All nursing home staff, defendants and most attorneys state that the minimum staffing requirement in North Carolina is 2.1 nursing hours per patient day (nhppd) based on the administrative code.[i] However, this is overly simplistic and only addresses one subsection of the code. The other subsections provide further instruction. For example, according to subsection (a) the facility must provide licensed nursing personnel (RNs and LPNs) sufficient to perform needs assessments, care planning and supervisory functions. In many cases, assessments are not performed in a timely fashion, care plans aren’t updated and the CNAs testify that they rarely have any instruction or help from licensed nurses which is potential evidence of failure to meet this code.
According to subsection (b), “the facility shall provide other nursing personnel sufficient to ensure that activities of daily living, personal care, delegated nursing tasks and other health care needs, as identified in each patient’s plan of care, are met.” Insufficient staff to perform ADLs, or to provide personal care are at the heart of virtually every nursing home case. These first two sections establish the actual standard for staffing in North Carolina.
The third subsection (d), is what the nursing home industry argues “trumps” all of the preceding rules. Subsection (d) states “daily direct patient care nursing staff, licensed and unlicensed, shall equal or exceed 2.1 nursing hours per patient per day.” This provision doesn’t say “however, if the nursing home provides 2.1 nhppd” then this is sufficient staffing. This is just a floor amount, a minimum. No matter what the acuity levels of the residents, the facility must provide this amount of staff. So, even if the residents can all get up, dress, eat, bath and dance the jig unassisted, the facility must still provide this minimum. Once, I deposed an ADON who told me that 2.1 nursing hours is the most that they can provide as a matter of law, and that she was told this by “corporate.” Apparently, she had fully drank the corporate Kool-Aid or was otherwise misled by management. In my case, it appeared to be the latter. She looked fairly betrayed when I showed her the actual language of the code. Regardless, for nearly every skilled facility, 2.1 nhppd is not enough staff to meet the licensed staff requirement of subsection (a) nor the ADL and personal care requirements of subsection (b), and the 2.1 nhppd minimum doesn’t change the actual standard in North Carolina.
Section (2) requires a registered nurse for at least eight consecutive hours a day, seven days a week. The director of nursing may be counted as meeting the requirements for both the director of nursing and patient staffing for facilities with a total census of 60 nursing beds or less. Watch this distinction as most of the really bad facilities have more than 60 beds, and some will try to add the DON into direct care hours. Since the DON is salaried, I have even seen them try to add in the hours of a DON who was out on medical leave but still getting paid. You will need to look at vacation pay or medical leave of direct care staff carefully. Section (3) excludes staff not actively involved in direct patient care. So, the maintenance man doesn’t count, and neither do administrators or other management, and non-clinical staff. Also, watch CNAs who are “in training” as they don’t qualify. Understaffing is the number one cause of nursing home abuse and neglect in Greensboro and other areas in North Carolina. If you suspect such abuse, call the attorneys at Roane Law. We will talk to you for free and try to help if we can.
[i] 10A N.C.A.C. 13D.2303 (2010).