Nursing Home Litigation and the Special Focus Facility: A Primer for Consumers
Nursing Homes are responsible to protect our most vulnerable citizens, though a dangerous cadre of under-staffed and highly profitable homes place the lives of these residents at risk every day. Understanding the Special Focus designation and consumers' rights can arm people against these dangers.
OBRA and CMS CompareIn 1987, after decades of needless suffering and death, President Reagan initiated sweeping reforms for the nursing home industry. These were codified into a set of Federal Regulations, titled the Omnibus Budget Reconciliation Act of 1987 - otherwise known as OBRA. These regulations oversee operations at every nursing home in the country that accepts Medicare dollars - which essentially comprises just about all nursing homes. Through a complex system of surveys, inspections and "plans of correction," nursing homes regularly receive detailed report cards on their performance and, most importantly, the safety of their residents.
Many folks turn to the popular website, "CMS Compare" to investigate the safety and performance of nursing homes. This is a FAIR start, but tells little of the full story. In truth, each citation that forms the statistics on the CMS Compare site is actually an extraordinarily detailed document - that IS available to consumers and is usually free. Through what is known as an Open Public Records Request through one's home state, consumers can request these detailed dossiers on any home they are interested in. These records are far more illuminating than the raw statistics on the CMS site and paint a much clearer picture of the truth on the ground in facilities.
What is a "Special Focus Facility" and why should I care?Whether one is researching homes or has a loved one already in a home, this is an extraordinarily important topic - one that is little known among consumers...and even some attorneys.
Recognizing the fact that all too many nursing home corporations place the value of profits over the welfare of their residents, the Federal government has designated the worst of the worst homes and taken the role of doing their best to right their course.
Now available to consumers is a listing of the very worst nursing homes in the country - and the list is not small. As can be seen from the link below, the List includes new additions, facilities that are on the SFF list but have not improved, those that have improved but are still poor enough to remain on the list, those that have graduated from the SFF program - and those that are so poor they are legally prohibited from accepting Medicare or Medicaid patients.
Who should one contact if poor care or abuse is discovered in a Nursing Home?In the event that neglect or abuse is discovered, it is essential to contact the appropriate authorities.
All states have an office of the "Ombudsman." This is generally a liaison between the government and consumers. Although they have the ability to respond to complaints and perform inspections, most Ombudsman offices do NOT have the authority to issue citations. As a result, these inspections often leave consumers very frustrated. To be fair, it is not the fault of the hard-working inspectors in those offices, but instead it is simply a consequence of the system in which they operate.
On the other hand, all states have a Department of Health - each with slightly different department names. These offices DO have the authority to both inspect and issue citations.
In my practice, I always advise my clients to bypass the Ombudsman's Office and go straight to the Department of Health. Their work can not only uncover the truth regarding a specific incident, but the issuance of a citation compels the nursing home to come up with a safety plan - to ensure that this particular danger, abuse and problem do not replicate themselves. This is known as a "Plan of Correction," and can serve as an excellent instrument of change.
What are the Rights of Nursing Home Residents Who Suffer from Abuse or Neglect?Though the law does vary widely from state to state, nursing home residents who suffer harm as a consequence of abuse or neglect DO have the right to file claims in our civil courts for damages related to these harms. This right is in ADDITION to the complaint procedures with governmental authorities and also can serve to not only right a wrong for one person, but additionally effectuate change on a larger scale.