Medical decisionmaking for older adults in institutional settings: is beneficence dead in an age of risk management?

The regulation of institutional long-term care (referred to as nursing facilities, or NFs, in this article) in the United States today is extensive and complicated. Constant provider concern about legal survival and financial viability within this complex, omnipresent regulatory environment has led to what might be characterized as an "ethical lobotomizing"(1) of NF management, care staff, and governance personnel. That is, parties responsible for caring for NF residents, who generally are the oldest and most frail members of society, often are influenced in their daily decisions and actions far less by a thoughtful consideration of ethical principles and consequences than by calculations for avoiding regulatory and judicial sanctions. This article explores the tension within the NF context between ethical care, particularly care built on the precept of beneficence, or doing good, on one hand, and provider concentration on legal and financial risk management, on the other. Special attention is paid to the unintended consequences of regulation in this sphere, leading to formalism masking ethical neglect, as well as to the potential and actual roles of institutional ethics committees. A few modest possibilities for addressing the described tension effectively are suggested. The Regulatory Octopus The approximately fifteen thousand NFs in the United States currently are regulated from a variety of directions. This regulatory octopus is an understandable public reaction--albeit arguably an overreaction--to an industry that has been tarnished with scandals for much of its history.(2) The vast majority of NFs now participate in Medicare(3) and Medicaid(4) and therefore must comply with federal requirements contained in the Nursing Home Quality Reform Act, passed as part of the Omnibus Budget Reconciliation Act of 1987 (OBRA 87),(5) and in OBRA's implementing regulations(6) in order to be compensated for the care of residents financed by these two programs. Nationally, Medicaid alone paid more than $28 billion to NFs in 1991, making it by far the major third-party payment source for institutional long-term care services.(7) These requirements cover every aspect of administration, care, and quality of life within the institution, including (as will be discussed below) the rights of residents. In addition to federal requirements tied to funding, NFs are concurrently subject to licensure requirements imposed by each individual state. These mandates, especially regarding resident rights, often exceed those imposed on the federal level.(8) NFs are also heavily regulated under state and local fire(9) and building codes and similar business-related safety provisions. In their role as employer, NFs fall within state, federal, and local labor law and occupational health (e.g., precautions against exposure to blood-borne pathogens)(10) provisions. Private organizations, most notably the Joint Commission on Accreditation of Healthcare Organizations (JCAHO),(11) establish standards that NFs may voluntarily meet in order to obtain certification. The incentive to pursue such accreditation may intensify in the future if the federal government grants "deemed status" to private organizations for purposes of Medicare and Medicaid approval.(12) Long-term care providers must also be concerned about potential malpractice liability to residents or their representatives predicated on tort and breach of contract theories.(13) Personal injury lawsuits for civil damages brought against NFs have been relatively uncommon in the past, but providers are aware that this legal environment is changing as the plaintiffs' bar discovers this ripe area and courts show more willingness to award large noneconomic and punitive damages for patterns of abusive or neglectful treatment.(14) Provider anxiety about this regulatory atmosphere is exacerbated by the resident advocacy network that overlies the NF industry today. …