Widening data pool dangerously 'chumming the waters' in nursing home lawsuits - McKnight's Long-Term Care News

A broader public data pool that captures practices of individual nursing homes and patterns across portfolios is being used out of context and further complicating the legal landscape for operators, experts warned as two data-fueled class action lawsuits head toward trial in Kentucky.

The lawsuits allege business owner Terry Forcht and companies that manage two of his nursing homes violated laws that require sufficient nurse staffing levels. Patients and former patients are seeking reimbursement for "services not provided." To build the cases, a firm representing the plaintiffs has said it used Medicare cost report data alongside expanded Payroll Based Journal data available through Care Compare to measure sufficiency.

The firm is alleging Hazard Nursing Home had far too few registered nurse hours and 6% fewer total nursing hours than required in 2019, with 9% fewer total hours in 2020. But one of the nursing homes named, Hazard Nursing Home in Perry County, has a 4-star staffing rating.

Attorneys for the nursing home hope to discredit that rating, arguing that staffing metrics are self-reported by nursing homes.

That's just one example of how some plaintiffs attorneys are leveraging new data sources to build cases that look convincing to those outside the nursing home — and to jurors, especially.

"CMS commitment to transparency and consequently the availability of additional data is basically chumming the water for plaintiff attorneys," Steven Littlehale (pictured), a gerontological clinical nurse specialist and chief innovation officer at Zimmet Healthcare Services Group, told McKnight's Long-Term Care News Monday. "How this data is used, and in many cases abused, is really the point. Speaking from experience of providing expert witness support on similar cases where staffing is called into question, these arguments are predictable and flawed."

Littlehale noted that mixing cost report data with PBJ metrics would create "bogus" data because the two pieces of information are "foundationally different."

"The availability of turnover and weekend vs. weekday staffing data gives the illusion of deep insight into a nursing home's commitment to their residents in terms of staffing; however, without subject matter expertise, it's just more noise," Littlehale added. "Staffing needs to be put in context of resident acuity, market factors and additional staff present that goes beyond nursing staff who are transitionally considered in Five-Star."

Anyone who works in the skilled nursing sector would know that, Littlehale added. But up against inaccurate claims, providers must be prepared to fight back as attorneys weaponize information meant for informed government regulators to interpret.

Such recently expanded data includes more turnover and weekend staffing data captured by automated PBJ reporting; new ownership details; and provider ratings that average scores across holdings. Some have come at the backing of the White House, specifically, while others are a natural progression of the Center for Medicare & Medicaid Services push to expand both its Quality Reporting and Value-Based Purchasing programs.

Seeing more civil lawsuits that repurpose Care Compare data for the plaintiff's benefit, Littlehale and Hall Booth Smith attorney Drew Graham have created an educational session outlining the trend. They'll warn others at this fall's AHCA conference. 

"Care Compare was developed as a tool to help consumers make healthcare decisions. Not unlike other complex projects, there is disagreement between stakeholders as to whether it has helped or hurt. However, there is no question that many people worked hard to develop methods to interpret the available data reasonably," added Graham, who heads up his firm's aging services practice. "The data was not collected for use in personal injury litigation. Understanding what these data tell us about an individual situation is very difficult. The risk of misinterpretation by courts and juries is high."

Graham said that setting up "reasonable guardrails" for the use of Care Compare data in litigation should be a top priority for CMS and state agencies.

But unless or until that happens, providers will need to make sure they are reviewing their data for accuracy and looking for insights. Used to assess processes and outcomes and drive quality improvement, data can actually help operators manage their legal risk, noted Littlehale.

"Understanding the complexity of these data and how they will be used months or years after submission is important," Graham added. "If the data is used in litigation, working with outside counsel and experts who not only understand the data, but also how to present it to courts and juries is essential. You need a team that understands both the context and the numbers."