Defending Staffing Allegations in Long-Term Care

Excelas was fortunate to attend the presentation by Lynn Fieldhouse of Signature Healthcare and Drew Graham of Hall Booth Smith on “Issues, Considerations, and Defense Strategies for Dealing with the Staffing Crisis” at the DRI Senior Living and Long-Term Care Seminar.  It was clear from their remarks that providers must aggressively defend understaffing cases, as staffing data does not elucidate the full story of care provided.

Mr. Graham pointed out that there have been some highly publicized verdicts which are impacting jury decision making, as well as creating inflated settlements.  The defense needs to attack the “profits over people” and “intentional understaffing” narrative which is being promulgated by plaintiff counsel, the media, some regulatory agencies, and the White House.  Ms. Fieldhouse emphasized the commitment of nursing home staff to the care of the residents, particularly during the pandemic, as demonstrated by their willingness to work overtime hours and perform functions not normally included in their job descriptions.

An overview of the impact COVID-19 had on the nursing home healthcare workforce was presented.  Long-term care was the hardest hit sector of the healthcare industry, with a loss of over 237,000 jobs, resulting in the lowest level of labor in 15 years (per the Bureau of Labor Statistics).  A study revealed that staffing shortages vary widely by state, which may be attributed to local economies and labor forces.  Based on these variations, defense counsel should thoroughly review the labor market in the area in which the facility is located.

Long-term care facilities have utilized a variety of measures to retain and attract staff.  A study by the American Health Care Association (AHCA) indicated that nine out of 10 providers have increased wages and bonuses, 71% have paid for staff training and education, and 81% have implemented programs to strengthen the workplace culture.  Even with these measures, providers report the lack of interested or qualified candidates as the top obstacle in hiring new staff.  These staffing challenges result in 73% of nursing homes reporting concern about having to close their facility.

The Biden Administration’s nursing home reform programs announced in February of 2022 include the establishment of a federal minimum staffing level.  It is estimated that the proposed staffing levels, which are not currently met by the nation’s nursing homes, would increase operating expenses by $4.9 billion per year.  Publicly available data on staffing, including the Payroll Based Journal (PBJ), acuity data, surveys, COVID-19 reporting, and turnover data are all components of litigation facing long-term care facilities.  Staffing data can be obtained through multiple sources, including Form 2567-Statement of Deficiencies, timeclock punches, staffing sheets, and Medicare Cost Reporting.

Among several components of an effective defense against staffing allegations, Mr. Graham included the use of experts in staffing, economics, and financial and cost reporting.  The use of the PBJ staffing data during the residency dates is important in showing the absence of staffing concerns.  To quickly assess the workforce status, Excelas’ clients utilize the following tools in defending staffing issues:

  • Staffing Scorecard which identifies staffing levels during a certain period and can provide a comparison with other facilities in a particular geographic area.
  • Provider of Care Report which provides a quick review of all staff who documented in the medical record, the date care was administered, and a hyperlink to the page in the record where the entry was documented.
  • Care Calendar/TouchChart which is a customizable, interactive calendar of all healthcare provider and resident interactions.

Contact Excelas today for a demonstration of these powerful tools when defending cases involving staffing issues.

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