The siren song of the elderly: Florida’s nursing homes and the dark side of Chapter 400
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I. INTRODUCTION Nursing homes perform a vital function in the long-term care continuum by providing nursing care around the clock to the elderly and disabled,(1) By entrusting these institutions with society’s frailest members, the general population relies on government agencies and their regulations to ensure that the elderly receive quality care.(2) States expect quality care, but providers often lack the financial support and regulatory guidance. Recently, the conflict between reimbursement and quality care received national attention.(3) Vencor, the U.S.’s second largest nursing home chain, attempted to terminate its Medicaid contracts and evict all its Medicaid residents.(4) Executives explained that the contract terminations and resident evictions were strategies to make room for higher paying private pay residents.(5) Faced with state, and potentially federal, fines,(6) as well as a district court injunction and public outrage over the patient dumping, the company quickly abandoned its policy and apologized.(7) The attempted resident evictions quickly prompted new legislation less than a year later, which forbids facilities from evicting Medicaid patients based solely on payment status. Although the strategy resulted in a public relations disaster, the company claims that the real “bad guy” is the government because what the government pays “is not adequate to cover the cost for what [the company] believe[s] is the proper care for a patient.”(8) This statement reflects providers’ frustration with current government payment levels and expected standards of care throughout the nation. The tensions between government standards, agency oversight and state reimbursement exposes the industry to private litigation. When agency oversight and enforcement of government standards proves ineffective or inefficient, society turns to the legal system for a remedy,(9) but unrestrained private litigation is easily abused against nursing home providers. Although punitive damages are certainly warranted in cases of egregious abuse and neglect, excessive and frivolous residents’ rights suits driven by plaintiffs’ attorneys can bankrupt providers already struggling to operate on inadequate Medicaid reimbursement.(10) Suspending the discussion of Medicaid reimbursement, both legislative reform and strong state agency action are necessary to reform this vital industry and to save it from potentially devastating litigation. The industry needs efficient and consistent regulatory oversight and application, while being afforded some limits to currently unlimited legal liability. More : accessmylibrary.com |