Federal law sets out few specific requirements for nurse staffing. These requirements have not been revised since they were established by the 1987 Nursing Home Reform Law and became effective on October 1, 1990.
Nursing Home Reform Law and Regulations
Numbers of staff: The Reform Law requires that facilities employ a registered nurse (RN) for at least eight consecutive hours on the day shift, licensed nurses (RNs and licensed practical nurses or licensed vocational nurses) 24 hours a day, and “sufficient” staff to meet residents’ needs.
Staff competency: The Director of Nursing must be a registered nurse (RN) and certified nurse aides must receive at least 75 hours of training and must demonstrate competency before providing care to residents.
State Operations Manual
The Centers for Medicare & Medicaid Services (CMS) uses the State Operations Manual (SOM) both to set out to the survey protocol that surveyors are required to use in determining facilities’ compliance with the federal standards of care, which are called Requirements of Participation, and to provide further explanations of the meaning of the law and regulations.
Appendix P to the SOM describes the survey protocol that surveyors use to determine facilities’ compliance with federal standards of care. Appendix P includes Task 5, Information Gathering, which includes an Investigative Protocol for staffing under Task 5(C), Resident Review.
Appendix PP of the SOM is CMS’s Interpretive Guidelines, the Federal Government’s official interpretation of the law and regulations. The federal survey protocol uses F-tags to identify regulatory deficiencies. F-tags may include all or part of the language in a specific regulation.
The Guidelines for sufficient staffing, 42 C.F.R. §483.30(c), F353, explain that whether a facility provides sufficient staffing is “based on the staff’s ability to provide needed care to residents that enable them to reach their highest practicable physical, mental and psychosocial well-being,” in compliance with Requirements of Participation that are set out at §§483.13 (resident behavior and facility practices [restraints]) 483.15(a) (quality of life, specifically dignity), 483.20 (resident assessment), 483.25 (quality of care), and 483.65 (infection control).
The Guidelines further provide:
Except for licensed staff noted above, the determining factor in sufficiency of staff (including both numbers of staff and their qualifications) will be the ability of the facility to provide needed care for residents. A deficiency concerning staffing should ordinarily provide examples of care deficits caused by insufficient quantity and quality of staff. If, however, inadequate staff (either the number or category) presents a clear threat to residents reaching their highest practicable level of well-being, cite this as a deficiency. Provide specific documentation of the threat.
The Interpretive Guidelines include Probes for subsection (a) and (b) of §483.30:
Determine nurse staffing sufficiency for each unit:
- Is there adequate staff to meet direct care needs, assessments, planning, evaluation, supervision?
- Do work loads for direct care staff appear reasonable?
- Do residents, family, and ombudsmen report insufficient staff to meet resident needs?
- Are staff responsive to residents’ needs for assistance, and call bells answered promptly?
- Do residents call out repeatedly for assistance?
- Are residents, who are unable to call for help, checked frequently (e.g., each half hour) for safety, comfort, positioning, and to offer fluids and provision of care?
- Are identified care problems associated with a specific unit or tour of duty?
- Is there a licensed nurse that serves as a charge nurse (e.g., supervises the provision of resident care) on each tour of duty (if facility does not have a waiver of this requirement)?
- What does the charge nurse do to correct problems in nurse staff performance?
- Does the facility have the services of an RN available 8 consecutive hours a day, 7 days a week (if this requirement has not been waived)?
- How does the facility assure that each resident receives nursing care in accordance with his/her plan of care on weekends, nights, and holidays?
- How does the sufficiency (numbers and categories) of nursing staff contribute to identified quality of care, resident rights, quality of life, or facility practices problems?
In Statements of Deficiencies (CMS form 2567), surveyors cite violations of federal law, using F-tags.
F353, Sufficient Staff, and F354, Registered Nurse, are the two tags that surveyors use to identify compliance with the federal nurse staffing standards. Available evidence indicates that these tags are rarely cited. Charlene Harrington reports that in 2010, only 2.89% of nursing facilities nationwide were cited with a deficiency for insufficient staffing, F353, a decline from 4.02% of facilities in 2005. She wrote, “These low deficiency rates are a concern considering that a CMS (2001) report found that 9 out of 10 facilities have inadequate staffing.”
Enforcement of the federal staffing standard is extremely rare. Since 2005, there has not been a single decision by an Administrative Law Judge addressing nurse staffing deficiencies cited at §483.30. The lack of decisions means either that facilities cited with staffing deficiencies did not appeal or that the deficiencies were cited at such a low scope and severity that no remedy was imposed (and therefore no appeal was possible under the federal enforcement system, which allows appeals only when remedies are actually imposed), or both.
Toby S. Edelman
June 18, 2014
 42 U.S.C. §§1395i-3(a)-(h), 1396r(a)-(h), Medicare and Medicaid, respectively.
 42 U.S.C. §§1395i-3(b)(4)(C)(i), 1396r(b)(4)(C)(i)(II); 42 C.F.R. §483.30(b)(1).
 42 U.S.C. §§1395i-3(b)(4)(C)(i), 1396r(b)(4)(C)(i)(I); 42 C.F.R. §483.30(a)(1).
 42 U.S.C. §§1395i-3(b)(4)(C)(i), 1396r(b)(4)(C)(i)(I); 42 C.F.R. §483.30(a)(1). The law and regulations authorize waivers of nurse staffing requirements – waivers of 24-hour nurse staffing, §483.30(c), and waivers of RN coverage, §483.30(d).
 42 C.F.R. §483.30(b)(1).
 42 U.S.C. §§1395i-3(f)(2)(A)(i)(II), 1396r(f)(2)(A)(i)(II) (federal standards for nurse aide training); 42 C.F.R. §483.152(a)(1) (75 hours), §483.154 (competency evaluation).
 http://cms.hhs.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/som107ap_pp_guidelines_ltcf.pdf, scroll down to page 450.
 Id. Page 451 (Interpretive Guidance for 42 C.F.R. §483.30(b), F354, Registered Nurse.
 Id. Page 451-452.
 Charlene Harrington, Helen Carrilo, Megan Dowdell, Paul P. Tang, Brandee Woleslagle Blank, Nursing Facilities, Staffing and Facility Deficiencies, 2005-2010 (Nov. 2011), http://theconsumervoice.org/uploads/files/issues/OSCAR-2011-final.pdf.
 The Center for Medicare Advocacy has been reading these decisions since 2005 and preparing a searchable database for CMS.