Nursing Home Understaffing and Liability

OBRA 87 Staffing Requirements and the 2024 CMS Final Rule

OBRA 87 requires nursing homes to have sufficient nursing staff to meet each resident's care needs — a standard that is qualitative rather than quantitative. For decades, the absence of a minimum staffing number made it difficult to prove understaffing as a regulatory violation. In April 2024, CMS issued a landmark final rule establishing minimum staffing standards: 3.48 total nurse staffing hours per resident day (HPRD), including at least 0.55 RN HPRD and 2.45 CNA HPRD. Facilities in rural areas and those demonstrating unavoidable workforce shortages may seek hardship exemptions. Payroll-based journal (PBJ) staffing data, which CMS collects quarterly from all certified nursing homes and publishes in the CMS Care Compare database, provides a facility's actual staffing levels for every day — making it possible to identify specific shifts when the facility was dangerously understaffed.

Using PBJ Data in Litigation

Payroll-based journal staffing data is among the most powerful evidence available in nursing home neglect litigation. Unlike nursing notes that can be backdated, corrected, or destroyed, PBJ data is submitted directly to CMS and retained in the federal database. An attorney who subpoenas the facility's PBJ data for the 6-12 months preceding the resident's injury can establish the staffing level on the specific unit, shift, and date when the harm occurred. If PBJ data shows the facility chronically operated below the recommended or mandated staffing threshold — particularly on the unit and overnight shift when the pressure ulcer developed, the fall occurred, or the medication error was made — it provides compelling evidence that the harm was the predictable and preventable consequence of management's deliberate staffing decisions.

Corporate Liability for Systemic Understaffing

Many nursing home facilities are owned by large corporate chains that set staffing budgets at the corporate level — budgets that drive facility-level decisions to operate with fewer nurses and CNAs than resident acuity requires. When internal corporate communications, financial analyses, or budget documents show that the parent company was aware that its staffing levels were insufficient to provide safe care and chose not to fund adequate staffing, these documents support claims against the parent company — often with deeper pockets than the individual facility — for corporate negligence or alter ego liability. Obtaining these corporate-level documents requires aggressive discovery strategy and knowledge of the corporate structure of major nursing home chains.