Three Giant Steps to get the Most Out of Nursing Home Litigation Budgets

image of nurse helping older man with graphic overlay

The numbers tell a clear and convincing story.

With headlines about inflation, conflict on foreign shores and gods of Thunder on the silver screen, the COVID-19 pandemic has faded from public view. But the first institutions in American life struck by the virus — its nursing homes — haven’t yet moved on from crisis mode. 

Even if they wanted to.

A new American Health Care Association survey outlines the serious staffing and economic problems still coursing through the hallways of America’s nursing homes. As a result, operators are losing money, employee shortages are limiting admissions, and both have led to fears that some providers may have to close altogether.

“The survey shows the severe and persistent workforce shortage nursing home providers have been facing with too many facilities still struggling to hire and retain staff despite making every effort,” said Mark Parkinson, president and CEO of AHCA. 

The association is urging lawmakers to prioritize funding for long-term care residents and staff. Their voice is just one of a chorus calling for reforms in the industry. Patients and families, many of whom have been buffeted by the same external forces, have also been speaking up.

“As a provider that uniquely relies on government funding, policymakers must help nursing homes better compete for nurses and nurse aides, as well as build up the pipeline to incentivize more people to pursue a career in long term care,” Parkinson added.

Here are three big steps to understanding the current crisis and making sure your litigation budget — and overall operations — can meet the moment.

Understand where we are now.

The survey mentioned above offers vital data in understanding the current state of the nursing home industry. It collected responses from 759 providers to quantify the impact and challenges post-acute care providers are facing.

According to the AHCA:

60 percent of nursing home providers said their workforce situation has worsened since January. The survey results came out in June, so this change has occurred over a matter of months. It’s also happened since the arrival of vaccines and therapeutics for COVID-19, so we can’t solely blame the virus. People are leaving the industry, even after the worst of the pandemic.

87 percent are currently facing moderate to high staffing shortages. Of those, nearly half (48 percent) are facing a high level of staffing shortages. In other words, nearly nine in 10 providers are dealing with significant staffing problems. With surging employment levels reported throughout the economy, we’re in an environment where workers are calling the shots. Many employers haven’t experienced a situation like this. Ever.

To adjust for staffing shortages, nearly all (99 percent) nursing home providers ask staff to work overtime or extra shifts. More than 70 percent have hired temporary agency staff. To cope with the situation, these providers are putting more pressure on their existing staff and looking outside for help. Trying to patch up these problems comes at a steep price, of course, and may lead to even more people leaving their jobs.

Providers estimate that their costs have increased by an average of 41 percent since last year. As a result, inflation has buffeted households and businesses alike, and relentless upward pressure on costs has hit the nursing home field as well. Plus, there’s no better way to attract workers than offering them more money. 

More than half (53 percent) of nursing home providers said they can’t sustain current operating pace for more than one year. Here’s where the rubber meets the road. To move forward successfully, nursing homes, their staff and patients must change. Some of that may depend on extra resources from the government, as outlined by Parkinson. It will also depend on providers maximizing their budgets for care and safe guarding against potential litigation.

Glimpse where we’re headed legally.

If the picture painted by the AHCA survey sounds alarming, the upcoming litigation landscape for nursing homes is the equivalent of a three-alarm fire.

Alarm one: The Wall Street Journal reports that a tidal wave of potential lawsuits is approaching. Reporter Jacob Gerhman took stock of the landscape back in April, and even then, the signs were ominous for the industry and those working within it.

“The surge of suits, spurred by a repeal of liability protections and statutory deadlines to file the suits, largely accuses nursing homes of failing to properly curb the spread of disease, identify infected residents and treat their illnesses,” he wrote.

He noted, however, that exact liability could be difficult to discern: “It is now up to courts to decide just how much blame should be laid on the owners of the facilities. Legal observers say it could be hard for the estates of deceased residents to prove a causal link between alleged lapses in infection control and the deaths of an aging, frail population.”

Alarm two: a California appeals court has just allowed a wrongful death case to move forward against See’s Candies. Arturo Ek of Los Angeles died after his wife brought the virus home; she alleges that she caught it at work.

Danielle Brown reports for McKnights Long-Term Care News that implications are apparent — and worrying — for nursing homes.

“The ruling is concerning for businesses, including long-term care providers, in that it definitely expands the range of individuals that could potentially file a take-home COVID-19 lawsuit,” said Craig C. Conley, a shareholder with Memphis-based law firm Baker Donelson, in the story.  

He added that “this is particularly concerning in states, such as California, that do not have immunity statutes or other protections in place for businesses such as long-term care providers.”

Alarm three: Amy Stulick writes in Skilled Nursing News that lawyers are looking to test the protections offered by legislation against nursing home suits. The federal Public Readiness and Emergency Preparedness (PREP) Act, which “ provides immunity from liability, with the exception of willful misconduct, from certain legal claims,” does offer some protection. 

But as Alan Schabes, partner at Benesch Friedlander Coplan & Aronoff LLP, told the outlet, that doesn’t necessarily mean that state courts won’t be asked to rule.

“If there isn’t a ruling that makes it very clear federal preemption exists in these cases, Schabes said, “it’ll just open things up tremendously” and overwhelm state courts with cases.

Take steps to support your operations.

Where we are and where we’re headed might raise alarms. You might smell some smoke, even if you can’t see any flames yet. But there are tangible steps you can take to address the situation. Maybe you don’t need emergency responders quite yet, but you could use a good fireproofing.

Med Law Advisory Partners stands ready to assist. Its experts offer “the clinical expertise necessary to mitigate risk, manage medical-legal claims, and advise toward long-term operational enhancements.”

How can they help?

Early claims analysis can save money in the long run. Engaging consulting nurse experts can save time and expense by helping tee up cases for the legal team. You can even right-size your litigation budget by collecting data that can provide insights into improving resident outcomes.

What’s more, Med Law has specialized knowledge about the needs of long-term care facilities. They have worked in the field for decades and understand the specific challenges you face.

“Through in-depth medical records analysis and collaboration with our clients, our team identifies critical factors to help defend or support allegations of negligence or malpractice in regards to nursing home litigation investigation and case preparation,” they write. That knowledge can be put to work for you.

Their experts realize that making nursing homes and assisted living facilities work for owners, staff and residents means juggling multiple priorities. You have to figure out how to make every dollar do the work of two. But they also know you can’t cut corners when it comes to keeping residents safe and secure.

“We partner with health systems to bring unique expertise that is highly cost-effective and cost-saving in an era where both quality of care and financial stewardship are critical priorities,” Med Law adds

Yes, the current state of affairs is distressing enough. Yes, everyone in the nursing home industry could face even greater obstacles and struggles within the next few months and years. But fully grasping the situation isn’t about being alarmist.

It’s about being prepared.

Get in touch with Med Law today and learn how you and your litigation budget can go further. Your staff and residents will benefit.

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