15 MARSHALL B. KAPP The law exerts a significant influence on the quality, accessibility, and affordability of long-term care (LTC) services that are, or that at some future time may be, needed by older Americans. The interaction between the legal system and the various participants involved in the provision and receipt of LTC—consumers, family members, providers, payers, regulators, and advocates—is complex and multifaceted. This chapter attempts to outline some of the most salient aspects of this interaction so as to equip the reader both to more fully and accurately appreciate the roles of the law and lawyers in shaping the LTC environment and to evaluate the actual impact of the legal system on those whom it seeks to benefit, empower, oversee, or punish. After completing this chapter, you should have an understanding of: • The roles of the law and lawyers in shaping the LTC environment • How to evaluate the practical impact of the legal system on the professional and personal lives of the various participants in the American LTC system • Ways to work within applicable legal parameters to improve the quality of care and quality of life for LTC consumers • How to reconcile effective legal risk management with ethically and clinically good LTC Long-term care (LTC) services are provided in a variety of settings, and consumers often move between settings within the LTC continuum as their needs change from time to time. A difficult set of clinical (transfer trauma) and accompanying legal issues may arise as a result of discharging, transferring, or relocating frail, debilitated older persons unnecessarily and/or without adequate preparation and precautions. This chapter concentrates largely on institutional settings, particularly nursing homes, and on consumer-driven home- and community-based long-term care (HCBLTC) options. However, other aspects of noninstitutional LTC also implicate a variety of important legal issues, most of which are not discussed in depth in this chapter. The law is composed of a number of distinct but interrelated components, each of which may be relevant to LTC. To begin, constitutional law emerges from the written documents that establish the foundational building blocks for the national government and the separate state and local governments. A constitution (including the ways in which the courts interpret and apply the meaning of its language) delineates the powers and constraints of a government vis-à-vis its own citizens. For instance, the Fifth and Fourteenth Amendments to the federal Constitution prohibit a state from depriving persons of life, liberty, or property without due process of law; thus, a state could not take over ownership and control of a nursing home or assisted living facility from private owners just because the state felt it could provide services to older consumers more efficiently than the private providers. Statutory or legislative law is comprised of acts passed by federal, state, and local legislatures functioning under authority conferred by the jurisdiction’s constitution. Of course, politics and pragmatic considerations strongly influence how elected legislators utilize their constitutional powers to legislate public policy. Pertinent state statutes would include, among others, those that require licenses to operate LTC facilities or agencies and that set standards for obtaining a required license. Local ordinances, such as those pertaining to fire safety in business establishments and dwellings, also are important in the LTC context. Legislatures frequently use legislation to delegate to administrative (regulatory) agencies that are part of the executive branch of government and have the power to fill in the vital, particular details necessary for the implementation and enforcement of a broad statutory objective. The laws spelling out those programmatic details (and their judicial interpretations) make up the category of administrative law—rules and regulations—and must be created (promulgated) according to the jurisdiction’s formal Administrative Procedure Act. Finally, common law consists of principles or doctrines enunciated by the courts, on a gradual case-by-case basis, to resolve specific controversies and guide future behavior in circumstances for which existing constitutional, statutory, or administrative law does not provide sufficiently clear direction. Current state doctrines pertaining to the professional liability (i.e., malpractice) of LTC providers, for example, derive chiefly from the common law. The common law may be either abrogated (overturned), reinforced, or modified by subsequent legislation or regulations. It is important to distinguish law from the related concepts of policy and ethics. In a public policy assessment, we are concerned with whether a possible government action is a good or bad idea and whether it is something in which society ought to engage. Is the proposed action the most efficient, effective, and fair way to achieve a legitimate social objective? Ethics presents normative questions about what should or should not be done from the standpoint of moral rightness and wrongness (see Chapter 14). By contrast, law is the civic instrument through which meaningful discussions about public policy and ethics can take place, and the results of that discussion can be carried out in a principled fashion. Looking in terms of setting boundaries or guideposts for the consideration of policy initiatives and ethical dilemmas, there are three basic issues the law is supposed to answer. First, what am I required to do; what are my positive or affirmative obligations? Second, even when there is no legal duty to act, what powers or authority do I have to act in a particular manner if I so choose; what am I allowed or permitted to do? Third, what limits or restraints does the law impose on my conduct; what things am I forbidden or prohibited from doing? Some matters of good public policy and ethical consensus are not embodied in the law. Conversely, legal provisions are not always consistent with wise social policy or the emerging or dominant ethical consensus of the moment. On the federal level, Congress’s authority to enact statutes (and therefore derivatively the power of federal administrative agencies to make rules) in areas related to LTC stems mainly from two sections in Article I of the United States Constitution. One provision empowers Congress to collect revenues through imposing taxes and to appropriate those revenues to promote the general welfare. The Medicare, Medicaid, and Social Security programs illustrate the federal government’s legislative authority in this regard. Under these programs, the federal government exercises the power of the purse to incentivize (in most cases, amounting practically to requiring) LTC providers who want public dollars to behave in a particular manner. Another section of Article I authorizes Congress to regulate interstate and foreign commerce. Statutes such as the Food, Drug, and Cosmetic Act (FDCA) and the Controlled Substances Act (CSA) rely on this authority to regulate which drugs a physician or other prescriber may prescribe for patients. On the state level, state legislatures and administrative agencies enact statutes and publish regulations primarily under their inherent police powers. The police power is a state’s innate authority to protect and promote the general health, safety, welfare, and morals of the population. The state police power is underscored by the Tenth Amendment of the U.S. Constitution, which provides: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people.” The exercise of state police power may take the form of either direct orders or prohibitions regarding specific provider conduct or financial incentives to encourage particular provider behaviors. Statutes and regulations pertaining to provider licensing, which are enacted to protect consumers from potential harm, are an example of the state police power in action. By contrast, the common law doctrine of parens patriae (literally, “father of the country”) is the state’s inherent authority to benevolently protect people who are so incapacitated that they cannot protect themselves sufficiently. Guardianship laws or civil commitment statutes based on mental illness and dangerousness to oneself would be examples of state action predicated on exercise of the parens patriae power. In terms of social function, the law serves several important purposes in the LTC realm. First, the law might try to prevent or mitigate certain potentially dangerous behavior. For instance, federal regulations pertaining to institutional review boards (IRBs) limit the power of families of persons with dementia to enroll these relatives in experimental biomedical or behavioral interventions if the anticipated risk-to-benefit ratio is ethically unacceptable. Moreover, law can be a tool for establishing and funding health and social programs. Medicare, Medicaid, and the Community Living Assistance Services and Supports (CLASS) program originally contained in the Patient Protection and Affordable Care Act of 2010 (as modified by the Health Care and Education Reconciliation Act) before it subsequently was repealed by Congress, and various state programs paying for particular forms of LTC for eligible individuals are examples of law in this category. Third, law is a tool for controlling the production and distribution of specific kinds of resources. Licensing statutes for professionals and businesses, as well as legislation creating and financing particular professional education programs (such as government-assisted scholarships for training certified nursing assistants [CNAs]), exemplify this role. Many states still have certificate of need (CON) statutes in effect, which require applicants to demonstrate an adequate public need for a particular health service, such as a nursing home, before that service could be created or expanded in the proposed place. Fourth, laws attempt to make certain that the services received by consumers satisfy minimum quality standards. Quality control is the major justification for statutes and regulations governing the licensure and certification of LTC providers. In developing quality-control requirements, legislators and regulators frequently interact with consumer advocacy organizations, the plaintiffs’ personal injury bar (who justify the malpractice litigation system, in part, as one more form of quality-control regulation), and representatives of the different LTC industry sectors. Federal and state enforcement agencies also frequently work with these groups to try to maximize the effectiveness of the legal requirements adopted. Finally, law can be a tool for creating and enforcing individual rights. Legal rights fall into two basic categories. Liberties, or negative rights, act as a person’s armor against unwanted intrusions initiated by others. For example, an LTC consumer has the right (under the legal doctrine of informed consent, which protects one’s autonomy and physical integrity) to refuse unwanted medical interventions. On the other hand, entitlement or positive rights empower a person to claim some affirmative good from someone else. Medicare, Medicaid, and Social Security create positive benefits for older persons that often come into play in the LTC context. Another pertinent example of law creating a positive right is the requirement in the Americans with Disabilities Act (ADA) that employers and businesses make “reasonable accommodations” in order to employ or serve disabled individuals. Regarding all of the foregoing social roles, the law serves to reflect, promote, and help shape public norms or values. The law reflects and embodies prevailing social attitudes by codifying or enshrining them with formal, official status; we regulate the quality of LTC because society believes, as a moral matter, that consumers should receive LTC of high quality. The law promotes social values by enforcing its requirements and prohibitions, including through the use of governmental force if necessary; an LTC provider that violates the law may have its license revoked or suspended. The law helps to shape social values by acting as a forceful educator; the use of physical and chemical restraints in nursing homes has been greatly reduced over the past two decades largely because implementation of the law demanding a reduction in restraint use educated society that such reduction could be accomplished safely (see Case Study 15.1). Case Study 15.1: Mr. Feldman—to Restrain or Not to Restrain? Mr. Feldman, an 80-year-old wheelchair-bound man, is a resident in a nursing home. He has fallen several times in the past and is currently deemed to be at high risk of falling and suffering significant injury. The facility, with the family’s reluctant agreement, has implemented different types of physical restraints, including lap belts and a tray attached to Mr. Feldman’s wheelchair, and has positioned Mr. Feldman in the common area where he is more visible to staff. Mr. Feldman is extremely resistant to these interventions and gets very agitated. He just wants to be left alone in his room to look at magazines or watch television. He is moderately to severely demented. If permitted to do so, he is likely to get out of the wheelchair and fall again. The medical director and nursing staff perceive Mr. Feldman will probably suffer physical injury if not restrained or serious emotional injury if he is restrained. 1. How should the facility and its staff handle this situation? 2. With each of the potential courses of action, what are the possible risks regarding civil liability, regulatory sanctions for violating the resident’s rights, and sanctions for violating regulatory provisions regarding accident prevention? 3. Is it realistically feasible for the facility to successfully balance protecting Mr. Feldman’s right to make choices and the facility’s responsibility regarding resident safety? 4. In a case like this, is the best risk-management strategy also the best ethical solution? The best clinical solution?
Long-Term Care and the Law
CHAPTER OVERVIEW
LEARNING OBJECTIVES
INTRODUCTION
DEFINITIONS
LAW, POLICY, AND ETHICS
SOURCES AND FUNCTIONS OF LEGAL AUTHORITY
SOCIAL FUNCTIONS OF THE LAW
Case Study Discussion Questions:
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