2013 General Assembly

Nursing home bill would bring order to legal disputes

Panel would help curb cost of baseless suits

March 4, 2013 

  • About the authors: Ruby Jo Cummins Lubarsky is the president of the Kentucky Association of Healthcare Facilities. Timothy L. Veno is president and CEO of LeadingAge Kentucky, which represents nonprofit nursing homes.

  • At issue: Feb. 15 Herald-Leader editorial, "Fighting the good fight to protect residents, not nursing homes"

The Herald-Leader has missed the point of Senate Bill 9 while also portraying an inaccurate picture of the high-quality care that takes place in Kentucky's long-term care homes.

The nurses and dedicated staff members who spend their days and nights caring for the more than 23,000 residents we serve across the state deserve better for the great care they provide to our loved ones.

Kentucky's senior-living providers, including for-profit companies and nonprofit organizations, strive every day to not only maintain the highest- quality homes in the nation but also to constantly better them through innovation.

Our residents often come to us in difficult physical and emotional condition. We do our best to accommodate their varying needs every hour of every day. We serve in a complex human environment that has a lot of moving parts. Although our work can never be perfect, just follow one of our caregivers for a day and you will quickly learn they do their level best to achieve the highest standard of care.

We are not asking to be relieved of responsibility for our actions or the resulting outcomes. SB 9 introduces a rational, thoughtful way to approach resolving disputes about the quality of care experienced by establishing early in the legal process the medical merit of a claim — without eroding anyone's ability or right to recover damages through the courts.

The bill brings some common sense to the overly litigious environment in our state. If a resident is aggrieved, this legislation simply requires that both sides take the claim before a panel of three disinterested medical doctors. If either party is still not satisfied at the end of that process, they can go to court.

More than 30 other states have enacted similar alternative dispute-resolution mechanisms that have operated successfully for years, including medical review panels in Indiana.

The process can be described as the legal system cousin to an emergency room triage team that assesses an arriving patient to determine the nature and scope of one's injury before determining the course of treatment.

According to federal data, when it comes to patient care and staffing levels, Kentucky's long-term care homes perform better than the national average. Yet the Herald-Leader's editorial failed to mention the sad fact that Kentucky ranks No. 1 when it comes to liability insurance premiums and claims costs for cases brought against our facilities.

According to a 2012 report by Aon Risk Solutions, Kentucky's long-term care homes pay twice the national average in claim amounts while having the nation's highest Medicaid loss rate per resident per day. This not only means higher costs for working families with loved ones in long-term care homes, it diverts scarce resources — often unnecessarily — away from resident care.

Kentucky's Medicaid program, which covers the majority of the residents who live in long-term care homes, now pays an average of almost 9 percent of its daily reimbursement toward covering higher liability insurance rates and litigation costs. This certainly falls well short of exercising good stewardship of taxpayer dollars. Kentucky must invest more wisely in caring for its frail elders.

SB 9 is not about denying or delaying access to the courts, as many of its opponents have proclaimed. It is about ending the culture of blame and legal gamesmanship that is siphoning the health care financing tank dry — often at the expense of those who have truly been harmed and constantly at the expense of all those for whom we care every day.

It is about ending the attacks against our individual employees, on whom the devastating effects on morale and distraction from work cannot be quantified. It is about halting the increase in our liability insurance premiums, driven ever higher because our carriers often opt to settle baseless or weak claims rather than wage expensive legal battles — even when the facts appear to favor mounting a defense.

It is time for Kentucky to work smarter, not harder, to care for elders in the best way possible.

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