Letter, if Not Spirit

August 20, 2009

Skilled Nursing Facility administrators often complain the survey process is too focused on the letter of CMS guidelines, and not the spirit of them.  Nurses grouse that good care is evident despite a lack in documentation; “quality of life” is too subjective for so-called “paperwork deficiencies,” and so on.  Earlier this week an appeals court in Chicago turned the same tables onto the Illinois Department of Public Health.

An SNF appealed a Type A, serious type, violation.  The IDPH fine was $10,000.  The successful argument was not based on the merit of the deficiency tagged, but on the timing of the notice.  The Department failed to notify the facility of the Type A violation within 60 days of the end of the annual survey.  (Notice was actually given on the 66th day, though regulation requires it within 60 for violations of that type)

The facility’s lawyer successfully argued that the Department lost jurisdiction to prosecute a violation because the notice fell outside of the window prescribed by Administrative Rule.

This case highlights an important issue within the current regulatory scheme.  1) Such deadlines are essential if facilities are to learn from their mistakes.  That is, prosecution of violations is not merely punitive, but compels facilities to do better next time.  A deadline lets facilities know that, if there are changes to be made, you’ll be told about them in a reasonable time.  This allows regulatory codes like IDPH’s and CMS’s to have what is known as a “channeling function.”  Sure 66 days may be no more unreasonable than 60 in this respect, but for a deadline to have the necessary channeling function effect, it must have a definite cutoff.  2) The regulatory scheme is necessarily (and some would argue counter-productively) adversarial.  It seems like the facility’s lawyer “gamed the system” or “won on a technicality.”  This argument, incidentally, is the same as when facilities claim to have only received a “paperwork deficiency” or have been “caught without documentation.” At the end of the day, an adversary system creates incentive to “beat” the other side, but it also incentivizes winning on the margins.  That is to say it discourages substantive change (which takes more energy and resources than winning on technicalities).

The ideal would be to marry the channeling function of deadlines and the innovation and energy created by the adversarial system while divorcing this kind of small ball, winning on the margins attitude.  That kind of third way is, alas, tremendously difficult to find.  However, I think cases like this one expose the issues that come along with decisions based on the letter, if not the spirit of the Law – – or in this case, Rule.

*Thanks goes to LSN’s Week’s News newsletter for source material.


A Washington state court decided yesterday that a 91 year-old man with dementia and demonstrated delusions was competent to stand trial for second-degree murder.  The accused, Joe Conway, allegedly shot and killed a staff member at the nursing home where he lived when the victim brought food into Mr. Conway’s room.  After a two-day evidentiary trial, the court found Mr. Conway competent, and put his case on the criminal docket.  

As awful and shocking as this news sounds, it is really not all that surprising given the tortured logic the “insanity defense” has gone through in the last forty years of Supreme Court jurisprudence.  All crimes, in order to be crimes, require an action and a mindset.  If one commits the prohibited action (taking a the purse off a woman on the street) with the prohibited state of mind (with knowledge that it is not one’s own and to deprive the rightful owner enjoyment of the purse) then a crime has be committed.  If one commits the action (snatches the purse) without the mindset (but mistakenly believes it was one’s own to start with) no crime has been committed.  This the foundation of the insanity defense.  Essentially, it says that a person is incapable of forming the prohibited mindset, thus their actions are not criminal.  

Sounds simple, and if Mr. Conway has a dementia diagnosis, it would seem impossible for him to form the requisit intent for second-degree murder.  However, intent can only ever be inferred, and the several states and the Supreme Court have devised many different tests for inferring such intent: 1) the M’Naghten test: the defense will hold if at the time of the misconduct, the defendant (accused) lacked the ability to know the wrongfulness of his actions or understand the nature and quality of his actions (i.e. “does not know right from wrong”); 2) the Irresistible Impulse test: the defense will hold if the defendant was unable to control his actions or conform his conduct to the law (i.e. lacked self control and free will; suffered an impulse he could not resist); 3) the Durham test: the defense will hold if the defendant’s conduct was a product of mental illness (i.e. but for the mental illness, the defendant would not have done the act); 4) the Model Penal Code test: the defense only holds if the defendant lacked the substantial capacity to appreciate the criminality of his conduct, or conform his conduct to the requirements of the law (i.e. a combination of the M’Naghten and Irresistible Impulse tests).  Different states use different tests, but as is fairly clear even on first reading, there is a lot of wiggle room in the language of all of the tests. 

So, how does a 91 year-old dementia patient not fail these tests and be found competent?  Unfortunately, the theoretical underpinning for the defense does not really support the court’s finding.  But the tests likely do.  If Mr. Conway had in his mind to kill a person, even if he was delusional as to who the person was or why he was killing him, then, all things being equal, the M’Naghten would not save him.  Dementia standing alone would likely not hold the defense under any of the other three.  Dementia, generally, does not create an impulse to kill, nor is it a mental illness which channels someone towards murder.  I suspect, though, the Supreme Court will revisist these tests in the next few years – – and it will probably be a case like Mr. Conway’s that presents the issue.  Age related dementia is unique enough from other mental illnesses that the Court may carve out some special consideration in the “insanity defense.”  With the next crest of seniors reaching old-old age, the issues may come to a head fairly soon.

*On a totally unrelated note, the insanity defense was first suggested in Anglo-American legal theory by Lord Chief Justice Tindal of the Court of Common Pleas – – this guy was an absolute genius, though he is best known for acting as Queen Caroline’s defense attorney (successful) in her adultery suit.  His wikipedia entry can be found here.

The Illinois Nursing Home Care Act prohibits a long term care facility resident from waiving her right to a jury trial before the commencement of any action.   What this means is LTC residents cannot enter contracts that have a waiver of the right to trial.  If they enter into these types of contracts, the clause waiving the right to trial (and/or jury trial) will be null and void.  

Many LTC facilities seek to arbitrate disputes instead of litigating them.  This protects the facilities from expensive litigation and it protects residents and families because the attendant costs of settling a dispute are much lower.  

The rule (sections 3-606 and 3-607 of the Illinois Nusing Home Care Act) conflicts with this desire to arbitrate becasue arbitration agreements generally ask residents to waiver their right to trial in exchange for the facility paying for and committing to arbitration.  

A recent Illinois 5th Appellate District Case confronts this conflict head-on.  Gott v. SSC Odin Operating Co. involved a wrongful death action brought by the representative of a deceased LTC resident against the owner corporation.  The corporation tried to enforce an arbitration agreement the resident signed on admission.  It argued the Illinois rule is preempted (basically overruled) by a Federal law, the Federal Arbitration Act, which promotes arbitration clauses in service and health care industry contracts.  The court found for the resident’s family, concluding the Federal Arbitration Act did not preempt the generally applicable state contract law and defense.  The Gott family was able to go on with their lawsuit against SSC Odin Operating Co.

The consequences of the Odin decision are not that far-reaching (after the IL Supreme Court refused to review the decision, it only has effect in the IL 5th Appellate District), but they do highlight a ongoing struggle in LTC:  protecting the right to sue vs. reducing the costs of disputes (for both facililities and residents).  

I was honestly surprised at the Odin  decision.  Surprised it came down the way it did (similar cases have found Federal preemption more often than preserving state defenses) and surprised the IL Supreme Court punted rather than review the case to give statewide guidance.     This is a much larger issue than I plan to write in this post, but perhaps a lengthier analysis is in order soon in the future.  Until that time, please see other posts on this issue here and here and at the Wall Street Journal.