Staying ahead of legal trends, CMS regulations, and staffing issues continue to be top priorities for long-term care providers.  At the recent DRI Senior Living and Long-Term Care Litigation Seminar, the session titled “How Much?! – Latest Verdicts and Legal Updates in Senior Living and a Discussion of Current “Understaffing” Strategies and Evidence Used Against Providers,” presented by Shaquan Lewis, J. Richard Moore, and John R. Bowblis, PhD, provided insights on recent verdicts, decisions, and evolving plaintiff arguments in staffing cases.

Rising Claims and Supreme Court Decisions

Claim frequency and severity in senior living and long-term care continue to escalate. Nuclear verdicts are becoming more common as plaintiff attorneys appeal to jurors’ emotions, resulting in multimillion-dollar awards.  Arbitration practices are also being closely examined, with courts and regulators emphasizing the need for plain language and compliance with evolving standards.

Two recent U.S. Supreme Court rulings will impact long-term care litigation.  Health and Hospital Corporation of Marion County v. Talevski, allows lawsuits under the Federal Nursing Home Amendments Act of 1987 (FNHRA) against state-operated long-term care facilities that accept Medicare, separate from state-law professional negligence claims.  In Loper Bright Enterprises v. Raimondo, the Court overturned the longstanding “Chevron Deference,” ruling that courts are not required to defer to a federal agency’s reasonable interpretation of ambiguity.  This limits the regulatory authority of agencies such as CMS and may lead to increased scrutiny of agency guidance.

Evolving Strategies in “Understaffing” Allegations

Senior living providers continue to face allegations of “understaffing.”  Dr. Bowblis outlined how plaintiff strategies have evolved from using anecdotal nurse testimony or simple comparisons to state/CMS benchmarks to current trends of data-driven arguments that include:

• Attacking the validity of the facility’s actual staffing levels
• Utilizing “facility assessment” to develop staffing benchmark
• Referencing “CMS expected” staffing levels, or the “Anticipated Minimum Staffing”
• Pursuing class action understaffing lawsuits

Defending “Understaffing” through Expertise and Technology

To effectively defend “understaffing” cases, emphasis was placed on early involvement of staffing experts and the facility’s IT personnel.  This coordinated approach facilitates:

• Rebuttal of the plaintiff’s forensic experts who may be unfamiliar with the intricacies of the facility-specific IT and payroll systems.
• Validation of the facility’s “actual” staffing level and the benchmark used by the plaintiff’s expert.
• Analysis of underlying staffing calculations utilized by plaintiff’s experts as CMS calculations have changed over time (e.g., RUG scores, MDS assessment data, PDPM). Staffing experts for the defense can demonstrate flaws in the assumptions plaintiffs have used in their methodology.
• Development of tools to illustrate that the facility staffs to each resident based on clinical needs, especially in defense of class actions originating from medical malpractice claims.

How Excelas Strengthens Your Defense

Excelas’ services directly support defense strategies in long-term care litigation by:

• Early Case Assessment to identify key medical issues, involved parties, and strengths/weaknesses to guide early case valuation.
• Medical Record Analysis including staffing documentation, to identify screening, training, and quality of care concerns.
• Regulatory Compliance Review to evaluate documentation quality and completeness to ensure compliance with state and federal standards.

Contact Excelas today to schedule a demonstration of our software, analytic tools, and reporting capabilities and learn how we can strengthen your legal defense in senior living cases.