David Bragg photo by Jana Birchum is only a matter of time. He should know. Bragg’s experience with nursing homes dates to 1977, when the state attorney general’s office responded to public outcry over widespread reports of abuse by tapping Bragg to head a nursing home taskforce. Bragg says the panel was the state’s first concerted effort to crack down on the worst of the nursing home industry in Texas. He returned to state regulation under Democratic Governor Ann Richards in the early 1990s. Now in private practice, he makes a living suing the industry he once regulated. Seated in a conference room filled with law books in his downtown Austin office, Bragg argues that we have allowed dangerous trends to persist in the nursing home industry. Most families with the means these days increasingly keep their parents and grandparents out of nursing homes. Instead, they choose apartment-style assisted living facilities, in-home care, or adult day-care centers. That means, Bragg explains, that seniors who do end up in nursing homes truly have no place else to go; they are sicker and poorera more vulnerable population. And that makes them more expensive to care for, especially at a time of rising health-care costs. While costs for nursing homes are going up, there’s less money coming in from state Medicaid programs. With state budgets so tight, Medicaid rates have been stagnant. Texas’ Medicaid rates for nursing homes rank 49th in the country. A 2003 study funded by the industry estimated that nursing homes spend $12 more each day on Medicaid patients than they receive in funding \(in Texas, the estimate was a daily vast majority of nursing home residents rely on Medicaid to pay their way, these trends make it increasingly difficult for nursing homes to make money. The less scrupulous for-profit nursing homes boost earnings by curtailing staff and services. “Every dollar you spend on care is one less dollar available for profit,” Bragg says. “My friends in the nursing home industry tell me that if you’re a very good businessman, you can provide good care and you can make a small profit. But if you provide lousy care, you can make a lot of money.” Worse yet, in Bragg’s view, even as nursing homes recklessly squeeze out more profits, safeguards in the system are crumbling. Bragg says there are three traditional ways to ensure quality of care in medical facilities: peer or doctor review, state regulation, and litigation. The first, Bragg flatly dismisses; unlike hospitals, nursing homes generally can’t do peer review. As for the second option: ” [ State] regulation is like a rollercoaster: it goes through ups and downs,” he says of the regulatory framework he helped design. “Now, we’re in a real down turn.” The state’s own data bear this out. In 2001, the Legislature cut the state’s number of nursing home inspectors. About 20 percent of Texas’ 400 inspectors were reclassified as nursing home observers. These observers can visit nursing homes but are bureaucratically impotent: they can’t issue violations or warnings and can’t force nursing operators to show them records or patients. The result of this cut has been predictable: a gradual, acrossthe-board decline in every measure of nursing home oversight. By 2003, the number of visits to nursing homes by state inspectors had dropped 22 percent, before rebounding slightly last year, according to figures from the Department of Aging and Disability regulates nursing homes. Licenses denied by the department are down from 60 recommended denials in 2001 to eight last year. Administrative penalties are down roughly 75 percent. And perhaps most shocking are the number of facilities that the state has taken over and given to a court-appointed trustee to run: down from 21 in 2001 to 0yes, zeroin 2004. “This is the first time I can remember that we have none of the three legs of quality of care that we have historically relied on,” Bragg says. “Since 1980 or so, no matter what happened with [state] regulation, we’ve always had litigation as a backstop.” McAllen Nursing Center is a low-slung, one-story brown brick building on the north side of town. Inside the front door is a large television room. Four white-tiled corridors branch off the circular nursing station like spokes on a wheel. By the time Noe Sr. entered the facility on July 1, 2004, he had bounced through two other nursing homes in just four months \(both homes had given his room away those few months, Noe Sr. went from a man who could walk mostly on his own to a virtual invalid who barely had the strength to sit up in bed. Noe Jr. believes that his father’s abrupt physical SEPTEMBER 23, 2005 THE TEXAS OBSERVER 27
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