Tydings & Rosenberg LLP recently filed suit on behalf of Ivy Hall Geriatric and Rehabilitation Center, Inc., a Maryland nursing home, to modify the Medicaid nursing home enforcement regulations implemented in 1995. The lawsuit argues that the regulations do not give due process rights to facilities when surveyors claim to find substandard care.
Ivy Hall is an independently owned nursing home in Eastern Baltimore County with a record of providing quality care to residents. It had been deficiency free for many years. In September 1997, surveyors found deficiencies. Ivy Hall was ruled out of compliance and lost the right to conduct a nurse aide training program. Even though Ivy Hall was shortly ruled back in compliance, it was barred from conducting the training program for 2 years.
Under the current regulations, the only avenue of appeal open in this situation is an informal conference not affording due process. In effect, the prosecutors are also the judge. The staff conducts the informal conference. There is no impartial decision maker, no right to counsel, and no opportunity to cross examine witnesses. Furthermore, there are limits on what issues can be contested by the facility.
There is also no right to appeal from the state's decision following the informal conference. Automatic sanctions, like barring a training program, can be imposed without court review.
Loss of the training program is a very punitive sanction. The loss itself is costly because the nursing home must pay to have nurse's aides trained elsewhere, usually pay overtime to existing staff and pay more to retain overworked staff. Also, a finding of substandard care three times triggers even worse sanctions.
The case Tydings & Rosenberg LLP filed seeks a change in the regulations, not just on the nurse aide training sanction, but also for their general lack of due process. The regulations do not allow the facility to contest many findings. With severe penalties, due process for the long term care providers takes on added importance.
This litigation's significance goes beyond the result for Ivy Hall. A ruling on the regulations will affect nursing homes throughout the state and can be utilized by facilities elsewhere in the country. The Health Facilities Association of Maryland is supporting the litigation because of its importance to the long term care industry.
For more information, contact Ferrier Stillman at 410-752-9731.