State lawmakers in Texas haven’t given up the fight to hold accountable nursing homes that provide substandard care. It will be the second time state lawmakers are making the effort, after a failed bid two years ago.
The push involves three bills that would make it more difficult for nursing homes and other long-term care facilities, such as assisted living facilities and home community service agencies, to cower from regulatory discipline and litigation when wrongdoing has been uncovered.
One measure involves imposing higher fines on facilities where inspectors have discovered serious violations that breach the care and safety of residents. Another measure would do away with the so-called “right to correct,” a legal loophole that gives many nursing homes an out in avoiding disciplinary action if administrators “correct” the violation after it’s discovered upon inspection. The final measure would require nursing home facilities to carry at least $1 million in liability insurance, which would make it easier for victims and loved ones to recover damages in the event the facility is found liable of nursing home abuse, neglect or negligence.
In Florida, the last time we had any kind of major nursing home reform was back in 2001, when state legislators amended the state’s nursing home statute to address a number of controversial issues pertaining to care. Among the changes:
- Claims are maintained regardless of whether death resulted from deprivation of residents’ rights. Before, a personal representative of a deceased nursing home resident could bring a claim alleging deprivation of resident’s rights if the deprivation caused the resident’s death. So if there was a violation of a resident’s rights, but that resident later died of unrelated causes, the lawsuit could not continue, prior to reforms.
- Damage in nursing home abuse claims are not limited to wrongful death, but may include compensation for a decedent’s pain and suffering.
- Medical malpractice statute doesn’t apply to Chapter 400 claims. Previously, the medical component associated with nursing home cases meant there were always court disputes over whether plaintiffs had to comply with all the pre-suit requirements of medical malpractice claims. It was a gray area because nursing homes offer a mix of medical care/services and custodial care. The reforms stipulated that causes of actions stemming from violation of a nursing home residents’ rights are not claims for medical malpractice.
These changes were to the benefit of nursing home residents and their families seeking justice on their behalf. But given that nursing home abuse continues to be a serious and pervasive problem in Florida, it’s one that we should continue to examine, the way Texas lawmakers are.
Unsurprisingly, proponents of the measure have encountered fierce opposition from health care groups and nursing home industry representatives, who insist the reforms are both burdensome and not necessary. One said that while the industry continues to struggle with poor staffing, he passed the buck to state and federal governments for a lack of proper funding through Medicare and Medicaid, as needed to provide optimal staffing levels.
However, groups like the AARP are focused on accountability for those facilities that fall short of baseline standards in keeping elderly and vulnerable residents safe.
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Additional Resources:
Lawmakers renew effort to crack down on bad nursing homes, Feb. 22, 2017, By Brian M. Rosenthal, The Houston Chronicle
More Blog Entries:
Special Report: Sexual Abuse of Nursing Home Residents Rampant, March 1, 2017, Orlando Nursing Home Abuse Lawyer Blog