Nursing Home Culture Change: Legal Apprehensions and Opportunities

Marshall B. Kapp, J.D., M.P.H
Director, Florida State University Center for Innovative Collaboration in Medicine and Law

Despite significant improvements over the past quarter century, problems persist in nursing home quality of care and quality of life in nursing homes. They persist despite an atmosphere of extensive regulation and litigation. The Culture Change Movement is an attempt to improve quality of life by making nursing homes less institutional and more homelike. The movement officially originated in 1997, has been spearheaded by the Pioneer Network, and is currently embodied in such projects as the Eden Alternative, Wellspring Program, Green House Project, and Advancing Excellence in America’s Nursing Homes campaign.

One example of a Culture Change initiative was the August 2011 publication of “New Dining Practice Standards” written by the Pioneer Network and the Food and Dining Clinical Standards Task Force, with its emphasis on individualized diets. Building on that effort and broadening it, the Rothschild Person-Centered Care Planning Task Force published “A Process for Care Planning for Resident Choice” in February 2015.

An area of interest for me is the extent to which legal apprehensions held by nursing home providers serve as an impediment to changes in facility practices that could promote Culture Change. Many providers are concerned that resident choices regarding their daily lives may be inconsistent with professional custom and/or recommendations, and therefore respecting those choices may expose the provider to adverse legal consequences in the event of bad health outcomes. Providers also are concerned that current regulations, by focusing sharply on medical outcomes, may be inconsistent with a forceful enhancement of quality of life for residents. Because health care providers on the whole generally have low to no tolerance when they perceive their own legal risks, it is important to study the extent (if any) that perceived defensive, risk management-oriented behavior drives out positive, resident autonomy-enhancing opportunities.

What might be done to ameliorate some of the provider anxiety about regulatory repercussions that effectively stand in the way of more vigorous commitment to Culture Change? For one thing, we must emphasize the consistency between person-centered care and resident rights regulations. Additionally, we should amend applicable regulations and subregulations (such as Guidances, Opinions, and Advisory Letters), for example, incorporating by reference New Dining Practice Standards into the Centers for Medicare/Medicaid Services (CMS) Long-Term Care Interpretive Guidelines for surveyors. We need to closely examine proposed federal Medicare/Medicaid Conditions of Participation now under consideration for their compatibility or incompatibility with the Culture Change philosophy and practice. We should endeavor to make the Medicare/Medicaid Survey & Certification process more transparent and consistent, less punitive (“Gotcha”), and more collaborative with good facilities honestly working to improve resident quality of life. Providers need to engage in proactive communication and collaboration with resident advocacy groups and ombudsmen.

Valuable strides have been made in making nursing homes better places to live, but much more remains to be accomplished. Research and education regarding the interplay of law and practice will be an essential part of this effort.