Increased Nursing Home Scrutiny on the Horizon

Maraleen D. Shields      Oct. 7, 2016

As a nation, we are getting older and Pennsylvania is older than most states. Pennsylvania is the fourth oldest state, with 2.2 million citizens 65 or older. By 2030, the number of Pennsylvanians 60 and older is expected to be 4 million. According to the Pennsylvania Health Care Association, Pennsylvania has approximately 700 nursing homes and the annual costs to live in a nursing facility range from $69,500 to $135,000. Like it or not, you or a loved one will likely require some form of long-term care service lifetime and for many people that means admission to a nursing facility.

A recent, multi-part PennLive expose Failing the Frail drew considerable, negative attention to Pennsylvania nursing facilities. PennLive’s investigation revealed that, “dozens of Pennsylvanians have died in nursing homes due to errors or negligence, that the state didn’t penalize homes in the majority of cases, and that state inspectors may be failing to properly investigate serious allegations of negligence.”

The response has been swift. Several state officials, including Senator Bob Casey, have called for the Centers for Medicare and Medicaid Services to investigate how the Pennsylvania Department of Health (DOH) has been handling nursing home incidents and complaints. As the DOH has faced increased scrutiny, penalties for substandard nursing facilities have begun to rise. Most recently, Health Secretary Karen Murphy announced recommendations from the Nursing Home Quality Improvement Task Force created to review how the DOH monitors and ensures the quality of the 700 plus nursing homes in its charge. One change, which has already been implemented is that nursing homes must now display the DOH’s “Speak up. We’re listening” posters complete with a DOH hotline to call if anyone has concerns about nursing home conditions. The nursing home industry should brace for more regulation and legislation in the coming months and years. It has been nearly 20 years since the last significant changes to Pennsylvania’s nursing home regulations.

Increased scrutiny of nursing homes may increase interest in the underutilized Program of All-Inclusive Care for the Elderly (PACE). This program allows elderly individuals to remain in their home longer while providing necessary comprehensive healthcare and supportive services. According to a recent New York Times article Private Equity Pursues Profits in Keeping in Elderly at Home, only 40,000 people are enrolled in PACE as of January, 2016.  It is estimated that the program “promises to save Medicare and Medicaid millions of dollars by keeping people out of nursing homes.”

Increased scrutiny will also draw the attention of law firms specializing in nursing home abuse and neglect cases. There may not be a claim for loss of earnings or lost earning capacity and the patient may not have long life expectancy; nevertheless, nursing home abuse and neglect cases tend to have high exposure and can result in multi-million dollar verdicts. It is easy to understand why. Almost all of us are touched by long-term care services. We all have parents, grandparents, cousins, uncles, etc. who have resided in nursing facilities. We can imagine that one day we too may live in a nursing home. Accordingly, any neglect to abuse is particularly abhorrent and likely to be punished with a large, punitive verdict. It bears reminding that nursing homes have used arbitration agreements to guide lawsuits to mandatory arbitration or ensure the confidentiality of information produced in discovery, but nursing facilities may not be able to rely on these agreements in the future.

Consult experienced healthcare counsel to help navigate your nursing care facility through the licensure and survey process and prevent and manage risk. The Attorneys at Fitzpatrick Lentz & Bubba have experience advising nursing homes and other healthcare providers on a broad range of healthcare matters.


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