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 § 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 § 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’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’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’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 § 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 § 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 § 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 (§ 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 § 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 § 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 § 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 § 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 § 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 (§ 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 (§ 2.2-4000 et seq.).

2023, cc. 482, 483.