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Carole Herman Headshot

Suing Nursing Homes

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In 1987, President Ronald Reagan signed into law the Omnibus Budget Reconciliation Act (OBRA), the first major version of the Federal standards for nursing home care since the 1965 creation of both Medicare and Medicaid (MediCal in California). Care facilities wanting Medicare and Medicaid funding were to provide services so that each nursing home patient could attain and maintain the highest physical, mental and psycho-social wellbeing. However, 25 years later, poor care and neglect are still too common an occurrence in the approximately 16,000 nursing homes in the United States.

Why is this poor care and abuse still occurring? There are many reasons why and at the top of the list is the fact that state agencies responsible for overseeing nursing home care often fail to make sure problems in the facilities are corrected. A huge qualifier is the lack of staffing. If a facility is insufficiently staffed, as most are, odds are that care is not being provided and patients are suffering because of it. The majority of the hands-on care in nursing homes is provided by the Certified Nursing Assistants (CNAs). A CNA who has 15 or more patients to care for during a shift cannot possibly give the proper care and attention that the patient requires. Yet, the regulators are not slapping the hands of the operators for not providing sufficient staff to meet the needs of the patients. And who is the one responsible for the lack of staff? It is the operator who cuts the high-costs of staffing in order to obtain bottom-line profits.

Back in 2007, because of California's failure to regulate nursing home staffing requirements, FATE brought a lawsuit to force the California Department of Public Health to set regulations establishing minimum staff-to-patient ratios as required by state law. The staffing ratios law in California was to become effective in 2003; however, as of the first of November 2006, the policy had never been carried out by the Deputy Director of the department. FATE had to file the suit to force the State to implement the law that the State Legislature passed. Insufficient staffing is not an isolated California problem, but an ongoing national problem causing most of the poor care and neglect in the nation's nursing homes.

In September of 2006, a study was conducted by Consumer Reports suggesting that nursing homes are much better today than they were in 1987. The Consumer Report investigation also found that the state agencies responsible for overseeing nursing home care often failed to correct problems. The Report also stated that deficiencies written by state inspectors increased since 2003; however, inspectors appear to be watering them down. The monies that the industry receives from our tax dollars continues to climb, the operator's bottom line profits continue to grow, investors' return on their financial investment continues to rise, fraud of the MediCare and MediCaid systems is ongoing, millions of political contributions from the nursing home industry continue to line the pockets of politicians and, most importantly, the poor care and neglect of our loved ones continues to be on the rise with little to no government intervention of an industry that derives the majority of its wealth from our tax dollars.

The lack of government enforcement is also a reason why many families turn to elder abuse attorneys to file civil law suits against the industry for the horrific deaths of their loved ones. Before California passed the Elder Abuse law, attorneys were reluctant to file law suits. But since the passage of the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA) in California, nursing homes are being held accountable because of the lawsuits not because of interventions of the government regulators. FATE's work over the years clearly shows the lack of government enforcement of this industry that is handsomely paid by our tax dollars to care for our most vulnerable citizens. The nursing home industry has put profits ahead of care for years and continues to get away with it unless civil action is taken against them to hold them accountable.

Anyone of us who may have the unfortunate task of placing a loved one in a nursing home needs to know that the probability of poor care and neglect is alive and well in these facilities. Be vigilant: Go often to see the patient (under the federal law, there are no visiting hours for family members); go often at any time day or night; ask questions; check their bodies to ensure there are no bedsores forming; make sure they are getting sufficient liquids to prevent dehydration; listen to what the patient is telling you and don't let the facility staff dismiss the patient's complaints.

Since it appears to be "business as usual" in nursing homes and with the lack of oversight by the regulators perhaps it's time to close down all nursing homes and start all over again with a different plan. Perhaps the billions of dollars the government gives to nursing homes should be given to each of us who wish to remain in our homes and be cared for by people of our choice.