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How Nursing Homes Are Able to Hide Their Worst Abuses Against the Elderly

An easy loophole is enabling nursing homes to hide their worst cases of abuse, neglect, and healthcare code violations. Government inspections, also called surveys, are the primary tool to ensure that nursing homes are providing a proper, safe environment for residents. Sadly, even when inspectors find and report flagrantly dangerous or abusive incidents, they can be hidden from the public by an appeal process that seems designed to protect the business interests of nursing homes over the health and safety of the elderly.

“If a nursing home loses its appeal, the infraction and the punishment should be public knowledge. Anything else is unacceptable,” said Leah Barron, a founding partner at Brown & Barron, a Baltimore law firm specializing in nursing home abuse and neglect cases.

The U.S. taxpayer picks up the tab for about 60% of all nursing home costs nationally through the Centers for Medicare and Medicaid Services (CMS). To receive those benefits, all nursing homes must meet CMS regulatory standards and submit to government inspections. CMS has the power to levy fines and revoke licenses, but it also has another powerful incentive: its powerful Five-Star Quality Rating system.

The Nursing Home Compare website, run by CMS, uses a 5-star rating system (5 being the best) to measure the quality of nursing homes that receive funding. The star rating system is largely driven by data that CMS gets from inspections. Despite heavy criticism for its ratings methodology, the 5-Star Rating System is massively influential. Getting a 4- or 5-star ranking is important to consumers and has a distinct impact on the profitability of nursing homes. Nursing homes have a couple of legal options to challenge citations that can impact that rating, which, at worst, can keep the accusations secret for perhaps years. Even if they do not win their appeals, the infractions often stay secret, and CMS frequently fails to calculate violations from failed appeals into their rankings, according to an investigation by the New York Times.

When nursing homes get an inspection citation, they can appeal it in what is called in an informal dispute resolution process, a process which varies from state to state. According to the New York Times research, some states use a panel of former nursing home executives, and some states do not permit patients or family members to attend hearings.

If the nursing home loses its appeal in the informal dispute resolution, it can appeal the decision to special federal court within executive branch, another process that operates in total secrecy.The New York Times found that some of the most egregious, verified abuses found by inspectors, simply disappear in the secretive process.

It’s worse when you consider that these appeals are for the rare times that inspectors report severe citations. State surveys and inspectors in many states have developed a reputation for being too easy on poorly performing nursing homes by not reporting infractions and trusting facilities to provide their own data. For example, the New York Times found that “At 40 other five-star homes, inspectors determined that sexual abuse did not constitute actual harm or put residents in immediate jeopardy.” In another example, the Office of the Inspector General found that “Florida did not ensure that nursing facilities always reported potential abuse or neglect of Medicaid beneficiaries transferred from nursing facilities to hospital emergency departments.” There are numerous 5-star nursing homes with verified horrific offenses, some with violations as serious as rape.

No one is arguing that nursing homes should be denied a process to challenge erroneous findings from inspections, but the current inspection and appeal mechanism seems to be more focused on protecting dangerous nursing homes from the bad publicity of endangering vulnerable residents and the impact that could have on their businesses.

“If a nursing home goes out of business because consumers find out the facility has a bad track record, that’s a good thing in my book,” said Brian Brown, a founding partner at Brown & Barron. “Our job as a society is to protect the sick and elderly, not to protect the profits of the bad business owner who endangers the lives of the most vulnerable members of society, at taxpayer expense.”

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At Brown & Barron, we put a special focus on nursing home law, and we treat you like family. Our lawyers understand the complex set of rules that nursing homes must follow to ensure the well being of their residents. The sad truth is that nursing homes often break these rules, resulting in preventable injuries and deaths. We have the experience and methods to uncover the truth.

When Brown & Barron gets involved, you get the answers and the justice your family deserves.

Call us today at (410) 698-1717 to schedule a free consultation with our experienced nursing home abuse attorneys.

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