by James C. Sherlock
Virginia announced on Friday that the state’s tally of COVID-19 deaths in long- term care facilities had reached 311. That can be traced at least in part to understaffing of nurses in nursing homes such as Canterbury (49 deaths) in Richmond in which Virginia’s sickest un-hospitalized patients reside.
Under Dr. Oliver’s leadership, the Virginia Department of Health has failed in its job to ensure its nursing homes are properly staffed. The Centers for Medicare/Medicaid Services 5-Star Nursing Home Compare system rates more than half of Virginia nursing homes as below (2 stars) or much below (1 star) national averages in the metric of registered nurse staffing that is critical to the care of patients. Virginia finds itself among the bottom 10 states in those staffing rankings.
This essay will provide evidence that nurse staffing deficiencies appear not to be consistently and properly reported in inspections, leaving operators unthreatened by corrective actions that require major expenditures in hiring additional nurses.
Nursing homes offer the most extensive care one can get outside a hospital. Nursing homes offer help with custodial care — activities of daily living — as well as skilled nursing care.
Skilled nursing care is given by a registered nurse and includes medical monitoring and treatments. Skilled care also includes services provided by specially trained professionals, such as physical, occupational, and respiratory therapists.
Americans have three public obligations to persons in nursing homes:
- We must make sure that the two primary public programs that pay for nursing home care, Medicaid and Medicare, provide sufficient funding and other resources to enable operators of those nursing homes to provide excellent care and make a enough profit to protect and increase the supply as the population ages. Medicare supports its beneficiaries in short-term recovery in skilled nursing facilities. Medicare payments are set for the federal government by the Centers for Medicare/Medicaid Services (CMS). Medicaid supports the poor in both nursing facilities (NFs) and skilled nursing facilities (SNFs). Medicaid payments are set by each state.
- We must set standards of care at every level of patient disabilities. In support of Social Security Act provisions, CMS sets those standards of care for the Medicare and Medicaid programs. Nearly every nursing home seeks certification for participation in those programs, so the CMS standards are effectively national standards.
- We must inspect to ensure standards are met. CMS and the state survey agencies (SSAs) that conduct Medicare and Medicaid nursing home inspections for CMS certification must enforce those standards with inspections and penalties sufficient to protect both workers and patients. I have seen estimates that 50% – 70% of nursing home patients are affected to different degrees by dementia. They often cannot speak effectively for themselves.
Even if this was not the moral obligation that it most certainly is, it is also a financial necessity. Older persons with chronic illnesses and geriatric conditions frequently do not receive optimal care and account for a disproportionate share of healthcare expenditures. Improved care for patients with multiple chronic conditions has high potential for reducing preventable hospitalizations as well as helping older adults with multiple chronic conditions have a higher quality of life and stable environments as they age.
Each state has the responsibility to inspect and certify nursing home compliance or noncompliance with federal inspection criteria, except in the case of state-operated facilities that CMS inspects. In addition to certifying a facility’s compliance or noncompliance, the state survey agency (SSA) for nursing homes, in Virginia’s case the Virginia Department of Health (VDH), recommends appropriate enforcement actions to the State Medicaid agency for Medicaid and to CMS for Medicare and Medicaid.
The performances of SSAs have been wildly inconsistent. This resulted in an October, 2019, CMS memo to the SSA directors that announced strengthened oversight of state agencies’ performance in nursing home inspections relative to measures included in the State Performance Standards System (SPSS). Virginia may prove to be a target of that oversight.
Skilled nursing facility and nursing facility standard surveys are conducted by a multidisciplinary team of professionals, at least one of whommust be a registered nurse.
One key standard is staffing. Work in nursing homes is very demanding.
Staffing is so important and nurse staffing so specific to the patient populations of individual nursing homes that CMS has established two systems to measure it:
- a CMS system that calculates a staffing ranking based on auditable payroll-based data and adjusted for patient population and individual care needs. It ranks staffing on a 5-star scale comparing the staffing in general and registered nurse staffing in particular of each facility to national averages; and
- an inspection system with protocols to measure staffing against specific patient outcomes. CMS directives require the teams to prepare for each inspection with an extensive records search including both recent inspection results and data in the CMS databases including the 5-star ratings data. Part of those data are the results of the payroll-based journal (PBJ) system. Sufficient and Competent Nurse Staffing assessment is a key task assignment for the team. All surveyors are charged with assessing this task while one surveyor has primary responsibility.
I conducted a project to assess staffing in Virginia nursing homes with analysis of both payroll-based results and inspection results for Canterbury Rehabilitation & Health Care Center (ex Lexington Court) in Richmond, Virginia, the site of the highest COVID-19 death toll in America. It had been reported as understaffed in its most recent inspection and was rated one-star in its Oct-Dec 2019 payroll-based data submitted to CMS.
Staffing hours per resident per day is the total number of hours worked by the staff member(s) divided by the total number of residents. The one-star rating for RN staffing indicates around 1/3 of registered nurse (RN) staffing hours available compared to the average nursing home in the United States. Because of understaffing Canterbury staff and patients were more vulnerable to COVID-19 than those of the majority of nursing homes.
Canterbury was not an isolated situation, but rather a more pervasive one in here. Forty seven of Virginia’s 268 Medicare and Medicaid nursing homes in Virginia are currently rated as one star (much below average) in staffing.
Sufficient staffing is achievable. Nine states and the District of Columbia each have fewer that 10% of their nursing homes with below average staffing. Florida with its massive population of older people has only 11% of it nursing homes with identified below or much below average staffing.
The nursing work in nursing homes is so difficult and time consuming and the standards of care high enough that as a practical matter nursing homes so thinly staffed as those with one star staffing grades cannot be expected to meet standards of care. That abuses both patients and staff. The only solution to nursing shortages in to hire more nurses.
I then spent a great deal of time assessing inspection results at four large NF/SNF chains in Virginia with CMS-documented staffing issues similar to those at Canterbury.
The federal Sufficient Staff regulations for long term care facilities include:
(1) The facility must provide services by sufficient numbers and types of personnel on a 24-hour basis to provide nursing care to all residents in accordance with resident care plans
(2) The facility must designate a licensed nurse to serve as a charge nurse on each tour of duty.
(3) The facility must ensure that licensed nurses have the specific competencies and skill sets necessary to care for residents’ needs, as identified through resident assessments and described in the plans of care.
(4) Providing care includes but is not limited to assessing, evaluating, planning and implementing resident care plans and responding to resident’s needs.
Federal requirements for registered nurse staffing are also specified. Except when waived under special circumstances,
(1) The facility must use the services of a registered nurse for at least 8 consecutive hours a day, 7 days a week.
(2) The facility must designate a registered nurse to serve as the director of nursing on a full time basis.
(3) The director of nursing may serve as a charge nurse only when the facility has an average daily occupancy of 60 or fewer residents.
Nursing home inspections in Virginia appear to fail to report significant staffing deficiencies seen in CMS PBJ staffing data. A disproportionate share of that underreporting is seen in inspection results from Virginia’s largest nursing home chain, Heritage Hall Healthcare and Rehabilitation Centers.
I constructed a detailed spreadsheet with the data from this assessment. The inspection results do not match Heritage Hall’s current payroll-based staffing ranking. They are also inconsistent with the fact that multiple staffing deficiencies were recorded for three other comparable Virginia nursing home chains with as good or better current CMS staffing ratings as Heritage Hall.
Findings of my assessment included:
- Documented inspection deficiencies in nurse staffing are the only government oversight function that forces nursing homes to hire additional nurses. One additional RN can cost the business in excess of $100,000 annually.
- Current CMS PBJ-based staffing data shows below average or much below average staffing in 15 of 16 of Heritage Hall facilities and indeed most of the facilities in the state.
- I saw no evidence in the inspection deficiencies reported that inspection teams adequately considered CMS staffing data in their preparations for the inspections. They may have done it, but it simply does not show up in the deficiency reports at the rate that would be expected. Someone with access to the CMS staffing data for the quarter during which each inspection was conducted will need to verify that disconnect.
- A complete review of 51 VDH inspection reports for Heritage Hall facilities over the past three years revealed 217 deficiencies in categories such as Quality of Life and Care and Resident Assessment and Planning that can indicate that the Heritage Hall nursing staffs were not keeping up in their work.
- In that same three year cycle, there was not a single inspection-related nursing services deficiency recorded for Heritage Hall that reflected nursing shortages. Indeed one Heritage Hall facility holds a one-star registered nurse staffing rating from Medicare for the Oct-Dec 2019 quarter. It was last inspected by VDH on 12 September 2019 and holds a 5-star inspection ranking.
- Heritage Hall’s competitors with similar staffing rankings were cited in some inspections over those three years with nursing services deficiencies indicating shortages.
The assessment sample size is so large that the differences between the inspection results for Heritage Hall facilities and those for other Virginia nursing homes display strong statistical significance, as do the differences between CMS staffing rankings and nurse staffing deficiencies noted in VDH inspections.
So not only have VDH inspections demonstrably been lax in reporting nurse staffing deficiencies in nursing homes compared to most states resulting in state’s the bottom 10 ranking in staffing, they seem to have a particular blind spot for the nursing homes of Heritage Hall. This is wrong, dangerously so, at many levels.
An investigation is appropriate. I hope CMS will conduct one.
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