The Intersection of Regulation, Quality Care Delivery, and Ethics and Compliance: Look Carefully Before Crossing!

Quality and compliant care delivery in nursing homes remains elusive. Four main interests are currently misaligned, thereby putting nursing home residents at risk of harm. Without a clearly defined commitment to quality and compliant care and alignment of these interests, nursing home residents will remain vulnerable to severe harm. The first key interest concerns nursing home ownership and management. Currently, over seventy percent of nursing homes are owned by for-profit entities. Previous ownership models, including non-profit, religious-based, and county-owned facilities, have largely closed or transitioned to for-profit entities. The shift in ownership significantly impacts quality and compliant care delivery. Unfortunately, the consolidation of ownership has not led to improvements in care quality. The next interest relates to the regulatory system governing nursing homes. This paper will briefly review the history of regulation and enforcement activity (or lack thereof), its effectiveness in terms of focus and uniformity, and its impact on quality and compliant care delivery and resident protection. While increased regulation is a common response to complaints about quality, improvements in care delivery are rarely driven solely by regulation. The inspection process is highly subjective and often overlooks major health and safety issues, significantly affecting residents’ quality of care and life. The third main interest is the nursing home’s operations, particularly in terms of staffing. This includes the numbers of nursing employees, their education, competencies, recruitment, and turnover. Multiple studies have demonstrated the relationship between quality of care and the sufficiency of nursing staff. A lack of a sufficient number of competent staff in nursing homes has been shown to increase the risk of harm, including falls, pressure injuries, elopements, medication errors, and other serious adverse outcomes. The fourth key interest concerns nursing home residents and their families. As individuals transition from a home or hospital setting, they and their families often have reasonable expectations regarding care delivery but lack the knowledge or power to select a quality facility. Hospital discharge planners are often unfamiliar with the recommended nursing home, placing uninformed consumers at risk. The incentive to discharge hospitalized patients “sicker and quicker” forces families to accept a transfer to the first available bed. Although it would be highly beneficial for consumers to be knowledgeable regarding the continuum of older adult services (adult day care, Home and Community-Based Services through the Area Agency on Aging, home health care, and hospice), many are unaware of these alternatives to skilled nursing facility (SNF) placement. Planning for the future, including having knowledge of area SNFs, is often neglected until a healthcare crisis arises, requiring hospitalization and post-acute admission. Additionally, the Medicare.gov website, designed to improve consumer behavior through the “Five Star” rating process, remains underutilized by older adults and their families. This paper proposes changes to the regulatory system, emphasizing important systemic issues that identify care failures. It will suggest enhanced protocols for consumer education and discuss how effective ethics and compliance programs can improve staff performance, increase resident safety, and enhance quality care delivery. The paper will use case examples focusing on pressure injuries as a mechanism to identify and remediate care delivery failures from both an internal and external quality assurance and performance improvement perspective

Between Private Equity and Housing Discrimination: The Long-Term Crisis in St. Louis and Beyond

On December 15, 2023, Northview Village, the largest skilled nursing facility in the Saint Louis region, closed abruptly, leading to the nighttime discharge of 170 residents. This emergency, while unique to that facility, is indicative of a broader crisis in both local and, to a significant extent, national nursing homes. This crisis has partly been catalyzed by the COVID-19 pandemic, but it rests on underlying factors that are unfortunately integral to the financing and operation of long-term care. This article will argue that understanding it requires situating long-term care at the intersection of two broader historical processes: the rise of private equity and the persistence of anti-Black housing discrimination. It will conclude by suggesting some strategies to address these trends in a way that might improve the situations of long-term care residents. Of particular importance is the need to include Black long-term care residents in future discussions of reparations for housing discrimination in St. Louis and elsewhere

The Wages of Constitutional Interpretation

The future of constitutional interpretation is a dynamic amalgam of knowns and unknowns. This article explores three. First, an unknown known: the Court’s embrace of formal equality methodologies, more than originalist methodologies, is driving current conservative changes in constitutional law and ushering in a stale and acontextual bent to constitutional rights. Second, another unknown known: both the Court’s equality and originalist methodologies serve to jettison the longstanding and widespread use of intermediate scrutiny and thereby push the level of protection for rights to the extremes. Finally, a known unknown: the Court’s embrace of hyper-formal equality and originalist rules transfers hegemonic power over constitutional interpretation to the judiciary at great risk. Given that the Court’s power over constitutional interpretation derives from its popular legitimacy, methods of constitutional interpretation that are divorced from popular input and consequences jeopardize the very power of judicial review

WHAT’S PAST IS PROLOGUE: THE EFFECTS OF SHELBY COUNTY V. HOLDER IN GEORGIA

The Supreme Court’s decision in Shelby County v. Holder, which struck down Section 4 and, by extension, Section 5 of the Voting Rights Act, created a clear path for discriminatory voting laws to take hold. This article explores how the Supreme Court decision paved the way for second-generation barriers to voting, which legally diminish the influence of minority voters and in some cases, effectively block their participation altogether. It also examines Georgia’s role as a key state advancing these second-generation barriers to voting, alongside proposed legislation aimed at preventing these discriminatory practices before they can impact voters.https://scholarship.law.slu.edu/lawjournalonline/1129/thumbnail.jp

Foreword

This volume of the Saint Louis University Law Journal contains a number of terrific articles by participants in the 2024 symposium cosponsored by the Journal and the William C. Wefel Center for Employment Law at Saint Louis University. The topic, Revisiting Religion in the Struggle for Workplace Justice, grew, in part, out of twin, somewhat dialectic motivations of mine: frustration and hope. My own research over the last several years has been focused on ways that people are marginalized because of their sex, gender, and sexuality, particularly through growing claims that religion requires the ability to exclude, to contribute to marginalization

The Layered Harms of Nursing Home Segregation

This Essay explores several dimensions of how segregation, separation, and shielding from view permit and contribute to the ethically problematic state of nursing home care in the United States. A quarter of a century ago, the Supreme Court recognized in the Olmstead decision that institutional care can function to segregate disabled people (whether young or old) from the richness of community life. Research over the past few decades confirms that racial segregation exists within the nursing home industry, and during the COVID-19 pandemic, the correlations between nursing homes’ racial makeup and their level of COVID fatalities were shocking. On another level, separating nursing home residents and those charged with caring for them from the community view increases opportunities for undetected neglect or abuse of residents. At the same time, that separation permits those living in the community to easily avert our attention from those harms. Concerns about abuse and neglect become more pointed when pressures from investors threaten to overwhelm a commitment to maximizing resident welfare, a phenomenon highlighted by researchers studying private equity ownership of nursing homes. Here, the hidden and opaque nature of ownership structures hinders attempts to regulate to improve the safety and quality of care. All these dimensions of segregation, separation, and shielding from view are particularly troubling considering the government’s dominant role in paying for nursing home care in the United States

Chemerinsky’s Lament: Insurrection, Secession, and the End of American Democracy

In his latest book, No Democracy Lasts Forever, Erwin Chemerinsky laments the decline of democracy in America. Citing problems like the Electoral College, the Senate, and partisan gerrymandering, Chemerinsky posits that the United States Constitution itself is to blame. If we do not amend it in radical ways, he argues, then America is likely to break apart as prosperous, populous states like California no longer find it in their interest to preserve the union. Though riveting, Chemerinsky’s account fails to acknowledge that the Constitution’s undemocratic features have long served to preserve the union, and may well continue to do so in the future

The Court’s Haphazard Reasoning on the Separation of Powers

The Supreme Court in recent years has taken a sharp and decisive turn toward originalism in cases touching on individual rights. Say what you will about the Court’s originalism in individual-rights cases (and there’s much to say), at least it’s an approach. We can’t even say that much about the Court’s treatment of cases touching on the separation of powers. In short, the Court’s separation-of-powers opinions are a mess. They lack any consistent methodology or any coherent theory across cases. If five or six justices agree on the result in any given case, it seems, the explanation and reasoning are just back-fill. This is no way to establish new doctrines that effect seismic shifts in the separation of powers, as the Court has done in recent Terms. This essay first explores three pathbreaking cases from recent Terms that forge new separation-of-powers doctrines. I argue that the Court’s methodology in these cases is incomplete, inconsistent, and incoherent. The essay next offers some preliminary thoughts about how the Court might adopt a better framework for assessing separation-of-powers cases. I argue that the Court should consider well-recognized tools for constitutional interpretation and construction, and certain time-tested separation-of-powers principles and values. This approach could change the bottom-line result in some cases. More importantly, this approach would enhance the Court’s reasoning, and thereby enhance its legitimacy and the legitimacy of our government institutions