On July 14, 2016, the Virginia Supreme Court issued its opinion in Cherrie v. Virginia Health Servs., Inc., No. 151758, consolidated declaratory judgment appeals companion to lawsuits for wrongful death involving patient fall victims against the same nursing home.   It held that the “governing statute does not imply a private right on action for the enforcement of [12 VAC §5-371-140(G), so the regulation] cannot be enforced in a declaratory judgment action.”  Id. at 1.

Cherrie recounted that a “condition of licensure requires nursing homes to have ‘written policies and procedures’ and to make these ‘policies… available for review, upon request, to residents and their designated representatives’.  12 VAC §5-371-140(A), (G).”  Id. Cherrie recounted further that the Virginia Board of Health can enforce that policies production requirement by administrative sanctions, such as revoking or suspending the nursing home’s license and/or petitioning the court to impose civil penalty; with its decisions being subject to the Administrative Process Act, Va. Code §.2-4000 to 2.2 4031.  Id. at 1-2.

Cherrie emphasized: “Private parties nonetheless play a role in this process.  The regulations expressly grant interested parties the opportunity to file administrative complaints against a licensed nursing home.  See 12 VAC §5-371-70(B)”.  Id. at 6.  Accordingly, Mr. Waterman will be filing administrative complaints against Virginia Health Services, Inc. and any other nursing homes that deny requests for policies production.