INDEPENDENT CHOICES: A National Symposium on Consumer-Direction and Self-Determination for the Elderly and Persons with Disabilities. Consumer Direction in Long-Term Care: A Taxonomy of Legal Issues


The activities of home health agencies are highly regulated, primarily for the purposes of assuring that the quality of services the agencies provide meets defined minimum levels and protects the rights and interests of service consumers and agency employees. This regulation takes a panoply of forms, including the following: state licensure of agencies and the individual professionals whom agencies employ or with whom they contract; federal Medicare and Medicaid Conditions of Participation, 42 C.F.R. Part 484 and 42 C.F.R. § 440.70(d); peer review organization assessment of compliance with professionally recognized standards of care; tort litigation seeking financial recovery for alleged injury directly caused by professional malpractice; and antifraud and abuse, antitrust, and other laws attempting to control the amount and propriety of financial payments made to home health agencies.

As described in this issue of Generations, various alternative models are evolving in the United States (and elsewhere) seeking to maximize the extent of consumer involvement in formulating and implementing publicly funded long-term-care plans. Under these models, the consumer (or the consumer's surrogate decision maker) may choose to purchase specific healthcare components of an individualized service plan from formal home health agencies or may utilize independent service providers to satisfy healthcare or personal-care needs.

The paradigm shift away from the traditional, highly regulated agency model of publicly supported long-term care toward delivery and financing models within which the consumer is empowered to control the who, what, where, when, and how details of the service plan creates new sets of relationships and raises many new legal concerns about the respective rights and responsibilities of the parties to those relationships. This article presents a brief taxonomy of some of the most salient of these evolving issues.