On November 30th, 2018, Centers for Medicare and Medicaid Services issued a memorandum that stated the obvious: staffing in long-term care nursing facilities significantly affects the care delivered to residents. More interestingly, CMS stated its concern that, according to mandatory reporting data, many nursing homes failed to maintain adequate staff on off hours. Some failed to have RNs for days at a time. In today’s episode, nursing home abuse attorneys Rob Schenk and Will Smith discuss the significance of CMS’ memo on staffing.
Schenk: Hello out there and welcome back to the Nursing Home Abuse Podcast. My name is Rob Schenk.
Smith: And I’m Will Smith.
Schenk: And we all have stable microphones, except for Will this week.
Smith: Clearly.
Schenk: We’re trying over here. There’s a lot of technical components to bringing you the Nursing Home Abuse Podcast from the audio/visual component of it, editing, coming up with the content, these types of things. The thing that gives Will the most trouble is the mechanism that keeps his microphone facing his mouth.
Smith: Gravity. So gravity hates my setup over here and it pulls with a force greater than the gravity over there. Clearly.
Schenk: Yeah, scientists can’t even measure it. It’s like, what is it? A newton? What’s the – I don’t even know how it is measured.
Smith: A quark?
Schenk: There are some quarks in there. There are a lot of quarks in his microphone.
Smith: I don’t know.
Schenk: But today on the episode, Will and I are going to be talking about, as this goes to air – hopefully this goes to air – it’s January 28th. It’s Monday, January 28th. However, the cat’s out of the bag. We record these sometimes several weeks to maybe even a month or so in advance. So at this point, who knows what’s going on with the world. Maybe aliens have invaded. Maybe Godzilla has come back for his microphone.
But the memo that we’re going to be talking about today, which it was released by CMS, it deals with staffing, and that memo came out November 30th of 2018, so some six to seven weeks ago, and we’re going to get that microphone situation figured out.
Smith: And it’s important to note that November is a significant month for CMS. That’s when all regulations are promulgated for the most part.
Schenk: Yeah.
Smith: When they did the update of 2016, it was November of every year that the new phases were supposed to roll out.
Schenk: I got to say, I’m impressed that you’re fixing the microphone while talking about federal regulations.
Smith: Oh, thanks.
Schenk: So we’re going to keep going. So again, the date of this memorandum by CMS, and if you want to follow along at home, the reference number is QSO19-02-NH. That is – what’s the military alphabet? That would be Q is…
Smith: Oh, Quebec.
Schenk: Quebec. What’s the S?
Smith: Sierra. Sorry.
Schenk: Oscar? O, is it Oscar? Or October?
Smith: It’s Oscar.
Schenk: It’s Oscar one-niner-zero-two-Nancy?
Smith: Nancy.
Schenk: Hotel.
Smith: Hotel.
Schenk: Okay. And this memo is from CMS to state survey agency directors, and I’m going to read the most pertinent parts, which is actually going to be a substantial amount of it, so that we’re all on the same page here, but staffing and long-term nursing facilities, long-term care nursing facilities, significantly affects the care delivered to residents. So right off the bat, that’s the most important thing. Staffing in long-term care nursing facilities significantly affects the care delivered to residents. Since July 2016, nursing homes have been submitting data electronically through the payroll-based journal system as required under the Social Security Act and other federal regulations.
Smith: And you’ll hear us call that PBJ.
Schenk: The data submitted by facilities are the number of hours direct care staff are paid to work each day. All data submitted is auditable back to payroll and other verifiable sources.
Smith: Here’s a reason why this is important. I hope people can hear me. And the reason why this is so important, the staffing is so important, is because it’s one of the performance indicators of resident health and wellness. How many hours a day does – how many RN hours a day are there? How many licensed practical nurse hours a day are there? How many hours per day does each resident work with a CNA? Those things are important and that’s what they’re talking about, because if your staffing level is that you have one RN for 150 residents, clearly mathematically it is impossible for an RN to give the required number of hours per resident based on state regulation and federal regulation. Each state is a little different in what they require per resident, per billet, whether it’s an RN or an LPN or a CNA, but that’s why this is so important.
Schenk: Right. And so because it’s so important, in April of 2018, CMS began using the PBJ data to collect, to calculate the staffing levels and star ratings on the Nursing Home Compare website, which we’ve talked about several times in this show, and in the five-star quality rating system. And CMS states that at this time, over 90 percent of facilities have been able to report staff hours through the PBJ system and “we sincerely appreciate their efforts to support public reporting and improve quality. But while CMS is encouraged by facilities’ efforts to improve staffing, we, CMS, are also concerned about some of the findings from that PBJ data. For example, some facilities are reporting several days – several days in a quarter – without a registered nurse on site and/or significantly low nurse staffing levels on weekends. Since nurse staffing is directly related to the quality of care that residents experience, again, CMS” – it’s the second time reiterating that – “CMS is very concerned about the risk to resident health and safety that these situations may present. Therefore, CMS will begin forming state survey agencies with facilities with potential staffing issues, facilities with significantly low nurse staffing levels on weekends or facilities with several days in a quarter without an RN on-site.”
Smith: You know what? I’ve always had an issue with the way that the government, both the state and the federal government, because they’re both involved in this – the federal government doesn’t send surveyors into the nursing home. It has the state do that. So the state does that on behalf of the federal government and the state because CMS works with the states through Medicaid. Medicaid is a state program.
One of the issues I’ve always had is I don’t feel like on a practical level, the staffing requirements really reflect what’s going on. And what I mean by that is RNs, I mean my brother is an RN and I think he’s a very good RN, but in my experience in nursing homes, RNs don’t really know what they’re doing. I mean they’re not the people that are on the floor with the resident. They’re not the CNA. They’re not the LPN. I think the biggest problem that we have is not having enough CNAs, and I don’t think it’s been a long time – I mean I think it has been a long time and I don’t think it’s been very effective, the way that the CMS looks at staffing. I think that they need to revamp this system and look at it again and say, “Okay, as a realistic matter, how many hours per day does a resident need interaction with a CNA?” And they do that to a certain degree with the acuity sheet, and that’s what an acuity is, is we have – “This resident is a two-person assist. They require help bathing. They require help feeding.” And all these things are noted.
But as a practical matter, I don’t feel like they’re really efficient, because if you really look at how long it takes for a CNA to bathe somebody or to change them or to feed them and to do it the way that you really think it should be done, then I feel like the requirement for CNA hours would be much higher, because I can remember being at full capacity when we’d have state there, and we’d have enough CNAs, and it’s still not enough time to actually do everything that you should do. It’s just like this is the bare minimum that we can do to make sure that they’re taken care of. It’s not like giving them any extra. So I hope that makes sense. In other words, I think that CMS is lowballing how much staffing is needed on a CNA level.
Schenk: Right. But at least as the memo continues, at least these are some of the changes they’re going to make based on the information they’ve gathered: number one, with regard to the low staffing on weekends, state operations manuals require states to conduct at least 10 percent of the standard health surveys on the weekend or before 8 a.m. or after 6 p.m., i.e. off hours. States shall now be required to conduct at least 50 percent of the required off-hour surveys on weekends using the list of facilities provided by CMS.
With regard to the no RN for the several days for the quarter, CMS states, “We are aiding surveyors’ investigations by identifying facilities who have higher risk with noncompliance with the RN staffing requirement. When conducting a scheduled standard or complaint survey, regardless of the type of complaint, surveyors should investigate compliance with the statute, which is with the regulation, which requires the requirement for a facility to provide the services of an RN seven days a week, eight hours a day. If the surveyor in that investigation or that survey confirms that this requirement has not been met, this facility shall be cited for noncompliance on a deficiency F-tag 727.”
So these are some steps forward, but as Will said, I mean even when you have all your people there, it’s still a tough job, so really, there needs to be, in our opinion, an overhaul in terms of moving that base number of hours up, because almost nothing compares to a staffing level and the number of injuries or the instances of abuse and neglect in a nursing home.
Smith: And especially with CNAs. CNAs are the absolute most important aspect of a nursing home care plan, because a lot of these people who cannot take care of themselves cannot take care of themselves, and it isn’t RNs who are changing diapers. It isn’t even LPNs most of the time who are doing that. The people who are changing them, the people who are giving them showers, the people who are feeding them are CNAs. And there needs to be a higher threshold for what is required for CNA staffing. And there’s just none.
Schenk: Yeah, and to the extent that CMS uses the PBJ data to make a quality rating and an overall staffing rating on the Nursing Home Compare website, you, as the audience, you should take that with a grain of salt. We’ve had a gentleman by the name of Richard Mollot from Long-Term Care Community Coalition on this show many times, and one of his most informative refrains is that just because a nursing home has high ratings does not necessarily correlate to good service, and vice versa, if there’s a low score…
Smith: Well I don’t know.
Schenk: Because it might mean they just have not been surveyed or surveyed accurately.
Smith: Okay.
Schenk: That was his issue, is that, so bad ratings can probably inform you that it’s probably a bad nursing home, but good ratings mean that it might not have been surveyed in the most comprehensive way.
Smith: And that’s why you can’t just use one method of choosing a nursing home. You can’t just look at the reviews and go, “Well that’s sufficient enough for me.” You have to go and visit those places.
Schenk: Yeah. And that’s the thing, is like, keeping with the concept of staffing being so important is when you’re going to investigate these places, walk around, do you see lots of people walking around and doing things? Do you see no one? Is it a ghost town? These are the types of things you should consider because staffing, out of cleanliness, out of all the things…
Smith: Absolutely.
Schenk: …staffing is going to be probably the difference between your loved one being neglected and abused or not.
Smith: I mean that is the very essence of what neglect is, is not paying attention to somebody, is not meeting the standard of care, is them being neglected in even the connotation, non-legally, of being neglected, being ignored. Right? You’re ignored because there’s one CNA for every 15 residents, and if you do the math on that, it is impossible, impossible for that CNA to give that level of attention that’s needed to every single resident. They’re going to have to triage, so Ms. Johnson requires more help than the other 14 residents, they’re going to get even less than they deserve.
Schenk: Yeah, so that’s the thing, like what do you think is happening in these facilities that’s telling the government that we’re breaking the law? What do you think is happening on those days, for example, where there’s no RN for several days? What are the CNAs doing?
Smith: Well the RN, I mean, I think other states might be different, and it’s been so long since I’ve dealt with the inner-politics of working in a nursing home, but in my experience, RNs were paper pushers. They were people who were working on administrative aspects. It’s not as though there’s not a nurse there. Licensed practical nurses are the ones who really know what they’re doing. They’re the ones who practically deal with the resident. They’re the ones who are giving the resident medicine. So to the extent that there’s not an RN there for a certain amount of time, again, that’s why I’m saying I feel like this should be re-analyzed from a practical standpoint. You’re not suggesting that there isn’t a nurse there. You’re suggesting that there isn’t a registered nurse. And to what extent not having a registered nurse while you still have LPNs is harmful, I have no idea. I mean, again, there is a nurse there. It’s just not an RN.
Schenk: Correct.
Smith: Who cares? I don’t know. Maybe that is a big deal in other states. Maybe it’s a bigger deal now. I’m not sure. It’s like saying, “Well there’s no doctor there, but there’s a physician’s assistant.” Like, okay, great. A lot of times, PAs know more about their patients than the doctors do.
Schenk: Yeah. I just think another thing that we can glean from this memo from November 30th of 2018 is I think it’s interesting that this is the stance that they’re taking as opposed to bending over backwards to allow nursing homes to do whatever they want. I think it’s interesting that they’re actually taking a stance on this and promoting the idea that they need to double their efforts in monitoring the number of staffing hours, particularly under this administration and what this administration has done in the past.
Smith: Yeah, because the American Healthcare Association, who was it? The ACHA? They’re the ones that filed the suit against Sylvia Burwell right before this administration took over to fight against the ban against arbitration. And the administration, through their nonengagement, was complicit in that. So it is interesting to see the administration take a harder stance. It’s encouraging.
Schenk: Yeah, and what’s interesting is that, again, as I mentioned in the top of the show, we recorded this weeks and sometimes months in advance. Right now we’re probably eight weeks into the future, and based on what’s going on in the news right now, maybe this won’t be the same administration. But you never know. But at any rate, as Will said and I said already, I think that’s interesting that this is the stance they’re taking, which might mean to say that maybe they’re hearing more statistics, and this is the best approach they can take to it to look in the best – they being the nursing homes – in the best light. But staffing is, again, core to appropriate healthcare in nursing homes across the state of Georgia. I mean that’s the bedrock of good care.
Smith: Yeah, absolutely. That’s one of the main things we deal with are bedsores. How do you get a bedsore? You’re not being turned every two hours. Why are you not being turned every two hours? Because there’s not enough people to turn you. You know, RNs for the most part, and every once in a while and I don’t want to sound like I’m dumping all over RNs because RNs, doctors, everybody up higher on the chain of command has their own role to play. I mean just as a practical matter of who’s actually touching the resident, who’s lifting the resident up, who’s cleaning the resident, who’s putting food in their mouths, it’s typically CNAs and LPNs. RNs are important, but it’s the people – we had this discussion about totem poles, actually the people on the low-end of the totem poles…
Schenk: If anything on this podcast, we are going to be historically accurate with everything that we say.
Smith: Right. So it’s the higher people on the totem poles, the CNAs and the LPNs that are important. I just feel like there really should be – what needs to happen is that CMS needs to actually conduct some analysis onsite at a nursing home and see how many CNAs it takes to actually give the care that’s needed. The problem with this is – and I know all the physicists out there are going to be mad when I bring up the Heisenberg Uncertainty Principle…
Schenk: Oh my God.
Smith: …because this is not what it means, but it’s the whole thing of the mere act of observing a phenomenon changes it so it’s hard to analyze it.
Schenk: So while we’re going to try to be historically accurate, scientifically accurate? Not as much.
Smith: Well it’s that I’m using it more as a metaphor. But the mere act of CMS trying to witness how many CNAs it would take to try and take care of something changes that scenario, because they’re never going to get an honest answer because the fact that CMS is there all of a sudden, all the problems that you’d normally have are going to find a way to have been worked out.
But it could be that the nursing home needs to get paid more. I don’t know. My bias is that the reason that there isn’t enough staff, it’s because there’s some greedy corporate entity that is milking the government and…
Schenk: Not delivering.
Smith: …not delivering by not having enough staff. We talked about some of these really bad actors. There was one guy, and I won’t say his name even though we’ve given his name before in presentations, who owned a nursing, a chain of nursing homes here, who was paying himself $35,000-$40,000 a month, and he didn’t have enough staff. So that’s what’s going on, then it’s clear what the problem is. It’s these greedy pigs who are making money and not hiring enough staff. Pigs get fed, hogs get slaughtered.
Schenk: That’s right.
Smith: But in some ways, in some instances, maybe that’s not the problem. Maybe the problem is the government needs to understand that CNAs should get paid $15 an hour at the very least – they don’t – and there needs to be more of them. So maybe the government needs to pay more. I’m not really sure, but I don’t think any of that is going to be ever really resolved.
Schenk: I think what will be resolved is this episode as we’ve reached the end of it, the resolution if you will, and I will.
Smith: And I am Will.
Schenk: That’s right. So Will, we’ve done this many times. Let’s do it again. Actually, last week was two years of this podcast. Can you believe that?
Smith: It’s hard to believe.
Schenk: This podcast started January – I think January of 2016.
Smith: Right.
Schenk: No, ’17, sorry. And now it’s January 2019. I can’t believe that. It’s pretty crazy. Anyways, you’re walking down the street, Will. We mentioned earlier aliens coming down.
Smith: Right.
Schenk: An alien comes down and says, “I want to know how to consume your podcast.” What do you tell that alien?
Smith: Assuming that they understand the words that I’m using…
Schenk: And they’re here for like – it’s not like… They’re here to learn.
Smith: Learn about the podcast, specifically.
Schenk: Correct.
Smith: Yeah, I would say you can go to our website, NursingHomeAbusePodcast.com. You can go and find us on YouTube as well if you want to watch the videos. If you just want to listen to the audio, you can go to Stitcher, iTunes, Spotify – we’re on Spotify.
Schenk: Google Play.
Smith: Google Play, Pod Puppy, which is a…
Schenk: That’s the best one.
Smith: The best one.
Schenk: Google that.
Smith: Yeah, so there are a lot of options you can go. You can watch the video, download the MP3, whatever you want to do.
Schenk: That’s right.
Smith: Dealer’s choice.
Schenk: Then he beams himself back into his craft and jettisons into the night sky.
Smith: Yeah. I definitely think that podcast needs to be on the next gold record that we send out to outer space.
Schenk: That was Carl Sagan?
Smith: Yeah.
Schenk: Carl Sagan did that. The golden record.
Smith: It’s got music on it. It’s got pictures.
Schenk: We need to research that. What’s the farthest man-made thing in space from earth? What’s the thing that’s gone the farthest? It’s interesting. Is that it?
Smith: I don’t know. We’ll have to look at it. I don’t know.
Schenk: It’s interesting. Gene?
Smith: Gene, remind us.
Schenk: Just remind us that we need to do that. Anyways, that will conclude this episode of the Nursing Home Abuse Podcast. Hopefully we’ll have two more years of interesting conversations, but we thank you for joining us, and with that, we will see you next time.
Smith: See you next time.
