5 Ideas for Using Bioethics to Better Observe Nursing Home Laws and Regulations

A serious study of bioethics may seem impractical to long term care facility owners, who face a variety of issues that appear to be more pressing, such as strategizing the future of their business or ensuring that members of their team understand and abide by nursing home laws and regulations.

This, though, is a mistake and the result of not forming a connection between bioethics and the aforementioned issues. A strong, working knowledge of bioethics can assist long term care facility owners in making crucial business decisions. Further, it can help them and their team understand and abide by existing and new nursing home laws and regulations.

Bioethics, thus, should not be viewed as an abstract discipline that merely assists the decisions of committee members. Indeed, nursing home owners can use it as a practical tool for working through many of their daily challenges. In the words of Chris Wilson, a prominent health care ethicist, bioethics is “a fabulous adjunct to person-centered care.” 

Wilson is an excellent resource for the subject of bioethics, as she began her career as a nurse and administrator in long term care but later decided to become an attorney and bioethicist. She is now on a number of bioethics committees and a bioethics consultant. In her appearance on the LTC Heroes podcast, Wilson drew upon her experiences in providing insight into the many inner workings that contribute to establishing a healthy workplace environment for long term care facilities. 

Her captivating interview answered questions about how bioethics—a seemingly abstract endeavor—facilitates person-centered care and compliance with federal and state regulations in nursing homes. 

The Connection between Bioethics and New Nursing Home Regulations

Issues come up every day about how nursing homes treat their residents. For instance, in August 2020, The New York Times featured a piece about how nursing homes in Belgium were handling COVID-19 and when they did or did not decide to send residents to hospitals. This stimulated a conversation that produced an article in the Journal of Medical Ethics. In 2017, concerns about privacy in nursing homes in the U.S. were voiced after at least 18 incidents in which employees posted unauthorized photos and videos of residents to social media. 

It is, thus, important for you to be familiar with the field of bioethics and its application so that you can stay on top of the latest developments and laws and regulations. First, though, we must first define bioethics and understand its relationship with ethics and business ethics more broadly. 

Bioethics as an Extension of Ethics

Many health care professionals, especially those in long term care, may have only heard the word “bioethics” as a word preceding the word “committee” and not really thought much about what the word means.

“Bioethics,” though, actually signifies something quite precise. It is a discipline that deals with the ethical implications of biological research and applications, especially in medicine. An understanding of these ethical implications, along with moral principles, can then be used to establish just laws and regulations. “Ethical implications,” though, is not without ambiguity, making it necessary for us first to gain a solid understanding of ethics.

“Ethics” is derived from two Greek words ēthikós, which meant for the philosophers of the ancient world, “relating to one’s character,” as well as ēthós, which chiefly meant an individual’s habits or character, but also “custom” or “mores,” i.e., the general character of a people.

The idea is that your character is produced by habits or what you repeatedly do, and when you repeatedly do things well, you are thought to be doing well consistently or flourishing in life, which, for the philosopher Aristotle, meant that you were “good-spirited” or happy.

What is Included in Bioethics?

Extending this ancient understanding of ethics to biological research and the various fields of medicine produces the ideas that: 

• Scientific research and its applications might allow or disallow certain people to flourish
• Medicine and biological research can contribute to the establishment of unethical institutional structures and practices.Bioethics, then, like business ethics and environmental ethics, are subsumed under the general study of ethics. They are specific studies of ethics that address problems and questions about flourishing in life and being well. 

Historically speaking, bioethics has focused upon the “gray areas” of ethical behavior noted in very difficult and challenging questions about, for instance, eugenics, reproduction rights, biotechnology, as well as larger questions concerning social justice, health policy, and public health. 

Bioethics is often determined by special committees of experts located in health care institutions or hospitals who are assigned to evaluate, report, and act on ethical issues that arise in patient care. As Wilson explained in her interview, bioethics committees can only make recommendations as to whatever a plan of treatment is ethical or not. Larger hospitals, like Cedars-Sinai Medical Center and the Ronald Reagan UCLA Medical Center, may have a staff ethicist or an ethics program available. 

Some facilities, meanwhile, may have an ethics committee in name only. “Sometimes people think they have a bioethics committee, but it’s not really doing the work that bioethics committees do,” said Wilson. “Rather, they’re decision-making committees that merely put their stamp of approval on things.” Thus, it is important to select committee members who are sincerely dedicated to the values of bioethics, which are explained in the next section. 

Bioethics is an approach to treatment that can perhaps best be classified as person-centered care, which considers a patient’s or resident’s needs, environment, abilities, experiences, and wants. “Bioethics, to me, is person-centered care, because that’s what you focus on when you talk about these tough decisions,” opined Wilson. 

Bioethics in Health Care

Bioethics in healthcare found its beginnings in malicious human rights abuses in which human subjects were robbed of their humanity. Wilson mentioned two significant historical turning points that helped give birth to the discipline of bioethics: the infamous Tuskegee Study of syphilis, in which treatment for syphilis was withheld from 399 Black men, and the Crimes Against Humanity revealed during the Nuremberg Trials, in which 23 physicians from the German Nazi party were tried for the highly unethical experiments they carried out on prisoners of war. 

It was from these and other historical atrocities that the four essential pillars of bioethics were established for the purpose of ensuring the ethical application of biological research and the extension of quality health care. Each pillar serves the function of governing and guiding one’s actions and behavior in treating others:

1. Patient autonomy – In the context of bioethics, autonomy—“self-governing” or “self-rule”—serves as a standard of behavior in which one lives and is guided by the principle to respect and uphold a patient’s or resident’s freedom to make his or her own choices, ideally without being swayed by external pressures and biases. Respecting the autonomy of all persons is rooted in the categorical imperative of Kantian ethics that claims we have a duty to treat others, not as the means to an end, but the ends themselves. This is in keeping with the observation of their rights. “When we talk about autonomy, we’re talking about patient rights,” said Wilson. “There’s a list of federal and state patient rights, but I just think that ethics makes it bigger than that.” 
2. Benevolence – Benevolence—extending kindness and well-being to another—serves to guide one’s behavior to treat patients and residents with kindness and respect. 

3. Nonmaleficence – Like the general meaning expressed in the Hippocratic oath, the principle of nonmaleficence conveys the directive that medical practitioners have a duty to do no harm nor allow harm to be caused to a patient through neglect.
4. Justice – The ideal of justice—treating others with fairness, dignity, and respect—equips caregivers and healthcare professionals with a standard by which they might understand how to treat their patients justly. 

Bioethics and the Laws and Regulations of Long Term Care

While significant for all involved in treating others, the import of bioethics is even greater in long term care. One of the top priorities at any nursing home is staying on top of laws and regulations, both old and new, many of which are rooted in bigger discussions about morality. As Wilson noted in the podcast, the CMS does not include bioethics among its many regulations, but it does mention it in its interpretative guidelines. 

The study and application of bioethics is instrumental for:

• Revisiting definitions of “just” and “unjust” nursing home law and the utility of certain long term care regulations: One need only to look back in history to come to the realization that sometimes laws are determined to be unjust just a few decades later. And even when laws are just in theory, they do not always generate the same amount of justice for all in practice. Leaders in long term care and lawmakers must proactively strive to improve the conditions of residents even when, from a distance, things seem to be in order. 
• Creating laws and regulations that protect the rights of the elderly: Nursing home laws and regulations are put in place to protect the rights and health of residents. While nursing home owners are not the creators of these laws and regulations, they can help to identify and voice the problems that need to be addressed and become advocates for the elderly. 

• Establishing a healthy culture in the workplace to go above and beyond the minimum requirements of nursing home laws and regulations: By developing meaningful relationships with residents, empowering your staff, and giving elders a voice in determining the care and services they are provided, you will help avoid ethical issues before they ever take root. When habits imbued with empathy and respect are practiced incessantly, they become a part of our moral character and assist us in resolving or eliminating threatening moral and legal missteps.
• Modifying your business model in accordance with the changing nursing home laws and regulations: Familiarity with new nursing home laws and regulations does not necessarily just inform how you operate in the short term. Rather, it can also impact the mission of your facility as a whole. 

Applying bioethics in the ways outlined above will give long term care facility owners a significant competitive edge and – more importantly – help them create a healthy, healing, and loving workplace environment. Further, it will help you avoid costly lawsuits that could potentially derail your operation. 

Lawsuits, Bioethics, and Preventative Measures

We live in a very litigious society. So the more one is equipped with an understanding of how to apply bioethics, the more likely one will be able to avoid lawsuits. The first step is to know the law and its history. In 1987, Congress enacted the Nursing Home Reform Law, which, as summarized by FindLaw, stipulates that nursing homes that receive payment from Medicaid or Medicare – about 80% of such facilities – must: 

• Have sufficient staff
• Assess the specific needs of each resident
• Develop comprehensive care plans for each resident, including proper hygiene, nutrition and diet, and medication
• Ensure that residents are adequately supervised
• Promote their residents’ quality of life
• Maintain their residents’ dignity and respect
• Keep accurate and complete medical records for each resident
• Submit to unannounced inspections and allow resident interviews

It is important to understand each of these categories. For instance, as Amy Fontinelle writes in Investopedia, treating residents with dignity and respect includes gaining input from them about the time they go to bed, get up, the meals they eat, and their daily activities. Keeping accurate medical records must be accommodated by allowing patients and residents to see medical records and know about their condition and what they have been prescribed. 

In terms of finances, a nursing home can neither force a resident to manage his or her money nor can it serve as a financial custodian without the resident’s written consent. In fact, even if the resident gives consent, the nursing home must provide quarterly financial statements. Under no circumstance, can a nursing home prevent residents from accessing their bank accounts, cash, or financial documents. Further, if a resident deposits more than $50 into a managed account, that account must pay interest.

For clearer definitions for any of these stipulations, refer to the CMS’ manual system.

Meanwhile, the AARP has written the Residents’ Bill of Rights in accordance with the Nursing Home Reform Act. Such rights include: 

• The right to freedom from abuse, mistreatment, and neglect
• The right to freedom from physical restraints
• The right to privacy
• The right to accommodation of medical, physical, psychological, and social needs
• The right to participate in resident and family groups
• The right to be treated with dignity
• The right to exercise self-determination
• The right to communicate freely
• The right to participate in the review of one’s care plan, and to be fully informed in advance about any changes in care, treatment, or change of status in the facility
• The right to voice grievances without retaliation or discrimination

Failure to observe these rights or fulfill the duties described above can result in receiving what is known as an FTag, or, being notified of the violation of a particular federal regulation. There are hundreds of FTags, which fall under the following categories:  

• Resident rights
• Freedom from abuse, neglect, and exploitation
• Admission, transfer, and discharge
• Resident assessments
• Comprehensive resident centered care plan
• Quality of life
• Quality of care
• Physician services
• Nursing services
• Behavioral health
• Pharmacy services
• Laboratory, radiology, and other diagnostic services
• Dental services
• Food and nutrition services
• Specialized rehabilitative services
• Administration
• Quality assurance and performance improvement (QAPI)
• Infection control
• Compliance and ethics program
• Physical environment
• Training requirements

For a complete list of violations and their corresponding numbers, click here.

The most common reasons nursing homes may be sued, according to AllLaw include: 

• Failure to provide a safe environment or sufficient supervision – This can mean not taking the proper precautions to prevent slips, not keeping an eye on residents that need attention, neglecting to address bedsores, or not sufficiently preventing physical altercations between residents. Read more about negligent supervision claims here.
• Failure to properly train or supervise members of the staff – If a nurse abuses, neglects, or harms a resident in any way, the facility may be accused of negligent hiring. 
• Failure to uphold health standards – This is related to keeping rooms, common areas, and bathrooms sufficiently sanitary. 
• Failure to provide adequate medical treatment – The clinical staff must provide a standard of care that is in keeping with federal and state regulations and the expectations of nursing homes. Otherwise, the facility or certain members of the medical team could be sued for medical malpractice.

You probably noticed that many of the examples provided fall under the category of elder abuse, one of the most common reasons nursing homes are sued. According to the National Association of Nursing Home Attorneys (NANHA), an estimated five million elders are abused each year, and over 36% of nursing home residents have witnessed at least one incident of physical abuse.

Thus, to avoid putting itself in a compromising legal position, every facility must know the different kinds of elder abuse, which include: 

• Physical abuse – This happens when someone causes bodily harm by hitting, pushing, or slapping an elder. This may also include restraining a senior against his/her will, such as locking them in a room or tying them to furniture.
• Financial abuse – This occurs when money or belongings are stolen from an elder. Sometimes this manifestation of elder abuse can involve the forging of checks, using an elder person’s credit care, taking an elder’s retirement or Social Security benefits, or using an elder’s credit cards and bank accounts without their permission. It also includes changing names on a will, bank account, life insurance policy, or title to a house without permission.
• Sexual abuse – This occurs when someone forces an older adult to watch or be part of sexual acts.
• Psychological abuse – Sometimes referred to as “emotional abuse,” this can include a caregiver saying hurtful words, yelling, threatening, or repeatedly ignoring an elder. Keeping that person from seeing close friends and relatives is another form of emotional abuse.
• General neglect – This occurs when a caregiver or family member does not make an effort to respond to the senior’s needs. This may include physical, emotional, and social needs, or withholding food, medications, access to health care or just abandoning the elderly and leaving them without any plan for their care.

Bioethics and Its Application in Nursing Homes

Bioethics plays a pivotal role in helping long term care facility owners and their staff eliminate cases of elder abuse from their nursing homes entirely. This is because, by reflecting upon bioethics, elder abuse becomes an ethical goal rather than merely a legal one. That means that, once nurses embrace the broader values that oppose elder abuse, they will better be able to use their own judgments and instincts to prevent it. Meanwhile, if the only way they knew how to distinguish right from wrong was to learn and review violations and play it by the book, they would not be able to act appropriately as easily in complicated or new situations.

As mentioned above, there is a significant difference between the study and application of ethics, or, the study of ethics and its enactment. In bioethics, acting upon the ethical concepts learned means taking steps in the study and application of medicine to help the vulnerable flourish in their lives and removing obstacles that restrict their quality of life.  

Bioethical reflection and reassessment of the steps that need to be taken occurs when ethical gray areas arise and a decision must be made concerning a person or group’s dignity, humanity, and general well-being. Once the relevant pros and cons of each decision have been weighed, it is time to act upon that which is determined by bioethics. 

Real example of a gray area in bioethics: The Center for Practical Bioethics provides a case study of a daughter who took her elderly mother, who suffered from dementia and frailty, to a nursing home, and made a do-not-resuscitate order (DNR) by filling out the relevant form but left before giving specific instructions and before filling out some of the other forms. In other words, much was still up in the air. 

The next morning, the daughter was informed that her mother was moved to an Intensive Care Unit of a hospital and given a heart monitor, a ventilator, and an intravenous line. 

The case study raises questions about defining DNR, like: does it apply to resuscitation after the loss of life only or also to attempting to save one from dying in the first place? It also emphasizes the need for communication—which was not established here, due to the daughter leaving without providing oral instruction—and education on gray areas like DNR.

To best apply bioethics in your facility, you should: 

1. Conduct a motive check – Knowing your personal motivation is always crucial to implementing a plan designed to improve the quality of care at your facility. Just trying to save face, receive good surveys, and avoid lawsuits are not enough. 
2. Understand your current situation – How well do you know your team or the people who oversee your employees? Knowing their concerns and caring about the gravity of their challenges is key to determining which situations need to be addressed and what conditions need to be improved.
3. Fix breakdowns in communication – You cannot possibly know everything that goes on in your facility. If your do not maintain a strong connection with your staff, it will be impossible for you to recognize the ethical problems that occur.

4. Make extra effort to be empathetic – Recently, a greater emphasis has been placed on the centrality of empathy in ethics. Being able to put yourself in another’s shoes, or, feeling into, feeling with, and feeling for another’s emotions goes a long way in helping you make decisions that have their best interests in mind. 
5. Plan, plan, plan – Sometimes, no matter how strategically we plan, we will fall short of our goal. But experience shows us that planning for success and being aware of potential obstacles in advance allows us to make quicker and better adjustments when needed. 
6. Take training seriously – They may seem like a mere formality, but HR and other forms of nursing training must be given full attention. As the field of ethics in the workplace continues to get increasingly sophisticated, it is not a bad idea for you to stay on top of the most recent developments and utilize advancements in technology—like virtual reality courses on business ethics—when possible. 
7. Pay attention to the particulars of bioethics – It is its own field, and a budding one at that. This means that, in addition to common HR protocols, you will need to familiarize yourself and your staff with the study and application of bioethics, which will be detailed further below.

How to implement bioethics at your nursing home

Every long term care facility must make great effort to both understand the implications of bioethics and then implement the values that emerge from them. Some of the most important things to do are:  

1. Make time – Anyone involved in acute or post-acute care needs to set aside a certain amount of time to learn bioethics and its application. Naturally, doing this is not always easy for many long term care facility owners. If that is the case for you, consider delegating the task to a trustworthy member of your team or ensuring that they are in dialogue with members of a bioethics committee. 
2. Read, listen, and learn – It is important to read the most recent literature  available about bioethics and its practical value, such as Megan-Jane Johnstone’s Bioethics: a nursing perspective. Wilson provided the names of some useful resources in her interview, including Dr. Karl Steinberg’s “Bioethics in Post-Acute and Long Term Care,” which was posted to Provider magazine. She also suggested attending events in which you can listen and learn more about the practical value of bioethics from expert speakers.

Education in bioethics should not be limited to those in leadership positions. Rather, as Wilson said on LTC Heroes, “It should involve all levels of staff, so that they have an understanding of [bioethical] concepts and can explain why things happened.” 

Real example: On the topic of educating the entire staff, Wilson mentioned an example she encountered in a hospital but could easily apply to long term care as well. “The patient and her family decided that she did not want feeding and would simply be on hospice and then let go,” began Wilson. This request was observed by nurses on the day shift. “Everybody understood that we were observing the patient’s autonomy and carrying out her wishes. They all got why it made sense to forgo the feeding tube.” 

A problem occurred when the nurses on the night shift acted on their own and disregarded the requests of the patient and her family. “They felt that the patient was being starved and didn’t understand the ethical or pathophysiological reasons why this was not a good idea,” said Wilson. Further, as Wilson mentioned, there are certain risks associated with the use of feeding tubes, especially considering the condition of this particular patient, who suffered from Alzheimer’s. 

Not surprisingly, the day shift’s lack of awareness about the bioethical implications of the situation produced an unfortunate outcome. “[The night shift] was feeding her and trying to get her to take food and fluids, and, of course, she aspirated,” lamented Wilson, who then pointed  out that this could have been prevented had the others only understood why the day shift nurses chose the path that they did. “That was what [the patient] wanted, and [the night shift] didn’t understand that [not using a feeding tube] was really respecting her autonomy, meaning, it was both beneficence and non-maleficence.”

3. Keep up with case studies – The Center for Practical Bioethics posts case studies, like the one given above, that challenge the reader to weigh competing values in the context of real examples in which physicians were forced to make tough decisions. Studying this site will give you more things to think about and better inform you as to the relevant considerations that exist. 
4. Apply bioethics in a piecemeal fashion – Solve one problem and gain one solution at a time at your facility. Never take a “one size fits all” approach to resolving ethical gray areas, for this does not best protect the rights and interests of your specific residents. 

5. Make clear that the focus is on the resident and not what someone did wrong – One of the biggest challenges in implementing bioethical guidelines is clarifying its focus for nurses. “The focus of bioethics is on the patient or resident and trying to assess their needs and wishes,” said Wilson. “But this is often misunderstood. When nurses receive notes that they are required at a bioethics committee, their reaction is often, ‘Oh no, I’m in trouble. I must have done something unethical’.”

This fear among nurses is the result of not knowing exactly what it is that a bioethics committee does. Wilson clarified the functions of such a body by saying, “The best way I can describe a bioethics committee or the work of a consulting bioethicist individual is to say that we assist in situations in which difficult health care decisions must be made.” Thus, nurses should know that, if they are requested to meet with a bioethics committee, it is because they can provide background information about the patient or resident that is unknown to others in the facility. “They often want the nurse’s input about what the patient may have said about his or her condition or what the nurse knows about the patient’s family life or perhaps religious preference,” she said.

Summary

Bioethics can help you establish a culture of person-centered care at your facility if you understand the contemporary discussions on the topic and know how to implement that which you learn. Staying on top of the rights of residents and federal regulations is a good place to start, but any sort of ethical plan will require further dedication. You must be willing to learn about the concepts of justice, autonomy, nonmaleficence, and benevolence and how they are applied in various situations. 

You will also need to take an honest look at yourself to determine whether your motives are purely financial or if you truly want to elevate the respect and dignity afforded residents. Once you have decided to make bioethics a priority, you can implement a course of action by keeping your staff informed as to the focus of a bioethical approach to care and providing them with realistic goals in the short and long term.

To learn more about making bioethics a part of your plan, you can visit the sites of the American Society for Bioethics and Humanities and the Hastings Center, both recommendations that Wilson shared on the podcast. And for more expert advice, you can contact Wilson at chris@elderethics.net or visit the site for her nonprofit www.communityhealthcareethics.org. She is eager to provide guidance. “I’m happy to talk to anybody about this topic,” she beamed. “If any [listeners] are already part of a bioethics committee and in long term care, and you just want to chat, we can form a group and discuss on Zoom. I would love to do that.”

For more insightful interviews from leaders in long term care, subscribe to the LTC Heroes podcast by clicking here.