In the mid-1970s the alarming state of nursing home care in the United State was dramatically exposed by the Subcommittee on Long-Term Care of the special Committee on Aging of the United States Senate, which released a series of papers collectively entitled Nursing Home Care in the United States: Failure in Public. Simultaneously a plethora of media investigations, exposés in the popular literature, scholarly articles, and state commission reports condemned conditions in nursing homes and called for reform. These investigations and reports uniformly demanded more rigorous government regulation of nursing homes. In response, in the late 1970s and early 1980s, virtually all of the states adopted some form of nursing home reform legislation. The federal government also adopted regulations mandating oversight of long-term care facilities participating in the Medicare and Medicaid programs.

The development of concepts of autonomy and paternalism, as applied to children, women, the mentally ill and mentally retarded, and the elderly, has been a remarkable journey for philosophers, lawyers, physicians, caregivers, and politicians. Autonomy and paternalism have moved together in uneasy company to new definitions and applications derived in an extended dialectical process that has not only refined the definitions but also moved them away from the extreme ends of the gamut. To the extent that autonomy is equated with independence of action and paternalism is equated with coercive actions contrary to an individual's wishes or desires in order to achieve a beneficent end, we have exercised some of the most extreme and benighted paternalism while permitting in some sectors of our lives great independence on grounds of classical autonomy. Refinements of these concepts have moved us to new levels of sophistication and have made us aware of new issues and problems with which we have yet to wrestle.

Recent reforms in state nursing home regulations have created an-array of enforcement tools that relate the severity of the penalty to the severity of the violation. These intermediate sanctions, intended to be flexible and effective in enforcing state standards, include civil fines, receiverships, public disclosure, monitors. and suspension of admissions. As supplements to the more traditional remedy of license revocation, intermediate sanctions can enforce standards without closing facilities unnecessarily, thus avoiding trauma to the residents, aggravation of the shortage of nursing home beds, and lengthy administrative proceedings and litigation.

The study of nursing home regulation by the Institute of Medicine of the National Academy of Sciences offers a unique opportunity to evaluate the implementation of intermediate sanctions by the states over the past decade. Because of the high degree of similarity among the state statutes authorizing these sanctions, comparisons can be drawn.

Only one of the Ten Commandments offers a reward. We should honor our parents, we are told, so that our days may be long. When the federal or state governments appeal to traditional religious and family values, however, we should look to the costs and not the benefits. In Hawaii, House Resolution 54 would seek to reinstate a relative responsibility law that was repealed in 1965; the immediate concern is to correct a $30 million shortfall in Medicaid. In Massachusetts, a pending bill, House Bill 1753, would make each “responsible relative” of a Medicaid recipient residing in a nursing home accountable for up to 25 percent of the amount paid, although the total collected from all responsible relatives must not exceed 100 percent of Medicaid payments. According to the bill, responsible relatives are spouses, natural and adoptive children, or natural or adoptive parents of blind or disabled children under 18.

The February 1985 issue of Law, Medicine & Health Care published excerpts from the Report of the Massachusetts Task Force on Organ Transplantation, along with a report by its chairman, Professor George Annas, and commentary by a number of esteemed scholars and practitioners who were generally complimentary of both the approach and substance of the work of the Task Force. We have thoroughly reviewed the Task Force Report and feel it necessary to take strong exception to a number of points, both procedural and substantive, raised there. In general, we are concerned that the Task Force Report perpetuates and reinforces a number of serious misconceptions about the issues surrounding transplantation that, in turn, lead to conclusions that are both inaccurate and misleading. This situation is most unfortunate be cause the complexities of the issues raised by transplantation require care ful scrutiny, especially where there are empirical data that clearly call into question these often strongly held predispositions. In the following sections we point out what we feel are the major shortcomings of the Massachusetts effort.

The standard of care with regard to any new medical technology develops slowly. Attitudes must change, and equipment must be purchased, installed and utilized. Technical problems must be resolved and protocols established. Advances are better understood and more aggressively pursued by some physicians than others, with a consequent disparity in implementation. Electronic fetal monitoring (EFM) is an example of such a technology. Little known to obstetricians 15 years ago, EFM has been accepted by practitioners widely and rapidly. Today, armed with guidelines from the American College of Obstetricians and Gynecologists (ACOG) and the recommendations of the National Institutes of Health (NIH), we monitor with EFM most obstetrical patients during labor and almost all high-risk patients before labor. While the practice or custom of a majority of obstetricians does not necessarily define the standard of care, the use of EFM for fetal surveillance during labor represents the prevailing medical and legal standard of care.

Aesop‘s Fable, “The Dog and the Shadow,” begins with a dog walking over a bridge with a piece of meat in his mouth. Looking down into the stream, he sees his shadow. Thinking it is a bigger dog, with a piece of meat twice the size of his own, the greedy dog decides to get it. Snarling, he opens his mouth to attack. At that moment the meat falls from his mouth, into the stream. The dog realizes his mistake, and sadly says to himself, “Grasp at the shadow and lose the substance.“

Drs. Overcast and Evans have not yet realized their mistake, but this response may help them see that what they characterize as their “strong exception” to “procedural and substantive” points made by the Massachusetts Task Force on Organ Transplantation and the “major shortcomings” they purport to identify really involve insubstantial “shadows.” Their “appraisal” indicates no disagreement of substance with any of the Task Force's policy recommendations. and their tangential quibbles shrink when their content and context is understood.