Texas Nursing Homes Shielded From Lawsuits No More?

What was intended to help fund Texas nursing homes providing services to Medicaid recipients is now being called into question after it became apparent that the Minimum Payment Amounts Program may shield Texas nursing homes from lawsuits.  In this article, we offer information about the program and what changes could mean for Texas nursing homes.

If you have a loved one in a nursing home and they have been injured by negligent or substandard care, you may encounter serious roadblocks in your efforts to hold the facility accountable. Contact the Houston medical malpractice and nursing home abuse attorneys at MedMalFirm.com to learn more about overcoming roadblocks and getting the justice you deserve.

What is the Minimum Payment Amounts Program?

The Minimum Payment Amounts Program, implemented in 2012, allowed privately owned Texas nursing homes to “flip” their licenses making them state-owned, at least on paper.  The benefit of the program was an increase in funding for these facilities, while allowing private management and property owners to retain involvement.  In order for nursing homes to qualify for supplemental federal funding, they must be owned by the government, such as a hospital district, county, or the state.  The ability to flip licenses was important to many Texas nursing homes struggling to cover the financial deficit caused by Texas’ lack of funding for Medicaid programs and reimbursement programs for nursing homes.  At a glance, the program seemed to be a mutually beneficial option for Texas nursing homes to provide care and fund facilities, particularly in rural areas.

In 2012 there were 33 government-owned nursing homes in Texas when the federal government passed the Minimum Payment Amounts Program.  Reviews in 2016 indicated that after “flipping” licenses, there were 279 government-owned nursing homes, at least on paper.  The supplemental funds provided to these facilities was split between the new “owners” and the management companies or property owners.  By April 2016, the federal government was expressing concerns over the enormous costs that the program had incurred, a staggering $83 million, which is a seven-fold increase over the last two years.  The federal government is now considering withdrawing the program due to this and other problems.

Issues with Flipping Licenses

There are several inherent issues with flipping licenses. First, flipping licenses has resulted in numerous nursing homes being “owned” by entities hundreds of miles away, far outside local jurisdiction.  This makes it difficult for families to manage active care.  When multiple nursing homes are “owned” by the same entity, yet are spread hundreds of miles apart, there is little continuity of care.

A further concern is that the Minimum Payment Amounts Program was not designed with the goal of improving quality of care.  In fact, it seems as though it has challenged this important element of long-term care.  Regulators may find it difficult to maintain adequate inspections and quality control, and may further find it difficult to communicate with those actually in charge of facilities.  There is also the potential for “owners” to be far removed from the happenings at their facilities, leaving not much in the way of a guarantee that federal funds are being used appropriately.

Texas Nursing Homes Shielded from Lawsuits

The most concerning issue with Texas nursing homes flipping their licenses from private to government ownership is what is known as tort immunity.  Tort immunity is a strict limitation in Texas law affecting an individual’s ability to file a lawsuit against a government entity.  In short, state law attempts to restrict the public from filing lawsuits against government agencies.  If Texas nursing homes are considered government-owned, then they may fall under the umbrella of tort immunity, leaving their residents at great risk.

According to Texas law (Civil Practice and Remedies Code Title 5: Governmental Liability, Sect. 101.021), in order to sue a local government entity, the plaintiff must be able to prove they were directly harmed by the use of tangible personal or real property.  This guideline would not apply in situations where a nursing home resident was injured or died due to negligent behavior, such as:

• A nursing home employee leaving a door unlocked allowing a resident with dementia to exit the premises and become injured or killed.
• A nursing home resident not being turned or assisted with mobility properly resulting in bedsores.
• Nursing home staff failing to report medical conditions or administer treatment.
• Nursing home staff neglecting duties, such as hygiene, supervision, and mental health.

What makes this situation even more concerning is the fact that there are woefully low limits on the amount of damages plaintiffs can pursue in a lawsuit against a local government entity.  Texas tort law has a strict cap on these types of damages at $100,000.  Because of this low cap and tort immunity laws, many families simply choose not to pursue a legal case even if they rightfully should.  With Texas having the highest number of “below average” or worse rated nursing homes in the nation, these concerns are extremely valid.  One report suggested that, in 2013, of the 38,000 cases of violations in Texas nursing homes, less than one percent received enforcement action.

Conflicting Opinions

Advocates for the Minimum Payment Amounts Program claim that additional funding helps improve quality of care.  Critics contend that money alone is not enough to protect elderly Texans and their families, especially if they become victims of nursing home abuse or neglect.  The fact remains that nursing home residents are often left at the mercy of those directly caring for them, regardless of who actually owns the property or license.  Further, increased funding only goes as far as management teams choose to utilize it.  If a manager or caregivers are unqualified, simply do not care, or willfully mistreat residents, no amount of money funneled into the pocketbook of the “owners” will prevent abuse or neglect from occurring.  What the additional funds provided through the Minimum Payment Amounts Program is doing is restricting the rights of residents and their families to pursue justice.

Getting Help with Nursing Home Abuse

If you have a loved one in a Texas nursing home, and you are concerned about their safety and protection of their legal rights, contact MedMalFirm.com.  Our team of attorneys is skilled at navigating complex nursing home abuse cases. We have a record for success, including multiple million-dollar verdicts or settlements on behalf of our clients.  Our law firm aggressively fights for the rights of nursing home residents and their families, and we are not afraid to take a stand for our clients.

Contact MedMalFirm.com by calling us at 877-887-4850, or by filling out our online form to schedule a free case evaluation.