See generally KappM. & BigotA., Geriatrics and the Law: Patient Rights and Professional Responsibilities. Springer Publishing Company: New York, 1985.
2.
BrodyJ.A., “Prospects for an Ageing Population”, Nature, 1985;315:463. See also BrodyJ.A.BrockD.B. & WilliamsT.F., “Trends in the Health of the Elderly Population”, Annual Review of Public Health, 1987;8:211.
3.
Congress of the United States, Office of Technology Assessment, Technology and Aging in America, Washington, D.C.: Government Printing Office (1985), at Executive Summary 3.
4.
RivlinA. & WeinerJ., Caring for the Disabled Elderly: Who Will Pay?Brookings Institution: Washington, DC, 1988.
5.
Vladeck, “Long-Term Care for the Elderly: The Future of Nursing Homes”, Western Journal of Medicine, 150(1989):215–20,217.
6.
Libow & Starer, “Care of the Nursing Home Patient”, New England Journal of Medicine, 321 (1989):93–96.
7.
Throughout this article, the term “resident” rather than “patient” will be employed, to emphasize that nursing homes are total living institutions, of which health services are only one part.
8.
See generally JohnsonS.TerryN.WolffN., Nursing Homes and the Law: State Regulations and Private Litigation. (Waycross, GA: Harrison Publishers, 1985).
9.
See Boggs & Connor, “Nursing Home Tort Victims: Rights and Remedies”, Florida Bar Journal, 63(2) (1989):11–14; BrownR., The Rights of Older Persons. (Carbondale, IL: Southern Illinois University Press, 1989), at 316–318; Johnson & Dodson, “Decreasing Exposure to Liability in Long-Term Care”, Health Progress, 67(8) (1986):18.
10.
TimmreckT.C., “Legal and Administrative Aspects of Subacute Care”, Journal of Long-Term Care Administration, 1988(Fall);16:24–28; KappM.B., “Hospital Reimbursement by Diagnosis Related Groups: Legal and Ethical Implications for Nursing Homes”, Journal of Long-Term Care Administration, 1986 (Fall);14:20–26.
11.
KappM.B., Preventing Malpractice in Long-Term Care: Strategies for Risk Management, New York: Springer Publishing Company (1987); GrimaldiP.L.MichelettiJ.ShlalaT.J., “The Growing Need for Risk Management”, Contemporary Long-Term Care, 1987;10:68–70; KappM.B., “Risk Management: Preventing Malpractice in Long-Term Care Facilities”, Quality Review Bulletin, 1986; 12:109–113; KappM., “A Survey of State Medicaid Policies on Nursing Home Legal Risk Management Programs”, Perspectives in Healthcare Risk Management, Winter 1989;10(1):8–9.
12.
KappM.B.MarkertR.J., “Legal Risk Management Programs in Nursing Homes: Who Has Them and Do They Work?” Hospital Administration and Health Services, 35:4, Winter, 1990.
13.
Social Security Act, Title 18.
14.
Social Security Act, Title 19.
15.
On government regulation of nursing homes, see generally National Senior Citizens Law Center, Nursing Home Law. A Legal Services Practice Manual, Chicago: National Clearinghouse for Legal Services (1982), See also JostT.S., “Enforcement of Quality Nursing Home Care in the Legal System”, Law, Medicine & Health Care, 1985;13:160–172.
16.
See American Bar Association Commission on Legal Problems of the Elderly, Model Recommendations: Intermediate Sanctions for Enforcement of Quality of Care in Nursing Homes, Washington, DC: ABA (1981). See also JohnsonS.H., “State Regulation of Long-Term Care: A Decade of Experience with Intermediate Sanctions”, Law, Medicine & Health Care, 1985;13:173–187; LanderL., “Licensing of Health Care Facilities”, in RoemerR. & McKrayG. (eds.), Legal Aspects of Health Policy: Issues and Trends. Greenwood Press: Westport, CT, 1980, at 129–172.
17.
See LazarusT.Mejia-DietcheA.SheinP.B., “Don't Make Them Leave Their Rights at the Door: A Recommended Model State Statute to Protect the Rights of the Elderly in Nursing Homes”, Journal of Contemporary Health Law and Policy, 1988;4:321–374, at 336–338.
18.
See HarrisS., “Effect of OBRA 1987 on Long-Term Care Providers' Liability”, Perspectives in Healthcare Risk Management, Summer 1990;10(3):11–14; KappM., “Long-Term Care: The Impact of Recent Federal Laws”, Perspectives in Healthcare Risk Management, Summer 1989;9(3):23–25.
19.
Davidson, “U.S. Study of All Nursing Homes Shows Compliance With Rules, Draws Criticism”, Wall Street Journal, December 2, 1988, B4.
20.
Public Law 100–203.
21.
Codified at 42 U.S.C. Sec. 1396r. For legislative history, see Subcommittee on Health and the Environment of the Committee on Energy and Commerce, U.S. House of Representatives, Hearings on Medicaid Issues in Family Welfare and Nursing Home Reform (H.R. 2270). 100 Cong., 1st Sess., Serial No. 100-73, May 12, 1987, at 93–592. See also Vladeck, supra note 5, at 215–216.
22.
Institute of Medicine, Improving the Quality of Care in Nursing Homes, Washington, DC: National Academy Press (1986).
23.
See, e.g., Special Committee on Aging, U.S. Senate, Hearing on Nursing Home Survey and Certification: Assuring Quality Care. 97th Cong, 2d Sess., July 15, 1982.
24.
Smith v. O'Halloran, 557 F.Supp. 289 (D. Colo. 1983), reversed subnom. Smith v. Heckler, 747 F.2d 583 (10 Cir. 1984) (holding that HCFA failed to ensure “high quality care” in federally funded nursing homes).
25.
52 Federal Register 38582 (October 16, 1987).
26.
Although the new federal law does not prohibit discrimination against Medicaid recipients in nursing home admissions, it requires homes to maintain identical policies regarding transfer, discharge, and provision of services for Medicaid, Medicare, and private-pay patients. Explicitly prohibited are duration-of-stay contracts, required third-party guarantors of payment, and solicitation of donation as a condition of admission or continued stay. See EdelmanT., Nursing Home Discrimination Against Medicaid Recipients, Discrimination in Admission: Rights and Remedies, Washington, DC: National Senior Citizens Law Center (April 21, 1988). The law responds to a problem described in EdelmanT., “Discrimination by Nursing Homes Against Medicaid Recipients: Improving Access to Institutional Long-Term Care for Poor People”, Clearinghouse Review, 1986 (Special Issue);20:339–350.
27.
54 Federal Register5316 (February 2, 1989), to be codified at 42 Code of Federal Regulations Chapter IV, Subchapter C, Part 483.
28.
Note 25, supra.
29.
Note 22, supra.
30.
54 Federal Register 29717 (July 14, 1989).
31.
See, e.g., Gray Panthers Advocacy Committee v. Sullivan, No. 89-0605NHJ (D.D.C., filed March 9, 1989); Idaho Health Care Association and Idaho Hospital Association v. Bowen, Civil No. 88-1425 (D. Idaho). See also TeskeJ.M., “AHA Seeks Clarification of Mental Illness/Mental Retardation Prescreening Requirements”, Journal of Health and Hospital Law, 1989;22:207; Long-Term Care Strategy Report, May, 1989, at 77; DeCarlo, “Influencing OBRA Developments: AHCA Plays the Game to Win”.” Provider 1989; 15 (September).18–19.
32.
Public Law 101–239, 42 U.S.C. Sec. 1395i-3 and 1396r (West Supp.1989).
33.
See Health Care Financing Administration, State Operations Manual, Provider Certification. Appendix P. Washington, DC: U.S. Government Printing Office (1989).
34.
For a study of the PaCS survey and certification process and its weaknesses, see W.D. Spector, M.L. Drugovich, “Reforming Nursing Home Quality Regulation: Impact on Cited Deficiencies and Nursing Home Outcomes”, Medical Care, 1989;27:789–801.
35.
On recent legal attention to nursing home admissions policies and contracts, see D.M. Ambrogi, F. Leonard, “The Impact of Nursing Home Admission Agreements on Resident Autonomy”, Gerontologist, 1988 (June, Special Supplement);28:82–89.
36.
See KinneyV., “OBRA Nursing Home Rules Target Aides, Mentally Ill”, Health Progress (May 1989):19–20 (describing the Preadmission Screening/Annual Resident Review, or PASSARR, process). See also Libow & Starer, supra note 6, at 95 (“behavioral, cognitive, and sleep disorders are common in nursing home patients”).
37.
See, e.g., HymanE.A., “The Nursing Home and Community Residence Facility Residents' Protections Act of 1985—Boon or Bane?” Howard Law Journal, 1989;32:39–47 (describing the District of Columbia law).
38.
ARIZ. REV. STAT. Sec. 36–447.17 (1985); CAL. HEALTH & SAFETY CODE Sec. 1599.1.4 (West Supp. 1987); COLO. REV. STAT. Sec. 25-1-120 (1973); CONN. GEN. STAT. Sec. 19a-550 (Supp. 1987); DEL. CODE ANN. tit. 16 sec. 1121–26 (1983); Nursing Home and Community Residence Facility Residents' Protection Act of 1985, D.C. LAW 6–108; FLA. STAT. ANN. Sec. 400.022 (1)-(4)(West 1986); GA. CODE. ANN. Sec. 31-8-103 (1985); ILL. REV. STAT. ch. 111 1/2, para. 4152–101 (1977); IND. CODE 16.1–24 (1984); KY. REV. STAT. ANN. Sec. 4.216.515 (Mitchie/Bobbs-Merrill 1982); LA. REV. STAT. ANN. Sec. 2010.8 (West. Supp. 1987); ME. REV. STAT. ANN. tit. 22, sec. 7921 (1964); MASS. GEN. LAWS ANN. Ch. 111, Sec. 70E (West 1983); MICH. COMP. LAWS ANN. Sec. 333.20201 (West 1980); MINN. STAT. ANN. Sec. 144.651 (West Supp. 1987); MO. REV. STAT. Sec. 198.088 (1983); NEV. REV. STAT. Sec. 449.720 (1985); N.H. REV. STAT. ANN. Sec. 151:19 (Supp. 1986); N.J. STAT. ANN. Sec. 30:13–3 (West 1981); N.Y. PUB. HEALTH LAW Sec. 2803-c (McKinney 1985); N.C. GEN. STAT. Sec. 131E-117 (1983); N.D.CENT. CODE Sec. 50–10.2–02 (Supp. 1987); OHIO REV. CODE ANN. Sec. 3721.13 (Baldwin 1982); OKLA. STAT. ANN. tit. 63, sec. 1–1918 (West 1984); OR. REV. STAT. Sec. 441.605 (1985); R.I. GEN LAWS Sec. 23–17.5–1 (1985); TEX. HUM. RES. CODE ANN. Sec. 102.003 (Vernon Supp. 1987); VT. STAT. ANN. tit. 18, sec. 2101 (1984); VA. CODE ANN. Sec. 32.1–138 (1985); WASH. REV. CODE Sec. 74.42.030 (1982); WIS. STAT. ANN. Sec. 50.09 (West. Supp. 1986).
39.
See Lazarus supra note 17, at 328–331.
40.
Id., at 331–333.
41.
Id., at 333–336. But see O'Bannon v. Town Court Nursing Center, 447 U.S. 773 (1980) (nursing home residents do not have a constitutional right to a hearing before their nursing home is decertified from participation in the Medicaid program, even if the result will be displacement) and Blum v. Yaretsky, 457 U.S. 991 (1982) (nursing home may involuntarily transfer a resident without a hearing where an authorized utilization review body finds that the resident no longer needs care at her current level).
42.
Edelman (1988), supra note 26, at 3; HarrisS., “States Act on Access to Care”, Provider, 1986 (March):40. But see New York State Health Facilities Association, Inc. v. Axelrod, Index No. 1777-89, New York Supreme Court, Albany County, June 6, 1989 (invalidating New York's “Medicaid Patient Access Regulations” requiring nursing homes to admit a specific quota of Medicaid patients).
43.
42 U.S.C. Sec. 1396a(a)(33)(B).
44.
Joint Commission on Accreditation of Healthcare Organizations, Long Term Care Standards, Chicago: JCAHO (1988).
45.
Cf. Darling v. Charleston Memorial Hospital, 33 Ill.2d 326, 211 N.E.2d 253 (1965), cert. denied 383 U.S. 946 (1966).
46.
In 1989, a new resource center for state Long-Term Care Ombudsman programs was established jointly by the National Association of State Units on Aging (NASUA) and the National Citizens' Coalition for Nursing Home Reform (NCCNHR). Center, 2033 K Street NW, Suite 304, Washington, DC 20006 (202-785-1925).
47.
See National Association of State Units on Aging, Comprehensive Analysis of State Long-Term Care Ombudsman Offices. NASUA: Washington, DC (September, 1988); National Association of State Units on Aging, Analysis of Policies and Procedures of State Long Term Care Ombudsman Offices. NASUA: Washington, DC (September, 1988).
48.
101 Stat. 935, 937, codified at 42 U.S.C. Sec. 3027 (a)(12); 45 Code of Federal Regulations Sec. 1321.11 and 1321.17.
49.
See, e.g., KappM.B., “Financing Long-Term Care for the Elderly: Am I Your Parents' Keeper?” Law, Medicine & Health Care, 1985; 13:188–189.
50.
Vladeck, supra note 5, at 218.
51.
CogenR., “Medicare Coverage in the Nursing Home”, Journal of the American Geriatrics Society, 1989;37:774–776.
52.
See generally RivlinA.M. and WienerJ.M., supra Note 4; U.S. Bipartisan Commission on Comprehensive Health Care (“Pepper Commission”), Access to Health Care and Long-Term Care for All Americans. 101st Cong., 2d Sess. (March 2, 1990). See also KappM., “Finding the Recipe for Long Term Care Financing: Time to Add a Little “Pepper’?” Hastings Law Journal, Spring 1991—In Press).
53.
See PawlsonL.G., “Financing Long-Term Care: The Growing Dilemma”, Journal of the American Geriatrics Society, 1989; 37:631–638.
54.
See Institute on Aging Work and Health, Washington Business Group on Health, The Corporate Perspective on Long Term Care. WBGH: Washington, DC (December, 1987); U.S. General Accounting Office, Medicaid: Recoveries from Nursing Home Residents' Estates Could Offset Program Costs. GAO/HRD-89-56: Washington, DC (March, 1989).
55.
See LongS., Death Without Dignity (Austin: Texas Monthly Press, 1987); People v. T & S Leasing, Inc., 763 P.2d 1049 (Colo.Sup.Ct. 1989).
56.
Libow and Storer, supra note 6, at 95. On the legal aspects of teaching nursing homes generally, see KappM.B., “Nursing Homes as Teaching Institutions: Legal Issues”, Gerontologist, 1984;24;55–60.
57.
CasselC.K., “Ethical Issues in the Conduct of Research in Long Term Care”, Gerontologist, 1988 (June Special Supplement);28:90–96; CasselC.K., “Research in Nursing Homes: Ethical Issues”, Journal of the American Geriatrics Society, 1985;33:795–799.
58.
AnnasG.J.GlantzL., “Rules for Research in Nursing Homes”, New England Journal of Medicine, 1986;315:1157–1158, editorial in response to WarrenJ.W.SobalJ.DenneyJ.H., “Informed Consent by Proxy: An Issue in Research with Elderly Patients”, New England Journal of Medicine, 1986;315:1124–1128.
59.
Author's telephone conversation with Department of Health and Human Services, National Institutes of Health, Office of Protection from Research Risks (OPPR), Bethesda, MD.
60.
45 Code of Federal Regulations Part 46 (1981), based on National Research Act, P.L. 93–348 (1974). See also Food and Drug Administration regulations on human subjects research, 21 Code of Federal Regulations Parts 50 and 56. The new federal nursing home regulations also underscore the right of the resident to consent to or refuse research participation. 42 Code of Federal Regulations 483.10(b)(4). See SchafferS.M., “Participation of Residents in Facility Research Projects”, Provider, 1989 (May):30–31. 61 45 Code of Federal Regulations Sec. 46.116.
61.
See AbramsR., “Dementia Research in the Nursing Home”, Hospital and Community Psychiatry, 1988;39:257–259.
62.
MelnickV.L.DublerN.N.WeisbardA.J., “Clinical Research in Senile Dementia of the Alzheimer Type: Suggested Guidelines Addressing the Ethical and Legal Issues”, Journal of the American Geriatrics Society, 1984;32:531–536.
63.
Id.; DublerN.N., “Legal Judgments and Informed Consent in Geriatric Research”, journal of the American Geriatrics Society, 1987;35:545–549.
64.
For examples of social issues investigation in nursing homes, see e.g., WetleT.LevkoffS.CwikelJ., “Nursing Home Resident Participation in Medical Decisions: Perceptions and Preferences”, Gerontologist, 1988 (June Special Supplement);28:32–38; TymchukA.J.OuslanderJ.G.RahbarB., “Medical Decision-Making Among Elderly People in Long Term Care”, Gerontologist, 1988 (June Special Supplement);28:59–63.
65.
See, e.g., RouseF., “Living Wills in the Long-Term Care Facility”, Journal of Long-Term Care Administration, 1988 (Summer);16:14–19.
66.
LongoD.R.BurmeisterR.WarrenM., “’Do Not Resuscitate’: Policy and Practice in the Long-Term Care Setting”, Journal of Long-Term Care Administration, 1988(Spring);16:5–11.
67.
New York Public Health Law Article 29-B, effective April 1, 1988 and accompanying Department of Health Memorandum, March 18, 1988. See FaderA.M.GambertS.R.NashM., “Implementing a ‘Do-Not-Resuscitate’(DNR) Policy in a Nursing Home”, Journal of the American Geriatrics Society, 1989;37:544–548; Martico-GreenfieldT., “A Nursing Home's Response to a New York State Law Regarding DNR Orders”, Paper presented at the 35th Annual Meeting of the American Society on Aging, Washington, D.C., March 20, 1989.
68.
FinucaneT.DenmanS.J., “Deciding About Resuscitation in a Nursing Home: Theory and Practice”, Journal of the American Geriatrics Society, 1989;37:684–688.
69.
MilesS.H.GomezC.F., Protocols for Elective Use of Life-Sustaining Treatments. (New York: Springer Publishing Company, 1989), at 80; BesdineR.W., “Decisions to Withhold Treatment from Nursing Home Residents”, Journal of the American Geriatrics Society, 1983;31:602–606.
70.
See, e.g., California Department of Health Services, Guidelines Regarding Withdrawal or Withholding of Life-Sustaining Procedure(s) in Long-Term Care Facilities, (OHLP 88–79) (December 14, 1988); State of Maryland, Opinions of the Attorney General, October 17, 1988;73: Opinion No. 88-046; Massachusetts Department of Public Health, Policy Guidelines for Evaluation of LTC Facility Practices and Procedures About Resuscitation of Terminal Patients (1987).
71.
See New Jersey Office of the Ombudsman, Decisions to Withdraw or Withhold Life-Sustaining Medical Diagnosis or Treatment from Patients Age 60 and Over (August 30, 1988).
72.
KappM.B., “Limiting Medical Interventions for Nursing Home Residents: The Role of Administrative Law”, Advances in Long Term Care, 1990 (In Press).
73.
See GlasserG.ZweibelN.R.CasselC.K., “The Ethics Committee in the Nursing Home: Results of a National Survey”, Journal of the American Geriatrics Society, 1988;36:150–156; BrownB.A.MilesS.H.AroskarM.A., “The Prevalence and Design of Ethics Committees in Nursing Homes”, Journal of the American Geriatrics Society, 1987;35:1028–1033.
