Virginia legislators advance protections for nursing home residents

Gov. Ralph Northam’s administration faced bipartisan criticism throughout much of the COVID-19 pandemic for its decision not to release the names of nursing homes and assisted living centers with outbreaks of the virus — largely leaving families and residents in the dark unless the facility chose to disclose the information itself.

The Virginia General Assembly responded this week, unanimously passing emergency bills in the House and Senate to require the disclosure. Del. Mark Sickles, D-Fairfax, and Sen. George Barker, D-Fairfax, sponsored identical legislation that clarifies existing state code and tasks the Virginia Department of Health with making information on outbreaks publicly available.

“This is to clarify, going forward into perpetuity, that this is the way these things have to be handled,” Sickles said in a Friday morning interview. 

As legislators grapple with an unprecedented special session, marked by a historic pandemic and nationwide calls for criminal justice overhauls, reforming the state’s response to hard-struck long-term care facilities has become a rare show of bipartisan camaraderie. Republican Sens. Steve Newman, R-Lynchburg, and David Suetterlein, R-Roanoke County, were both co-patrons on Barker’s bill. Democrats from both chambers also unanimously joined Republicans on Friday to pass legislation requiring nursing homes to facilitate virtual or in-person visits for residents.

While VDH has issued phased reopening guidance for the facilities, thousands of residents have spent months confined without visits from family or any communal activities. As of Friday, more than 1,300 COVID-19 deaths had occurred in long-term care facilities — more than half of the state’s total.

“Sometimes I question Virginia’s priorities during this pandemic,” said Sen. Jen Kiggans, R-Virginia Beach, who presented her visitation bill in the Senate on Friday morning. “We have a long way to go. I look at the things that are addressed in press conferences and I sit and I wait for long-term care to be made a priority. And I feel like we’re not making it one. There’s so much room for improvement.” 

Until mid-June, health officials refused to name nursing homes or assisted living centers with outbreaks of the disease. Virginia Health Commissioner Dr. Norman Oliver frequently justified the policy with a section of state code directing him to “preserve the anonymity of each patient and practitioner” unless the disclosure is “pertinent to an investigation, research or study.” VDH also cited another code section that grants immunity to any person reporting authorized health data to the agency. 

The same chapter defines “person” as “an individual, corporation, partnership, association or any other legal entity” — including health care facilities, according to the agency.

But multiple lawmakers have publicly disputed the department’s interpretation and vowed to clarify the language during the ongoing special session. The legislation from Barker and Sickles does just that, specifically directing VDH to publish information on outbreaks during any state of emergency declared in response to a contagious disease. 

The data, which must be “available to the public on a website maintained by the department,” is required to include the name of a facility, the number of confirmed cases, and the number of deaths.

“And it’s much more than just nursing homes,” Sickles added. Under the bill, VDH is required to publish outbreak information from any facility that already reports cases of disease to the agency. That includes medical care centers, residential programs, schools and summer camps, as well as campgrounds, hotels, and restaurants. But the bill wouldn’t require the agency to report outbreaks at poultry plants or many other workplaces — information that VDH has also refused to release. 

“This affects consumers,” Sickles continued. “The consumer wants to know, ‘Should I put my parent in this facility? What is happening in the facility where my parent lives? What is happening in the camp where my children are staying? These entities already have to report, and if there’s any question of what should be shared with the public, hopefully we’ve answered that.”

Identical bills from Kiggans and Del. Chris Head, R-Botetourt, also aimed to address complaints of isolation and loneliness from nursing home residents and their loved ones. Long-term care facilities adopted strict safety measures in early March under the direction of the U.S. Centers for Medicare & Medicaid Services, which directed nursing homes to tightly restrict visitors, volunteers and even outside health workers. 

State and federal agencies have issued reopening recommendations, not regulations, and “some facilities are still operating with extreme lockdown policies,” said Joani Latimer, the state’s long-term care ombudsman, who advocates on behalf of residents.

Some facilities have taken creative measures to assist with visitation, including window-side visits and family parades. But since the start of the pandemic in Virginia, Latimer said her office has received numerous complaints from families who haven’t been able to get access to their loved ones at all, in-person or virtually.

“We’ve had complaints at times about family members not being able to access the resident, or even a staff member, by phone,” she added. “Understandably, facilities are risk averse, but that can err on the side of not making reasonable accommodations.”

The newly passed legislation requires nursing homes to facilitate in-person or remote visits at least once every 10 days and create visitation protocols to inform families and residents when in-person visits will be allowed and when they’ll be conducted remotely. Facilities will also be required to outline the technology they have available and what steps they’ll take if there’s an internet outage or other emergency that prevents visits from occurring.

Latimer said the renewed focus on nursing home residents during the special session was an “encouraging sign” as facilities continue to struggle to contain new outbreaks. But both she and members of the industry are advocating for longer-term changes and a broader reconsideration of the state’s policy regarding nursing homes.

Part of that is funding. The Virginia Health Care Association-Virginia Center for Assisted Living, which represents more than 345 facilities across the state, is advocating for legislators to continue an additional $20 per patient per day in Medicaid reimbursement until the end of June next year to help nursing homes cover the cost of increased staffing and equipment. Longer-term, the industry is advocating for a permanent increase in the state’s Medicaid payments.

But Latimer said there are also fundamental questions about how nursing home care — which has attracted increasing corporate and private equity investment — is delivered, and whether the requirements for facilities are stringent enough. That includes the ratio of residents to staff members, which is still a persistent problem within the industry.

“I think my concern is that we still have deep work to do and significant changes to make,” she added. “It’s going to take something beyond the special session, something beyond the crisis — some long-term commitment to look really honestly and carefully about the whole model of care.”