Does the Regulatory Environment Need Change?
Since the Institute of Medicines' 1986 hallmark study that provoked major implementations and changes in nursing home regulations, many have come to think that a revolutionary paradigm shift has taken place. The celebrated OBRA regulations, stiffening the regulatory environment, have come to be the benchmark for clinical and operations management within the nursing home environment. Has it improved nursing home care? Some have speculated but the consensus has been yes, it has led to an improvement as compared with pre-OBRA nursing home environments. Is it a panacea for nursing home care? Definitely not, yet it appears that the long-term care industry has become complacent, failing to further innovate and instead favor periodic updates of the current system. Although there are a number of problems that exist in the current system I will just mention a few at this time.
The first problem that has continued to exist is that the relationship between the surveyors and those that are surveyed is filled with an inherent tension, and at time, contentiousness. It is left up to the surveyors to cite violations and nursing home staff to react and defend their territory. It is very clear from years of sociological and social psychological research that setting up in-groups and out-groups, such as surveyed and surveyor, is all that is often needed to create tension and foment potential inter-group problems. Furthermore, since surveys are conducted by state or federal governmental agencies, the unequal distribution of power and status foster further difficulties. In an industry where the goals of both groups should be to contribute ideas, knowledge, and insight on how to improve the care that is provided to older adults, the interaction is often based on a "we cite and you correct" mentality.
Another problem that should be mentioned is although the regulations that are enforced appear to be clear enforcement is far from objective. Anyone who has been involved in long-term care understands this quite well. The disposition of surveyors, staff, and the historical citation history of any facility often set expectations very quickly about the nursing home environment, and at times even before entering the nursing facility. Upon examining and issuing the mandatory OSCAR 3 and 4's, the expectations about the facility reputation are frequently set, which in turn come to determine the survey and the facility's level of success.
Finally, even though the goal of the regulatory cycle is to enhance care, civil monetary penalties (CMP's) have become an increasingly popular enforcement mechanism. Quite plainly, CMP's are punishments for failing to be in substantial compliance on more severe issues. Do not misinterpret this as meaning that substantial noncompliance should not be addressed aggressively, but CMP's frequently act as double punitive measures, not only taking money away from the facility, but also the residents that are found in the facility. Since most nursing care facilities are already financially strapped, taking five, ten, or twenty thousand dollars away from a facility not only penalizes the facility but the residents as well. The logic of a CMP being placed on a facility, taking money and resources away from the facility and its residents, and saying that it is being used to enhance resident lives, fails logical argumentation.
Now that you have heard my views, please share your views.