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Most nursing facilities do not have sufficient numbers of nurses to provide the care that residents need.  The result is poor care outcomes for residents – avoidable pressure ulcers, medication errors, inappropriate use of psychotropic medications, failure to assist residents with activities of daily living, avoidable weight loss, falls, and more.   The problem of insufficient staffing, and insufficient enforcement of staffing deficiencies, is long-standing.

In 2014, the Center for Medicare Advocacy looked at nurse staffing deficiencies that the Centers for Medicare & Medicaid Services (CMS) cited in the four-year period 2010-2013.  In an Alert entitled “Staffing Deficiencies in Nursing Facilities: Rarely Cited, Seldom Sanctioned,” the Center reported that CMS cited few staffing deficiencies and that financial penalties for even the most serious deficiencies – those labeled “immediate jeopardy” – were infrequent.[1]

In December 2018, the Center again reviewed deficiencies cited by CMS for insufficient nurse staffing, this time, between November 28, 2017 (the effective date of the new, uniform federal survey process) and December 18, 2018.[2]  While CMS cited many more staffing deficiencies than it did in the Center’s earlier review, it continued to classify most of them as “no-harm” and to impose few enforcement actions for those it labeled “actual harm” or “immediate jeopardy.”

In this period of little more than one year, CMS cited 781 staffing deficiencies, F725 (insufficient staff), representing .5% of the approximately 14,000 nursing facilities nationwide.  CMS cited the overwhelming majority of deficiencies (96.8%) as “no harm:”

Staffing Deficiencies, Nov. 28, 2017-Dec. 18, 2018

Total: 781 Deficiencies

Level of staffing deficiency

Number of facilities cited with deficiency at this level

Percentage of total staffing deficiencies cited at this level

Immediate jeopardy

  17

    2.2%

Actual harm

    6

      .7%

No harm

756

  96.8%

Substantial compliance

    2

      .2%

As discussed below, and as of December 18, 2018, CMS had not imposed any enforcement action against 11 of the 23 facilities whose staffing deficiencies it labeled as actual harm or immediate jeopardy.

Immediate Jeopardy Deficiencies in Nurse Staffing

The Center looked at the 17 nursing facilities that CMS cited with immediate jeopardy deficiencies in sufficient staffing to determine whether the deficiencies were cited following annual surveys or complaint investigations; the facilities’ star ratings in staffing; and whether CMS imposed any enforcement actions, as of December 18, 2018, as reported on Nursing Home Compare.

Type of Survey

According to Nursing Home Compare, CMS cited 12 facilities with immediate jeopardy in staffing following annual survey and five, following a complaint survey.

Star ratings in staffing for the 17 nursing facilities with immediate jeopardy deficiencies in nurse staffing:

  • Five facilities had one star in staffing, with an icon indicating that the facility did not report nurse staffing data, did not report auditable staffing data, or had at least seven days in the quarter without a registered nurse on-site.
  • One facility had two stars in staffing.
  • Five facilities had three stars in staffing.
  • Five facilities had four stars in staffing.
  • One facility had five stars in staffing.

Enforcement for immediate jeopardy deficiencies in nurse staffing

Nursing Home Compare identifies federal enforcement actions (civil money penalties, CMPs, or denials of payment for new admissions, DPNAs) for only seven of the 17 facilities whose surveys included an immediate jeopardy nurse staffing deficiency.  (It is possible that CMS imposed CMPs against additional facilities.  However, if a facility appeals a CMP, CMS does not publicly post the CMP while the appeal is pending.)

  • One facility had DPNA as the only remedy imposed.
  • Three facilities had CMPs only ($11,580; $13,826; $407,673).
  • Three facilities had DPNAs as well as CMPs ($139,807; $64,558; $16,559)
  • Ten facilities had neither DPNA nor CMPs imposed.

Actual Harm Deficiencies in Staffing

The Center looked at the six nursing facilities that were cited with an actual harm deficiency in staffing to determine whether the deficiencies were cited following complaint investigations or annual surveys; the facilities’ star ratings in staffing; and whether CMS imposed any enforcement actions, as of December 18, 2018.

Type of Survey

CMS cited five facilities with actual harm in staffing following annual survey and one, following a complaint survey.

Star ratings in staffing for the six nursing facilities with actual harm deficiencies in nurse staffing

  • No facility had one or two stars in staffing
  • Two facilities had three stars in staffing
  • Two facilities had four stars in staffing
  • Two facilities had five stars in staffing

Enforcement for actual harm deficiencies in nurse staffing

Nursing Home Compare identifies enforcement actions for only four of six facilities whose surveys included actual harm nurse staffing deficiencies (although, as noted above, any CMPs appealed by facilities would not be posted during the pendency of the appeal):

  • Two facilities had DPNAs as the only remedy listed.
  • Two facilities had CMPs only ($13,627, $43,544) (averaging $28,586).

How Staffing Deficiencies are Described in the Survey Reports (CMS-2567)

Immediate Jeopardy Staffing Deficiencies

The Center reviewed three survey reports for facilities that were cited with immediate jeopardy deficiencies in staffing. 

Good Shepherd Health Care Center of Santa Monica

The January 16, 2018 survey by the California state survey agency, an annual survey, cited 21 deficiencies.  In addition to the jeopardy-level deficiency in staffing, the facility received two other jeopardy deficiencies – neglect and Medical Director.  Four harm-level deficiencies reflected problems in assistance with activities of daily living (ADL), pressure ulcer care, range of motion, and sufficient food/fluids to maintain health. 

The sufficient staffing deficiency in the lengthy CMS-2567 form includes cross-references to other outcomes deficiencies, specifically neglect (F600), ADLs (F677), pressure ulcer care (F686), and providing food and fluids to maintain health (F692), the four outcomes deficiencies that were all cited as actual harm.

The sufficient staffing deficiency describes in detail the failures for various residents includes in the sample.

  • Resident 29 did not get proper treatment for tooth pain and a possible urinary tract infection; she did not get a wheelchair or eyeglasses.  Lack of access to her wheelchair made her depressed and withdrawn and kept her from activities in the facility.
  • Resident 34 did not get assistance with eating and drinking and suffered weight loss and dehydration, leading to hospitalization.
  • Resident 28 did not receive necessary incontinence care and repositioning, resulting in a stage II pressure ulcer.
  • Resident 12 did not receive assistance with meals and lost 10.5% of his weight in six months.

Additional evidence:

  • A certified nurse assistant/restorative nursing assistant (RNA) reported that the facility is short-staffed, preventing RNAs from providing RNA services.
  • Resident council minutes expressed concerns about insufficient staffing.
  • Resident 29 told surveyors that there were not enough staff to help her get into a wheelchair; that she is not given a bowl for several days to wash her face; that she does not always receive a water pitcher.
  • Resident 12 called for help and staff did not respond.
  • Family member told surveyors that staff tried to give her father someone else’s dentures; staff do not change father; father has worn the same shirt for three days; father not given Ensure between meals.
  • Ombudsman received anonymous report about staffing shortage, indicating that residents had not been bathed and families and residents feared retaliation.
  • The administrator told surveyors that the staffing was sufficient because the residents were only “custodial” and did not need medications at the night shift; the administrator was unable to explain how one LVN and one CNA were sufficient to take care of 38 residents on the night shift, when she had earlier told surveyors that there should be three CNAs.
  • Resident 9 told surveyors that sometimes agency staff come in but that they do not receive an orientation and are not aware of residents’ needs.

As of December 18, 2018, CMS had not imposed a CMP or DPNA against the facility.  The facility had a one-star rating in staffing, with an icon.

Rolling Hills Rehab and Care Center

The December 22, 2017 survey by the Ohio state survey agency was an annual survey that cited 47 deficiencies, including five jeopardy-level deficiencies and six harm-level deficiencies.  The four non-staffing jeopardy deficiencies involved abuse, policies to prevent abuse, reporting abuse, and responding appropriately to allegations of abuse.

The sufficient staffing deficiency includes the following documentation:

  • A nurse aide with a pending abuse/neglect allegation continued to work in the facility and provide care to residents, including the resident who made the allegation of abuse, due to lack of available staff.
  • No staff responded to the surveyors when they arrived at 5:25 a.m.  A resident responded to the door alarm and reset the alarm.
  • Surveyors observed staff entering residents’ rooms with call lights and turning off the lights, but not providing any care.
  • 20 of 52 residents identified as alert and oriented said they believed the facility did not have enough staff.

As of December 18, 2018, CMS had not imposed a CMP or DPNA against the facility.  The facility had a four-star rating in staffing.

LaPorte Health Care Center

The April 10, 2018 complaint survey by the Texas state survey agency cited eight deficiencies, including four immediate jeopardy deficiencies (level L).  The three non-staffing jeopardy deficiencies involved neglect, supervision, and administration.

Surveyor documentation of the staffing deficiency included the following findings:

  • The facility did not have a licensed nurse at all times and sufficient aides to provide care to residents.  When the surveyors arrived at 5:20 A.M. and rang the doorbell, no one answered the door.  When a licensed vocational nurse and aide arrived at 5:25 A.M., there was only a single aide in the building.
  • As a result of a fire more than a month earlier, the facility was on fire watch.  The administrator rotated various department heads to be on fire watch, but nursing staff also were responsible for fire watch in addition to their other duties.
  • Resident 3, who needed assistance for transfers, toileting, and bathing, did not have a manual call bell near her bed.  She said the facility needed more staff.  She gave her call bell to another resident, who did not have one, and used her phone to call for help.
  • Resident 7 did not have a manual call bed in his room.  He required total assistance for bed mobility, transfers, showers, dressing, and hygiene.  He said there were no staff on his side of the building.
  • Resident 4, who required total assistance for bed mobility, transfers, toileting, and bathing, was waiting to get out of bed at 9:55 A.M.
  • Resident 7 did not have a manual call bell in his room.  He was waiting for someone to assist him into his wheelchair.
  • Resident 5 said the facility did not have enough staff and that he had to wait more than an hour for medications.
  • Resident 8 told surveyors that residents had to wait for hours for assistance.
  • Surveyors’ review of Employee Time Cards found multiple days when a single aide was onsite to provide care to the facility’s 30 residents.  On some shifts, there was one LVN and one aide for 30 or 34 residents.

As of December 18, 2018, CMS imposed a CMP of $139,807 and DPNA against the facility.  The facility had a one-star rating in staffing, with an icon.

Harm-level Deficiencies

Regency Care of Morris

The January 10, 2018 annual survey at the Illinois nursing facility cited 16 deficiencies, including four at the actual harm level (skin integrity, supervision, incontinence care, and staffing).  The CMS-2567 describes the harm-level staffing deficiency, level G, as based on the care of five of 16 sampled residents:

  • The facility assessed Resident 57 as at risk for skin breakdown.  A nurse aide provided Resident 57 with incontinence care at 11:23 A.M.; he had not been checked or changed since 5:55 A.M., although the facility requires residents to be checked every two hours.  The aide said she did not have enough time to check on Resident 57 earlier.  Resident 57 had skin breakdown and developed facility-acquired Moisture Associated Skin Deterioration. 
  • Resident 22 was not changed between 8:00 A.M. and 11:11 A.M.  The aide described being short staffed.
  • Resident 61 was showered at 12:22 P.M. as incontinence care; he had not been provided incontinence care since 6:00 A.M.
  • A nurse told surveyors that she would be late giving a medication to Resident 11 unless she could find another staff member to go to the dining room.  The facility considered staffing the dining room to be a priority over medication passes.
  • Resident 44 said medications and meals were delayed because of a lack of staff.
  • An ombudsman stated that the facility was short-staffed.
  • A Grievance Complaint Record of Investigation documented short-staffing, delays of up to an hour for call lights to be answered, and water not getting passed when the night shift is short-staffed.
  • A Facility Assessment Tool dated January 3, 2018 documented a ratio of 10 residents to one aide, but the Midnight Census Report documented two aides for 51 residents.
  • Resident 20 said she had not been showered in three months and did not have her teeth brushed.  Two aides, both called in early because of the absence of staff, confirmed at 1:42 P.M. that Resident 20’s hair had not been combed, her teeth had not been brushed, she was soiled, and she needed assistance with eating food on the lunch tray, which had just been delivered.
  • The wound care nurse said Resident 20 developed Moisture Associated Skin Deterioration because of untimely incontinence care.

As of December 18, 2018, CMS had not imposed a CMP or DPNA against the facility.  The facility had a two-star rating in staffing.

Prestige Post-Acute & Rehab Center McMinnville

The May 18, 2018 complaint survey at the Oregon nursing facility cited seven deficiencies, including two-harm-level deficiencies, incontinence care and staffing.  The harm-level deficiency (level G) in staffing was based on the following findings:

  • The facility self-reported to the protective services agency that Resident 2 was left in his/her wheelchair after having a bowel movement and his/her peri area was “red and excoriated.”  Resident 2’s family member was upset.  Although five CNAs were scheduled to work on the evening shift, one did not show up and another left early.  In addition, the aides were required to assist with two new admissions.  The agency licensed practice nurse (LPN) said the former administrator and staffing coordinator were both aware of the staffing shortage, but did not provide a replacement aide.
  • Six of eight residents who were alert and oriented said they had to wait for call lights to be answered.
  • Resident council meeting notes indicated complaints about residents waiting for long periods of time for call lights to be answered.
  • The interim Director of Nursing Services said residents received medications late because of the shortage of aides.
  • Surveyors’ review of the Direct Care Staffing Report found that between March 22 and April 22, 2018, “the facility did not maintain state minimum CNA staff ratios on thirteen occasions.”  In addition, “The payroll records revealed there were 184 occasions that Licensed Nurses and CNAs were unable to take rest or meal breaks.”

As of December 18, 2018, no DPNA or CMP had been imposed against the facility, which had been designated a Special Focus Facility for more than a year.  It had a five-star rating in staffing.

No Harm-Deficiencies

The Center looked at several no-harm staffing deficiencies in California, Ohio, and Illinois. 

Twin Oaks Post Acute Rehab

The March 29, 2018 annual survey cited the California nursing facility with 12 no-harm deficiencies.  The 2567 describes the D-level, no-harm staffing deficiency at F725 as based on the care of five of 49 sampled residents:

  • Resident 251 was not turned during the night.  He was wet all night and had a painful rash in the morning.  When he asked for cream, he was told to get in line.  His pain was 10 on a scale of 1-10.
  • Resident 254 has had episodes of incontinence because of waiting for assistance.  Staff told her to go in her bed and they would clean her up later.
  • Resident 76 told surveyors he waits for long periods of time for medications and for assistance going to the bathroom.
  • Resident 250, admitted after hernia surgery, told surveyors she does not get pain medication in a timely way and is always in pain.
  • Resident 27 told surveyors that she waits for long periods of time for assistance in going to the bathroom.

As of December 2018, the facility had not had any CMPs of DPNAs imposed since 2017.It had a one-star rating in staffing, with an icon.

Stow Glen Health Care Center

The January 18, 2018 annual survey cited the Ohio nursing facility with 25 deficiencies: one substantial compliance deficiency, 21 no-harm deficiencies, one harm-level deficiency (neglect related to unrelieved pain), and one immediate jeopardy deficiency (infection control).  The no-harm, F-level staffing deficiency at F725 was based on the care of 11 residents (of 78 residents in the facility):

  • Resident 125, who wanted to be shaved, had not been shaved for several days and had a heavy growth of facial care. 
  • Resident council minutes from multiple meetings indicated that staff were not available to assist residents when they were needed; that staff did not answer call bells timely; that residents waited in bed for wound care and showers; and that residents complained of “unresolved grievances related to staffing.”
  • Resident 55 said she was bladder incontinent and not taken to the bathroom as needed; she also complained about cold food.
  • Resident 5 told surveyors about cold food.
  • The Dietary Manager told surveyors that food was cold because the facility did not have enough staff to pass trays.

As of December 18, 2018, the facility had not had any CMPs imposed since 2016.It had a three-star rating in staffing.

Symphony of Bronzeville

The complaint survey on May 11, 2018 cited the Illinois nursing facility with 12 no-harm deficiencies.The D-level deficiency for F725 was based on the following surveyor findings for one of four residents reviewed:

  • Resident 25 was incontinent of bowel and bladder.  The Director of Nursing indicated that incontinent residents should be changed every two hours – four changes per shift. 
  • On May 1, 2018, at 11:55 A.M., Resident 25 indicated to the surveyor that she was wet.  At 12:30 P.M., the aide confirmed that Resident 25’s incontinence brief was soaked, her sheet was soaking wet, and there was a “large wet stain . . . visible on the blue mattress.” 
  • On May 3, at 1:50 P.m., Resident 25 was soaking wet.  The aide confirmed that Resident 25’s incontinence brief looked like it had not been changed in several hours.
  • On May 8, an aide for Resident 25 on the 7:00 A.M. to 3:00 P.M. shift told surveyors that she usually has 13-16 residents to take care of, 13 of whom are “total care.”  Three of the residents are “mechanical lift,” which means that she must try to find another aide to help her.  She is also assigned to the day room three times per shift, half an hour each time.
  • The staff coordinator scheduler indicated that there should be seven aides for the 78 residents on the second floor on the 7:00 A.M. to 3:00 P.M. shift, but that there are usually only five or six aides.  She described the facility as short-staffed.
  • A surveyor’s review of residents’ level of care found 76 residents on the second floor, 48 of whom are “total care/extensive assist.”
  • The Daily Assignment Sheet documented five or six aides on the 7:00 A. M. to 3:00 P.M. shift on May 1-4, 2018.

As of December 18, 2018, CMS had not imposed any CMPs against the facility in the prior three years.The facility had a one-star rating in staffing.

Summary of Findings

First, the Centers for Medicare & Medicaid Services cited comparatively few nurse staffing deficiencies – 781 facilities out of approximately 14,000 facilities nationwide.Since most facilities do not have enough staff to fully meet residents’ needs, the .5% citation rate is extremely low.

Second, CMS classified the vast majority of staffing deficiencies as no-harm: 758 deficiencies (96.8%) were called no-harm; only 23 of the deficiencies were called immediate jeopardy (17 deficiencies) or actual harm (6 deficiencies).So-called no-harm deficiencies[3] included residents’ complaining of unrelieved pain and not receiving pain medication and residents’ not receiving continence care and being left soaking wet for hours.

Third, CMS imposed few remedies on even the small number of facilities whose deficiencies it called actual harm or immediate jeopardy.Only two facilities with an immediate jeopardy staffing deficiency had a CMP of more than $100,000.More than half of the facilities cited with jeopardy or harm-level deficiencies had no enforcement action imposed at all.

The federal survey reports were similar to each other, whether the staffing deficiency was cited as immediate jeopardy or no-harm.Surveyors follow the federal survey protocol that directs them in how to identify and cite deficiencies.Nevertheless, and even though the Center reviewed only a small number of survey reports, what is most striking is how similar the evidence appears in the survey reports.Surveyors describe the failures of care through multiple examples of: poor resident outcomes, resident complaints about insufficient staffing, staff admissions that the facility is not adequately staffed to meet residents’ needs, and documentation from facility records that the facility does not have enough staff (according to its own staffing standards).Surveyors appeared more likely to cite immediate jeopardy in staffing when they cited additional jeopardy-level deficiencies.In these cases, they included additional details about the staffing deficiency.However, as a general matter, the evidence that surveyors cite appears to be the same, whether the deficiency is called jeopardy or no-harm.

Discussion and Recommendations

The federal oversight system for nursing facilities, documented by these data, is failing residents.While recording that residents are suffering from egregiously poor care, the regulatory system fails to take serious (or, often, any) enforcement action against the facilities.

CMS needs to act more decisively to protect residents and to ensure that the mandate of the Nursing Home Reform Law is met – that each resident receives the care and services he or she needs to “attain and maintain their highest practicable physical, mental, and psychosocial well-being.”

The Center recommends that CMS take immediate action to strengthen the oversight system.CMS should:

  • Revise the Long Term Care Survey Process (LTCSP) Procedure Guide and surveyor guidance (Appendix PP of the State Operations Manual) to require that surveyors consider citing a staffing deficiency whenever they cite any quality of care deficiency.
  • Revise the star rating system to provide that a facility with an actual harm or immediate jeopardy staffing deficiency receive a one-star rating in staffing, with a unique new icon indicating the harm-level or jeopardy deficiency in staffing.
  • Revise Chapter 7 of the State Operations Manual (Survey and Enforcement Process) to impose meaningful, comprehensive, and effective sanctions against facilities that fail to employ sufficient staff, with increasing sanctions for repeated or uncorrected staffing deficiencies.  The financial costs of sanctions should exceed the costs of providing sufficient staff.  The regulatory system should provide that noncompliance is more costly to facilities than full compliance. 

CMS should impose remedies immediately against facilities with staffing deficiencies; it should not provide facilities with an opportunity to correct staffing deficiencies.

Appropriate sanctions should include:

  • Per day CMPs for each day that a facility lacks sufficient nursing staff.
  • Directed plans of correction that require facilities to hire permanent nursing staff (specifying numbers and categories of staff and shifts).
  • Mandatory DPNA until a facility demonstrates that it has achieved appropriate nurse staffing levels for a one-month period.
  • Mandatory ban on conducting a nurse aide training and competency evaluation program.
  • For repeated or uncorrected staffing deficiencies, denial of payment for all Medicare and Medicaid residents, monitors, and temporary management.

Jan. 8, 2019, T. Edelman.

 


[1] “Staffing Deficiencies in Nursing Facilities: Rarely Cited, Seldom Sanctioned,” (CMA Alert, Mar. 7, 2014), https://www.medicareadvocacy.org/staffing-deficiencies-in-nursing-facilities-rarely-cited-seldom-sanctioned/
[2] For information on deficiencies between 2013 and 2017, see the Long Term Care Community Coalition’s reports of deficiencies cited between 2014 and 2017, by state, at https://nursinghome411.org/us-nursing-home-citations-2014-2017-november-2017/. Note: The Coalition’s state deficiency reports include all health deficiency citations. Insufficient staffing deficiencies are identified as F-353.

[3] The Center for Medicare Advocacy and the Long-Term Care Community Coalition produce a monthly newsletter on no-harm deficiencies in nursing facilities, https://www.medicareadvocacy.org/newsletter-elder-justice-what-no-harm-really-means-for-residents/

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