In 2023 the General Assembly passed, and Gov. Glenn Youngkin approved legislation to implement and enforce nursing staffing requirements for nursing facilities with a delayed effective date of July 1, 2025.

• The legislation stipulates that the minimum staffing requirement is 3.08 adjusted total nurse staffing hours per resident day, per the metric determined by CMS and used by DMAS in the Nursing Facility Value Based Purchasing (VBP) program.

Although July 1, 2025 is imminent, the criteria upon which the enforcement of the standard was predicated and the required steps to achieve implementation have not been completed:

• The legislation specified that the state mandate would be repealed in the event that a staffing ratio or similar mandate is established under federal law. After CMS issued the final rule on minimum staffing standards for long term care facilities in April 2024, the Virginia Code Commission removed the state standard from §32.1-127 B 32 of the Code of Virginia, which contained the language establishing the 3.08 hour per day standard. Of note, the Code Commission did not remove §32.1-27.2, which outlines the procedures for, and methods of administrative sanctions associated with non-compliance with the afore referenced standard, still referencing §32.1-127 B 32. With this action, the state mandate no longer appears in the Code, although the orphaned enforcement procedures remain. It is not clear what the absence of the standard in the Code means, or whether it can be placed back into the Code without further legislative action.

• Under the Virginia Administrative Process Act, VDH is required to promulgate regulations to provide more specificity about the standard prior to the implementation of the new requirement. VDH issued a Notice of Intended Regulatory Action (NOIRA) on September 21, 2023. The Virginia Department of Planning and Budget completed its review on October 3, 2023 and forwarded the NOIRA to the Secretary of Health and Human Resources, which did not complete its review until March 24, 2025. The governor’s office has yet to finalize its review of the NOIRA. To promulgate the regulation, the governor would need to complete the NOIRA, and VDH would be required to issue proposed regulations and then final regulations, each with specified public notice and comment periods. This activity is complicated by the removal of the staffing standard from the Code, as discussed above.

• Additionally, the legislation required that the costs of that standard be funded in the Medicaid base rate. To date, the Commonwealth has not appropriated funds for the additional direct care staff costs at the level needed to meet the 3.08 PPD requirement through the Medicaid payment rate.

VHCA-VCAL supported passage of the 2023 legislation as the right approach to establishing a state staffing standard because the standard was tied to Medicaid base-rate and VBP Program inflation. However, given the issues outlined above, there is considerable uncertainty about how implementation and enforcement of the standard will proceed. We continue to discuss this matter with policymakers.

Disclaimer: This information is provided by VHCA-VCAL for educational purposes only and does not constitute legal advice. You are encouraged to consult with your own legal counsel.