Texas Nursing Homes

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The 1995 regulations also changed the format and scope of the survey process.(44) The surveyors mark down all violations on a grid.(45) Once plotted, the location of the violation on the grid determines the severity of the punishment.(46) The 1995 regulations broadened the scope of surveys, as surveyors may now consider residents'' quality of life.(47) "A resident''s happiness with staff treatment, or level of privacy, is now mixed with the old standards."(48) Facilities may no longer hide behind numerical standards. For example, a surveyor can still cite an adequately staffed facility "if [the] residents complain of inattention."(49)

A. FEDERAL NURSING HOME LEGISLATION--NURSING HOME REFORM ACT OF 1987Nursing homes receiving federal funds through Medicare and Medicaid must comply with federal laws requiring nursing homes to provide high quality care to residents.(20) Responding to the widespread nursing home abuse in the mid-to-late 1970s,(21) Congress enacted the Nursing Home Reform Act (NHRA) to reform the nursing home industry.(22) Included in the Omnibus Budget Reconciliation Act of 1987, this legislation specifies that nursing homes seeking reimbursement from Medicare and Medicaid must "care for residents in such a manner and in such an environment as will promote maintenance or enhancement of the quality of life of each resident"(23) and "attain or maintain the highest practicable physical, mental and psychosocial well-being of each resident in accordance with a written plan of care...."(24) Promulgated under NHRA, the "Requirements for Long Term Care Facilities"(25) regulation governs the operations of nursing homes with Medicaid patients and mandates residents'' rights and facility duties.(26)

B. NURSING HOME SURVEYSUnder the current statutory system, the Health Care Financing Administration (HCFA) contracts with state agencies to inspect nursing homes for compliance.(27) Federal officials then randomly reinspect at least five percent of the homes to verify the state surveys.(28) NHRA produced dramatic effects.(29) By 1996, the regulations had cut the use of physical restraints on nursing home residents in half; incidences of dehydration also decreased by fifty percent.(30) Despite these promising results, subsequent reports found many disturbing conditions.(31) Approximately forty percent of all HCFA-certified facilities repeatedly violated federal standards over the past four surveys, including critical aspects of patient care.(32) "[A] quarter of the nation''s nursing homes failed even to assess each patient''s needs or develop individual care plans"(33) and, at the time, "government data show[ed] more than 2/3 of [the nation''s] nursing homes d[id] not fully comply with federal standards."(34) Explanations for the survey results ranged from the "federal inspection guidelines were less than rigorous and enforcement had little teeth ... [because] ... the only fines were minimal("35) claims that the inspection process was too subjective. The primary federal remedy, to deny payment for new admissions after three months of noncompliance,(36) apparently did not suffice to reform the quality of nursing home care.(37)

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