Regulatory Updates: Long-Term Care Staffing


While the federal minimum staffing mandate continues to loom, the updated guidance from the Centers for Medicare & Medicaid Services (CMS) for long-term care facility surveyors becomes effective October 24, 2022.  This update includes instructions related to the F-tag, or federal nursing home regulation, F725 Sufficient Nursing Staffing.  This guidance has been changed to direct surveyors to apply federal standards even in states with minimum staffing laws and regulations.

As discussed by Drew Graham of Hall Booth Smith at a recent DRI meeting, the message delivered by this CMS guidance is that compliance with state minimums will not represent substantial compliance with the federal Requirements of Participation (RoP).  He notes this is a significant regulatory change which could impact how state and federal staffing minimums will be viewed by expert witnesses and juries.

Under F725, facilities must provide services by sufficient numbers of each licensed nurses (RNs, LPNs) and other nursing personnel, including nurse aides, on a 24-hour basis to provide nursing care to all residents in accordance with their medical conditions, diagnoses, and plans of care.  CMS provides a facility assessment template to assist in developing staffing plans, which includes resident diseases, conditions, physical limitations, cognitive limitations, and acuity.

Under the Revised Surveyor Guidance, surveyors are directed to use Payroll Based Journal (PBJ) staffing data to investigate potential non-compliance with nurse staffing requirements, including lack of a registered nurse for eight hours each day, or lack of licensed nursing for 24 hours a day.  Surveyors will review this data prior to any survey to identify possible problems and/or specific dates where there were potential staffing issues.

Surveyors are directed to cite F725 “only if there are deficiencies related to the sufficiency of nursing staff.”  The Guidance further notes “A staffing deficiency under this requirement may or may not be directly related to an adverse outcome to a resident’s care or services.  It may also include the potential for physical or psychosocial harm.”

As directed under the Procedures and Probes: §483.35, “Although federal regulations do not define minimum nursing staff ratios, many States do. …if a facility meets the State’s staffing regulations that is not, by itself, sufficient to demonstrate that the facility has sufficient staff to care for its residents.”  Although a state’s minimum staffing ratios have been met, a facility may need more staff to meet the needs of its residents.  The Procedures further define the type of information to be obtained through record reviews, observations, and interviews, including:

  • When interviewing staff, residents, and others, are concerns raised with the amount of time staff are available for care and services?
  • Does the type and level of staff reflect the facility assessment?
  • Does the workload of nursing staff allow for meetings, training, and breaks?
  • Are there enough licensed staff to provide services to residents and monitor aides?
  • Do residents and families report that nursing staff are responsive?
  • Are there indications of delays in responsiveness (e.g., odors, residents calling out or wandering)?
  • Are there indications of the use of devices to manage resident behaviors (e.g., alarms, sedations)?
  • Are residents who are unable to communicate checked frequently? Have care problems (such as skin integrity) been associated with a specific unit or day?
  • Have overtime hours increased?
  • How quickly are shifts filled when staff call off?

Facilities must ensure documentation in the above areas is consistent and complete, as multiple source records become relevant in situations where staffing is at issue.  As a result of the pandemic, the staffing crisis introduced unprecedented challenges including the increased use of contract staff.  The percentage of agency staff contributed to the total hours per resident day, which nearly tripled from 3% in Q1 2019 to 8.4% in Q4 2021.  Integration and training of agency staff must be clearly reflected in all relevant records.

In staffing related cases, Mr. Graham emphasized the importance of understanding the state staffing minimums in the applicable state and defending against CMS’s attempts to preempt state law through regulations.  He also emphasized reviewing the facility’s PBJ file as well as any previous citations under F725.  Excelas has been following the staffing situation in long-term care and continues to enhance tools to assist in the defense of cases alleging inadequate care due to staffing.  To quickly assess the workforce status, Excelas’ clients utilize the Staffing Scorecard, the Provider of Care Report and the Care Calendar/TouchChart.  Contact Excelas today for a demonstration of these powerful tools.

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