Chapter Two

Federal Nursing Staff Requirements

Introduction

Federal and state laws require nursing facilities be inspected regularly. The federal survey (i.e., inspection) process evaluates nursing homes' compliance with federal health, safety, and quality standards. The Health Care Financing Administration (HCFA), which funds the Medicare and Medicaid payments to nursing homes, contracts with Connecticut's Department of Public Health to conduct the federal surveys of nursing homes and report the results. Surveys must occur on average every 12 months, and the time between a facility's inspections cannot be less than nine months or exceed 15 months

Connecticut's DPH surveys nursing facilities under the federal program, as well as conducts inspections of nursing facilities for state licensure biennially. While there are separate and more specific regulations for state licensure, inspections for state licensure are conducted jointly, and the federal survey process is used for both federal certification and state licensure. If a violation is found during an inspection, separate statements are sent to the facility - one cites deficiencies under federal regulation; the other cites violations under state regulations. The nursing facility must respond separately to each letter - one plan of correction for any federal deficiencies, the other for any state violations.

This chapter provides background information on federal nursing home inspection mandates, describes how DPH carries out those requirements, and contains findings related to the inspection process. In addition, the chapter contains committee recommendations to improve surveys of nursing homes in two ways:

• require a more thorough review of nursing staff adequacy during a facility's standard survey and state licensure inspection by establishing a methodology for DPH to examine the number of nursing staff in relation to resident acuity; and
• make the survey cycle less predictable.

Background

In 1986, the Institute of Medicine (part of the National Academy of Sciences) conducted a landmark study, Improving Quality of Care in Nursing Homes, that found widespread abuses and substandard care being provided in nursing homes. This report, in conjunction with general population concerns over inadequate care, led Congress to adopt the Nursing Home Reform Act as part of the broader Omnibus Reconciliation Act of 1987 (OBRA 87). The act and its accompanying regulations (adopted in 1990 and 1995) instituted major reforms in how nursing homes are regulated. Requirements of the act and accompanying regulations include provisions relating to:

• quality of care, quality of life, resident rights, and resident assessment;
• mandated use of a standardized health assessment instrument for all nursing home residents;
• an inspection process focused on evaluating resident outcomes;
• training standards and competency evaluations for nursing assistants; and
• enforcement sanctions for facilities not in compliance.

A facility's compliance with the regulations is measured through a federal survey process conducted by state inspectors. The focus of the inspection is on ensuring residents are properly assessed, individual plans of care are developed and implemented, and residents receive care to avoid negative outcomes, such as preventing pressure sores and dehydration.

Although no minimum nursing-staff-to-resident ratios were mandated by the 1987 federal law or regulations, Congress recognized nurse and nurse aide staffing are key factors in the provision of quality care to nursing home residents. In 1990, Congress directed the Department of Health and Human Services to conduct a study and report back by January 1, 1992, on the appropriateness of establishing minimum ratios for nursing supervisors to direct care staff and direct care staff to residents and to provide recommendations on such ratios.³ An interim report was issued in 1996, but it was not until July 2000 that phase one of the report was released. The complex nature of the topic and a lack of reliable and uniform data available were cited as the reasons for the delay.

Phase one of the study found a strong relationship between the number of nursing staff and the quality of care provided in nursing facilities. (See Appendix D for the executive summary of the report.) The report's preliminary analysis indicates there are critical ratios of nursing staff to residents below which nursing home residents are at substantially increased risk of quality problems. These ratios are presented in Chapter Three. The second phase of HCFA's study is expected to contain specific recommendations on whether the federal government should adopt minimum standards, and, if so, what those ratios should be and the cost to implement them.

The issue of whether nursing staff ratios should be federally mandated was also the subject of hearings held by the U.S. Senate Special Committee on Aging in November 1999. The hearings were held in reaction to the release of several reports in the late 1990s that criticized the quality of care provided in nursing homes. One report, by the U.S. General Accounting Office, found that of more than 17,000 nursing facilities inspected under the federal survey process, more than one-fourth had deficiencies that caused actual harm to residents or placed them at risk of serious injury or death. The senate hearings "pointed to nurse staffing as a potential root cause of many of the problems observed. As a result, staffing has emerged as the largest single concern of many consumer advocacy and labor groups."⁴

Many factors influence the quality of resident care provided in nursing facilities. (See Figure II-1.) Nursing home provider associations believe the issue is far more complex than merely implementing minimum nurse and nurse aide staffing ratios. Their position is that providing quality care to nursing home residents encompasses a wide variety of factors. These include ensuring nursing staff are:

• properly trained and appropriately supervised in their assigned tasks;
• motivated to care for elderly and disabled residents; and
• correctly assess residents' needs and implement the individualized plans of care.

In addition, nursing facility providers question the policy of raising nursing staff thresholds when they are experiencing difficulties in recruiting nursing staff now because of a nationwide shortage. They also cite retention of nursing staff as problematic, given the demanding nature of the work and opportunities for employment with managed care organizations, other health care facilities, or in other fields. Finally, economic factors are major forces shaping nursing home quality and staffing. The impact of Medicare reductions in 1998 on facility revenues, combined with low Medicaid reimbursement rates and shrinking payments from private payers, make nursing staff increases, without any additional public funding, unlikely.

Identified below are the current federal nursing staff requirements for nursing facilities. In addition, a description of how regulators monitor the quality of care in nursing homes and how the adequacy of nursing staff is determined as part of that process is presented.

Federal Staffing Requirements

The federal government has broad authority to govern nursing homes as a principal payer of services through both the Medicare and Medicaid programs. The 1987 Nursing Home Reform Act mandates nursing homes "provide nursing and related services and specialized rehabilitative services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident" in accordance with regular assessments and a written plan of care." Although this requires a facility to ensure sufficient nursing staff to achieve the mandate, there is no definition of the term "sufficient" and there are no set minimum nursing-staff-to-resident ratios. The only federal nursing staff requirements are that all certified nursing facilities have:

• a licensed nurse (either RN or LPN) on duty 24 hours a day;
• an RN on duty at least eight hours a day, seven days a week; and
• an RN director of nursing (in facilities with 60 beds or fewer, the director of nursing and the RN on duty at least eight hours a day may be the same person).

Thus, although nursing homes may vary based on the physical size or layout of the facility, the severity of residents' illnesses, or the number of residents being cared for, the federal law does not account for these differences by requiring additional nursing staff. Rather, each facility determines the number and mix of nursing staff to meet the broad mandate of sufficiency, although in reality many state laws have established minimum nurse staffing ratios.⁵

The 1987 federal act also allows nursing facilities to request waivers from the RN staffing requirements in areas where nursing shortages exist. If a waiver is granted by the state (under Medicaid) or the secretary of HCFA (under Medicare) the long-term care ombudsman must be notified, and the facility must notify its residents and their families. No facilities in Connecticut have such waivers.

Inspection Process Required by Federal Law

Federal survey and certification process. The federal government's survey and certification process is used to measure and ensure quality in nursing homes for those homes that receive Medicaid and/or Medicare reimbursement. There are three different types of surveys, and their use depends on the reason for the inspection. They include:

• standard survey - a yearly comprehensive inspection for facilities that receive Medicare or Medicaid reimbursement in order to obtain or keep federal certification;
• abbreviated standard survey - a focused inspection on a particular area of concern conducted when a complaint is received and/or a facility's ownership, management, or director of nursing changes; and
• extended survey - if during a standard or abbreviated survey a nursing facility is found to have provided substandard quality of care the survey team reviews and identifies policies and procedures that produced the substandard quality of care and determines if a facility has complied with quality of life, resident rights, and administration requirement; must include a review of the sufficiency of nursing staff.

Facilities found to be out of compliance with any regulation during the survey process are issued a deficiency. Facilities may be subject to a penalty, but are often given an opportunity to correct the deficiency based on a written plan of correction the home submits to the state agency responsible for the survey. Federal penalties include: a civil monetary penalty; a ban on payments for new admissions; or termination of the facility from the Medicaid and/or Medicare programs. In most cases, such penalties are rarely used, if a facility corrects the deficiency.

Standard survey. HCFA has a highly developed protocol that inspectors must follow when conducting surveys. The protocol requires surveyors to assess resident outcomes (i.e., maintain weight, prevent bedsores, etc.) to determine a facility's compliance status. In addition to federal mandates, there are state licensure requirements, and DPH issues a license to nursing homes every two years. The federal protocol is followed by DPH for both the survey and state licensure inspections.

The standard survey is required for certification for Medicaid and Medicare reimbursement and is used to determine whether nursing facilities are in compliance with federal health, safety, and quality of care standards. It consists of seven tasks (shown in Figure II-2). A survey is conducted by a team of surveyors (one of whom must be a registered nurse) using a federally established protocol. The survey focus is on four areas:

• quality of resident care and services provided;
• accuracy of the mandated standardized resident assessment instrument (RAI) and adequacy of the residents' plans of care;
• review of compliance with residents' rights; and
• safety of the physical environment.

Surveyors develop a sample of residents and conduct intensive reviews of those resident's records. Surveyors directly observe the care provided to the residents in the sample and then evaluate whether the needs of the residents are being met. As part of the review of each facility, the team of surveyors interviews residents, family members, caregivers, and administrative employees.

A typical survey lasts from two to four days. Following the completion of the survey, the team conducts an exit interview with the facility's administration and, if the facility is out of compliance with any of the regulations, a statement of deficiencies is issued to the facility. The facility must respond to any deficiencies with a written plan of correction addressing how the deficiencies will be corrected within 10 days of receipt of survey results. A nursing facility is required to post results of the most recent survey in a place that is readily assessable to residents, family members, and legal representatives of residents.

Deficiencies. There are more than 175 deficiencies surveyors may find and issue to a nursing facility. The extent and type of enforcement actions depend on the scope of problems (whether deficiencies are isolated, constitute a pattern, or are widespread) and the severity of violations (whether there is harm or jeopardy to residents). The scope and severity a deficiency may be assigned range from A (least serious) to L (most serious). Certain deficiencies of H or higher indicate substandard quality of care. These 12 categories can be grouped into four broad classes of violations:

1) violations that have the potential for minimal harm (A, B, C);

2) violations that have the potential for more than minimal harm (D, E, F);

3) violations that cause actual harm (G, H, I); and

4) violations that cause actual death or have the potential to cause death or serious injuries (J, K, L).

Connecticut nursing home deficiencies. The program review committee examined data from nursing home surveys conducted between May 28, 1998 and March 7, 2000, to determine the number of health deficiencies issued by the Connecticut Department of Public Health. The data were obtained from the Online Survey and Certification Reporting System (OSCAR) database maintained by HCFA, which contains information on survey results for nursing facilities nationwide. The OSCAR database contained 259 Connecticut facilities.

Figure II-3 shows the distribution of deficiencies among Connecticut's nursing facilities. There were a total of 969 health deficiencies issued to homes statewide. There are eight areas contained in the database from which facilities could receive deficiencies. They include: mistreatment, resident assessment, quality of care, pharmacy, nutrition and dietary, environmental, administrative, and residents' rights.

As shown in the figure, 39 of the 259 facilities (15 percent) had zero deficiencies. The average number of deficiencies issued per facility was three (compared to a national average of five). The majority of facilities receive less than five deficiencies, while one facility earned 24 during its last survey. Of the 969 deficiencies issued, 429 were for quality of care reasons. Deficiencies for quality of care can be an indication nursing staff is insufficient.

Insufficient-staffing deficiency. A review of the adequacy of nursing staff is not a primary focus of the standard survey unless serious quality of care problems are identified prior to or during the course of the survey. State surveyors, as part of the standard survey process, request both the facility's current staffing schedule as well as those for the prior two weeks when they enter the home. Surveyors use the schedule to determine if the facility is in compliance with the federal requirement of 24-hour licensed nurse coverage, and whether there is a licensed nurse designated on each shift. However, it should be noted there is no other ongoing data collection by DPH on staffing levels over regularly scheduled periods of time.⁶

If states have minimum nursing staff ratios, surveyors would also determine whether the state minimum ratios have been met. Under federal law, facilities must also be in compliance with state and local laws and regulations.

Federal investigative protocol for evaluating adequacy. In July 1999, the Health Care Financing Administration established an investigative protocol that defines procedures to be used for determining sufficiency of staff (see Appendix F). The protocol is triggered when residents experience quality of care problems such as:

• development of pressure sore/ulcer(s);
• unintended weight loss or dehydration;
• declines in functional status such as the ability to bathe, dress, groom, transfer, ambulate, toilet, and eat;
• complaints from residents or their families concerning call lights not being answered in a timely fashion; and/or
• residents not being assisted to eat.

The protocol is used in conjunction with HCFA's "Guidance to Surveyors," a manual for surveyors that provides guidelines and questions to help determine if a facility meets the regulations. According to the protocol, meeting a state's mandated nursing staff ratio does not rule out a deficiency from being issued if care and services are not being provided to residents. In order for a surveyor to issue a deficiency to a nursing facility for insufficient nurse staffing, HCFA's "Guidance to Surveyors" manual states:

the determining factor in sufficiency of staff (including both numbers of staff and their qualifications) will be the ability of the facility to provide needed care for residents. A deficiency concerning staffing should ordinarily provide examples of care deficits caused by insufficient quantity and quality of staff. If, however, inadequate staff (either the number or category) presents a clear threat to residents reaching their highest practicable level of well-being, cite this as a deficiency. Provide specific documentation of the threat.

To determine if the facility has sufficient nurse staff, there are also a number of "probes" contained in the HCFA guidelines to assist surveyors. The probes are formulated as questions and include the following:

• Is there adequate staff to meet direct care needs, assessments, planning, evaluation, and supervision?
• Do work loads for direct care staff appear reasonable?
• Do residents, family, and ombudsmen report insufficient staff to meet resident needs?
• Are staff responsible to residents' needs for assistance and are call bells answered promptly?
• Do residents call out repeatedly for assistance?
• Are residents, who are unable to call for help, checked frequently (e.g., every half hour) for safety, comfort, positioning, and offered fluids and provision of care?
• Are identified care problems associated with a specific unit or tour of duty?
• What does the charge nurse do to correct problems in nurse staff performance?

In addition to a review of these areas, the HCFA investigative protocol states if surveyors identify problems with implementation of a resident's plan of care, surveyors should discuss with supervisory nursing staff how they monitor nursing assistants, ensure adequate numbers of assistants are knowledgeable about the needs of residents, and assure they are appropriately deployed and trained. The protocol also requires surveyors to interview nursing assistants to ensure they are knowledgeable about resident care.

In its recent report on nurse staffing ratios, HCFA found the mandatory protocol introduced in July 1999 for surveyors to use in assessing the adequacy of staffing had no effect. In addition the report states:

the analysis of staffing citations raises doubts that surveyors can typically meet the considerable burden of documentation required to determine compliance with the general staffing requirement that staffing must be sufficient to meet resident needs. In contrast, when surveyors have a very specific requirement to enforce, the determination of compliance is more easily and accurately made.⁷

Staffing deficiencies in Connecticut. The program review committee also determined the number of deficiencies that have been issued for insufficient staff by the Department of Public Health between October 1998 and June 2000. As shown in Table II-1, the department cited facilities for insufficient nursing staff only 12 times - with three facilities receiving a deficiency on two separate occasions. Six of the 12 deficiencies cited were based on findings at the time of a survey; five of these occurred exclusively in federal fiscal year (FFY) 2000. Six nursing staff deficiencies resulted from complaint investigations, three of which occurred in FFY 00.

Of the twelve staffing deficiencies issued, five had a scope and severity of "D" and six had a category of "F". A "D" category means the scope of the problem was isolated and there was no actual harm to residents. An "F" category means the scope of the problem was widespread but there was no actual harm to residents. There was one "I" deficiency. This category means the scope of the problem was widespread and there was actual harm to residents but they were not in immediate jeopardy.

Connecticut compared to other states. According to the HCFA report released in July 2000, there is great variation in the rate at which states cite facilities for nurse staff deficiencies. Table II-2 shows the top and bottom five states that issue insufficient staffing deficiencies. Nationally, 6 percent of the facilities in the U.S. were cited for insufficient nursing staff. However, Florida, for example, cited almost 15 percent of the state's 619 facilities surveyed during July 1998, and July 1999, while Arkansas, Connecticut, Rhode Island, and West Virginia issued no citations. Across the states, citation rates range from 0 to 15.4 percent.

It is important to note, the deficiencies shown in the table are prior to introduction of the investigative protocol established by HCFA. The HCFA study found the mandatory protocol for in-depth review of the number and type of nursing staff, which was adopted in July 1999, had no effect in increasing the rate of citing for nurse staffing deficiencies. However, the study found the protocol is too subjective and not specific enough for surveyors to adequately document insufficient staff.⁸

Post-survey revisit. In most cases, the Connecticut Department of Public Health conducts an on-site, follow-up visit to ensure correction of deficiencies identified by the three types of surveys. Although no time frame is specified in the regulations, DPH indicated to the program review committee this visit generally occurs about eight weeks after the exit conference. If the follow-up visit determines the deficiency has not been corrected, or if any new deficiencies are discovered, the facility must submit another plan of correction, and the department will re-inspect and initiate enforcement action.

Enforcement process. A nursing facility may be subject to a penalty, but is given an opportunity to correct any deficiencies within a specified period of time based on a written plan the facility submits to DPH. HCFA considers the extent of harm (scope and severity) caused by the failure to meet requirements when it takes an enforcement action. Federal penalties include:

• temporary management;
• denial of payment for new admissions;
• civil monetary penalties;
• transfer of residents;
• closure of the facility and/or;
• state monitoring.

In addition, optional remedies are available under federal regulation and include: mandating directed plans of correction; directed in-service training; and additional state remedies. States also have several remedies available and impose sanctions under state law.

To date, the majority of federal enforcement activities in Connecticut have been civil monetary penalties. Denial of payment for new admissions has also been imposed twice. Table II-3 shows the number of enforcement actions by calendar year. As of January 2000, HCFA began requiring a civil monetary penalty be imposed if a facility receives two deficiencies of "G" or higher. The large increase in enforcement activities for the year 2000 is attributable to the rule change. In addition, although more facilities are paying fines, the fines are lower, with the average only slightly more than $1,000. Only one of the 49 enforcement activities taken in 2000 was for insufficient staffing.

Federal validation surveys. The secretary of the Department of Health and Human Services (DHHS) is required to conduct on-site surveys of a representative sample of nursing facilities in each state within two months of the date the surveys were conducted by the state. The survey must be conducted in sufficient numbers to allow inferences about the adequacy of a state's survey. According to the Connecticut Department of Public Health, the federal DHHS has conducted these audits, but has not issued a written audit report. However, the department did receive verbal approval its survey findings were valid.

Evaluating Sufficiency of Nursing Staff during the Survey: Findings

Survey protocol for in-depth review of nursing staff. A surveyor's determination of sufficient staff is based on the nursing staff's ability to provide needed care to enable residents to reach their highest practicable physical, mental, and psychological well-being. As noted above, the federal standard survey protocol requires only a cursory review of nursing staff adequacy during a facility's standard inspection. More detailed review of nursing staff sufficiency does not occur under the federal protocol unless serious quality-of-care problems are identified prior to or during the annual survey process, or if a complaint about inadequate nursing staff is received. If surveyors find, during the course of an in-depth review, there is insufficient nursing staff (in terms of the number and/or qualifications), then a deficiency is issued to the facility. However, the protocol does not require the number of nursing staff available to care for residents to be evaluated in relation to residents' acuity.

Sources of staffing data. Prior to conducting a survey, surveyors gather several types of information about the facility and its residents from DPH files. These include a facility's prior survey results; complaints received by DPH from family members, residents, and advocates; any incident reports (e.g., if a resident has fallen, a facility must file a report with DPH); and aggregated resident assessment profiles that measure specific quality indicators (such as the number of residents in the facility who have: had accidents and falls; infections; experienced weight loss or become dehydrated; or have pressure sores). Gathering this information prior to beginning the inspection helps focus it on particular areas of concern. For example, if a high percent of residents are reported to have pressure sores, inspectors would closely examine the facility's policies and treatment protocols, and records of residents with pressure sores to determine if treatment has been provided, and observe care to ensure it is appropriate. The committee found, however, surveyors do not collect any information on nursing staff levels as part of off-site preparation for the survey.

In the opinion of the committee, inspectors need to have a better indication of staffing levels prior to entering the facility to begin a survey. Each facility submits an annual cost report to the Department of Social Services. The report contains the total annual nursing staff hours for RNs, LPNs, and nurse aides. Nursing staff under contract (i.e., pool nurses) are provided for in a separate category. The committee finds that surveyors should obtain this information, along with the total number of resident days from DSS to calculate and compare the average staffing levels as reported in the cost report to actual levels during the survey. If staffing levels are inconsistent, the facility should be able to provide the reasons for the difference.

Measuring resident acuity. Another limitation of the current survey process is its failure to recognize the importance of resident case mix and its relationship to the number and type of nursing staff needed. Case mix is a method of classifying nursing home residents based on their conditions and expected use of nursing and therapy resources. The number of activities of daily living (e.g., dressing, eating, mobility, etc.) with which residents need assistance, as well as other resident characteristics, has a major impact on facility resource requirements. The level of care needed varies among facilities, with those caring for residents having greater care needs requiring more nursing staff than those with residents with fewer needs.

Under federal law, nursing facilities are required to conduct a "comprehensive, accurate, standardized, reproducible assessment of each resident's functional capacity." An assessment of the resident must be conducted: no later than 14 days after the date of admission; if a significant change in the resident's physical or mental conditions occurs; and at least annually. Facilities use a standardized resident assessment instrument, mandated by HCFA, which includes three components:

• the Minimum Data Set (MDS);
• Resident Assessment Protocols; and
• Utilization Guidelines.

The Minimum Data Set is a core set of screening and assessment elements that forms the foundation of comprehensive assessments for all residents of long-term care facilities. It includes common definitions and coding categories and ensures uniformity in resident assessment across facilities.

Currently the MDS categorizes each resident of a nursing home into one of 44 Resource Utilization Groups, Version III (RUGs III). The bases for the RUG groupings are three staff time measurement studies commissioned by HCFA in 1990, 1995, and 1997. The purpose of the studies was to define the relationship between resident clinical characteristics and nursing staff (both nurse and nurse aide) time consumed for each resident. These RUG groups were used to develop a Medicaid payment system for use by the four states participating in the Multi-State Case Mix Demonstration Project in 1995 and for the development of the Medicare prospective payment system implemented by HCFA in July 1998.

Following the protocols of HCFA's study, nursing home residents are grouped and assigned to corresponding RUGs III, based on the data results of their last full resident assessment. Similar residents are grouped together into one of the 44 categories. The groups are in seven general categories (in general order of use of nursing time): special rehabilitation, extensive services, special care, clinically complex, impaired cognition, behavior problems and reduced physical function. Classification is based on a resident's clinical condition, the extent of the services needed, such as rehabilitative services or tube feedings, and functional status. Using HCFA's pre-determined nursing minutes (both licensed and aide) for each RUG III, the total amount of care time needed per resident can be determined (see Appendix G).

The program review committee believes the RUG-III methodology could be adopted by surveyors as an assessment tool -- along with direct observations, record reviews, and resident/family interviews -- to measure nursing staff sufficiency. For example, if combined resident assessment RUG scores for a facility yield a high score in terms of the number of nursing staff minutes required, but cost report data from DSS and actual staffing schedules reviewed by surveyors indicate the facility's nursing staff is below the RUG minutes required, a more thorough review of its nursing staff -- including how the facility establishes its staffing needs -- would be triggered.

Summary of Committee Findings:

• few nursing facilities are issued deficiencies for nursing staff inadequacies;
• a review of the adequacy of nursing staff is not a primary focus of the standard survey;
• even when serious quality of care problems are identified, it is difficult to link those to insufficient staffing because of subjective and immeasurable protocol requirements;
• neither HCFA protocol nor state law provides a benchmark for surveyors to evaluate a facility's nursing staff levels based on a facility's resident case mix; and
• Connecticut must follow HCFA's protocol, thus, any additional state requirements to evaluate staffing, if too complex, would require additional staff resources for DPH.

Given these findings, the program review committee recommends:

The Department of Public Health should obtain a nursing facility's annual number of registered nurse, licensed practical nurse, and nurse aide hours and total resident days from the Department of Social Services as reported in the Medicaid cost report prior to conducting a federal standard survey or state licensure inspection. The Department of Public Health's inspectors should calculate, based on the annual hours, an average daily staff-to-resident ratio for each facility and compare it to actual nursing staff levels during the conduct of the survey and/or inspection.

The Department of Public Health, at the time it conducts the federal standard survey and/or state licensure inspection, shall, in addition to current protocols, assess residents' acuity to ensure sufficient numbers and levels of licensed nurses and nurse aides are provided by the facility to meet required resident care needs.

The basis for the acuity system shall be HCFA's published 1995 and 1997 Staff Time Measurement Studies which determine the nursing minutes needed to care for each resident, ranked into any of 44 established resource utilization groups (RUGs). As needed, the Department of Public Health shall update this requirement taking into consideration any future versions of Staff Time Measurement Studies or RUG reclassifications.

Each resident's acuity shall be based on the data results of the last full resident assessment, as required by the Minimum Data Set, the assessment instrument designed by HCFA to assign each resident to a RUG level.

The total number of care hours required by the RUG category scores shall be compared to the amount of care hours actually provided by licensed nurses and nurse aides. If the number of care hours is less than that provided for in RUG, DPH shall review the facility's documentation, as required by Connecticut State Agencies Regulations Sec. 19-13-d8t(m)(3), as to the methodology used to determine the number, experience, and qualifications of staff necessary to comply with federal and state staffing requirements. Results of the comparison may be used to document insufficient staffing.

Evaluating whether nursing staff levels in nursing homes are sufficient requires a methodology that is flexible, easily calculated, reasonable, and based on established care standards. The best way to assess the adequacy of a nursing home's staffing level is to observe whether all required care tasks can be reasonably completed on each shift. If short cuts are employed or care is not performed timely, then DPH needs to evaluate how the facility establishes its nursing staff levels to ensure appropriate resident outcomes.

The above recommendation provides another assessment tool, along with direct observation, record reviews, and resident interviews to assist surveyors in evaluating nursing staff adequacy. In addition, given DPH staff resources and the other tasks that must be completed under the federal survey protocol, the recommendation should not place extensive additional burdens on DPH staff.

Timing of Surveys by DPH

Another issue identified by the program review committee regards the survey cycle and whether the arrival of surveyors to inspect a facility constitutes a surprise visit or whether the facility can anticipate the inspection. To obtain an accurate picture of a facility's operations, the element of surprise is key for a valid inspection. The committee examined the inspection dates and locations for the last three cycles to evaluate the variability in the survey cycle.

Federal requirements. Under federal law, DPH is required to survey nursing homes on average every 12 months, and the time between inspections cannot be less than nine months or exceed 15 months. A facility is not notified of the date and time of a survey - surveyors arrive unannounced. In 1998, HCFA instructed states to stagger surveys and conduct visits on weekends, as well as early mornings and evenings, when quality, safety and staffing problems may be more likely to occur. However, despite these federal requirements, anecdotal information given by consumer advocates and labor groups during public hearing testimony contends that:

• the survey cycle is still too predictable;
• facilities increase nursing staff around the time of the survey; and
• more night/weekend surveys need to be conducted.

Survey timing. The program review committee examined the number of months between each facility's survey for the past three inspection periods to determine if the survey cycle could be predicted by a facility. Survey schedules examined by the committee occurred between October 1996 and June 2000. Table II-4 presents the analysis.

As the table results show, more than one-third of all surveys conducted occurred within 30 days (plus or minus) of the facility's most recent survey cycle, and 8 percent of inspections were within seven days of the previous inspection date. Evaluation of the variability in the previous survey cycle yielded similar percentages - one-third occurred within 30 days of the prior year's survey, and 8 percent were within seven days.

Multiple surveys within town borders. Another issue raised regarding the inspection process was that surveys were being conducted in given geographic areas during the same cycle periods, making the inspection date more predictable and, therefore, eliminating the element of surprise. To assess this, the committee examined if surveys were conducted in the same town within 30 days of each other. Although there was some variability, the committee found several instances where surveys were performed within 30 days of each other within the same town. For example one town, with three facilities had two surveys conducted in November, and one in February. In another town with seven facilities, four inspections were between August 27, 1999 and October 1, 1999. The other three inspections occurred from February 1999 through July 1999.

Night/weekend surveys. In January 1999, the state DPH began staggering surveys and conducting a set number on weekends, early mornings, and evenings, when quality and safety and staffing problems often occur. Table II-5 shows DPH conducted 13 night/weekend inspections for the last nine months of FFY 99 and 25 in FFY 2000. The selection of facilities for night and/or weekend surveys, according to DPH was based on:

• a facility's compliance history;
• if a complaint was received concerning weekend or night coverage and the facility was due for its survey; and
• whether DPH staff had volunteered for this off-time schedule.

In FFY 00, about 10 percent of all surveys occurred on nights and/or weekends, a fairly reasonable percent in the opinion of the committee.

Summary of Committee Findings:

• there is some predictability in the number of days between survey cycles with 8 percent of all surveys conducted occurring within seven days (plus or minus) of the facility's most recent survey cycle; 20 percent within 15 days; and more than one-third within 30 days;
• it appears more difficult for facilities to predict when a survey might occur based on its geographic location; and
• an adequate number of night/weekend surveys are being conducted by DPH.

Because inspections are only a point-in-time snapshot, and most facilities are inspected only annually, the key to DPH inspectors viewing a "typical" day in a nursing facility is to ensure an element of surprise. Although there is some variability in the inspection cycles, there also appears to be a measure of predictability. To correct this, the program review committee recommends:

The Department of Public Health should track the date and location of each facility's federal survey and state licensure inspections to ensure more randomness in the number of days between cycles, with no survey or state licensure inspection occurring within 15 days before or after the previous survey or inspection date.

³ Direct care is provided by licensed nurses and nurse aides, and can include hands-on assistance with certain activities of daily living such as bathing, feeding, ambulating, and incontinence care. Nurse aides provide the bulk of ADL assistance to residents. (See Appendix C for a list of activities performed by nurse aides.)

⁴ HCFA, Appropriateness of Minimum Nurse Staffing Ratios in Nursing Homes, Report to Congress, July 2000,

p. I-2.

⁵ According to a survey conducted by the National Citizens' Coalition for Nursing Home Reform in 1999, 37 states have gone beyond the minimum federal staffing requirements and have specific nurse and nurse aide staffing standards either in statute or regulation. (See Appendix E for listing of states with minimum nursing staff standards.)

⁶ Public Act 00-216 requires DPH to conduct a study for collecting and analyzing standardized data concerning the linkage between nurse staffing levels and the quality of acute care, long-term care and home care, including patient outcomes. A study of the shortage of nurses in the state is also required under the act. DPH received $200,000 to fund the study. Findings and recommendations must be reported to the public health committee by December 31, 2000.

⁷ HCFA, Appropriateness of Minimum Nurse Staffing Ratios in Nursing Homes, Report to Congress, July 2000, p. E-S.-7.

⁸ HCFA, Appropriateness of Minimum Nurse Staffing Ratios in Nursing Homes, Report to Congress, July 2000, pp.431-433.

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