Staffing, Compliance, and Litigation Risk

Not sure how many folks caught this brief article in McKnight’s….The article link is just below.

Post COVID, all of health care faced a seismic shift in staffing levels. COVID caused wide-spread disengagement in a labor force (clinical) already stressed in numbers. Retirements, especially of nurses, exploded. As COVID abated and the economy began to re-emerge in force with pent-up demand driving consumption, employees like CNAs found more lucrative work in different industries. And, if the work was not more lucrative, it was more culturally satisfying. Let’s face it, CNA work is tough stuff and if a job at Amazon pays as much if not more and the work environment doesn’t involve poop, puke, spit, etc., it may be more appealing (likely is).

Staff shortage (supply) has also been fueled at some levels by two distinct phenomena. First, for some levels such as CNAs and support personnel, expansive government supports and payments became available. COVID via government policy, flooded the world around us with free money or free money trade-offs. For example, for month after month, the Federal govt. made it impossible for landlords to evict tenants that were not paying their rent. This same govt. has frozen, student loan repayments. Expanded unemployment benefits at the state level fueled by Federal supports and direct stimulus payments from States and the Feds made it possible for a large number of people to “not work” and remain comfortable financially. In some cases, the total of the supports exceeded the former take-home pay attained via work.

Second, for nurses in particular, a ton of new “non-bedside” jobs continue to enter the market. It is entirely possible for an RN to find a job within a large clinic, in an insurance company, in a software company (EPIC for example), in product sales, in schools where the working conditions, particularly schedules, are significantly more tolerable with families and other interests, than shift work at a hospital or nursing home. Likewise, the pay and benefits while perhaps not quite as rich as direct patient care, are rich enough, combined with better working conditions, to attract a growing share of nurses.

What the McKnight’s article tells the provider community is that staffing is now a risk area in terms of “litigation” risk. Plaintiff’s attorneys know what providers know, there simply is not enough supply of personnel to meet the demands of providers. Unfortunately, the outlook for any positive movement in greater supply (more staff) is poor in the near term. We’ve known for nearly forever (ok, forever) that staff numbers (sufficient) and quality (properly trained), correlate to patient outcomes (e.g., better care). As patient complexity increases and regulatory pressures for more enriched services and patient choice expand, the probability of negative patient experience and outcomes increases. It is this negative area (outcomes and experience) that drives litigation.

Unfortunately, at a time when more staff is needed and certain shortages exist (some critically so such as in rural areas), the Biden administration is ramping up regulatory pressure to require certain staff levels. As much as this sounds good, it is pure rhetoric, unhinged from reality. Putting pressure on the SNF industry for example to staff more is like pressuring me to dunk a basketball at a regulation high hoop without the aid of a trampoline or ladder – ain’t gonna happen. Creating more negativity in a negative climate is not a solution, even if the govt. demands and in turn threatens, punishment for failing to meet certain staffing levels. Likewise, the pressure is not coming with increased reimbursement necessary to cover higher recruitment and retention costs (e.g., bonuses, wages, increased staff numbers).

So, as I am often asked, what is the answer to the staffing problem? Are solutions available? Can providers truly impact the number and quality of staff available to them? My answer: Yes, there are things that can be done and no, there are no magic bullets. The staffing crisis is a national problem, and it will require Congress, the Administration, and State governments to work collectively and creatively to increase numbers. Regulation demanding providers staff more is not a viable solution. A novel idea would be to shift the focus from tuition loan forgiveness on a blanket basis to free tuition or fractional tuition for nursing programs. Another policy shift must focus on increasing nursing instructors. Again, creativity is required here. Immigration policy shifts for nurses from foreign countries, allowing fluid transition for work could also improve supply.

Providers can also be more creative and responsive. Among the top five reasons I hear for nurses leaving their inpatient positions, crappy management is always in the top two or three. Wages and benefits rarely crack the top ten. Flexibility, engagement in position assignments and schedules, more team approaches to patient care (more bodies engaged including physicians), and increased technology for support are all things I regularly hear from bedside staff.

Below is a link to a presentation I did not too long ago on staffing. The content may be helpful to get a thought process going on how to move forward and increase staff levels in this current environment.

In a soon to follow post, I’ll address the litigation risk issue around staffing and how, providers can mitigate some of the risk through not just staffing but through internal organization and proper use of risk management tools and protocols.