Nurse Delegation and Maintaining Sufficient Staff

How often as nurse leaders do we find ourselves faced with too many high acuity patients, or too many lower acuity patients with heavy supervision requirements, or some combination of the two? Even in the absence of “many,” just having enough of these patients is sufficient to disrupt the nursing workflows and cause frustration and discord among bedside staff. And caring for these patients with high acuity or supervision needs, day-after-day, is trying on even the most seasoned minds in healthcare. No matter how many of these patients are admitted, a facility must provide sufficient nursing staff for its patients or residents.

Having sufficient staff is a requirement imposed by insurers in the healthcare industry. The healthcare industry requires providers to deliver quality services. With sicker, more demanding patients who delayed care during the height of COVID-19 now lining-up to be seen, providers also face a shortage of nurses nationally. As nurses, we must get over our individual standards or preferences for how we believe care should be delivered, and roll-up our sleeves and get work done as a team.

But, how would a nursing unit manage rising patient loads in the face of dwindling staff, and maintain staff sufficiency at the same time? Although challenging, the solution is possible.

In late 2022, U.S. Bureau of Labor Statistics projected a deficit of 275,000 nurses from 2020 through 2030. This shortfall of nurses will be insufficient to combat nurse retirements and the needs of America’s aging population. And it’s nurses–those educated, trained, skilled nurses–our county needs to avoid sub-quality care and adverse patient outcomes potentially resulting from insufficient staff. Research demonstrates RNs add more value than LVN/LPNs, and this is demonstrated by the latter’s operational cost-effectiveness and the former’s higher pay rate. As stated, the RN’s value lies in the education, training, and skill RNs receive, but RNs also present an opportunity for upward mobility and growth within the healthcare organization they work.

Employment opportunities for nurses will grow at 9 percent, faster than all other occupations from 2016 through 2026. But not all those lining up to help are qualified candidates. Thank you, Federal government, for sniffing out criminal plans to devise “illegal licensing and employment shortcut[s] for aspiring nurses” seeking to get that high pay-rate without any of the work or experience required. The Fed’s operation, named “Florence Nightingale,” netted “more than 7,600” individuals, of which a “‘significant number'” worked clinically at skilled nursing facilities, VA hospitals, and assisted-living facilities among other facility types. Thankfully, the crime of deceit did not result in patient harm.

Bad actors aside, facilities with less nursing staff must be smart and deploy their nursing staff efficiently and appropriately to meet patient needs and staff sufficiency requirements. If you question whether your staff are “sufficient,” per se, then dig a little and get more data. Review employee training files and observe care to assess the competency of the nurse. Know exactly what your nurses are capable of. Monitor patient acuity trends and patient assignments to verify if your nurses deliver the expected care. Also, you must institute management rounding to understand how nurses deliver their skill and ability to meet patient needs on a real-time basis. Nurse leaders double as quality leaders. It is your job to be a quality-minded nurse leader, aware of gaps in staff knowledge as well as in the delivery of quality healthcare.

In the face of a shortage, it is not uncommon for facilities to use unlicensed staff to fill gaps in care. If doing this, you must be very wary of the approach you take. Remember: State licensing laws often define the process for how a licensed nurse’s duty or task (e.g., the implementation of a care plan’s approach assigned to nursing services) may be delegated down a chain of command. Delegation is be a great tool for achieving operational efficiencies and staff sufficiency so long as the rules of delegation are appropriately applied.

I was recently part of a case investigation in which one skilled nursing facility failed to properly execute delegation, resulting in a finding of Immediate Jeopardy. In 2019, weeks after the deficiency determination, the skilled nursing facility appealed the IJ deficiency to CMS for review by an Administrative Law Judge. Oral testimony was provided by both sides during a hearing in December 2021. In December 2022, the ALJ returned his opinion upholding the IJ deficiency from 2019, and finding the deficiency determination was not clearly erroneous.

The IJ deficiency in question resulted from a witnessed sexual abuse and the facility’s failure to appropriately delegate a nursing duty to unlicensed, non-clinical staff. After substantiating one resident had perpetrated sexual abuse on another, the facility’s care team planned to supervise the resident exhibiting the unwanted sexual behavior. In doing so, facility staff documented its plan to supervise and assigned nursing services to the task. Then, without enough nurses to supervise, nursing leadership assigned unlicensed, non-clinical staff to supervise the resident. However, the facility failed to train those staff. While staff acted as a “body,” a number, the staff could not vocalize the safety risk giving rise to the need for supervision (e.g., protection of residents against unwanted sexual behaviors), and the staff did not receive duties for the assignment.

In this situation, a facility knew it could do something, did it, but failed to follow the rules allowing that thing to be done. That thing was delegate. Delegatees must be competent for the task(s) delegated and the licensed staff (e.g, the delegator) must verify competency of the delegatee before the delegatee begins providing the delegated service. Nursing services rendered by an unqualified individual are not nursing services. They are less-than nursing services and should not be assigned the semblance of any professional nursing services.

In the illustrative case above, the skilled nursing facility should have built training protocols into its operations, including processes to ensure unlicensed personnel were qualified before taking a floor assignment to implement a nursing care plan. A facility must do more than merely assigning duties down a chain of command to meet the requirement for having sufficient staff. The license holder whose duty is assigned down must legally ensure the individual assigned is verified as competent to perform the duty. If a protocol with corresponding procedure is built into operations, then liability can be wholly mitigated.

Most reading current events know America needs more registered nurses to provide healthcare services in the 21st Century. Americans demands more care and greater access to care, but any solution to meet the demand should not made at the expense of quality. Our American system needs nurses, trained and competent humans to meet the expected demands. Providing less-than nursing services would be a disservice and insufficient to meet demand. Let’s do right by the profession, for the patients who depend on it.


James Shannon

Nursing Leader | Quality Leader | Healthcare Attorney

View all posts by James Shannon

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