Wednesday, February 25, 2015
Hurricane Katrina brought with it a tragedy of enormous scale. Thousands lost their lives, loved ones, homes, and property. For the residents of the St. Rita nursing home and Lafon nursing home the battle was lost long before the Hurricane Katrina. Poor quality of care, incompetent management, and lack of reporting standards in these two nursing homes lead to abandonment of their residents who were later found dead by the rescue workers. It is well documented that the care provided in some nursing homes is substandard, some places even inhumane. Every now and then, news stories of malnutrition, abandonment, use of restraints and sleeping pills on residents, surface to remind us this growing problem. This article summarizes the lack of federal oversight on Nursing home regulation and proposes simple yet effective changes that can help the nation develop consistent and responsible quality standards for nursing homes and assisted living facilities.
CMS along with the state governments reimburses the nursing home care for qualified individuals, yet it does not directly oversees the quality of care provided in the nursing homes. To be able to receive reimbursements from CMS, the nursing homes have to comply with a set of guidelines and meet certain quality standards. While the federal government sets the inspection procedure and guidelines, the implementation of the inspections is delegated to the state survey agencies (Boemhke, Page 2). These guidelines are therefore subject to interpretation of the inspectors who use their judgment based on local norms and availability of resources. Consequently, states have their own application of standards including licensures and conduct inspections. There are as many reporting standards as there are states, and they are often in disagreement over required standards. This poses a difficulty in interpreting and differentiating standard of care from one state to another, especially for nursing home companies and providers. (Miller and Mor, Page 253).
Along with technical complexities the political system also shapes the standard of care at the nursing homes. The state authorities, especially the legislature is prone to be influenced by the local interest groups and political contributions by interested parties. It has been observed that contributions to both legislators and governor’s office influences survey outcomes. The legislators may ask inspectors to go easy on particular nursing homes, or tamper with the results to formulate a final report that appears more compliant. Therefore a federal level reporting program will provide consistent and fair results for the simple reason that it would be more costly for facilities to influence members of the congress. (Boemhke, Page 25).
It is clear that state health officials need more informed guidance when routinely monitoring quality of nursing homes and assisted living facilities. The data pulled from various inspections across the nation should be compiled and analyzed to create decision support tools that inform and educate the public officials about provider quality standards for the state and local officials to aid their inspections and oversight activities. On a national scale it is desirable to invest in a federally managed program that analyses real time data and creates evidence based “best practices” to be used by the industry (Miller and Mor, Page 269). For home health recipients, the data can include information of the care takers, their living condition etc. These databases will also prove to be beneficial during the times of emergencies to plan and guide the rescue efforts of the frail and the elderly.
1) Edward Alan Miller, Vincent Mor (2008), Balancing Regulatory Controls and
Incentives: Toward Smarter and More Transparent Oversight in Long-Term Care, Journal of Health Politics and Law, Vol 33 No. 2 2008
2) Federick J. Boehmke (2008) Subverting Administrative Oversight: Campaign Contributions and Nursing Home Inspections.
Change is never welcomed. Newton’s First law of motion explains why a body at rest remains at rest. Politics teaches us that this law is applicable to a group of people, especially to Congress. One of the reasons why PPACA is a historical landmark in American Legislature is because it defied the above stated law. Men from two parties do not work together, interests group do not come together, and more importantly presidents don’t neglect unfavorable polling results. With the benefit of hind sight, we can now study, in detail, what factors were responsible for the bill to become a reality.
Bill Clinton’s “Conservative means and liberal ends” experiment with healthcare reform was the founding stone of this legislation: the current president and his aides knew exactly what not to do if they wanted the bill to see the light of the day. President Obama knew early on that to see any progress in health reform, his team must work with everybody. Everybody here means interests groups, liberals and conservatives and various congressional committees. Max Baucus and Ted Kennedy were the unsung heroes that deserve equal credit for the success of such a strategy.1 (Jonathan Cohn)
The first perquisite for this bill was Democratic Coalescence. With three leading Democratic candidates proposing similar reform plans showed that intraparty agreement already existed even before President Obama’s election (Hacker, Page 40). The second important condition was provided by the forbidding economic reality of the day. During the 2008-09 economic recessions, several surveys made it clear that Americans craved security. That ensured some support for a bill that proposed coverage for previously uninsured, but were still not in support of an imposed mandate. The challenge for the Democratic Party was to bring the middle class, which already has insurance, on board to support the president in his crusade. The President himself had to change his stand on mandatory insurance purchases. Initially they were to be voluntary and President himself opposed Hillary Clinton on that issue, in his campaign ads (Feder, Page 414).
Later in the process, the President made sure that there was strong coordination between committees like Energy and Commerce, Ways and Means, and Education and Labor that, together, developed the bill. But it was also essential to work with Republicans who were likely to support the bill. Personal ambition can support and thrust a legislation; Max Baucus, who has a reputation of working on major legislative pieces, worked across party lines for the greater cause. Similarly, the Workhorse group garnered the inside Washington momentum. On financial side Obama sought Ken Conrad’s support from the Congressional Budget Office and heeded to the demands of generating enough “scorable” savings to pay for expanding coverage of then projected $1 trillion (Oberlander, Page 1113).
There was a much fiercer theme that propelled the supporters of the bill, to them the failure of PPACA would mean that USA is ungovernable and no major legislation can be passed in this country. The question that looms large is that with the extra insurance coverage to new Medicaid enrollees, who will pay for Medicaid as the years roll and Federal government pulls out its contribution to the states. . Are the cost cutting measures like electronic medical record requirements and Medicare savings incentives strong enough to surmount the ever increasing healthcare costs?
1) Jonathan Cohn (2011), How they did it, New Republic Retrieved from: http://www.newrepublic.com/article/75077/how-they-did-it
2) Jacob S. Hacker (2011), Rethinking Conceptual Frameworks: Why Reform Happened, Journal of Health Politics, Policy and Law, Vol. 36, No. 3
3) Judith Feder (2011), Reflections from Inside Too Big to Fail: The Enactment of Health Care Reform, Journal of Health Politics, Policy and Law, Vol. 36, No. 3
4) Jonathan Oberlander (2010) Long Time Coming: Why Health Reform Finally Passed, Health Affairs 29, NO. 6 (2010):
It will not be incorrect to say that in the current environment, successful litigation can have regressive effects and negative impacts on the health care system. It is true that a single court case decision may not affect the whole system but cumulative effects of the court rulings hold significant importance not just in the eyes of the parties involved but also policy makers and governments.
The courts are not suited to address healthcare decisions such as: Non-compete laws 1, Mergers and Acquisitions 2, ERISA violations by Managed care organizations (MCO) 3, and Medical Malpractice 4, except in the case of res ipsa loquitur (Mello et al.), for numerous reasons. First and foremost, judges are not equipped with detailed knowledge of Medicine or Health policy. The argument that, proper role of a judge in a constitutional republic is a modest one, but does not work when judges are made responsible for making important policy related decisions. It is true that the judicial system requires the disputes to be judged based on what the law says and according to its original public meaning rather than the personal discretion of judges. Judges acting in accordance with their constitutional duties will at times uphold laws that may be bad policy and strike down laws that may be good policy. Judicial review requires the judge to determine not whether the law leads to good or bad results, but whether the law violates the Constitution. 5
Secondly, the system does not make use of the precedents, nor there exists a way for them to do so. There is a necessity for a national centralized adverse event database, which can serve as an information resource for the judiciary, healthcare providers, and researchers.4 In the absence of such a system it is no surprise that different courts give varyingly different verdicts for a similar cases.
Third problem is that of scope; the judicial system only looks at one case at a time and therefore precludes the big picture. The driving force in health policy is how to allocate finite resources is to serve society at large, problem of “containing aggregate” while maintaining quality of care. By contrast courts are traditionally concerned with protecting individual liberties and rights, with the legal system designed to protect individual litigants. 6
The fourth problem is that of perspective. In the research undertaken by Jacobson et al., researchers found that in 33 % of the cases sampled, the court gave great weight to a policy issue6. It suggests that the judiciary is well aware of the policy conflicts at stake and is willing to consider them. Their study also found that when courts rely on “justice/fairness”, plaintiff won 74 % of the time, but only a 28 % when “economy/cost efficiency” controlled the argument. Perspective is important in any argument, but how does the judiciary decide whose perceptive to adopt when making decisions. Currently it is, at best, random. The Aetna Health Vs. Davila case in supreme court’s decision on challenging ERISA plan coverage , made the author, Timothy Jost, to conclude that: if anyone is going to permit tort actions to be brought against MCOs, it will have to be congress. 3
It is clear that the courts are not equipped to handle cases that may negatively impact the policy at large, health court can be a feasible alternative, where we can look to other countries like Sweden4. Swewden has developed a system of parallel damage redress system of Health Courts and a robust centralized database of cases. Health Courts are important also because patient protection and safety is a much larger and important debate to be left to courts. The compensation would be faster and more reliable. Study of the precedents, undertaken by these Health Courts, will remove the uncertainty and variability in court decisions. They will also serve a broader range of patients than the tort system which inadvertently makes the patients qualify to fight a case only if the damage was serious and big enough to expect large compensation. In this system, smaller injuries may never qualify. Lastly, these Health Courts will provide a greater opportunity for cost control on both sides of the table.
The current perspective adopted to assess right to health litigation is not without valid criticism. Other consequences can and should be considered in analyzing the overall impact of litigation in Health care, especially when it may have long term implications. Governmental agencies must seriously look into the feasibility of Health Courts. Not before it answers questions like: will Health Courts, with their opt-out system, take away the autonomy of the patient, and, more importantly, are they feasible in a pluralistic republic like United States?
1) Elizabeth Gray, Check your non-compete agreements in light of Kentucky Supreme Court decision, Louisville Business First, June, 27, 2014
2) Gerard Anderson (1992), The courts and Health Policy: Strengths and Limitations,
Health Affairs Winter 1992
3) Jost, T. S. (2004). The Supreme Court limits lawsuits against managed care organizations,
Health Affairs, Web Exclusive, August, 11, 04-14.
4) Mello, M. M., Studdert, D. M., Kachalia, A. B., & Brennan, T. A. (2006),
“Health courts” and accountability for patient safety. Milbank Quarterly, 84(3), 459-492.
5) Andrew Kloster, John Malcolm, Elizabeth Slattery, Role of Courts, Solutions, 2014
Retrieved from: http://solutions.heritage.org/role-of-the-courts/
6) Jacobson, P. D., Selvin, E., & Pomfret, S. D. (2001). The role of the courts in shaping
health policy: An empirical analysis. The Journal of Law, Medicine & Ethics, 29(3‐4), 278-289.