Legal anxieties and end-of-life care in nursing homes

Many persons spend their final days as nursing home residents. It has been suggested that one set of factors powerfully and unfavorably influencing the quality of end-of-life (EOL) care provided in American nursing homes involves the anxieties that nursing home providers experience regarding potential negative legal entanglements and repercussions associated with the provision of EOL care to their residents. This article critically examines the hypothesis that the quality of EOL medical care provided in nursing homes often is skewed in a perverse way because providers are driven unduly by legal apprehensions. The author offers practice and policy recommendations for trying to resolve or mitigate the tension present between legally defensive practice (real or perceived) by nursing homes, on one hand, and ethically optimal EOL care, on the other.     

Case mix reimbursement for nursing homes

Nursing home care is growing in importance as the population ages and as Medicare's prospective payment system encourages earlier discharges from acute care settings to nursing homes. Nursing home reimbursement policy is primarily a Medicaid issue, since Medicaid pays for about half the nation's nursing home care. The research reviewed in this article suggests a strong association between case mix and cost, and a weaker but still positive association between quality and cost. The research also implies that traditional nursing home reimbursement methodologies may impede access and may lower quality for Medicaid (and Medicare) recipients. To offset these problems, several states have recently begun to incorporate case mix directly into the reimbursement process. These systems deserve careful policy consideration.     

Promoting the quality of life in nursing homes: can regulation succeed?

It has been assumed that the best policy for promoting quality of life in nursing homes is direct regulation. In this paper it is argued that if our experience in regulating quality of care is any indication, we may not possess the political will to successfully regulate quality of life. Moreover, from a legal perspective, the less concrete nature of the concept of quality of life may make it more difficult to regulate than quality of care. Finally, although regulation would probably be necessary if potential nursing home residents (and their agents) lacked the information or rationality to make choices that promoted their interests, this has never been shown to be the case empirically. Therefore, we may not be forced to choose regulation to achieve an adequate quality of life. Alternative--and perhaps better--policies may be available.     

The legal risks of quality assurance in Australian public hospitals

Quality assurance techniques aim to measure and uphold the quality of patient care. Tools have been developed that investigate bad outcomes, and identify system errors that may lead to bad outcomes. Hospital administrators are motivated to use these tools, but worry that quality assurance may itself cause legal risks to a hospital. For example, if a hospital finds and documents substandard care, a patient who has suffered a bad outcome might discover this and try to use it in litigation against the hospital. This article examines the legal doctrine behind document discovery, freedom of information, legal professional privilege, medical professional privilege, qualified privilege and defamation, to explore how patients and their relatives may, first, come across and obtain quality assurance findings, and second, use them in legal action. With this knowledge, public hospital administrators might then be able to engage in quality assurance without unduly causing legal risk for their hospital.     

Structural and operational factors affecting quality of patient care in nursing homes

This article inquires into structural and operational characteristics of nursing homes that have predictive power for the quality of direct patient care provided to their residents. Data are from nursing homes in the Phoenix, Arizona, metropolitan area. The data were analyzed using multivariate linear regression. Findings of policy interest are that, other things equal: (1) for-profit facilities provide lower levels of care than do nonprofit facilities; and (2) distantly headquartered chain operations provide lower care levels than locally owned facilities. These factors should be considered in long-term care planning and regulation.     

Is a public reporting approach appropriate for nursing home care?

Publicizing quality information has been used as a quality improvement strategy in the acute care sector for more than a decade. Despite research showing mixed results of these efforts, publicly reporting quality measures is currently being pursued as a quality improvement strategy for nursing homes. Designed to empower consumers to make informed choices and to stimulate provider competition on quality, nursing home public reporting began in 1998 with the Nursing Home Compare Web site and has received greater emphasis in the 2002 Nursing Home Quality Initiative, both directed by the federal government. Focusing on the response of three key stakeholder groups across settings of care-consumers, providers, and purchasers-I identify several challenges that nursing home reporting must overcome to be successful. I conclude that publicly reporting quality measures for nursing homes will have a harder time promoting quality improvement than for acute care settings, where results have been disappointing thus far. In addition to the conceptual analysis, I evaluate whether the quality information reported on Nursing Home Compare had any impact on nursing home occupancy rates following its release. Using a pre/post-release design, I find that the effect of public reporting on nursing home occupancy rates has been minimal thus far. Although some estimates of effect are statistically significant and in the hypothesized direction, they all suggest very small effect sizes. It is unclear whether the absence of a larger reporting effect to date is specific to Nursing Home Compare or whether it inheres to the broader task of using quality information to promote change in the nursing home care sector.     

Elder abuse detection in nursing facilities: using paid clinical competence to address the nation's shame

Each year, five million senior citizens are the victims of abuse in our country-and that figure is a likely underestimate. In California alone, it is estimated that over 225,000 seniors are abused annually. Nursing home residents are particularly vulnerable to abuse, with one-fifth to one-third of these institutions cited for abusive activities that result in actual harm. Regular violations of minimum care regulations by nursing homes have been documented in every state. Despite legal protections, as a practical matter, the review, assessment, and investigation of nursing home care and potential senior abuse is the primary responsibility of voluntary ombudsmen. These volunteers are responsible for regular visits and determination of nursing home quality and resident treatment. This Article contends that, despite their commitment to the cause, voluntary ombudsmen are not a sufficient cure for the scourge of elder abuse. Rather, clinically-trained personnel with legal knowledge must assume the role that lay volunteer ombudsmen are inappropriately expected to play. Use of clinical case managers, who have expertise in assessing clinical factors and can be trained in legal matters, offers significant potential to assist in the detection, and, further, reporting and prosecution of elder abuse. The author concludes that only through use of those with appropriate training and knowledge can the epidemic of elder abuse be effectively addressed.     

诉讼欺诈的侵权责任

诉讼欺诈的侵权责任问题已引起学界的关注,研究的焦点在于诉讼欺诈的界定以及侵权责任的法律构成等问题。诉讼欺诈的侵权责任在构成上的独特性为,行为人通过取得法院的生效判决书或调解书,侵害案外第三人的合法权利。为规制诉讼欺诈行为,在立法上应赋予案外第三人一种申请撤销已生效判决书或调解书的权利。     

我国行政诉讼诉判关系的新认识

行政诉判关系就是行政诉请与判决的关系,属于研究诉请与判决之间关系的客观规律范畴。一般观点认为,行政诉讼与民事诉讼一样,行政诉请对行政判决的制约作用,即行政诉请与行政判决的具有一致性,是由司法的被动性、处分原则、正当法律程序所决定的。行政诉判关系的一般观点以及理论基础具有一定的局限性,缺乏系统的逻辑论证以及忽视了行政诉讼的特殊性。构建行政诉判关系应当以主观公权利救济和客观法秩序维护两条主线重新认识。从主观公权利救济的角度看,主观公权利、行政诉权、诉讼请求、行政判决的关系从逻辑上总保持着相当程度的一致性和连贯性。而从客观法秩序维护的角度,行政行为的违法性与有效性并非一致决定了行政诉判并非完全一致。因此,行政诉判关系是一致性与非一致性的统一。     

Case-mix payment for nursing home care: lessons from Maryland

Even before Medicare adopted case-based payments for hospitals, some state Medicaid programs employed case-mix payment systems for nursing home care. Their purpose was less to promote cost containment than to improve access to nursing homes for the most costly patients. This paper evaluates one such system, adopted by the state of Maryland in 1983 as part of an overall reimbursement reform. Using data on nursing home patient characteristics, costs, and staffing, as well as interviews with officials and various providers of care, the article shows that Maryland's system was successful in shifting nursing home service away from light-care and toward heavy-care patients. Furthermore, the shift occurred without inducing readily measurable declines in quality of care and with little additional administrative cost (partly because the state built its case-mix system on preexisting patient review activities). Although states could learn from and improve upon Maryland's experience--most notably in offering incentives to improve quality of care and in targeting community care on the light-care patients that nursing homes become less willing to serve--Maryland demonstrates that case-mix payment can change nursing home behavior in desired directions without substantial negative consequences.     

Unfinished business: how litigation relates to health care regulation

"Regulation by litigation" is a recently recognized trend in American legal governance that develops differently in each economic sector it affects. In health care, widespread litigation can be viewed as the product of three partial transformations: incomplete industrialization, incomplete consumerism, and incomplete social solidarity. One can argue that the public turns to the courts because other actors who might exercise judgment and authority to resolve problems appear unreliable. Because litigation has several features at odds with sound health policy--including its cost, its hindsight bias, and its adversarial character--it may be necessary to develop new discretionary institutions to address specific questions that regulators cannot or will not answer.     

我国诉前鉴定中的问题与对策

根据诉讼法的规定，当事人一般不能自行启动鉴定程序。但为了在民事、行政诉讼与刑事自诉案件中提起诉讼与履行举证责任。诉前鉴定在当前中国的司法语境中具有相对合理性；除此之外。侦查机关立案之前的鉴定也应作如是观。然而诉前鉴定也不可避免地引发了一些问题。所以必须对诉前鉴定进行一定法律层次的规定与改造。     

REINTEGRATIVE SHAMING AND COMPLIANCE WITH REGULATORY STANDARDS*

Australian nursing home inspection teams are partitioned into those with an enforcement ideology supportive of reintegrative shaming, those who believe in being tolerant and understanding when confronted with noncompliance with the law, and those with a more stigmatizing ideology toward noncompliers. Nursing homes visited by teams with a reintegrative shaming ideology display significantly improved compliance in the period following the inspection. Nursing homes visited by inspection teams with a more stigmatizing attitude toward noncompliance display an approximately equal drop in compliance. The performance of homes visited by tolerant and understanding inspection teams falls between these two extremes. A more specific test of the theory shows that when interdependency exists between the nursing home and the inspection team, reintegrative shaming has a stronger positive effect on improving compliance. In nursing homes with no link between the home and the inspection team, reintegrative shaming has no effect on compliance levels. These effects demonstrate both the importance and the limitations of reintegrative shaming as a theoretical concept worthy of further empirical investigation.     

Per diem for nursing home care of veterans in State homes. Department of Veterans Affairs. Final rule

This document amends regulations regarding the payment of per diem to State homes that provide nursing home care to eligible veterans. The intended effect of the final rule is to ensure that veterans receive high quality care in State homes.     

Racial disparities in access to long-term care: the illusive pursuit of equity

While nursing homes were insulated from civil-rights enforcement at the time of the implementation of the Medicare program and lagged behind other parts of the health sector in providing comparable access to minorities, they are the only providers for which current reporting requirements make it possible to fully assess racial disparities in use and quality of care. We find that African Americans' use of nursing homes in 2000 in the United States was 14 percent higher than Caucasians' use. The largest relative African American use of nursing homes in 2000 took place in the South and West. Average nursing-home case-mix acuity for African Americans and Caucasians were essentially identical, suggesting that shifts in payment incentives have eliminated the selective admission of easy-care private-pay (predominantly Caucasian) patients and helped fuel the growth of private pay home care and assisted living for this segment of the population. While these shifts in incentives helped increase the use of nursing homes by African Americans, a high degree of segregation and disparity in the quality of the nursing homes used by African Americans persists. Parity in use is an illusive benchmark for measuring progress in assuring equity in treatment.     

检察机关法律监督权和诉讼权优化配置的价值和技术分析

检察机关法律监督权和诉讼权的关系,在价值和技术层面上展开讨论,就是价值和技术关系的问题。法律监督权和诉讼权优化配置应当遵循相应的价值理念和技术规则,并且应该根据实践中两者关系出现的价值和技术问题进行改进,并使之相对分离。     

日本民用核能法律制度创新对中国的启示

日本于1955年正式公布《原子能基本法》后,经历了两大发展阶段,形成了较为系统的民用核能法律体系,却以福岛核事故为转折点暴露了诸多问题。此后日本根据多重防护理论进行构建,以新建立的原子能规制委员会为核心,依托民用核能损害赔偿为主的民事诉讼与"定期检查许可证交付"为主的行政诉讼的司法实践,辅之以《电气事业会计准则》为基础的民用核能特别会计准则制度,建立起了一套以理论建构、制度架构、司法实践为主,财务会计制度等为辅的日本特色民用核能法律制度体系。鉴于我国推进"一带一路"进程中民用核能合作高速发展以及《核安全法》问世,民用核能法律制度亟需受到高度重视。日本民用核能法律制度发展的新理论、新框架及创新内容,为中国民用核能发展提供了在决策机制、透明度设计等方面多层次、宽领域的启示。     

Theorizing about Trial Courts: Lawyers, Policymaking, and Tobacco Litigation

What role do litigation and trial court decisions play in shaping policy? This article explores that question by examining recent litigation against tobacco manufacturers filed by state attorneys general, plaintiff lawyers in class actions, lawyers for cities, unions, health plans, individual smokers, and others. I suggest how this litigation contributed to agenda setting, new ways of defining the problem, of tobacco and the policy alternatives, political mobilization, new legal norms, and new political and legal resources for opponents of tobacco. Addressing theoretical debates about the power of the courts to effect change, I distinguish between causal and constitutive arguments and suggest how both can be incorporated in social analysis.     

审判中心视角下的行政诉讼制度构造

"以审判为中心"的政法政策同样适用于行政诉讼制度改革,它要求法院发挥自身司法能力和司法制度能力,有效地介入涉法行政争议之中,并藉此保护法益。在行政诉讼中,司法权与行政权之间是法律监督上的国家权力结构关系。法院优位于行政机关,法院作为独立裁判者指挥诉讼管理关系和裁判过程。以审判为中心的行政诉讼制度构造,应最大限度地发挥法院司法能力在解决行政争议上的优位角色,应完整地发挥行政诉讼法的制度能力,即发挥立法、司法解释、司法组织及指导性案例的制度功能。行政诉讼司法准入、行政机关负责人出庭应诉、诉讼管辖、庭审制度等,是否体现了"以审判为中心"的制度改革方向,主要看其是否有利于行政争议的实质解决和法益有效保护。"多元化纠纷解决机制"政策和行政行为合法性审查为中心的行政诉讼制度,影响了法院的诉讼角色和功能。回归司法权和诉讼制度本质,宜在行政争议、行政行为和法益之间构造出一致性的诉讼结构关系;宜从组织和体制改革转向程序改革,发挥行政程序和司法程序在塑造司法公正和司法效率上的作用。     

构建和谐医患关系的法律与伦理问题研究

民事法律关系说业已成为医患关系的主流学说,相关的医疗法律制度也是建立在这一学说的基础之上的。然而,医患关系本身所具有的特点,使其与普通的民事关系存在本质的差别,而根据民事诉讼理念构建的医疗诉讼模式难以消解医患之间的法律纠纷。和谐医患关系的构建,必须着眼于上述问题的解决。