A rule enacted by the exiting Bush Administration shut off a source of information for victims of nursing home abuse and neglect, according to the Washington Post. Cindy Skrzycki of the Washington Post brought this change in policy to the forefront in her article in the February 24, 2009 edition.
According to Skrzycki, the George Bush Administration enacted rule in the fall of 2008 that designates state inspectors and Medicare and Medicaid contractors as federal employees, which, generally speaking, shields them from providing evidence of the information they obtain to either side in private litigation. The effect of this designation is that both plaintiffs and defendants have to seek court orders to obtain inspection reports and to order depositions.
The new rule, according to Skrzycki, generally prohibits state health departments and contractors from participating in private lawsuits involving facilities that are in the federal assistance program without approval by the head of the Department of Health and Human Services.
The Bush Administration said that participation in private cases "diverts employees from their federal survey, certification and enforcement responsibilities," the document went on to say, "the cumulative effect of these requests can impede these activities."
What these changes impede are the efforts of those who seek justice on behalf of the most vulnerable. It is interesting to see the hypocrisy of those who championed tort reform because… wait for it… our courthouses were backlogged, only to enact this rule (without public notice).
A rule that requires both plaintiffs and defendants to "clog the court’s docket" with motions and hearings to discover information that was once taken for granted by both sides as necessary and proper for a fair trial.
As to diverting employees from their duties. Isn’t their ultimate duty to protect those who cannot protect themselves? If so, history has shown the best way to ensure compliance is to make known there are serious legal (and monetary) repercussions. Blocking access to the information combats this goal and diverts the department from its greatest objective.
And, by the way, it clogs the court’s docket, delaying more "serious" matters.