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Blaming the Victim! Are patients responsible for the nursing home crisis? BY NATE BLAKESLEE CAPITOL OFFENSES exas tort reformers thought Tthey had left no stone unturned in 1995, when they pushed through a cap on punitive damages that all but ended the days of giant jury awards for personal injury and wrongful death cases. In fact, they missed one:The cap does not apply to defendants who kill, rape, or kidnap someone, or to those who knowingly cause harm to children, the elderly, or the disabled. That failure of courage by the 74th Legislature may be partially rectified by the brave souls of the 77th, led by Rep. John Davis \(Relderly and the disabled has to go, according to Davis, because it has created an onerous burden for the nursing home industry, which has been hit in recent years by a series of enormous jury awards in cases brought by clients or their families. “They’ve become an easy target for the trial lawyers,” Davis says. The awards are astounding: A Fort Worth-area nursing home operated by Horizon/CMS Healthcare has been hit with two huge suits in the last four years, including a $90 million judgement in 1997 and a $312 million award this spring \(Fuqua v. Equally astounding are the stories of neglect and abuse in Texas nursing homes. Dependence on poorlytrained, underpaid, and overworked staff, particularly in the for-profit homes, has led to an alarming decline in the quality of care. Patients have been literally starved to death, physically abused, or allowed to lie in one position until pressure sores wore through to the bone. It’s not an easy bill to explain to the folks back homethat the state can no longer afford to give special protection to the elderly and disabled. But neither is it easy saying “no” to the for-profit longterm-care industry in Texas, which is dominated by large corporate chains such as Texas Health Enterprises, Mariner, and Integrated Health Services. Davis’ H.B. 2225 is just one of a package of “regulatory relief” bills being flogged this session by the Texas Healthcare Association and some two dozen lobbyists, including capitol heavyweight Buddy Jones and former Speaker of the House Gib Lewis. In addition to the liability issue, the industry has been chafing under the oversight of the Department of Human Services, particularly since 1997, when the Legislature, led by imposed stricter regulations and stiffer penalties on homes in response to widespread abuses. Two new bills, S.B. 1082 and 1083, by Senator Chris Harris \(a would rollback some of DHS’s authority to inspect and cite deficiencies in homes. A bill by Rep. Craig Eiland, H.B. 3476, would limit the use of DHS reports, which provide valuable eyewitness accounts of safety violations and other abuses in homes, in civil suits brought against nursing homes. Senator Robert also make it harder to collect punitive damages from nursing homes. The American Association of Retired Persons is vehemently opposed to these bills. Equally disturbing, industry watchdogs say, is a behind-the-scenes push by the industry toward self-regulation. In early March, House budget writers, led by Eiland, cut 82 full-time positions from DHS’s regulatory division, along with $1.9 million in funding, and assigned the resources to a proposed new “Quality Assurance” nursing home program under the Health and Human Services Commission. Rather than focusing on enforcement, the new program will be more “consultative” in nature. A few days later, a new industry group calling itself the Coalition for Quality Eldercare staged a press conference in which they announced a new Quality Credentialing Program, a sort of self-monitoring vehicle for the industry to police itself. The press conference, organized by public relations guru Bill Miller, was something of a coup. Miller managed to line up House members from both parties to endorse the program, which is being “spearheaded,” according to the press release, by Houston Democrat Sylvester Turner. Turner, who has not generally worked on long-term care issues, now says that although he supports the goals of the Coalition, he would not support self-regulation by the industry “I think we’re a long way from that,” he told the Observer. This much is certain: Texas nursing homes are in crisis. One quarter of the state’s roughly 1,250 nursing homes have filed for bank ruptcy. All but one of the regulated liability insurance providers have pulled out of the Texas market. Homes have been forced to turn to what are known as surplus lines carriers: essentially unregulated, out-of-state insurers that can charge whatever rates they please. Premiums have shot up, for both forprofit and non-profit homes, even those with exemplary compliance records. But the solution to the crisis is far from clear-cut. Despite promises to the contrary, tort reform has not generally produced lower insurance rates in Texas, according to a study by former Insurance Commissioner J. Robert Hunter. Capping punitive damages is unlikely to bring insurance rates down for nursing homes, either. That’s because insurance companies don’t generally cover punitive damages, which by definition are assessed for intentional, not accidental, harms. In theory at least, that leaves the nursing homes themselves on the hook for those headline-grabbing 4 THE TEXAS OBSERVER 4/13101