Placing a loved one into a nursing home or assisted living facility is one of the hardest decisions a family will ever face. We are entrusting them to people we hope will use their experience, expertise, and compassion to care for them.
Safety and health laws and regulations are especially important in these settings, because, by definition, residents are unable to care for or advocate for themselves. They’re often separated from friends and family who could look out for their interests and, perhaps worse, lose access to their long-time doctor.
Understandably, most primary care physicians cannot care for their patients in nursing homes. The nursing home’s medical director usually assumes that role. These doctors often manage shockingly large patient populations and lack the personal relationship or long-term knowledge of a patient’s health history that the primary care physician had.
On a personal note, I was saddened to see the loss of dignity my own parents experienced when they had to enter long-term care. Luckily, both had families in frequent attendance to look out for their interests, but that is often not possible.
Unfortunately, many factors in our current legal and economic environment limit the effectiveness of nursing home regulations. From a legal standpoint, the number and specificity of laws and regulations from both the federal government (promulgated by Congress and the Center for Medicare and Medicaid Services) and state statutes and regulations enacted by the Department of Health and Human Services look reassuring. They regulate things like how many staff members of each level of expertise (MDs, RNs, LNAs, and CNAs) a nursing home must have and how often patients must be evaluated.
But laws and regulations are only as effective as their enforcement. Already inadequate, I am afraid recent federal and state budget cuts will reduce the pay and number of people tasked with enforcing laws and regulations even more.
The current nursing home business model creates a powerful disincentive to spend enough money to provide a safe and healthy environment. Private nursing homes are increasingly being bought by private equity firms whose primary interest is enriching the owners. While I don’t pretend to fully understand it, a recent Boston Globe article described how these firms sell the assets of the home, primarily land and buildings, to separate business which they also own. They then charge the nursing home rent, increasing its expenses and limiting the cash available to improve the quality of care.
They also often form separate businesses to employ physicians, therapists, and nurses. The nursing home then pays the businesses to supply its staff. Predictably, the nursing home may eventually declare bankruptcy and cease operations unless another company buys it.
Genesis Healthcare, a company that recently declared bankruptcy, “owns” 16 nursing homes in New Hampshire as well as dozens in the rest of the United States. When I had to file a lawsuit against Genesis, I had to research its ownership structure. I learned there were more than 10 entities affiliated with Genesis in New Hampshire. All had the same address in Pennsylvania. This presents a challenge to patients seeking compensation for injuries because the entity that caused the injury is hard to identify until a lawsuit is filed and discovery proceeds.
Another source of safety and health “regulation” is the court system. People injured by negligence can sue, and the threat of potentially large settlements or jury verdicts may serve as an incentive to provide better care. But there are two factors that limit their usefulness in the case of nursing homes.
First, nursing home patients, the potential plaintiffs in such lawsuits, are disabled and/or elderly. They are unlikely to have significant “economic damages,” such as a claim for lost income. The medical care they require for their injuries may be little more costly than what they already need.
They also have a shortened “life expectancy,” so a claim for what is known as “loss of enjoyment of life” or for “pain and suffering” is limited in time. In New Hampshire, we have neither punitive damages nor a requirement that the nursing home pay a winning plaintiff’s attorneys’ fees, both of which some states have.
The final blow is that neither the state nor the federal government requires nursing homes to carry liability insurance. If they do, it has such a high deductible that the insurance company will never have to pay. If a nursing home files for bankruptcy, as with Genesis, all legal actions are stayed, and an injured patient must stand in line behind all the other creditors.
In my opinion, these deficiencies call for reform from our state and federal representatives. I hope the Genesis bankruptcy opens their eyes and prompts some action, both here in New Hampshire and in Washington. In the meantime, please do your research and talk with friends and family before you make this difficult decision.
There are good facilities out there, and even in the underfinanced and understaffed ones, the caregivers themselves are usually compassionate and dedicated. It’s the corporate and administrative structure, not the people on the front lines, that needs urgent improvement and the right incentives to help these caregivers do the kind of job they want to do.
