State Regulation of Long-Term Care: A Decade of Experience with Intermediate Sanctions

The use of intermediate sanctions to enforce nursing home regulations marks a revolutionary and innovative legislative step to achieve, in addition to punishment, also rehabilitation and deterrence goals. This article evaluates the implementation of intermediate sanctions by the states, highlighting the ways in which similarities and differences in state statutes impacts effective implementation. The article begins by considering legal challenges to state intermediate sanctions, including a constitutional challenge to the power of states to specify general standards for nursing homes and a notice challenge in light of statutory vagueness. Next the article considers specific intermediate sanctions and makes recommendations to enhance the effectiveness of each sanction. Civil fines are among the most effective of the intermediate sanctions, but it is important that state agencies avoid delay in the imposition of fines and raise fine prices for repeat violations. Receiverships are also powerful intermediate sanctions. State agencies must be prepared to develop a pool of private receivers, fund them, and clearly identify the scope and liabilities of the receivership. Personal rights of nursing home residents may be enforced through a statutory cause of action, buffered by participation of the public and the media. Statutes may also authorize states to suspend admissions in order to remedy habitual and significant violations. Finally, the article examines the role of the federal government in light of the states’ implementation of intermediate sanctions