Nurs412ltc-Policybrief Asp

The Journal of Legal Medicine, 26:940
Copyright C 2005 Taylor & Francis

0194-7648/05 $12.00 + .00
DOI: 10.1080/01947640590917918
LTC Regulation and Enforcement

An Overview from the Perspective of Residents
and Their Families
DONNA R. LENHOFF, J.D.*
INTRODUCTION
Long-term care (LTC) regulation and enforcement involve an intricate variety
of law and policy because of the complexity of LTC. First, LTC takes place
in a wide variety of settings, including the homes of elderly and disabled persons, independent- and assisted-living facilities, nursing homes, hospices, and
hospitals. Second, LTC services are classified in different ways. Services may
be classified as: health care, chronic and acute; housing; food preparation and
service; social services; public assistance; or communal living. LTC services
also may be provided by a hierarchy of health care providers.
Third, financial arrangements for LTC vary substantially. They include
private payment arrangements, tax-deductible individual and institutional contributions, and a variety of federal and state funding streams. As a result, a
wide and complex array of entities at federal, state, and local levels exercise
jurisdiction over LTC.
This article focuses on the regulation of LTC provided in skilled nursing
facilities (SNF)1 receiving Medicare or Medicaid funding.2 Such regulation is
*
Ms. Lenhoff is former Executive Director of the National Citizens Coalition for Nursing Home Reform:
Address correspondence to her via e-mail at jaclen@att.net.
1 The field of assisted living, in which growing numbers of severely infirm elderly people are aging in
place, is beyond the scope of this article. Because assisted living facilities increasingly look like nursing
homes, concerns about understaffing, poor monitoring, and medication errors have fueled calls for
stronger facility regulation. See generally ASSN OF HEALTH FACILITY SURVEY AGENCIES ET AL., POLICY
PRINCIPLES FOR ASSISTED LIVING (Apr. 2003), available at http://www.nsclc.org/articles/al principles
rev1003.pdf (reviewing growing problems in assisted living and its inadequate regulation); U.S. GEN.
ACCT. OFF., ASSISTED LIVING: EXAMPLES OF STATE EFFORTS TO IMPROVE CONSUMER PROTECTIONS, REP. NO.
GAO-04-684, at 1 (Apr. 2004), available at http://www.gao.gov/new.items/d04684.pdf (estimating
900,000 people live in assisted living facilities). On July 7, 2004, the United States General Accounting
Office changed its name to the Government Accountability Office. For convenience, this article refers
to this office by its acronym (GAO), regardless of the date of the report under discussion.
2 The majority of skilled nursing facilities participate in Medicare, Medicaid, or both. Joshua M. Wiener,
An Assessment of Strategies for Improving Quality of Care in Nursing Homes, 43 GERONTOLOGIST 19, 20
10
D. R. LENHOFF
designed to prevent resident abuse and neglect and assure quality of care for
residents. Quality care, by definition, is care that is free of abuse or neglect. It
has been the primary focus of consumer advocates in this field since at least
the 1970s, when a growing movement of and on behalf of residents formed
around the country and government policymakers began to take notice.3
This article provides the perspective of nursing home consumers (residents and their families) on the role of regulation and enforcement in ensuring
quality care.4 For purposes of this article, the views and interests of nursing
home residents and their families will be treated as coincident. Generally,
with respect to a wide variety of conditions existing in nursing homes today,
these two interests coincide. Both residents and their family members have
a primary and urgent interest in the prevention of abuse and neglect and the
provision of quality care and quality life for residents, including being treated
with unfailing dignity and respect. Additionally, residents frequently are unable, because of disabilities, to speak for themselves. Consequently, they rely
heavily on family members or next friends to advocate for their interests. Research shows a strong positive relationship between quality of care and family
involvement in residents care.5
I. EXPERIENCES OF ABUSE AND NEGLECT
Perhaps the most important reality faced by many residents and their
families is their first-hand experience of abuse, neglect, and indignities, often
very painful to experience or witness, resulting in the residents unnecessary
suffering and even death. Having such experiences, residents and families are
strongly motivated by twin desires: obtaining redress for their own or their
loved ones suffering and preventing recurrence of the abusive or negligent
behavior responsible for that suffering. For these reasons, they may want to
publicize what has happened to their loved ones. Yet, despite bad experiences,
most residents and their families believe providers mean well and that abusive and neglectful conditions occur due to difficult circumstances beyond
providers control.
Nevertheless, nursing homes habitually violate minimum care regulations and cause widespread harm and appalling suffering in every state. According to a comprehensive recent Government Accountability Office (GAO)
(Special Issue II 2003) (citing AMERICAN HEALTH CARE ASSN, FACTS AND TRENDS: THE NURSING FACILITY
SOURCEBOOK 2001 (2001)).
3 See id. at 19 (discussing origins of quality concerns and legislative responses) (citations omitted). See,
e.g., Kansas Advocates for Better Care, A Brief History of Kansans for Improvement of Nursing Homes
(Sept. 1995), at http://www.kabc.org/history.htm (reviewing origins and early successes in urging action
by state government); BRUCE VLADECK, UNLOVING CARE: THE NURSING HOME TRAGEDY 65-70 (1980).
4 Residents and their family members, in the aggregate, may be referred to as consumers herein.
5 See infra note 119. It must be noted, however, that resident and family member interests may diverge.
LTC REGULATION AND ENFORCEMENT
11
study,6 20% of nursing homes were cited for actual harm or worse deficiencies between 2000 and 2002.7 This figure actually represents an improvement
(down from 29%) from the previous period.8 This figure also understates
the problem because actual harm violations routinely are under-cited by
inspectors.9
Similarly, violations involving abuse are widespread. From 1999 to 2001,
5,238 nursing homes, or approximately one-third of the nearly 17,000 total
nursing homes, were cited for abuse violations, including physical, verbal, and
sexual abuse.10 Another study found between 17,000 and 34,000 allegations
of abuse, neglect, or misappropriation of funds in 1999, with an estimated
11,900 to 23,900 formal complaints of abuse.11
Moreover, many nursing homes are so short of workers that residents are
endangered. In 2002, a report commissioned by the United States Department
of Health and Human Services (DHHS) found 97% of nursing homes severely
understaffed.12 The problem of understaffing is so important and pervasive that
it is a major focus of consumer and regulatory activity.13
Although the term abuse generally refers to affirmative acts, too often
neglect is so severe it constitutes abusephysical, emotional, or both. Elder
neglect is defined as the failure of a caretaker to provide goods or services
necessary to avoid physical harm, mental anguish or mental illness, such as
U.S. GEN. ACCT. OFF., NURSING HOME QUALITY: PREVALENCE OF SERIOUS PROBLEMS, WHILE DECLINING,
REINFORCES IMPORTANCE OF ENHANCED OVERSIGHT, REP. NO. GAO-03-561 (July 2003), available at
http://www.gao.gov/new.items/d03561.pdf.
7 Id. at 12.
8 Id.
9 Id. at 15-17.
10 COMM. ON GOVT REFORM, U.S. HOUSE OF REP., ABUSE OF RESIDENTS IS A MAJOR PROBLEM IN U.S. NURSING
HOMES 4-5 (July 2001), available at http://democrats.reform.house.gov/Documents/2004083011375034049.pdf; see also Admin. on Aging, Dept of Health & Human Servs., Elder Abuse Is a Serious
Problem, at http://www.aoa.gov/eldfam/Elder Rights/Elder Abuse/Elder Abuse.asp (last visited Oct.
22, 2004) (defining types of elder abuse: physical abuse (the willful infliction of physical pain or
injury, e.g., slapping, bruising, sexually molesting, or restraining); sexual abuse (the infliction of
non-consensual sexual contact of any kind); and psychological abuse (the infliction of mental or
emotional anguish, e.g., humiliating, intimidating, or threatening)). For a thorough discussion of elder
abuse definitions and risk factors (including risk factors for abuse of elderly residents in institutions),
see Sana Loue, Elder Abuse and Neglect in Medicine and Law: The Need for Reform, 22 J. LEGAL MED.
159 (2001).
11 Elder Justice: Protecting Seniors from Abuse and Neglect: Hearing Before the U.S. Senate Comm. on
Fin., 108th Cong., app. at 42 (2002) (statement of Catherine Hawes, Prof., Texas A&M Univ., entitled
Elder Abuse in Residential Long Term Care Facilities: What Is Known About Prevalence, Causes, and
Prevention) (stating these numbers are probably a severe underestimate of incidents)), available at
http://www.finance.senate.gov/hearings/82405.pdf.
12 CTRS. FOR MEDICARE & MEDICAID SERVS., U.S. DEPT OF HEALTH & HUMAN SERVS., REPORT TO CONGRESS:
APPROPRIATENESS OF MINIMUM NURSE STAFFING RATIOS IN NURSING HOMES PHASE II FINAL REPORT 1-6 (Dec.
2001), available at http://www.cms.hhs.gov/medicaid/reports/rp1201homes.asp? (noting enforcement
of minimum staffing thresholds would result in such a finding).
13 See infra III.
12
D. R. LENHOFF
abandonment, denial of food or health related services.14 Too many facilities

fail in this manner, causing residents to suffer: life-threatening pressure ulcers
and other skin injuries; unintended weight loss; infections; avoidable hospitalizations; malnutrition and dehydration; avoidable falls and lacerations;
untreated or delayed treatment of their medical conditions, such as acute respiratory distress, pain, or fractures; and fecal impactions.15 Other problems
residents face include depression, emotional abuse and disrespect, and just
plain loneliness.16
Facility practices inevitably leading to residents suffering such serious
physical and emotional harm and even loss of life are, in and of themselves,
forms of physical and emotional abuse. Unfortunately, many of these care
problems are widespread. For example, 35% to 85% of nursing home residents
are malnourished;17 as many as half have substandard body weight.18 Worse
yet, residents suffer needlessly. Many, if not most, of these problems are
preventable with good, basic nursing care.
Mere recitation of conditions and their prevalence cannot do justice to the
unnecessary suffering residents experience. The following examples, while
not representative of all nursing home care, illustrate the worst outcomes. They
provide concrete detail about the experiences causing resident suffering and
motivating family members and other resident advocates in their responses to
LTC regulation and enforcement.
The first two examples involve pressure ulcers, one of the most highprofile of the care problems in nursing homes. Pressure ulcers have given rise
to much litigation.
14
Alice R. had no pressure sores when she arrived at a Port Lavaca,

Texas, nursing home. However, when she was admitted to a hospital
after living in the nursing home, she had three Stage IV pressure
ulcers on her back and hips that extended through every layer of her
skin to underlying muscle, tendons, and bones. The nursing home staff
had told the doctors they couldnt provide adequate wound care to
residents; also, they had assessed her sores only as Stage II.19
42 U.S.C.A. 3002(34)(A)-(B) (West 2003).

See GAO, NURSING HOME QUALITY, supra note 6, app. III, 59-77, table 8.
16 See, e.g., SARAH GREENE BURGER ET AL., NATL COALITION FOR NURSING HOME REFORM, MALNUTRITION
AND DEHYDRATION IN NURSING HOMES: KEY ISSUES IN PREVENTION AND TREATMENT 2 (June 2000) (Commonwealth Fund Pub. 386) (depression), at http://www.cmwf.org/usr doc/burger mal 386.pdf; Loue,
supra note 10, at 162-63 (emotional abuse and disrespect).
17 BURGER ET AL., supra note 16, at 11 (citation omitted).
18 Id. at 1 (citations omitted).
19 Nursing Home Quality Revisited: The Good, The Bad, and The Ugly: Hearing Before the U.S. Senate
Comm. on Fin., 108th Cong., app. at 568 (July 17, 2003) (statement of the Natl Citizens Coalition for
Nursing Home Reform) (summarizing case from NATL CITIZENS COALITION FOR NURSING HOME REFORM
& TEXAS ADVOCATES FOR NURSING HOME RESIDENTS, THE FACES OF NEGLECT: BEHIND THE CLOSED DOORS OF
TEXAS NURSING HOMES 92-93 (2003)), available at http://www.finance.senate.gov/hearings/91231.pdf.
15
13
Vera M., a resident in an Austin, Texas, nursing home, developed

a deep, crater-shaped pressure ulcer when staff allegedly failed to
bathe her regularly and change her bedsore dressing. She died from
complications of an infection from the bedsore. The record showed
when she was finally admitted to the hospital, the wound was foulsmelling and extended deep beneath the skin, damaging muscle and
bone.20
The following reports are from 2003 newspaper articles or testimony at

public hearings.
Ana Carrasco died five days after entering an Illinois nursing home,
apparently from complications resulting from a dirty, clogged tracheotomy tube.21
Dorothy M. Lee, along with 14 other residents, died from burns suffered in a Nashville nursing home fire.22
Willie Mae Ryan died after reportedly being savagely beaten by a
worker with a pair of brass knuckles for being disrespectful.23
Lester Tomlinson died of lung cancer in a nursing home, allegedly
spending his last days in agony because he was refused pain
medication.24
Other 2003 reports include a woman strangled by a wheel chair seat belt,25 a
severely retarded resident raped and impregnated,26 and a woman stuck in a
bedrail who suffocated.27
20
Id. (summarizing case from NATL CITIZENS COALITION FOR NURSING HOME REFORM & TEXAS ADVOCATES
NURSING HOME RESIDENTS, THE FACES OF NEGLECT, BEHIND THE CLOSED DOORS OF TEXAS NURSING
HOMES 166-67 (2003)).
21 Id. at 9, app. at 45-50 (2003) (Statement of Sheila E. Albores).
22 Christian Bottorf & Holly Edwards, Nursing Home Fire Kills 8: Names Released Early This Afternoon, TENNESSEAN, Sept. 26, 2003, available at http://www.tennessean.com/local/archives/03/09/
39979450.shtml; Holly Edwards, Probe of Fatal Fire Criticized, TENNESSEAN, July 17, 2004 (noting
seven more residents died subsequently from the fire), available at http://www.tennessean.com/local/
archives/04/07/54549561.shtml.
23 John H. Booker, Natl Clearinghouse on the Direct Care Workforce, Helping Workers of Color Maintain
a Caring Attitude, in VOICES FROM THE FRONTLINE (Nov. 24, 2003), at http://www.directcareclearinghouse.
org/voices 19.jsp.
24 Sandy Kleffman, Suit Filed Over Pain Treatment of Ill Man, CONTRA COSTA TIMES, Mar. 28, 2003.
25 Associated Press, Nursing Home Owners Pay $750,000 to Settle Federal Allegations, Oct. 3, 2003,
Associated Press Newswires 13:02:51.
26 Anthony Colarossi, J.D.S. Rape Suspect Released, Judge Says Phillip Strong Is Not Competent Enough
to Stand Trial, ORLANDO SENTINEL, Apr. 20, 2004, at B1.
27 Catalogue of Failings Led to Womans Death, ORLANDO SENTINEL (Apr. 30, 2004), 2004 WL 78588251;
see DONNA R. LENHOFF, ELDER JUSTICE: SHAPING POLICY, SAVING LIVES: OPENING REMARKS, PROCEEDINGS OF
THE 2003 ANNUAL MEETING OF THE NATIONAL CITIZENS COALITION FOR NURSING HOME REFORM (NCCNHR)
(Oct. 19, 2003) (available on CD-ROM from NCCNHR).
FOR
14
D. R. LENHOFF
II. PERSPECTIVES ON POLICIES REGARDING LTC

REGULATION AND ENFORCEMENT
Many stakeholders in the nursing home field, including consumers and
other observers, draw from such examples the (erroneous) conclusion that
the regulatory system has failed. From the perspective of these consumers,
the only effective response is circumventing the regulatory oversight system
by litigating or publicizing atrocities to shame or punish owners, operators,
and administrators.28 Conversely, some in the industry believe the regulatory
system has failed and advocate its replacement with a non-adversarial environment that emphasizes technical assistance to providers and minimizes
regulatory requirements and penalties.
No single strategy can solve the problem of poor nursing home conditions. Although the regulatory system is not doing a good job, provision
of quality, skilled nursing care to an increasingly frail, cognitively impaired,
and medically needy population faces many challenges in todays environment. Therefore, the problem must be addressed via multiple strategies, all
of which must be implemented. These strategies include, as a high priority,
improved legal oversight and accountability.29 They also include: more, bettertrained staff; better care practices; industry culture change; public education;
and involved residents and resident advocates to monitor care and policy
effectiveness.30 The succeeding sections of this article review each of these
strategies and explain their contribution to improved nursing home care.31
III. MORE, BETTER-TRAINED STAFF
Staffing undergirds all quality-of-care issues. Probably the single biggest
cause of the poor care in nursing homes is understaffing.32 For example, the
care standard for pressure ulcers requires staff to reposition people at risk
of developing pressure sores every two hours. This cannot be done without
adequate staff.
28
See, e.g., Violette King, Improve the Care of the Elderly: Families Must Dare to Care, ST. LOUIS POSTDISPATCH, Oct. 31, 2002, at B7 (Nursing homes know that the only thing that can hurt them is bad
publicity).
29 See Charlene Harrington, Saving Lives Through Quality of Care: A Blueprint for Elder Justice, 5
ALZHEIMERS CARE Q. 24, 25, 34 (Jan./Mar. 2004). I am in Dr. Harringtons debt for much analysis and
data that inform this article.
30 Id.
31 See Wiener, supra note 2 (similar useful evaluation of strategies). For a discussion of other strategies
recommended by experts, including changing reimbursement incentives, better financial data collection
and accountability for facilities, development of more community-owned and community-controlled
nursing homes, expanding public funding of home- and community-based services, and establishing
public financing of LTC in general, see generally Harrington, supra note 29.
32 Harrington, supra note 29, at 25.
15
In fact, nurse staffing has been the first quality-of-care and quality-oflife issue cited by residents and their families. Each year ombudsmen and
consumer organizations receive thousands of calls from residents, families,
friends of residents, advocates, and ombudsmen about indignities, neglect,
and abuse suffered in facilities where staff are overworked, under-trained,
under-equipped, and poorly supervised. Turnover rates of 100% have been
common for years.33 All states and most nursing homes are affected.
The vast majority of nursing homes lack sufficient nursing staff to provide quality care.34 Moreover, the largely female workforce suffers low wages,
poor benefits, mandatory overtime or other inflexible hours, high turnover, and
stress because there are not enough licensed nurses and nursing assistants.35
[T]he LTC industry is the most de-skilled, underfunded and underpaid area in
health care today.36 These shockingly inadequate staffing patterns contribute
to the care problems noted above, as well as to unanswered call bells, long
waits to go to the bathroom (and thus increased diaper use), and increased
frustration and indignities that many residents experience as part of their daily
routines.37
In general, three categories of staff provide direct nursing care to residents: registered nurses (RNs); licensed practical nurses (LPNs); and nurses
aides (also called certified nursing assistants, or CNAs).38 More than 90% of
the front-line care comes from the nearly 700,000 CNAs in the nations nursing homes.39 These low-paid workers provide residents with the personal care
(bathing, turning, toileting, assisting with meals and grooming) necessary for
comfort and avoiding further debilitation, disease, and unnecessary death.
This article addresses two components of improving the staffing situation: first, nursing staff-to-resident ratios; and second, other needed improvements to staffing in nursing facilities.
A. Nursing-Care Staff-to-Resident Ratios
To address the understaffing problem, consumers have advocated for
nursing homes to meet minimum staff-to-resident ratios and for the government to adopt and enforce such ratios.40
33
Id. at 26.
Id. at 25.
35 See generally id.
36 Id. at 25.
37 Id. at 25-26.
38 For convenience, this entire constellation is referred to herein as nurse staffing.
39 OFF. OF INSPECTOR GEN., U.S. DEPT OF HEALTH & HUMAN SERVS., STATE NURSE AIDE TRAINING:
PROGRAM INFORMATION AND DATA, REP. NO. OEI-05-01-00031, at 2 (2002), available at http://www.
directcareclearinghouse.org/download/OIGrpt state CNA training prgms.pdf.
40 This ratio can be expressed in terms of people (number of staff to number of residents) or hours (staff
hours per resident day).
34
16
D. R. LENHOFF
1. NCCNHR Proposed Minimum Staffing Standard

In 1995, the National Citizens Coalition for Nursing Home Reform
(NCCNHR) developed a suggested ratio for direct care nursing staffing, expressed as staff care hours per resident per day (hprd). This standard, in its
simplest form, is 4.13 hprd. This figure includes 1 CNA for every 5 residents
during the day shift, 1 CNA for every 10 residents during the evening shift,
and 1 CNA for every 15 residents at night. After its development, the NCCNHR standard was reviewed and validated by an expert panel of leading
researchers, practitioners, economists, and advocates convened by the John
A. Hartford Institute for Geriatric Nursing in 1998.41
The NCCNHR standard also has been validated by government research.
Researchers commissioned by DHHS found 4.1 nursing hprd (including
2.8 hours a day of nurse-aide care plus 1.3 hours of licensed nurse care) is the
average threshold staffing ratio below which quality care cannot be provided.42
Yet, according to the same research, more than half the nursing homes in the
country fell dangerously below the 4.1 hprd level. Ninety-seven percent of
nursing homes did not have enough nurses and nursing assistants to prevent
conditions like pressure ulcers and other serious skin injuries, unintended
weight loss, infections, avoidable hospitalizations, loss of independence, and
other conditions that are preventable with good, basic nursing care.43 In fact,
the national average for nursing care hprd has been only 3.6 since 1997 and declined 12.5% since 2000.44 Despite this overwhelming evidence, the Centers
for Medicare and Medicaid Services (CMS) have not adopted the minimum
staffing ratio demanded by this research as a standard.
2. Federal Minimum Staffing Standard
Although we demand staff-to-children ratios, varying according to childrens ages, to ensure sufficient adult supervision in child care,45 current
federal requirements for staff-to-resident ratios in nursing homes are
41
See Charlene Harrington et al., Experts Recommend Minimum Nurse Staffing Standards for Nursing
Facilities in the United States, 40 GERONTOLOGIST 5, 5 (2000).
42 See FINAL REPORT, supra note 12, at 1-6; Letter from Laura A. Dummit, Dir., Health CareMedicare
Payment Issues, to Sen. Breaux et al. (June 13, 2002), in NURSING HOME EXPENDITURES AND QUALITY, REP.
NO. GAO-02-431R), at http://www.gao.gov/new.items/d02431r.pdf (contending quality of care more
related to staffing levels than to spending per resident); COMM. ON THE WORK ENVIRONMENT FOR NURSES &
PATIENT SAFETY, INST. OF MED., KEEPING PATIENTS SAFE: TRANSFORMING THE WORK ENVIRONMENT OF NURSES
165-66 (Ann Page ed., 2004) ([h]igher levels of registered nurse hours per patient [in nursing homes]
have been significantly associated with patient survival, improved functional status, and discharge from
the nursing home . . . [i]nadequate nurse staffing has been shown to be associated with malnutrition,
starvation, and dehydration in nursing home residents) (citations omitted).
43 FINAL REPORT, supra note 12, at 1-6; see Nursing Home Quality Revisited, supra note 19, at 568 (noting
most pervasive problems in nursing home care are preventable with good, basic nursing care).
44 Harrington, supra note 29, at 24. For a discussion of flaws in these data, see infra III(B).
45 See NATIONAL CITIZENS COALITION FOR NURSING HOME REFORM, NURSING HOME STAFFING: A GUIDE FOR
RESIDENTS, FAMILIES, FRIENDS, AND CAREGIVERS 19 (2002).
17
nonexistent. To the contrary, federal standards for minimum nurse staffing

are general, requiring only: one RN at least eight consecutive hours a day,
seven days a week;46 enough total nursing staff (RN, LPN, and CNA) sufficient to meet the nursing needs of . . . residents;47 and 24-hour licensed (RN or
LPN) nursing as necessary to meet the licensed nursing needs of residents.48
Adoption of a minimum federal staffing standard of 4.1 nursing care
hprd would make a significant difference in quality of care for our nations
1.7 million nursing home residents. Legislation has been introduced to adopt
the NCCNHR staffing standard for all Medicare- and Medicaid-funded nursing homes.49 However, such a sweeping requirement cannot be imposed in a
vacuumpolicymakers must ensure sufficient funding is available for facilities to achieve the required staffing level.
CMS estimated the cost of meeting the proposed ratio at $7.6 billion in
2001.50 Although a substantial sum, this amount represented only 8.4% of total
nursing home expenditures.51 Moreover, substantial evidence shows many
nursing home companies that suffered financial difficulties, including a wave
of bankruptcies, recently regained healthy profit margins. In 2002, annual
revenues for two of the top chains, Beverly and Mariner, were $2.5 billion
and $1.2 billion, respectively.52 The Medicare Payment Advisory Commission
found the Medicare margin of freestanding Medicare SNFs was 11% in 2003
and 15.3% in 2004.53 However, including the non-Medicare portion of SNFs,
the profit margin is less. This is primarily because of low Medicaid payment
rates,54 though the large chains, which have higher numbers of Medicare
residents, had almost double the margins of the other facilities.55 Industry
executives put overall profit margins around 3%.56
46
42 U.S.C.A. 1396r(b)(4)(C)(i) (West 2003) (Medicaid); 42 U.S.C.A. 1395i-3(b)(4)(C)(i) (West

Supp. 2004) (Medicare).
47 Id.
48 Id.
49 See, e.g., Nursing Home Staffing Act of 2003, H.R. 3355, 108th Cong. (2003), S. 1988, 108th Cong.
(2003) (requiring nursing facilities to provide a total of 4.1 direct-care hprd).
50 FINAL REPORT, supra note 12, at 1-14.
51 Id.; cf. BARTLETTS FAMILIAR QUOTATIONS 694 (16th ed., Justin Kaplan ed., 1992) (quoting Senator Everett
Dirksen: [a] billion here, a billion there, and pretty soon youre talking about real money.).
52 Harrington, supra note 29, at 30 (citing CTRS. FOR MEDICARE & MEDICAID SERVS., HEALTH CARE INDUSTRY
MARKET UPDATE: NURSING FACILITIES (May 20, 2003)); see also Christopher H. Schmitt, The New Math
of Old Age: Why the Nursing Home Industrys Cries of Poverty Dont Add Up, U.S. NEWS & WORLD REP.
61 (Sept. 30, 2002) (The nursing home industry is profitable and growing, with operators spinning a
far brighter tale for Wall Street than for Capitol Hill . . . . Many nursing homes are earning exceptionally
healthy profit margins, often 20 and 30 percent.).
53 MEDICARE PAYMENT ADVISORY COMM. (MED PAC), REPORT TO THE CONGRESS: MEDICARE PAYMENT
POLICY 129 (Mar. 2004), available at http://www.medpac.gov/publications/congressional reports/
Mar04 Entire reportv3.pdf.
54 But see Schmitt, supra note 52, at 70 (finding no relationship between a homes profits, or the size of
its losses, and the portion of its patients covered by Medicaid).
56 Schmitt, supra note 52, at 67.
18
D. R. LENHOFF
Although thorough coverage of the debate about whether facilities receive sufficient federal Medicare and Medicaid funding to cover a minimum
staffing standard would exceed the scope of this article, the foregoing discussion points out facts relevant to the debate from the consumer perspective.
They do not suggest nursing homes simply can absorb the entire cost of staffing
pursuant to the 4.1 hprd standard. To the contrary, society tends to undervalue
care-giving, like the nursing care provided by CNAs and other direct care staff.
Although it is doubtful that current financing levels would support facilities
meeting the staffing standard, providers likely can absorb some of the $7.6
billion cost for additional staffing. Consumers rightly demand provision of a
meaningful staffing ratio and challenge policymakers to discover the political
and fiscal compromises necessary to achieve this goal.
3. State Minimum Staffing Standards
In the absence of Congressional or federal administrative action to set
a minimum staffing ratio, several states have adopted some form of staffing
ratio requirements. Between 1999 and 2001, 13 states raised minimum total
nurse staffing levels (though still below 4.1 hprd)57 and others raised direct
care staff requirements. However, wide variation across states remains.58 Even
in states that have set higher ratios, facilities are not necessarily meeting them.
In California, for example, 39% of facilities do not meet its 3.2 hprd standard;
only 11% meet or exceed 4.1 hprd.59
4. Staffing Ratios as Quality Indicators
Searching for additional incentives for providers to improve care, policymakers recently have focused on measurement and public reporting of
quality care as key strategies to drive internal management and external market forces. In November, 2002, CMS launched a nationwide Nursing Home
Quality Initiative (NHQI) to develop, select, and report nursing home quality measures.60 This information is available to consumers on the Nursing
57
CHARLENE HARRINGTON, UNIV. OF CALIFORNIA, SAN FRANCISCO, NURSING HOME STAFFING STANDARDS IN
STATE STATUTES AND REGULATIONS 9 (May 2001) (report for The Kaiser Commn on Medicaid and the
Uninsured), at http://www.nccnhr.org/uploads/NHStaffingStdsinStates01.pdf; see Harrington, supra
note 29, at 26 (explaining many states have adopted standards, however, still well below 4.1(for example,
California increased to a 3.2 hprd minimum and Delaware increased to a 3.67 hprd minimum in 2003)).
58 CHARLENE HARRINGTON, UNIV. OF CALIFORNIA, NURSING HOME STAFFING STANDARDS 7 (June 2002) (report
for the Kaiser Commn on Medicaid and the Uninsured). Maine increased to 2.9 hprd minimum,
Mississippi to 2.8 hprd, and New Mexico to 2.5 hprd. Id. at 8, table 2.
60 CTRS. FOR MEDICARE & MEDICAID SERVS., DEPT OF HEALTH & HuMAN SERVS., NURSING HOME QUALITY
INITIATIVE: OVERVIEW, at http://www.cms.hhs.gov/quality/nhqi/Overview.pdf. The NHQI reports measures publicly and incorporates them into a quality improvement effort, in which state quality improvement organizations (QIOs) provide technical assistance to participating facilities to help them
improve their performance on the measures.
19
Home Compare website.61 Similarly, the California HealthCare Foundations

California Nursing Home Search website,62 reporting quality indicators, was
initiated in 2002.
Because staff-to-resident ratios are so closely tied to quality care,63 consumer advocates argue ratios should be used and reported as quality measures
in such initiatives. For example, NCCNHR proposed using hprd of direct
care staffing, in total and disaggregated by type of direct care provider, as a
quality measure.64 These measures presently are used by California Nursing
Home Search.65 CMS, however, chose not to include the staffing ratios as a
quality measure, although it acknowledges, by reporting this ratio on Nursing
Home Compare, that hprd is an important indicator regarding quality care.
The sample webpage66 in Figure 1 is illustrative.67
Although Nursing Home Compare reports staffing ratios, the failure to
classify them as quality indicators diminishes their importance to CMS. It
means that facilities participating in the NHQI quality improvement program
will not be evaluated on their improvement (or lack thereof) on the staffing
measure.
61
The website is at http://www.cms.hhs.gov/NHCompare.

The website is at http://www.calnhs.org.
63 See supra notes 12, 32-37, 42-44 & accompanying text.
64 The National Quality Forum (NQF), a private, non-profit, public-private partnership of health care
industry, consumers, researchers, and government that develops consensus standards for health care
provision, accepted NCCNHRs recommendation and recommended, in 2004, that 4.1 hprd be a National Voluntary Consensus Standard for measurement of nursing home quality in the NHQI. NATIONAL
QUALITY FORUM, NATIONAL VOLUNTARY CONSENSUS STANDARDS FOR NURSING HOME CARE: A CONSENSUS
REPORT 6-7 (2004).
65 The website is at http://www.calnhs.org.
66 Sample page for a Carbondale, Illinois facility taken from CMSs Nursing Home Compare (downloaded
from www.medicare.gov on 5/11/04). The website defined hours per resident day as the average
daily work (in hours) given by the entire group of nurses or nursing assistants divided by total number
of residents and qualifies that definition with the following statement: The amount of care given to
each resident varies.
67 CMS reported the national average nurse staffing ratio on Nursing Home Compare as 3.9 hprd. However,
accuracy of these data has been seriously questioned. See, e.g., Letter to Rep. Henry A. Waxman (D-CA)
from U.S. Dept of Health & Human Servs. Secretary Tommy Thompson 1 (Apr. 21, 2004), available
at http://www.democrats.reform.house.gov/Documents/20040817123859-29186.pdf (we have serious reservations about the reliability of staffing data at the nursing home level); Letter to U.S. Dept
of Health & Human Servs. Secretary Tommy Thompson from Rep. Henry A. Waxman et al., 2 & n.6
(June 25, 2004), available at http://www.democrats.reform.house.gov/Documents/2004081712380799644.pdf (noting series of reports by DHHS Inspector General finding that actual staffing levels are
often significantly lower than the self-reported staffing data contained on the Nursing Home Compare
website, in one instance by 36%.); NQF REPORT, supra note 64, at app. D, at D-11 (Steering Committee
refused to adopt CMS Nursing Home Compare staffing measures because of concerns about quality of
staffing data). The NQFs final recommendations included staffing measures, id. at 6 & tables 3, 7, but
with a strong recommendation that CMS upgrade the [staffing] data system immediately to improve
data accuracy, using techniques such as removing obviously erroneous data (0 or 999) and other
published exclusion criteria. Id. at 9. The 3.6 hprd average, discussed in Harrington, supra note 29, at
24, unlike CMSs 3.9 figure, subjects the data to standard data-cleaning procedures, thereby excluding
erroneous reports. Telephone interview with Dr. Charlene Harrington, Professor, Univ. of Cal., San
Francisco (June 2003).
62
20
D. R. LENHOFF
FIGURE 1.
B. Improvement of Staffing Information

The data CMS uses to compute staffing ratios are from annual nursing
home reports to state survey agencies of nursing staff hours for the two-week
period preceding state inspection.68 The data are flawed in several respects.
First, these data are self-reported and not audited. They are not even subject to a
certification requirement and thus likely inflated. Recent research suggests the
staffing data reported on Nursing Home Compare are inaccurate and inflated.69
Second, the data are only reported annually and likely to be outdated.70 Finally,
appropriate data-cleansing methods are not used to eliminate figures erroneous
on their face before the data are reported.
Better monitoring of staffing adequacy requires that data be current, accurate, and include the information important to monitor. Thus, the enumerated problems with staffing data collection and reporting need to be solved:
facility staffing reports need to be collected quarterly, on a standard reporting
format requiring certification of accuracy at risk of perjury; they need to be
audited;71 and appropriate data-handling methods need to be implemented.72
In addition, because high staff turnover affects staffing levels and quality of
68
Harrington, supra note 29, at 26.

See id.; see also supra note 67.
70 See Harrington, supra note 29, at 26 (stating data are collected during annual state surveys when
facilities are thought to increase their staffing).
72 CMS recognized these problems and committed publicly to improve the accuracy of staffing data. See,
e.g., Letter to Rep. Henry A. Waxman (D-CA) from Health and Human Services Secretary Tommy
Thompson (Apr. 21, 2004), available at http://www.democrats.reform.house.gov/Documents/200408
17123859-29186.pdf.
69
21
care,73 turnover data for CNAs and for Directors of Nursing also should be
collected and publicly reported.
IV. OTHER STAFFING IMPROVEMENTS
Adequate staffing, although a condition precedent, is not, by itself,
enough to ensure quality care.74 Researchers identify a number of other essential nurse staffing practices, including: reasonable wages and benefits; low
turnover; improved training; opportunities for advancement, such as career
ladders; flexible and less stressful working conditions; and longer Director
of Nursing (DON) tenure.75 Such practices contribute directly to better care
quality by increasing CNAs knowledge of care practices (training), deepening
residents relationships with CNAs (low turnover), or improving supervision
(DON tenure).
Higher wages, benefits, scheduling flexibility, advancement opportunities, and better working conditions contribute to staff job satisfaction. This, in
turn, reduces turnover and makes it easier for facilities to keep trained staff and
ultimately achieve sufficient staffing levels. But, too often, these conditions
do not exist in nursing homes.
Turnover is outrageously high. In 2002, the average turnover rate for
CNAs was 71%, and that rate approached 100% in 20 states.76 Average
turnover for RNs was nearly as high at 50%.77 The vacancy rate for CNAs was
8%-9% and for RNs a whopping 10%-16%.78 A major cause of this turnover
is low wages; in 2002, the median hourly wage for CNAs was $9.59.79
Moreover, given what CNAs must know and do, the required training is
relatively minimal. Only 75 hours of training are required under federal law.80
In some places, manicurists and hair stylists are required to complete more
training.81
73
See supra notes 34-37 & accompanying text; see also infra note 75.
See Robert L. Kane, Commentary: Nursing Home StaffingMore Is Necessary but Not Necessarily Sufficient, 39 HEALTH SERVS. RES. 251-56 (Apr. 2004), available at http://www.findarticles.com/p/
articles/mi m4149/is 2 39/ai 114819625.
75 FINAL REPORT, supra note 12, chs. 4-8.
76 FREDERIC H. BECKER ET AL., AMERICAN HEALTH CARE ASSN, RESULTS OF THE 2002 AHCA, SURVEY OF
NURSING STAFF VACANCY AND TURNOVER IN NURSING HOMES 4, 13 (2003), at http://www.ahca.org/research/
rpt vts2002 final.pdf.
77 FINAL REPORT, supra note 12, ch. 4, at 4-5.
79 PARAPROFESSIONAL HEALTH CARE INST. & NORTH CAROLINA DEPT OF HEALTH & HUMAN SERVS.,
RESULTS OF THE 2003 NATIONAL SURVEY OF STATE INITIATIVES ON THE LONG-TERM CARE DIRECTCARE WORKFORCE table 3 (Mar. 2004), at http://www.directcareclearinghouse.org/download/2003 N
at Survey State Initiatives.pdf (reporting data from U.S. Bureau of Labor Statistics).
80 42 U.S.C.A. 1396r(f)(2)(a)(i)(II) (West 2003) (Medicaid); 42 U.S.C.A. 1395i-3(f)(2)(a)(i)(II) (Medicare) (West Supp. 2004).
81 CHARLENE HARRINGTON, UNIV. OF CAL., SAN. FRANCISCO SCHOOL OF NURSING, SAVING LIVES THROUGH
QUALITY OF CARE: BLUEPRINT FOR ELDER JUSTICE, slide 22 (undated) (manicurists: 350 hours, hair stylists:
1500 hours).
74
22
D. R. LENHOFF
Only 26 states require CNAs to complete more than 75 hours of

training.82
Federal law also requires CNA training meet additional standards. At
least 16 hours of a training program must be supervised practical (clinical)
training.83 Training must be performed by, or under the general supervision of,
a registered nurse who has a minimum of two years of nursing experience.84
At least one year of the two years must be LTC nursing experience.85 Training must include basic nursing skills, personal care skills, mental health and
social service skills, caring for cognitively-impaired residents, basic restorative skills, and residents rights.86 Upon completion of the training, a nurse
aide trainee must pass a state exam to become certified to work in a nursing
home.87
Notwithstanding these rather minimal requirements, [n]urse aide training has not kept pace with nursing home industry needs . . . [t]eaching methods are often ineffective, clinical exposure is too short and unrealistic . . .
[and] [i]n-service training may not be meeting Federal requirements.88 For
these reasons, the DHHS Inspector General recommends CMS improve the
content of nurse-aide training so it reflects the complex needs of todays
frailer residents and ensures facilities comply with in-service training
requirements.89
A number of public policy efforts to encourage institution of better
staffing practices in nursing homes are underway across the country. For example, to supplement wages, states have funded wage or benefit pass-throughs
for CNAs or other direct care workers.90 Pass-throughs take the form of: increasing hourly rates, minimum wages, or reimbursement rates; funding benefit enhancements (including health insurance); or implementing activities
aimed at recruitment and retention of direct care staff.91 In October, 2003, the
82
OFF. OF THE INSPECTOR GEN., U.S. DEPT OF HEALTH & HUMAN SERVS., NURSE AIDE TRAINING, REP. NO.
OEI-05-01-00030, at 12 app. D, at 28-30 (2002) at http://oig.hhs.gov/oei/reports/oei-05-01-00030.pdf.
For example, Arizona requires 120 hours and California 150. Id. at 28.
83 42 C.F.R. 483.152(a)(3) (2002).
84 Id. 483.152(a)(5)(i).
85 Id.
86 42 U.S.C.A. 1396r(f)(2)(A)(i)(I) (West 2003); 42 C.F.R. 483.152(b).
87 42 U.S.C.A. 1395r(b)(5)(A)(i)(I).
88 NURSE AIDE TRAINING, supra note 82, at i-ii, 9-12, & 15.
89 Id. at iii & 17.
90 Wage pass-throughs earmark monies for increasing wages or benefits to designated beneficiaries.
91 PARAPROFESSIONAL HEALTHCARE INST. & NORTH CAROLINA DEPT OF HEALTH & HUMAN SERVS., RESULTS OF
THE 2003 NATIONAL SURVEY OF STATE INITIATIVES IN THE LONG-TERM CARE DIRECT-CARE WORKFORCE 6 (Mar.
2004), at http://www.directcareclearinghouse.org/download/2003 Nat Survey State Initiatives.pdf.
Twenty-six states funded a wage or benefit pass-through for direct care workers in the three years
preceding 2003. Id.
23
DHHS awarded approximately $6 million for five demonstration projects to

support recruitment and retention of direct care workers.92
A. Better Care Practices
A robust body of science and practice describes good LTC, that is,
the kind of care providers must implement to improve LTC. For example,
recommended care practice guidelines or protocols exist for: resident assessment; pressure ulcer care; nutrition/hydration; incontinence; chemical
restraints (overmedication); physical restraints and bed rails; pain; bathing
without a battle; depression; end-of-life palliative care; and specialized dementia care.93 Because most nursing home care involves fairly basic nursing
practices, these protocols should be relatively easy to follow.94 Although it
is beyond the scope of this article to discuss these areas in detail, the following brief discussion of bedrail practices illustrates considerations in the
development of standards of care.
It is common to think frail elderly people need bedrails to protect them
from falls, as do little children. However, research shows bedrails frequently
are dangerous to frail, disabled adults. Between 1985 and 1999, 371 incidents
of hospital and nursing home patients caught, trapped, entangled, or strangled
in bed rails were reported to the Food and Drug Administration.95 Of these,
228 people died and 87 were injured nonfatally.96 Most of these patients were
frail, elderly, and/or confused.97
Good care practices prevent falls and bedrail injuries, allowing most
residents to be in bed safely without bedrails. Such practices include: using
beds that can be raised and lowered close to the floor to accommodate both
patient and health care worker needs; keeping beds in the lowest position with
wheels locked; placing mats next to the bed; monitoring residents frequently;
and anticipating (and meeting proactively) the reasons residents get out of bed
(such as hunger, thirst, going to the bathroom, restlessness, and pain).98 When
bedrails are used, good care practices require ongoing assessments of the
residents physical and mental status, close monitoring of high-risk residents,
and minimization of bedrail dangers by, for example, using a proper size
92
Id. at 15 (citing News Release, Dept of Health & Human Servs., HHS Launches Demonstrations to
Recruit and Retain Personal Assistance Workers to Help People with Disabilities (Oct. 2, 2003), at
http://www.hhs.gov/news/press/2003pres/20031002.html).
93 See, e.g., SARAH GREENE BURGER ET AL., NATIONAL CITIZENS COALITION FOR NURSING HOME REFORM,
NURSING HOMES: GETTING GOOD CARE THERE (2d ed. 2002) (discussion of specific good care practices).
94 Wiener, supra note 2, at 24.
95 U.S. FOOD & DRUG ADMIN., A GUIDE TO BED SAFETYBED RAILS IN HOSPITALS, NURSING HOMES, AND
HOME HEALTH CARE: THE FACTS 2 (Oct. 2000), at http://www.fda.gov/cdrh/beds/bedrail.pdf.
96 Id.
97 Id.
98 Id.
24
D. R. LENHOFF
mattress to prevent residents from being trapped between the mattress and
rail.99
B. Culture Change
Many people have long believed the LTC industry needs radical restructuring in its practices and culture. As early as 1992, pioneers in the LTC field
from around the countryelders, family members, administrators, nurses,
certified nursing assistants, resident assistants, physicians, social workers,
educators, researchers, ombudsmen, advocates, regulators, and architects
systematically began changing the values, practices, and culture of their facilities to make them more resident-centered.100 As they put it, this was done to
create places for living and growing rather than for declining and dying.101
In 2000, the Pioneer Network was established to provide leadership
to the culture change movement within and beyond the walls of the nursing home.102 Its mission is to transform nursing homes into communities in which each persons capacities and individuality are affirmed and
developed.103 Most consumer representatives agree with these values, though
they are skeptical whether providers will walk the walk as well as talk
the talk. Additionally, they believe these values ought to inform all nursing
homes, not just those identifying with or participating in the culture change
movement.
Probably the best known of the early pioneer approaches is the Eden
Alternative.104 Facilities adopting this approach subscribe to the view that
the three plagues of loneliness, helplessness and boredom account for the
bulk of suffering among our Elders.105 They try to create [e]lder-centered
communit[ies]. . . where life revolves around close and continuing contact
with plants, animals and children as antidotes to those three plagues.106
Thus, they follow suggested guidelines for introducing into residents lives
companion animals, plants, and opportunities to care for them, as well as
opportunities to interact with children and gain maximum possible control
of their daily lives. Facilities the country and the world embrace the
Eden Alternative and Eden home administrators claim success for their
method.
99
Id.
Pioneer Network, Pioneer History, at http://www.pioneernetwork.net (last visited Oct. 23, 2004).
101 Id.
102 Pioneer Network, Who We Are, at http://pioneernetwork.net/index.cfm/fuseaction/content.display/
page/whoweare.cfm (last visited Oct. 23, 2004).
103 Id.
104 The website is at http://www.edenalt.com.
105 The Eden Alternative, Our 10 Principles, at http://www.edenalt.com/10.htm (last visited Oct. 23, 2004).
106 Id.
100
25
Another example of culture change is the Wellspring Model, embraced

by 11 nursing homes in Wisconsin since 1998.107 Wellspring elements include
use of clinical training modules for staff, use of geriatric nurse practitioners, interdisciplinary care resource teams within facilities, data collection and
analysis, and a management philosophy that values empowering staff.108 Similarly, Loomis House, a nursing home in Holyoke, Massachusetts, adopts
culture changes to make it less institutional and more . . . of a home filled
with family and community where both staff and residents can thrive.109 Reforms include explicit resident-centered values, permanent staff assignments
(not rotations), CNA participation in work organization and care planning,
a physical structure of neighborhoods (not long hallways) with consistent
work teams led by CNAs and including social workers, and optional staff
career-ladder training.110
Substantial investment in culture change reforms like these, however,
is unlikely unless it can be shown that such reforms are replicable, costeffective, and improve both residents quality of care and quality of life.111
According to an evaluation at Loomis House, its reforms have resulted in cost
savings through reduced turnover.112 A recent, more thorough, evaluation of
the Wellspring model shows mixed results: higher RN and CNA retention;113
lower turnover rates;114 improved survey performance;115 no additional costs
(though no cost savings either);116 but no significant improvements in resident
outcomes.117 Further evaluations are necessary before culture change reforms
become more commonplace in the industry.118
107
ROBYN I. STONE ET AL., INST. FOR THE FUTURE OF AGING SERVS. & AM. ASSN OF HOMES & SERVS. FOR THE
AGING, EVALUATION OF THE WELLSPRING MODEL FOR IMPROVING NURSING HOME QUALITY 1 (The Commonwealth Fund Pub. 550 Aug. 2002).
108 Id. at 4-6.
109 Susan Misiorski, The Pioneer Network, Cultural Transformation at the Loomis House, at http://
www.pioneernetwork.net/PubData/DocLib/5A8CAEA9-3048-709E-5A68E3566CE5B054/Loomis%
20House%20History.doc (last visited Oct. 23, 2004).
110 Id.
111 Inherently, it is hard to replicate radical culture change in more than a handful of facilities. Wiener,
supra note 2, at 25. In addition, increased medical acuity of residents conditions and the concomitant
need for increased medical services may be other reasons for the difficulty of broad-scale dissemination
of culture change. Id.
112 Misiorski, supra note 109.
113 STONE ET AL., supra note 107, at 15-16.
114 Id. at 17-18.
115 Id. at 12-15.
116 Id. at 22-27.
117 Id. at 18-19.
118 See, e.g., Commonwealth Fund, Programs and Grants, Evaluation of Culture Change in ForProfit Nursing Homes: Business Innovation at Beverly Enterprises, at http://www.cmwf.org/grants/
grants show.htm?doc Id=222676; Commonwealth Fund, Programs and Grants, Empowering Nursing Home Staff: Measuring the Impact of Self-Managed Work Teams, Phase 2, at http://www.
cmwf.org/grants/grants show.htm?doc Id=222713.
26
D. R. LENHOFF
C. Public Education
Ensuring consumers have information about nursing homes and quality
of care can improve quality in a number of ways. Educated consumers can
demand quality care from providers and quality oversight from policymakers.
However, many, if not most, residents are too frail, cognitively impaired,
and vulnerable to stand up to abuse or insist on quality care. Consequently,
the job most often falls to family members. Although substantial evidence
shows knowledgeable and active family involvement improves care quality
and prevents abuse,119 to be effective, residents and family members must
have information about what constitutes quality care. Many forms of public
education, including consumer guides,120 books,121 and conferences122 address
this need.
On a policy level, public information about problems in nursing home
care can galvanize action by both facility management and public officials.
For example, in 2002, the St. Louis Post-Dispatch ran a Special Report,
provocatively titled Neglected to Death.123 This spurred action on the
part of the state legislature, as well as United States Senator Christopher
Bond.124
Recently, a third major type of public education about quality care
entered the market. As noted above, public reporting by government entities about quality care has been used increasingly to focus the attention
of facility leadership and market forces on care improvement.125 The goals
of the NHQI are: to enable prospective nursing home consumers to vote
with their feet by choosing facilities that provide better care; to provide
increased incentives for facility owners/operators to improve the care they
provide; and, in general, to educate the public about what is quality care.126
The NHQIs public-education component makes public, through Nursing
Home Compare,127 a series of nursing home care quality measures for each
119
See, e.g., Karl Pillemer et al., Building Bridges Between Families and Nursing Home Staff: The Partners
in Caregiving Program, 38 GERONTOLOGIST 499 (1998).
120 See, e.g., NCCNHR, 24/7: RESIDENTS RIGHTS AROUND THE CLOCKRESIDENTS RIGHTS TOOL KIT 2003
(2003); NCCNHR, STRENGTH IN NUMBERS: THE IMPORTANCE OF NURSING HOME FAMILY COUNCILS (2003);
NURSING HOME STAFFING GUIDE, supra note 45; NCCNHR, AVOIDING DRUGS USED AS CHEMICAL RESTRAINTS: NEW STANDARDS IN CARE (undated).
121 See, e.g., BURGER ET AL., supra note 16.
122 See, e.g., Nat1 Citizens Coalition on Nursing Home Reform, NCCNHR 2004: Spotlight on Quality, Focus on Residents, at http://www.nursinghomeaction.com/public/50 158 436.cfm (describing
NCCNHRs annual meeting).
123 Special Report Series, ST. LOUIS POST-DISPATCH, Oct. 13-20, 2002.
124 Phillip OConnor, Holden Calls for Action on Nursing Homes: Governor Wants Reforms to Prevent
Deaths, Toughen Punishment, ST. LOUIS POST-DISPATCH, Oct. 21, 2002, at A1; Speak Up for Those Who
Cant, ST. LOUIS POST-DISPATCH, Dec. 22, 2002, at B2.
125 See supra III(A)(4).
126 See NHQI OVERVIEW, supra note 60, at 2 (The measures are also intended to motivate nursing homes
to improve their care and to inform discussions about quality between consumers and clinicians.).
127 The website is at www.medicare.gov/NHCompare/home.asp.
27
Medicare- and Medicaid-covered nursing home.128 Reported measures include the proportion of residents with pressure ulcers and those who are
physically restrained. Similarly, the California HealthCare Foundation posts
quality information on California Nursing Home Search,129 as shown on
Figure 2.130
There is some question whether the NHQI, or any public education
initiative designed to influence consumers nursing home choices, will be effective. As is true with many health care services, nursing home consumers
generally cannot vote with their feet, at least when making the initial
placement decision. Most nursing home choices are made in emotionally
stressful situations under tight time-frames. Often, consumers do not have
a choice because only one nursing home can accommodate the residents
medical needs and financial situation. Facility location and recommendations of the hospital discharge planner or physician also influence consumers
choice.
At least in other health care settings, there is some evidence that public
education efforts like the NHQI, effectively achieve the second goal, focusing
facility owners/operators attention on key indicators of provision of quality
care,131 so that positive change occurs. According to CMS, the NHQI positively
impacted three quality measures: long-stay residents in chronic pain; longstay residents who are physically restrained daily; and short-stay residents
who experience pain.132 Similarly, quality improvement organizations (QIOs)
128
Id. The selected quality measures for long-term residents are: percent whose need for help with daily
activities has increased; percent who have moderate to severe pain; percent of high-risk residents who
have pressure sores; percent of low-risk residents who have pressure sores; percent who were physically
restrained; percent who are more depressed or anxious; percent of low-risk residents who lose control
of their bowels or bladder; percent who have/had a catheter inserted and left in their bladder; percent
who spent most of their time in bed or in a chair; percent whose ability to move about in and around their
room got worse; percent with a urinary tract infection; for short-stay (post-acute) residents, percent
with delirium; percent who had moderate to severe pain; and percent with pressure sores. Id. These
measures are based on National Quality Forum (NQF) recommendations, see NQF REPORT, supra note
64, at 5, table 1 & 6, table 2, which developed a set of National Voluntary Consensus Standards for
measurement of nursing home quality at CMSs request. Id. at 1. In addition to the quality measures
CMS used, NQF recommended a measure for excessive weight loss (more than 5% in 30 days or 10%
in 6 months), two vaccination measures (percentage of residents who get pneumococcus and influenza
vaccinations), and a ratio measuring staffing hours (nursing hprd). Id. at 6, table 3.
129 The website is at http://www.calnhs.org.
130 This sample page is taken from CHARLENE HARRINGTON, supra note 81, slide 60. See also
http://www.calnhs.org.
131 See NHQI OVERVIEW, supra note 60, at 3 (Experience tells us that targeted quality improvement
initiatives improve the quality of care . . . . The QIOs [Quality Improvement Organizations] have
worked with providers, hospitals and others on improvement activities in the past, and have seen
providers achieve a 10-20% relative improvement in performance.); Am. Health Quality Assn,
Closing the Quality Gap: Doctors, Health Care Facilities Team Up with QIOs to Improve Care, at
http://www.ahqa.org/pub/media/159 766 4627.CFM (last visited Oct. 26, 2004).
132 CTRS. FOR MEDICARE & MEDICAID SERVS., supra note 60. CMS also found the percentage of long-stay
residents with pressure ulcers increased, rather than decreased, during the NHQI. Id.
28
D. R. LENHOFF
FIGURE 2.
report that their interventions, through the NHQI, resulted in nursing home
improvement on quality measures.133
The success of initiatives like the NHQI at achieving its third goal, educating the public about what quality care is, depends on the accuracy of the information provided as indicators of quality care. Experts disagree on whether
the choice and specifications of the NHQI quality measures adequately reflect the quality of care given. Many believe the chosen measures reasonably
capture the state of the art of nursing home quality measurement and address
some of the most important care quality problems residents sufferpressure
ulcers, unplanned weight loss, untreated pain, physical restraints, unnecessary
incontinence or in-dwelling catheters, and lack of activity. Others criticize the
quality measures as masking real quality problems because their methodologies over-adjust for certain risks and thus ignore very low scores.134 There is
also doubt about the accuracy of the underlying data from which the measures
133
See, e.g., Closing the Quality Gap, supra note 131 (stating, with the intervention of the QIO, Westwood
Hills Nursing Home in Poplar Bluff, Missouri reduce[d] pressure ulcers by 66% in just 90 days).
134 See U.S. GEN. ACCT. OFF., NURSING HOMES: PUBLIC REPORTING OF QUALITY INDICATORS HAS MERIT, BUT
NATIONAL IMPLEMENTATION IS PREMATURE, REP. NO. GAO-03-187, at 7 (2002) (expressing concerns about
the appropriateness of the indicators chosen for national reporting [and] the accuracy of the underlying
data), available at http://www.gao.gov/docsearch/abstract.php?rptno=GAO-03-187.
29
are calculated.135 Additionally, the NHQI measures omit structural information, including the number of beds, staffing,136 and regulatory and cost data,137
and other important information, such as relative ratings.
Although quality measurement is an important development, adding
valuable information consumers can use and driving quality improvement, its
efficacy remains questionable. The NHQI has been quite controversial in the
consumer community, both as an appropriate strategy to improve care and
in the specifics of its implementation. CMS has announced plans for further
evaluation of the NHQI and Nursing Home Compare. Consumers might be
well served by an independent and in-depth monitoring and research project
to evaluate the NHQIs effectiveness at ultimately improving quality of care
for nursing home residents.
D. Involved Residents and Resident Advocates
An important mechanism for improving quality of care is involved residents and resident advocates. Informed and involved consumers, armed with
knowledge of federal and state regulatory requirements, what constitutes good
care, and how to get it, can improve care and quality of life at resident and
facility levels. Residents and their advocates enforce residents rights, monitor
nursing home conditions, and can demand change.
1. Regulatory Protection of Residents Rights
Residents rights are a core concept enshrined in the federal Nursing
Home Reform Act138 and often in state law. The intent is to ensure residents
do not lose their civil rights upon entering a nursing home. The basic principles
of residents rights are dignity, choice, and self-determination.139 Specific
residents rights include the right:
To be fully informed, in a language the resident understands, of, among
other things: fees; facility rules; how to complain and get help; state
survey reports and the homes plan to correct deficiencies; and plans
of a change in rooms or roommates;
To complainfor example, to a state agencywithout fear of reprisal;
To privacy and confidentiality, such as the right to private and unrestricted communication with any person of the residents choice,
including sexual communication;
135
Wiener, supra note 2, at 21.

The omission of staffing information as a quality measure is discussed in supra note 63 and accompanying text.
137 Compare supra note 130 and accompanying text (page from California Nursing Home Search) with
supra note 67 and accompanying text (Nursing Home Compare).
138 42 U.S.C.A. 1395i-3 (West Supp. 2004) (Medicare); 42 U.S.C.A. 1396r (West 2003) (Medicaid).
139 See NATL CITIZENS COALITION FOR NURSING HOME REFORM, RESIDENTS RIGHTS: AN OVERVIEW, CONSUMER
FACT SHEET NO. 2 (Aug. 2003), available at http://www.nccnhr.org/uploads/ResRights03.pdf.
136
30
D. R. LENHOFF
In general, to remain in the nursing facility unless transfer or discharge

is necessary for the residents welfare;
To treatment with consideration and respect, including freedom from
abuse and restraints and security of possessions;
To visits from anyone the resident chooses, including state agencies,
along with the right to refuse visits;
To make independent choices about such matters as what to wear and
how to spend free time, and to receive reasonable accommodation of
those needs and preferences;
To participate in a resident council;
To manage ones own financial affairs; and
To participate in ones own care, including the right to refuse medication and treatment; be informed of changes in ones medical condition;
review ones own medical record; and participate in preparation
of a written plan of care designed to attain or maintain the residents highest practicable physical, mental, and psychosocial
well-being.140
2. Community Mechanisms Protecting Residents Rights

In addition to government enforcement, four community mechanisms
are available to enforce residents rights: resident and family councils, LTC
Ombudsmen, and citizen advocacy groups.
a. Resident and Family Councils
Participation in resident councils is specifically mentioned as a residents
right in the Nursing Home Reform Act (NHRA).141 Similarly, successful family councils can improve quality of care and quality of life for residents. They
provide support and information to family members to enable them to advocate effectively for good care for their loved ones and resolve complaints on
their behalf using well-founded knowledge and advocacy tools.
In fact, family involvement increasingly is important because of residents increasing frailty. When residents are too sick or confused to advocate
for themselves, family members may be the only means residents have of
getting their interests represented and their concerns resolved. Although not
explicitly specified in the NHRA, residents rights to have family members
participate in a family council stem from their explicit rights to complain and
to have visitors of their own choice.
140
141
Id.; 42 U.S.C.A. 1396r(b)-(c) (Medicare); 42 U.S.C.A. 1395i-3(b)-(c) (Medicaid).

42 U.S.C.A. 1396r(c)(1)(A)(vii) (Medicare); 42 U.S.C.A. 1395i-3(c)(1)(A)(vii) (Medicaid).
31
b. LTC Ombudsman Program

The LTC Ombudsman program,142 a formal mechanism for community
involvement in nursing home care, was created due to widespread public
concern about the quality of care in nursing homes. Initial demonstration
programs in 1972 were followed by the 1978 amendments143 to the Older
Americans Act of 1965,144 requiring each state to establish an LTC ombudsman
program. Ombudsmen resolve problems of individual residents, visit facilities
regularly, provide information and referral about facility selection and quality
of care, assist resident and family councils, promote residents rights, and
represent residents needs and interests to public officials.145 In most states,
the programs cover nursing homes, assisted living, and board-and-care homes.
Currently, each state has an LTC Ombudsman Program operated by
or through the states Agency on Aging. As of 2001, there were 596 local
and regional ombudsman programs, over 1,000 paid ombudsmen, and over
13,000 volunteer ombudsmen.146 LTC ombudsmen provided information to
almost 283,000 individuals and investigated 151,737 complaints involving
264,269 individuals.147
c. Citizen Action Groups
Citizen action groups (CAGs) are independent, non-government community groups at the state or local level. They serve as vehicles for consumers
to redress power imbalances, as community service organizations, and as
interest-group lobbies. Traditionally, they have played an important role as
residents advocates as well.
Because of their relative independence, CAGs can make demands of both
institutions and the government for high standards, accountability, and dignity
for residents. They can contact the media or other public watchdogs without
putting a loved one in jeopardy. Thus, and in contrast to most resident and
family councils, CAGs may: address county- or state-wide issues; negotiate
with representatives of all administrators in a region, as well as with particular
administrators; and formulate a reform agenda that seeks improvement for
an entire class of people. Because of the unique role of CAGs, the Older
142
42 U.S.C.A. 3058(g) (West 2003).

Pub. L. No. 95-478, 92 Stat. 1513 (1978) (codified at 42 U.S.C.A. 3058g).
144 Pub. L. No. 89-73, 79 Stat. 218 (1965) (codified at 42 U.S.C.A. 3001-3058ee). 42 U.S.C.A. 3027
requires states to establish LTC Ombudsmen programs to remain eligible for funding under the Older
Americans Act.
145 42 U.S.C.A. 3058g(a)(3); ADMIN. ON AGING, DEPT OF HEALTH & HUMAN SERVS., LONG-TERM CARE
OMBUDSMAN REPORT FY 2001, at 2, 10, available at http://www.aoa.gov/prof/aoaprog/elder rights/
LTCombudsman/National and State Data/2001nors/2001OMBDS%20Reportfinal.pdf.
146 Id. at 2.
147 Id. at 3-4, 7 & figure 1. This represents a significant proportion of the 1.7 million nursing home residents
and 1 million assisted living residents.
143
32
D. R. LENHOFF
Americans Act specifically requires ombudsman programs to promote their

development.148
CAG members tend to be volunteers, consumers, professionals, and
direct service workers concerned about LTC residents. Often motivated by
personal experience, most citizen advocates empathize with the needs and
plight of frail and institutionalized people. Today, approximately 55 organized CAG groups are active in 30 states.149 Some are well established, with
significant budgets and professional staff who are well-known as lobbyists for
their cause. Others are small groups of volunteers with little or no resources.
Although CAGs vary in strength and resources . . . there is no question that
they can provide valuable advocacy for elders150 and have been effective at
improving nursing home conditions in significant ways.
Resident advocates play important roles. Thus, one of consumers demands to improve LTC is empowerment and strengthening of this infrastructure consisting of resident and family councils, LTC ombudsmen, and CAGs.
V. LEGAL OVERSIGHT AND ACCOUNTABILITY
Three main mechanisms for legal oversight and accountability of nursing
homes have developed: regulations/enforcement, at federal and state levels;
civil lawsuits by individuals; and criminal enforcement, at the federal, state,
or local level.
A. Regulation and Enforcement
Nursing home regulation in general, and the Omnibus Budget Reconciliation Act of 1987 and the enforcement scheme it sets up in particular, often
have been criticized for not doing enough and for creating too adversarial a
relationship. This section briefly reviews OBRAs enforcement structure and
standards. It then presents a consumer perspective on OBRAs success.
The dominant law setting out the standards for nursing home care and
their regulatory enforcement mechanism is the Nursing Home Reform Act,151
enacted as part of the Omnibus Budget Reconciliation Act of 1987 (OBRA).152
Signed by President Reagan on December 22, 1987, OBRA was the result of
148
Older Americans Act of 1965 (codified at 42 U.S.C.A. 3058g(a)(3)(H)(ii) (West 2003)).

See list of Citizen Groups on NCCNHRs website, at http://www.nursinghomeaction.com/static
pages/citizens groups.cfm.
150 Elma Holder, The Changing Long-Term Care Resident Population and Its Needs, in NATL ASSN OF STATE
LONG-TERM CARE OMBUDSMAN PROGRAMS, THE LONG-TERM CARE OMBUDSMAN PROGRAM: RETHINKING AND
RETOOLING FOR THE FUTURE app. IX (Apr. 2003).
151 42 U.S.C.A. 1395-1395hhh (Supp. 2004) (Medicare); 42 U.S.C.A. 1396r (2003) (Medicaid).
152 Pub. L. No. 100-203, 101 Stat. 1330 (codified as amended in scattered sections of the U.S.C.); H.R.
Rep. No. 100-391(I), at 452 (1987), reprinted in 1987 U.S.C.C.A.N. 2313-1, 2313X272. See Beverly
Health and Rehab. Servs., Inc. v. Thompson, 223 F. Supp. 2d 73 (D.D.C. 2002) (review of OBRAs
requirements).
149
33
years of development and consensus-building by a coalition convened by

NCCNHR as the Campaign for Quality Care.153 The coalition included the
major stakeholders in industry, labor, government, the research community,
and the consumer world. Many of its provisions were the result of recommendations contained in an influential 1986 Institute of Medicine report, Improving the Quality of Care in Nursing Homes.154 Consumer advocates worked for
almost 30 years to create a federal and state regulatory enforcement system
that would ensure nursing homes comply with care and safety standards.
For all covered nursing homes,155 OBRA sets out a very high basic
substantive standard: each resident must receive care and services to reach his
or her highest practicable physical, mental, and psychosocial well-being.156
This touchstone is the goal each of us would want as a resident, and is the
requirement residents, family members, and other consumer advocates turn
to repeatedly to evaluate care and policy incentives. Yet, too often, care is
deficient and fails to meet this touchstone.157
In addition to its substantive care requirements, OBRA establishes a joint
federal-state enforcement scheme, in which state inspectors survey every facility on average once a year (between every 9 and 15 months).158 Surveyors
issue deficiencies when violations of federal law are found.159 (They can also
find violations of state law separately.) OBRA establishes sanctions for deficiencies, depending on their scope and severity. Sanctions can include civil
monetary penalties (CMPs), appointment of temporary managers or receiverships, denial of new admissions, or decertification.160 OBRA also establishes
guidelines governing residents and family members complaints of violations
and requires survey agencies to conduct inspections in response thereto.
In its most recent comprehensive report on nursing home quality and
enforcement, the GAO found serious problems have declined in nursing
homes.161 However, it noted problems are still prevalent, and that enhanced
oversight is thus important.162
153
NATIONAL CITIZENS COALITION FOR NURSING HOME REFORM, ABOUT NCCNHR: HISTORY, at
http://www.nccnhr.org/public/50 541 1953.cfm (last visited Oct. 23, 2004).
154 COMM. ON IMPROVING QUALITY IN LONG-TERM CARE, INST. OF MED., IMPROVING THE QUALITY OF CARE IN
NURSING HOMES (1986).
155 42 U.S.C.A. 1395-1395hhh, 1396r. As noted, OBRA covers Medicare and Medicaid funded nursing
homesthe vast majority of homes in the United States. Almost 60% of nursing home services are
paid for by Medicare and Medicaid. MEDPAC REPORT, supra note 53, at 127.
156 42 U.S.C.A. 1396r (Medicare); 42 U.S.C.A. 1395i-3 (Medicaid); See NATL CITIZENS
COALITION FOR NURSING HOME REFORM, HOW TO PARTICIPATE IN THE CARE OF YOUR LOVED
ONE DURING A NURSING HOME STAY: PRACTICAL TIPS FOR ONGOING FAMILY INVOLVEMENT, at
http://www.nccnhr.org/uploads/FamInvlvmntinNHcare.pdf (last visited Oct. 23, 2004).
157 See infra I (discussing widespread and serious deficiencies found in nursing homes).
158 42 U.S.C.A. 1395i-3(g).
159 In 2002, U.S. nursing facilities received over 95,000 deficiencies for failure to meet federal standards.
Harrington, supra note 29, at 27.
160 42 U.S.C.A. 1395i-3(h).
161 NURSING HOME QUALITY, supra note 6, at 3-4.
162 Id. at 4-5.
34
D. R. LENHOFF
In 2000, the GAO found, on average across the states, 29.3% of facilities
received deficiencies that caused residents actual harm or put them in jeopardy
of such harm.163 By 2000-2002, that figure dropped to 20.5%.164 This significant decline indicates real, if modest, responsiveness by nursing facilities to
the government enforcement system.
It is possible, however, this decline was due not to fewer or less severe
deficiencies in the second period, but rather to less stringent enforcement
activity.165 To eliminate this possibility, the GAO compared federal and state
surveys of the same homes and found fewer discrepancies between them than
previously, suggesting that state surveyors are doing a better job of documenting serious deficiencies and that the decline in serious quality problems
is potentially real.166
At the same time, the GAO found a shocking and widespread understatement of serious deficiencies; 39% of sample facilities reported by state
surveyors to have no deficiencies in fact had actual harm deficiencies;167 The
GAO documented cases from a sample of surveys in which residents suffered
from infections, multiple bedsores and skin tears, severe weight loss, avoidable falls and lacerations, fecal impaction, untreated pain, delayed treatment
of fractures, contractures (frozen joints), multiple bruises, and untreated
acute respiratory distress in which the resident stopped breathing, all without state survey agencies finding the residents had been harmed. Moreover,
in many cases, deficiencies were downgraded so they were not reported as
actual harm deficiencies.168 Surely, if there is anything we can do as a society
for our elders and the disabled, it is at least to give such treatment the right
name so we can assign it an appropriate remedy.
Even when deficiencies were found and correctly classified, use of sanctions was problematic. Although the agency had strengthened its enforcement
policy by requiring states to refer for immediate sanction homes that repeatedly harmed residents, the GAO found states failed to refer a substantial number of such homes, significantly undermining the policys intended deterrent
effect.
The sanctions of CMP assessment and denial of new admissions, in
particular, are rarely used. In 1999, only four percent of deficiencies were
assessed CMPs and only two percent denied new admissions. Other sanctions,
especially the most serious ones of revocation and decertification, are used so
163
Id. app. II, at 57.

Id.
165 See id. at 18-29.
166 Gen. Acct. Off., Highlights of GAO-03-561, A Report to Congressional Requesters, in NURSING HOME
QUALITY, supra note 6.
167 Id. at 4.
168 Id. (finding causes of understating deficiencies included poor investigation and documentation, limited
quality assurance systems, and inexperienced surveyors).
164
35
infrequently (combined they were used in only two percent of deficiencies)

as to be virtually nonexistent.169 From 2000 to 2003, the use of enforcement
sanctions actually decreased.170
The GAO found a number of additional failures to implement effective
survey and complaint processes. These included predictable timing of fully
one-third of surveys, inadequate and untimely complaint investigations, no
toll-free complaint hotlines in 15 states, poor state investigation and documentation, inexperienced state surveyors, and inadequate federal oversight.171
Consumers strongly support the GAOs recommendations to improve the survey and complaint processes.
The federal and state survey and certification systems failures are not
surprising, given the significantly inadequate resources available to fund its
efforts. Total funding for nursing home regulation totaled less than 0.05% of
the $90 billion in nursing home expenditures in 1999.172 In 2004, not only
did the state survey agency budget not increase commensurate with its needs,
but it actually decreased (by one percent) from 2003.173 With such chronic
underfunding, it is impossible to conclude that the system is a failure. All that
can be concluded is that, when insufficiently funded, the system does not and
cannot work properly.
B. Civil Lawsuits by Individuals
The second mechanism of legal oversight and accountability of nursing homes is individual civil lawsuits.174 From consumers points-of-view,
civil lawsuits for damages provide justice to those harmed and deter future
misconduct:
169
Charlene Harrington et al., State Nursing Home Enforcement Systems, 29 J. HEALTH POL. POLY & L.
43, 54-55 table 1 (2004).
170 Robert Pear, Penalties for Nursing Homes Show a Drop in Last 4 Years, N.Y. TIMES, Aug. 6, 2004,
at A11. (The number of nursing homes penalized for violations of federal standards declined by 18
percent, to 2,146 in 2003 from 2,622 in 2000. The number of civil monetary penalties declined 12
percent, to 1,979 in 2003 from 2,242 in 2000. [And t]he number of nursing homes denied Medicare or
Medicaid payment for new admissions fell 47 percent, to 698 in 2003, from 1,312 in 2000.).
171 NURSING HOME QUALITY, supra note 6, at 4. For an apparent example of poor investigation and documentation practices, see Edwards, supra note 22 (Although the Nashville home was cited for poor
implementation of its fire plan on each of its four most recent surveys, the state survey agency never
interviewed nursing home staff directly to determine if this recurring problem contributed to the loss
of life during the fire.).
172 Kieran Walshe & Charlene Harrington, The Regulation of Nursing Facilities in the United States: An
Analysis of the Resources and Performance of State Survey Agencies, 42 GERONTOLOGIST 475, 480
(2002).
173 Nursing Home Quality Revisited, supra note 19, at 243 (testimony of Thomas A. Scully, Administrator,
Ctrs. for Medicare & Medicaid Servs.).
174 This section focuses on civil damages actions sounding in tort. Other causes of action may be available
to improve nursing home conditions: breach of contract; the False Claims Act; the Americans with
Disabilities Act; and state residents rights or elder abuse statutes.
36
D. R. LENHOFF
[N]ursing home residents and their families have been forced, on occasion, to turn
to the civil justice system to not only provide meaningful remedies for negligence
and abuse, but also meaningful deterrence to future neglect and abuse . . . . [T]ort
judgments may well be one of the most effective disincentives to poor nursing home
care. Given the scope and severity of abuse and neglect, coupled with the longstanding inability of state and federal government to adequately police the nursing
home industry, nursing home residents desperately need every tool of deterrence
available.175
While accurate national statistics on the scope of nursing home litigation are not available, there is general agreement that, in recent years, it has
grown quickly176 and is one of the fastest-growing areas of health care litigation. A recent national survey of nursing home litigators found what the
authors characterized as a great deal of such litigation: approximately 8300
(self-reported) nursing home claims, especially involving chronic, long-stay,
older residents, in litigation in 2000-2001.177 An in-depth California study of
elder abuse litigation, on the other hand, found a low level of elder abuse litigation filed against California SNFs; in every year reviewed, fewer than 25%
of skilled nursing facilities were sued for elder abuse.178 A disproportionate
number of elder abuse lawsuits were filed against a small group of skilled
nursing facilities.179
Both studies agree the most commonly litigated claims involve severe
harms. In order of frequency, the most litigated claims are: wrongful death;
pressure ulcers; dehydration and weight loss; emotional distress; falls; improper restraint use; medication errors; and sexual assault.180 Of the California
lawsuits reviewed, 50% involved wrongful death claims, 27% involved severe
bedsores and/or infections stemming from neglect, and 23% involved avoidable falls or assaults.181
These claims often are labeled as frivolous and thought to be initiated
by trial lawyers motivated by money. However, strong evidentiary support
175
See NATIONAL CITIZENS COALITION FOR NURSING HOME REFORM & TEXAS ADVOCATES FOR NURSING HOME
RESIDENTS, THE FACES OF NEGLECT: BEHIND THE CLOSED DOORS OF TEXAS NURSING HOMES 3 (2003).
176 For a review of the reasons for this growth, see Marshall B. Kapp, Resident Safety and Medical Errors
in Nursing Homes: Reporting and Disclosure in a Culture of Mutual Distrust, 24 J. LEGAL MED. 51,
68-69 (2003).
177 David G. Stevenson & David M. Studdert, The Rise of Nursing Home Litigation: Findings from a
National Survey of Attorneys, HEALTH AFF., Mar./Apr. 2003, at 219, 223. See infra note 186 (discussion
of methodological limitations in this study).
178 CALIFORNIA ADVOCATES FOR NURSING HOME REFORM (CANHR), MUCH ADO ABOUT NOTHING: DEBUNKING
THE MYTH OF FREQUENT AND FRIVOLOUS ELDER ABUSE LAWSUITS AGAINST CALIFORNIAS NURSING HOMES 5,
14 (Nov. 2003). For the three-year period January 1, 2000 to December 31, 2002, only 501 elder abuse
lawsuits were filed against the 577 nursing homes studied, with 58,134 licensed beds. Id. at 13.
179 Id. at 5 (23% of the facilities accounted for over 71%, and 10% of the facilities for 47%, of filed lawsuits;
over half the facilities did not have a single elder abuse lawsuit filed against them).
180 Stevenson & Studdert, supra note 177.
181 See DEBUNKING THE MYTH, supra note 178, at 6.
37
indicates nursing home neglect cases rarely are frivolous. In fact, one survey
of more than 900 Florida cases found little evidence of frivolous lawsuits.182
The California survey found that facilities subject to elder abuse lawsuits
also had consistent and significant records of inadequate care. Indeed, those
homes were much more likely to have been cited for deficiencies or subjected
to complaints,183 strongly suggesting lawsuits against such facilities were not
frivolous.184
According to a recent national litigators survey, the damages involved
are significant, as much as $1.4 billion for the total outstanding claims.185 The
average recovery ($406,000/claim) is twice the usual in medical malpractice
cases, and the average payment rate (88%), nearly triple.186 Such high damage
awards are designed to compensate the plaintiff for serious injuries (including
pain and suffering), to punish and deter future similar misconduct by the
defendant, and to change the cost-benefit analysis for facilities providing
poor care.187
Some cases command very high verdicts. In one case, the jury awarded
$78.4 million, which was reduced to $26.4 million on appeal.188 In that case, the
resident suffered from dehydration and malnutrition while at the defendants
nursing home. The plaintiff claimed the resident ultimately died as a direct
result of the nursing homes negligence.189
Another potential impact of civil lawsuits on quality of care involves equitable relief. Civil lawsuits give consumers leverage to achieve actual changes
in care practices. Nursing home litigation has produced the following kinds
182
Greg Groeller, Elderly Care Put to Test; Staff Shortage Hits Home Hard, Makes Them Litigation
Targets; A Look at Lawsuits Against Floridas Nursing Homes Finds Big Problemsand a Windfall
for Lawyers, ORLANDO SENTINEL, Mar. 4, 2001, at A11 (explaining that, based on their survey, there is
little evidence that trial lawyers are using Residents Rights to clog courts with frivolous cases. Serious
allegations abound in the suits).
183 DEBUNKING THE MYTH, supra note 178, at 6 (finding that the 10% of facilities accounting for 47% of the
lawsuits averaged almost 100% more deficiencies, nearly 200% more complaints, and several times
the number of severe citations, than facilities that were not sued).
184 See also CTRS. FOR MEDICARE ADVOCACY, STUDY BY CENTER FOR MEDICARE ADVOCACY DISPELS
MYTHS ABOUT TORT REFORM AND NURSING HOMES, available at http://www.medicareadvocacy.org/snf
TortReformSummary.htm (last visited Oct. 26, 2004) (First and foremost, the cases are not frivolous.
Cases represent situations where residents have been seriously injured and died. They involve deaths by
strangulation on bedrails or other physical restraints, pressure sores, malnutrition, and dehydration.).
185 Stevenson & Studdert, supra note 177, at 223-24.
186 Id. at 222-23. The study has several methodological limitations. First, data are based on attorney selfreports, thus the sample is not representative of all nursing home litigation attorneys. Second, the
subjects were attorneys and their responses may reflect professional biases. Third, no independent data
verification was conducted. Further research into the scope and severity of claims and damages awarded
in nursing home negligence cases would shed light on these issues.
187 See supra note 175 and accompanying text.
188 Advocat, Inc. v. Sauer, 353 Ark. 29 (Ark. 2003).
189 Id.
38
D. R. LENHOFF
of: results equitable changes in resident monitoring and care procedures in

a chain of 65 homes;190 a bedrail manufacturer agreeing to include warning
labels about entrapment after a 63-year-old Alzheimers patient was strangled
to death, allegedly by the restraints in bedrails while sleeping;191 and safety
strips being installed in nursing home bathtubs when a 79-year-old nursing
home patient suffering from Alzheimers disease drowned in a bathtub while
unattended.192
C. Criminal and Other Penalties
The final legal mechanism for holding nursing homes and their owners and operators accountable is the criminal justice system. State and local
prosecutors have charged owners and operators, regional directors,193 medical
directors, and staff with such crimes as homicide and criminal neglect.194 For
example, the California Attorney General instituted a Facilities Enforcement
Team to investigate and prosecute nursing homes for policies or practices that
lead to neglect or poor quality of care. Prosecution could be based on such conduct as: failure to provide medical care for physical and mental health needs;
failure to attend to hygiene concerns; failure to provide adequate staffing;
failure to prevent malnutrition and dehydration; and falsification of patient
charts. In 1999-2000, this office brought its first-ever criminal prosecution of
a skilled nursing facility and its owner.195
A few local criminal prosecutors also have been active in the area. In
Pulaski County, Arkansas, for example, the Coroners Office investigates
all nursing home deaths. Of 2400 investigations between 1999 and 2002,
this office found 56 in which there was reason to suspect an unnatural
death.196 Despite these few examples, however, state and local law
190
CTR. FOR JUSTICE & DEMOCRACY, MYTHBUSTER! LAWSUITS SAVE THE LIVES OF SENIORS . . . WHILE INSURANCE
COMPANIES ABDICATE THEIR SAFETY RESPONSIBILITIES (citing Olson v. Chisolm Trail Living & Rehab. Ctr.,
No. 98-0363 (Caldwell County Ct., Tex., verdict Aug. 26, 1999)).
191 Id. (citing Trew v. Smith & Davis Mfg. Co., No. SF 95-354 (Santa Fe County Jud. Dist. Ct., N.M.,
verdict July 19, 1996)).
192 Id. (citing In re Beale v. Beechnut Manor Living Ctr., No. 90-18826 (Harris County Dist. Ct., Tex.,
verdict May 21, 1992)).
193 See, e.g., Oklahoma v. Thomason, 33 P.3d 930 (Okla. App. 2001).
194 An early notable criminal case involved Autumn Hills Convalescent Center in Texas, in which a
grand jury indicted a nursing home company and six employees for allegedly murdering residents by
knowing omission. See Elma Holder, Foreword, in NURSING HOME LITIGATION: INVESTIGATION AND CASE
PREPARATION v (Patricia Iyer ed. 1999).
195 BUREAU OF MEDI-CAL FRAUD & ELDER ABUSE, OFF. OF THE ATTY GEN., STATE OF CAL., ELDER ABUSE IN
NURSING HOMES, at http://www.caag.state.ca.us/bmfea/elder.htm (last visited Oct. 28, 2004).
196 Safeguarding Our Seniors: Protecting the Elderly from Physical and Sexual Abuse in Nursing Homes: Hearing Before the Sen. Special Comm. on Aging, 107th Cong. 52, 53 (2002)
(testimony of Mark Malcolm, Coroner, Little Rock, AK), at http://frwebgate.access.gpo.gov/cgibin/getdoc.cgi?dbname=107 senate hearings&docid=f:78785.pdf. Mr. Malcolm has become a crusader against criminally negligent nursing home care. In one 1998 incident he investigated, a 78-year-old
39
enforcement involvement in nursing home abuse and neglect has been

quite limited.197
The federal government has long had a role in prosecuting skilled nursing facilities (and other Medicare and Medicaid recipients) for financial fraud.
Starting with nursing home cases brought by the United States Attorneys office in Philadelphia in 1996,198 the federal government interprets the False
Claims Act (FCA)199 to cover negligent or abusive care, on the theory that a
facility that provided substandard care failed to provide the services it contracted with the government to provide.200
Use of the FCA in this way enables federal prosecutors to reap significant civil damages and induce substandard nursing facilities to enter into
Corporate Integrity Agreements . . . designed to cure the failure of care by
upgrading the quality of services provided in the facilities.201 The failure of
care theory under the FCA has been applied to several significant nursing
home chains.202 Although the theory has been controversial,203 its use has been
supported by a broad range of consumers who strongly agree with its premise
and potential results.
man had been improperly placed in a vest restraint and was discovered so tightly wedged between his
mattress and bedrail that it took four staff members to free him: He was dead by the time he was finally
extricated. Yet, this death was not reported to the coroner and law enforcement; rather, it was the state
survey audit that brought the death to the coroners attention. Id.
197 GEN. ACCT. OFF., NURSING HOMES: MANY SHORTCOMINGS EXIST IN EFFORTS TO PROTECT RESIDENTS FROM
ABUSE, REP. NO. GAO-02-448T (Mar. 4, 2002) (testimony of Leslie G. Aronovitz, Director, Health
CareProgram Administration and Integrity Issues, Gen. Acct. Off.) (Mar. 4, 2002).
198 Andy Schneider, Medicaid Policy LLC, Reducing Medicaid Fraud: The Potential of the False Claims
Act 39 n.110 (June 2003) (prepared for Taxpayers Against Fraud Education Fund) (citations omitted),
at http://www.taf.org/publications/PDF/reducingmedicaidfraud.pdf.
199 31 U.S.C.A. 3729-3733 (West 2003 & Supp. 2004); see also TAXPAYERS AGAINST FRAUD EDUCATION
FUND, WHY THE FALSE CLAIMS ACT: WHAT IS THE FALSE CLAIMS ACT & WHY IS IT IMPORTANT? The False
Claims Act establishes an enforcement scheme so the government can recover damages and penalties
from those who knowingly submit false claims for payment of government funds. Defendants can be
liable for three times the governments damages plus civil penalties of $5,500 to $11,000 per false claim.
False claims actions may be brought by the United States or private whistleblowers, known as qui tam
relators, who may be awarded a portion of the damages recovered. See http://www.taf.org/whyfca.htm
(last visited Oct. 26, 2004).
200 Schneider, supra note 198, at 39 n.110.
201 Id.
202 See, e.g., Press Release, Dept of Justice, Vencor and Ventas Paying U.S. $219 Million to Resolve
Health Care Claims as Part of Vencors Bankruptcy Reorganization: Recovery Includes Largest Failure of Care Settlement to Date (Mar. 19, 2001), available at http://www.justice.gov/opa/pr/2001/
March/115civ.htm.
203 See e.g., Schneider, supra note 198, at 39 (Industry counsel have questioned this use of the FCA to
bypass the extensive regulatory authority that exists to sanction substandard healthcare facilities.)
(citations omitted).
40
D. R. LENHOFF
CONCLUSION
Government regulation and enforcement and civil and criminal legal
accountability have essential and non-replaceable roles to play in LTC in preventing abuse and neglect, compensating victims, and removing unprepared
or unscrupulous providers from the field. Along with improved nurse staffing,
better care practices, industry culture change, strong public education, and
involved residents and resident advocates, these strategies can help ensure
quality of care and quality of life for nursing home residents.

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The Journal of Legal Medicine, 26:940

Copyright C 2005 Taylor & Francis

LTC Regulation and Enforcement

LTC REGULATION AND ENFORCEMENT

abandonment, denial of food or health related services.14 Too many facilities

Alice R. had no pressure sores when she arrived at a Port Lavaca,

42 U.S.C.A. 3002(34)(A)-(B) (West 2003).

LTC REGULATION AND ENFORCEMENT

Vera M., a resident in an Austin, Texas, nursing home, developed

The following reports are from 2003 newspaper articles or testimony at

II. PERSPECTIVES ON POLICIES REGARDING LTC

LTC REGULATION AND ENFORCEMENT

1. NCCNHR Proposed Minimum Staffing Standard

LTC REGULATION AND ENFORCEMENT

nonexistent. To the contrary, federal standards for minimum nurse staffing

42 U.S.C.A. 1396r(b)(4)(C)(i) (West 2003) (Medicaid); 42 U.S.C.A. 1395i-3(b)(4)(C)(i) (West

LTC REGULATION AND ENFORCEMENT

Home Compare website.61 Similarly, the California HealthCare Foundations

The website is at http://www.cms.hhs.gov/NHCompare.

B. Improvement of Staffing Information

Harrington, supra note 29, at 26.

LTC REGULATION AND ENFORCEMENT

Only 26 states require CNAs to complete more than 75 hours of

LTC REGULATION AND ENFORCEMENT

DHHS awarded approximately $6 million for five demonstration projects to

LTC REGULATION AND ENFORCEMENT

Another example of culture change is the Wellspring Model, embraced

LTC REGULATION AND ENFORCEMENT

LTC REGULATION AND ENFORCEMENT

Wiener, supra note 2, at 21.

In general, to remain in the nursing facility unless transfer or discharge

2. Community Mechanisms Protecting Residents Rights

Id.; 42 U.S.C.A. 1396r(b)-(c) (Medicare); 42 U.S.C.A. 1395i-3(b)-(c) (Medicaid).

LTC REGULATION AND ENFORCEMENT

b. LTC Ombudsman Program

42 U.S.C.A. 3058(g) (West 2003).

Americans Act specifically requires ombudsman programs to promote their

Older Americans Act of 1965 (codified at 42 U.S.C.A. 3058g(a)(3)(H)(ii) (West 2003)).

LTC REGULATION AND ENFORCEMENT

years of development and consensus-building by a coalition convened by

Id. app. II, at 57.

LTC REGULATION AND ENFORCEMENT

infrequently (combined they were used in only two percent of deficiencies)

LTC REGULATION AND ENFORCEMENT

of: results equitable changes in resident monitoring and care procedures in

LTC REGULATION AND ENFORCEMENT

enforcement involvement in nursing home abuse and neglect has been

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