Volume 7     Number 1    1999    

The Resurrection of Nursing Home Reform: A Historical Account of the Recent Revival of the Quality of Care Standards for Long-Term Care Facilities Established in the Omnibus Reconciliation Act of 1987 - Senator Charles Grassley

The Omnibus Reconciliation Act of 1987 (OBRA) was Congress's response to recommendations from the Committee on Nursing Home Regulation of the Institute of Medicine and the General Accounting Office (GAO) to revise the statutory authority applicable to long-term care facilities participating in the Medicare and Medicaid programs. OBRA established the following: (1) requirements for those providers participating in the federal health programs, (2) survey and certification processes to evaluate compliance with the participation requirements, and (3) stricter sanctions and enforcement procedures to address noncompliance with these requirements. Yet, ten years after its enactment, OBRA remained toothless in the prevention of noncompliance by long-term facilities under the Medicare and Medicaid programs.

In 1998, the Senate Special Committee on Aging, of which Senator Grassley is the chairman, held a two-day hearing investigating allegations that California nursing homes allowed thousands of unnecessary deaths of home residents. An announcement of a nursing home reform agenda by the Clinton administration preceded the hearing by a few days. In addition, a GAO report criticizing OBRA implementation was released at the hearing. The Senate Special Committee on Aging continues to examine the quality of long-term care. A hearing was held in March 1999 to review the efficiency and effectiveness of the complaint investigation process and the enforcement infrastructure created by OBRA. Also, in June 1999, the Senate Special Committee on Aging examined the impact of last year's reform on the quality of care provided in nursing homes across the nation.

This essay examines the statutory development of OBRA and the activities that have followed. The author discusses the requirements imposed on health providers by OBRA, as well as problems with enforcement. Senator Grassley then provides a detailed look at the presidential initiatives and GAO recommendations regarding nursing home reform.

 ARTICLES

What Attorneys Should Know About Long-Term Care Insurance - Robert D. Hayes, Nancy G. Boyd, Kenneth W. Hollman

The financial consequences of uninsured long-term care (LTC) living can be devastating, and traditional means of coverage, such as Medicare and Medicaid, often do not, and, in the future, will not provide enough financial protection to those clients with LTC needs. Knowing this, many insurance companies now offer a variety of LTC coverage products. With the gap in LTC coverage looming for most people, and a ready market from which to purchase such insurance coverage, the authors argue that it is an attorney's professional responsibility to advise their clients of the available funding options for LTC packages and of the consequences of not planning for the contingency of prolonged and expensive LTC. The primary purpose of this article is to inform lawyers of the crucial importance of LTC insurance coverage. The authors urge attorney's with older clients to encourage clients to purchase LTC insurance packages so that assisted living services are provided for without jeopardizing the client's financial security.

The authors highlight several features of LTC policies attorneys and policyholders should take note of such as: whether benefits are daily or monthly; the level and type of care that is covered; whether there is a prehospitalization requirement prior to LTC coverage during nursing home confinement; whether the policy protects against inflation for LTC costs; what preexisting medical conditions are not covered by the LTC policy; the number of days the insured must receive in eligible services such as Medicaid or Medicare before the policy will begin paying benefits; whether the policy has a guaranteed renewability clause; and how long the LTC carrier is obligated to pay benefits. The authors also point out important factors to look at regarding the premium for a LTC policy. They recommend examining the premium cost of the policy, whether it is waived once the insured begins occupancy in a nursing home, and whether a percentage of the premium is returned to the insured if the policy is not used after a number of years. Additionally, the authors detail the list of possible exclusions a LTC policy may contain. Finally, the article concludes by profiling a typical candidate in need of LTC coverage.

Ten Years After: Where is the Constitutional Crisis with Procedural Safeguards and Due Process in Guardianship Adjudication? - A. Frank Johns

In 1987, the Associated Press published an expose on the state of guardianship in the United States , generating a storm of criticism of the guardianship system across the country. This expose, in part, led Mark Andrews to declare that American guardianship was in a state of constitutional crisis in his note, The Elderly in Guardianship: A Crisis of Constitutional Proportions, published in the Winter 1997 edition of The Elder Law Journal. In light of the significant amount of guardianship reform that has occurred in the United States over the last ten years, Mr. Johns questions the seriousness of this constitutional crisis and the need for continuing alarm.

Before addressing the concerns raised by Mark Andrews's note, Mr. Johns, recognizing the importance of using history as a bench mark for progress in the development of guardianship law, examines the development of guardianship over time. The author explores how guardianship law has developed since the ancient times of the Greeks and Romans, and how the English and the American cultures further molded guardianship. He then examines the court cases that Mark Andrews relied upon in his note, finding that they do not support Andrews's constitutional crisis conclusion. Mr. Johns then reviews the remarkable progress that various states have made in reforming their guardianship laws to ensure constitutional protections. To show further support for the degree and breadth of protection that states currently provide in their guardianship laws, he details the constitutional protections offered by the statesat each significant stage of the guardianship process. Mr. Johns also provides intricately detailed charts that summarize each state's statute regarding these protections. Finally, the author concludes that, although there are some important issues left to address in the area of guardianship, the resolution of a constitutional crisis is not one of those issues.

NOTES

Crossing the Decisional Abyss: An Evaluation of Surrogate Decision-Making Statutes as a Means of Bridging the Gap Between Post-Quinlan Red Tape and the Realization of an Incompetent Patient's Right to Refuse Life-Sustaining Medical Treatment - Mark Stephen Bishop

With advances in modern medical technology, physicians are now capable of providing patients with extensive medical treatment. On occasion, the medical treatment rendered sustains the life of a patient, even if it is determined that the patient is in a persistent vegetative state. In those cases involving incapacitated patients, their fundamental right to refuse unwanted life-sustaining treatment may be exercised only in limited ways. One method consists of designating a surrogate who is then given the power to make complicated medical decisions pursuant to a state's health care surrogacy statute. Yet, even today, when the value of these statutes has been widely advocated, some states have enacted poorly drafted statutes, and others have failed to enact a statute at all.

Mr. Bishop first acknowledges the widely accepted view that state health care surrogacy statutes are necessary complements to the current legislative solutions of advance directives. Mr. Bishop then examines the development of the right to die for incapacitated patients in the wake of the New Jersey Supreme Court's decision in In re Quinlan and the Supreme Court's decision in Cruzan v. Director, Missouri Department of Health . From these and other decisions, Mr. Bishop identifies the various interests implicated in a decision to withdraw life-sustaining medical treatment from an incapacitated patient.

Mr. Bishop then reviews a cross-section of current state surrogate statutes and evaluates the legislatures' effectiveness in addressing each of the interests at stake. He focuses on the statutes in force in Illinois, New Mexico, and Ohio, concentrating on several provisions including surrogate priority, limitations on surrogate authority, surrogate decision-making standards, surrogate dispute resolution provisions,and various other procedural requirements. According to Mr. Bishop, the interests of the patient, the patient's family, the state, and the health care profession can all be adequately preserved in a well-drafted surrogate decision-making statute. Mr. Bishop suggests that state legislatures must enact, if they have not already, or continue to update and revise surrogate decision-making statutes while recognizing and carefully considering the delicate balance of all the interests involved. By doing so, states will make great strides to ensure that an accurate, just, and desirable decision is ultimately made.

The Marketing of Gambling to the Elderly - Erika Gosker

In recent years, the majority of states have legalized some form of lottery or casino gambling as an alternative means to raise tax revenues. Competition among the ever-increasing number of players in the gambling industry has resulted directly in the implementation of aggressive advertising tactics in order to maintain a profitable customer base. As such, casinos and lotteries shift much of their focus to their most vulnerable and reliable spenders: the elderly.

Ms. Gosker first illustrates the significance of the burgeoning gambling industry in the United States, with an explanation for its acceptance as a legitimate source of entertainment and revenue. Here, the author makes evident that, regardless of state incentives, market demand will dictate the industry's profit potential. This discussion also focuses on specific marketing efforts employed by casinos and lotteries, including strategies aimed toward elderly customers. Ms. Gosker next evaluates the potential to regulate these marketing techniques. In particular, the author analyzes whether the First Amendment of the U.S. Constitution protects the gambling industry's advertisements as 'commercial' speech. Ultimately, Ms. Gosker defends the constitutionality of the federal ban on television and radio casino advertisements and calls for Congress to adopt appropriate restrictions to prevent unfair casino and lottery marketing campaigns aimed at the elderly. Furthermore, the note encourages the nursing home industry to take an active role in preventing the gambling industry from targeting its residents.

In the Wake of the Columbia/HCA Investigations: Plotting a Course for Medicare Compliance - Jamie R. Welton

Reports of widespread criminal abuse of the Medicare system have resulted in the creation of new legislation and regulations interpreted as broad mandates to clean up the financially unstable Medicare system. The federal government's recent investigation and prosecution of Columbia/HCA for Medicare fraud served as a wake-up call to health-care providers participating in the Medicare system. As a result, in order to avoid a similar fate as Columbia/HCA, health-care providers are now more energetically guarding against noncompliance with Medicare requirements.

In this note, Mr. Welton analyzes Medicare reimbursement requirements, Medicare procedures for reviewing reimbursement requests, specific areas of reimbursement often investigated, and the effects of such investigations. Mr. Welton also examines the statutes used by the government to punish noncompliance, exemptions to the statutes, and the elements required for establishing a good-faith defense to a charge of noncompliance. Lastly, Mr. Welton recommends several strategies on how health-care providers may avoid the initiation of an investigation and discusses various means of recourse if the government initiates an investigation.