Sunday, February 28, 2010

Supreme Court lets nursing home ruling stand: Facilities fair game for civil rights suits - McKnight's Long Term Care News

Supreme Court lets nursing home ruling stand: Facilities fair game for civil rights suits - McKnight's Long Term Care News

A federal appeals court decision in a case involving a skilled nursing facility—a decision once described as “shocking” by the American Health Care Association—has been allowed to stand by the U.S. Supreme Court.

In the case of John J. Kane Regional Centers-Glen Hazel v. Grammer (see McKnight's, 7/7/09), the U.S. Court of Appeals for the Third Circuit ruled that the Federal Nursing Home Reform Amendments (FNHRA) guarantee a nursing home resident's civil rights. As such, a private civil rights lawsuit can be brought against a facility on behalf of a resident in the event of inadequate care and wrongful death. At the time of the decision, an AHCA legal representative decried the ruling, noting that the FNHRA had never been used to allow such a private right of action since their passage in 1987, reports the Bureau of National Affairs.

On Monday, despite a petition from AHCA, the American Association of Homes and Services for the Aging and at least 14 individual states, the nation's highest court denied a review of the Third Circuit ruling. The decision likely will cause both private and state run nursing homes to rethink patient and consumer rights.

The FNHRA were passed in order to provide more oversight of the quality of care and residents rights standards for nursing homes that participate in Medicare and Medicaid

Thursday, February 25, 2010

The Buck Stops Where?

The attack ad could write itself: On Gov. Rick Perry’s watch, Texas weathered a sexual abuse scandal at the Texas Youth Commission, fight clubs at state institutions for the disabled and deaths of kids monitored by Child Protective Services.

But three of the biggest messes of Perry’s 10-year tenure — two of which spurred U.S. Justice Department investigations — have been noticeably absent on the campaign trail. While U.S. Sen. Kay Bailey Hutchison, Perry’s chief Republican primary opponent, has hit the airwaves on toll roads, immigration and education, she has largely steered clear of these high-profile social services debacles.

Perry spokesman Mark Miner says the agency crises haven’t been campaign issues because the governor did such an effective job managing them. “With CPS, the state schools, the TYC, those are issues the governor has provided leadership on,” Miner says. “When there were problems, he took immediate action.”

Critics say that’s untrue: Concerns about abuse, neglect and poor living conditions had been raised for years before the scandals erupted. Political consultants say Hutchison’s decision not to target those issues has more to do with what she thinks resonates with typical primary voters — and what doesn’t. “The fight clubs, the problems at the TYC — those are horrific things,” says Hutchison campaign manager Terry Sullivan. “But what we’re really trying to focus on are the issues that affect everyday Texans: eminent domain, land grabs, cronyism.”

The blame game

Years of poor staffing and overwhelming caseloads at Texas Child Protective Services finally came to a head in 2004, when children the state was supposed to be monitoring were killed by abusive parents.

Three years later, reports surfaced that administrators at a West Texas juvenile justice lock-up were sexually abusing boys in their care, and a sweeping inquiry turned up widespread sexual and physical abuse throughout the state's youth prisons.

And in 2009, investigators learned that employees at a Corpus Christi state institution were forcing disabled residents into a fighting ring, revelations that uncovered more abusive conditions at other facilities.

In each of these cases, watchdogs had been making noise for years — well before Perry was in office. They sent letters to the governor's staff, to lawmakers and to agency commissioners, and showed up to testify at public hearings. When the headline-making scandals broke, Perry took action: making urgent legislative priorities of the crises, allocating emergency dollars or dispatching his top troubleshooter to the agency.

So is it fair to pin the scandals on the chief executive? Some say yes: The buck always stops with the governor. Others say no: Nothing he could have done would have prevented these tragedies. Still others say he shares the blame with agency heads, state lawmakers and the rest of Texas' elected officials. Texas Tribune pollster and University of Texas government professorDaron Shaw says the reality is that these issues only work, politically speaking, when the incumbent can be definitively blamed for them. Shaw says voters tend to hold mayors, city council members, even state representatives accountable — but that at higher levels of government, the blame gets spread around. “Texas is so disaggregated that most people don’t hold Perry responsible for something like CPS,” he says.

Some political consultants say quietly that the truth is that primary voters simply aren’t interested in another agency sob story. They don't relate; only a tiny fraction of voters have kids in TYC lock-ups or relatives in state institutions. Other political operatives say that in order to hit Perry on these agency issues, Hutchison would have to have her own solutions. Solutions cost money, and increased spending doesn’t sit well with tight-belted Republican primary voters.

But Democratic consultant Harold Cook says that across the board, voters care about anything involving children — and anything involving government dysfunction. “In any poll, in any demographic, everybody’s going to care deeply about children,” he says. “I know [these issues] would work with general election voters and would undoubtedly work with some subset of primary voters.”

The one big social issue Hutchison has homed in on is Perry’s support for mandatory HPV vaccines for adolescent girls, but that issue is far more politically charged than the TYC or the state schools. Hutchison was silent on the Cameron Todd Willingham death penalty case, which looked to some like a high-profile fumble for Perry but would have jeopardized Hutchison’s already fragile relationship with Texas voters, who overwhelming favor the death penalty.

The social services failings might have worked for Hutchison's camp if they’d been woven into a compelling narrative, Shaw says, one that painted Perry as incompetent. Instead, he says, Hutchison has settled on the “Perry as corrupt” approach, though he says the campaign is struggling with that message, too. “They’ve found their voice some, with this idea of Perry putting insiders in office, making special deals,” Shaw says. “But it’s a bit of a reach. And there’s a sense of, ‘He’s been governor for nine years, and this is the best stuff you can come up with?’”

Monday, February 1, 2010

Death at Lubbock State School center of Texas statewide controversy


January 27, 3:41 PMDallas Disability ExaminerSteve Carter


Michael Nicholson was killed June 6th, 2009 by his caretakers at the Lubbock State School.
To date, only one arrest has been made. No trial or conviction has been set.

In a heinous act, of abuse of power caretakers at Lubbock State School killed MIchael Nicholson by strangulation. According to a Youtube video (see below) the violent strangulation of Michael occurred because of a dispute over clothes. It seems that Michael did not want to wear the type of clothes issued by the state school, preferring to select his own.

A common theme occurs all to often in homes for the aged and in institutions serving the disabled persons. The theme is about the loss of liberty afforded people simply because they have a disability or are of a certain age. Institutions decide a person cannot make decisons most of us take for granted such as what clothes to wear, when to entertain guests, and whether or not to have a plant in our room.

Certainly most of these do not erupt into the violent abuse that cost Michael Nicholson his life. Yet, the rules are abusive and are made without logic and enforced variably.

Prosecutors and law enforcement personnel do not take crimes against people with disabilities seriously because they "do not make good witnesses". Community Now! is an advocacy organization pushing for better enforcement of acts of abuse against those in institutions.