Proposed nursing home rule in Texas: 3 strikes & you’re out

Members of the Texas Sunset Advisory Commission are putting the heat on poorly performing nursing homes in Texas. The Sunset Advisory Commission is a legislative commission that oversees the identification and elimination of waste/duplication/inefficiency of Texas state agencies, including the Department of Aging and Disability Services (DADs). At an August 13, 2014 meeting, the Commission issued a report which included a section on how to best address long term care providers not facing enough enforcement actions for violations. The report found:

• In FY 2013, DADs took enforcement action against less than 1% of almost 38,000 violations found. The agency assessed 5 penalties and 6 civil actions against nursing homes even though there were 18,375 violations. These penalties amounted to less than $400,000.
• Nursing homes in Texas have been able to negotiate lesser federal monetary penalties, resulting in $2.6 million in payments in FY 2013, which is 36% of what DADs recommended to CMS.
• Nursing Home Inspect found that Texas ranks 9^th in the United States for serious violations per nursing home. In FY 2013, there were 378 Immediate Jeopardy level violations (S/S: J, K and/or L) and 266 actual harm deficiencies (S/S: G, H and/or I).
  • 92 nursing homes in Texas had repeat actual harm or IJ level deficiencies in FY 2012-2013.
  • In FY 2013, nearly all nursing homes were found to have repeated minor violations within their last 2 survey cycles

Currently, Medicaid-only nursing homes may have their licenses revoked if they have serious violations 3 times within a 2-year period. However, this does not apply to dually-eligible facilities, and that means that only 33% of the nursing homes in Texas could be categorized in this manner. That leaves a gap for the remaining 1000+ facilities, which is something the Commission is looking to address in its recommendations. Recommendation 4.1 of the report includes requirements that DADs should develop an increase in penalties for serious and repeat violations, which would also include license revocation. This is where the “Three Strikes” part of the rule could come into play for Texas nursing homes. If a facility has 3 serious violations within a specified timeframe, that provider’s license could be revoked.

Read the full Texas Sunset Advisory Commission Report.