Are Nursing Homes Required to Have Specific Numbers of Staff?

A. There are some minimum levels of staffing, but they depend based on the state in which the nursing home is located.

The short answer to this question is that federal regulations do not require a certain minimum staff level, but state laws may require this number of staff.

When it comes to federal requirements, Medicare will assign a rating to a nursing home based on its level of staffing. The federal program gives star ratings for various aspects of care at nursing homes, and staffing is a separate rating area. Medicare relies on the nursing home to self-report the amount of staff that it has broken down into several different categories. Staffing is an element of the nursing home’s overall rating, and a one-star rating is certainly bad publicity for the nursing home and could play a factor in future federal regulatory decisions when it comes to the Medicare and Medicaid programs.

The actual federal staffing requirement does not prescribe a hard number for minimum staffing. Instead, the federal regulation states that the nursing home is required “to have sufficient nursing staff to provide nursing and related services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by resident assessments and individual plans of care.” This largely leaves it up to the nursing home how to staff the facility, and many facilities cut back on staffing to increase their profits.

Most of the substantive requirements occur on the state level. For example, California has been a leader when it comes to regulating in this area. The state passed a law requiring that nursing homes have a minimum amount of staff time per resident per day. The state recently raised this minimum from 3.2 hours per resident per day to 3.4. When a California nursing home falls below this for any given day, they are subject to a fine. The state has been fining nursing homes $15,000 each for violating this rule. Note that this rule is on a daily basis, meaning that nursing homes cannot fall below this minimum number for any given day.

California’s law does not address the minimum staffing levels necessary for each particular subset of nursing. One way that nursing homes in the state have managed to defeat the purpose and intent of these rules is by overstaffing in a certain area to meet the minimum requirements, but skimping on staff in the higher skilled areas. This means that nursing homes in the state have a very high level of CNAs, who are the lowest paid types of nurses, but still count towards the state minimum. At the same time, they will understaff in the area of RNs, who are the highest skilled nurses. This means that many of the critical aspects of medical care are still unaddressed since they are provided by the RNs. It is not uncommon for the state’s nursing homes to have half the national average of staffing time when it comes to RNs.

When states have minimum staffing levels for nursing care, skilled nursing facilities are often subject to class action lawsuits when they fail to meet these levels. This has taken several different forms as plaintiff’s attorneys find new ways to bring legal action. There have been numerous lawsuits brought on behalf of classes of nursing home residents. In some cases, they have resulted in settlements. For example, there was a class action lawsuit filed in Arkansas by residents of Golden Living’s nursing homes in the state. This lawsuit was settled in 2017. When these lawsuits are settled, residents and their families receive a certain amount of money for each day that they are at the facility reflecting the fact that they did not receive the level of care that they were promised.

There is currently a new tack that has been taken by plaintiffs’ attorneys in a California case. Brookdale Assisted Living has been sued under the Americans with Disabilities Act. The theory of the case is that, by deliberately understaffing the facility, the nursing home deprives disabled residents of their ability to fully use the nursing home. This case has survived the motion for dismissal phase and is progressing towards a trial on the merits.

Nearly every other state has some kind of staffing level requirements, whether it is minimum amount of time or a required ratio of nurses to staff. These are broken down into requirements for licensed staff and direct care staff. For a listing of minimum nursing staff requirements on a state basis, please click here.

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