Monday, December 4, 2023
Nina A. Kohn, Adrianna Duggan, Justin Cole, and Nada Aljassar have posted "Using What We Have: How Existing Legal Authorities Can Help Fix America's Nursing Home Crisis" on SSRN. This work-in-progress is forthcoming in the William and Mary Law Review (2023/2024). The nursing home crisis disproportionately affects women in several ways, according to BizWomen: "Women account for nearly 90 percent of nursing home and assisted living employees, including nurses, aides, technicians and housekeepers/custodians. They also make up the majority of nursing home residents at nearly 70 percent, in part because women tend to live longer than men." Kohn et. al.'s abstract is excerpted here:
The COVID-19 pandemic exposed systemic quality-of-care problems in American nursing homes as well as the deadly consequences of a regulatory system that has enabled nursing homes to divert funds needed for care to profit. Policy experts have responded by urging regulators to improve nursing-home oversight practices and by calling for new regulatory and statutory authority to increase accountability. These calls, however, have been met with sharp political headwinds. This Article suggests a path around the political impasse. Specifically, it identifies and explores four opportunities to leverage existing statutory schemes to create stronger incentives for nursing homes to provide high-quality care. It then explores how politics, administrative complexity, and ageism have come together to prevent this existing authority from being used to its full potential. It concludes by situating the current regulatory failure to hold nursing homes accountable in the context of a larger discussion about the costs of federalism in the health care arena.