Clean Bill of Health
Pallavi Yadav
Wednesday, February 25, 2015
Nursing Home Regulation Standards and Role of the Government
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.
References:
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.
All or None: How the PPACA was finally passed
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?
References:
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):
Role of Judiciary in Health Policy
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?
References:
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.
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