The General Assembly directed the Secretary of Health and Human Resources (SHHR) to "study the current oversight and regulation of nursing homes, assisted living facilities (ALFs), and other congregate living settings to improve efficiency and effectiveness of regulation and oversight, provide better transparency for members of the public navigating the process of receiving services from such facilities, and better protect the health and safety of the public." The Office of the Secretary of Health and Human Resources (OSHHR) convened two Chapter 559 Workgroup meetings in August and September of 2022, during which several informational presentations were given, feedback and public comment was received. The Chapter 559 Workgroup developed the following recommendations.

RECOMMENDATIONS

1. Staff from Virginia Department of Health (VDH), Virginia Department of Social Services (DSS), Virginia Department of Behavioral Health and Developmental Services (DBHDS), and the Virginia Department of Aging and Rehabilitative Services (DARS) jointly create a "one-page" reference guide for consumers and families that explains common congregate living and long-term care terminology, the levels of long-term care available in Virginia, which agency provides oversight for the different levels of long-term care, and where consumers may go or whom to contact for more in-depth information.

2. Staff from VDH, DSS, DBHDS, and DARS, as well as other agencies within the Health and Human Resource Secretariat, jointly develop a "decision tree" or similar decision-support tool to assist consumers in determining what level of congregate living may be appropriate for themselves and/or their family members.

3a. All relevant Health and Human Resources websites prominently post the "one-page" reference guide and decision support tool, as well as links to the pertinent provider search pages for each agency to allow consumers to search for providers as well determine their history of regulatory compliance. This includes the websites of VDH, DSS, DBHDS, and DARS, as well as the websites of the Office of the State Long-Term Care Ombudsman and the regional and local long-term care ombudsmen offices. 2-1-1 Virginia, No Wrong Door Virginia, and SeniorNavigator.org should also be included in this effort.

3b. DSS, in cooperation with the VDH, DBHDS, and DARS, convene a work group to assess consumers' experience in finding the appropriate level of long-term care and congregate living for their needs, including (i) whether the Commonwealth's websites including 2-1-1 Virginia, No Wrong Door Virginia, and SeniorNavigator.org should be consolidated; (ii) the accuracy, consistency, and sources of in formation concerning long-term care and congregate living settings on 2-1-1 Virginia, No Wrong Door Virginia, and SeniorNavigator.org; (ill) what information about congregate living settings from VDH, DSS, DBHDS, and DARS should be included on 2-1-1 Virginia, No Wrong Door Virginia, and SeniorNavigator.org; and (iv) what public outreach efforts, if any, could increase consumer knowledge about these resources.

4. Request that the Virginia Code Commission review the terms and definitions for "provider" and "health care provider" through the Code of Virginia in reference to providers of congregate living settings regulated by the VDH, DSS, and DBHDS. The Code Commission's findings and recommendations could be shared with OSHHR the Governor, and the General Assembly prior to the 2024 Regular Session. This recommendation could be accomplished either via legislation in the 2023 Regular Session or by letter from the Secretary of Health and Human Resources.

ISSUES FOR FURTHER CONSIDERATION

1. The State Board of Health does not have the authority to set licensing fees for nursing homes and currently must use statutorily prescribed fee amounts that have not changed in 43 years, which places the agency and its oversight functions under financial strain. The current fee schedule for annual license renewal is based on patient bed capacity but is not to exceed $500. In 1979, this fee schedule nearly supported the entire cost of the licensure and inspection program. However, due to the rate ($1.50 per bed) and the cap placed within the statute ($500), the revenues collected from nursing homes during licensure and renewal are no longer adequate to cover the expenditures of the licensing program. Additionally, Va. Code § 32.1-130 has never been amended, nor were additional appropriations provided, to recognize additional costs incurred by the licensure and inspection program as a result of subsequent legislative mandates and Virginia-specific requirements for nursing homes.

2. The State Board of Social Services has not pursued a regulatory action to increase its licensing fees since at least 1991. Licensing fees cannot be used to support the DSS's oversight functions, which puts the agency and its oversight functions under financial strain. The fees generated by licensing can only be used for the purpose of education and training for staff of and technical assistance to ALFs to "improve the quality of care in such facilities" per Va. Code §§ 63.2-1700 and 63.2-1803.1. It would be helpful for DSS to have more flexibility to access funds for operational and licensing functions, including the training of providers. Additionally, in July of 2021, DSS's Division of Licensing Programs was directed by the General Assembly to move the child care portion of the program to the Virginia Department of Education (VDOE), which included transferring millions of dollars of associated block grant funding from DSS to VDOE; this is now a major contributing factor to a lack of funding for the ALF licensing program.

3. Despite the large increase in the number of FTE licensing specialists at DBHDS over the last 10 years, the average specialist's caseload is 106 services and 339 locations; this is above the national average of 88 facilities per licensing specialist as reported by the National Association of Rehabilitation Providers and Agencies (NARA). This is partially due to the 92% increase in the number of licensed providers, the 96% increase in the number of licensed services, and the 80% increase in the number of DBHDS-licensed locations since SFY 2012. Additionally, the Settlement Agreement with the Department of Justice has increased the amount of information each specialist must review. Conversely, DBHDS's employment of 1icensing specialists has increased 12.9% to 35 FTEs and overall FTE licensing and oversight staff has increased 70.9% to 53 FTE (comprised of 35 licensing specialists, nine incident management specialists, and nine specialized investigators ).

4. Since federal fiscal year (FFY) 2015, the U.S. Centers for Medicare and Medicaid Services (CMS) has not increased funding to the Commonwealth for federal certification and survey activities that are performed by VDH for congregate living settings.

5. YOH, DSS, and OBHDS have experienced ongoing difficulty in attracting and retaining qualified employees to conduct inspections and other essential oversight functions mandated by either the Code of Virginia or CMS, even prior to the COVID-19 pandemic. The impact of prolonged vacancies has had an impact on the timeliness of inspections and other essential mandatory oversight functions.

6. VDH lacks meaningful enforcement options to compel compliance for nursing homes that violate Virginia-specific requirements. To remedy violations of state law, the State Health Commissioner only has the authority to require plans of correction (PoCs), restrict new admissions, or suspend or revoke a license. This is in contrast with penalties allowed under federal law, which include PoCs, directed PoCs, directed in-service training, state monitoring, temporary management, civil monetary penalties, discretionary denial of payment for new admissions, denial of payment for all individuals, and termination.