Evolution of the Current Data Posting Requirements
Prior to implementing a requirement to post nursing staffing data, nursing facilities were only required to report nursing staffing totals to the state survey agency in conjunction with the facility's annual survey. Federal legislation passed in 2000 created a requirement for Medicare- and Medicaid-certified nursing facilities to "post daily for each shift the current number of licensed and unlicensed nursing staff directly responsible for resident care in the facility." Benefits Improvement and Protection Act of 2000, Pub. L. No. 106-554, § 941, 114 Stat. 2763, 2763A-585. Additionally, the legislation required the Secretary of HHS to develop the specifications for the information to be "displayed in a uniform manner . and in a clearly visible place." Moreover, this staffing data is to be made available to the public upon request.

Despite the passage of this bill in 2000, it was not until January 1, 2003, that nursing facilities were required to begin adhering to the statutory requirement. Nursing facility administrators received guidance in late 2002 indicating that actual staffing "numbers" for registered nurses, licensed practical nurses and nursing aides should be posted close to the beginning of each shift. In addition to recommending, although not requiring, a specific format, CMS suggested the data should appear on legal size or larger paper in print large enough to be easily read. Interestingly, the suggested format included a place to designate the number of full-time equivalents (FTEs) for licensed nursing staff on each shift and the number of FTEs for unlicensed nursing staff. Separate totals for registered and licensed practical nurses were not a component of this suggested format.

More than one year later on February 27, 2004, CMS published proposed regulations for posting nursing staffing data. 68 Fed. Reg. 9282 (Feb. 27, 2004). Final regulations were adopted and published on October 28, 2005, with an effective date of December 27, 2005. 70 Fed. Reg. 62,065 (Oct. 28, 2005), available at http://www.cms.hhs.gov/ providerupdate/regs/cms3121F.pdf.

Although the requirement to post nursing staffing data was mandated by Congress, CMS supports this mandate, finding it to be consistent with CMS's Nursing Home Quality Initiative. Launched in November 2001, this broad-based CMS initiative is designed to highlight efforts to address quality of care improvements. The development of quality measures has been the main component of CMS's initiative, with the goal of providing the public with information about a facility's performance to aid in making informed choices regarding nursing home care options. Although nursing staffing is not an explicit component of this initiative, it does provide "one more piece of information they can use to help them decide which home is right for their loved ones," according to Thomas Scully, former Chief Administrator for CMS. Mr. Scully further noted, "This congressionally mandated posting falls right in line with our nursing home quality initiative by arming families with information about how nursing homes in their areas operate."

Final Requirements
The most noted change from the proposed regulations and previous CMS guidance regarding posting nurse staffing data is the shift from reporting data in terms of FTEs to posting the total number of hours for each staffing category. CMS determined that, in addition to increasing the time required to prepare the staffing report, displaying FTEs would not provide sufficient information regarding staffing at a given point in time. For example, the same data (i.e., 1.0 FTE) would be reported if two RNs work the beginning 4 hours of an 8-hour shift or one RN worked the full 8-hour shift. Therefore, to enhance the usefulness of the report, a facility must now report both total hours worked and the actual time providing direct resident care. Based on the modified reporting requirements, CMS determined that the staffing report could be prepared by clerical staff, taking on average 5 minutes per day for an annual 30.42 hours.

Before completing the staffing data report, a nursing facility will need to differentiate which staff are and are not providing direct care to residents, as only hours of nursing staff assigned and responsible for direct resident care are to be reported. The final regulations, therefore, defined directly responsible to include performing nursing assessments upon admission or change in status, administering medications and tube feedings, assisting residents with ADLs, and supervising CNA care. Direct-care staff that perform administrative functions, such as completing and submitting MDS data or conducting interdisciplinary team meetings, are instructed not to include the hours spent performing these administrative functions when calculating direct nursing care hours to be reported. Facilities are provided latitude under the final regulations to expand the posted report to additionally list administrative nursing staffing; however, this is not required.

In addition to nursing staffing data, nursing facilities must report the resident census during each nursing shift. Simultaneous posting of census information is required by CMS to make the staffing data more meaningful and useful to the public, i.e., to provide a basis to understand and compare relative numbers of nursing staff.

What to Report
The regulations require the nursing staffing report to include the following information:

Facility name

Date

Resident census at the start of each shift

Each shift in a given 24-hour period, e.g., 7AM-3PM, 3 -11PM, and 11PM- 7AM

Total number and actual hours worked for direct care nursing staff by category, i.e., RN, LPN/LVN, and CNA.

When to Report
The posted report is to be updated each shift.

Where to Post the Report
Although unit-specific reports may be posted on each nursing unit, facilities are required to post all nursing staffing information in a common area where it is clearly visible and accessible to both residents and visitors.

Format to Use
Rather than recommend a specific format, CMS sought to allow facilities latitude to determine what format to use to display the required data. Irrespective of the chosen format, the report must be displayed in a uniform manner and in a readable format.

Other Requirements
Upon either an oral or written request by a member of the public, the facility must make the staffing reports available for inspection. When requested, photocopies of reports must be provided at a cost not to exceed the community standard. Unless state law requires a longer period of record retention, staffing data reports are to be retained for a minimum period of 18 months. CMS established this period to have the record retention coincide with the annual survey process. To date, state surveyors are not required to verify compliance with the requirements for posting staffing data.

Limitations of the Staffing Data
Potential Data Integrity Problems
Section 4801 of the Omnibus Budget Reconciliation Act of 1990 required CMS to perform a study to determine the appropriateness of establishing minimum staffing ratios for Medicare- and Medicaid-certified nursing facilities. When conducting the first phase of its staffing study, CMS identified data reliability problems with the two main sources of publicly reported staffing data, i.e., the On-line Survey Certification and Reporting (OSCAR) database and state Medicaid databases. In the preamble discussion to the proposed regulations to post staffing data, CMS acknowledged its concern that the self-reported posted data might be subject to the same limitations as the current OSCAR data.

For the licensed nursing staff, how facilities identify and report direct nursing care hours is a potential data integrity issue, particularly with staff nurses who provide administrative duties in addition to direct patient care. Potential data integrity issues also exist for unlicensed nursing staff. The CMS preamble discussion clearly identifies the report is to include only CNAhours and not hours provided by other staff, such as feeding assistants.

May Be Meaningless Unless Linked to Acuity and Other Facility Statistical Data
Further analysis of staffing levels in the second phase of the CMS staffing study showed a correlation between increased adverse outcomes with similar staffing levels among facilities with a higher resident acuity. And, although in agreement that there is value in viewing staffing in relation to resident acuity, CMS noted that there is currently no accepted standardized measure for determining resident acuity. There is concern that staffing data, unlinked to resident acuity, does not provide any meaningful information regarding a facility's ability to provide appropriate care and services. For a more detailed review of the CMS staffing studies, please refer to Ms. Senft's article, "Findings and Implications of CMS Nursing Staffing Studies," which appeared in the Fall/Winter 2002 Health Law Alert (available at: http://www.ober.com/shared_resources/news/newsletters/ HLA/HLA_fw02_12.htm). Stay tuned for further developments regarding improving the integrity of nursing staffing data. CMS entered into a contract with Abt Associates to provide options for collecting more accurate staffing data and auditing the data.