Political factors and enforcement of the nursing home regulatory regime.

• Author: Aka, Philip C.

1. INTRODUCTION AND PURPOSE OF STUDY II. THE NURSING HOME REGULATORY REGIME III. THENURSING HOME INSPECTION SYSTEM IV. THE ROLE OF PUBLIC ADMINISTRATORS IN THE POLICYMAKING PROCESS V. POTENTIALLY INFLUENTIAL FACTORS A. Political Factors 1. Survey of Previous Scholarship 2. Definition and Operationalization of Key Terms 3. Theses and Underlying Assumptions, and Results B. Oversight C. Affiliation or Ownership Status of Nursing Homes 1. Survey of Previous Scholarship 2. Definition and Operationalization of Key Terms 3. Theses and Underlying Assumptions, and Results VI. CONCLUSION I. INTRODUCTION AND PURPOSE OF STUDY

   Nursing homes are special facilities that provide round-the-clock medical care to persons who, due to old age or disability, have difficulties in navigating activities of daily living ("ADL"), such as bathing, dressing, eating, and using the toilet. (1) For these and related ADL tasks, nursing home residents receive help that is provided by a phalanx of caregivers, including nurses, physical therapists, occupational therapists, and social workers. (2) Nursing homes are a common technique for delivering long-term care (i.e., services and supports to meet health and personal care needs over an extended period of time) in the U.S. and other industrialized countries. (3) In the U.S., the history of these facilities dates back to the beginning of the twentieth century when, bereft of national government (4) assistance for the care of elderly or disabled persons, many states relegated these destitute individuals to decrepit almshouses and poor farms. (5)

   Nursing home residents are individuals "who are not sick enough to need hospital care but are not able to remain at home." (6) These residents include the elderly (usually individuals 65 years and above) and younger adults with physical or mental disabilities. (7) Nearly two-thirds of nursing home residents are females; the remaining one-third are males. (8) As the nation's population grays, (9) more and more Americans are living in nursing homes. (10) According to the Government Accountability Office ("GAO"), in 2009, more than 1.5 million people resided in the nation's estimated 16,000 nursing homes. (11) The GAO is an arm of Congress, created under the Budget and Accounting Act of 1921, that has conducted numerous studies on nursing homes. Dubbed "the investigative arm of Congress," and "congressional watchdog," the agency supports Congress in meeting its constitutional obligations as well as helps improve the performance and ensure the accountability of the federal government through various means that include oversight of federal programs. (12) In the language of its infomercial, the agency "keep[s] a close eye on virtually every federal program, activity, and function," and, "[i]ts highly trained evaluators examine everything from missiles to medicine, from aviation safety to food safety, from national security to social security." (13) Formerly known as the General Accounting Office, the GAO changed its name (while making sure to retain the same acronym) to its present name in July 2004. (14) The GAO figure above does not include other persons who use these facilities. According to the Centers for Medicare and Medicaid Services ("CMMS"), another organization, like the GAO, versed in this topic, (15) in 2006, about 2.8 million patients stayed in a nursing home (the number includes both long-term and short-term residents after hospitalization). (16) This trend is expected to increase, beginning in 2011, when the first set of "baby boomers," (17) persons born in 1946, turns 65 years and becomes senior citizens. It is projected that, based on current trends, by 2030, an estimated 5 million people will need nursing home care, and that by 2020, nursing homes will need an estimated 66% more nurses. (18) Nursing home care costs account for about 6% of the nation's overall healthcare spending; (19) in 2006 total government spending for nursing homes reached a high of $125 billion. (20) For staffing alone, Congress increased its reimbursement to the states from $24.8 billion in 1990 to $51 billion in 1998. (21)

   This study analyzes the influence of political factors, oversight, and nursing home affiliation or ownership status on the enforcement of the nursing home regulatory regime, (22) signified by the Nursing Home Reform Act ("NHRA") and its progeny. (23) Specifically speaking, it measures, using the statistical technique of regression analysis, factors that account for variations across states in the number of deficiencies (or violations of quality standards) cited by nursing home inspectors across the states. Our database comprised a sample size of 463 cases, drawn from 49 out of 50 U.S. states, excluding Nebraska, which has a unicameral legislature. Our statistical findings generally confirmed the six theses we tested regarding the influence of political factors and other variables on enforcement of nursing home regulations. (24) Our coefficient of determination, adjusted r-square, indicated that these various factors, controlling for other possible variables from 1995 to 2004, accounted for 51% of the variance in our dependent variable. This result is adjudged high in social science fields, such as here, with a history of notoriously low prediction. (25)

   There are two interconnected segments to the organization of this article: the conceptual issues necessary for proper examination and reader understanding of this research, and our statistical analysis. The first segment comprises Sections II to IV, while Section V embodies the second. Section II discusses the nursing home regulatory regime and performs a double function as background overview of the field. Section III presents an overview of the nursing home inspection system. It extends the discussion in the previous section and clarifies for the reader, beyond the level achieved in Section II, the national government's participation in an issue-area which, under the allocation of power scheme of the U.S. federal system, (26) is a state function. Section IV analyzes the role of administrators in the policymaking process and justifies our focus on "political factors" in an era of American public administration, such as the present, marked by extensive involvement of public administrators in public policy (not the fiction in the past that claims to separate politics and administration). Turning to segment two, our statistical analysis, Section V presents a review of the potentially influential factors in this study and outcomes on each of the three variables, namely: political party affiliation, oversight, and affiliation or ownership status of nursing homes. Discussion on each of the variables, in turn, embraces a survey of previous studies and scholarship, definition and operationalization of key terms, theses and underlying assumptions, and results.

   Since the passage of the NHRA in 1987, various organs of the U.S. national government have published numerous volumes that have evaluated various aspects of the regulatory regime introduced by this statute and its progeny, including the inspection system. These organs include the GAO, (27) the U.S. Senate, (28) the U.S. House of Representatives, (29) and the Department of Health and Human Services ("DHHS"). (30) This work is a first of its kind, an analysis not government-related, by a set of public administration scholars that systematically studies the influence of political forces on nursing home regulations and inspection and their ultimate effect on the well-being of nursing home patients.

2. THE NURSING HOME REGULATORY REGIME

   A regime is a term of art, with roots in international relations theory, that denotes a set of formal institutions (such as rules, norms, procedures) and informal understandings or expectations that govern behavior in a certain issue-area. (31) Drawing on this definition, the nursing home regulatory regime comprises formal institutions and informal arrangements that, over the past seventy-five years, have contributed individually and collectively to shape the nursing home industry. We approach this conversation in terms of key events in the field. The first such development was the Social Security Act of 1935. (32) The law provided matching grants to each state for Old Age Assistance ("OAA") to retired workers. (33) But to discourage almshouse living, residents of public institutions were not eligible for the payments. To get around this barrier, individuals and organizations established a variety of private old-age homes to qualify for and collect OAA payments. (34) Subsequent amendments to the Social Security Act introduced reforms that inured to the benefit of nursing home patients. These included the Hospital Survey and Construction (or Hill-Burton) Act of 1946, (35) which lifted the ban on extending benefits to residents of public facilities; (36) a set of changes in 1950 imposing requirements for state licensing of nursing homes; (37) and amendments in 1954 that extended grants for nursing homes built "in conjunction with a hospital." (38) The last laid the ground for the modeling of the physical construction of nursing homes after hospitals, (39) and, equally important, transformed nursing homes from being part of the welfare system to being part of the healthcare system. Some other amendments to the Social Security Act passed in 1965 (40) incorporated Medicare and Medicaid. (41) These changes were an integral part of President Lyndon B. Johnson's "Great Society" campaign against poverty, (42) and came in the wake of nursing home scandals, such as the one in New York in 1960 that uncovered problems in nursing home staffing, code requirements, and financial irregularities. (43) In signing the measures into law on July 30, 1965, President Lyndon B. Johnson noted that "[c]ompassion and reason dictate that this logical extension of our proven Social Security system will supply the prudent, feasible, and...