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This article examines the comparability of nursing homes and home health care with respect to the quality-control effects of private litigation and state licensure. It explains that the false assumption of broad comparability between nursing homes and home health care could hamper effective regulation of quality in the delivery of home health care.

This article has two main sections, the first of which compares nursing homes and home health care in the context of private litigation. Points of comparison in the litigation context include the barriers to private litigation in long-term care, issues in institutional liability, applicable standards of care, and the availability of statutory private rights of action for violations of state licensure standards. Limitations and obstacles in private litigation, particularly potent for elderly individuals, reveal that although private litigation exerts influence on quality control, it cannot replace government regulation.

The second main section makes the nursing home and home health care comparison with respect to state licensure and enforcement mechanisms. It begins by identifying a regulatory model focused on the individual caregiver as best-suited for home health care, using governmental regulation of hospitals and nursing homes as alternative models. Next, it provides an overview of the status of licensures for home health care providers, coverage of state statutes, intermediate sanctions currently available, and the experience of several states in the licensure of home health agencies. Finally, it analyzes the rationale for supporting intermediate sanctions for nursing homes and considers the applicability of such sanctions to home health care.

Recognizing that regulatory programs alone do not guarantee quality of care, the article concludes with recommendations for how to best utilize private litigation and state licensure mechanisms to achieve effective quality-control regulation.