Neville M. Bilimoria

We are all waiting to see the possibility of proposed rules over federal minimum staffing ratios in nursing homes

But with possible federal minimum staffing ratios looming, let’s make sure the government calculates staffing ratios right!  After all, one state recently experienced incorrect calculations for nursing home staffing levels, and facilities that sit back and wait for the government to work out proper calculations may be frightened to learn of the potential legal and public implications.

The irony

First, let’s just talk about the harsh idea of minimum staffing ratio rules for facilities coming out of a pandemic.  We all know that the pandemic was tough on providers and that our nation’s nursing homes were heroes, not scapegoats, for the spread of COVID-19. But we also clearly know that out of the pandemic we saw a real problem develop, a problem that lingers today:  monumental nursing home and assisted living staffing shortages.  

We also saw great losses of residents, lower census and decreased profits for nursing homes, nay, huge losses over the pandemic in spite of CARES Act Provider Relief Funding which only placed a bandaid on the above problems.  

So in the wake of this onslaught of operational and financial woes for facilities reeling from the pandemic, the government now wants to slap nursing homes in the face with minimum staffing rules?  Sounds far-fetched, like pouring salt on a lingering wound.  

What we can learn from Illinois

But it is already happening in Illinois.  Over the summer, the Illinois Department of Public Health (IDPH) began to enforce minimum staffing standards under its Nursing Home Care Act, standards that were delayed in enforcement due to the pandemic.  In July 2022, IDPH issued nursing home staffing ratio violations, with huge penalties, for the January – March 2022 quarter, citing deficiencies in meeting the state’s minimum staffing requirements.  

What is worse is that the penalties were outrageously high.  Some facilities saw penalties of hundreds of thousands of dollars, even as high as $1.6 million in IDPH fines, JUST for that three-month quarter alone.  

If you think it could not get any worse, it did. After providers were up in arms about the penalties, which clearly would have bankrupted many facilities outright, it was clearly discovered that IDPH’s staffing ratio calculations were incorrect.  In other words, IDPH utilized incorrect census information and staffing information from PBJ reporting or from facility reports that were outdated.  

In essence, IDPH’s fines amounted to fining facilities for lack of staff for beds that were not occupied, or they failed to count staff on the floor due to incorrect interpretations of the minimum staffing rules.  

All of this resulted in IDPH rescinding those initial notices and deciding that subsequent initial notices for the first few quarters would be corrected and that the fines would not be enforced… yet.  

Indeed, many providers that were even over-staffed received notices of fines and then subsequently corrected notices showing zero fines.  Talk about a scary situation!

Beware of the implications

But providers need to be vigilant against the government in their minimum staffing ratio determinations and calculations.  If the government does not have an accurate census or PBJ reports for a facility, and claims you are fully bedded when the facility is not, it is not fair to cite facilities for a failure to staff an empty bed!  Yet that’s part of what the government was doing initially.  

Also, beware of the impact of these types of governmental notices and proposed fines — legally.  Even though the fines do not apply (yet) in Illinois, providers should carefully consider appealing these notices legally in order to avoid potential harmful effects on the nursing home.  

For example, in Illinois, failure to appeal staffing ratio violation notices results in the notice of violations becoming a default judgment against the nursing home – whether that notice was correctly calculated or not.  Some providers did not even know if the calculations were correct and needed time to calculate the proper staffing ratios for prior quarters in their facilities.  

Yet failure to request an appeal of the notices, timely, would automatically result in a default judgment on the record, meaning the facility would be tagged as having committed sometimes egregious staffing shortfalls, shown as a VIOLATION of minimum staffing ratio levels.  

The problem with “accepting” the government’s calculations in this way is that it would remain on the record of the nursing home for the public to see.  For example, what affect would a default judgment have on a nursing homes’ insurance coverage?  What about such a default judgment providing even more fodder for nursing home lawsuits?  

So we have to be vigilant about these calculations when they come down from the government.  Nursing homes should not just sit back and wait for agencies to figure out the proper calculations on their own.  Doing so could negatively mark the facility’s record, and could lead to bad public relations for the home.  

With federal staffing ratio minimums looming, providers need to pay attention and not readily accept government calculations.  Facilities also must make sure the facility’s PBJ reporting (which the government uses to assess staffing) is accurate and take steps to correct incorrect PBJ reports now.  

After all, no one likes to see nursing homes cited with a failure to have enough staff for their loved ones, even if the violation was minor.  But failing to take action to protect proper calculations of staffing ratios could lead to problems in future liability for nursing homes. 

Neville M. Bilimoria is a partner in the Chicago office of the Health Law Practice Group and member of the Post-Acute Care And Senior Services Subgroup at Duane Morris LLP; [email protected].

The opinions expressed in McKnight’s Long-Term Care News guest submissions are the author’s and are not necessarily those of McKnight’s Long-Term Care News or its editors.