by James C. Sherlock

In addition to the General Assembly embarrassing themselves in the way they passed a law on nursing homes in this year’s session, they did it in an unseemly rush.

There was no pre-filing, a near-immediate and disgraceful floor “debate” led by the nursing industry’s lobbyist, and a rushed vote in the House Health, Welfare and Institutions Committee.  

A committee member in the House hearing asked for time to consider the bill. Her request was denied by the Chairman, who was the House patron of the bill. That was followed by a cursory review in the Senate Education and Health Committee before near-unanimous passage by both bodies.

Now it appears that the new state law they passed may violate the governing federal statute. Which, of course, state laws are not permitted to do under the supremacy clause.

Existing state law. Code of Virginia § 32.1-135. Revocation or suspension of license or certification; restriction or prohibition of new admissions to nursing home is Virginia’s version of a state law required by the Social Security Act.  The implementing regulation is 12VAC5-371-90.

Under these laws, Virginia Health Commissioners possess state statutory and regulatory authority to sanction Virginia nursing homes. Those sanctions include:

• Restricting or prohibiting new admissions to any nursing facility;
• Petitioning the court to impose a civil penalty or to appoint a receiver, or both; or
• Revoking or suspending the license of a nursing facility.

Federal law and regulations.

Both the state law and regulation are required by the Social Security Act Sections 1819(h)(2)(D) and (E) and 1919(h)(2)(C) and (D) and CFR 488.417(b) under which states must provide for such sanctions and defines time limits for their imposition.

New state law. Virginia’s new Code of Virginia § 32.1-27.2. (Effective July 1, 2025) Administrative sanctions directs the Commissioner to wait as many as five years to impose sanctions that federal requirements insist be imposed within three months of certain violations.

The Virginia law does not contain language deferring to federal law and regulation.

Summary of federal requirements vs. the new Virginia state law. An applicable portion of Chapter 7 Survey and Enforcement Process for Skilled Nursing Facilities and Nursing Facilities of the CMS State Operations Manual  summarizes the state requirements:

7506.3 – Mandatory Denial of Payment for All New Admissions Remedy (Rev. 63, Issued: 09-10-10, Effective: 09-10-10, Implementation: 09-10-10)

Sections 1819(h)(2)(D) and (E) and 1919(h)(2)(C) and (D) of the Act and 42 CFR 488.417(b) require that, regardless of any other remedies that may be imposed, denial of payment for new admissions must be imposed when the facility is not in substantial compliance 3 months after the last day of the survey identifying deficiencies, or when a facility has been found to have furnished substandard quality of care on the last three consecutive standard surveys (see 42 CFR 488.414). [emphasis added].

• Medicare Facilities. CMS must deny payment to the facility for all new Medicare admissions.
• Medicaid Facilities. The State Medicaid Agency must deny payment to the facility, and CMS must deny Federal financial participation to the State Medicaid Agency for all new Medicaid admissions to the facility.” (emphasis added).

But § 32.1-27.2. unambiguously says:

C. Prior to restricting or prohibiting new admissions to a certified nursing facility, suspending or refusing to renew or reinstate any nursing home license, or revoking any nursing home license issued pursuant to Article 1 (§ 32.1-123 et seq.) of Chapter 5, the Commissioner shall first impose the following iterative administrative sanctions …..” [emphasis added].

At that point § 32.1-27.2 specifies five years of iterative delays for such things as three consecutive annual corrective action plans, which if all three fail, can be followed by a year of “probation.”

Bottom line. It does not seem possible for the Commissioner to comply with both:

1. the Social Security Act-mandated 3-month sanction imposition time limits and, starting in 2025,
2. Code of Virginia § 32.1-27.2.-mandated multi-year delays in imposing those same sanctions.

Delaying those sanctions was the whole point of the new law, so amendment seems to be pointless. If my assessment proves correct, § 32.1-27.2 will need to be repealed.

There should be an axiom somewhere in the General Assembly: “Beware of lobbyists bearing legislation.” But then there would not be much legislation at all.

Certainly, none will ever show up with a campaign finance reform bill.