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The Ties That Bind: Life Care Contracts and Nursing Homes

Published online by Cambridge University Press:  29 April 2021

Lawrence R. Leonard
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Abstract

Approximately 1.3 million of our nation's elderly live in nursing homes. Despite the increasingly important role of Medicare and Medicaid, many must bear the costs of their care. This Note examines one means of financing nursing home care—the life care contract. These require residents to pay an entrance fee and transfer to the nursing home all or part of their property in return for the home's promise to provide care for the remainder of the resident's life. The Note discusses the potential problems a life care resident may face, such as substandard living conditions or a home's financial instability. It concludes by delineating steps that potential residents can take in constructing life care contracts to ensure protection of their rights and needs.

Type
Notes and Comments
Information
American Journal of Law & Medicine , Volume 8 , Issue 2 , Summer 1982 , pp. 152 - 173
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1982

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References

1 Moss, F. & Halamandaris, V., Too Old, Too Sick, Too Bad 74 (1977)Google Scholar. Between 1960 and 1978, nursing home revenues increased 3,000 percent from $500 million to $15.5 billion. Special Problems in Long-Term Care; Hearing Before the Subcomm. on Health & Long-Term Care of the Select Cdmm. on Aging, 96th Cong., 1st Sess. 2 (1979).

2 Special Problems in Long-Term Care, supra note 1, at 1.

3 Developments in Aging: 1980: A Report of the Special Senate Comm. on Aging, 97th Cong., 1st Sess. 77 (1981).

4 Two types of nursing homes offer nursing care. The Skilled Nursing Facility (SNF) has a minimum of one registered nurse in charge of nursing on the day shift, eight hours a day, seven days a week. In addition, at least one licensed practical nurse must be in charge of nursing on the 3:00 p.m. to 11:00 p.m. shift and on the 11:00 p.m. to 7:00 a.m. shift. The Intermediate Care Facility (ICF) has one licensed practical nurse in charge of nursing on the morning shift, seven days a week. Also, ICFs make arrangements for consultation with a registered nurse at least four hours per week. H. Rowland, The Nurse's Almanac 413-14 (1978). References in this Note to “nursing home” and “home” include both SNFs and ICFs unless otherwise indicated.

SNFs and ICFs should be distinguished from boarding homes. Unlike nursing homes, boarding homes do not provide medical attention, and the standards that they must meet are far less strict. Fraud and Abuse in Boarding Homes: Hearing Before the House Select Comm. on Aging, 97th Cong., 1st Sess. 4 (1981). There are approximately 100,000 boarding homes in the United States housing approximately a million people, but standards for these homes are minimal and enforcement lax in most states. Id. at 2. This Note does not include boarding homes in its discussion of nursing homes and life care contracts.

5 Special Problems in Long-Term Health Care, supra note 1, at 3; H. Rowland, supra note 4, at 428.

6 Special Problems in Long-Term Health Care, supra note 1, at 3; H. Rowland, supra note 4, at 428.

7 Special Problems in Long-Term Health Care, supra note 1, at 3; H. Rowland, supra note 4, at 428.

8 H. Rowland, supra note 4, at 430.

9 Only 20% of those who enter a nursing home ever return home. Special Problems in Long-Term Health Care, supra note 1, at 3.

10 Special Problems in Long-Term Health Care, supra note 1, at 3.

11 If the nursing home industry received revenues in 1978 of $15.5 billion to care for 1.3 million residents, the cost averages to approximately $12,000 per resident per year. Accounting for inflation and other costs, this amount may now be significantly higher. See supra note 1 and accompanying text.

12 H. Rowland, supra note 4, at 412.

13 Id.

14 F. Moss & V. Halamandaris, supra note 1, at 127.

15 Special Problems in Long-Term Health Care, supra note 1, at 650 (incorporating AFL-CIO Executive Statement & Report, Nursing Homes & The Nation's Elderly (1977)).

16 Much in the way that insurance companies use actuarial tables in determining annuities, nursing homes determine each applicant's life expectancy to arrive at a minimum property value which it would consider before offering a contract to an applicant.

17 See, e.g., Special Problems in Long-Term Health Care, supra note 1; Developments in Aging: 1980, supra note 3; Fraud and Abuse in Boarding Homes, supra note 4; Drug Abuse in Nursing Homes: Hearing Before the House Select Comm. on Aging, 96th Cong., 2d Sess. (1980); F. Moss & V. Halamendaris, supra note 1, at 15-131.

18 F. Moss & V. Halamandaris, supra note 1, at 26-27; Special Problems in Long-Term Health Care, supra note 1, at 196-222 (incorporating testimony of Daphne H. Krause, President, Minneapolis Age and Opportunity Center, Inc., and the M.A.O. National Institute on Aging, Minneapolis, Minn, [hereinafter cited as D. Krause Testimony]. The testimony includes extracts from the Minnesota Department of Health files). The House Select Committee on Aging reported that 11 percent of the intermediate care facilities in the United States suffer from sanitary violations. Special Problems in Long-Term Health Care, supra note 1, at 524.

19 F. Moss & V. Halamandaris, supra note 1, at 59. Seventy-two percent of United States’ nursing homes have one or more major fire hazards. Special Problems in Long-Term Health Care, supra note 1, at 120.

20 Special Problems in Long-Term Health Care, supra note 1, at 227 (incorporating D. Krause Testimony, supra note 17).

21 Id. at 410-11; F. Moss & V. Halamandaris, supra note 1, at 29-30.

22 Special Problems in Long-Term Health Care, supra note 1, at 288-306 (incorporating D. Krause Testimony, supra note 17); F. Moss & V. Halamandaris, supra note 1, at 15-26.

23 Special Problems in Long-Term Health Care, supra note 1, at 160 (incorporating D. Krause Testimony, supra note 17).

24 Id. at 160-195; F. Moss & V. Halamandaris, supra note 1, at 25.

25 Special Problems in Long-Term Health Care, supra note 1, at 331-39 (incorporating D. Krause Testimony, supra note 17); F. Moss & V. Halamandaris, supra note 1, at 32- 33, 36-37.

26 Special Problems in Long-Term Health Care, supra note 1, at 414 (incorporating D. Krause Testimony, supra note 17); F. Moss & V. Halamandaris, supra note 1, at 33-34.

27 Special Problems in Long-Term Health Care, supra note 1, at 391-93 (incorporating D. Krause Testimony, supra note 17); F. Moss & V. Halamandaris, supra note 1, at 171-84.

28 Special Problems in Long-Term Health Care, supra note 1, at 391 (incorporating D. Krause Testimony, supra note 17).

29 Id. at 407-08.

30 F. Moss & V. Halamandaris, supra note 1, at 39.

31 Drug Abuse in Nursing Homes: Hearings Before the House Select Comm. on Aging, 96th Cong., 2d Sess. 40-56 (1980).

32 Special Problems in Long-Term Care, supra note 1, at 412-13 (incorporating D. Krause Testimony, supra note 17); F. Moss & V. Halamandaris, supra note 1, at 30-31.

33 Special Problems in Long-Term Health Care, supra note 1, at 5-6 (statement of Elma Griesel, Executive Director, National Citizens’ Coalition for Nursing Home Reform). Griesel testified as to the source of her information:

The coalition's information comes from several sources: Our 62 member groups’ day-to-day experience in nursing homes and with regulatory agencies; letters and telephone calls from family members and current and former nursing home employees; a growing library of State and Federal legislative and regulatory studies; newspaper investigations; our field experiences as we travel around the country training local nursing ombudsman and volunteer advocates; and our contacts and work with the growing number of legal services programs which handle nursing home cases.

34 See id.

35 Griesel evaluated the system in this manner:

The regulatory system is understaffed, disorganized, misdirected, and too often desensitized to the problems I have cited. How do we know? We have turned to it for assistance and have closely monitored its activities or failure to act. We have had it turn away from our information, our questions and pleas for change, while at the same time, individual employee advocates within that system have turned to us, the consumers, for the answers and support they need to resolve the problems.

The regulatory system is in a state of disarray, often totally unaccountable to the public it was intended to serve.

Regulatory agencies suffer from staff shortages and lack of qualified staff to survey and enforce standards. Indeed, in many ways—the regulatory system has been guided by the frequent presence and influence of industry spokesmen. No one else is there to give them support or to assist them in any attempt to go in the right direction. No wonder that their loyalties are directed to the providers instead of to the public. The inspection system, in spite of universal acknowledgment that it does not work, still looks only at the facilities’ capacity to deliver care instead of the actual care delivery. It is still a paper compliance system. Even when deficiencies are found, regulatory agencies frequently lack appropriate authority to insure immediate correction of serious life and health threatening conditions.

Many agencies and health programs struggle daily with this complicated structure. Among the most important are health systems agencies, which continually bend to the persuasions of the industry and feel they must approve new nursing homes for providers who have flagrantly violated established, however minimal, standards. Or health systems agencies which promulgate long-term care plans, favorable to nursing home investment interests, at the expense of the development of less traditional, emphatically needed alternatives to institutionalized care.

Also included are the State nursing home ombudsman programs which have been given a mandate to handle all the thousands of complaints across the country, with virtually pennies for program development and staff.

On top of all that, we, the taxpayers, are forced to pay billions to perpetuate this distorted and inhumane system.

Accountability for taxpayers’ moneys supplied to facilities is often minimal. Antifraud and abuse programs have only begun to create suitable mechanisms to uncover the numerous frauds in this field. These new units are confronted by a system in which records are scarce, or gaining accessibility to records can be laborious and frequently impossible.

Special Problems in Long-Term Health Care, supra note 1, at 7-8 (statement of Elma Griesel).

36 Id. at 40 (statement of Jacqueline C. Walker, State Nursing Home Ombudsman, Dept. of Aging, Hartford, Conn.).

37 Id. at 48 (statement of Jim McDermott, Chairman, Educ. Comm., Vice Chairman, Ways & Means Committee, Wash. State Senate).

38 Id. at 78 (statement of Laurence F. Lane, Director for Public Policy, American Ass'n of Homes for the Aging).

39 Id. at 87 (statement of Jack A. MacDonald, Executive Vice President, Nat'l Council of Health Care Serv.).

40 Id.

41 11 U.S.C. § 362 (Supp. IV 1980).

42 Id. § 1129.

43 Id. § 101 (37).

44 Id. § 725.

45 Id. § 507.

46 Id. § 507(a)(5).

47 Id. Specifically, the Code provides:

(5) Fifth, allowed unsecured claims of individuals, to the extent of $900 for each such individual, arising from the deposit, before the commencement of the case, of money in connection with the purchase, lease, or rental of property, or the purchase of services, for the personal, family, or household use of such individuals, that were not delivered or provided.

48 Cal. Health & Safety Code § 1770.5 (West 1979) (legislative findings).

49 Blenkner, , Environmental Change & the Aging, 7 Gerontologist 101 (1967)Google Scholar.

50 Aspen Systems Corp., Nursing Home Law Manual, Financial Management 1 (1971) [hereinafter cited as Aspen Systems Corp.].

51 Id.

52 If this amount is not specified in the contract, the resident may be charged much more than the actual cost of care, and more than he or she expected.

53 Aspen Systems Corp., supra note 50, at 27.

54 See supra note 10 and accompanying text.

55 Nicolaysen v. Pacific Home, 65 Cal. App. 2d 769, 151 P.2d 567 (Dist. Ct. App. 1944).

56 See infra notes 66-77 and accompanying text.

57 “ ‘Mutuality of contract’ means that obligation rests on each party to do or permit doing of something in consideration of other party's act or promise; neither party being bound unless both are bound.” Black's Law Dictionary 920 (rev. 5th ed. 1979).

58 Mere or future expectancies cannot be assigned at law but may be assigned in equity. See infra notes 78-82 and accompanying text.

59 See, e.g., Wilson v. Dexter, 135 Ind. App. 247, 192 N.E.2d 469 (1963); Dalton v. Florence Home for the Aged, 154 Neb. 735, 49 N.W.2d 595 (1951).

60 Dalton v. Florence Home for the Aged, 154 Neb. 735, 742, 49 N.W.2d 595, 599 (1951).

61 Id., at 742-43, 49 N.W.2d at 599.

62 See, e.g., Gold v. Salem Lutheran Home Ass'n of the Bay Cities, 53 Cal. 2d 289, 347 P.2d 687, 1 Cal. Rptr. 343 (1959); Stoddard v. Gabriel, 234 Iowa 1366, 14 N.W.2d 737 (1944).

63 Bruner v. Oregon Baptist Retirement Home, 208 Or. 502, 302 P.2d 558 (1956). The court stated that since the home would have profited financially by the resident's early death, the resident may profit from the benefit of his bargain. Id. at 506, 302 P.2d at 560.

64 Inderkum v. German Old People's Home, 23 Cal. App. 2d 733, 74 P.2d 83 (Dist. Ct. App. 1937).

65 Id. at 734-35, 74 P.2d at 83-84. Additionally, the court held the contract valid even though performance could not be specifically enforced. Id.

66 Kirkpatrick Home for Childless Women v. Kenyon, 119 Misc. 349, 196 N.Y.S. 250 (Sup. Ct. 1922), aff'd 206 A.D. 728, 199 N.Y.S. 351 (1923).

67 119 Misc. at 353, 196 N.Y.S. at 253.

68 See Caldwell v. Basler, Inc., 225 Cal. App. 2d 327, 37 Cal. Rptr. 307 (Dist. Ct. App. 1964); Gold v. Salem Lutheran Home Ass'n of the Bay Cities, 53 Cal. 2d 289, 347 P.2d 687, 1 Cal. Rptr. 343 (1959).

69 See, e.g., Bower v. The Estaugh, 146 N.J. Super. 116, 369 A.2d 20 (App. Div. 1977) (resident paid $16,750 entrance fee and died one month later).

70 See, e.g., Riemenschneider v. Fritz Reuter Altenheim, 146 N.J. Super. 123, 369 A.2d 24 (App. Div. 1977); Smith v. Eliza Jennings Home, 176 Ohio St. 351, 199 N.E.2d 733 (1964).

71 See, e.g., Caldwell v. Basler, Inc., 225 Cal. App. 2d 327, 37 Cal. Rptr. 307 (Dist. Ct. App. 1964); Gold v. Salem Lutheran Home Ass'n of the Bay Cities, 53 Cal. 2d 289, 347 P.2d 687, 1 Cal. Rptr. 343 (1959).

72 225 Cal. App. 2d 327, 37 Cal. Rptr. 307 (Dist. Ct. App. 1964).

73 Cal. Health & Safety Code §§ 1770-1791.6 (West 1979 & Supp. 1982).

74 225 Cal. App. 2d at 329-30, 37 Cal. Rptr. at 309.

75 53 Cal. 2d 289, 347 P.2d 687, 1 Cal. Rptr. 343 (1960).

76 Id. at 290-91, 347 P.2d at 689, 1 Cal. Rptr. at 344-45.

77 Id. at 291-92, 347 P.2d at 689, 1 Cal. Rptr. at 345. The court ruled the doctrine of frustration inapplicable because the resident's death was reasonably forseeable, and hence the terms of the contract were enforced. Id.

78 See Taylor v. Barton Child Co., 228 Mass. 126, 117 N.E. 43 (1917); see generally Calamari, J. & Periixo, J., The Law of Contracts 659 (1977)Google Scholar.

79 See Eagan v. Luby, 133 Mass. 543 (1882).

80 Fidelity Union Trust Co. v. Reeves, 96 N.J. Eq. 490, 125 A. 582 (1924), aff'd 98 N.J. Eq. 412, 129 A. 922 (1925).

81 Id. at 492-93, 125 A. at 583.

82 Connelly v. Methodist Home of D.C., 190 A.2d 550 (D.C. 1963); Newburyport Soc'y for Relief of Aged Women v. Noyes, 287 Mass. 530, 192 N.E. 54 (1934); Ressler's Estate, 18 Pa. D. & C. 393 (1933).

83 See Van Valkenburg v. Retirement Homes of the Detroit Annual Conference of the Methodist Church, 7 Mich. App. 77, 151 N.W.2d 197 (1967); Pickard v. Oregon Senior Citizens, Inc., 238 Or. 359, 395 P.2d 168 (1964).

84 See, e.g., Connelly v. Methodist Home of D.C, 190 A.2d 550 (D.C. 1963); Stiegelmeier v. West Side Deutscher Frauen Verein, 20 Ohio Op. 2d 368, 178 N.E.2d 516 (1961). But see Stocking by Monteiro v. Hall, 81 R.I. 168, 100 A.2d 408 (1953).

85 Pickard v. Oregon Senior Citizens, Inc., 238 Or. 359, 395 P.2d 168 (1964).

86 See Baltimore Humane Impartial Soc'y & Aged Women's & Aged Men's Homes v. Marley, 156 Md. 478, 144 A. 521 (1929).

87 Id. at 481, 144 A. at 522.

88 Van Valkenberg v. Retirement Homes of the Detroit Annual Conference of the Methodist Church, 7 Mich. App. 77, 151 N.W.2d 197 (1967).

89 42 U.S.C. § 1302 (1976 & Supp. Ill 1979).

90 42 C.F.R. § 442.311 (1980).

91 See, e.g., Colo. Rev. Stat. § 25-1-120 (1973 & Supp. 1981); N.C. GEN. Stat. §§ 130- 264 to 266 (1981).

92 See infra, notes 120-29 and accompanying text.

93 42 U.S.C. §§ 1395-1395s (1976 & Supp. 1979).

94 Id. §§ 1396-1396k.

95 Almost 20,000 nursing homes voluntarily participate in medicare and/or medicaid programs. Developments in Aging: 1980, supra note 3, at 77.

96 42 U.S.C. §§ 1396-1396k (1976 & Supp. Ill 1979).

97 42 C.F.R. §§ 442.1-442.516 (1980).

98 Id. §§ 442.311 (1980). The Resident's Bill of Rights provides:

The ICF must have written policies and procedures that insure the following rights for each resident:

  • (a) Information.

    1. (1)

      (1) Each resident must be fully informed, before or at the time of admission, of his rights and responsibilities and of all rules governing resident conduct.

    2. (2)

      (2) If the ICF amends its policies on residents’ rights and responsibilities and rules of conduct, each resident in the ICF at that time must be informed.

    3. (3)

      (3) Each resident must acknowledge in writing receipt of the information and any amendments to it.

    4. (4)

      (4) Each resident must be fully informed in writing of all services available in the ICF and of the charges for these services including any charges for services not paid for by Medicaid or not included in the ICF's basic rate per day. The ICF must provide this information either before or at the time of admission and on a continuing basis as changes occur in services or charges during the resident's stay.

  • (b) Medical condition and treatment.

    1. (1)

      (1) Each resident must—

      • (i) Be fully informed by a physician of his health and medical condition unless the physician decides that informing the resident is medically contraindicated;

      • (ii) Be given the opportunity to participate in planning his total care and medical treatment;

      • (iii) Be given the opportunity to refuse treatment; and

      • (iv) Give informed, written consent before participating in experimental research.

    2. (2)

      (2) If the physician decides that informing the resident of his health and medical condition is medically contraindicated, the physician must document this decision in the resident's record.

  • (c) Transfer and discharge. Each resident must be transferred or discharged only for—

    1. (1)

      (1) Medical reasons;

    2. (2)

      (2) His welfare or that of the other residents; or

    3. (3)

      (3) Nonpayment except as prohibited by the Medicaid program.

  • (d) Exercising rights. Each resident must be—

    1. (1)

      (1) Encouraged and assisted to exercise his rights as a resident of the ICF and as a citizen; and

    2. (2)

      (2) Allowed to submit complaints or recommendations concerning the policies and services of the ICF to staff or to outside representatives of the resident's choice or both, free from restraint, interference, coercion, discrimination, or reprisal.

  • (e) Financial affairs. Each resident must be allowed to manage his personal financial affairs. If a resident requests assistance from the ICF in managing his personal financial affairs—

    1. (1)

      (1) The request must be in writing; and

    2. (2)

      (2) The ICF must comply with the recordkeeping requirements of § 442.320.

  • (f) Freedom from abuse and restraints.

    1. (1)

      (1) Each resident must be free from mental and physical abuse.

    2. (2)

      (2) Each resident must be free from chemical and physical restraints unless the restraints are—

      • (i) Authorized by a physician in writing for a specified period of time; or

      • (ii) Used in an emergency under the following conditions:

        • (A) The use is necessary to protect the resident from injuring himself or others.

        • (B) The use is authorized by a professional staff member identified in the written policies and procedures of the facility as having the authority to do so.

        • (C) The use is reported promptly to the resident's physician by that staff member.

  • (g) Privacy.

    1. (1)

      (1) Each resident must be treated with consideration, respect, and full recognition of his or her dignity and individuality.

    2. (2)

      (2) Each resident must be given privacy during treatment and care of personal needs.

    3. (3)

      (3) Each resident's records, including information in an automatic data bank, must be treated confidentially.

    4. (4)

      (4) Each resident must give written consent before the ICF may release information from his record to someone not otherwise authorized by the law to receive it.

    5. (5)

      (5) A married resident must be given privacy during visits by his spouse.

    6. (6)

      (6) If both husband and wife are residents of the ICF, they must be permitted to share a room.

  • (h)Work. No resident may be required to perform services for the ICF.

  • (i)Freedom of association and correspondence. Each resident must be allowed to—

    1. (1)

      (1) Communicate, associate, and meet privately with individuals of his choice, unless this infringes on the rights of another resident; and

    2. (2)

      (2) Send and receive personal mail unopened.

  • (j)Activities. Each resident must be allowed to participate in social, religious, and community group activities.

  • (k)Personal possessions. Each resident must be allowed to retain and use his personal possessions and clothing as space permits.

99 Id. § 442.311(a).

100 Id. § 442.311(b).

101 Id. 442.311(c).

102 Id. § 442.311(d).

103 Id. § 442.311(e).

104 Id. § 442.311(f).

105 Id. § 442.311(g).

106 Id. § 442.311(h).

107 Id. § 442.311(i).

108 Id. § 442.311(j).

109 Id. § 442.311(k).

110 Id. §§ 442.321-442.323.

111 Id. §§ 442.324-442.330.

112 Id. §§ 442.331-442.332.

113 Id. §§ 442.333-442.337.

114 Id. §§ 442.338-442.342.

115 Id. §§ 442.343-442.346. In July, 1980, HHS proposed a general revision of the current regulations establishing the conditions which nursing homes must meet to participate in Medicare and Medicaid. 45 Fed. Reg. 47,368-85 (1980). The proposed revision was designed to “simplify and clarify the regulations, to focus on patient care, to promote cost containment while maintaining quality care, and to achieve more effective compliance.” Id. at 47,368. In January, 1981, however, the proposed regulations were withdrawn because their economic impact had not been determined. 46 Fed. Reg. 7408 (1981) (proposal withdrawn). The Reagan Administration is now reviewing the conditions of participation for nursing homes as part of its “regulatory effort,” and the proposed revision is under review. Semiannual Regulations Agenda and Review List, 46 Fed. Reg. 55,621 (1981).

116 42 U.S.C. § 1396a (1974 & Supp. 1982).

117 See, e.g., Alaska Stat. § 18.20.060 (1974); Conn. Gen. Stat. § 19-580 (Supp. 1982); Hawaii Rev. Stat. § 321-11(10) (Supp. 1981); Ky. Rev. Stat. Ann. § 216 A.070 (Bobbs- Merrill 1977) (licensing of nursing home administrators); Miss. Ann. Stat. § 43-11-13 (Vernon 1972); S.D. Codified Laws Ann. § 34-12-13 (Supp. 1981); Va. Code § 32.1-127 (I'979); Wash. Rev. CODE Ann. § 18.51.070 (Supp. 1982).

118 See generally, Committee on the Office of Attorney General, Natl'l Ass'n of Attorneys General, Enforcing Quality Care in Nursing Homes (1978), reprinted in Special Problems in Long-Term Care, supra note 1, at 553-628.

119 See supra note 91.

120 Cal. Health & Safety Code §§ 1770-1791.6 (West 1979 & Supp. 1982); Colo. Rev. Stat. §§ 12-13-101 to -199 (1978 & Cum. Supp. 1981); See also Mo. Ann. Stat. §§ 376.900- 376.950 (Vernon Supp. 1982).

121 Cal. Health & Safety Code §§ 1771.2, 1771.3 (West 1979 & Supp. 1982); Colo. Rev. Stat. §§ 12-13-102, 12-13-103 (Cum. Supp. 1981).

122 Cal. Health & Safety Code §§ 1791-1791.6 (West 1979).

123 Colo. Rev. Stat. §§ 12-13-102, 12-13-103 (Cum. Supp. 1981).

124 Cal. Health & Safety Code § 1775 (West 1979); Colo. Rev. Stat. § 12-13-107 (Cum. Supp. 1981).

125 Cal. Health & Safety Code § 1777 (West 1979); Colo. Rev. Stat. § 12-13-106(7) (Cum. Supp. 1981).

126 N.Y. Pub. Health Law § 2805-f (Consol. Supp. 1982); 28 Pa. Admin. Code § 201.38 (1979).

127 N.Y. Pub. Health Law § 2805-f(1) (Consol. Supp. 1982).

128 Id. § 2805-f(3).

129 28 Pa. Admin. Code § 201.38 (1979).

130 For instance, Moss & Halamandaris devote a chapter in their book to the proper steps to follow in choosing a nursing home. F. Moss & V. Halamandaris, supra note 1, at 219-32. They also provide a list of organizations and other professional groups interested in long-term care that may be of help. Id. at 300-04.

131 Moss & Halamandaris suggest that the potential resident visit the home either between seven and eight o'clock in the morning or between eleven and one, when she can observe the noon meal. F. Moss & V. Halamandaris, supra note 1, at 223. They also recommend returning to the facility late at night. Id.

132 F. Moss & V. Halamandaris, supra note 1, at 227.

133 See supra, notes 90-129 and accompanying text.

134 “Failure to maintain” should mean more than just the commission of a single violation. Rather, it should mean the commission of repeated violations or failure to rectify same.

135 See supra, notes 83-88 and accompanying text.

136 Most last one to six months. See, e.g., Mo. Ann. Stat. § 376.925 (Vernon Supp. 1982) (providing minimum one week period). Ideally, the period should be longer. Aspen Systems Corp., supra note 50, at 1.

137 Aspen Systems Corp., supra note 50, at 26.

138 See Van Valkenburg v. Retirement Homes of the Detroit Annual Conference of the Methodist Church, 7 Mich. App. 77, 151 N.W.2d 197 (1967); see also Aspen Systems Corp., supra note 50, at 26.

139 See supra notes 120-25 and accompanying text.

140 See generally supra notes 42-47 and accompanying text.

141 See generally 4 A. Corbin, Corbin on Contracts, § 799 (1951). The bond is similar to an insurance contract. The home pays a fee equivalent to a premium, and the bonding company establishes a bond guaranteeing the performance of the home.

142 11 U.S.C. § 506 (1976 and Supp. IV 1980).

143 See supra notes 41-47 and accompanying text.

144 45 C.F.R. § 1321.43 (1980).

145 Id. § 1321.43(c)(1).

146 Id. § 1321.43(c)(2).

147 Id. § 1321.43(d).