Jacqueline McGuire was a resident of Henderson County Healthcare Corporation’s Redbanks Skilled Nursing Facility in Henderson Kentucky. After McGuire suffered bedsores and multiple injuries while at Redbanks, McGuire was transferred to another nursing home facility where she ultimately died. McGuire’s brother, as administrator of her estate, filed a nursing home negligence lawsuit with various claims against Redbanks arising out of the alleged neglect.
During the prosecution of the lawsuit, Redbanks refused to respond to discovery requests seeking documents Redbanks claimed were protected by the Federal Quality Assurance Privilege (FQAP) pursuant to 42 U.S.C. § 1396r(b)(1)(B) and 42 U.S.C. § 1395i-3(b)(1)(B). The FQAP is a subsection of the Federal Nursing Home Reform Act (FNHRA) passed in 1987. To ensure quality care of nursing home residents, the FQAP requires skilled nursing facilities and nursing facilities to establish a quality assessment and assurance committee. The FQAP protects the records of the committee from disclosure.
At times relevant to McGuire’s care, Redbanks had a Quality Assurance Performance Improvement (QAPI) committee, which then contracted with an independent contractor, Wells Health Systems (“Wells”), to consult and evaluate and provide guidance to Redbanks on the facility’s quality of care. Nurse consultants employed by Wells performed site visits monthly wherein they examined residents’ medical charts, observed Redbanks staff perform their duties, and reviewed various statistical data. These chart audits, compliance rounds, and statistics reviews were then compiled in reports provided to Redbanks QAPI. The nurse consultants were neither Redbanks’ employees, nor members of the QAPI.