¹ For definitions and for a concise description of the mechanisms, both state and federal, whereby institutional quality is regulated, see P. O'Donoghue, Evidence About the Effects of Health Care Regulation 83-90 (1974). For a detailed analysis of how state enforcement of nursing home standards works—or fails to work—see New York State Moreland Act Commission, Regulating Nursing Home Care: The Paper Tigers (1975).

² This escalation of building code requirements is apparently part of a more general trend, “a quiet explosion in the scope and pervasiveness of federal regulation.” Lilley and Miller, The New “Social Regulation,” The Public Interest, Spring 1977, at 49.

³ O'Donoghue observes that research evidence shows that physical plant regulations in general are both more fully developed and more rigorously enforced than regulations related directly to patient care. He cites differences of opinion as to the appropriateness of this emphasis on physical plant: opponents arguing that patient care isprima facie more important; proponents arguing that physical plant requirements assure minimal standards of quality and safety and that subtler assessments of quality are best left to professional performance review mechanisms. O'Donoghue, supra note 1, at 88.

⁴ See Staff of Subcomm. on Long Term Care, Senate Special Comm. on Aging, 94th Cong., 1st Sess., Nursing Home Care in the United States: Failure in Public Policy, Supporting Paper No. 5, The Continuing Chronicle of Nursing Home Fires (Comm. Print 1975); The Tragedy of Nursing Home Fires: The Need for a National Commitment for Safety: Joint Hearing Before the Subcomm. on Long Term Care of the Senate Special Comm. on Aging and the Subcomm. on Health and Long Term Care of the House Select Comm. on Aging, 94th Cong., 2d Sess. (1976); Staff of Subcomm. on Health and Long Term Care, House Select Committee on Aging, 94th Cong., 2d Sess., The Tragedy of Multiple Death Nursing Home Fires: The Need for a National Commitment to Safety (1976). [The latter document is hereinafter referred to as 1976 House Subcommittee.]

⁵ It should be noted at the outset of this discussion that smoke inhalation, not contact with flames, is the major cause of death in fires, and that fire safety codes therefore focus not only on preventing fire and delaying its spread, but on minimizing smoke production and on keeping smoke away from occupants of a facility once a fire has begun. Because many “noncombustible” building materials are heavy smoke producers, the cost of “smokeless” renovations is high.

⁶ This paper deals only with financial resource allocation (rationing between two competing societal uses), not with the secondary or tertiary economic problems created, such as the substitution problems caused by using scarce physical and human resources in carrying out fire safety renovations, which is beyond the scope of this paper.

⁷ For purposes of this analysis, it has been presumed (1) that the worth of a human life can be expressed in financial terms (religious, political, economic, or social “worth” has been ignored) and (2) that all persons are of equal financial worth to society. Admittedly, both of these presumptions involve significant analytical simplification. To disprove the second presumption, one has only to point to the great amount of financial resources allocated to protecting the President of the United States.

⁸ National Fire Protection Association, Nepa No. 101, Code for Safety to Life from Fire in Building Structures (1967).

⁹ Lewis, The Uncertain Future of JCAH, Modern Healthcare, August 1975, at 20-24.

¹⁰ Id. at 21.

¹¹ Computed from National Center for Health Statistics, Hew, Utilization of Short Stay Hospitals, 1975, at 24 (Table 1) (1977).

¹² Computed from National Center for Health Statistics, Hew, 1 Vital Statistics of the United States 5-8 (Section 5, Life Tables) (1975). This estimate is deliberately conservative as it does not correct for the likelihood that people aged 55 who are in a hospital have, in aggregate, a shorter life expectancy than does the general public, aged 55.

¹³ Total nonfederal short-term general and other special hospitals in 1975, in American Hospital Association, Guide to the Health Care Field 1976, at 8 (1976).

¹⁴ This wide range reflects the fact that decisions to grant waivers are highly judgmental and may in practice vary from facility to facility within a given state as well as from state to state. It could be argued at this juncture that because the nation has an overabundance of hospital beds, McClure, Reducing Excess Hospital Capacity (1976), facilities that fail to comply with the Life Safety Code should simply be retired. This is not a practicable solution for several reasons, not the least of which is that the most desirable health care institutions are not necessarily those with the best physical structures.

¹⁵ Estimate made in 1976 by the Massachusetts Department of Public Health, based on the experience of the Massachusetts certificate-of-need program, in which average hospital project capital construction costs ranged from $80,000 to $120,000 per bed.

We use the Massachusetts illustration throughout because it is familiar to us. There is, however, little doubt that the Massachusetts experience has general applicability in principle. See, for example, the testimony of J. Monahan, Florida Hospital Association, in Executive Office of the President, Council on Wage and Price Stability, The Complex Puzzle of Rising Health Care Costs 16 (1976). Monahan testified that in his view inadequate consideration was given to the cost of Life Safety Code requirements by the NFPA and that those requirements should not automatically be made conditions for participation in the Medicare program. Noting that many of NFPA's members are in the construction and safety products businesses, he suggested that Medicare independently develop its own facility standards after thorough consideration of costs and benefits. Id. at 35.

¹⁶ Department of Public Health, Commonwealth of Massachusetts, Health Data Annual 1976, at 97 (Table 39) (1976).

¹⁷ Estimates developed by the Massachusetts Department of Public Health.

¹⁸ Assuming that none of the beds in question would otherwise have to be replaced.

¹⁹ A multiple-death fire, by definition, is one causing three or more fatalities. Unpublished data of the National Fire Protection Association (NFPA), 470 Atlantic Avenue, Boston, Mass.

²⁰ 1976 House Subcommittee, supra note 4, at vii.

²¹ The average age of nursing home residents nationally is 78 years; 85 percent of people who enter nursing homes die in them, one-third within the first year, another third within the next two years. R. Butler, Why Survive? 267 (1975).

²² 1976 House Subcommittee, supra note 4, at 19.

²³ Id. at 12.

²⁴ Id. at viii.

²⁵ Id. at vii.

²⁶ Assuming three treatments per week at $140 per treatment. This is purely routine maintenance and does not take into account complications, hospitalization, or ancillary costs.

²⁷ For methodological considerations in cost effectiveness analysis see Weinstein, and Stason, Foundations of Cost-Effectiveness Analysis for Health and Medical Practices, 296 New Eng. J. Med. 716 (1977).CrossRefGoogle Scholar

²⁸ This is not to suggest that if relieved of a federally imposed burden of enforcing the Life Safety Code the state could redirect resources into dentures and hearing aids for needy old people. The situation is far too complex and, indeed, this complexity is a large part of the problem. Abelson describes the Commission's finding that tremendous growth in federal activities in the United States has brought us into an “era of government by program,” in which each program and its bureaucracy has developed its own separate requirements and systems and is “committed to individual program objectives more than to the general welfare of the Nation and its citizens.” Abelson, Commission on Federal Paperwork, 197 Science 4310 (1977).CrossRefGoogle Scholar

²⁹ See Hiatt, Protecting the Medical Commons: Who Is Responsible? 293 New Eng. J. Med. 235 (1975); V. Fuchs, Who Shall Live? (1974).CrossRefGoogle ScholarPubMed