A lawsuit by former residents at 12 Arkansas nursing facilities owned by Golden Living alleged that the facilities were chronically understaffed between December 2006 and July 2009, in violation of the facilities’ admission agreement, the Arkansas Long-Term Care Residents’ Rights Act, and the Arkansas Deceptive Trade Practices Act.[1] The case was settled in 2017 for $72 million.
Evidence of understaffing included:
- Violations of state staffing standards;
- Deficiencies for inadequate staffing cited by the Arkansas Office of Long Term Care;
- Documentation of staffing levels below other facilities in the state;
- High rates of undocumented care for activities of daily living;
- Staffing levels below expected levels calculated by the Centers for Medicare & Medicaid Services;
- Staffing levels below levels recommended by experts;
- Evidence of inflated staffing levels reported by facilities;
- Directors of nursing deposition testimony about understaffing and lack of care;
- Directors of nursing testifying about their lack of authority to adjust staffing levels upward, as required by Arkansas law;
- Complaints by residents and families about lack of care, lack of staff, and poor nursing care;
- Medical records showing serious quality problems;
- Documentation that corporate officials knew about staffing complaints; and
- Facilities’ failure to reduce admissions during periods of understaffing.
The Settlement has significance beyond its recognition that nursing facility residents who did not receive all of the care and services they required should receive meaningful compensation. More broadly, the Settlement illustrates the importance of both professional standards of practice in determining staffing needs at nursing facilities and the new facility assessment process that is required by the revised Requirements of Participation[2] for all facilities nationwide that participate in (and receive reimbursement from) the Medicare and Medicaid programs.
Since 1991, the nursing standard in the Requirements of Participation has required each nursing 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, as determined by resident assessments and individual plans of care.”[3] The revised Requirement expands on this language and now provides (new language underlined):
The facility must have sufficient nursing staff with the appropriate competencies and skills sets to provide nursing and related services to assure resident safety and attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by resident assessments and individual plans of care and considering the number, acuity and diagnoses of the facility’s resident population in accordance with the facility assessment required at §483.70(e).[4]
The new facility assessment process, which CMS describes as “a central feature” of its revisions to the Requirements,[5] requires the facility “to determine what resources are necessary to care for its residents competently during both day-to-day operations and emergencies.”[6] In addition, facilities must address, specifically, among other factors, “The care required by the resident population considering the types of diseases, conditions, physical and cognitive disabilities, overall acuity, and other pertinent facts that are present within that population.”[7]
Conclusion
Many resident advocates were disappointed when CMS declined to mandate specific staffing ratios in the revised Requirements. But the standard adopted by CMS – that facilities use professional nursing expertise to determine both the specific care and services their residents need and the ways in which they can competently meet those individual resident needs – could, if meaningfully enforced, help lead to appropriate staffing, as the Arkansas settlement demonstrates.
The Golden Living case shows that professional nurses are key to determining adequate and appropriate nurse staffing levels and competencies. Going forward, nursing facilities must rely more fully on their professional nurses. By implementing their nurses’ professional guidance and recommendations, nursing facilities can make the promise of the 1987 Nursing Home Reform Law a reality – that each resident receives care and services to attain and maintain his or her highest practicable level of functioning and well-being.
T. Edelman, January 24, 2018