By Mark Martyn, LL.M. Candidate
In 2001, there were 91,987 residents living in 1,223 nursing homes in Texas. These numbers include Nursing Facilities and Skilled Nursing Facilities (hospital based facilities).1 Nationally, almost 2 million Americans live in nearly 20,000 nursing homes at an annual cost of $53 billion. By 2030, five million Americans are expected to require nursing home care at a cost of $700 billion or more each year.2 The baby boomers are going to significantly impact the nursing home industry. As the baby boomers grow older, their needs change. Among these needs is the level of medical care that will be required. Changing medical needs are often the deciding factor when considering nursing homes. Many elderly people move into nursing homes because of medical needs that can no longer be addressed at home. A nursing home may not be a desired option, but instead a necessary one. Often residents are placed in nursing homes by their adult children, who feel that their parents' health is too frail and that they require more intense medical attention and specialization.3
The population growth which is forecast for the elderly population means that the number of physicians needed to care for the elderly will double or triple.4 Physicians' growing reluctantance to enter the field of geriatrics might hamper future care and create dangerous situations. Nursing home residents are one of the most vulnerable segments of our population due to their age, mental ability, financial status, and medical conditions,5 and they had little to no recourse when they have been injured.
Currently, the track records for nursing facilities are not promising even though the industry is highly regulated. In Texas, the applicable law come from four sources: (1) federal law; (2) regulations promulgated by the Centers for Medicare and Medicaid Sercices, formerly the Health Care Financing Administration of the Department of Health and Human Services; (3) Texas statutory law; and (4) state rules and regulations promulgated by the Texas Department of Health and the Texas Department of Human Services.6
In the past, an aggrieved patient might have pursued litigation for recourse. Governmental agencies rarely ventured into this area to assess monetary penalties. Today, failure to comply with governmental regulations regarding nursing home care may result in stiff penalties for the facility, such as fines or exclusion from participation in the Medicaid or Medicare Programs. In 2001, the Texas Department of Human Services imposed 454 administrative penalties, which resulted in a collection of $3,747,912.62 in fines, compared to the year 2000 when 616 complaints resulted in administrative penalties of $1,267,628.97. The Office of the Attorney General increased its penalties and imposed civil money penalties to $2,333,143.00, compared to the year 2000 when it imposed penalties of $1,329,699.67.7 At one time, litigation appeared to be the only remedy for the abused patient; however, statistical evidence indicates that the increase in penalties has coincided with a decrease in complaints. 8 The question is whether nursing home facilities will be able to meet the needs of individuals in a safe and secure manner through regulations and governmental action, or is there still a real need for aggressive litigation with high punitive damages.
1 Texas Department of Human Services. Fiscal Year 2001. CTCR Annual Report.
3 Theresammarie Mantese & Gerard Mantese, Nursing Homes and the Care of the Elderly, 51 J. Mo. B. 155, 156 (May/June 1995).
Theresammarie Mantese & Gerard Mantese, Nursing Homes and the Care
of the Elderly, 51 J.
Mo. B. 155, 156 (May/June 1995).
6 39S Tex. L. Rev. / South Texas Law Review December, 1997. Dealing with nursing home neglect: The Need for Private Litigation, David F. Braggs.
7 Texas Department of Human Services. Fiscal Year 2001. CTCR Annual Report.