Judge with gavel on table

Plaintiff attorneys looking to jam up nursing homes now have a plethora of data points on which to base their cases, thanks to the workforce crisis, legal experts said. 

“The plaintiffs’ bar would argue – and a lot of times it was based upon fiction – that nursing homes were understaffed and that understaffing led to problems,” said Minton P.  Mayer, an attorney with Quintairos Prieto Boyer and Wood, PA, in Memphis, TN. “Unfortunately, now they have some data in terms of real-world data that can support their claims and the model they’ve been using for years. The staffing dilemma, which is front and center … they can establish it through so many different data points right now.”

Mayer’s comments came during a three-person panel discussion on disruption in the long-term care industry during the American Health Law Association’s Long Term and Post-Acute Care Law and Compliance conference earlier this month.

“There’s more sex appeal in a bad wound case with short staffing than a COVID case, and it’s easier to prove,” Mayer said. He added that plaintiffs’ attorneys are frequently “pleading around COVID.”

Despite noting at the outset that the panel did not want to be “all doom and gloom,” the speakers acknowledged that conditions in the sector are more difficult than ever. While employment levels are consistent with the mid-1990s, nursing homes are offering more services to more patients and residents, under tighter regulations and with the threat of more coming down the pike, panelists said. 

The staffing challenge is the biggest issue facing nursing homes, said Caroline J. Berdzik, chair of the Employment and Labor and Healthcare practice groups at Goldberg Segalla. The New York state staffing mandate has played out as a “true nightmare” as anticipated, she said. 

“It’s really becoming impossible,” Berdzik said, adding that Payroll-Based Journal data in New York shows that 75% of the state’s 614 nursing homes cannot meet its 3.5-hour staffing mandate. The state now has 6,700 empty beds, which is causing problems throughout the care continuum as hospitals cannot find facilities to which they can discharge patients.  

Beverly B. Wittekind, general counsel for The Ensign Group Inc., in California, said that acute-care patients may need more than what staffing mandates call for while other residents require fewer hours. In rural areas where there are long-stay, stable residents, 4.1 hours would be “overkill,” she said, about a parameter often floated as the mark a planned federal minimum staffing mandate might use. 

“It takes (away) our ability as caregivers to assess our patients and provide for those individual needs,” Wittekind said.

The Ensign Group has more than 250 facilities under its virtually nationwide umbrella. Wittekind said they continue to try different methods for staff engagement and retention, including offering gift cards and fostering culture changes.

“People want a connection with their workplace,” Wittekind said. “They want to know their employer. They want to know and respect the people they work with. They want to have some kind of mission and a purpose, and it can’t be lofty or amorphous … it needs to be genuine.”

As facilities find it harder to hire qualified staff, they are increasingly turning to staffing agencies, which can exacerbate financial problems. Minton noted that staffing problems aren’t just on the nursing side.

“Getting a dishwasher right now for less than $15 [per hour] is impossible in most markets because everyone else’s wages are greater than that,” he said. “That impacts the overall budget for the entire building, and it’s making the entire operational climate more difficult, especially when you have to get agency staff for a dishwasher because you can’t hire one with benefits at $15 per hour.”