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The federal Nursing Home Reform law requires nursing facilities to have "sufficient" staff to meet their residents' needs.[1]  Sufficient nursing staff is universally recognized as a key requirement for making high quality of care possible and available for residents. 

To determine whether nursing facilities are in compliance with nurse staffing (and other) federal standards of care (which are called Requirements of Participation), state survey agencies conduct unannounced annual and complaint surveys, using survey protocols that are developed, tested, and validated by the Centers for Medicare & Medicaid Services (CMS).[2]  In the federal survey protocol, regulatory requirements are identified by "F-tags."  The F-tag for "sufficient" staff is F353.

Facilities that are not in substantial compliance with federal Requirements are cited with deficiencies, which CMS classifies according to both their scope (how many residents are affected) and their severity (how serious the noncompliance is).[3]  A schematic version of the classification system is shown in a 12-box scope and severity grid.[4]  Facilities that are cited with deficiencies are subject to a variety of sanctions, including civil money penalties (CMPs) and denials of payment for new admissions.[5]  As a matter of policy, however, CMS generally limits CMPs to facilities that are cited with deficiencies that are classified as causing harm to residents – level G and above on the scope and severity grid.[6] 

Reviewing federal data on staffing deficiencies that were cited nationwide in the four-year period 2010-2013, the Center for Medicare Advocacy (Center) found that most staffing deficiencies are cited at a "no harm" level.[7]  Moreover, even facilities that are cited with the highest level of serious staffing deficiencies – immediate jeopardy – often are not sanctioned for their noncompliance. 

Staffing Deficiencies

Federal deficiency citations are available at https://data.medicare.gov/Nursing-Home-Compare/Health-Deficiencies/npft-b6wt.  The national data can be filtered in multiple ways, including identification of deficiencies by specific F-tags and scope and severity.

As indicated below, very few facilities are cited with staffing deficiencies, although CMS reported in its seminal nurse staffing report in 2001 that more than 90% of facilities nationwide do not have sufficient staff to meet residents' needs or to prevent avoidable harm.[8]

CM,100%SstaffingYear

Number of nursing homes[9]

Number of staffing deficiencies (F353)

Percentage of nursing homes with staffing deficiencies

2010

15,649

   91

.006%

2011

15,683

 332

.021%

2012

16,100

 420

.026%

2013

16,100

 367

.022%

The Center examined the deficiency citations for F353 in calendar years 2010-2013, identifying deficiencies by facility, state, and scope and severity determination.  The overwhelming majority of staffing deficiencies (1132 deficiencies out of a total of 1210 deficiencies, 93.6%) are cited at a no-harm (D-F) level.  Here are the specific findings:

Year

Total number of F353 deficiencies

Substantial compliance (A-C)

No harm

(D-F)

Harm

(G-I)

Immediate jeopardy (J-L)

2010

    91 

  2

    84

  2

  3

2011

  332 

  6

  306

14

  6

2012

  420 

  8

  392

10

10

2013

  367

  5

  350

  9

  3

Total

1210

21 (.017%)

1132 (93.6%)

35 (.029%)

22 (.018%)

A further breakdown of the scope and severity determinations shows that the most common scoring for a staffing deficiency is Level E – pattern, no actual harm.

Year

Level D

Level E

Level F

Level G

Level H

Level I

Level J

Level K

Level L

2010

  6

  53

25

0

  2

  0 

  1

  3

  0

2011

58

210

38

8

  5

  1

  3

  0

  3

2012

72

251

69

5

  5

  0

  2

  7

  1

2013

67

219

64

6

  2

  1

  0

  3

  0

Immediate Jeopardy Staffing Deficiencies

The Center reviewed the facilities that were cited with jeopardy deficiencies in staffing in 2013 and 2012. 

2013

In 2013, three jeopardy-level staffing deficiencies were cited nationwide, all as a result of complaint surveys.  Louisiana, Michigan, and Texas each cited one jeopardy-level deficiency in staffing.  The following chart records, for each of the three facilities, the total number of jeopardy deficiencies that were cited in the survey that cited the jeopardy-level staffing deficiency; whether a CMP was imposed for this survey (the chart does not include CMPs that were imposed for other surveys); the total amount of CMPs imposed for this survey (which may include CMPs for non-staffing deficiencies); and whether denial of payment for new admissions (DPNA) was imposed for this survey.

Facility and State

Total number of jeopardy deficiencies cited in this survey

Whether CMP imposed for this survey

Amount of CMPs for this survey

Whether DPNA imposed for this survey

Winnifield Nursing and Rehabilitation Center, LA

  6

No

 

No

Martha T Berry Medical Care Facility, MI

  1

Yes

2 CMPs ($7963; 8190) totaling $16,153

Yes

Goldthwaite Health & Rehabilitation Center, TX

  6

Yes

2 CMPs ($7500; $36,600) totaling $44,100

No

Winnifeld Nursing and Rehabilitation Center, LLC, (Louisiana), owned by a for-profit partnership, was cited with six immediate jeopardy deficiencies, including sufficient staffing, on a complaint survey ending August 1, 2013.  The F353 staffing deficiency was based on staffing in the locked behavior unit, where there were physical altercations between residents, one resident made a homemade weapon, and another resident eloped and threatened to elope again.  Although the facility ordered one-on-one monitoring for the resident who eloped, it did not increase staffing to allow for the increased monitoring.  According to the federal website Nursing Home Compare, and as of January 9, 2014, no CMPs or DPNAs had been imposed against the facility in the prior three years.

Martha T. Berry Medical Care Facility (Michigan), a government-owned facility, was cited with an F353 staffing deficiency in a complaint survey ending March 20, 2013.  The F353 deficiency was based on the absence of any licensed nurse on a unit with 49 residents on two different shifts.  Fourteen residents did not receive 43 medications (including antidepressant, antihypertensives, insulin, oral diabetes medications, dementia medications, opioid and non-opioid medication, stool softeners, eye medications, diuretics, anti-asthma medications, Parkinson medication, medication for nerve pain, a medication to treat urine flow in men with prostate disease, and an anti-cholesterol medication).  According to Nursing Home Compare, and as of January 9, 2014, two CMPs ($7963 and $8190, totaling $16,153) and a DPNA were imposed against the facility for the March 20 survey.  Martha T. Berry Medical Care Facility is a member of Advancing Excellence, the nursing home industry's voluntary quality improvement campaign.[10]

Goldthwaite Health & Rehabilitation Center (Texas), owned by a for-profit corporation, was cited with six immediate jeopardy deficiencies, including sufficient staffing, following its February 15, 2013 complaint survey.  The F353 staffing deficiency was based on the videotaping of a resident, recorded by his son (a deputy sheriff), being abused by an aide and tied to his bed with a sheet.  The aides told surveyors that they had told the Director of Nursing (DoN) that they needed more staff because the resident needed constant assistance and supervision and they did not have enough time for the other residents.  According to the aides, the DoN told the aides to keep the resident in his chair and that as long as they did not tie his hands down, what they did would not be considered a restraint – hence the sheet across his bed.  The aides told the surveyors they had requested additional staff.  According to the federal website Nursing Home Compare, and as of January 9, 2014, two CMPs were imposed against the facility for the February 15 survey: $7500 and $36,600 (totaling $44,100).  There was no DPNA.

2012

In 2012, 10 facilities nationwide were cited with jeopardy-level staffing deficiencies.  Six of the jeopardy deficiencies followed complaint surveys; five, annual surveys.  Florida, New York, Oklahoma, Rhode Island, Tennessee, Texas, and Washington each cited one facility with a jeopardy staffing deficiency; Louisiana cited three facilities.  (One Louisiana facility was cited with a jeopardy-level staffing deficiency at two complaint surveys in 2012.  However, since both survey reports use identical language for the staffing deficiencies (although the deficiency reports are different from each other in other respects), the Center is recording the facility as having been cited only once with a jeopardy-level staffing deficiency.)

Facility and State

Total number of jeopardy deficiencies cited in this survey

Whether CMP imposed for this survey

Total CMPs imposed for this survey

Whether DPNA imposed for this survey

Rehabilitation and Healthcare Center of Tampa, FL

   3

No

 

No

Villa Feliciana Chronic Disease, LA

   4 (May 22)

 

  

Yes

 

 

 

3 CMPs ($4030; 22,230; 43,615) totaling $69,875

 

Yes

 

 

Evangeline Oaks Guest House, LA

   4

No

 

Yes

Golden Age of Welsh, LA

   5 (Sep. 5)

 

 

 

  

Yes

 

 

 

 

2 CMPs ($243,100; $7020) totaling  $250,120

 

Yes

 

 

Mercy Living Center, NY

  4

No

 

Yes

The Living Center, OK

  2

No

 

No

Cortland Place, RI

16

Yes

2 CMPs ($2925; $76,700) totaling $79,625

No

Union City Manor, TN

  5

Yes

2 CMPs ($1463; $15,795) totaling $17,258

No

Trinity Nursing and Rehabilitation, TX

  5

Yes

3 CMPs ($1788, 2600; 2113) totaling $6501

Yes

Kittitas Valley Health & Rehab, WA

  5

No

 

No

Rehabilitation and Healthcare Center of Tampa (Florida) was cited with a jeopardy-level staffing deficiency on May 18, 2012, along with two additional jeopardy-level deficiencies.  The staffing deficiency was based on surveyors' observation of nurses sleeping on two units at 3:00 a.m. during their shifts.  According to the federal website Nursing Home Compare, and as of January 9, 2014, neither CMPs nor DPNAs were imposed as a result of the staffing deficiency.  Rehabilitation and Healthcare Center of Tampa is a member of Advancing Excellence.

Villa Feliciana Chronic Disease (Louisiana) was cited with four jeopardy-level deficiencies, including insufficient staffing, at its annual survey May 22, 2012.  (It was cited with six jeopardy-level deficiencies, including RN staffing eight hours a day, at a survey on December 21.)  The May 22 staffing deficiency was based on a resident's elopement and the certified nurse aide (CNA) telling surveyors that she was assigned the entire hall and could not provide care to all the residents, many of whom had mental health and behavior issues and required one-on-one or "close supervision."  The CNAs had complained about insufficient staffing.  Short staffing was confirmed by the LPN, the registered nurse Manager, and multiple additional staff.  According to the federal website Nursing Home Compare, and as of January 9, 2014, CMPs and DPNAs were imposed for both surveys that cited jeopardy-level staffing deficiencies.  Villa Feliciana Chronic Disease is a member of Advancing Excellence.

Evangeline Oaks Guest House (Louisiana) was cited with four jeopardy-level deficiencies, including staffing, at its annual survey on June 29, 2012.  The staffing deficiency was based on resident elopements and a broken Wanderguard.  According to Nursing Home Compare, and as of January 9, 2014, DPNA was imposed, but no CMPs, for the June 29 survey.  Evangeline Oaks Guest House is a member of Advancing Excellence.

Golden Age of Welsh, LLC (Louisiana) was cited with five jeopardy-level deficiencies, including F353, at two complaint surveys, September 5 and October 17, 2012.  The September staffing deficiency cited the provision of service by an LPN whose license had been suspended, who was working while impaired by cocaine, and who did not administer all medications to residents as prescribed.  The October staffing deficiency uses identical language under F353.  According to Nursing Home Compare, and as of January 9, 2014, two CMPs ($243,100; $7,020) totaling $250,120 and DPNA were imposed following the September survey.  The October survey led to neither a CMP nor a DPNA.  Golden Age of Welsh is a member of Advancing Excellence.

Mercy Living Center (New York) was cited with four jeopardy-level deficiencies, including staffing, following a complaint survey on April 26, 2012.  The staffing deficiency was based on late administration of medications to residents because of insufficient staffing, as reported by the LPN and confirmed by the RN Unit Manager.  According to Nursing Home Compare, and as of January 9, 2014, a CMP of $4050 was imposed on April 26.  No DPNA was imposed.

The Living Center (Oklahoma) received two jeopardy-level deficiencies, including staffing, following a complaint survey on January 13, 2012.  According to Nursing Home Compare, and as of January 9, 2014, no CMPs or DPNA was imposed.  The Living Center is a member of Advancing Excellence.

Cortland Place (Rhode Island) was cited with 16 jeopardy-level deficiencies, including staffing, at its annual survey on November 9, 2012.  According to Nursing Home Compare, and as of January 9, 2014, two CMPs ($2929; $76,700) totaling $79,625 were imposed.  No DPNA was imposed.  Cortland Place was cited with the highest number of deficiencies in the state, 37.  The facility is a Special Focus Facility (SFF).  As of December 19, 2013, Cortland Place had been on the SFF list for 18 months and was identified as having shown improvement.  Cortland Place is a member of Advancing Excellence.

Union City Manor (Tennessee) was cited with five jeopardy-level deficiencies, including staffing, at its annual survey on January 19, 2012.  A resident eloped, suffering hypothermia, when the facility was insufficiently staffed.  According to Nursing Home Compare and as of January 9, 2014, two CMPs ($1463; $15,795) totaling $17,258 were imposed for deficiencies cited at the January survey.  No DPNA was imposed.

Trinity Nursing and Rehabilitation, LP, was cited with five jeopardy-level deficiencies, including staffing, at its annual survey on August 3, 2012.  A resident in the secure unit fell within one hour of her readmission from the hospital and sustained two fractures of her right leg because there was insufficient staffing to supervise her.  According to Nursing Home Compare and as of January 9, 2014, three CMPs ($1788; $2600; $2113) totaling $6501 and DPNA were imposed for the August 3 deficiencies.

Kittitas Valley Health & Rehab Center (Washington) was cited with five jeopardy-level deficiencies, including staffing, at a March 28, 2012 complaint survey.  An anonymous licensed nurse reported that the facility ha dismissed the staff and brought in agency nurses who did not know the residents or the building and its systems.  Surveyors found that multiple residents experienced actual harm at the jeopardy level when they did not receive medications or care that was ordered.  A DPNA, but no CMPs, was imposed for the March survey.  The facility graduated from the SFF program, as of CMS's December 19, 2013 list.  The September 4, 2013 list of SFFs identified Kittitas Valley Health & Rehab Center as an SFF for 13 months.  Kittitas Valley Health & Rehab Center is a member of Advancing Excellence.

Enforcement

As demonstrated above, even facilities that are cited with immediate jeopardy deficiencies in staffing (as well as additional immediate jeopardy deficiencies) may not face significant penalties.  One of the three facilities cited with an immediate jeopardy staffing deficiency in 2013 and five of the ten facilities cited with an immediate jeopardy staffing deficiency in 2012 did not have a CMP imposed as a result of the survey that cited the jeopardy-level staffing deficiency.  Two of three facilities cited with an immediate jeopardy staffing deficiency in 2013 and five of the ten facilities cited with an immediate jeopardy staffing deficiency in 2012 did not have a DPNA imposed as a result of the survey that cited the jeopardy-level staffing deficiency.  One facility in 2013 and three facilities in 2012 had neither a CMP nor a DPNA imposed as a result of the survey that cited a jeopardy-level staffing deficiency.

Eight of the 13 facilities, 62% (one in 2013 and seven in 2012) are members of Advancing Excellence, the nursing home industry's voluntary quality improvement campaign.

Conclusion

Insufficient nurse staffing is rarely cited and even when the deficiency is cited at the highest level of harm to residents – immediate jeopardy – nursing facilities may not be sanctioned in any way.  The federal enforcement system cannot be effective in improving care for residents if it is not used.

Toby S. Edelman
tedelman@medicareadvocacy.org
June 18, 2014

 

 


[1] 42 U.S.C. §§1395i-3(b)(4)(C)(i), 1396r(b)(4 (C)(i)(ii), Medicare and Medicaid, respectively; 42 C.F.R. §483.30(a)(1). 
[2] 42 U.S.C. §§1395i-3(g)(2)(C)(i), 1396r(g)(2)(C)(i).
[3] 42 C.F.R. §488.408. 
[4] 59 Fed. Reg. 56116, 56183 (Nov. 10, 1994) (final enforcement regulations).  See also State Operations Manual, Chapter 7, §7400.5.1, http://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/som107c07.pdf  (scroll down to pages 91- 93).  The grid is:

 

Immediate jeopardy to resident health or safety

J

K

L

Actual harm that is not immediate jeopardy

G

H

I

No actual harm with potential for more than minimal harm that is not immediate jeopardy

D

E

F

No actual harm with potential for minimal harm (substantial compliance)

A

B

C

 

Isolated

Pattern

Widespread

[5] 42 U.S.C. §§1395i-3(h) (2)(B)(i)-(iii), 1396r(h)(2)(A)(i)-(iii); 42 C.F.R. §488.406.
[6] State Operations Manual, Chapter 7, §7510, http://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/som107c07.pdf (scroll down to page 113: "The imposition of a civil money penalty may be most appropriate when a facility is not given an opportunity to correct, when immediate jeopardy exists, when noncompliance is at levels G, H, I, or when there is a finding of substandard quality of care.")
[7] A shorter version of this analysis, which did not include facility names, was distributed as a Weekly AlertSee “Staffing Deficiencies in Nursing Facilities: Rarely Cited, Seldom Sanctioned” (Weekly Alert, March 7, 2014), https://www.medicareadvocacy.org/staffing-deficiencies-in-nursing-facilities-rarely-cited-seldom-sanctioned/.
[8] CMS, Appropriateness of Minimum Nurse Staffing Ratios in Nursing Homes (2001), finding, specifically that 97% of nursing facilities failed to meet one or more staffing requirements and, in a simulation study, that 91% lacked sufficient staff to meet five key processes required by the Nursing Home Reform Law.
[9] 2010 and 2011 data from CMS, Nursing Home Data Compendium, 2012 Edition, page 2, Figure 1.1, https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/CertificationandComplianc/downloads/nursinghomedatacompendium_508.pdf.   Data for 2012 and 2013 are from the Centers for Disease Control and Prevention, Nursing Home Care, http://www.cdc.gov/nchs/fastats/nursingh.htm
[10] The Campaign website is https://www.nhqualitycampaign.org/ .   The Center is skeptical about the value of the Campaign.  CMA, “The ‘New’ Nursing Home Quality Campaign: Déjà vu All Over Again” (Weekly Alert,  Sep. 21, 2006), https://www.medicareadvocacy.org/InfoByTopic/SkilledNursingFacility/SNF_QualityCampaign.htm.

 

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