For SNF operators, the FY 2026 VBP program will use PBJ-reported nursing hours to calculate payment adjustments. At the same time, staffing shortfalls documented in public data are being cited in negligence litigation.
Widening data pool dangerously ‘chumming the waters’ in nursing home lawsuits
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.
— Skilled Nursing News, August 23, 2023
A legal fight related to Medicaid providers and wages is dropped
Industry groups and the Florida Agency for Health Care Administration agreed to end a legal fight about part of last year’s state budget that could have opened Medicaid providers to litigation if they didn’t pay a $15 minimum wage to “direct care” workers. The parties agreed that “with the adoption of the 2023 budget, employees will not have a cause of action for alleged underpayment of wages after June 30, 2023.”
— Health News Florida (WUSF), July 11, 2023
Plaintiffs’ lawyers gaining edge against nursing homes with staffing issues
“The plaintiffs’ bar would argue – and a lot of times it was based upon fiction – that nursing homes were understaffed and that understaffing led to problems. Unfortunately, now they have some data in terms of real-world data that can support their claims and the model they’ve been using for years. The staffing dilemma, which is front and center … they can establish it through so many different data points right now.”
— McKnight’s Long-Term Care News, March 29, 2023
The Impact of the Public Health Emergency on Skilled Nursing Facilities
Despite all efforts of providers across the nation, there have been substantial closures of skilled nursing facilities. According to an article written by AHCA/NCAL in April 2022, there had already been 327 nursing home closures throughout the pandemic with another 400 anticipated to close in 2022. This has resulted in the displacement of thousands of residents and also reduces the number of beds available to acute care facilities looking to free up much needed beds for those critically ill.
— Provider Magazine, February 21, 2023
Ask the payment expert …. about the total nurse staffing measure
The Total Nursing Hours Per Resident Day Measure uses auditable electronic data reported to the Payroll-Based Journal system to calculate total nursing hours per resident day. It is one of two new measures that will begin affecting payments in the FY 2026 SNF VBP program year… One bit of good news is that this measure is calculated using information that you already submit for the Five-Star Quality Rating System. It will not impose any new data collection or submission burdens.
— McKnight’s Long-Term Care News, November 11, 2022
