When a nursing home demonstrates that it is unable to provide consistent quality care there are several ways to correct its problems. The marketplace offers one corrective opportunity, of course. Personal injury lawsuits may effect some improvement in future care, if only because the nursing home’s insurance provider may insist on changes before agreeing to continued coverage. Perhaps the most direct control, however, is provided by federal and state government regulation.

As an example, consider Fairfax Nursing Home in Berwyn, Illinois. The facility has a history of problems with ventilator-dependent patients—those who require a mechanical device to assist with their breathing. One of the first incidents occurred in 1996, when a patient on a ventilator experienced a respiratory emergency. Staff members responded appropriately and administered oxygen, but one therapist turned off the patient’s ventilator to silence its alarm. Once the patient was stabilized the therapists left the room, but no one remembered to turn the ventilator back on, and the patient died.

Over the next year state health inspectors made surprise inspection visits and followed patients’ charts. In at least five cases inspectors determined that Fairfax employees were not following their own regulations for handling ventilator-dependent patients, and that a "civil monetary penalty"—a fine—should be imposed. The state suggested that the federal government levy a fine of $3,050 for each day that Fairfax violated its own protocols. Since the violations stretched over 105 days, the total fine amounted to $320,000.

Fairfax appealed the imposition of a fine to the federal Court of Appeals. The nursing home argued that the fines should have been imposed at a much lower rate—as low as $50 per day of violation—because its deficiencies did not place patients in "immediate jeopardy."

The Court of Appeals upheld the fine. The Court agreed with the Administrative Law Judge who initially heard the case, who had held that any respirator-dependent patient at Fairfax during the period in question was endangered by "the systemic incapacity of the facility to render the necessary care to sustain life and avoid serious injury." Fairfax Nursing Home, Inc., v. United States Department of Health and Human Services, August 15, 2002.

Nursing home residents and their families have limited access to information about the quality of care in individual facilities. The results of periodic surveys such as those made at Fairfax Nursing Home, however, are available to consumers and interested persons. The record of inspection results at every nursing home receiving Medicare or Medicaid funds can be reviewed online at www.medicare.gov/NHCompare/home.asp. More information about how family members can help ensure better nursing home care for their loved ones can be found through the National Citizens' Coalition for Nursing Home Reform at www.nccnhr.org.