 Starting October 8, 2026, families searching for a nursing home on Medicare’s Care Compare website may notice something new: an icon on the profiles of certain facilities. The Centers for Medicare & Medicaid Services (“CMS”) calls it the High Performing Facility icon. Advocacy groups have described it as a trophy. That sounds like good news. In Texas, it also raises hard questions. According to preliminary CMS data, only 59 of 1,176 Texas nursing facilities qualified as of June 2026. The icon is also tied to something many families do not expect: a shorter, lighter inspection. What Is Medicare’s New “High Performing Facility” Icon? The High Performing Facility icon is a symbol CMS places on the Care Compare profile of each nursing home that qualifies for its new Risk-Based Survey, a shorter inspection process, and CMS says it identifies homes with quality indicators beyond the traditional five-star rating, such as citation history and staffing levels. CMS announced the program in a July 16, 2026 memo to state survey agencies and revised that memo on September 29, 2026 to move the icon’s public launch to October 8. A facility must meet 11 criteria to qualify. They include a five-star overall rating, a staffing rating of at least three stars, and no citations for actual harm, Immediate Jeopardy, or Substandard Quality of Care in the last survey cycle. How Many Texas Nursing Homes Qualify for the Icon? According to preliminary CMS data as of June 2026, only 59 of the 1,176 Texas nursing facilities in the analysis, about 5 percent, qualified for the Risk-Based Survey and the icon that comes with it, while CMS estimated that roughly 12 percent of nursing homes would qualify nationwide. The same CMS table shows why so many Texas homes fell short. Of those 1,176 Texas facilities:
CMS describes these figures as preliminary and subject to change. Still, the pattern is hard to ignore. Apart from the five-star requirement itself, a low staffing rating was the most common reason Texas facilities failed to qualify. Does the Icon Mean a Nursing Home Gets Inspected Less? A home with the icon is still inspected on the normal federal schedule, but its standard inspection may use the shorter Risk-Based Survey, which CMS says is conducted in roughly half the time, with fewer surveyors and a smaller sample of residents than the traditional inspection process. Under 42 CFR §488.308, the state survey agency must conduct a standard survey of each nursing home within 15 months of the last one, and the statewide average interval must be 12 months or less. Texas adds its own requirement. Under Texas Health and Safety Code §242.044, the Texas Health and Human Services Commission (“HHSC”) must conduct at least one unannounced inspection of each nursing facility every year. CMS says the shorter survey lets states spend limited resources on complaint investigations and on homes where residents face greater risk. It tested the process in 22 states and more than 100 facilities and reported findings comparable to the traditional survey. Not everyone agrees. The National Consumer Voice for Quality Long-Term Care (“Consumer Voice”), a resident advocacy group, wrote that under the new survey, infection control is the only mandatory facility task unless other problems are triggered. It also wrote that areas such as staffing sufficiency and medication errors would be reviewed only if triggered, and that records of residents who died, were discharged, or were hospitalized would no longer be reviewed. McKnight’s Long-Term Care News reported that a senior policy attorney at the Center for Medicare Advocacy argued the shorter survey violates federal law. Can a Nursing Home Lose Its High Performing Status? Yes, a nursing home can lose its high performing status, because CMS reevaluates eligibility every quarter, and a Consumer Voice analysis of earlier CMS data found that only 52 percent of homes meeting the measurable criteria in January 2024 still met them 13 months later, with 20 percent falling out within three months. Consumer Voice could test only 7 of the 11 criteria with public data, so its numbers are an approximation. Losing the five-star overall rating was the most common reason homes dropped out. CMS itself acknowledges a lag. The revised memo states that, because of data processing, the facilities showing the icon on Care Compare will differ from the lists CMS sends to state survey agencies, and it tells states to rely on their lists rather than the website. A facility on the list can also be disqualified before its survey for events such as a new Immediate Jeopardy citation or a pending complaint investigation triaged at that level. Does a High Performing Icon Change a Nursing Home’s Legal Duties? No, the icon does not change a nursing home’s legal duties, because every Medicare and Medicaid certified facility must meet the same federal requirements regardless of its rating, and in Texas a facility that harms a resident through substandard care can be held accountable whether or not it displays the icon on Care Compare. Federal requirements for nursing homes appear in 42 CFR §483, and the federal quality of care standard appears at 42 CFR §483.25. Texas has parallel rules. Texas Health and Safety Code Chapter 242 governs the licensing of nursing facilities, and the Texas “Quality of Care” rule appears at 26 Texas Administrative Code §554.901. An icon summarizes past data. A nursing home negligence claim asks a different question: what happened to this resident, on these dates, and whether the care met the standard. Problems such as pressure injuries, falls, dehydration, and missed medications are judged on the facts of each case. When neglect causes a death, certain family members may bring a wrongful death claim under the Texas Wrongful Death Act, Texas Civil Practice and Remedies Code §71.002. How Should Families Use the Icon When Choosing a Texas Nursing Home? Families should treat the icon as one piece of information, not a guarantee, and should also check the home’s current star ratings and recent inspection reports on Care Compare, visit at different times of day, ask about staffing on evenings and weekends, and contact the long-term care ombudsman with any concerns. The revised CMS memo says families will be able to tell whether an inspection was a Risk-Based Survey through a footnote on the Care Compare survey results page and an indicator on the inspection report, known as form CMS-2567. That detail matters. A clean report from a shorter survey may reflect a narrower review. After admission, keep watching. Weight loss, new wounds, unexplained bruises, and repeated falls deserve prompt questions to the director of nursing. These problems can trace back to nursing negligence and short staffing, and they can happen at any facility, including one with an icon on its profile. The icon may help a family start a search. It should not end one. We Can Help At The Borah Law Firm, PLLC, we only handle medical malpractice cases in Texas, nothing else. As part of our practice, we represent patients and families in cases just like the one discussed in this blog. If you believe a loved one received substandard nursing home care, we can help you understand whether a case exists and what your options are. Contact us today so you can tell us your story. Frequently Asked Questions Is a 5-Star Nursing Home Automatically Safe in Texas? No, a five-star rating does not guarantee safe care. Ratings are built from past inspection, staffing, and quality data. In the Consumer Voice analysis, losing the five-star overall rating was involved in about three of every four cases in which a home lost high performing eligibility, which shows how quickly ratings can change. How Often Are Texas Nursing Homes Inspected? Federal rules require a standard survey of each Texas nursing home within 15 months of the last one, with a statewide average of 12 months or less, and Texas law requires HHSC to conduct at least one unannounced inspection of each nursing facility every year. Federal rules also allow surveys as often as necessary, including to investigate complaints. How Can I Tell if a Nursing Home Had a Shorter Inspection? CMS says it will flag Risk-Based Surveys with a footnote on the Care Compare survey results page and an indicator on the inspection report, form CMS-2567. The same information will appear in the survey files in the CMS Provider Data Catalog. Link: https://www.cms.gov/files/document/qso-26-14-nh-revised-2026-09-29.pdf About the Author: J.T. Borah is a Texas-licensed medical malpractice attorney and Texas Super Lawyer at The Borah Law Firm, PLLC in Austin, Texas. He has testified before both the Texas House and Senate on patient safety issues and focuses exclusively on medical malpractice cases statewide. About this article: AI writing tools assisted Mr. Borah in drafting this article. All legal analysis reflects his independent professional judgment. This article is for general informational purposes only. It is not legal advice and does not create an attorney-client relationship.  A family notices a bedsore on a loved one during a nursing home visit, asks a staff member about it, and hears some version of the same answer: “we turn him every two hours, it's just documented.” That answer is often the beginning of a case, not the end of one.
Turning and repositioning records are some of the most closely examined documents in a Texas bedsore claim, because they are supposed to show, in writing, whether a facility actually did what it says it did. This post explains what these records are, what federal and Texas law require them to reflect, and what gaps or patterns inside them can end up proving. Why Do Turning and Repositioning Records Matter So Much in a Bedsore Case? Turning and repositioning records matter because they are one of the few contemporaneous, written accounts of whether a facility actually provided the care it was required to provide. A bedsore (sometimes called “bedsore”) develops over hours and days, and the nursing home's own charting is often the only surviving record of what staff did, or did not do, during that window. Unlike many aspects of nursing home care, repositioning is something facilities are specifically required to document as it happens, not reconstruct afterward. That makes the record unusually valuable in litigation. If the documentation shows a resident was turned on a consistent schedule and a bedsore still developed, that can support a defense that the injury was clinically unavoidable. If the documentation is sparse, inconsistent, or mechanically identical entry after entry, it can support the opposite conclusion: that the charting reflects a habit of documentation rather than a habit of care. What Do Nursing Homes Have to Do to Prevent Bedsores Under Federal Law? Under 42 C.F.R. §483.25(b)(1), federal law requires all nursing facilities to ensure that all of their residents receive care that is consistent with professional standards of practice to prevent bedsores from developing and that a resident does not develop one unless the individual's clinical condition demonstrates that it was unavoidable. Texas Health and Safety Code §242.001 imposes a parallel state-law obligation, stating that a violation of a minimum acceptable level of care established under Chapter 242 is forbidden by law in its own right, independent of the federal survey process. More specifically, 26 Texas Administrative Code §554.901 mirrors the federal bedsores standard almost word for word, requiring that a nursing facility resident receive care, consistent with professional standards of practice, to prevent bedsores, and that a resident not develop one unless the resident's clinical condition demonstrates that it was “unavoidable”. CMS's own interpretive guidance breaks the “unavoidable” exception into a specific four-part test: the facility must have
Turning and repositioning records are frequently the primary evidence a facility points to for the second and third parts of that test. The facility carries the burden of showing that any bedsore that develops falls into that narrow “unavoidable” category. How Often Are Nursing Homes Supposed to Reposition a Resident? However, there is no single fixed repositioning interval that applies to every resident. Current clinical guidelines call for an individualized repositioning schedule based on the resident's specific risk factors, mobility, skin condition, and support surface, rather than a one-size-fits-all rule. For decades, a two-hour turning interval was treated as the default standard in long-term care, and many facilities still use it as a baseline. The current International Clinical Practice Guideline on repositioning, developed jointly by the National Bedsore Advisory Panel, the European Bedsores Advisory Panel, and the Pan Pacific Bedsore Alliance, gives a strong recommendation that at-risk residents be repositioned on an individualized schedule, adjusted for the resident's response and the type of support surface in use, rather than a rigid clock-based interval alone. That individualization actually raises the evidentiary bar in litigation rather than lowering it. A facility cannot simply point to a generic two-hour charting pattern as proof of adequate care. It has to show that a specific schedule was developed for that specific resident, documented in the care plan, and then actually followed by staff. What Do Gaps or Inconsistencies in a Turning Log Actually Prove? A gap in a turning log does not automatically prove neglect, but a pattern of gaps, especially one that lines up with when a wound was worsening, is exactly the kind of evidence a Plaintiff's expert will look for first. The record has to be read alongside the resident's actual clinical course, not in isolation. Over the almost two decades I have spent handling these types of case, I have noticed a few patterns that seem to come up repeatedly. Identical entries repeated across many shifts, using the same wording and the same position notation at the same intervals, can suggest a staff member is charting from habit rather than recording a specific observation. Missing entries during the exact hours when a wound is documented as having worsened are often the most significant gap of all. A mismatch between the number of entries and the facility's own staffing ratios for that shift can raise questions about whether the charted repositioning was physically possible. None of these patterns proves negligence by itself. However, when you combined them with the resident's Braden Scale risk assessments, wound documentation, and the timeline of the injury's progression, they can help an expert reconstruct what likely did, or did not, happen at the bedside. What Should a Family Request If They Suspect a Loved One's Bedsore Was Preventable? First, and this may be distasteful for you, photograph the wound, note the date, and write down what the staff tells you about the resident's turning schedule, since verbal explanations at the bedside sometimes differ from what the chart later shows. Second, request the resident's complete chart, not just a summary. Ask specifically for the repositioning and turning logs, the Braden Scale or equivalent bedsore risk assessments, the resident's individualized care plan addressing skin integrity, wound assessment and measurement records, weight and nutrition documentation, and staffing schedules for the relevant time period. The turning and repositioning log by itself is far less useful without the surrounding documentation that shows whether the facility's own risk assessment and care plan matched what staff actually did. Facilities are not always forthcoming with a complete record on the first request, and some of these documents exist in different systems that do not get produced together automatically. A bedsore attorney can help identify what's missing from an initial records production and pursue it before evidence retention periods run out. We Can Help At The Borah Law Firm, PLLC, we only handle medical malpractice cases in Texas, nothing else. As part of our practice, we represent patients and families in cases just like the one discussed in this blog. If you believe a loved one received substandard bedsore care, whether in a nursing home, assisted living facility, or hospital, we can help you understand whether a case exists and what your options are. Contact us today so you can tell us your story. Frequently Asked Questions What is a good turning and repositioning schedule for a nursing home resident? There is no single schedule that applies to every resident. Current clinical guidelines call for an individualized repositioning plan based on the resident's specific risk factors, mobility level, and support surface, though a two-hour interval remains a common baseline many facilities still use. Can a nursing home be held liable if turning records look complete, but my loved one still developed a bedsore? It's possible. A complete-looking record is not automatically an accurate one. Identical, repetitive entries or documentation that doesn't match the resident's actual clinical decline can raise questions about whether the charted care was actually provided, and an expert can compare the records against the resident's wound progression to evaluate that question. What should I do if a nursing home won't give me my loved one's turning and repositioning records? Put the request in writing and be specific about what you're asking for, including the repositioning logs, risk assessments, and care plan. If the facility continues to withhold or delay production, an attorney can pursue the complete record through formal legal channels before it's no longer available. About the Author: J.T. Borah is a Texas-licensed medical malpractice attorney and Texas Super Lawyer at The Borah Law Firm, PLLC in Austin, Texas. He has testified before both the Texas House and Senate on patient safety issues and focuses exclusively on medical malpractice cases statewide. About this article: AI writing tools assisted Mr. Borah in drafting this article. All legal analysis reflects his independent professional judgment. This article is for general informational purposes only. It is not legal advice and does not create an attorney-client relationship. Link: https://static1.squarespace.com/static/6479484083027f25a6246fcb/t/67beef7346eca23eddb1a36f/1740566393653/2025-Guideline-Repositioning-25-Feb-2025.pdf  Families searching for a nursing home usually start with a phone call and a tour. Few start with the one federal tool built specifically to put facilities on the same objective scale, Medicare's Care Compare website. Fewer still know that the ratings on that site shifted for a large share of the nation's nursing homes this summer, and that the shift had nothing to do with how any resident was actually being cared for.
What Is Care Compare, and What Does the Overall Star Rating Actually Measure? Care Compare is the free public website operated by the Centers for Medicare & Medicaid Services (“CMS”) that lets anyone search, filter, and compare every Medicare- and Medicaid-certified nursing home in the country using a one-to-five star rating built from three separate categories of government-verified data, not from the facility's own marketing. CMS built the tool to replace the older Nursing Home Compare website, and it now covers hospitals, home health agencies, and other provider types alongside nursing homes. The nursing home search sits at medicare.gov/care-compare, filtered to “Nursing Home,” and it lets you search by city, county, or zip code to pull up every certified facility in that area. The overall star rating you see first is not a single measurement. It is CMS's combination of three separate domain ratings, each scored one through five, and each measuring a different part of a facility's operation. A facility can score five stars on one domain and two stars on another, so the overall number by itself tells you less than the three numbers underneath it. What Do the Health Inspection, Staffing, and Quality Measure Ratings Each Show You? Care Compare's three component ratings come from three different sources. Health inspections come from an independent state survey team, staffing comes from the facility's own payroll records, and quality measures come from the facility's own clinical assessment data and Medicare claims, and knowing which is which changes how much weight you should give each one. The health inspection rating is built from the facility's two most recent standard state health surveys, plus three years of complaint and infection-control survey findings. It is the only one of the three domains that comes from an outside party physically inspecting the facility rather than the facility reporting its own numbers, which is why many long-term care attorneys and ombudsmen treat it as the most reliable of the three. A finding rated at Immediate Jeopardy on this survey means the state surveyor determined the facility's noncompliance had caused, or was likely to cause, serious injury, harm, impairment, or death to a resident. The staffing rating is built from data the facility itself submits electronically through the Payroll-Based Journal (“PBJ”) system, which CMS audits back to payroll and other verifiable records under 42 CFR §483.70(p). It reports registered nurse hours per resident day and total nursing hours per resident day separately, and a facility that misses a submission deadline automatically receives a one-star staffing rating regardless of its actual staffing levels. The quality measure rating draws on roughly ten measures from the facility's own resident assessments and five measures calculated from Medicare claims, covering outcomes such as falls with major injury, pressure ulcers, hospital readmissions, and antipsychotic medication use. Because this data originates with the facility, it is the domain most vulnerable to inconsistent or optimistic self-reporting. Why Did So Many Nursing Home Star Ratings Change This Summer, and What Should You Make of It? Between mid-July and the end of September 2026, CMS made three separate changes to how Care Compare's ratings are built and displayed, and at least one industry analysis estimated that a substantial share of facilities nationwide saw their overall star rating shift as a result, even though nothing about the day-to-day care at most of those facilities changed. CMS itself has not published a facility-level count of how many ratings moved, so treat that estimate as an outside analyst's figure, not a CMS-confirmed number. First, CMS's July 2026 refresh of the Five-Star Quality Rating System raised the quality measure rating thresholds, a scheduled adjustment CMS makes periodically as national performance improves. Raising the bar can lower a facility's quality measure star even when its actual numbers stayed flat or improved slightly, simply because the cutoff for each star level moved. Second, under CMS memorandum QSO-26-12-NH, issued July 14, 2026, the Payroll-Based Journal staffing system moved onto CMS's newer iQIES data platform effective August 17, 2026. The reporting requirements and quarterly deadlines did not change, but a platform migration of this size creates a real window in which a facility's reported staffing numbers can be delayed or disrupted before the transition settles. Third, under CMS memorandum QSO-26-14-NH, issued July 16, 2026, CMS introduced a Risk-Based Survey track for nursing homes with strong compliance histories, reducing the onsite scope of the standard recertification survey for facilities that qualify. Beginning with the list CMS posts to Care Compare on September 30, 2026, qualifying facilities will carry a new “high performing” icon on their profile page. The icon reflects survey scope going forward. A facility without the icon has not necessarily done anything wrong, since most facilities will never qualify for the reduced survey track in the first place. All of this follows CMS's February 2, 2026, repeal of the federal minimum staffing rule, which had required a 24-hour, 7-day-a-week registered nurse on site and set specific minimum nursing hours per resident day. With that federal floor gone, the staffing numbers reported on Care Compare are informational rather than measured against any federal minimum, which makes reading the actual reported hours more useful than trusting the staffing star by itself. Taken together, if a facility's overall rating dropped this summer, check whether its underlying health inspection findings actually changed before assuming its care declined. In many cases the number moved because CMS redrew the scale, not because the facility got worse. How Should Texas Families Actually Use Care Compare When Comparing Nursing Homes? Rather than relying on the overall star rating alone, open each facility's three component ratings separately, read the actual inspection findings posted on the site, and check whether the facility currently appears on CMS's Special Focus Facility list or candidate list before making a decision. Start by searching Care Compare for nursing homes near the specific city where your loved one will live, not just the metro area generally, since driving distance affects how often family can visit and notice problems early. Compare the health inspection rating specifically across your shortlist, and click through to the actual survey findings rather than stopping at the star, since two facilities with the same three-star health inspection rating can have very different underlying citations. Compare registered nurse staffing hours specifically, not just total nursing hours, since RN coverage is the figure most directly tied to how quickly a facility can respond to a medical emergency. Texas nursing facilities already carry an independent duty to provide quality care under Texas Health and Safety Code Chapter 242, and federally certified facilities must meet the participation standards set out in 42 CFR §483. Care Compare's health inspection domain is built directly from the same state surveys that measure compliance with those standards, so a pattern of low inspection scores at a specific facility is a meaningful, government-verified data point, not marketing copy from either side. What Should You Do If Care Compare Shows Red Flags at a Facility Your Family Is Already Using? A low rating or a recent drop on Care Compare does not by itself prove that any resident was harmed by negligence, but combined with a specific injury or decline in a loved one's condition, it becomes documented, government-verified context worth raising with an attorney. Start by contacting your local State Long-Term Care Ombudsman for an independent, current view of conditions at the facility. If you already suspect that a loved one was harmed by understaffing, a fall, a pressure injury, or another preventable event, an attorney, not the family, is the right party to pull and review the facility's full inspection and survey history as part of evaluating whether a nursing home negligence claim exists, since that history often includes findings that never made it onto the public-facing Care Compare summary. We Can Help At The Borah Law Firm, PLLC, we only handle medical malpractice cases in Texas, nothing else. As part of our practice, we represent patients and families in cases just like the one discussed in this blog. If you believe a loved one received substandard nursing home care, we can help you understand whether a case exists and what your options are. Contact us today so you can tell us your story. Frequently Asked Questions Is Medicare's Care Compare Website Free to Use?Yes. Care Compare is a free public website maintained by CMS, and it does not require a Medicare account, login, or personal information to search and compare nursing homes. How Often Is Care Compare Updated?The health inspection domain generally refreshes as new state surveys are completed and posted, while the staffing and quality measure domains refresh on a quarterly cycle. Expect a lag of weeks to months between an actual event at a facility, such as a new citation, and when it appears on the public website. Does a High Star Rating on Care Compare Mean a Nursing Home Is Safe?No. Two of the three ratings that make up the overall star are built from data the facility reports about itself, and CMS periodically resets the scoring thresholds, which can move a facility's star up or down without any change in the actual care provided. A high rating is a reasonable starting point, not a guarantee, and it should be read alongside the underlying inspection reports. About the Author: J.T. Borah is a Texas-licensed medical malpractice attorney and Texas Super Lawyer at The Borah Law Firm, PLLC in Austin, Texas. He has testified before both the Texas House and Senate on patient safety issues and focuses exclusively on medical malpractice cases statewide. About this article: AI writing tools assisted Mr. Borah in drafting this article. All legal analysis reflects his independent professional judgment. This article is for general informational purposes only. It is not legal advice and does not create an attorney-client relationship. Link: https://www.medicare.gov/care-compare/?providerType=NursingHome&redirect=true  A nursing home's brochure will tell you about compassionate care and a dedicated staff. It will not tell you whether the federal government has already documented a pattern of serious failures at that facility. In August 2026, a nursing home in Austin joined that federal watchlist. Five other Texas facilities remain on it right now, and dozens more are close behind them.
What Is CMS's Special Focus Facility Program, and Why Does It Matter to Your Family? The Centers for Medicare & Medicaid Services (“CMS”) Special Focus Facility (“SFF”) program identifies nursing homes with a documented, multi-year pattern of serious quality problems and places them under inspection twice as often as an ordinary facility until they improve or lose their Medicare and Medicaid participation. CMS builds the list from roughly three years of survey history before a facility is first selected. Most nursing homes average six to seven deficiencies on a standard inspection. Facilities selected for the SFF program have shown a pattern of roughly twice that number, more serious harm to residents, and a history of correcting problems on paper only to have them resurface at the next inspection. CMS calls this a “yo-yo” compliance history. The program exists because periodic fixes were not solving the underlying, systemic problems. Which Texas Nursing Homes Are Currently on CMS's Special Focus Facility List? Six Texas nursing homes appear on CMS's current Special Focus Facility list, posted August 26, 2026, including one newly designated facility in Austin, two in the Houston area, and one each in Beaumont, Terrell, and Arlington. These facilities are
The list also moves in the other direction. Gracy Woods Nursing Center in Austin graduated from the program on July 13, 2026, and Oakmont Healthcare and Rehabilitation of Humble graduated on March 30, 2026. Graduation reflects sustained improvement over two consecutive surveys. It does not erase the facility's prior history. Which Texas Nursing Homes Are on CMS's Candidate List, One Step Behind? Alarmingly, thirty (30) Texas nursing homes sit on CMS's Special Focus Facility candidate list as of the August 26, 2026, posting, meaning they scored high enough on CMS's deficiency-point formula to be eligible for selection the next time a Texas SFF slot opens. Candidate status is not the same as SFF status. These facilities have not been cited at Immediate Jeopardy for this designation, are not yet under twice-yearly inspection, and have not been formally selected into the program. CMS draws roughly five candidates for every SFF slot in a state, with a cap of 30 per state, which is why Texas, with six current SFF slots, has exactly 30 candidates listed. One can only imagine how many nursing homes would be on this list if CMS did not place a cap on this list. Listed below with each facility's city and months on the candidate list, longest-listed first. A longer time as a candidate does not by itself mean a facility is next in line. Selection depends on the same deficiency-point scoring CMS uses to build the list in the first place, along with each facility's prevalence of resident falls. These facilities are
Note: this same August 26, 2026, posting also lists this facility as a newly selected current SFF in Table A. That overlap appears in CMS's own data and was not something we could resolve independently; it likely reflects the point at which the posting was updated mid-transition.
What Do “Met” and “Not Met” Actually Tell You About a Facility? A facility graduates from the SFF program only after two consecutive standard health surveys with 12 or fewer deficiencies, each rated at scope and severity level E or below. “Met” means the facility satisfied that standard on its most recent survey and is on track toward graduation if it repeats the result. “Not met” means it fell short and must restart the two-survey clock. A facility cited at Immediate Jeopardy on two separate surveys while in the program can instead be considered for discretionary termination from Medicare and Medicaid. Why Does an SFF History Matter If You Are Evaluating a Nursing Home Negligence Case? Texas nursing facilities are already required to provide quality care under Texas Health and Safety Code Chapter 242, and federal facilities receiving Medicare or Medicaid funding must meet the participation standards set out in 42 CFR §483.25. A facility's SFF status and survey history do not by themselves prove that any individual resident was harmed by negligence. What they do provide is documented, government-verified evidence of a facility's pattern of care, which can corroborate a claim that a specific injury resulted from understaffing, inadequate supervision, or other conditions the facility already knew about. A citation rated at Immediate Jeopardy is CMS's most serious finding. It means a surveyor determined the facility's noncompliance had caused, or was likely to cause, serious injury, harm, impairment, or death to a resident. Families evaluating a nursing home negligence claim should ask whether the facility's inspection history includes findings at this level, since it speaks directly to whether the facility's own regulator identified the same type of danger the family is now describing. What Should You Do If Your Loved One Lives at a Facility on This List? Start by reviewing the facility's public inspection record on CMS's Care Compare website, but keep in mind the ratings on this website are mostly based on self-reported data. Next, ask the facility directly what specific steps it has taken since being named an SFF. Contact your local State Long-Term Care Ombudsman for an independent view of the facility's current conditions. If you already suspect that a loved one was harmed by understaffing, a fall, a pressure injury, or another preventable event, an attorney, not the family, is the right party to request and review the facility's clinical and survey records as part of evaluating whether a claim exists. We Can Help At The Borah Law Firm, PLLC, we only handle medical malpractice cases in Texas, nothing else. As part of our practice, we represent patients and families in cases just like the one discussed in this blog. If you believe a loved one received substandard nursing home care, we can help you understand whether a case exists and what your options are. Contact us today so you can tell us your story. Frequently Asked Questions What Does It Mean If My Loved One's Nursing Home Is on CMS's Special Focus Facility List? It means CMS has identified a documented, multi-year pattern of serious quality deficiencies at that facility and has placed it under inspection twice as often as an ordinary nursing home until it graduates or is terminated from Medicare and Medicaid. It does not automatically mean any specific resident, including your loved one, has been harmed, but it does confirm the facility has a government-verified history of serious problems. Can a Nursing Home Get Removed From the Special Focus Facility List? Yes. A facility graduates after two consecutive standard health surveys with 12 or fewer deficiencies rated at scope and severity level E or below. A facility cited at Immediate Jeopardy on two surveys while in the program can instead face termination from Medicare and Medicaid rather than graduation. Does a Facility Not Being on the List Mean It Is Safe? No. Each state has a limited number of SFF slots, filled from a much larger candidate pool, so the list captures only the facilities with the most severe and persistent histories at any given time. Most nursing home negligence claims involve facilities that have never appeared on the SFF list at all. About the Author: J.T. Borah is a Texas-licensed medical malpractice attorney and Texas Super Lawyer at The Borah Law Firm, PLLC in Austin, Texas. He has testified before both the Texas House and Senate on patient safety issues and focuses exclusively on medical malpractice cases statewide. About this article: AI writing tools assisted Mr. Borah in drafting this article. All legal analysis reflects his independent professional judgment. This article is for general informational purposes only. It is not legal advice and does not create an attorney-client relationship. Link: https://www.cms.gov/files/document/sff-posting-candidate-list-august-2026.pdf  Imagine a Texas mother arriving at labor and delivery with a racing pulse and high blood pressure, only to be told the next morning that her baby did not survive the night. She later learns that the medical team struggled for hours to find a fetal heartbeat before confirming the loss. She wants to know whether the hospital can be held accountable. What she often discovers is one of the more difficult and counterintuitive rules in Texas medical malpractice law. In most cases, a baby who dies before being born cannot support a lawsuit against the doctors and hospital involved, even when the family believes negligence caused that death.
This rule surprises many families, and understandably so. It is not the product of oversight or an accident of drafting. It reflects a deliberate choice by the Texas Legislature, later tested before the Texas Supreme Court and upheld. Understanding exactly how the rule works, where its boundaries fall, and what options remain for grieving parents is essential for any family in Texas facing the sudden loss of a baby during pregnancy or delivery. Do Parents Have to Prove Their Baby Was Born Alive to Sue a Doctor for Medical Malpractice in Texas? In most cases involving a health care provider, yes, because Texas law specifically excludes claims against physicians and hospitals for the death of an unborn child when that death arises from medical or health care treatment, which means a baby generally must be born alive before a family can pursue a wrongful death or survival claim against the provider. Two different Texas statutes potentially apply after a death caused by negligence, the Texas Wrongful Death Act, Texas Civil Practice and Remedies Code §71.002, which allows certain family members to recover for their own losses, and the Texas survival statute, Texas Civil Practice and Remedies Code §71.021, which allows the deceased individual's own personal injury claim to continue after death. Texas Civil Practice and Remedies Code §71.001 does extend the term individual to an unborn child at every stage of gestation from fertilization until birth, and it defines death to include the failure of an unborn child to be born alive. On its face, this language appears to give every family the right to sue over the loss of a pregnancy. Texas Civil Practice and Remedies Code §71.003(c)(4), however, carves out a specific and controlling exception. That subsection states that the wrongful death chapter does not apply to a claim for the death of an unborn child brought against a physician or other licensed health care provider when the death is caused by, associated with, arises out of, or relates to a lawful medical or health care practice or procedure. In practical terms, this means the broader protections the Legislature created for unborn children in 2003, protections that do allow lawsuits against drunk drivers, negligent employers, or other third parties who cause a stillbirth, simply do not extend to claims against the doctors and hospitals providing obstetric or delivery care. Why Does Texas Treat a Stillbirth Differently From a Baby Who Dies Shortly After Birth? Texas draws the legal line at live birth rather than at viability, meaning a baby who shows any sign of life after delivery, even briefly, before dying from injuries caused during pregnancy or labor is treated as an individual whose death can support a full wrongful death and survival claim against negligent health care providers. This distinction predates the 2003 statute. In Leal v. C.C. Pitts Sand and Gravel, Inc., the Texas Supreme Court held in 1967 that the parents of a viable infant who is born alive have a cause of action under the wrongful death statute if the baby later dies from injuries inflicted while still in the womb. That principle remains good law today. A baby injured by a delayed cesarean section, a missed sign of fetal distress, or a birth injury such as hypoxic-ischemic encephalopathy who is born alive and later dies from those injuries falls outside the health care provider exception in §71.003(c)(4), because that exception applies only to the death of an unborn child, not to the death of a child who was born alive. The 2003 amendment and the accompanying exception for health care providers, was a direct legislative response to decades of Texas Supreme Court decisions holding that a stillborn baby was not an individual or person under the wrongful death and survival statutes. Rather than fully reversing that line of cases for medical malpractice claims, the Legislature chose to preserve the born-alive requirement specifically where a physician or hospital is the defendant. What Happened in Fort Worth Osteopathic Hospital, Inc. v. Reese, and Why Does It Still Matter? In 2004, the Texas Supreme Court confirmed in Fort Worth Osteopathic Hospital, Inc. v. Reese that parents of a stillborn baby could not bring a wrongful death or survival claim against the treating health care providers, and it rejected the argument that this result violates the Equal Protection clause of the United States Constitution. Tara Reese arrived at a Fort Worth hospital in her seventh month of pregnancy with a racing pulse and high blood pressure. Doctors monitored the fetal heart tones through the night, often with difficulty, and confirmed the following morning that the baby had died in the womb. Tara and her husband sued the hospital and several physicians for wrongful death and survival damages, and separately, Tara brought her own claim for the mental anguish she suffered during her treatment. The Texas Supreme Court held that the wrongful death and survival statutes do not violate the Equal Protection Clause of the United States Constitution or the Texas Constitution by excluding a stillborn child from their protection, reasoning that the United States Supreme Court's decision in Roe v. Wade holds that the unborn fall outside the protection of the Fourteenth Amendment. The Court also noted that the 2003 amendment to §71.001 would not have changed the outcome in the Reese case itself, since the statute's health care provider exception under §71.003(c)(4) would have barred the claim regardless. Can a Mother Recover Damages Even When Texas Law Bars a Claim for Her Baby's Death? Yes, a Texas mother retains her own separate claim against negligent health care providers for the physical and mental anguish she personally experienced from substandard treatment during pregnancy or delivery, even though Texas law bars her own separate claim against negligent health care providers for the physical and mental anguish she personally experienced from the loss of the unborn child. In Krishnan v. Sepulveda, decided in 1995, the Texas Supreme Court held that a mother may recover mental anguish damages when a doctor's negligence causes the loss of her baby, even without proof of a separate physical injury. The elements of that claim include a breach of the legal duty to provide the mother competent medical care, a breach that proximately causes the loss of the baby, and mental anguish resulting from that loss. Two years later, in Edinburg Hospital Authority v. Trevino, the Court clarified that a mother's recoverable mental anguish must relate to the injury she suffered to her own body and health, and not to the grief of losing the baby as a separate loved one, since damages for loss of society, companionship, and affection with an unborn child remain unavailable under Texas law. In the Reese case itself, the Court found that Tara Reese's description of a long and painful delivery, endured with the knowledge that her baby had already died, raised a fact question sufficient to send her individual claim to a jury. Neither of these rulings was affected by the 2003 amendment. For families facing a childbirth injury of this kind, the mother's own claim, not a wrongful death or survival claim, is often the primary legal avenue available against the treating physicians and hospital. What Should a Texas Family Do if They Believe Malpractice Caused Their Baby's Death? A Texas family who suspects that medical negligence caused a stillbirth or a birth injury resulting in death should preserve any documentation of the pregnancy and delivery and consult a medical malpractice attorney well before the two-year deadline that governs most health care liability claims in Texas. Whether a claim is available, and which type of claim, depends heavily on the specific facts, including whether the baby ever showed a sign of life after delivery and whether the mother's own treatment fell below the accepted standard of care. An experienced attorney can evaluate whether the facts support a mother's individual claim, a maternal birth injury claim, a wrongful death and survival claim for a baby born alive, or both. We Can Help At The Borah Law Firm, PLLC, we only handle medical malpractice cases in Texas, nothing else. As part of our practice, we represent patients and families in cases just like the one discussed in this blog. If you believe a loved one received substandard prenatal or delivery care, we can help you understand whether a case exists and what your options are. Contact us today so you can tell us your story. Frequently Asked Questions If My Baby Died Before Birth, Do I Have Any Legal Options in Texas? In most cases, Texas law does not allow a wrongful death or survival claim against the treating physician or hospital for a baby who died before birth, but the mother may still have her own individual claim for the physical and mental anguish caused by substandard medical care. An attorney can review the medical records to determine whether this individual claim, recognized in cases such as Krishnan v. Sepulveda and Fort Worth Osteopathic Hospital, Inc. v. Reese, applies to your situation. Does It Matter Whether My Baby Was Born Alive Before Dying? Yes, it matters a great deal, because Texas law treats a baby who shows any sign of life after delivery, even briefly, as an individual capable of supporting a full wrongful death and survival claim against negligent health care providers. A baby who dies before delivery is complete, by contrast, generally falls within the health care provider exception found in Texas Civil Practice and Remedies Code §71.003(c)(4), which forecloses that same claim. How Long Do I Have to File a Claim After Losing a Baby to Medical Negligence in Texas? Texas Civil Practice and Remedies Code §74.251 generally requires a health care liability claim to be filed within two years of the breach or of the completion of the relevant treatment, subject to a ten-year statute of repose. Because evidence such as fetal monitoring strips and nursing notes can be difficult to obtain and interpret, families should consult an attorney as soon as possible rather than waiting until the deadline approaches. About the Author: J.T. Borah is a Texas-licensed medical malpractice attorney and Texas Super Lawyer at The Borah Law Firm, PLLC in Austin, Texas. He has testified before both the Texas House and Senate on patient safety issues and focuses exclusively on medical malpractice cases statewide. About this article: AI writing tools assisted Mr. Borah in drafting this article. All legal analysis reflects his independent professional judgment. This article is for general informational purposes only. It is not legal advice and does not create an attorney-client relationship.  The four previous posts in this series of blogs have focused on children who survive, injuries like hypoxic-ischemic encephalopathy, cerebral palsy, kernicterus, and shoulder dystocia. That was not an accident of topic selection. It reflects a hard economic reality created by Texas law when a newborn dies during pregnancy, delivery, or shortly after birth, rather than surviving with an injury.
This particular post attempts to explain why families in that situation may find it difficult to find a Texas medical malpractice attorney who will take their case. These families deserve an honest explanation of why so many firms, including mine, decline these cases far more often than cases involving a surviving child. It is my intent to explain that reality directly. What Damages Are Available When a Newborn Dies From Medical Negligence in Texas? Texas law provides two separate legal vehicles after a death caused by medical negligence, and they recover different things for different people. Neither one was built with an infant's death specifically in mind, and that mismatch is where the practical difficulty begins. The Texas Survival statute allows the deceased's own personal injury claim to continue after death, but only for damages the deceased personally experienced before dying, which, in the case of a baby are primarily conscious pain and suffering and medical expenses that were actually incurred. For a newborn who dies at or shortly after birth, this claim is often minimal, since the window during which the infant personally experienced anything compensable may be brief or difficult to establish. The Texas Wrongful Death Act, by contrast, is a separate claim belonging to the parents themselves, as statutory beneficiaries, for their own losses, which can include both non-economic damages, such as mental anguish and loss of companionship, and, in theory, economic damages tied to the pecuniary value of what the child would have contributed to the family. Can a Family Recover Economic Damages for a Newborn's Lost Future Earnings? In theory, yes, through the Wrongful Death Act's pecuniary loss theory. However, in practice, this path is nearly impossible to walk for a newborn and understanding why requires looking at what this kind of proof actually demands. In Pediatrics Cool Care v. Thompson, 638 S.W.3d 218, 237 (Tex. App. 2021), rev'd, 649 S.W.3d 152 (Tex. 2022), the 14th Court of Appeals in Houston affirmed a jury's award of pecuniary damages to the parents of a 14-year-old minor as wrongful death beneficiaries. The record in that case was substantial. The minor helped care for her younger half-brother, was described in testimony as wanting to be “a baby doctor” because she “loved children,” and her parents testified she planned to take care of them as they grew older. An economist retained by the family calculated the discounted present value of her pecuniary loss under three separate scenarios, high school graduate, college graduate, and obstetrician-gynecologist, using Bureau of Labor Statistics data, an estimated 33-year work life, and an estimated 81-year life expectancy, arriving at figures ranging from 1.7 million dollars to 4.3 million dollars. The Court of Appeals held this combined testimony legally and factually sufficient to support the jury's award, reasoning that a jury may draw on its own knowledge and experience in assessing pecuniary loss and that the defendants' criticisms of the economist's testimony went to weight rather than admissibility. The Texas Supreme Court later reversed the judgment, but on grounds unrelated to this issue: the court held that the plaintiffs' causation expert failed to establish the required but-for causation standard for the underlying malpractice claim, and the opinion did not reach or disturb the Court of Appeals' reasoning on pecuniary damages. The reversal means the family ultimately recovered nothing, and this case should not be cited as settled, controlling precedent on future earnings evidence. What this case appears to illustrate is the kind of evidence that is required in order to support a claim for the future lost wages of a child, which are:
A newborn has none of these things. There is no caregiving history, no stated career goal, no test of general learning ability, and no expressed intention about supporting parents later in life. The evidentiary foundation this claim requires does not merely weaken as a child's age drops. At the point of a newborn, it does not exist. What Does This Mean for the Total Value of a Newborn Wrongful Death Case? The realistic maximum recovery in most newborn wrongful death cases lands at or near a fixed statutory ceiling, regardless of how clearly the medical negligence can be proven. If a single Defendant is found responsible, whether an individual physician or a hospital, non-economic damages are capped at $250,000. If both an individual and an institution are found responsible, that ceiling rises to $500,000, combining each Defendant's separate $250,000 cap. This number does not grow with inflation. It is fixed by statute and stays fixed no matter how many years the case takes to resolve. Because a newborn wrongful death case typically has no significant economic damages to add on top of it, this fixed non-economic ceiling usually is the case, not just one piece of it. That sounds like a lot of money, but the problem is that Texas medical malpractice cases require substantial upfront investment from the firm handling them: a standard of care expert, a causation expert, often additional specialists, and years of litigation before any resolution. On a contingency fee basis, the firm advances all of that itself and recovers nothing unless the case succeeds. Run those numbers against a $250,000 or $500,000 ceiling, subtract the firm's contingency percentage and its advanced case expenses, and what is left for the family is often startlingly small given everything the case demanded to get there. That gap, not indifference to the loss, is why a firm cannot responsibly take on a case like this. The arithmetic does not work, no matter how strong the underlying negligence claim is. This is the honest reason these cases are declined far more often than cases involving a child who survives with a lasting injury. A surviving child's future medical and care costs are uncapped economic damages, and that uncapped category is frequently what makes a case viable even under the identical non-economic cap. What Should a Family Do If They Believe Their Newborn's Death Was Caused by Medical Negligence? Consult an attorney regardless of this general pattern, because the specific facts of a case can change this analysis. A longer period of conscious survival before death can increase the value of a survival claim. Evidence supporting gross negligence can open the door to exemplary damages calculated differently than compensatory damages. Multiple viable Defendants, or a case with unusually well-documented economic contribution evidence, can change the picture entirely. Texas Health & Safety Code §241.154 requires a hospital to provide medical records within 15 days of a written request, and requesting the complete labor, delivery, and neonatal record is a reasonable first step regardless of whether a case ultimately proceeds. Texas Civil Practice and Remedies Code §74.351 requires a Claimant asserting a health care liability claim to serve a preliminary expert report on each Defendant within 120 days of the date on which that Defendant filed their Answer to a lawsuit. This preliminary expert report is required to explain the standard of care, how it was breached, and how the breach caused the injury based on the information then available. A decision not to pursue litigation is not the same as a decision that nothing wrong happened, and a family facing this loss deserves a direct, honest answer about their legal options rather than false hope. Can We Help? Generally, no. As stated at the beginning of this blog, our firm does not take these cases. While every matter depends on its own facts, our experience has been that litigation in cases like this can place a heavy burden on families, both emotionally and in terms of time, and the outcome has often not justified that toll. At The Borah Law Firm, PLLC, we handle medical malpractice cases in Texas, but not cases of this type. Frequently Asked Questions Can I sue if my newborn died from medical negligence in Texas? You can pursue a survival claim, a wrongful death claim, or both, but Texas damage caps and the practical unavailability of economic damages for an infant often make these cases economically difficult to pursue on a contingency fee basis, even when the underlying negligence can be proven. Why are damages capped in Texas medical malpractice cases involving a child's death? Texas law limits the amount that can be recovered in medical malpractice cases. In a child’s death case, those limits can be especially difficult for families because the loss is so heartbreaking, yet the law may still cap what can be recovered no matter how serious the mistake was. That means the legal recovery may not fully reflect the depth of the family’s loss. Can a family recover money for a child's lost future earnings in Texas? It is theoretically possible under the Wrongful Death Act, but it requires evidence such as a testable general learning ability, an academic record, and stated goals that an infant cannot provide. This kind of claim becomes more difficult to prove the younger the child is, and is generally not available for a newborn. About the Author: J.T. Borah is a Texas-licensed medical malpractice attorney and Texas Super Lawyer at The Borah Law Firm, PLLC in Austin, Texas. He has testified before both the Texas House and Senate on patient safety issues and focuses exclusively on medical malpractice cases statewide. About this article: AI writing tools assisted Mr. Borah in drafting this article. All legal analysis reflects his independent professional judgment. This article is for general informational purposes only. It is not legal advice and does not create an attorney-client relationship. Link: https://texas.public.law/statutes/tex._civ._practice_and_remedies_code_section_74.303  This post is the fourth in a series of articles that explain what Texas law requires you to prove in different types of birth injury cases, who can actually be sued, and how much time you have to act. This particular post explains what cerebral palsy is, what the research says about its causes, and what evidence separates a genuinely preventable injury from one that was not.
A child is diagnosed with cerebral palsy, and it is natural for a family to assume something must have gone wrong during delivery. However, the research does not support that assumption in most cases. Decades of epidemiological study have consistently found that the large majority of cerebral palsy cases trace back to factors already present before labor even began, not to anything that happened in the delivery room. That does not mean a birth injury never causes cerebral palsy. It means the question deserves a careful, evidence-based answer rather than an assumption in either direction. What Is Cerebral Palsy, and What Actually Causes It? Cerebral palsy is a group of permanent disorders affecting movement and posture, caused by a disturbance in the developing brain. It is not a single condition with a single cause. It is a description of an outcome that can result from many different underlying events, occurring at many different points before, during, or after birth. A template for defining a causal relation between acute intrapartum events and cerebral palsy is an international consensus statement developed by task forces including obstetric and pediatric specialists. It found that in roughly 90 percent of cases, intrapartum hypoxia could not be identified as the cause of the child's cerebral palsy. Other large epidemiological reviews have reached similar conclusions, generally finding that 70 to 80 percent of cerebral palsy cases are associated with factors present before labor, including prematurity, intrauterine growth restriction, intrauterine infection, genetic and chromosomal conditions, and placental abnormalities that developed over the course of the pregnancy. Birth asphyxia, meaning inadequate oxygen during labor and delivery, is estimated to account for well under 10 percent of cases. These are not numbers a family should have to take on faith. They come from decades of peer-reviewed research, and they mean that a cerebral palsy diagnosis, standing alone, is not evidence that the delivery was mismanaged. If Most Cerebral Palsy Is Not Caused by Delivery, When Can It Still Be Malpractice? Malpractice becomes a real question in the minority of cases where the medical record shows specific, identifiable evidence of an acute intrapartum hypoxic-ischemic event, evidence that goes well beyond a cerebral palsy diagnosis alone. Texas law and the underlying medicine both require that specificity before a case can be evaluated seriously. The same international consensus framework used to evaluate hypoxic-ischemic encephalopathy applies here, since many, though not all, intrapartum-caused cerebral palsy cases begin with a hypoxic-ischemic injury at birth. The framework looks for a sentinel hypoxic event, such as
When a child's medical record shows this specific pattern, the case for an intrapartum cause is meaningfully stronger. When it does not, a cerebral palsy diagnosis by itself typically will not support a health care liability claim. What Role Do Therapeutic Hypothermia and Early Treatment Play? When a newborn does show signs of an acute hypoxic-ischemic injury at birth, a separate and time-sensitive standard of care applies to how quickly that injury is treated, independent of whatever caused it in the first place. For babies born at 36 weeks' gestation or later with moderate-to-severe hypoxic-ischemic encephalopathy, therapeutic hypothermia, also called cooling therapy, has been the standard of care since 2010 and remains the only treatment shown to reduce the risk of death or long-term disability, including cerebral palsy. A 2026 clinical report from the American Academy of Pediatrics (“AAP”) confirms that cooling must generally begin within 6 hours of birth and continue for 72 hours to be effective. A hospital that fails to recognize a newborn's eligibility for this treatment, or that delays transferring the baby to a facility equipped to provide it, can bear responsibility for a worse outcome than the underlying injury alone would have caused, even if the original hypoxic event itself was not preventable. What Medical Evidence Helps Distinguish an Intrapartum Injury From a Pre-Existing One? Several categories of evidence typically drive this analysis, and a qualified medical expert usually needs to review all of them together rather than relying on any single record in isolation. These categories of evidence include
No single piece of evidence is conclusive by itself, which is exactly why a cerebral palsy case requires this kind of comprehensive review rather than a conclusion drawn from the diagnosis alone. What Should a Family Do If Their Child Was Diagnosed With Cerebral Palsy? First, request the complete labor, delivery, and neonatal record as early as possible, along with the placental pathology report if one was performed. Because most cerebral palsy has nothing to do with the delivery, a careful record review before deciding whether to pursue a claim protects your family from pursuing a case the evidence will not support, just as much as it protects your right to pursue one the evidence does support. Texas Health & Safety Code §241.154 requires a hospital to provide these records to the patient within 15 days of a written request. Texas Civil Practice and Remedies Code §74.351 requires a Claimant asserting a health care liability claim to serve a preliminary expert report on each Defendant within 120 days of the date on which that Defendant filed their Answer to a lawsuit. This preliminary expert report is required to explain the standard of care, how it was breached, and how the breach caused the injury based on the information then available. Given how heavily a cerebral palsy case depends on ruling out non-intrapartum causes, that expert report typically requires input from more than one type of specialist. Texas's statute of limitations for these claims generally requires action within two years, with a specific, more complicated rule for young children, so it is worth having the records reviewed sooner rather than later. We Can Help At The Borah Law Firm, PLLC, we only handle medical malpractice cases in Texas, nothing else. As part of our practice, we represent patients and families in cases just like the one discussed in this blog. If you believe a loved one received substandard birth injury care, whether in a nursing home, assisted living facility, or hospital, we can help you understand whether a case exists and what your options are. Contact us today so you can tell us your story. Frequently Asked Questions Is cerebral palsy always caused by something that happened during birth? No. Research consistently finds that 70 to 80 percent of cerebral palsy cases are associated with factors present before labor began, and that birth asphyxia accounts for well under 10 percent of cases. A cerebral palsy diagnosis alone is not evidence that the delivery was mismanaged. What evidence can show whether cerebral palsy was caused by a birth injury? Evidence typically includes fetal heart rate monitoring strips showing a sudden change from a previously normal pattern, umbilical cord blood gas results showing significant acidemia, newborn brain imaging, and placental pathology findings. A qualified medical expert usually needs to review these together to reach a conclusion. How long do I have to file a cerebral palsy malpractice claim in Texas? Texas generally requires a health care liability claim to be filed within two years, though claimants younger than 12 at the time of the injury may have longer under Texas Civil Practice and Remedies Code §74.251. The rules are complicated enough that a family should not calculate the deadline on their own. About the Author: J.T. Borah is a Texas-licensed medical malpractice attorney and Texas Super Lawyer at The Borah Law Firm, PLLC in Austin, Texas. He has testified before both the Texas House and Senate on patient safety issues and focuses exclusively on medical malpractice cases statewide. About this article: AI writing tools assisted Mr. Borah in drafting this article. All legal analysis reflects his independent professional judgment. This article is for general informational purposes only. It is not legal advice and does not create an attorney-client relationship. Link: https://pmc.ncbi.nlm.nih.gov/articles/PMC1116849/  This post is the third in a series of articles that explain what Texas law requires you to prove in different types of birth injury cases, who can actually be sued, and how much time you have to act. Additionally, this particular post walks through what shoulder dystocia is, what the medical literature actually says about what causes brachial plexus injuries, and what separates an unavoidable complication from a preventable one.
A baby is born with a limp arm, a diagnosis of brachial plexus injury follows, and a family is told the delivery involved shoulder dystocia. The natural question is whether someone did something wrong. The honest answer is more complicated than yes or no. Shoulder dystocia itself is widely recognized in the medical literature as largely unpredictable, but how a delivery team responds to it, and whether the resulting injury came from that response or from the natural forces of labor, is where a real legal question can exist. What Is Shoulder Dystocia, and Why Does ACOG Call It Unpredictable? Shoulder dystocia occurs when a baby's anterior shoulder becomes lodged behind the mother's pubic bone after the head has been delivered, preventing the rest of the body from following. It is an obstetric emergency requiring a quick, coordinated response, but according to the profession's own guidance, it is not something a physician can reliably predict or prevent in advance. The American College of Obstetricians and Gynecologists' (“ACOG”) Practice Bulletin No. 178 on shoulder dystocia describes shoulder dystocia as an unpredictable and unpreventable obstetric emergency, noting that pre-pregnancy, antepartum, and intrapartum risk factors, including fetal macrosomia, maternal diabetes, and a prolonged second stage of labor, have extremely poor predictive value. That matters legally, because it means the mere fact that shoulder dystocia occurred, even in a pregnancy with known risk factors, is generally not by itself evidence of negligence. ACOG's guidance instead focuses on what happens after dystocia is recognized: a systematic, practiced response using recognized maneuvers, with the McRoberts maneuver typically used first, followed by suprapubic pressure and, if needed, delivery of the posterior arm or other techniques. If Shoulder Dystocia Itself Isn't Preventable, What Part of the Delivery Can Be Malpractice? The legal question in most shoulder dystocia cases is not whether the dystocia happened. It is whether the delivery team responded to it consistent with the recognized standard of care, using appropriate maneuvers in appropriate sequence, without applying excessive or misdirected force to free the baby. ACOG's guidance and the broader obstetric literature emphasize a systematic approach:
A shoulder dystocia delivery note that documents which maneuvers were attempted, in what order, and how much time elapsed between delivery of the head and delivery of the body is often central to evaluating whether the response met that standard. A delivery note that simply says “shoulder dystocia managed, baby delivered” without that detail can itself become a point of dispute. Does Excessive Traction Always Cause the Brachial Plexus Injury? No, and this is genuinely contested in the medical literature, not just a defense talking point. Excessive lateral traction by the delivering physician has traditionally been treated as the primary cause of brachial plexus injury, but a substantial body of obstetric research shows that some of these injuries occur without any physician traction at all. Multiple studies have documented brachial plexus injuries occurring in deliveries without a recognized shoulder dystocia, following cesarean sections with no traction applied to the fetal head, and affecting the posterior arm, which is not subjected to the same lateral traction as the anterior shoulder during standard maneuvers. These findings have supported what is sometimes called the propulsive force theory, the idea that the natural, powerful forces of uterine contractions and maternal pushing during a prolonged second stage can themselves stretch or injure the brachial plexus independent of anything the delivering physician does. Some courts have found, based on this literature and case-specific expert testimony, that a baby's injury resulted from the natural forces of labor rather than physician conduct. None of this means excessive traction never causes these injuries. It does mean that a brachial plexus injury following shoulder dystocia is not, by itself, proof of malpractice, and the specific facts of the delivery, not just the diagnosis, drive the outcome. Texas Civil Practice and Remedies Code §74.351 reflects this reality by requiring a Claimant to serve a preliminary expert report establishing the standard of care, the breach, and causation before a health care liability claim can proceed. In a shoulder dystocia case, that causation element is often the most contested part of the entire claim. What Evidence Do Experts Look At to Determine Whether Excessive Force Was Used? Experts on both sides of a case typically start with the delivery note itself: which maneuvers were used, in what sequence, and how much time passed from delivery of the head to delivery of the body. A prolonged head-to-body interval combined with a sparse or inconsistent delivery note is one of the more common patterns that draws scrutiny. Beyond the delivery note, experts often look at which arm was affected, since posterior arm injuries are harder to attribute to the physician's lateral traction on the anterior shoulder and can point toward a natural-forces explanation instead. The fetal heart rate tracing in the period before delivery can show whether the baby was already in distress prior to any traction being applied. Nursing documentation, including who was present and what was announced during the emergency, can corroborate or contradict the physician's own delivery note. The infant's Apgar scores and the initial newborn examination findings also factor into reconstructing the timeline. No single piece of this evidence is conclusive on its own. Together, they let a qualified obstetric expert form an opinion about whether the specific delivery is more consistent with a properly managed emergency or a departure from accepted technique. What Should a Family Do If Their Baby Was Diagnosed With a Brachial Plexus Injury After Shoulder Dystocia? First, request the complete delivery record before drawing conclusions either way. Given how genuinely contested the causation question can be, a brachial plexus injury diagnosis alone does not tell a family whether they have a case, and it does not tell them they do not. When requesting the records, make sure to ask for the full labor and delivery record, including the physician's delivery note, nursing notes from the time of the emergency, fetal heart rate monitoring strips, and the newborn's initial examination and Apgar documentation. Because the medical literature on this question is genuinely split, a case usually cannot be evaluated from the diagnosis alone. It typically requires a qualified obstetric expert reviewing the specific facts of the delivery against the records. Texas's statute of limitations for health care liability claims generally requires action within two years, so it's worth having that record review happen sooner rather than later. A birth injury attorney can help coordinate that expert review and explain what the records do and do not show before you have to decide whether to pursue a claim. We Can Help At The Borah Law Firm, PLLC, we only handle medical malpractice cases in Texas, nothing else. As part of our practice, we represent patients and families in cases just like the one discussed in this blog. If you believe a loved one received substandard birth injury care, whether in a nursing home, assisted living facility, or hospital, we can help you understand whether a case exists and what your options are. Contact us today so you can tell us your story. Frequently Asked Questions Is shoulder dystocia always caused by medical negligence? No. Shoulder dystocia is widely recognized in the medical literature as largely unpredictable and unpreventable, even in pregnancies with known risk factors. The legal question usually is not whether it occurred, but whether the delivery team's response to it met the accepted standard of care. What is a brachial plexus injury and is it always permanent? A brachial plexus injury involves damage to the network of nerves that runs from the spinal cord to the shoulder, arm, and hand, and it's one of the possible complications of a shoulder dystocia delivery. Most of these injuries are temporary and resolve with time and therapy, though a meaningful percentage result in permanent nerve damage. How do I know if my baby's brachial plexus injury was caused by excessive traction? You generally can't know from the diagnosis alone. The medical literature recognizes that brachial plexus injuries can result from physician traction or from the natural forces of labor, and distinguishing between the two typically requires a qualified obstetric expert reviewing the specific delivery record. About the Author: J.T. Borah is a Texas-licensed medical malpractice attorney and Texas Super Lawyer at The Borah Law Firm, PLLC in Austin, Texas. He has testified before both the Texas House and Senate on patient safety issues and focuses exclusively on medical malpractice cases statewide. About this article: AI writing tools assisted Mr. Borah in drafting this article. All legal analysis reflects his independent professional judgment. This article is for general informational purposes only. It is not legal advice and does not create an attorney-client relationship. Link: https://www.acog.org/clinical/clinical-guidance/practice-bulletin/articles/2017/05/shoulder-dystocia  This post is the second in a series of articles that explain what Texas law requires you to prove in different types of birth injury cases, who can actually be sued, and how much time you have to act. Additionally, this particular post explains what hypoxic-ischemic encephalopathy is, what evidence points toward an intrapartum cause, and what separates a genuinely unavoidable injury from a preventable one.
A baby is diagnosed with hypoxic-ischemic encephalopathy, and a family is left trying to understand what that means and whether it could have been prevented. It is a fair question, and an honest answer requires more nuance than either “this always means malpractice” or “this is always just bad luck.” In fact, the medical profession's own guidance has moved specifically toward a more careful, multi-factor approach to this question and away from assuming every case traces back to something that happened during labor. What Is Hypoxic-Ischemic Encephalopathy, and What Causes It? Hypoxic-ischemic encephalopathy, commonly called HIE, is a type of brain injury caused by inadequate oxygen or blood flow to a baby's brain around the time of birth. It is a subset of a broader category called neonatal encephalopathy, and the distinction between the two matters more than families are usually told. Neonatal encephalopathy describes a newborn showing disturbed neurological function such as an abnormal level of consciousness, difficulty breathing, abnormal muscle tone, or seizures. HIE is the specific diagnosis given when that encephalopathy is attributed to an intrapartum hypoxic-ischemic event. The distinction matters because not every case of neonatal encephalopathy has an intrapartum cause. Brain injury can also originate earlier in the pregnancy from a genetic condition, an infection, a placental problem that developed over days or weeks, or a combination of factors that predate labor entirely. A diagnosis of encephalopathy at birth is the starting point for an investigation, not the answer to it. Does an HIE Diagnosis Mean the Delivery Team Did Something Wrong? Not automatically. The American College of Obstetricians and Gynecologists (“ACOG”) and the American Academy of Pediatrics (“AAP”) have specifically moved away from treating every case of neonatal encephalopathy as proof of an intrapartum hypoxic event, in favor of what they call a comprehensive, multidimensional assessment. ACOG's first task force report on this subject, published in 2003, laid out a rigid set of “essential criteria” for linking neonatal encephalopathy to an intrapartum hypoxic event. The second edition, Neonatal Encephalopathy and Neurologic Outcome, published jointly with the AAP in 2014, explicitly backed away from that rigidity, recognizing that multiple potential causal pathways can lead to encephalopathy in term infants and that the signs and symptoms range from mild to severe depending on the nature and timing of the injury. It is worth being candid that this shift has not been universally welcomed. Some Plaintiffs' attorneys and patient advocates have criticized the 2014 revision as giving hospitals and insurers more room to contest causation than the epidemiological evidence actually supports. Whichever view is correct in a given case, the practical result is the same: an HIE diagnosis opens a causation inquiry, it does not close one. What Evidence Suggests an Intrapartum Cause for HIE? The ACOG/AAP task force named specific findings that, together, point toward an intrapartum timing, even though the task force stopped short of calling any single one of them conclusive proof on its own. Those findings include
A fetal distress pattern that appears suddenly during labor, after a previously reassuring tracing, is one of the more significant pieces of evidence reviewed in these cases, precisely because it suggests the injury's timing rather than just its existence. Was Therapeutic Hypothermia Started in Time? Why the 6-Hour Window Matters. Separate from what caused the original injury, a distinct standard-of-care question exists after an HIE diagnosis is suspected: whether the baby was offered therapeutic hypothermia, and whether it started soon enough to do any good. This is often the most time-sensitive, and most litigated, part of an HIE case. Therapeutic hypothermia, sometimes called cooling therapy, has been the standard of care since 2010 for babies born at 36 weeks' gestation or later with moderate-to-severe HIE, and it remains the only treatment shown to improve long-term outcomes. A 2026 clinical report from the American Academy of Pediatrics confirms that cooling to a temperature of 33.5 to 34.5 degrees Celsius, initiated within 6 hours of birth and continued for 72 hours, reduces the risk of death or moderate-to-severe neurodevelopmental impairment. That 6-hour window is not a soft guideline. Every major cooling trial supporting this therapy excluded babies who started treatment later, and the AAP report notes that the benefit for babies who present between 6 and 24 hours of age is genuinely uncertain, requiring a documented discussion with the family about the tradeoffs. Any hospital or birthing center should have a plan in place to recognize a baby who may qualify and either begin cooling or arrange prompt transfer to a facility that can. A delay in recognizing the need for cooling, or a delay in transferring a baby to a facility equipped to provide it, can be a separate and independent failure from whatever caused the underlying injury. What Should a Family Do If Their Baby Was Diagnosed With HIE? First, request the complete labor, delivery, and NICU record as early as possible. Ask specifically for the fetal heart rate monitoring strips from the entire labor, the delivery note, Apgar scores, umbilical cord blood gas results, the timing of the newborn's first neurological examination, and, if applicable, the exact time therapeutic hypothermia was initiated relative to the time of birth. Because causation in HIE cases depends on a detailed timeline, the specific records and their timestamps matter enormously, more than they do in many other types of malpractice claims. Texas Health & Safety Code §241.154 requires a hospital to provide these records to the patient within 15 days of a written request. Texas Civil Practice and Remedies Code §74.351 requires a Claimant asserting a health care liability claim to serve a preliminary expert report on each Defendant within 120 days of the date on which that Defendant filed their Answer to a lawsuit. This preliminary expert report is required to explain the standard of care, how it was breached, and how the breach caused the injury based on the information then available. In an HIE case, that report typically depends on a maternal-fetal medicine or neonatology expert reconstructing this exact timeline from the records. Texas's statute of limitations for these claims generally requires action within two years, with a specific, more complicated rule for young children, so it is worth having the records reviewed sooner rather than later rather than waiting to see how your child's development unfolds. We Can Help At The Borah Law Firm, PLLC, we only handle medical malpractice cases in Texas, nothing else. As part of our practice, we represent patients and families in cases just like the one discussed in this blog. If you believe a loved one received substandard birth injury care we can help you understand whether a case exists and what your options are. Contact us today so you can tell us your story. Frequently Asked Questions Is HIE always caused by something that happened during delivery? No. Hypoxic-ischemic encephalopathy is diagnosed when brain injury is attributed to an intrapartum hypoxic event specifically, but the broader category of neonatal encephalopathy can also result from causes that predate labor, including genetic conditions, infections, and chronic placental problems. A full record review is usually necessary to determine timing. What is therapeutic hypothermia and why does the timing matter? Therapeutic hypothermia, or cooling therapy, is the only treatment shown to improve long-term outcomes for moderate-to-severe HIE, and it must generally begin within 6 hours of birth to be effective. A delay in recognizing that a baby qualifies, or a delay in transferring the baby to a facility that offers cooling, can be a separate issue from whatever caused the original injury. How do I know if my baby's HIE diagnosis involves malpractice? You generally cannot know from the diagnosis alone. Determining whether an HIE case involves malpractice typically requires a qualified medical expert reviewing the fetal heart rate strips, delivery timeline, and treatment records against the accepted standard of care. About the Author: J.T. Borah is a Texas-licensed medical malpractice attorney and Texas Super Lawyer at The Borah Law Firm, PLLC in Austin, Texas. He has testified before both the Texas House and Senate on patient safety issues and focuses exclusively on medical malpractice cases statewide. About this article: AI writing tools assisted Mr. Borah in drafting this article. All legal analysis reflects his independent professional judgment. This article is for general informational purposes only. It is not legal advice and does not create an attorney-client relationship. Link: https://publications.aap.org/pediatrics/article/157/2/e2025073627/206158/Therapeutic-Hypothermia-for-Neonatal-Hypoxic  This post is the first in a series of articles that will explain what Texas law requires you to prove in different types of birth injury cases, who can actually be sued, and how much time you have to act. The posts following this one will focus on specific types of injuries that happen during the birth of a child.
The moment you are told that your newborn baby needs the NICU, or that something goes wrong during delivery, questions about medical negligence are often the last thing on your mind. But if a doctor or hospital staff member missed obvious signs of fetal distress, delayed a necessary C-section, or mishandled a complicated delivery, Texas law may give you the right to hold them accountable. What Counts as a Preventable Birth Injury Under Texas Law? A birth injury is legally “preventable” when it results from a deviation from the accepted standard of obstetric care, not simply from a difficult or unexpected complication. Texas law distinguishes between injuries that happen despite appropriate care and injuries caused by a provider's failure to recognize or respond to warning signs during labor and delivery. Some of the most common preventable birth injuries include hypoxic-ischemic encephalopathy, caused by a lack of oxygen to the baby's brain during labor; injuries from shoulder dystocia, where the baby's shoulder becomes lodged during delivery and improper maneuvers cause nerve damage; meconium aspiration syndrome, when a newborn inhales meconium-stained fluid that should have been suctioned or managed differently; and intracranial or subgaleal hemorrhage linked to improper use of forceps or a vacuum extractor. However, not every difficult delivery involves negligence. Some complications, like a sudden placental abruption or an undetectable cord anomaly, occur despite textbook care. The legal question is always whether a reasonably prudent physician or nursing staff, given the same information, would have acted differently. What Do I Have to Prove to Sue a Hospital for a Birth Injury in Texas? A Texas birth injury claim requires proof of four elements:
An expert report is required early in the case to support all four. Texas Civil Practice and Remedies Code §74.351 requires a Claimant asserting a health care liability claim to serve an expert report on each Defendant within 120 days of that Defendant's answer, explaining the standard of care, how it was breached, and how the breach caused the injury. In obstetric cases, that standard is often measured against professional guidelines like the American College of Obstetricians and Gynecologists' Clinical Practice Guideline on intrapartum fetal heart rate monitoring, which classifies fetal heart tracings into three categories and outlines when a provider should intervene. A fetal distress pattern showing a Category II or Category III tracing for an extended period, without a documented response from the care team, is the kind of evidence a plaintiff's expert typically examines closely. Proving fetal distress alone is not enough. The claim has to connect a specific, identifiable failure to respond to that distress with the specific injury the baby suffered. Can I Sue the Hospital Itself, or Only the Doctor Who Delivered My Baby? It is often possible to sue both, but the legal theories differ. A hospital is directly responsible for the conduct of its own employees, typically including labor and delivery nurses, while the delivering physician is frequently an independent contractor whose conduct the hospital is not automatically responsible for. Labor and delivery nurses are almost always hospital employees, so if a nurse failed to notify a physician of a worsening fetal heart tracing, or failed to properly administer a labor-inducing medication, that failure typically exposes the hospital directly. A hospital also carries its own independent duty under federal law. The Emergency Medical Treatment and Labor Act, 42 U.S.C. §1395dd, requires any hospital with an emergency department to provide an appropriate medical screening examination to a woman in active labor and either stabilize her before delivery or arrange an appropriate transfer. Texas Health and Safety Code §241.027 imposes a parallel state obligation, requiring hospitals to adopt rules governing patient transfers that result in medically appropriate outcomes. A hospital that turns away or delays screening a woman in active labor can face liability under both authorities, independent of whatever claim exists against the delivering physician. Physician liability is a separate analysis and often depends on whether the physician was a hospital employee or had staff privileges as an independent contractor, which affects who is legally responsible for that physician's specific conduct. How Long Do I Have to File a Birth Injury Lawsuit in Texas? Texas generally requires a health care liability claim to be filed within two years of the negligent act, but birth injury cases involve a special rule for young children that makes this deadline more complicated than it looks, and the constitutionality of parts of that rule has been the subject of litigation. Texas Civil Practice and Remedies Code §74.251 sets a general two-year filing deadline from the date of the breach or the completion of treatment. The statute includes a specific provision for young children: a claimant younger than 12 years old at the time of the injury has until that child's 14th birthday to file, or to have a claim filed on their behalf. A separate 10-year statute of repose applies on top of that rule, meaning no health care liability claim, regardless of the claimant's age, can be filed more than 10 years after the act that caused the injury. Texas courts have wrestled with how these overlapping deadlines interact with the Texas Constitution's protections for minors, and the outcome can depend heavily on the specific facts and timing of a case. This is not a deadline to calculate on your own. A family that waits, assuming a young child automatically has until age 14, 18, or 20 can find that a claim has been barred long before that birthday arrives. What Should I Do If I Believe My Baby's Injury Was Caused by Medical Negligence? Request the complete labor and delivery records. Ask specifically for the fetal heart rate monitoring strips, nursing notes, physician orders, and any documentation of decisions made in the hours before delivery, since these are the records that show what the care team knew and when. The fetal heart rate monitoring strips are the single most important piece of evidence in almost every birth injury case. Texas Health and Safety Code §241.154 requires a hospital to respond to a written request for a patient's recorded health care information within 15 days of receiving the request and any applicable fee. Also, photograph or preserve any physical evidence related to the delivery and write down your own timeline of events while your memory is fresh. Finally, because of how Texas's statute of limitations interacts with a young child's age, consult a childbirth injury attorney promptly rather than waiting to see how your child's condition develops. Early legal guidance does not commit you to filing a lawsuit, but it does protect your family's options while records are still available, and deadlines have not quietly passed. We Can Help At The Borah Law Firm, PLLC, we only handle medical malpractice cases in Texas, nothing else. As part of our practice, we represent patients and families in cases just like the one discussed in this blog. If you believe a loved one received substandard birth injury care, we can help you understand whether a case exists and what your options are. Contact us today so you can tell us your story. Frequently Asked Questions What is considered medical malpractice during childbirth in Texas? Medical malpractice during childbirth occurs when a doctor, nurse, or hospital deviates from the accepted standard of obstetric care and that deviation causes injury to the mother or baby. Examples include failing to respond to fetal distress, delaying a necessary C-section, and improper use of delivery instruments. Can I sue if my baby was diagnosed with cerebral palsy after a difficult delivery? It depends on the cause. Cerebral palsy can result from preventable oxygen deprivation during labor, but it can also result from causes unrelated to the delivery itself. An attorney typically needs to review the fetal monitoring records and delivery timeline with a medical expert to determine whether negligence contributed to the diagnosis. How long do I have to file a birth injury lawsuit in Texas? Texas generally requires a health care liability claim to be filed within two years, though claimants younger than 12 at the time of the injury have until their 14th birthday under Texas Civil Practice and Remedies Code §74.251. A 10-year statute of repose also applies, and the interaction of these rules is complex enough that families should consult an attorney promptly rather than calculate the deadline themselves. About the Author: J.T. Borah is a Texas-licensed medical malpractice attorney and Texas Super Lawyer at The Borah Law Firm, PLLC in Austin, Texas. He has testified before both the Texas House and Senate on patient safety issues and focuses exclusively on medical malpractice cases statewide. About this article: AI writing tools assisted Mr. Borah in drafting this article. All legal analysis reflects his independent professional judgment. This article is for general informational purposes only. It is not legal advice and does not create an attorney-client relationship. Link: https://www.acog.org/clinical/clinical-guidance/clinical-practice-guideline/articles/2025/10/intrapartum-fetal-heart-rate-monitoring-interpretation-and-management  For years, a hospital could let a pressure injury (also known as a “bedsore”) develop on a patient's skin during a stay, and unless it reached Stage 3 or worse, it never had to show up anywhere in the hospital's federal quality reporting. That gap was closed under a rule the Centers for Medicare & Medicaid Services finalized back in 2023. Since then, hospitals must report new Stage 2 pressure injuries and not just Stage 3, Stage 4, deep tissue, and unstageable wounds, as a formal hospital harm tied to Medicare's payment update calculation. The change matters most to patients and families who assumed an early-stage bedsore was too minor to count as anything for which a hospital had to answer.
What Changed in CMS's Hospital Harm Reporting Rules for Pressure Injuries? CMS finalized a new measure in its FY 2024 hospital payment rule, expanding what counts as a reportable hospital-acquired pressure injury/bedsore to include new Stage 2 wounds, not just Stage 3, Stage 4, deep tissue, and unstageable injuries. On August 1, 2023, CMS issued the FY 2024 Hospital Inpatient Prospective Payment System (IPPS) and Long-Term Care Hospital Prospective Payment System (LTCH PPS) Final Rule, CMS-1785-F and CMS-1788-F. Among the changes, CMS adopted the Hospital Harm – Pressure Injury electronic clinical quality measure, which tracks inpatient hospitalizations in which a patient age 18 or older develops a new Stage 2, Stage 3, Stage 4, deep tissue, or unstageable pressure injury. CMS said the addition was partly a health equity measure, citing research showing that patients with darker skin tones face a higher prevalence of pressure injuries and a higher risk of the injury reaching a more advanced stage, which suggested to the agency that existing skin assessment protocols may be missing lower-stage injuries in some patients. Why Does Adding Stage 2 Pressure Injuries to This Measure Matter? A Stage 2 bedsore is a partial-thickness wound, meaning the skin has broken open but the damage has not reached the deeper layers of tissue, muscle, or bone the way a Stage 3 or Stage 4 injury does. Adding it to a formal federal reporting measure means a hospital can no longer treat an early-stage bedsore as something that simply doesn't count. Before this measure existed, hospitals were already required to track Stage 3 and Stage 4 pressure injuries, along with deep tissue and unstageable wounds, as hospital-acquired conditions. A Stage 2 injury generally was not captured in the same way, even though it represents a real breakdown in skin integrity that reflects the same underlying failures, inadequate repositioning, poor nutrition and hydration support, or delayed skin assessment, that produce the more severe stages. Some wound care physicians have raised a separate concern about how narrowly a Stage 2 injury is now clinically defined, arguing that the current staging criteria can classify even a superficial ruptured blister as a reportable Stage 2 wound. Whatever the clinical debate over precision, the practical effect for patients and families is the same: a hospital now has a documented, federally tracked incentive to prevent and catch these injuries earlier, rather than waiting until a wound has progressed to a more severe and more obviously preventable stage. What Federal and Texas Rules Govern Hospital Reporting and Care Standards for Pressure Injuries? This new measure operates through the Hospital Inpatient Quality Reporting Program, a federal payment mechanism, not a state licensing standard. Texas hospitals remain separately subject to Texas licensing law that requires them to meet minimum standards of patient care regardless of what they report to CMS. The federal reporting mechanism is codified at 42 C.F.R. §412.140, which governs hospital participation, data submission, and validation under the Hospital Inpatient Quality Reporting Program. A hospital that fails to meet the program's requirements is subject to a one-fourth reduction in its annual Medicare payment update. On the Texas side, Texas Health and Safety Code §241.026 requires the state to adopt rules and minimum standards for hospitals licensed in Texas, including standards addressing staffing and compliance with other state and federal laws affecting patient health and safety. Together, these two authorities mean a Texas hospital's pressure injury practices are accountable on two separate tracks: what it reports to CMS for payment purposes, and what the state requires as a baseline of care under its own licensing law, independent of federal reporting. Does a Hospital-Acquired Pressure Injury Automatically Mean Malpractice? No. A pressure injury being reportable to CMS, or even classified as a hospital-acquired condition, is not the same as a legal finding of malpractice. A Texas family pursuing a claim still has to establish the applicable standard of care, a breach of that standard, and that the breach caused the injury. Texas Civil Practice and Remedies Code §74.351 requires a Claimant asserting a health care liability claim to serve an expert report within 120 days of a Defendant's answer, explaining the standard of care, how the Defendant departed from it, and how that departure caused the harm. A hospital's own federal reporting data, including whether it flagged a Stage 2 injury as hospital-acquired under this measure, can become useful supporting evidence once litigation is underway. It does not replace the expert report Texas law requires, and a hospital's failure to report an injury correctly is a separate issue from whether the underlying care fell below the standard owed to the patient. What Should a Texas Family Do If a Loved One Developed a Pressure Injury During a Hospital Stay? Ask for the wound care documentation directly. A hospital's nursing notes, skin assessments, and repositioning logs are the records most likely to show whether staff caught a Stage 2 injury early or missed it until it worsened. Request copies of the skin assessment records completed at admission and throughout the stay, since a documented baseline skin assessment is what allows anyone to determine whether a wound was present on admission or developed during the hospitalization. Ask specifically whether the hospital's electronic health record flagged the wound under its pressure injury quality reporting measures, since that internal classification can be relevant later even though it isn't a substitute for a legal claim. Photograph the wound's appearance and location as soon as it's noticed, and note the date. Finally, act promptly. Texas's statute of limitations for health care liability claims generally requires a claim to be filed within two years of the negligent act, and wound care evidence, including turning and repositioning logs, is not always preserved indefinitely. We Can Help At The Borah Law Firm, PLLC, we only handle medical malpractice cases, nothing else. As part of our practice, we represent patients and families across Texas in cases just like the one discussed in this blog. If you believe a loved one received substandard pressure injury care, whether in a nursing home, assisted living facility, or hospital, we can help you understand whether a case exists and what your options are. Contact us today so you can tell us your story. Frequently Asked Questions What is a Stage 2 pressure injury? A Stage 2 pressure injury is a partial-thickness wound where the skin has broken open, forming a shallow open sore or a fluid-filled blister, but the damage has not reached the deeper tissue, muscle, or bone that characterizes a Stage 3 or Stage 4 injury. Does a hospital have to report a Stage 2 bedsore to Medicare? Reporting is currently voluntary for hospitals that select the Hospital Harm – Pressure Injury measure, though CMS has been moving hospital harm measures toward mandatory reporting over time. A hospital that participates in this measure and fails to meet program requirements can face a reduction in its Medicare payment update. Can I sue a hospital for a pressure injury/bedsore that developed during my stay? It depends on the facts. A pressure injury/bedsore being reportable under federal quality measures does not by itself establish malpractice. A Texas claim requires proof of the standard of care, a breach of that standard, and that the breach caused the injury, typically supported by an expert report under Texas Civil Practice and Remedies Code §74.351. About the Author: J.T. Borah is a Texas-licensed medical malpractice attorney and Texas Super Lawyer at The Borah Law Firm, PLLC in Austin, Texas. He has testified before both the Texas House and Senate on patient safety issues and focuses exclusively on medical malpractice cases statewide. About this article: AI writing tools assisted Mr. Borah in drafting this article. All legal analysis reflects his independent professional judgment. This article is for general informational purposes only. It is not legal advice and does not create an attorney-client relationship. Link: https://www.cms.gov/newsroom/fact-sheets/fy-2024-hospital-inpatient-prospective-payment-system-ipps-and-long-term-care-hospital-prospective-0  If your family has a settlement in hand against a nursing home chain, you might assume the money is simply a matter of time. A bankruptcy case that played out in a Dallas courtroom shows that assumption can be wrong. Genesis HealthCare, once the nation's largest nursing home chain, filed for Chapter 11 reorganization in the U.S. Bankruptcy Court for the Northern District of Texas in July 2025, carrying more than $2 billion in debt and facing hundreds of malpractice and wrongful death lawsuits.
An investigation by KFF Health News found the company had settled at least 155 injury and death claims in the years before filing, then structured the payments to be delayed, sometimes for more than a year. When bankruptcy hit, tens of millions of dollars in promised settlements simply went unpaid. What happened next in that Dallas courtroom matters to any Texas family who has settled, or is considering settling, a claim against a large institutional defendant. What Happened in the Genesis HealthCare Bankruptcy Case? Genesis operated approximately 175 nursing homes across 18 states before filing for Chapter 11 reorganization in the U.S. Bankruptcy Court for the Northern District of Texas. According to KFF Health News, the company had settled at least 155 patient injury and death lawsuits in the years leading up to the filing and still owed $41 million of the $58 million it had agreed to pay in those settlements by the time it declared bankruptcy. Genesis proposed selling its assets to a company controlled by its own controlling investor, Joel Landau, under terms that would have released Landau and a private equity associate from personal liability. In December 2025, Judge Stacey G.C. Jernigan rejected that sale, citing irregularities in the auction process and Landau's failure to appear in court to answer questions about his conduct. A second, court-supervised auction followed in January 2026, and the company's assets sold to a new buyer, 101 West State Street, for a total value of roughly $1 billion, finalized by the court on January 20, 2026. Why Did One of the Nation's Largest Nursing Home Chains End Up in Bankruptcy? Genesis' path to bankruptcy traces back to a 2007 leveraged buyout and a 2011 deal that sold off its real estate to a real estate investment trust, then leased the buildings back. Both moves loaded the company with long-term debt and lease obligations it was still carrying nearly two decades later. Affiliates of two private equity firms acquired Genesis in a $1.5 billion leveraged buyout in 2007, financed substantially with borrowed money, according to the company's own bankruptcy filing. In 2011, Genesis raised $2.4 billion by transferring most of its nursing home buildings and other real estate to Welltower, a publicly traded real estate investment trust, then began renting those same buildings back, a transaction that turned a one-time capital infusion into a recurring, long-term leasing expense. By the time Genesis filed for bankruptcy, the company carried more than $2 billion in debt and owed more than $1.6 billion in unpaid claims that were not secured by any lien, a category that included injured residents and their families along with a pension fund, equipment and service contractors, and provider taxes owed to three other states. Genesis estimated that its settled and pending malpractice and wrongful death cases would cost $259 million to resolve. Can a Nursing Home Use Bankruptcy to Avoid Paying an Injury or Wrongful Death Settlement? Not automatically, though bankruptcy makes an unpaid settlement much harder to collect. Under federal law, specifically the automatic stay provision at 11 U.S.C. §362, the moment a company files for bankruptcy protection, nearly all pending lawsuits and collection actions against it are automatically paused. An unpaid settlement typically becomes just one unsecured claim competing against every other creditor for a share of whatever assets remain. That stay applies in every bankruptcy case in the country, not something specific to Texas, because bankruptcy is exclusively a matter of federal law. No Texas statute parallels it, and none is required, since state courts have no authority to modify a federal bankruptcy stay. What made the Genesis case unusual was not the stay itself but Genesis' attempt to go further, structuring the sale of its own assets so its controlling investor would walk away with a full legal release from the very claims on which the company owed money. Judge Jernigan's refusal to approve that release is what KFF Health News described as fresh hope for the families still owed money. What Happens to a Pending Texas Nursing Home Lawsuit If the Facility Files Bankruptcy? A pending lawsuit against a nursing home does not disappear when the facility files bankruptcy, but it does get paused. Claimants generally must file a proof of claim by a court-set deadline, known as the bar date, to preserve their right to any recovery. Missing a bar date can mean losing the ability to collect anything at all, even on a claim that was fully valid and even on a settlement that was already signed. This is precisely what happened to families like that of Erin Pearson, whose father died after a Genesis facility delayed sending him to the hospital for a week, and who had reached a $500,000 settlement that went unpaid when the company filed for bankruptcy months later. Texas' own procedural rules for medical malpractice claims, including the two-year filing deadline under Texas Civil Practice and Remedies Code §74.251, still govern when a claim must originally be brought. But once a facility files bankruptcy, a family with an active or settled but unpaid claim generally must shift into the bankruptcy claims process rather than continuing to litigate in Texas state court, unless a bankruptcy judge specifically lifts the stay to let the case proceed. What Should a Texas Family Do If a Nursing Home Chain Files Bankruptcy During a Claim? Contact an attorney immediately rather than waiting to see how the bankruptcy unfolds. Bar dates move quickly, notice of a bankruptcy filing is not always sent directly and clearly to every claimant, and a signed settlement agreement offers less protection than most families assume once the company that signed it is in Chapter 11. Two concrete steps matter most. First, confirm whether the facility or its parent company has actually filed for bankruptcy protection and in which court, since a nursing home operated by a larger chain may file even if the local facility's name doesn't obviously match the corporate debtor. Second, if a claim is pending, find out whether a bar date has been set and make sure a proof of claim gets filed before it passes. If a settlement was already reached but not fully paid, understand that the remaining balance is now an unsecured claim, not a guaranteed payment, and that filing a claim in the bankruptcy case is usually necessary to preserve any right to collect it. We Can Help At The Borah Law Firm, PLLC, we only handle medical malpractice cases in Texas, nothing else. As part of our practice, we represent patients and families across Texas in cases just like the one discussed in this blog. If you believe a loved one received substandard nursing home care, whether in a nursing home, assisted living facility, or hospital, we can help you understand whether a case exists and what your options are. Contact us today so you can tell us your story. Frequently Asked Questions What happens to my nursing home settlement if the facility files for bankruptcy? Your settlement becomes an unsecured claim in the bankruptcy case rather than a guaranteed payment. You will typically need to file a proof of claim by the court's bar date to preserve your right to collect any part of what you are owed, and the amount you ultimately receive will most likely be less than the full settlement amount. Is there a deadline to file a claim in a nursing home bankruptcy case? Yes. Bankruptcy courts set a bar date, a specific deadline by which every creditor, including injured residents and their families, must file a proof of claim. Missing that deadline can mean losing the right to recover anything from the bankruptcy estate, even on a claim that was otherwise valid. About the Author: J.T. Borah is a Texas-licensed medical malpractice attorney and Texas Super Lawyer at The Borah Law Firm, PLLC in Austin, Texas. He has testified before both the Texas House and Senate on patient safety issues and focuses exclusively on medical malpractice cases statewide. About this article: AI writing tools assisted Mr. Borah in drafting this article. All legal analysis reflects his independent professional judgment. This article is for general informational purposes only. It is not legal advice and does not create an attorney-client relationship. Link: https://kffhealthnews.org/health-industry/nursing-homes-genesis-bankruptcy-judge-ruling-delayed-settlement-payments/ Repeat Immediate Jeopardy Citations at a Fort Worth Nursing Home: What Families Need to Know7/10/2026
 A Fort Worth nursing home has drawn three separate Immediate Jeopardy findings from federal surveyors since late 2023, with the most recent arriving May 1, 2026. Estates Healthcare And Rehabilitation Center, located on Sycamore School Road in Fort Worth, has accumulated 53 total deficiencies and roughly $159,000 in federal fines over the past three years, according to inspection records published by ProPublica's Nursing Home Inspect database. For families with a loved one at this facility, or at any Texas nursing home showing a similar pattern, repeated findings raise a different legal question than a single bad inspection does. This post explains what the citations mean, what Texas and federal law require of the facility, and what a family can do next.
What Is an Immediate Jeopardy Citation, and Why Does This Facility Have Three of Them? An Immediate Jeopardy citation, always capitalized in survey terminology, is the most serious finding a federal inspector can issue. It means a facility's failure to meet a care standard has caused, or is likely to cause, serious injury, harm, or death to a resident. Estates Healthcare And Rehabilitation Center has received this designation three separate times since 2023. On December 13, 2023, inspectors cited the facility at the K level, the second-highest severity rating, for a failure to protect a resident from abuse under federal tag F0600. Roughly fourteen months later, on February 14, 2025, a standard survey produced ten deficiencies at once, including two separate Immediate Jeopardy findings tied to pressure ulcer care and treatment that did not follow physician orders, plus a third citation for inadequate accident supervision. The facility paid a $64,457 fine and absorbed a payment suspension over that report. Immediate Jeopardy findings returned on September 10, 2025, covering both abuse, rated K, and accident hazard supervision, rated J. The most recent citation, dated May 1, 2026, involved a resident transfer or discharge the facility failed to prepare safely, again reaching the J level. Across the full three-year window, the facility has been fined seven separate times, totaling close to $159,000, and has drawn one payment suspension. What Do Federal and Texas Law Require a Nursing Home to Do to Prevent This? Federal regulation requires every certified nursing facility to prevent abuse and neglect as a condition of participating in Medicare and Medicaid. Texas law separately requires facilities to meet minimum acceptable levels of care, and a violation of that standard is forbidden by statute in its own right, independent of the federal survey process. Under 42 CFR §483.12, a certified nursing facility must prohibit abuse, neglect, and exploitation, screen employees for prior findings of misconduct, and investigate and report any allegation that arises. Texas Health and Safety Code §242.001 imposes a parallel obligation, stating that a violation of a minimum acceptable level of care established under Chapter 242 is forbidden by law in its own right. Staffing data reported to CMS gives some indication of why a facility might struggle to meet either standard. Estates Healthcare And Rehabilitation Center reports 3.08 nurse hours per resident per day, below the Texas average of 3.4, and a nursing staff turnover rate of 91.4 percent, well above the state average of 53.8 percent. Neither figure proves what caused a specific resident's injury. Both are the kind of institutional evidence a plaintiff's attorney would want to examine early in a case. Does a Citation Automatically Mean the Facility Is Liable for a Resident's Injuries? No. A federal deficiency citation is evidence a jury may consider, not a finding of civil liability. To hold a nursing home responsible in a Texas lawsuit, a Claimant must still prove the applicable standard of care, a breach of that standard, and a direct causal link to the resident's specific injury. Texas Civil Practice and Remedies Code §74.351 requires a Claimant asserting a health care liability claim to serve an expert report on each Defendant physician or health care provider within 120 days of that Defendant's answer. The report must explain the standard of care, how the Defendant departed from it, and how that departure caused the harm at issue. A citation history like the one described above does not replace that report. It can, however, support it, particularly where the same type of failure, such as inadequate abuse prevention or inadequate supervision, recurs across multiple survey cycles at the same facility. What Should a Family Do If They Suspect Neglect or Abuse at a Texas Nursing Home? Families who notice unexplained injuries, sudden decline, or evasive answers from staff have several concrete steps available before deciding whether to pursue a claim. Acting early preserves evidence a facility is not required to keep indefinitely.
We Can Help At The Borah Law Firm, PLLC, we represent patients and families across Texas in medical malpractice cases. We only handle these cases, nothing else. If you believe a loved one received substandard nursing home care, we can help you understand whether a case exists and what your options are. Contact us today for a confidential case review. Frequently Asked Questions What is an Immediate Jeopardy citation? An Immediate Jeopardy citation is the most serious classification a federal nursing home inspector can issue. It reflects a finding that a facility's noncompliance with federal care standards has caused, or is likely to cause, serious injury, harm, or death to a resident. Does a citation from ProPublica or CMS prove a facility is liable? No. A citation is evidence a jury may consider, not a civil judgment. A Claimant must still prove the standard of care, a breach of that standard, and causation of a specific injury under Texas Civil Practice and Remedies Code §74.351. How can I check whether a Texas nursing home has been cited for serious violations? ProPublica's Nursing Home Inspect database, available at projects.propublica.org/nursing-homes, publishes federal inspection reports by facility and by state. Families can also request a facility's complaint and inspection history directly from the Texas Health and Human Services Commission. Why does a facility's staffing data matter in a neglect case? Low nurse hours per resident and high staff turnover do not by themselves prove neglect. They are institutional evidence that can help explain how a pattern of citations developed and are often examined early in a Texas nursing home case. How long do I have to file a nursing home negligence claim in Texas? Texas Civil Practice and Remedies Code §74.251 generally requires a health care liability claim to be filed within two years of the negligent act or the completion of treatment, subject to a ten-year statute of repose. About the Author: J.T. Borah is a Texas medical malpractice attorney and founding attorney of The Borah Law Firm, PLLC, in Austin, Texas. His practice is limited exclusively to medical malpractice cases involving hospitals, nursing homes, and other medical institutions. He has been recognized as a Texas Super Lawyer. He is often asked to lecture at legal seminars on medical malpractice issues and has lectured to attorneys from 18 states. AI writing tools assisted Mr. Borah in preparing this article. All legal standards, citations, and factual claims were reviewed by Mr. Borah as a licensed Texas attorney. This article is for general informational purposes only and does not constitute legal advice. Reading this article does not create an attorney-client relationship.  A federal watchdog has concluded that the staffing numbers nursing homes report to the government are often wrong. The Department of Health and Human Services Office of Inspector General released the audit on June 17, 2026, and the findings raise a question every family with a loved one in a nursing home should be asking. If the hours a facility claims its registered nurses worked do not match what actually happened, can anyone trust the staffing levels posted online when choosing a facility?
This post explains what the audit found, why it matters, and what it does and does not tell us about nursing homes in Texas specifically. What Did The OIG Audit of Nursing Home Staffing Reports Find? The OIG reviewed whether registered nurse hours reported in CMS's Payroll-Based Journal for March 2024 were actually supported by payroll records. The answer was no, for a meaningful share of the data. Auditors pulled a random sample of 100 registered nurses from a pool of more than 127,000 nationwide and checked their reported hours against real payroll documentation. Of the 100 sampled nurses, 45 had hours that nursing homes could not support, totaling a net of 748.5 hours across 44 different facilities. Two more sampled items, covering 336 hours, could not be verified at all because the nursing homes involved had lost the supporting paperwork during a change in ownership. Projecting these results across the full national sampling frame, The OIG estimated that approximately 52,783 registered nurses, or 41.5 percent, had hours reported in the PBJ that were not supported in accordance with Federal requirements, and that approximately 937,823.7 hours, or 4.7 percent of all RN hours reported, fell into that same category. CMS, in its written response, rounded these figures to roughly 53,000 nurses and 938,000 hours and argued that a 95 percent accuracy rate is reasonable given the system's scale. These point estimates carry real statistical uncertainty, and The OIG's own report discloses it. At a 90 percent confidence level, the share of RNs with unsupported hours could fall anywhere between 32.5 percent and 50.6 percent, and the share of unsupported hours could fall anywhere between 2.1 percent and 8.7 percent. That second range matters more than it looks. It means the true number of unsupported hours nationwide could be as low as roughly 420,000 or as high as roughly 1.75 million, more than a fourfold spread between the low and high end. The rounded figures CMS and The OIG both led with are accurate as point estimates, but anyone citing the 938,000-hour number as a precise national total is overstating what a 100-nurse sample can actually support. None of this means the sample was too small to be useful. A sample of 100 drawn at random from a much larger group can still produce a reliable estimate, because statisticians can calculate exactly how much uncertainty that sample size produces, and The OIG did exactly that. The tradeoff is between sample size and precision, not between sample size and validity. A larger sample would have narrowed the range around the estimate, not made the underlying conclusion more true. The honest way to read these numbers is to treat 938,000 hours as the audit's best single guess, while remembering that the real number could reasonably be anywhere from less than half that figure to nearly double it. Either way, the conclusion that a meaningful share of reported staffing hours nationwide could not be supported holds up. What does not hold up is treating the 938,000 figure as an exact count. Why Does the Payroll-Based Journal Matter for Nursing Home Care? The Payroll-Based Journal exists because Congress decided that staffing claims needed to be backed by real payroll data, not estimates. Section 6106 of the Affordable Care Act added section 1128I(g) to the Social Security Act, and federal regulations at 42 CFR §483.70(p) require nursing homes to electronically submit complete and accurate direct care staffing information based on payroll and other auditable data. CMS uses this data for purposes that directly affect families choosing a facility. The numbers feed into the Five-Star Quality Rating System and the public Medicare Compare website. They also tie back to the baseline staffing rule at 42 CFR §483.35, which requires a nursing home to provide the services of a registered nurse for at least eight consecutive hours a day and licensed nursing staff around the clock, unless that requirement has been waived. If the underlying hours are wrong, the star rating built on top of them is wrong too. What Kinds of Errors Did the Audit Find in Reported Hours? The errors were not all the same kind of mistake, and that variety is part of why The OIG called the problem systemic rather than isolated. Auditors grouped the unsupported hours into several recurring categories. 1. Reported hours an RN did not actually work, often because of payroll system errors or salaried staff being reported at a flat shift length regardless of actual hours worked. 2. Failure to deduct required meal breaks, the single most common finding across CMS's own audit trend data from 2022 through 2024. 3. Hours an RN worked and was paid for that were never reported at all, including unreported overtime. 4. Hours reported that the RN was never actually paid for. 5. Training hours misclassified as direct resident care, when the nurse was not actually available to provide care. 6. Hours reported on the wrong calendar day for shifts spanning midnight. 7. Hours reported for individuals whose RN licenses were not active, including one nurse whose license had already expired before the audit period began. 8. Hours reported for an agency RN who worked remotely and never set foot in the facility, despite the rule that only onsite hours count. The OIG also found that CMS itself was not catching repeat problems. At least 4 of the 18 nursing homes that failed to deduct meal breaks correctly had been cited for the identical error in a prior audit, and CMS had no routine process for confirming that earlier findings had actually been fixed. Does This Audit Identify Any Texas Nursing Homes by Name? No. This is a national audit, and it is important to be direct about that limitation rather than imply otherwise. The OIG sampled 100 registered nurses from a nationwide pool of more than 127,000 and audited 99 nursing homes spread across the country. Nothing in the published report, the Report Highlights, or the full PDF identifies a state-by-state breakdown, and no Texas facility is named anywhere in the document. What can fairly be said, and this is an inference rather than a finding stated in the report, is that Texas nursing homes are subject to the exact same federal PBJ requirements as the facilities The OIG did sample. Texas nursing homes are also governed by a state-level staffing and posting rule, 26 TAC §554.1001, which mirrors the federal nurse staffing requirements at 42 CFR §483.35 and requires Texas facilities to post and make available the same categories of daily staffing information the federal PBJ rule is built around. The error categories The OIG documented, particularly the meal-break deductions and the salaried-staff reporting confusion, are tied to how CMS's policy manual is written and applied nationwide, not to any one region. However, there is absolutely no reason to assume Texas facilities are immune from the same reporting problems. What Should Texas Families Know About Nursing Home Staffing Records? Texas licenses and regulates nursing facilities under Health and Safety Code Chapter 242, and the Health and Human Services Commission's executive commissioner is charged under §242.037 with adopting and enforcing minimum standards for quality of life, quality of care, and residents' rights at every licensed facility. Texas does not operate a separate state version of the PBJ system. Texas facilities report into the same federal system that The OIG audited, which means the staffing hours posted for a Texas nursing home on the Medicare Compare website come from the same data pipeline this audit found to be unreliable for a meaningful share of facilities nationwide. For a family evaluating whether understaffing contributed to a fall, a pressure injury, or a more serious injury at a Texas nursing home, PBJ data can be one piece of evidence worth examining, alongside payroll records, time clock data, and the facility's own staffing plan. A discrepancy between what a facility reported to CMS and what its own payroll records show is not, by itself, proof of neglect. It is a data point that may be relevant depending on the rest of the facts. We Can Help At The Borah Law Firm, PLLC, we represent patients and families across Texas in medical malpractice cases. We only handle these cases, nothing else. If you believe a loved one received substandard nursing home care, we can help you understand whether a case exists and what your options are. Contact us today for a confidential case review. Frequently Asked Questions What is the Payroll-Based Journal? It is the federal system nursing homes use to electronically submit staffing information to CMS, including the number of hours each direct care staff member was paid to work each day, based on payroll and other auditable data. Did this audit find problems at any specific Texas nursing home? No. The audit is national in scope, and no Texas facility is named in the published report. Any connection to Texas facilities described in this post is an inference based on the fact that Texas nursing homes report into the same federal system, not a finding stated by The OIG. What percentage of nursing home staffing hours did The OIG find were not supported? The OIG estimated that approximately 4.7 percent of registered nurse hours reported nationwide for March 2024 were not supported in accordance with Federal requirements, affecting an estimated 41.5 percent of the registered nurses in the sampling frame. Both figures come from a 100-nurse sample, and The OIG's published 90 percent confidence interval for the hours estimate runs from 2.1 percent to 8.7 percent, so the true national figure is less precise than the rounded headline number suggests. Does CMS agree with The OIG's findings? CMS concurred with two of The OIG's four recommendations, did not take a clear position on a third, and disagreed with the fourth. CMS also argued in its written response that a 95 percent accuracy rate is reasonable for a system of this size. Can staffing data be used as evidence in a Texas nursing home negligence case? It can be relevant, depending on the facts of a specific case. An attorney would typically compare PBJ submissions against payroll records, time clock data, and the facility's staffing plan rather than relying on PBJ data alone. About the Author: J.T. Borah is a Texas medical malpractice attorney and founding attorney of The Borah Law Firm, PLLC, in Austin, Texas. His practice is limited exclusively to medical malpractice cases involving hospitals, nursing homes, and other medical institutions. He has been recognized as a Texas Super Lawyer. He is often asked to lecture at legal seminars on medical malpractice issues and has lectured to attorneys from 18 states. AI writing tools assisted Mr. Borah in preparing this article. All legal standards, citations, and factual claims were reviewed by Mr. Borah as a licensed Texas attorney. This article is for general informational purposes only and does not constitute legal advice. Reading this article does not create an attorney-client relationship.  The federal government is pulling back from nursing home oversight. The minimum staffing rule is gone. Ownership transparency requirements are suspended. CMS has signaled that more rollbacks are coming. A June 5, 2026, opinion piece in McKnight's Long-Term Care News by Vivian Zayas, co-founder of Voices for Seniors and a congressional witness on nursing home accountability, made an argument worth taking seriously: deregulation does not protect nursing home residents. It does not protect their families. And, she argues, it does not protect operators either.
Ms. Zayas lost her mother in a nursing home. She has spent years in legislative hearings, watching what happens when a crisis lands on an industry that cannot point to clear standards it met. Her column in McKnight's was addressed to owners, operators, administrators, and directors of nursing, not to families and not to lawyers. That framing matters. She is not making a plaintiff's argument. She is making a governance argument. The two are not the same, but from where families in Texas sit, they arrive at the same place. When oversight recedes, residents bear the consequences first. Texas families need to understand what is being removed, why it matters, and what legal protections still exist when a nursing home fails. What Federal Nursing Home Protections Have Already Been Rolled Back? The most consequential recent rollback is the federal minimum staffing rule. CMS finalized a rule in 2024 requiring nursing homes to provide a minimum of 3.48 total nursing hours per resident per day, including at least 0.55 hours from a registered nurse and 2.45 hours from a nurse aide. The rule also required a registered nurse to be on-site 24 hours a day, seven days a week. That rule has since been rescinded. Ownership transparency requirements have also been suspended. Those requirements would have forced nursing homes to disclose the full web of entities involved in their ownership and management, including the related-party real estate companies and management companies that a September 2025 National Bureau of Economic Research working paper found were used to hide 68 percent of the industry's profits from regulators. Without transparency requirements, families and regulators cannot readily identify who is actually responsible when something goes wrong at a facility. Ms. Zayas described the current regulatory direction as CMS telling the industry that more is coming, more flexibility, more relief, more rollback of what the agency calls burden. The trade associations are being listened to. For families placing a loved one in a Texas nursing home today, the practical consequence is a federal floor that is lower than it was two years ago and getting lower. What Does Deregulation Actually Mean When Something Goes Wrong? Ms. Zayas makes a specific argument in her McKnight's column that deserves direct attention from Texas families: when there is no federal floor for staffing, every bad outcome becomes a question of what an owner or operator chose to provide, not what they were required to provide. That is a legal observation as much as a policy one. In a Texas nursing home neglect case, the standard of care is the central question. It defines what the facility was obligated to do and whether it fell short. Federal regulations are one source of that standard. State regulations are another. When federal minimums are eliminated, the regulatory floor shrinks. The facility's obligation does not disappear, but the clearest external benchmark for what adequate staffing looks like becomes harder to point to. Ms. Zayas writes that when oversight is weak and something goes wrong at scale, the response is not targeted. It is sweeping. That observation reflects what happens in crisis: the industry as a whole gets scrutinized, good operators and bad ones alike. For individual families, though, the crisis is not abstract. It is the fall that broke a hip. It is the pressure wound that went unnoticed for days. It is the infection that spread because no one caught it in time. Those injuries happen at specific facilities, and they happen to specific people. The legal question after a preventable injury is always whether the facility met its duty of care. Deregulation makes that question harder to answer with a clear standard, but it does not make it disappear. Texas law imposes its own requirements on nursing facilities independently of federal minimums. What Legal Obligations Do Texas Nursing Homes Still Have? Federal deregulation does not eliminate Texas law. The obligations Texas nursing homes carry are grounded in state statute and state administrative code, and they remain enforceable regardless of what CMS does with federal minimums. Under Texas Administrative Code Chapter 554, Texas imposes specific staffing sufficiency requirements. The standard is functional: staffing must be sufficient to meet residents' needs. There is no fixed numerical floor identical to the rescinded federal rule, but the sufficiency obligation is independently enforceable under state law. Under 26 Tex. Admin. Code §554.701(a), every licensed nursing facility in Texas must provide care that meets the needs of its residents and maintains their highest practicable physical, mental, and psychosocial well-being. In fact, under 26 Tex. Admin. Code §554.1921(a), Texas nursing homes are not even allowed to have a resident in their facility whose needs they cannot meet. That is not a suggestion. It is a statutory obligation, and it applies to every facility in the state whether or not a federal staffing minimum is in force. Under 26 Tex. Admin. Code §554.1001, Texas requires facilities to provide adequate nursing staff to meet each resident's assessed needs around the clock. A facility that runs short on nursing staff and a resident is harmed as a result is not protected from liability simply because a federal rule no longer specifies the minimum number of hours required. The Texas Health and Human Services Commission enforces these standards through surveys and inspections. When a facility falls below them, CMS can still issue deficiency citations under 42 CFR Part 483 for Medicare and Medicaid-certified facilities. The rollback of the staffing minimum rule does not eliminate the broader federal conditions of participation that all certified facilities must meet. For purposes of a civil negligence claim, the standard of care is not defined by federal regulation alone. Courts look to accepted professional standards in the nursing home industry, expert testimony, and the specific circumstances of the resident's care. A facility that provided staffing levels its own clinical assessments showed were insufficient to meet a resident's needs is not shielded by the absence of a federal floor. Why Does Ownership Transparency Matter to a Texas Family? The suspension of ownership transparency requirements has a direct practical effect on families pursuing legal claims. It makes it harder to identify the full set of entities responsible for a resident's care. Modern nursing home ownership is frequently structured across multiple entities. The licensed facility is one entity. The real estate may be owned by a separate company. Management may be contracted to another. Staffing may run through a separate employer of record. These structures are documented in the NBER working paper by Gandhi and Olenski, which found that 77 percent of U.S. nursing homes transact with related parties and that those transactions are a primary mechanism for moving profits and assets off the facility's books. When a resident is harmed, a lawyer needs to know which entities were involved in operational decisions, which entities hold assets that can satisfy a judgment, and how those entities relate to each other. Transparency requirements that forced disclosure of ownership structures made that analysis faster and less expensive. Their suspension means the information still exists but requires more work to uncover, through discovery, corporate filings, and regulatory records requests. Ms. Zayas puts it directly in her McKnight's column: when ownership structures are opaque, every tragedy invites scrutiny of everyone because no one can quickly identify who is actually responsible. That is as accurate a description of the litigation discovery process as it is of the regulatory one. What Is the Argument That Deregulation Actually Hurts Operators? Ms. Zayas directs her column at owners, operators, administrators, and directors of nursing, not at families or advocates. Her argument to them deserves a fair summary because it reinforces the case for standards from an unexpected direction. Her core claim is that the absence of enforceable standards does not protect an operator when something goes catastrophically wrong. It exposes them. Without a federal floor to point to, a bad outcome becomes a question of what the operator chose, not what was required. Without transparency requirements, a crisis sweeps across the industry without distinguishing good actors from bad ones. Without clear standards, the operators who are doing things right have no way to demonstrate that publicly. She writes that she has been in congressional hearings and has seen what happens when an industry cannot point to standards it met and say, here is the proof. The absence of standards does not protect operators. It leaves them exposed to the same scrutiny as the worst facilities in the country. From a litigation standpoint, that analysis is correct. A facility that can demonstrate it met or exceeded every applicable standard is in a fundamentally stronger position than a facility operating in a deregulated environment where what it provided is the only reference point. Standards create a floor. They also create a ceiling that good operators can point to and say they cleared. What Should a Texas Family Do If a Loved One Was Harmed in a Nursing Home? The rollback of federal nursing home oversight makes it more important, not less, to act quickly and document carefully if something goes wrong. Texas law still provides a legal remedy. Take these steps immediately.
We Can Help At The Borah Law Firm, PLLC, we represent patients and families across Texas in medical malpractice cases. We only handle these cases — nothing else. If you believe a loved one received substandard nursing home care, we can help you understand whether a case exists and what your options are. Contact us today for a confidential case review. Frequently Asked Questions Did the federal government eliminate nursing home staffing requirements entirely? The specific federal minimum staffing rule finalized in 2024, which required 3.48 total nursing hours per resident per day and a 24-hour registered nurse presence, has been rescinded. That does not mean nursing homes face no staffing obligations. CMS conditions of participation under 42 CFR Part 483 still require facilities to maintain sufficient nursing staff to meet residents' needs. Texas imposes its own staffing sufficiency requirements under Texas Administrative Code Chapter 554. Both remain enforceable. Can I still sue a Texas nursing home for understaffing if federal minimums have been removed? Yes. A medical malpractice claim under Texas Civil Practice and Remedies Code Chapter 74 does not depend on the existence of a federal staffing minimum. The standard of care is established through state law, accepted professional standards, and expert testimony. A facility that provided staffing levels its own clinical assessments showed were insufficient to meet a resident's needs can be held liable for resulting harm regardless of whether a federal rule specified a numerical floor. What is Voices for Seniors? Voices for Seniors is a Long Island, New York-based grassroots organization co-founded by Vivian Zayas and other families who lost loved ones in nursing homes. Ms. Zayas testified before the Select Subcommittee on the Coronavirus Pandemic in May 2023 and has advocated for nursing home residents and their families at the state and federal level. Her June 5, 2026, opinion piece in McKnight's Long-Term Care News addressed nursing home owners, operators, and administrators directly, arguing that deregulation exposes the industry to greater liability and reputational harm when crises occur. What is the ownership transparency requirement that was suspended? CMS had proposed requiring nursing homes to disclose the full network of entities involved in their ownership, management, and operations, including related-party real estate companies and management companies that share ownership with the facility. That requirement has been suspended. The practical effect is that families and regulators cannot as readily identify all entities involved in a facility's operations from public disclosures alone. A September 2025 NBER working paper by Gandhi and Olenski documented that these ownership structures are used by 77 percent of U.S. nursing homes to move profits into related entities. Does deregulation affect my ability to collect a judgment against a nursing home in Texas? Potentially yes, in two ways. First, the suspension of ownership transparency requirements makes it harder to quickly identify all entities that hold assets traceable to the facility's operations. Second, the rollback of the minimum staffing rule removes one clear external benchmark that plaintiffs have used to establish what constitutes adequate care. Neither change eliminates a legal claim, but both affect the investigative and evidentiary work required to pursue one effectively. An attorney experienced in Texas nursing home cases can advise on discovery strategies for tracing ownership structures and establishing the applicable standard of care. About the Author: J.T. Borah is a Texas medical malpractice attorney and founding attorney of The Borah Law Firm, PLLC, in Austin, Texas. His practice is limited exclusively to medical malpractice cases involving hospitals, nursing homes, and other medical institutions. He has been recognized as a Texas Super Lawyer. He is often asked to lecture at legal seminars on medical malpractice issues and has lectured to attorneys from 18 states. AI writing tools assisted Mr. Borah in preparing this article. All legal standards, citations, and factual claims were reviewed by Mr. Borah as a licensed Texas attorney. This article is for general informational purposes only and does not constitute legal advice. Reading this article does not create an attorney-client relationship. |
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