Nursing Home Safety
It Comes Down to 3 Simple Words: Staffing, Staffing, Staffing
The single, most sure-fire way to improve safety in nursing homes comes down to one word: staffing. Nursing home owners and operators know this. So why are nursing homes frequently understaffed?
And why do nursing home owners and operators fight any rule that would improve resident safety, and prevent injury, neglect and abuse of their residents – your loved one? Sadly it simply comes down to avarice, greed, and money.
We do not have the money to hire more people staffing is not the issue, Covid-19 is to blame. These are some of the more common excuses used.
The truth speaks otherwise. Nursing homes invariably generate substantial income for their owners and operators. Staffing issues existed long before Covid. This is nothing more than a trumped-up excuse.
Stop The Blame Game
To help prevent this “pandemic” The Centers for Medicaid and Medicare Services (“CMS”) issued a changed to minimum staffing levels in nursing homes
The rule has an extremely generous phase in period and exemptions. Rather than focus their attention and resources to improve resident safety, the legal challenges have begun.
An increasing number of nursing homes are being bought by private equity and real estate investment trusts (“REIT”). This portends bad news for residents. The numbers speak. While non-profit and government nursing homes generally meet minimal nursing requirements, almost 1 in 5 (nearly 20%) of for-profit nursing homes do not meet those levels. REIT’s have a 7% decline in registered nursing hours and 14% more deficiencies (failure in care).
Summary of CMS Minimum staffing rule for nursing homes
Implementation date: The final rule will be implemented in the following manner:
- The regulations at § 483.71 must be implemented by August 8, 2024, for all facilities.
- The regulations at § 483.35(b)(1) and (c)(1) must be implemented by May 11, 2026, for non-rural facilities and May 10, 2027, for rural facilities as defined by the Office of Management and Budget.
- The regulations at § 483.35(b)(1)(i) and (ii) must be implemented by May 10, 2027, for non-rural facilities and May 10, 2029, for rural facilities as defined by the Office of Management and Budget.
- The regulations at §§ 438.72(a) and 442.43 must be implemented by all States and territories with Medicaid-certified nursing facilities and intermediate care facilities for individuals with intellectual disabilities beginning May 10, 2028.
§ 483.35(b) has been revised to require an RN to be on site 24 hours per day and 7 days per week (24/7 RN) to provide skilled nursing care to all residents in accordance with resident care plans, with an exemption from 8 hours per day of the onsite RN requirement under certain circumstances.
Requirements for this exemption are consistent with the requirements for other waivers and exemptions set forth in the LTC requirements. CMS is also adopting total nurse staffing and individual minimum nurse staffing standards, based on case-mix adjusted data for RNs and NAs, to supplement the existing “Nursing Services” requirements at 42 CFR 483.35(a)(1)(i) and (ii).
Facilities must provide, at a minimum, 3.48 total nurse staffing hours per resident day (HPRD) of nursing care, with 0.55 RN HPRD and 2.45 NA HPRD. “Hours per resident day” are defined as staffing hours per resident per day which is the total number of hours worked by each type of staff divided by the total number of residents as calculated by CMS. “We note that while the 3.48 total nurse staffing, 0.55 RN, and 2.45 NA HPRD standards were developed using case-mix adjusted data sources, the standards themselves will be implemented and enforced independent of a facility’s case-mix. In other words, facilities must meet the minimum 3.48 total nurse staffing, 0.55 RN, and 2.45 NA HPRD standards regardless of the individual facility’s resident case-mix, as they are the minimum standard of staffing. If the acuity needs of residents in a facility require a higher level of care, as the acuity needs in many facilities will, a higher total, RN, and NA staffing level will likely be required.”
Exemption Requirements
Exemption from the minimum standards of 0.55 HPRD for RNs, 2.45 HPRD for NAs and 3.48 HPRD for total nurse staffing, and the 8-hours per day of the 24/7 RN onsite requirement would be available only in limited circumstances. In order to qualify for an exemption, a facility must meet the following criteria:
(1) the workforce is unavailable as measured by having a nursing workforce per labor category that is a minimum of 20 percent below the national average for the applicable nurse staffing type, as calculated by CMS, by using the Bureau of Labor Statistics and Census Bureau data; [11]
(2) the facility is making a good faith effort to hire and retain staff;
(3) the facility provides documentation of its financial commitment to staffing;
(4) the facility posts a notice of its exemption status in a prominent and publicly viewable location in each resident facility; and
(5) the facility provides individual notice of its exemption status and the degree to which it is not in compliance with the HPRD requirements to each current and prospective resident and sends a copy of the notice to a representative of the Office of the State Long-Term Care Ombudsman. If the exemption is granted, CMS will post on Care Compare a notice of its exemption status and the degree to which it is not in compliance with the requirements.
A facility will be excluded from being eligible to receive an exemption if it:
(1) has failed to submit PBJ data in accordance with re-designated § 483.70(p);
(2) is a Special Focus Facility (SFF);
(3) has been cited for widespread insufficient staffing with resultant resident actual harm or a pattern of insufficient staffing with resultant resident actual harm, as determined by CMS; or
(4) has been cited at the “immediate jeopardy” level of severity with respect to insufficient staffing within the 12 months preceding the survey during which the facility’s non-compliance is identified. We note that the existing statutory waiver for all RN hours over 40 hours per week will still be available as required by sections 1819(b)(4)(C)(ii) and 1919(b)(4)(C)(ii) of the Act, as this rule does not purport to eliminate or modify the existing statutory waiver.
There are also new regulations at 42 CFR 442.43 (with a cross-reference at 42 CFR 438.72) to require that State Medicaid agencies report on the percent of payments for Medicaid-covered services in nursing facilities and intermediate care facilities for individuals with intellectual disabilities (ICFs/IID) that are spent on compensation for direct care workers and support staff. This requirement is designed to inform efforts to address the link between sufficient payments being received by the institutional direct care and support staff workforce and access to and, ultimately, the quality of services received by Medicaid beneficiaries.
Here is a link to the full final rule.
Link to the unpublished rule.
New York State and Northern New Jersey Nursing Home Advocates
If you or someone you know is injured, please consider contacting Adams Law Firm, P.C. We have a successfully advocated on behalf of those injured due to harm, abuse and neglect throughout New York State and Northern New Jersey. There is no legal fee until we are successful.
Should you have any question, please contact us toll free at 888 MY 911 LAW (888.699.1152), or by email through our contact form here.
Thank you.
Learn more about Nursing Home Abuse in New York State
[1] We always emphasis in every post that we provide that most healthcare providers are fine, decent, and caring individuals. Frequently overworked, typically underpaid, and often underappreciated.
[1] We are obligated to provide the following disclaimer: We are not providing legal advise. You should not rely on anything within the article in making your own informed decision. Always consult with qualified legal counsel.
[1] Video tape evidence is not automatically to be excluded by the court; People v. Corbett, 68 AD2d 772 (4th Dept. 1979). A videotape recording is admissible if evidence establishes that the tape recording is genuine and that there has been no tampering with it; People v. Teicher, 73 AD2d 136 (1st Dept. 1980). Although videotapes are ordinarily admissible under standard evidentiary rules, some reliable authentication and foundation are necessary; People v. Patterson, 242 AD2d 741 (2nd Dept. 1997). Because the object of the authentication requirement is to insure the accuracy of the videotape, any person who has the requisite knowledge of the facts may verify; People v. Patterson, 93 NY2d 80. A videotape may be authenticated by testimony of a witness to the recorded events or of the operator or installer or maintainer of the equipment that the videotape accurately represents the subject matter depicted in the vid
