Nursing home safety enforcement may be considered

In response to the most serious health and safety violations at state-licensed nursing homes in Texas, the Legislature may consider enacting a “three-strikes” requirement discussed in a recent report by the Sunset Advisory Commission. The proposed rule would lead to revocation of state licenses of nursing homes determined to have had three or more health and safety violations of the highest severity level within a two-year period. Proponents of the three-strikes proposal say it is needed to penalize negligent nursing homes, while opponents say it would be overly punitive. The Sunset commission is scheduled to finalize its recommendations to the Legislature on January 14.

According to a Sunset Advisory Commission review of the Department of Aging and Disability Services (DADS), the agency issues few sanctions against nursing homes for violations of health and safety, some of which are serious and repeated. In fiscal 2013, 378 state nursing home violations were assigned the highest level of severity, in which residents are considered to be in immediate jeopardy of serious harm or death. No licenses were revoked during that year.

The three-strikes rule, proposed by Sen. Charles Schwertner during an August hearing of the Sunset Advisory Commission, would require DADS to revoke the state-issued license of a nursing home that accumulated three violations or deficiencies of the highest severity level during a 24-month period. Each violation would be required to have occurred on a separate day. Debate about the proposed requirement has centered on whether additional regulation of the nursing home industry is necessary to ensure seniors in Texas are receiving high-quality care.

Supporters of the proposed three-strikes requirement say that it would protect seniors, a particularly vulnerable population. Although most of the state’s nursing homes deliver good care, supporters say, little is being done to penalize negligent facilities. The proposed requirement appropriately would force the state to address substandard care and take timely action, rather than waiting for the federal government to intervene.

Supporters also say the three-strikes requirement would target only the worst facilities, those that are not fulfilling their charge of protecting the state’s elderly. It would not cause issues for high-quality providers because the penalty would apply only to repeat offenders, they say. The state’s nursing homes have little incentive under the current regulatory structure to make improvements, according to supporters, and penalties assigned are assessed too infrequently to spur major change in nursing home operations.

Opponents of the proposed three-strikes requirement say that nursing homes are one of the most heavily regulated sectors of the health care industry and additional layers of regulation are not necessary. DADS already has authority to oversee nursing facilities and to take enforcement actions against them, opponents say.

Nursing home staff and administrators, who are not in the business for the money, want to provide good care to residents, and the three-strikes requirement would be unnecessarily punitive, opponents say. Subjective inspections under the three-strikes requirement could result in the closure of good nursing homes if their licenses are revoked. Nursing home closures can also be disruptive and difficult for residents, opponents say, some of whom may have no other options for care.

by Mary Beth Schaefer

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