                                 CODE OF VIRGINIA

ADMINISTRATIVE SANCTIONS (§ 32.1-27.2)

A. Notwithstanding any other provision of law, the Commissioner may impose
administrative sanctions in accordance with this section on any certified
nursing facility, if that certified nursing facility does not comply with the
provisions of regulations promulgated pursuant to subdivision B 32 of &#xA7;
32.1-127. The Commissioner shall not impose any administrative sanctions
authorized under this section until regulations are promulgated pursuant to
subsection G.

B. The Commissioner shall have authority to annually determine whether or not to
impose any sanctions under subsection C for noncompliance with the provisions of
regulations promulgated pursuant to subdivision B 32 of § 32.1-127, if the
certified nursing facility:

   1. Was affected by a declared emergency, or an act of God, that had an impact
   on the ability to hire or retain staff at levels required under subdivision B
   32 of &#xA7; 32.1-127. To the extent necessary, the Commissioner may review
   trended employment data for direct care staff, as provided by the certified
   nursing facility, to determine the effect of such emergencies or acts of God
   in assessing this criterion. Failure to provide adequate data may remove this
   criterion from the Commissioner&#8217;s consideration;

   2. Has made a concerted effort to recruit and retain direct care staff as
   evidenced through position advertisements, interviews, offers, financial
   incentives, and nonfinancial incentives. The certified nursing facility shall
   provide such evidence upon request of the Commissioner for consideration.
   Failure to provide adequate evidence may remove this criterion from the
   Commissioner&#8217;s consideration; or

   3. Was located in a medically underserved area and such location severely
   limited the ability of the certified nursing facility to recruit and retain
   direct care staff despite a concerted effort to recruit and retain direct care
   staff. The certified nursing facility shall provide evidence upon request of
   the Commissioner for consideration. Failure to provide adequate evidence may
   remove this criterion from the Commissioner&#8217;s consideration.

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:

   1. When a certified nursing facility is not in compliance with subdivision B
   32 of &#xA7; 32.1-127 and the conditions under subsection B do not exist, the
   Commissioner shall require the submission of an annual corrective action plan
   by a certified nursing facility and, upon approval of such plan by the
   Commissioner, compliance with such plan. A corrective action plan shall only
   articulate strategies to be utilized to increase direct care staffing with the
   goal of compliance with subdivision B 32 of &#xA7; 32.1-127 or improvement on
   the total nurse staffing hours metric, as defined by the Virginia Medicaid
   Nursing Facility Value-Based Purchasing (VBP) program. The Commissioner shall
   consider evidence of direct care staff hours provided in addition to the
   payroll based journal report, if requested by a certified nursing facility,
   and may or may not impose a corrective action plan under this section. The
   Commissioner shall consider the following:
   				a. If the annual measurement immediately subsequent to issuance of the
   corrective action plan shows compliance with subdivision B 32 of &#xA7;
   32.1-127, no additional administrative sanctions are warranted, and the
   corrective action plan is deemed inactive but shall be retained by the
   Commissioner pursuant to the Virginia Public Records Act (&#xA7; 42.1-76 et
   seq.); or
   				b. If the annual measurement immediately subsequent to issuance of the
   corrective action plan still shows noncompliance with subdivision B 32 of
   &#xA7; 32.1-127, but the VBP program, as administered by the Department of
   Medical Assistance Services, indicates defined improvement on the total nurse
   staffing hours metric, the Commissioner shall repeat the provisions of
   subdivision 1; or
   				c. If the annual measurement immediately subsequent to issuance of the
   corrective action plan still shows noncompliance with subdivision B 32 of
   &#xA7; 32.1-127, and the VBP program, as administered by the Department of
   Medical Assistance Services, does not indicate defined improvement on the
   total nurse staffing hours metric, the Commissioner shall repeat the
   provisions of subdivision 1 and may, under circumstances described, provide
   additional sanctions under subdivisions 2 and 3;

   2. To the extent that any consecutive annual corrective action plan is
   required and results articulated in subdivision 1 c are obtained a second
   consecutive time, the Commissioner may impose a monetary penalty of up to
   $50,000 for each subsequent consecutive annual period in which compliance with
   subdivision B 32 of &#xA7; 32.1-127 or defined improvement on the total nurse
   staffing hours metric under the VBP program is not attained; and

   3. To the extent that a certified nursing facility is out of compliance with
   subdivision B 32 of &#xA7; 32.1-127 or fails to show defined improvement on
   the total nurse staffing hours metric under the VBP program after three
   consecutive corrective action plans, the Commissioner may place the nursing
   home or certified nursing facility on probation.

D. A certified nursing facility sanctioned by the Commissioner shall retain
responsibility for the health, safety, and welfare of any person under its care,
including the timely transfer or relocation of such persons as may be deemed
necessary by the Commissioner in compliance with state and federal discharge
rights and protections for nursing home residents.

E. After deduction of the administrative costs of the Commissioner and the
Department in furtherance of this section, any penalties collected under this
section shall be paid to the special fund as set forth in &#xA7; 32.1-27.1.

F. Prior to imposing administrative sanctions, the Commissioner shall provide
the facility with reasonable notice. To the extent that sanctions are imposed,
the facility shall be entitled to all rights under the Administrative Process
Act (&#xA7; 2.2-4000 et seq.) and to a de novo appeal to circuit court.

G. The Board shall promulgate regulations to implement the provisions of this
section consistent with the Administrative Process Act (&#xA7; 2.2-4000 et
seq.).

HISTORY: 2023, cc. 482, 483.