"Nursing Home Watchdogs Muted by Bush Regulation"
By Cindy Skrzycki
Feb. 24, 2009
The Bush administration shut off a
source of information last fall about abuse and neglect in long–
term care facilities that people suing nursing homes consider
crucial to their cases.
The change that affects the $144 billion nursing–home
industry occurred with no public notice or attention, perhaps
because of the array of last–minute rules that President George
W. Bush’s appointees rushed out before leaving Washington last
"This is pretty stunning," said Mark Kosieradzki, a
plaintiff attorney in Plymouth, Minnesota. "Nobody was told. It
was just done."
The rule designates state inspectors and Medicare and
Medicaid contractors as federal employees, a group usually
shielded from providing evidence for either side in private
The restrictions affect about 16,000 nursing facilities in
the U.S. and 3 million residents. The practical effect is to
force litigants to go to greater lengths, including seeking
court orders, to get inspection reports or depositions for cases
they are pursuing or defending.
"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."
More than 90 percent of U.S. nursing homes in each of the
previous three years were cited for violating federal standards,
according to a report in September by the inspector general of
the U.S. Health and Human Services Department.
The new rule was issued in September by the department. It
generally prohibits state health departments and contractors
that do auditing and other services for the government from
participating in private lawsuits involving facilities that are
in the federal assistance program without approval by the head
The rule was justified as being necessary to accommodate
the hiring of new contractors to make Medicare payments to
providers, perform audit and fraud reviews, and do survey,
certification and enforcement work for the program.
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."
"This regulation update was in the works for a very long
time," said department spokesman Bill Hall, in an e–mail.
Even before the HHS rule was issued, the Centers for
Medicare & Medicaid Services, which administers the program,
issued a directive on Jan. 12, 2007, telling states not to
disclose "surveyor notes, worksheets, internal working papers,
and other informal survey memoranda" they generated for the
States were told to direct requests for the documents to
their federal regional officer. Legal requests for records,
including subpoenas and state court orders, also should be sent
to supervisors, according to the memo.
"There was concern there was a discrepancy among state
agencies in what they were releasing and what they should be
releasing. We laid it out in detail," said Angela Brice–Smith,
deputy director of the survey and certification group for the
The agency said there are about 6,800 state inspectors who
would be on the front line investigating complaints and
surveying facilities for compliance with federal and state
Lawyers want the evidence these people collect, which might
include interviews with facility employees and witnesses in
cases of neglect and abuse.
The effect of the directives has started to play out in the
nation’s courtrooms. Requests for information, once fairly
routine, now are stalled between state and federal officials.
"I’ve never run across anything like this before," said
Anne Marie Regan, an attorney with the Kentucky Equal Justice
Center in Louisville, a non–profit poverty legal advocacy and
Regan said the change has slowed a case she is pursuing on
behalf of an 85–year–old man who was evicted from a nursing home
in 2007. When she subpoenaed records and sought depositions from
employees of the Kentucky agency that regulates nursing homes,
the Health and Human Services office in Atlanta told the state
to "please advise those employees that approval to comply with
the subpoenas is denied and that it would be inappropriate for
them to appear."
State officials were told they had no authority to release
federal records, but a judge refused to allow the state to
withhold the records or prevent the depositions.
"We will go back to state court and, presumably, the judge
will tell them to comply with the discovery orders," Regan
said. "All we really want to do is enforce their rights and
protect these people," Regan said.
A nursing home lobbying group said the rule wasn’t among
its legislative goals.
"We didn’t ask them to impose this regulation to keep the
plaintiffs from getting this information," said Priscilla
Shoemaker, legal counsel for the American Health Care
Association in Washington. Kindred Healthcare Inc., based in
Louisville, and Fort Smith, Arkansas–based Golden Living are
among the association’s 10,000 members.
‘The Same Boat’
Shoemaker said nursing homes "are in the same boat"
because they also have difficulty getting information on how
state inspectors determine penalties, citations, and orders to
shut down homes.
Lawyers on both sides are considering how to approach the
Obama administration to get rid of the rule.
"This is big deal, and we have mobilized a group of
attorneys around the country," said Kosieradzki. "The truth
will liberate you."