The danger of understaffing

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Nursing home litigation

August 2011, Volume 47, No. 08

The danger of understaffing 

Mark Kosieradzki

Understaffing a nursing home puts patients at risk, yet some homes' corporate owners do it knowingly to boost profits. To uncover evidence of this dangerous and often deadly corporate policy, begin your search with the nursing home's records.

 

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If a factory, a nursing home, or any other business does not have enough employees to do a job, that job cannot be done properly. In health care, the consequence of understaffing can be catastrophic. Understaffing is often the reason nursing home patients do not receive appropriate care—it may be the root cause of neglect or abuse. Despite an employee’s best intentions, if he or she does not have time to provide the necessary care, patients will be harmed.

In a nursing home, staff time is directly related to the ability to provide care. Evidence shows that higher staff levels and lower nurse turnover are linked to fewer pressure ulcers, catheterized patients, and urinary tract infections; less antibiotic use; increased probability of discharge; reduced likelihood of death; and improved patient outcomes.1 Understaffing is associated with high urinary catheter use, poor skin care, poor feeding, malnutrition, dehydration, and low participation in activities.2

Inadequate food intake is a major reason frail elderly people die in nursing homes. Feeding patients who need assistance with eating, encouraging patients to remain as independent as possible in feeding themselves, and supervising patients at mealtime require substantial staff time. Without it, residents can suffer inadequate nutritional intake, leading to malnutrition, dehydration, and starvation.3

Similarly, overworked nursing staff may not have time to keep patients from sitting or lying in one place too long. Patients at risk for skin breakdown require frequent and regular turning and repositioning, often at least every two hours. If the nursing home is understaffed, these patients may not receive the preventive services they need, making their condition more likely to decline.

Government regulators have recognized the danger of understaffing in nursing homes. All nursing homes participating in Medicare must meet certain requirements specified in the Federal Nursing Home Reform Act (FNHRA), which is part of the Omnibus Budget Reconciliation Act of 1987 (OBRA).4 Those regulations require a facility to have “sufficient nursing staff to provide nursing and related services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident.”5

Nursing homes must have enough staff to provide all necessary care to all patients on a 24-hour basis.6 Nursing staff includes not only registered nurses (RNs) but also licensed practical nurses (LPNs/LVNs), trained medication assistants (TMAs), and nursing aides (CNAs). State statutes and regulations also may specify nursing home staffing standards.

Although the defense will often argue that the regulations do not constitute the standard of care, facilities that participate in Medicare and Medicaid must comply with applicable federal and state regulations—at a minimum.7 Often, the standard of care requires facilities to exceed that minimum. The Tennessee Supreme Court has held that “proof of violations of federal and state nursing home regulations is relevant in determining whether a defendant nursing home has breached the standard of care.”8

Causes of action

Courts have recognized that corporate decisions based on “economic interests and profit desires rather than the best interests and medical needs of its patients” are evidence of a disregard for patient safety.9 In Estate of Youngblood v. Halifax Convalescent Center, Ltd., the court found actionable the deficiencies in health care “linked to [the defendant]’s conscious decision to keep the facility chronically understaffed due to budget problems.”10

Corporate negligence is a discrete cause of action against a health care corporation based on “administrative and standard-making functions.”11 This liability is not based on respondeat superior for medical malpractice, but rather on common law negligence by the corporate entities. A corporate owner “cannot escape responsibility by managing its facility with managers who close their eyes, refuse to hear, and dull their sense of smell.”12

Proximate cause analysis requires focus on not only what happened but also why it happened. In U.S. v. Bestfoods, the U.S. Supreme Court established direct participant liability in that a “parent ‘corporation is [itself] responsible for the wrongs committed by its agents in the course of its business.’”13 The “parent is directly liable for its own actions” when “‘the alleged wrong can seemingly be traced to the parent through the conduit of its own personnel and management,’ and ‘the parent is directly a participant in the wrong complained of.’”14

The OBRA regulations expressly state that their purpose is “for the health and safety of individuals to whom services are furnished in the facilities.”15 Courts have held that, pursuant to those regulations, “nursing facilities must support individual needs and preferences and promote or maintain the highest quality of life and the highest practicable physical, mental, and psychosocial well-being of each resident.”16

The Restatement (Second) of Torts §286 sets forth the required elements of negligence per se:

The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part

(a)to protect a class of persons which includes the one whose interest is invaded, and

(b)to protect the particular interest which is invaded, and

(c)to protect that interest against the kind of harm which has resulted, and

(d)to protect that interest against the particular hazard from which the harm results.

In McLain v. Mariner Health Care, Inc., the Georgia Court of Appeals ruled that violations of federal nursing home regulations support causes of action for negligence and negligence per se.17 In Norman v. Life Care Centers of America, Inc., a California appellate court held that the trial court’s refusal to instruct the jury on negligence per se regarding a state nursing home regulation was reversible error.18

In Grammer v. John J. Kane Regional Centers-Glen Hazel, the Third Circuit held that the federal nursing home regulations are “explicitly and unambiguously rights-creating” and confer enforceable individual rights on nursing home residents.19 Federal courts are split as to whether Congress created an implied private right of action under the FNHRA.20

 

Investigation and discovery

In evaluating whether a nursing home employs sufficient staff to provide patient care, you must consider several factors.

Hours. It is important to note the difference between productive and nonproductive nursing hours. Productive hours involve direct patient care, while nonproductive hours involve administrative nursing staff.

Census. The census is the number of patients living in the facility during the relevant time period.

Acuity. The level of medical complexity of each nursing home patient’s illness or condition is called acuity.

Resource utilization groups (RUGs). Medicare reimbursement classifications are established according to a schedule of RUGs. Classification is based on a standardized assessment tool—the minimum data set—which evaluates each patient’s physical functioning, disease diagnoses, health conditions, and treatments received. After the assessment is completed, a RUGs classification is assigned to the patient.

Facility case mix score. RUGs are used to determine Medicare’s prospective payment to nursing homes. Each RUG is assigned a weight. The sum of all patients’ RUG weights is the index. By dividing the index by the total census, you can determine the case mix score.

Per patient days (PPD). The PPD is the total nursing hours for all nurses on duty on any given day, divided by the patient census for the same time period. For example, if the facility has 2 nurses, each working 8 hours, in a facility that has 15 patients, the facility has 1.06 nurse staffing hours PPD (2 x 8 = 16, divided by 15 patients).

As a patient’s acuity increases, his or her RUG rating and corresponding reimbursement rate increase. The premise is that a patient with a higher RUG rating will need more care or more skilled care. The RUG system provides for higher reimbursements to facilities when caring for increasingly medically complex patients, because such care must be delivered by more care providers or by providers with higher skill levels.

Some nursing homes market for patients with higher acuity levels. By increasing the acuity of the patient population, the facility can increase its gross revenues. But even when a facility’s care requirements increase, the number of skilled staff often does not increase. Staffing analysis requires an understanding of patient population acuity as well as the PPD ratio.

Census, acuity, and staffing levels can be established through documents created by the facility. Ask for the following:

Medicare and Medicaid cost reports. Each skilled nursing facility that participates in the Medicare program is required to submit to the Centers for Medicare and Medicaid Services (CMS) a Medicare cost report.21 This public report details the facility’s annual operating expenses and revenues and can be used to establish its annual census. It includes data regarding beds/bed-days available; inpatient days; annual occupancy rate; RUGs and case mix score; and data regarding employees on payroll, wage index information, and cost allocation. You can also obtain the report by requesting it through the appropriate intermediary, which can be identified at the CMS Web site.22

Facilities that participate in state Medicaid programs are also required to submit Medicaid cost reports, typically to the state’s department of health. This report contains information comparable to that in the Medicare cost report, but reports can differ by state. Medicaid cost reports can be obtained through the health department.

You can use cost reports to show PPD trends in a facility by looking at the patient census and funds allocated annually to direct-care nursing staff. Cost reports also provide direct-care staff retention rates and productive and compensated hours.

Roster/Sample Matrix. Skilled nursing facilities use the Roster/Sample¬ Matrix form (CMS-802) to list all current patients and to note pertinent care categories. Based on this information, federal surveyors select the patient sample they use when conducting the facility survey. This information can be used in establishing facility census and acuity when analyzing staffing levels.

Posted nurse staffing information. Under 42 C.F.R. §483.30(e), the facility must post the total actual hours worked by RNs, LPNs/LVNs, and CNAs, as well as the patient census, every day. The data must be posted in a clear and readable format in a prominent place that is readily accessible to patients and visitors. It must be maintained for at least 18 months. On request, the facility must make nurse staffing data available for review at a reasonable cost.

The §483.30(e) posting establishes the staff-to-patient ratio for any given shift, but it does not reveal the number of staff present at any given time within that shift. Patient needs and the consequent demands on staff may vary throughout the day. For example, demands on aides increase during mealtime, when multiple patients need feeding assistance at the same time.

Punch detail reports. These reports can provide staffing levels at any given time during any given shift. Facilities typically use an automated time-clock system to manage staff attendance and payroll. This way, the facility can precisely identify when every employee was working. Also, manipulating the queries for information in the database can create various punch detail reports, such as the number of employees within the facility, of any given job description, at any given time. This not only identifies the raw data of the number of staff working, but it also may identify caregivers, such as aides, whose names typically do not appear in the patient’s chart.

Turnover reports. Administrators and human resources departments typically use the punch detail statistical data to evaluate monthly, quarterly, and annual employee turnover rates. Each nursing home also reports its staffing hours to its state survey agency.

Schedules. Staff schedules represent the staffing decisions the facility has made. But the schedule identifies only who was supposed to work on a shift—the punch detail report identifies who actually worked.

Daily aide assignment sheet. At the beginning of each shift, each nursing aide is given a daily assignment sheet. This document details which patients the aide is assigned to care for, the patients’ room numbers, and their needs. To understand an aide’s workload, you must know the care needs of that aide’s patient population as well as the number of patients he or she is assigned to care for. Because the daily assignment sheet contains protected information on other patients, discovery requests should ask that all patients’ names, other than the represented client, be redacted—but not the patients’ care requirements.

Floor plan. The nursing home’s floor plan can help you understand how the patient population is distributed among various units and throughout the building, the physical distribution of the patients assigned to nursing staff, and the patients’ proximity to the nursing desk. You can use floor plans in depositions to determine how many staff were assigned to a certain wing and where the patient was in relation to the nursing desk.

Witness testimony. Subject to the Model Rules of Professional Conduct, you may be able interview a corporate defendant’s former employees.23 These witnesses may provide valuable insights regarding understaffing and staff turnover, work overload and the ability to provide care, and complaints to and response from management.

The nursing home must ensure that it provides sufficient nursing staff to meet the health needs of its patient population. Corporate decisions to understaff a facility can subject the corporation to direct participant liability and may indicate disregard for patient safety. A thoughtful and strategic discovery plan can help you establish a corporate negligence claim showing that a defendant’s understaffing harmed its patients.

Mark Kosieradzki is a partner in Kosieradzki Smith in Plymouth, Minnesota. © 2011, Mark Kosieradzki.

Notes

  1. Charlene Harrington et al., Experts Recommend Minimum Nurse Staffing Standards for Nursing Facilities in the United States, 40 Gerontologist 5, 6–7 (2000).
  2. Id.
  3. Id. at 7.
  4. Pub. L. No. 100-203, §§4201–4218, 101 Stat. 1330 (codified at 42 U.S.C. §§1395i-3, 1396r (2006 & Supp. 2010)). In 2010, Congress enacted the Patient Protection and Affordable Care Act, Pub. L. No. 111–148, 124 Stat. 119 (2010) (codified at 42 U.S.C. §§18001–18121), which amends numerous other statutes, including §1395i-3, in addition to providing for an individual mandate for insurance. Courts are split as to the constitutionality of the “individual mandate” provision and its effect on the remainder of the act. Two courts have held that the individual mandate is a proper exercise of the commerce power. (Liberty Univ., Inc. v. Geithner, 753 F. Supp. 2d 611 (W.D. Va. Nov. 30, 2010); Thomas More Law Ctr. v. Obama, 720 F. Supp. 2d 882 (E.D. Mich. 2010).) Two others have held that it violates the Commerce Clause. (Virginia v. Sebelius, 728 F. Supp. 2d 768 (E.D. Va. 2010); Fla. ex rel. Bondi v. U.S. Dept. of Health & Human Servs., 2011 WL 285683 (N.D. Fla. Jan. 31, 2011), order clarified, 2011 WL 723117 (N.D. Fla. Mar. 3, 2011).) The Virginia court held that the individual mandate provision was severable from the remainder of the act. The Bondi court, however, held that because the individual mandate is not severable from the remainder of the act, “the entire act must be declared void.” 2011 WL 285683, at *40. The Eleventh Circuit heard oral arguments in Bondi on June 8, 2011.
  5. 42 C.F.R. §483.30 (2011).
  6. 42 C.F.R. §483.30(a)(1) (2011).
  7. 42 C.F.R. §§483.1(b), 483.75(b) (2011).
  8. Est. of French v. Stratford H., 333 S.W.3d 546, 563 (Tenn. 2011); see also Brian G. Brooks et al., Don’t Forget the Ordinary Negligence Claim, in this issue at p. 24.
  9. Bremenkamp v. Beverly Enters.-Kan., Inc., 762 F. Supp. 884, 894 (D. Kan. 1991); see also Advocat, Inc. v. Sauer, 111 S.W.3d 346, 354 (Ark. 2003); Est. of Despain v. Avante Group, Inc., 900 So. 2d 637, 645 (Fla. App. 2005); Scampone v. Grane Healthcare Co., 11 A.3d 967, 991–92 (Pa. Super. 2010), appeal granted, 15 A.3d 427 (Pa. Mar. 8, 2011).
  10. 874 So. 2d 596, 606, 598 n.1 (Fla. App. 2004) (considering evidence that the nursing home’s director of nursing was “constantly pressured by [the defendant’s] corporate supervisors to meet the staffing budget” and that “he was even instructed to send CNAs home if he didn’t meet the budget numbers”).
  11. See e.g. Kaiser v. Meml. Blood Ctr., Inc., 486 N.W.2d 762, 768 (Minn. 1992) (en banc).
  12. Beverly Enters.-Fla., Inc. v. Spilman, 661 So. 2d 867, 873 (Fla. App. 1995).
  13. 524 U.S. 51, 65 (1998) (quoting Mine Workers v. Coronado Coal Co., 259 U.S. 344, 395 (1922)).
  14. Id. at 65, 64 (quoting William O. Douglas & Carrol M. Shanks, Insulation from Liability through Subsidiary Corporations, 39 Yale L.J. 193, 207–08 (1929)).
  15. 42 C.F.R. §483.1(a)(1)(ii) (2011).
  16. In re Involuntary Discharge or Transfer of J.S. by Hall, 512 N.W.2d 604, 609 (Minn. App. 1994); see also Concourse Rehab. & Nursing Ctr. Inc. v. Whalen, 249 F.3d 136, 143 (2d Cir. 2001).
  17. 631 S.E.2d 435, 437–38 (Ga. App. 2006).
  18. 132 Cal. Rptr. 2d 765, 780–82 (App. 2003).
  19. 570 F.3d 520, 532 (3d Cir. 2009).
  20. Est. of French, 333 S.W.3d at 563 n.15. Compare Brogdon ex rel. Cline v. Natl. Healthcare Corp., 103 F. Supp. 2d 1322, 1330–31 (N.D. Ga. 2000) (declining a private right), with Joseph S. v. Hogan, 561 F. Supp. 2d 280, 303–04 (E.D.N.Y. 2008) (recognizing a private right).
  21. 42 U.S.C. §1395g (2006); 42 C.F.R. §413.20(b) (2011).
  22. Visit www.medicare.gov/contacts. Click on “Do you want to find a specific organization?” and then choose a state/territory and check “Fiscal Intermediary.”
  23. See Model R. Prof. Conduct 4.2 & cmt. (ABA 2010).


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