Nursing Home Act: Important Legislative History

By: Donna Russo, Esq.

In 1974, the Legislature passed a concurrent resolution for the creation of a commission “to inquire into the condition of the nursing homes and personal care facilities for the aged in [New Jersey].  S. Con. Res. 15 (1974).1  The resolution noted:

[n]ursing homes and personal care facilities for the elderly have proliferated greatly in recent years as a result of the increasing proportion of aged persons in the population and the inability of our modern mobile society to offer to the aged the secure position in a family group which was traditional in former years; and,

. . . The growth of the nursing home industry has received extraordinary impetus since the coming of Medicare and Medicaid programs, which have made available considerable funds for the provision of such services; and,

. . . The growth of this industry has been accompanied by allegations regarding the condition of the nursing homes and the personal care facilities for the aged in this State; and,

. . . It is incumbent upon the Legislature to determine to what extent, if any, these allegations are based on fact; and,

. . . While this situation is currently the subject of several Congressional investigations, primary responsibility for regulation and supervision of these facilities rests with State Government.

The commission was called “the Nursing Home Study Commission”and  was charged with the duty “to conduct a thorough inquiry into the current condition of the nursing homes and the personal care facilities for the elderly in [New Jersey] including the organization, operation, standards and policies of such facilities, the adequacy of such facilities to the social needs of the State, the sufficiency of the State’s standards for the regulation and supervision of such facilities and the implementation and enforcement thereof.”

The then Commissioner of Health, Joanne Finley, M.D., testified that there are seven types of facilities that provide institutionalized long term care in New Jersey – nursing homes (also known as SNFs, i.e., skilled nursing facilities), intermediate care facilities (ICFs), homes for the aged (also classified as skilled nursing facilities), government medical institutions, special hospitals, general hospitals, and facilities for the mentally disabled.  Dr. Finely found that only nursing homes, itermedicate care facilities, and home for the aged to be “nursing homes in the generic sense.”

The Health and Welfare Committee of the Senate, in a statement to the bill that is known as the Nursing Home Act, said the purpose of the statute:

Residents of nursing homes are all too often given inferior treatment because they are old, feeble or poor.  They are in need of a bill of rights similar to the bill recently passed by the Legislature and signed into law, enumerating certain rights of the mentally ill.

This bill not only declares that nursing home residents have certain rights; it also lists a number of responsibilities that nursing homes have with regard to the care of residents.

The Federal government has established clear standards of care for residents of skilled and itermedicate care nursing facilities who are Medicaid or Medicare recipients.  However, this bill makes similar standards of care applicable to all nursing homes and nursing home residents in the State and, moreover, makes such standards an expression of legislative policy and intent.

The Appellate Division also analyzed the N.J. Supreme Court’s findings in 1985 in In re Conroy, 98 N.J. 321, 374-77 (citations omitted) (1985).] The Supreme Court found:

First, residents of nursing homes are a particularly vulnerable population.  Nursing-home residents are often quite elderly, with an average age of eighty-two nation-wide.  Most suffer from chronic or crippling disabilities and mental impairments, and need assistance in activities of daily living.  The vast majority of patients who enter a nursing home will eventually die there, and their illnesses and deaths will be viewed as consistent with their advanced age and general infirmity.

Second, nursing home-residents are often without any surviving family.  More than half have no surviving parents, siblings, or children.  Their social isolation is severe.  Many never have visits from anyone and few ever spend nights away except for medical reasons.  Thus, the involvement of caring family members . . . . may not be a realistic possibility for many nursing-home residents.

Third, physicians play a much more limited role in nursing homes than in hospitals.  The Subcommittee on Long-Term Care of the Senate Special Committee on Aging states that physicians visit their patients in nursing homes infrequently, and then for only  brief periods of time.  According to the Subcommittee, physicians avoid nursing homes because of the general shortage of physicians, the low priority for elderly citizens in medical education, the red tape and low reimbursement associated with Medicare and Medicaid, the shortage of trained ‘backup’ personnel in nursing homes, the emphasis on acute care in American medicine, the depressing environment in many nursing homes, and the disincentives of time and travel.  The ‘missing physician’ is the general rule in nursing homes. . . . .

Fourth, nursing homes as institutions suffer from peculiar industry-wide problems to which hospitals are less prone. . . . .

Finally, nursing homes generally are not faced with the need to make decisions about a patient’s medical care with the same speed that is necessary in hospitals.  Hospitals called upon for urgent care, and treatment decisions in that context must be made quickly.  Nursing Homes, in contrast, care for individuals whose lives are slowly declining and for whom treatment issues arise more gradually and are foreseeable longer in advance.

The Nursing Home Act was enacted in 1976, N.J.S.A. 30:13-1 et. seq.

1The legislative history was obtained from the Appellate Division opinion Wilson Bermudez v. Kessler Institute For Rehabilitation 1/8/15 (reported decision)