Staffing Deficiencies in Nursing Facilities: Rarely Cited, Seldom Sanctioned
Although most nursing facilities nationwide do not have sufficient staff to provide necessary care to their residents, an analysis by the Center for Medicare Advocacy (Center) finds that the federal enforcement system cites very few facilities with staffing deficiencies and often does not impose any financial penalties, even when it finds that facilities do not have sufficient staff.
The federal Nursing Home Reform law requires nursing facilities to have “sufficient” staff to meet their residents’ needs. 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 surveys and complaint surveys, using survey protocols that are developed, tested, and validated by the Centers for Medicare & Medicaid Services (CMS). 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). A schematic version of the classification system is shown in a 12-box scope and severity grid. 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. 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.
Reviewing federal data on staffing deficiencies that were cited nationwide in the four-year period 2010-2013, the Center found that most staffing deficiencies are cited at a “no harm” level. Moreover, even when facilities are cited with the highest level of serious staffing deficiencies – immediate jeopardy – they often are not sanctioned for their noncompliance.
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.
|Year||Number of nursing homes||Number of staffing deficiencies (F353)||Percentage of nursing homes with staffing deficiencies|
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
|Immediate jeopardy (J-L)|
|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|
Immediate Jeopardy Staffing Deficiencies
The Center reviewed the facilities that were cited with jeopardy deficiencies in staffing in 2013 and 2012.
Findings for 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|
Findings for 2012
In 2012, 10 facilities nationwide were cited with jeopardy-level staffing deficiencies. Six of the jeopardy deficiencies followed complaint surveys; five followed 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.
|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|
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.
Failure to enforce standards of care, including staffing requirements, harms residents. In the first analysis of adverse events in nursing facilities, the HHS Office of Inspector General (OIG) reported this week that 32% of Medicare beneficiaries who went to SNFs and spent an average of 15.5 days in the SNF in August 2011 experienced an adverse event or other harm, including hospitalizations and death. The physician reviewers concluded that 59% of the adverse events and incidents of harm were preventable and that “many events were the result of failure by SNF staff to monitor residents or staff delay in providing necessary medical care” – staffing problems. CMS must better enforce federal Requirements of Participation to protect nursing home residents.
In 2006, the nursing home industry introduced a voluntary improvement campaign, called Advancing Excellence in America’s Nursing Homes. The campaign established various clinical and organizational goals, which have changed over time, and invited facilities to join the campaign and choose goals. Although the campaign publicly identifies which facilities are members of the campaign, it keeps confidential which goals each facility chooses and whether the facility’s performance on the selected goals has improved over time.
Eight of the 13 cited facilities discussed above – 62% – are members of Advancing Excellence. Clearly, participation in the campaign is not correlated with providing high quality care.
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.
 42 U.S.C. §§1395i-3(b)(4)(C)(i), 1396r(b)(4 (C)(i), Medicare and Medicaid, respectively; 42 C.F.R. §483.30(a)(1).
 42 U.S.C. §§1395i-3(g)(2)(c)(i), 1396r(g)(2)(c)(i).
 42 C.F.R. §488.408.
 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|
 42 U.S.C. §§1395i-3(h) (2)(B)(i)-(iii), 1396r(h)(2)(A)(i)-(iii). See also 42 C.F.R. §488.406.
 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.”)
 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.
 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.
 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.
 OIG, Adverse Events in Skilled Nursing Facilities: National Incidence Among Medicare Beneficiaries, OEI-06-11-00370 (Feb. 2014), http://oig.hhs.gov/oei/reports/oei-06-11-00370.pdf.
 Id. 28.
 The campaign website is http://www.nhqualitycampaign.org/.
 CMA, “The ‘New’ Nursing Home Quality Campaign: Déjà vu All Over Again” (Weekly Alert, Sep. 21, 2006), http://www.medicareadvocacy.org/InfoByTopic/SkilledNursingFacility/SNF_QualityCampaign.htm.