Blog | October 30, 2025

Senior Living Litigation: The Impact of Agency and Ancillary Staff

The long-term care industry continues to face staffing challenges that often raise legal concerns for senior living facilities.  Although the Biden administration’s proposed minimum staffing standards for nursing homes were not implemented, reliance on temporary or “agency” staff remains, which heightens the need for effective risk management strategies.

At the recent DRI Senior Living and Long-Term Care Litigation Seminar, Tammy Banasek and Robyn Rogers addressed this issue in their presentation, “Who’s on First? Fielding the Changing Landscape of Agency and Ancillary Staff in Resident Care and Litigation.”  Their insights offered best practices to help long-term care providers navigate this complex legal environment.

Ongoing Staffing Challenges

The pandemic had an inimitable impact on staffing in long-term care, with over 210,000 jobs lost.  According to the AHCA/NCAL, as of 2024, 84% of nursing homes still faced moderate to severe staffing shortages.  This has forced many facilities to rely on temporary staffing agencies to fill gaps, a practice that introduces several challenges beyond just increased labor costs.  These issues include impacts on continuity of care, reduced productivity of in-house staff, potential cultural misalignments, and negative effects on morale.

The Centers for Medicare and Medicaid have launched the Nursing Home Staffing Campaign to increase the number of nurses working in nursing homes.  AHCA/NCAL has also advanced a “Caregivers for Tomorrow” campaign to advance policy strategies to strengthen the long-term care workforce.  While these and related initiatives are needed to ensure the long-term care workforce keeps pace with the aging population, they do not address the gaps currently being filled by temporary staff.

Best Practices in Managing Agency Relationships

To manage risks associated with the use of agency and temporary staff, facilities must prioritize clear, contractual relationships and rigorous operational protocols.  Key practices discussed by the presenters include:

  • Contractual Clarity: Ensure all contracts with agencies contain clear indemnification language and do not include ambiguous clauses that could shift liability back to the facility.
  • Vetting: The facility must confirm that all temporary staff have valid licenses and insurance certificates and have undergone necessary education and background checks.
  • Consistent Operational Protocols for both agency and permanent staff:
    • Document the completion of a specific and consistent facility training program
    • Complete documentation of onboarding, credentialing, and supervision of agency staff
    • Document and administer performance evaluations
    • Enforce clear procedures and documentation of incident reports
  • Clear Identification: Agency staff should be required to wear uniforms, badges, or other identification that clearly distinguishes them as independent clinical staff, not facility employees.
  • Informed Consent: On admission, facilities should obtain informed consent from residents or their families that acknowledges the potential involvement of independent contractors in clinical care.

Care Calendar Benefits

Created early in your case preparation to help with risk assessment, strategy identification, preliminary family meetings, mediations, and more. With Zaxas, our proprietary software, we can create the calendar quickly, eliminating the expense of creating a similar product manually.

Enhancing Defense Strategies with Documentation

Amidst the ongoing labor shortage in long-term care, Excelas is helping legal teams defend cases alleging inadequate staffing.  Our powerful Provider of Care Report and the easy-to-read Care Calendar/TouchChart allow counsel to quickly review workforce data and clinical interactions.  These tools clearly show the care a resident received during critical times and who provided it, helping lawyers swiftly counter negative staffing claims from plaintiffs.

Contact Excelas for a demonstration of our powerful tools to support you in defending allegations related to staffing issues.

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