Enforcement of Quality Nursing Home Care in the Legal System

Subcommittee on Long Term Care of the Senate Special Committee on Aging, Nursing Home Care in the United States: Failure in Public Policy, Introductory Report, S. Rep. No. 93–1420, 93d Cong., 2d. Sess. (1974).

See ABA Commission on Legal Problems of the Elderly, Model Recommendations: Intermediate Sanctions for Enforcement of Quality of Care in Nursing Homes (American Bar Association, Washington, D.C.) (1981) at 57–71 (fifty-state survey of nursing home reform legislation) [hereinafter referred to as Model Recommendations].

42 C.F.R. §§405.1901–08; 405.1911: 442.10–115 (1984).

See Commission on California State Government Organization and Economy. The Bureaucracy of Care (1983); Illinois Legislative Investigative Commis'n, Regulation and Funding of Illinois Nursing Homes (1984) [hereinafter cited as Illinois Nursing Homes].

See, e.g., Model Recommendations, supra note 2, at 1–3 (discussing limitations of market controls for assuring quality control); Summary of Proposed Subpart S and NCCNHR Concerns, Collation 28: 6–7 (July 1982) (criticizing use of private accreditation for nursing home regulation).

On May 27, 1982. the Health Care Financing Administration published proposed regulations at 45 Fed. Reg. 23404-14 that would have substantially diminished the federal role in nursing home oversight. The proposed regulations were met with strong public and legislative opposition. By July 1982, at least 82 Representatives and 16 Senators had signed letters or resolutions opposing the proposals. Congress Acts to Oppose Subpart S Revisions, Collation 28: 13 (July 1982). Congress twice enacted moratoriums delaying the implementation of the proposals, and HCFA eventually abandoned the proposals.

42 C.F.R. §442.105(a) (1984). Time to correct violations may also be required by state law. See, e.g., Aurelia Osborn Fox Memorial Hosp. Soc'y v. Whalen, 391 N.Y.S.2d 20 (App. Div. 1978); Valley View Convalescent Home v. Washington Dep't of Social and Health Services, 599 P.2d 1313 (Wash. App. 1979).

Hills S. , Crime, Power and Morality (Chandler Publishing Co., Scranton, Pa.) (1971) at 44–46.

Hathaway v. Mathews, 546 F.2d 227, 230 (7th Cir. 1976) (plaintiff's “expectation of continuing to receive Medicaid payments on behalf of residents of the Home … is a protected property right…”); Case v. Weinberger, 523 F.2d 602, 606 (2d Cir. 1975) (plaintiff “has a property interest in her expectation of continued participation in the Medicaid program”).

See Goldberg, Legal Strategies for Defending a Medicaid Decertification Case, in Seventh Annual Symposium on Long Term Care and the Law (National Health Lawyers Ass'n, Washington, D.C.) (1982) at 3–5.

42 U.S.C. §§1395x(j)(9); 1396d(c) (1982); 42 C.F.R. §§ 405 1120(a); 442.201(a); 442.251(a) (1984).

See 42 C.F.R. §§431.151-54 (1983) (describing procedures the state must follow).

42 C.F.R. §§442.126(a); 442.101(c) (1984). See also 42 C.F.R. § 431.610 (1984) (describing relations between the survey agency and single state agency).

42 C.F.R. §442.12(a) (1984).

42 C.F.R. §§431–151–54 (1984).

See Institute of Medicine, Case Study of Nursing Home Regulation in Texas (draft) (1984).

Ohio reported that the two processes are largely separated, in its response to a fifty-state survey by the Institute of Medicine, question 31 [hereinafter cited as I.O.M. Survey].

42 U.S.C. §§1396a(33)(B); 1396i(c) (1982).

42 U.S.C §§1395aa(a) (1982); 42 C.F.R. § 405.1902 (1984).

42 C.F.R. §§405.1501 95 (1984).

42 C.F.R. §442.20(b) (1984).

See Miles Goldberg , Defending a License Revocation and Program Decertification Case, in Eighth Annual Sympossium on Long Term Care and the Law (National Health Lawyers Ass'n, Washington, D.C.) (1983) at 7–8 (advising facilities to submit a cover letter with correction plans, disputing the truth of facts alleged and conclusions set forth in the statement of deficiencies and asserting that alleged deficiencies do not jeopardize patient health and safety).

See I.O.M. survey, supra note 17, question 25.

See Institute of Medicine, Enforcement of Nursing Home Regulations in California (draft) (1984) at 18, 46 (California's decentralized enforcement system has led to inconsistent enforcement) [hereinafter cited as California Case Study].

The Inspection of Care process, authorized by 42 C.F.R. §§456.600-14 (1984) reviews the adequacy of and need for services received by Medicaid recipients in skilled nursing homes and intermediate care facilities Its focus is on individual recipients, rather than on the facility as a whole, but it is required to share its findings with the licensure and certification agency, 42 C.F.R. §456.612(c) (1984).

In Georgia, for example, enforcement efforts have been initiated by the Georgia Medical Care Foundation which conducts the Inspection of Care. Institute of Medicine, Case Study of Georgia's Regulation of the Nursing Home Industry (draft) (1984) at 24–26.

National Citizens Coalition for Nursing Home Reform, Consumer Statement of Principals for the Nursing Home Regulatory System—State Licensure and Federal Certification Programs (Citizens Coalition for Nursing Home Reform, Washington, D.C.) (1983) at 64–66.

Daley v. Frechette, No. 80-0332-CV (Mass. Suffolk County Super. Ct., Sept. 8, 1980) discussed in Goldberg Harkins , Recent Developments and Litigation Trends in Long Term Care, in Long Term Care and the Law ( Johnson S. , ed.) (National Law Publishing Co., Owings Mills, Md.) (1983) at 1–4, 29, 58–63.

New Hampshire Health Care Association v. Kaplan, No. 80-80-D (D.N.H. May 20, 1980); O'Hare v. Harris, No. 8-457-D (D.N.H. March 12, 1981), discussed in Johnson S. Terry N. Wolff M. , Nursing Homes and the Law: State Regulation and Private Litigation (Harrison Co., Norcross, Ga.) (1985) at 40–41.

See, e.g., People v. Firstenberg, 155 Cal. Rptr. 80 (Cal. App. 1979), cert, denied, 444 U.S. 1012 (1980); Uzzillia v. Comm'r of Health, 367 N.Y.S.2d 795 (N.Y. App. Div.) appeal dismissed 375 N.Y.S.2d 97 (N.Y. 1975) (challenging warrantless inspections under the fourth amendment); Office of Attorney General of California, Op. No. 79-608, 63 Ops. Cal. Any. Gen. 169 (1980) (approving warrantless inspections of health care facilities).

See, e.g., Ill Rev. Stat. Ann. ch. 111½ §4153-318 (Smith-Hurd Supp, 1984).

See Model State Administrative Procedure Act §9(b) (1980); (V.L.A. §4-206 Supp. 1984) [hereinafter cited as 1981 Model Act].

42 C.F.R. §431.153(c)(1) (1984).

42 C.F.R. §431.154(b)(1) (1984).

See Friedman v. Division of Health of Missouri, 537 S.W.2d 547 (Mo. 1976) (permitting reliance on results of earlier surveys in delicensure hearings).

The 1981 Model Act bars exclusion of evidence if the only objection is hearsay. 1981 Model Act, supra note 35, §4-212(a). Reported case law also shows that current state practice varies. Compare Daniels v. Retirement Bd. of Policeman's Annuity and Ben. Fund, 435 N.E.2d 1276 (Ill. App. 1982) (hearsay not admissible in administrative proceedings); with McConnell v. Iowa Dept, of Job Service, 327 N.W.2d 234 (Iowa 1982) (hearsay generally admissible in administrative hearings); and Community Hospital at Glen Cove v. D'Elia, 435 N.Y.S.2d 329 (N.Y. App. Div. 1981) (hearsay evidence admissible in administrative proceedings, but there must be a residuum of legal evidence to support a determination).

Facility challenges to federal and state nursing home standards on vagueness grounds have generally failed. Beach v: Western Medical Enterprises, 171 Cal. Rptr. 846 (Cal. App. 1981); Lackner v. St. Joseph Convalescent Hosp. 165 Cal. Rptr. §198 (Cal. App. 1980); Geriatrics v. Colorado State Dep't of Health, 650 P.2d 1188 (Colo. App. 1982); People v. Gurell, 456 N.E.2d 18 (Ill. 1983); Boswell, Inc. v. Harkins, 640 P.2d 1208 (Kan. 1982), appeal dismissed, 459 U.S. 802 (1982).

42 C.F.R. §§442.105(c), (d) (1983) seem to require consideration of earlier survey results prior to certification. Two Missouri Supreme Court decisions have permitted consideration of past deficiencies in delicensure actions. Friedman, supra note 35; Ringwald v. Division of Health of Missouri, 537 S.W.2d 552 (Mo. 1976).

See Mich. Comp. Laws Ann §333.21771(6) (West 1980); Mo. Rev. Stat. Ann. §198.070(10) (Vernon 1983) (protecting from retaliation persons who report abuse of residents).

42 C.F.R. §§431.151-154 (1984).

50 Fed. Reg. 7197, 7198 (1985) (to be codified at 42 C.F.R. §442.18(b)(3)(8). 489.62 (c)(1)).

See State Dept, of Health v. Tegnazian, 477 A.2d 363 (N.J. Super. 1984) (hearing officer of state agency criticized as “disturbingly insensitive to the dignity and welfare of the nursing home patients’).

Miles Goldberg , supra note 22, at 1. See Belmont Nursing Home v. Illinois Department of Public Aid, 439 N.E.2d 511 (Ill. App. 1982) (appellate court's reversal of stay granted in lower court despite noncompliance with statutory requirements for stay).

See Ill. Rev. Stat. Ann. 111½ §4153-713(b) (Smith-Hurd Supp. 1984).

See Geriatrics v. Colorado State Department of Health, supra note 37; Boswell, Inc. v. Harkins, supra note 37; Ridge Manor Convalescent Home v. City of Chicago, 283 N.E.2d 272 (Ill. App. 1972); Friedman v. Division of Health, Manor Convalescent Home v. City of Chicago, 283 N.E.2d 272 (Ill. App. 1972); Friedman v. Division of Health, v. Division of Health, supra note 35. But see Courtland-Clinton, Inc. v. New York Dept. Health, 399 N.Y.S.2d 492 (N.Y. App. Div. 1977).

See Zieverink v. Ackerman, 437 N.E.2d 319 (Ohio App 1981) (evidence of subsequent discovery of unconstitutional state may not be introduced into judicial review of enforcement action).

Melbourne Corp. v. Chicago, 394 N.E.2d 1291 (Ill. App. 1979); Kepl v. Washington Dep't of Social and Health Services. 659 P. 2d 1108 (Wash. App. 1983).

Miles Goldberg , supra note 22, at 4, argue that unless deficiencies are “willful and deliberate,” facilities must be given a “right to cure,” prior to decertification. See Valley View Convalescent Home v. Dep't of Social and Health Services, 599 P.2d 1313 (Wash. 1979). Yet, surely, this right does not continue indefinitely. State courts have held that facilities do not have an open-ended opportunity to correct deficiencies, Boswell, Inc. v. Harkins, supra note 37.

Tex. Civ. Stat. Ann. ch. 442(c) §6 (Vernon 1976). See Goldberg , supra note 10, at 4, emphasizing the aggressive use of discovery: “Frequently, maintaining an aggressive posture through the discovery stage will cause the state to question the adequacy of its factual case, and thereby encourage the state to accept a settlement. Many threatened decertifications can be remedied by settlement or consent decree if sufficient shortcomings are uncovered during an analysis of the supposed facts and the quality of the expected state witnesses.”

Model Recommendations, supra note 2, at 42. See Ill. Rev. Stat. ch. 111½, §§4153–704, 4153–707 (1979); Wis. Stat. Ann. §50.04(4)(e) (West Supp. 1980).

Americana Healthcare v. Schweiker, 688 F.2d 1072, 1083 (7th Cir. 1982); Geriatrics, Inc. v. Harris, Healthcare v. Schweiker, 688 F.2d 1072, 1083 (7th Cir. 1982); Geriatrics, Inc. v. Harris, v. Harris, 640 F.2d 262, 265 (10th Cir. 1981), cert, denied, 454 U.S. 832 (1981).

42 C.F.R. §431.154 (1983).

Cal. Health & Safety Code §1428(c) (West Supp. 1984). This was upheld in Lackner v. Perkins, 154 Cal. Rptr. 138 (Cal. App. 1970): Myers v. Astoria Convalescent Hosp. 164 Cal. Rptr. 495 (Cal. App. 1980).

See California Case Study, supra note 24, at 34, 40–41.

Minn. Stat Ann. §256B.47 (West Supp. 1984). But see Long Island College Hospital v. Whalen, 416 N.Y.S.2d 841 (N.Y. App. Div. 1979) (New York Medicaid policy holding nonallowable legal fees and expenses of litigation against state without rational basis).

42 C.F.R. §§441.11(b), 442.15(c) (1983).

See Michigan Dept, of Human Services v. Secretary of Health and Human Services, 744 F.2d 32 (6th Cir. 1984); Colorado Dept, of Social Services v. Department of Health & Human Services 585 F. Supp. 522 (D. Colo. 1984) (affirming HCFA position that Federal Financial Participation (FFP) cannot continue for more than 12 months for provider contesting decertification, as that is the maximum period for which the provider could be certified).

42 U.S.C. §1396a(i) (1982)

50 Fed. Reg. 7191 (1985).

Federal contributions for survey activities related to Medicaid were decreased from 100 percent to 75 percent in 1980. See Health Standards and Quality Bureau Standards and Certification State Letter No. 263, in Medicare & Medicaid Guide (CCH) #14905.61 (1984) (explaining current provision of 75 percent FFP under 42 U.S.C. §1396b(a)(2) (1982)).

Illinois Nursing Homes, supra note 4.

H. R. 4170, §2314, 98th Cong., 2d Sess., 98 Stat. 494, 1079 (1984).