in the new law to write regulations to execute it.
That is an example of conflict. In comparing federal and state guidelines, I have seen omissions in Virginia laws and regulations.
Knowing what the state needs to do is not hard. The federal rules remain the governing guidelines for both federal and state Medicare and Medicaid enforcement, whether they are reflected in Virginia law and regulations or not.
But federal law and regulations use words easy to spot: the states “must” or “shall.” In some cases, Virginia does not.
Fix it. So here is an idea. Convene a panel of lawyers and medical professionals under the Secretary of Health and Human Resources with a charter to:
- Ensure that everything in the Social Security Act and the Code of Federal Regulations that requires states to write implementation into the state code and regulations is reflected in the required places;
- Identify where Virginia laws and regulations conflict with federal counterparts;
- Create draft rewrites of both as required;
- Submit the results to the General Assembly and the Board of Health.
It is a serious project, but not a particularly complex one. It can be done in time for the 2024 session.
The Centers for Medicare & Medicaid Services (CMS) State Operations Manual is the place to start. It already identifies what federal laws and regulations require and provides the references. See Chapters 2 and 7 among others.
Bottom line. Federal legislation and the Code of Federal Regulations (CFR) are quite clear about when states must or shall by law or regulation support the federal requirements in the case of facilities accepting Medicare, Medicaid/CHIP or both.
In this case, the federal government holds a royal straight flush.
States can write guidelines in addition to those required by the federal government, but must be in compliance. Simpler is far better for those medical facilities and services trying to comply.
Thus compliance is both required and desirable. Virginia should get it done.