Moran, Albert, The Troubled State of America’s Nursing Homes (August 24, 2014). Available for download at SSRN: http://ssrn.com/abstract=2488514

“Even the most cursory search of news coverage involving nursing homes reveals that horror stories are not difficult to come by. Although the grisly details of each individual horror story vary, most of them share the same general story line — through some combination of gross negligence and profound systemic failure, elderly citizens can experience disturbing conditions in nursing homes that result in suffering and sometimes death. Although egregious stories make local news headlines every so often and prompt a brief firestorm of public criticism, the everyday reality of nursing homes is much less sensationalized, and arguably even more sobering. Statistics indicate that abuse and neglect frequently go unreported, and both research and anecdotes indicate that nursing homes often fail to live up to their billing as places of care, calm, and comfort. These indications raise troubling sociological, legal, and ethical questions about how we care for one of our most vulnerable populations — the elderly. This paper analyzes nursing home failures in light of the federal regulatory regime that oversees them. Section II provides a framework for the discussion of nursing homes by describing the choices seniors have for their living arrangements. In order to establish context for the current social and legal space inhabited by nursing homes, Section III traces the historical development of the modern nursing homes, with a particular focus on the landmark laws of the 1960s that paved the way for late-twentieth century proliferation of nursing homes. With this background in mind, Section IV explores the federal regulatory regime that governs nursing homes, and Section V details the bodies and mechanisms that enforce federal rules and regulations. Section VI provides evidence and statistics regarding the prevalence of abuse and neglect in nursing homes and argues that these data evidence a troubled regulatory system. Section VII examines the Patient Protection and Affordable Care Act, which has been heralded as the most significant legislation affecting the healthcare industry in decades, and concludes that the law does not contain provisions that will serve to reduce elder abuse and neglect in any significant way. Section VIII offers recommendations to improve nursing home care in light of the foundation provided by PPACA. Section IX discusses potential blowback that these and other solutions may present and urges reformers to proceed carefully and thoughtfully before enacting any proposed reform.”