Nursing Home Culture Change:
Legal Apprehensions and
Opportunities
Marshall B. Kapp, JD,MPH
Florida State University Center for Innovative
Collaboration in Medicine and Law
Marshall.kapp@med.fsu.edu
Acknowledgment
Melissa Villalta, Undergraduate
Research Opportunity Program
(UROP) student
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The Culture Change
Movement in Nursing Homes
 Persisting problems in NH quality of care
and quality of life, despite extensive
regulation and litigation
– http://www.nursinghome411.org/articles/?cat
egory=lawgovernment
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 Culture Change Movement is an attempt
to improve quality of life by making
facilities less institutional, more homelike
– Originated 1997
– Pioneer Network
– E.g., Eden Alternative, Wellspring Program,
Green House Project, Advancing Excellence in
America’s NHs Campaign
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Premises
– Person-centered care
– “deinstitutionalizing services and
individualizing care”
– Resident dignity and freedom
– Collaborative decision making
– Resident and staff empowerment
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Example 1: New Dietary Standards
NH must “provide each resident with
a nourishing, palatable, wellbalanced diet that meets the daily
nutritional and special dietary needs
of each resident”—42 CFR §483.35,
surveyed via “Dining Area and
Eating Assistance Observation”
worksheet (Form CMS-523), 42 CFR
§488.110
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 2010-11 initiative of the Pioneer Network and
Food and Dining Clinical Standards Task Force
published “New Dining Practice Standards” (Aug.
2011),
http://pioneernetwork.net/Data/Documents/NewDiningPracticeStandards
.pdf
– Emphasis: Individualized diets
– Marshall B. Kapp, “Nursing Home Culture Change: Legal
Apprehensions and Opportunities,” Vol. 53, No. 5, pp. 718-726, THE
GERONTOLOGIST (2013); doi: 10.1093/geront/gns131, reprinted in
Chapter 10 of Judah L. Ronch & Audrey S. Weiner, CULTURE CHANGE IN
ELDER CARE, Health Professions Press , Baltimore, MD (2013).
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Example 2
Rothschild Person-Centered Care
Planning Task Force, A Process for
Care Planning for Resident Choice
(Feb. 2015) (prepared by M. Calkins, K.
Schoeneman, J. Brush, & R. Mayer)
– Hulda B. and Maurice L. Rothschild Foundation funded
– http://ideasinstitute.org/PDFs/Process_for_Care_Planni
ng_for_Residnet_Choice.pdf
– Disclosure: MBK was Task Force member
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Rothschild Person-Centered
Care Planning Process
 Identifying and clarifying the resident’s choice
 Discussing the choice and options with the
resident
 Determining how to honor the choice (and which
choices are not possible to honor)
 Communicating the choice through the care plan
 Monitoring and making revisions to the care plan
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Legal Apprehensions as
Impediment
Resident choices may be
inconsistent with professional
custom and/or recommendations
Health care providers have low/no
tolerance for risk
Perceived RM drives out everything
else
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Regulatory climate
– Nursing Home Quality Reform Act
(OBRA 1987), 42 U.S.C. § 1396r,
implementing regs at 42 CFR chap. IV,
subchap. C, Part 483, set
Medicare/Medicaid Conditions of
Participation.
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 Orientation toward medical outcomes,
not quality of life: NHs “must provide
services and activities to attain or
maintain the highest practicable
physical, mental, and social well-being
of each resident…”
 “Best interests” may be defined
differently by the person and the
professional.
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Other regulatory components:
– HIPAA
– OSHA
– State licensure requirements
– Private accreditation (e.g., Joint
Commission)
– False Claims Act
– State abuse and neglect prosecutions
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Malpractice litigation and liability
– Negligence actions brought by or on
behalf (families) of residents with bad
outcomes (e.g., stroke/high blood
pressure/deviation from low sodium
diet; choking on steak that resident
requested)
– Breach of contract and fraud actions re
marketing claims
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Responding to Regulatory and
Liability Apprehensions
 Education of NH providers, attys, and
courts about Autonomy and RM
–
–
–
–
Informed consent
Documentation of processes and rationales
Assumption of risk
Negotiating alternatives/Mitigating risks
 Education about evidence-based Clinical
Practice Guidelines, illustrated by “New
Dining Practice Standards”
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Ameliorating Anxiety About
Regulatory Sanctions
– Emphasizing consistency between personcentered care and resident rights regulations
– Amending applicable regulations and subregulations, e.g., incorporating by reference
New Dining Practices Standards in CMS LTC
interpretive guidelines for surveyors
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– Need to closely examine proposed new
federal rules,
https://www.federalregister.gov/article
s/2015/07/16/2015-17207/medicareand-medicaid-programs-reform-ofrequirements-for-long-term-carefacilities
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– Interpretation and Enforcement of Regs
 Current survey & certification process is often
inconsistent and not transparent.
 CMS Quality Indicator Survey (QIS) (2011), 42 CFR
§ 488.110, process
 Education of state surveyors to be less punitive
(“gotcha”), more collaborative (e.g., R.I.
Individualized Care Pilot Project, CMS video training
module on New Dining Practice Standards,
advocates working with Medicare Quality
Improvement Organizations)
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Proactive communication and collaboration
with resident advocacy groups and
ombudsmen
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When the Resident’s Choice
Should Not Be Honored
Process for determining and
documenting:
– Incapacity to decide/Necessity for
surrogate decision making
– When the safety of others justifies not
honoring the resident’s choice
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Opportunities for Interdisciplinary
Research (Law and Health Services)
 What resident choices and alternatives present
what actual risks?
– To the resident
– To others
 Best practices for informing and negotiating with
residents and families about choices and risks?
– Effectiveness
– Costs
 Actual legal risks associated with specific
scenarios?
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Opportunities for Teaching Law and
Health Professions Students
 Identifying specific, not free-floating, risks
 Putting risks into realistic and relative
perspective
 Connection between regulatory and c.l.
requirements and enforcement
 Looking at the legal environment as a whole
 Role as creative enabler among multiple parties,
not roadblock
 Reconciling good clinical and ethical care with
effective risk management
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