With little notice and without a public comment period, a Bush administration change in federal rules on nursing home inspections will have the practical effect of forcing litigants to go to greater lengths, including seeking court orders, to get inspection reports or depositions for cases they are pursuing or defending.
The new rule generally prohibits state health departments and contractors from participating in private lawsuits involving facilities that are in the federal assistance program. The rule accomplishes this by reclassifying state employees who inspect nursing homes for the federal government as federal employees who are not allowed to provide “privileged” information or documents to the public without approval from the head of the Centers for Medicare and Medicaid Services.
Issued in September of 2008 and effective in October, the Bush administration’s new rule shuts off a source of information last fall about abuse and neglect in long- term care facilities. It puts a lot of information related to nursing-home inspections off-limits. This information is often crucial to these types of cases. In many instances of nursing home neglect and abuse there are no witnesses able to testify about what happened. The nursing home resident may suffer from dementia, no family member or friend may be present, and nursing home personnel may be afraid for their jobs if they tell the truth about what happened. In many cases, it was learned what happened only by reviewing follow-up reports from state inspectors — documents that under the new rules can’t be released without specific approval.
Being able to get detailed survey reports is important not only for lawyers, but also for family members, potential residents or policy makers — anyone who wants direct knowledge of how well nursing homes are doing their jobs. The information is of great public interest to anyone who has a relative in long-term care or anyone who is contemplating having a relative in long-term care.
Officials of the Department of Health and Human Services justify the new rule by saying that employees have been too burdened by requests for information. But it appears that anything consumer friendly was considered a burden by the Bush administration almost regardless of the context. The head of the Consumer Product Safety Commission attempted to thwart Congress’ attempt to regulate consumer products, including childrens’ toys. When Congress did strengthen the Consumer Product Safety Act of 1972 to prohibit the sale and distribution of children’s toy or child care articles containing excessive levels of toxic substances, the Bush administration went to court to attempt to weaken enforcement of the law.
The lawyers at Levine & Slavit have decades of experience handling personal injury claims including those involving neglect or abuse at nursing homes. These cases can involve the deprivation of the nursing home residents civil rights, enabling recovery of attorneys fees and possibly punitive damages pursuant to Article 28 of the Public Health Law.
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