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A Checklist for Building a Nursing Home Staffing Case
By Charlene Harrington, RN, PhD, FAAN, Professor Emeritus, UCSF
[Editor’s Note: Just about every case for abuse or neglect of a nursing home resident is a staffing case, meaning inadequate staff numbers or competency is at least partially to blame for the harm the victim suffered. For more information about any of the steps discussed in this article, please call CANHR at 415-974-5171.]
Most nursing home quality problems are caused by inadequate staffing levels or poorly trained and educated nursing staff. Each litigation case should undertake an analysis of whether a skilled nursing facility provides adequate staffing. This entails three basic steps: 1) determining the collective sacuity level of the residents at the facility; 2) determining the staffing levels at the facility; and 3) comparing the collective acuity and staffing levels at the facility in light of recognized staffing requirements and professional standards. Finally, the analysis should look for collaborating evidence of poor quality from deficiencies, complaints and other sources.
| Step 1 |
Determine The Collective Acuity Level of the Residents. Resident care needs differ depending on the acuity level (casemix or care needs) of the facilities' residents. California imposes a bare minimum standard-3.2 nursing hours per resident day, which was raised to 3.5 nursing hours per resident day effective July 1, 2018, and also requires skilled nursing facilities to "employ an adequate number of qualified personnel." (Health & Safety Code § 1599.1) High acuity rates require increased staffing. Although a facility's acuity level can vary from day to day, the acuity rates can be determined by taking the average facility acuity over a month or a few months.
One source of resident acuity data is from the CMS Form 672 which facilities complete at the time of the annual state survey of nursing homes. These data show in aggregate the number of residents (and percent of total residents) who need assistance or are dependent in activities of daily living, bowel and bladder care needs, mobility needs, mental status problems, skin integrity issues, special care needs, medications, and other care needs. This acuity information on a facility can be compared with the acuity of residents in other facilities in the state.
The most reliable measure of resident acuity is from the CMS Resource Utilization Group (RUG) scores for each facility, based on resident assessment data generated using the Minimum Data Set (MDS) form. Every nursing facility completes the resident assessment forms and calculates the RUG score for each resident (classified into one of 66 RUG groups). CMS uses the resident acuity data to calculate each facility's Medicare reimbursement rates.
The CMS form 672 reports the number and percent of residents paid for by Medicare, Medicaid, and other sources. Facilities also report their total Medicare days of care annually on cost reports submitted to the California Office of Statewide Health Planning and Development (OSHPD). The cost reports are available from the OSHPD website under the financial disclosure reports page. Higher percentages of Medicare residents represent higher acuity levels in nursing homes since these are short-term residents with high nursing and therapy needs compared to long-term residents paid by Medicaid. |
| Step 2 |
Determine the Facility's Per-Resident-Day Staffing Levels. Nursing facilities are required to maintain records documenting staffing levels on a per-resident-day basis. Most of this information is maintained, reported, and summarized in daily posted staffing reports, facility payroll data, and summary staff reports. These reports provide per resident-day (PPD) calculations of nursing hours provided by various types of staff, e.g., RNs, LVNs, and NAs/CNAs for all employees and agency staff. The type and quality of the nursing staff (e.g., the number of registered nurses) are used for determining whether a facility is adequately staffed. Under 42 CFR § 483.35(g), nursing homes are required to post the daily reports and make them available to the public.
Until the end of 2016, nurse staffing reports were submitted by facilities on Form 671 for the two week period prior to the annual state survey. These data were then summarized and the hours per resident day were calculated and reported in the CMS OSCAR/CASPER data sets for each facility. In addition, nursing facilities in California are required to submit annual summary staffing hours on its state cost reports to the Office of Statewide Planning and Development (OSHPD). These data show facility-reported staffing levels for RNs, LVNs, and NAs/CNAs for the entire fiscal year.
In 2017, nursing homes were required to submit daily staffing reports to CMS on the Payroll Based Journal (PBJ) reporting system instead of Form 671. The PBJ data are available on the CMS website (data.cms.gov) for each nursing home and show the staffing levels and types by day and quarter for each facility. These data sources can be used to analyze the actual staffing levels in each facility. |
| Step 3 |
Determine Whether the Facility Was Adequately Staffed. After determining the acuity and staffing levels, whether the facility was adequately staffed can be determined by experts (as required by Health & Safety Code § 1599.1). This assessment requires an analysis of the facility's acuity level, the number of staff and registered nurses, research regarding adequate staffing levels, and applicable statutes and regulations. In addition, CMS’s Medicare nursing home compare five-star rating system developed a method to calculating the minimum nurse staffing levels needed for each nursing home based on its RUGs acuity scores. The acuity rates from the RUGs scores reported by each facility are converted into CMS staff time measurement studies for RNs, LVN/LPNs, and CNAs and these calculations of expected times can be compared to actual staffing hours through 2017.
California law, for example, requires all skilled nursing facilities to provide at least 3.5 nursing hours per resident day effective July 1, 2018. (See, e.g., Health & Safety Code § 1276.5.) Since this standard is the absolute minimum, falling below this standard is inadequate. Research establishes that most skilled nursing facilities generally require at least 4.1 total nursing hours per resident day, including 0.75 registered nursing hours and 1.3 licensed nursing hours, to provide the necessary nursing services for their residents. Each facility’s staffing must be compared to the research literature recommendations of minimum staffing levels and expert opinion, taking into account the resident acuity levels of the facility. More hours are needed for residents with higher acuity. |
| Step 4 |
Identifying Collaborating Evidence. If a facility is found to have staffing problems, collaborating evidence should be identified. Low staffing is often reflected in facilities deficiencies, citations and complaints associated with quality of care. Reports by families or resident council may show understaffing and poor quality. High staffing turnover rates can indicate inadequate staffing and poor management. Depositions of nursing staff and nursing administrations can also identify low staffing and quality problems. |
| Table 1 – Basic Documents Related to Staffing |
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| Resident Acuity Data |
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| CMS Form 672 for resident conditions |
Facility reported data at the time of the annual survey – de-scribes the activities of daily living and resident problems that determine care needs. |
| MDS forms for the resident and all facility residents |
Resident assessment data completed by the facility on admission and periodically. Includes Section Z with the Resource Utilization Group (RUG) scores that places each resident into one of 66 groups. |
| CA Office of Statewide Health Planning and Development (OHSPD) cost report data |
Report shows the percent of Medicare residents to total resident days. Higher percentages of Medicare residents indicates higher acuity. |
| Staffing Data |
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| CMS Form 671 reported staffing data through 2016 |
Data reported at the time of the annual survey - not very accu-rate because facilities add staff at the time of the survey. |
| CMS expected staffing data through 2016 |
CMS calculated expected staffing based on RUG acuity scores from MDS data. |
| CMS PBJ (payroll based journal) staffing data starting in 2017 |
New data available online with the daily CNA and licensed nurse staffing along with the resident census |
| CA Office of Statewide Health Planning and Development (OHSPD) cost report data |
Report includes the annual productive staffing hours per resident day and the percent of expenditures for nursing care. |
| Posted staff reports on each shift each day |
Hard copy reports show staff names to verify staff with payroll data and calculate staffing ratios. |
| Medical records of the patient |
Records show the medications, treatments, and care given by staff daily and staff signatures can be compared to the payroll records of who was working each day. |
| Other Data |
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| CA DPH deficiencies, citations and complaints reports |
Reports are used to identify all deficiencies or complaints associated with care and poor staffing. |
| CA Office of Statewide Health Planning and Development (OHSPD) cost report data |
Report includes data on staff turnover rates which can indicate low staffing or poor facility management. |
| Family or Resident Council meeting notes and grievances for evidence of prior reports of understaffing and poor care |
Reports are used to identify staffing and quality problems observed by family and council members. |
| Depositions of nursing staff regarding workload |
Ask about the ratio of residents to staff on different shifts, whether work was finished each day, overtime work, and whether more staff were needed. |
| Deposition of Director/Associate Director of Nursing |
Ask how resident acuity and staffing levels are determined each day and who makes the staffing decisions. |
Page Last Modified: December 21, 2018
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