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State Regulation of Long-Term Care: A Decade of Experience with Intermediate Sanctions

Published online by Cambridge University Press:  28 April 2021

Sandra H. Johnson
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Recent reforms in state nursing home regulations have created an-array of enforcement tools that relate the severity of the penalty to the severity of the violation. These intermediate sanctions, intended to be flexible and effective in enforcing state standards, include civil fines, receiverships, public disclosure, monitors. and suspension of admissions. As supplements to the more traditional remedy of license revocation, intermediate sanctions can enforce standards without closing facilities unnecessarily, thus avoiding trauma to the residents, aggravation of the shortage of nursing home beds, and lengthy administrative proceedings and litigation.

The study of nursing home regulation by the Institute of Medicine of the National Academy of Sciences offers a unique opportunity to evaluate the implementation of intermediate sanctions by the states over the past decade. Because of the high degree of similarity among the state statutes authorizing these sanctions, comparisons can be drawn.

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Article
Information
Law, Medicine and Healthcare , Volume 13 , Issue 4 , September 1985 , pp. 173 - 187
Copyright
Copyright © American Society of Law, Medicine and Ethics 1985

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References

As of 1980, nearly all states had revised their nursing home licensing statute to add intermediate sanctions. ABA Commission on Legal Problems of the Elderly Model Recommendations: Intermediate Sanctions for Enforcement of Quality Care in Nursing Homes (American Bar Assn. Washington, D.C.) (1981) at 3 [hereinafter referred to as Model Recommendations]. A thorough analysis of several inter mediate sanctions is presented in Butler, P.A., Nursing Home Quality of Care Enforcement, Part II—State Agency Enforcement Remedies, Clearinghouse Review 14(7): 665–701 (October 1980).Google Scholar
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Although many health planning agencies have concluded that there is no shortage of nursing home beds, a shortage still exists when supply is adjusted by level of care, source of pay and location. More importantly, state agencies enforcing nursing home standards believe there is a shortage in most states and adjust their enforcement techniques in light of the perceived shortage.Google Scholar
A substantial body of criticism directed at license revocation is concerned with delays in effectuating the revocation. Once a state administrative agency revokes the operating license of a facility, the facility has the opportunity to pursue administrative appeals and then seek judicial review. During this time, revocation is stayed and the facility continues to operate. A 1973 report by the California Deputy Attorney General indicates that license revocation in that state had been taking as long as five and seven years. Cohen, Long-Term Care: A Challenge to Concerted Legal Techniques, Ohio University Law Review 2; 642, 667 (1975). The Connecticut state agency has imposed the revocation sanction only once in the past four years. That process consumed two years. Institute of Medicine, Case Study of Connecticut (Draft) at p. 20.Google Scholar
The Institute of Medicine project staff conducted case studies of the implementation of intermediate sanctions in the states of California, Connecticut, Georgia, and Texas. It also conducted public hearings on nursing home regulation. The author personally interviewed state agency administrators from five additional states not covered by the case studies and reviewed previously published case studies and legislative reports of other states. Footnotes in this article refer to drafts of the Institute case studies; final versions were not available at the time of the research.Google Scholar
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Iowa, and Florida, , among other states, rely extensively on the informal conference for resolution of fines and actually do collect fines through them without recourse to the courts. California had developed a “traffic citation” method by which the facility can pay the minimum fine for the class of violation rather than contesting the violation and risking a higher fine. Cal. Health & Safety Code §1428(b)(1979). The constitutionality of this provision was aggressively litigated and has been upheld. Lackner v. Perkins, 154 Cal. Rptr. 138 (Cal. App. 1979). See also Lackner v. St. Joseph Convalescent Hosp., 165 Cal. Rptr. 198 (Cal. App. 1980): Myers v. Astoria Convalescent Hosp., 164 Cal. Rptr. 495 (Cal. App. 1980). In 1984, the California legislature repealed the “traffic citation” system. Cal. Health & Safety Code §1428 (Supp. 1985).Google Scholar
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