Who's Really Causing Harm in LTC?

Part Thirteen of a Series on the Survey Process

by Steven Levenson, MD, CMD

To date, this series has considered the principal causes of some of the ongoing inadequacies in long-term care. This month's column covers a number of other less obvious contributors who either exploit or exacerbate these problems. Their actions often influence laws and regulations that perpetuate, but don't fix, nursing home care problems.

Politics & Accountability: Driving Forces

It is said that the road to hell is paved with good intentions. If so, then, unfortunately, long-term care provides a lot of the paving material.

Nursing home care has attracted considerable attention from concerned individuals, organizations, and public and private agencies. Numerous commissions and task forces have published investigative reports. Influential advocacy groups have intensely lobbied Congress and state legislatures to "do something" about poor nursing home care.

But good intentions can lead to poor public policy. Knowing that there's a problem and wanting to fix it does not mean knowing how to identify the causes or the solutions. Much of the public debate about the nursing home "problem" has come under the sway of those who promote an erroneous "conventional wisdom."

Diverse external forces influence long-term care (see box, right). They range from the genuinely concerned and knowledgeable to those who simply exploit a bad situation for their own gain.

Legislative & Regulatory Forces

Public accountability with respect to the provision of nursing home care is essential, both because of LTC practitioners' duty to the frail elderly and because considerable public money is spent on long-term care. However, efforts at accountability--including many laws and regulations that are necessary and pertinent--have failed to significantly improve long-term care beyond a point.

In the 1980s, Congress responded to well-founded concerns about nursing home care with the landmark OBRA '87 legislation. But they only did a partial job. Although the law was well-intended, it contained serious misconceptions and defects that have heavily influenced the ensuing regulations (see Caring Survey series articles August 2001 through May 2002). When the anticipated improvement didn't follow, Congress demanded additional adjustments of the existing regulations. Not surprisingly, those haven't helped appreciably, either.

Even members of Congress have noted how federal legislation often complicates issues by replacing one overblown reaction with its opposite. "We just keep shooting ourselves in the foot...what's amazing is how quickly we reload ("Feuding Politicians often Bring Haste and Waste to Legislation"; Baltimore Sun, May 14, 2000).

An example is the obsession of some state and federal legislators with psychoactive medications and "chemical restraints." Indeed, adverse drug reactions--including those that affect the central nervous system--are still a huge problem. But the issue of problematic behavior and its treatment continues to be misunderstood both inside and outside of nursing homes.

Another example of conventional wisdom is the current preoccupation with "outcome measures" and nursing home "report cards." While politically popular, such measurements fail to recognize the underlying issues and are unlikely to result in definitive changes where needed (see "Making (Up) the Grade: What You Need to Know About Nursing Home 'Report Cards'," in the August 2002 issue of Caring, p. 3).

State legislatures have also tried to address the nursing home situation. Some state laws are pertinent to root causes of problems, while others are problematic, if not damaging. Legislation often stems from testimony and task-force reports encumbered by recommendations from those who don't understand the root causes of or solutions for long-term care problems.

For example, a Maryland law requiring nursing homes to have substantive quality assurance programs has helped identify and address serious weaknesses in nursing home quality-assurance programs. But unhelpful laws are exemplified by a Delaware restriction on letting nursing homes obtain advance directives without using ombudsmen as intermediaries, and a recent Texas law requiring nursing homes to get permission before administering any psychoactive medications.

Mass Media

The mass media both influence and are influenced by public policy and opinion. In the case of nursing homes, the media often do little to clarify the issues and much to perpetuate stereotypes. Articles and programs about nursing homes almost always fall into several familiar categories. Most reports are negative, publicizing studies that allege poor care, facilities that lose their licenses, cases of resident abuse, and so on (US News and World Report, May 21, 2001, p. 56-61).

Positive stories about nursing homes are almost always limited to "human interest" situations such as a resident celebrating a hundredth birthday or facilities that incorporate pets or young children into resident activities.

The media do little to help the public and policy makers understand the extraordinary care provided by competent nursing homes, or the breadth, scope, and importance of post-acute and long-term care (Levenson SA. Subacute and Transitional Care Handbook. St. Louis, MO: Beverly-Cracom, 1996). They often don't promote a balanced perspective of long-term care, discuss the root causes of nursing home problems, identify problematic external influences on care, or clarify the considerable technical challenges involved in making diagnoses and addressing symptoms in frail elderly patients and the intricacies of making ethics decisions. Instead, they tend to focus on laws and regulations that punish offenders and may limit coverage of the shortcomings of the current legal and regulatory approaches.

Advocates

For three decades, nursing home patient advocates have wielded major influence on public efforts to improve nursing home care. They were primarily responsible for pressuring Congress to pass the laws authorizing the OBRA '87 regulations. Through national and state associations and ombudsmen agencies, they continue to wield major influence.

Yet, like other interest groups, their apparent desire to do good does not always yield positive results. Frustrated by the intransigence of much of the nursing home industry, advocates often promote punitive legislative and regulatory responses. But their efforts have largely failed to improve care beyond a point because they cast an inappropriately wide and indiscriminate net. Although some advocates promote balanced expectations and fair-minded assessments of complaints against nursing homes, others may draw unwarranted conclusions based on "conventional wisdom" and habit.

"Interest Groups"

A vast array of interest groups influences US politics and culture, and the resultant legislation and regulation. In health care, some groups clearly have the best interests of care recipients at heart. Others, however, may be looking to advance their own interests or to escape accountability for their own shortcomings.

Academicians Academicians in the health care professions have profoundly influenced nursing home laws and regulations. They often publish studies that are critical of nursing home care and practitioners. They have played a major role in advising Congress, state legislatures, and various task forces and committees. They helped produce much of the content of the OBRA '87 regulations and subsequent protocols and guidelines.

But they, too, have often failed to fix the problems of nursing home care. They may identify care issues, but not the root causes. Academicians may also have biases about problem solving, and may at times place undue emphasis on the importance of research, education, and training.

Many academicians don't have substantial first-hand knowledge of long-term care and practices. And, because they may lack the context of management and systems causes of care failures, their analyses and proposals to legislatures, task forces, and regulatory agencies may be misleading.

In addition, medical and nursing schools, and postgraduate training programs, don't always train health care professionals to understand and function adequately in long-term and post-acute care. More emphasis should be placed on the critical role of primary care doctors and nurses in providing such care, and on the management skills needed to perform vital roles such as charge nurses, directors of nursing, and medical directors.

Physicians & Hospitals Of all the groups and organizations that relate to nursing homes, hospitals and physicians probably have the most bizarre and unbalanced relationships. Both groups complain about the perceived shortcomings of nursing home care and, through their respective associations, often indirectly influence long-term care policy by deflecting public criticism onto nursing homes.

Some hospital staff provide competent care to frail elderly and chronically ill patients. But others create or exacerbate the complications and care problems that afflict nursing home patients.

For example, it is not uncommon for a nursing home patient hospitalized for an acute illness to return to the nursing home with diarrhea from antibiotics, fluid and electrolyte imbalance, weight loss, skin breakdown, and increasing confusion from inappropriate use of catheters, psychoactive medications, and restraints while hospitalized. Hospital staff and physicians may not accept responsibility for preventing, detecting, or correcting these problems.

After a patient is discharged to post-acute care, nursing home staff may be blamed for not correcting these serious complications. This may contribute to their negative outcomes and bad survey results.

The bottom line is that although some physicians try to provide and ensure adequate geriatric care, others behave and practice inappropriately and refuse meaningful correction (J Am Med Dir Assoc 2002;3:79-94).

Plaintiffs' Lawyers The success of plaintiffs' lawyers in suing nursing homes reflects failures of public policy and self-policing, as well as a lack of clear care standards, performance expectations, and tight accountability. The resultant litigation has seriously disrupted the ability of nursing home staff to render care in some states, and increased practitioner liability. It also adversely influences the public policy arena, resulting in halfway efforts such as trading tort reform for more regulations.

Unfortunately, however, some nursing homes provide ammunition for litigation because they are disorganized and provide poor quality care. Efforts to correct such problems through tort reform alone touch the symptoms, but not the root causes. The nursing home industry should voluntarily adopt and promote clear evidence-based standards for care and enforce widespread accountability from its staff, practitioners, owners, and management.

While claiming to protect victims, some lawyers may be acting more in their own interests--i.e., litigating nursing homes as a potential lucrative income source. Success in such cases depends largely on the negative public view of nursing home care and unrealistic expectations for outcomes. For example, successful litigation pertaining to pressure ulcer occurrence may rely on ignoring evidence that pressure ulcers often result from risk factors that may not be controllable despite good care. More evidence-based legal standards of evidence and proof for nursing home litigation would help.

Time to Refocus on the Primary Agenda

The original purpose of nursing home laws and regulations has gotten lost in the shuffle of competing agendas by diverse stakeholders. It is time to push these extraneous agendas to the background.

As has been frequently noted in this series, nursing home care does need improvement. But such care is not nearly as uniformly bad as many people believe it to be.

There are important psychological reasons for having a more balanced view. Most of all, a more balanced perspective is essential to bringing about real reform. We must find and fix real problems rather than manufacturing unsubstantiated ones.

Society has faltered badly in promoting broadly adequate care for the frail elderly and achieving widespread accountability. Passing more laws and writing more regulations or bashing nursing homes more in the media won't fix the problem. Will we start paving the road to definitive solutions or continue to pave the road to hell?

Dr. Levenson is a Multi-Facility Medical Director in Baltimore and Chair of Caring's Editorial Board.

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