Bush Midnight Regulation Hinders Nursing Home Abuse Litigation

Camryn Hansen

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Among the midnight regulations the Bush administration enacted swiftly and secretively last fall before its power ran out was a rule which is now greatly impeding the flow of information in cases involving nursing home abuse and neglect.

The rule, which designates Medicare/Medicaid contractors and state inspectors as federal employees, restricts the conditions under which these individuals may testify for either plaintiffs or defendants in private litigation. Now, the head of the Department of Health and Human Services must approve any and all involvement of state health departments and contractors in private lawsuits concerning any facility receiving federal assistance.

On a practical level, this means that once-routine requests for information, including inspection reports and depositions, are now being interminably delayed as federal and state officials bicker over what’s what.

"This change hurts nursing-home residents and their families by allowing bad practices to be kept in secret by nursing homes and inspectors," said Eric M. Carlson, an attorney with the National Senior Citizens Law Center in Los Angeles. "Government inspectors have the right to go into nursing homes and investigate, and they learn things that residents and families otherwise could never find out."

Requests for these employees to participate in private cases "divert employees from their federal survey, certification and enforcement responsibilities," the Bush administration said in a supporting document. "The cumulative effect of these requests can impede these activities." -Cindy Skrzycki, The Washington Post

Hopefully, the Obama administration will soon see the foolhardiness in the Bush analysis, and fashion a compromise, if not a complete reversal of the policy, which will allow cases of nursing home abuse to proceed in a reasonable manner.