Well, that didn’t take long. Late last week, a new study found a fresh way to tell an important pandemic-era storyline: It quantified just how much reliance on agency nursing staff had skyrocketed during the early pandemic and through 2022.

By Tuesday (after an extra day off for a holiday weekend, mind you!) a plaintiff’s law firm had pounced on the data, turning it quickly to try to gain a courtroom advantage.

“Temp Nursing Staff May Increase Risk of Nursing Home Injuries,” shouted one alarming subhead, although the study being referred to didn’t tie agency use to resident or staff injuries, or even use such lawyer-pleasing language as “injuries,” “falls” or “accidents,” not even once.

Lead study author John Bowblis, PhD, professor and research fellow at the Scripps Gerontology Center of Miami University, likely sees his latest work as a clarion call to the Centers for Medicare & Medicaid Services as it prepares to issue a federal staffing mandate, likely later this year. 

“Our study points to a clear problem that CMS has not addressed: Where are we going to find nursing home workers?” Bowblis told McKnight’s. “Pushing forward with a staffing mandate without assuring that nursing homes can afford to increase staffing and, most importantly, find workers to fill the necessary positions is vital if CMS’ wants to have any success in trying to implement a minimum staffing requirement.”

Too bad aboutlawsuits.com — a solicitation site for Maryland personal injury firm Saiontz & Kirk gussied up with a few educational-seeming blogs — saw dollar signs instead of warning signs amid the Health Affairs study.

Bowblis and his colleagues said their findings indicate policymakers need to more seriously consider nursing homes’ challenges in recruiting workers, the recent shift toward agency staff use and the higher labor costs associated with that shift.

The lawyers here, however, emphasized that the “findings may suggest the costly labor expenses of hiring temporary employees, as well as the unfamiliarity of patient needs, may result in poorer care quality.”

Nearly every home leader I’ve spoken to since the pandemic started has agreed that agency staff is a last resort, largely because it creates inconsistency that both residents and fellow staff members dislike. In some places, it simply remains a must-do, thanks to market conditions.

We also know that most nursing homes are spending every extra dime on reducing agency, hiring more of their own workers and making the sector a more appealing one to work in. That said, millions of dollars going toward increased labor costs doesn’t leave much to create innovative new approaches to care or to do more of the little, intangible things that bring true joy to residents’ lives.

The last thing providers need is more money-hungry attorneys turning a fresh data set against them. So, how to battle back?

The response is really a straightforward one. Regardless of how many studies there are differentiating the abilities and impact of full-time staff from those of temp nurses, it’s critical that operators and their floor staff work to bring gig workers and travel nurses into the fold. Give them the same respect you give your full-timers, the same training so that they can meet the same expectations and provide incentives so they want to work hard and stay with you.

The only way to get rid of variations in care delivery — and ensure that agency staff usage doesn’t become some kind of “proof” plaintiff’s lawyers bandy about with juries — is to ensure the temp staff you hire are not poor quality. Screen them, embrace them, educate them.

If future studies bear out anecdotal evidence from late 2023, agency will be shown to be on the decline already. But in the meantime, providers must remember that lawyers remain ready to pounce on any outlier data, whether it truly tells a story or can simply be painted to look like a nightmare.

Kimberly Marselas is senior editor of McKnight’s Long-Term Care News.

Opinions expressed in McKnight’s Long-Term Care News columns are not necessarily those of McKnight’s.