Pursuant to the Civil Rights of Institutionalized Persons Act ("CRIPA"), 42 U.S.C. § 1997, the Civil Rights Division of the U.S. Department of Justice ("DOJ") conducted an investigation of conditions at the Banks-Jackson-Commerce Medical Center and Nursing Home ("BJC"), a public nursing home facility in Commerce, Georgia, operated by the Banks-Jackson-Commerce Hospital Authority on behalf of Banks County, Jackson County, and the City of Commerce, Georgia. The investigation resulted in a findings letter being sent to commissioners of the two counties and to the city's mayor on October 21, 2002. The letter stated that in September and December, 2001, DOJ and its expert consultants toured the facility, interviewed administrators, residents and staff, and reviewed medical charts and records. Private counsel, representing the facility or its governmental operators, aided the investigative effort, according to the letter.
The DOJ's investigation led it to conclude that certain conditions at BJC violated residents' federal constitutional and statutory rights. According to the DOJ's findings letter, residents at BJC suffered from the facility's (1) failure to protect residents from harm; (2) inadequate nutritional and hydration services; (3) failure to provide adequate skin care to prevent pressure sores; (4) failure to provide adequate restorative care, including continence, and physical and occupational therapy services; (5) improper restraint usage, particularly the use of bedrails; (6) inappropriate use of psychotropic medications and failure to provide adequate psychiatric/psychological/psycho-social services; and (7) failure to serve residents in the most integrated setting appropriate to their needs. This latter deficiency violated the Americans with Disabilities Act-imposed obligation to treat residents in the most integrated setting appropriate to their individual needs. See 42 U.S.C. § 12132 and 42 C.F.R. § 35.139 (J). For each of these categories, the letter provided examples of the shortcomings observed by the investigation.
The DOJ findings letter proposed remedial actions to remedy the deficiencies, invited the county to address the issues, and alerted the county to the possibility of a CRIPA lawsuit brought by the United States to compel remedial action.
Negotiations resulted in representatives of the DOJ and of the authority operating BJC signing a memorandum of understanding ("MOU") on or about June 16, 2004. The MOU set out numerous categories of improvement and standards for BJC. It expressly noted that BJC, by signing the memorandum, did not concede that it was a facility subject to the jurisdiction of CRIPA. The memorandum's labeled categories of "corrective measures" to be implemented included ones for (A) fall and accident prevention, (B) investigation of accidents and injuries, (C) use of psychotropic medication, (D) hydration, (E) aspiration, (F) timely assessments, (G) positioning, (H) activities program, (I) most integrated setting, and (J) federal statutory compliance. The MOU also included specific provisions for implementing, enforcing, and modifying its terms.
We have no post-MOU information about this matter.Mike Fagan - 06/19/2008