Implied Causes of Action under § 1396r: Why Grammer Reminds Nursing Home Residents to Actively Participate in Their Own Care

Fall 2010Articles Penn State Law Review

For centuries, society has been searching for the most economic and effective way to care for its elderly. Satisfactory and widespread elder care has remained a constant challenge for society, from the time of poorhouses to today’s modern nursing homes. At the center of the situation are a growing number of elderly and an unacceptable quality of care, particularly in nursing homes. The population of adults aged sixty-five and older is expected to almost double by 2030, and even though many of the nation’s baby boomers will maintain sufficient health to be independent in the coming years, their sheer numbers will inevitably exacerbate the health care problems present in our nation. That is not to say that an effective and comprehensive health care system for the elderly is infeasible. On the contrary, a successful system of long-term care is quite possible; however, it requires, among other things, the active participation of older persons in their own care. Such “collaborative care” emphasizes patient self-management through education and treatment planning in contrast to the traditional provider-patient relationship, which tends to emphasize only provider responsibility for a patient’s health. While collaborative care may be the preferable model for the earliest stages of elderly care, the more incapacitated a patient becomes by illness and old age, the more difficult it becomes for a patient to self-manage. Nevertheless, a dependent resident may actively participate in her own care by communicating the quality of her care to her family and attorney. Such active patient participation among nursing home residents, whether by the dependent patient herself or another trusted coordinator, is integral to a successful elder care system.

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