SNFs (and others), a (not good) Staffing Litigation Trend to Watch

It seems like I have been writing a lot on staffing issues these past few months, and I have. Staffing along with the current economy, are a Hydra today (two headed serpent), negatively impacting provider financial conditions and patient care in many forms (access, outcomes, care coordination, etc.).

A few months ago, I wrote a couple of pieces regarding staffing challenges and litigation risk. The posts are available here,


What I’m watching today is an even more diabolical twist to litigation involving staffing levels.  It is litigation that uses staffing data as reported by the SNF in its PBJ (available via CMS Compare data) and Medicare and Medicaid cost reports.

Two class action suits against a nursing home owner and his facilities in Kentucky are working their way toward trial. Patients and former patients make up the class alleging that care was not provided as required.  Their basis of evidence (partial proof) is staffing data retrieved via PBJ and cost reports.  The data purportedly shows insufficient numbers of staff and insufficient resource allocation (cost report data) to adequately care for the census in the facilities.

One suit was filed by the law firm of Garcia & Artigliere against Barbourville Health and Rehabilitation Center and owner Terry Forcht for (supposedly) profiting from knowingly understaffing.   Understaffing is a violation of Kentucky and federal law. The facility was noted to provide an average of 56% less RNs than required and 19.8% less total nursing hours than required. Note: the suit is basically filed against the owner and two of his companies that manage facilities – Barbourville and Hazard.

Per the complaint: “Our lawsuit asserts the Defendants siphoned funds away from the facility under the guise of management and administrative fee expenses which were ‘related-party transactions’ as reported in Medicare cost reports submitted to the State,” said Senior Attorney Stephen Garcia. “The Complaint alleges that through these budgetary constraints, the Defendants systematically failed to have the resources or the staff on hand to manage the care of residents. As a result, the class members who paid good money to the facility and trusted they would be taken care of, suffered a violation of their rights and harm. This lawsuit is an effort to remedy that wrong and ensure this facility has sufficient staff to meet the needs of its elderly and infirm residents all good and fine citizens of Kentucky who deserve dignity and respect.”

The full complaint is available here: Complaint

What is effectively at issue for the plaintiff and the defense is the accuracy and interpretation of govt. recorded data.  For example, PBJ data is self-reported and corroborated by payroll data. While it contains information regarding turnover, weekday and weekend staffing levels, it does not correlate the same directly to resident care needs or the presence of other staff and their respective roles in caregiving (therapies, activities, social services, etc.).  The date is case mix sensitized based on MDS data but note, a resident requiring extensive rehabilitation therapies may have a fairly high case mix score but still require, minimal skilled (RN care).  In other words, the reporting system is not directly linkable to resident needs.

Cost report data is even more ill-defined.  Cost reports express financial data on staffing but not at a granular level or a discrete level such as found in a PBJ report. One could argue that the cost report data is evidence of resource commitment (spending) to labor and staffing but certainly, the reports are based on population subsets (Medicare and Medicaid).

The CMS Compare star ratings are lagging indicators, albeit staffing (star) is the most current.  In the cases above, Hazard nursing home is/was 4 star rated. Per CMS, 3 stars reflects the industry “middle”; the most common staffing level rating. An excellent site and description of the staffing level/rating mechanics is here.  It is from StarPro, a software development firm that focuses on developing dashboards and key informatics for facilities related to the CMS Star Rating system. The link to the staffing mechanics is here:

Risk mitigation for all providers is becoming more and more complex.  All Medicare providers are required today, to have active ethics and compliance programs in-place to assure compliance with federal laws and regulations, including accurate data reporting.  Given the litigation landscape, providers need to take seriously, their data reporting as representative of actual operations and care provided.  All too often, there is a gap between what is reported or taken-in for billing purposes versus what is happening at the patient care level and documented at that level. This is the primary litigation risk I see and my firm H2 Healthcare deals with in terms of litigation work and provider support.  Flat out, providers need to do a better job here.

A good simple summary of the Five Star rating system calculations is available for download here: brieffivestartug


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