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Board Upholds Measured-Mile Methodology to Calculate Disruption

Client Alert | 1 min read | 08.24.22

In Lockheed Martin Aeronautics Company, ASBCA No. 62209 (a C&M case), the Armed Services Board of Contract Appeals (“Board”) denied the Air Force’s motion for summary judgment, which had argued that the “measured mile” approach to calculating disruption was legally untenable.  In its decision, the Board noted that it has “accepted the measured mile approach as an appropriate method of determining impact to productivity” referencing extended discussion in King Aerospace, Inc., ASBCA No. 60933, 19- 1 BCA ¶ 37,316.  The Board also granted Lockheed Martin’s cross-motion for summary judgment on the issue of release, holding that the express language of modifications signed by the parties indicated that Lockheed Martin did not release any portion of its claim.  The recent decisions follow on the heels of two other Board decisions.  In April 2022, the Board granted Lockheed Martin’s cross-motion for summary judgment on the Air Force’s statute of limitations defense because Lockheed Martin’s claim did not accrue before the events that fixed the government’s liability occurred (discussed here).  In June 2021, in a case of first impression, the Board granted Lockheed Martin’s motion for summary judgment on the Air Force’s affirmative defense of laches, holding that laches is no longer applicable in CDA cases at the Board (discussed here).

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Client Alert | 5 min read | 05.16.24

CMS Finalizes Contested Rule on Nursing Home Staffing and Facility Assessments

On May 10, 2024, the Centers for Medicare & Medicaid Services (“CMS”) published a Final Rule that, for the first time, imposes national minimum nurse staffing requirements for nursing homes. Specifically, the standard adopted by CMS requires minimum staffing of 3.48 hours per resident day (“HPRD”), as discussed in more detail below. CMS estimates that the new requirements will cost facilities $43 billion over the next 10 years, which is more than the $40.6 billion cost that CMS estimated for Proposed Rule of 3.0 HPRD. Some industry sources estimate that less than 25% of nursing facilities across the country currently meet the full scope of staffing standards laid out in CMS’ Final Rule due to a myriad of factors including labor shortages and increasing wage pressures. Indeed, the impact and cost of these staffing requirements will vary significantly by state. For example, CMS reported that at least one state will need to increase certain staff by nearly 96% to meet the minimum standards, while other states already meet the requirements....

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