A. INTRODUCTION:
LEGAL SOURCES
Congress passed landmark legislation known as the Nursing Home Reform Law (OBRA) in 1987 to promote individualized care for nursing home residents and respect for their rights. The Nursing Home Reform Law applies to every resident of any nursing facility that participates in the Medicare or Medicaid program, regardless of the resident's source of payment. The law is based on the idealistic premises that the facility is truly home for every resident, and that every resident deserves to be cared for in such a manner and in such an environment as will promote maintenance or enhancement of the quality of life of each resident. The law provides that all residents are entitled to individualized services to enable them to attain or maintain the highest practicable physical, mental, and psychosocial well-being.
Massachusetts nursing home residents have additional protections under consumer protection regulations promulgated by the Attorney General in 1994. Among other things, the AG regulations provide that any violation of the Nursing Home Reform Law or other laws designed to protect nursing home residents is a consumer protection violation, under which the resident may be able to collect not only damages but also costs and attorney's fees. In addition, detailed state regulations limit a facility's ability to involuntarily discharge and transfer residents.
B. ADVOCATING FOR RESIDENTS:
FACT v. FICTION
Despite these extensive protections, residents, family members and their advocates are often unaware of the residents rights and defer unnecessarily to nursing facility employees. It is important for residents and family members to know their rights, and for advocates to help them to ensure that the facility honors those rights. Distinguishing between fact and fiction can be a challenge when a client moves to a nursing home. Here are some of the most common nursing home fictions.
FICTION #1: We cannot admit Mrs. Jones unless her daughter signs as Responsible Party.
FACTS: Nursing facilities are specifically prohibited from requiring a third party guarantee of payment as a condition of admission or continued stay.
Despite these prohibitions, nursing homes have frequently tried to require family members to volunteer to act as a responsible party."
FICTION #2: The clinical staff will determine the care plan for Mrs. Jones."
FACTS: Nursing homes must develop an individualized plan of care to help each resident attain or maintain the highest practicable physical, mental and psychosocial well-being. The facility must base its care plan on an assessment and must complete a full assessment of the residents condition within 14 days after admission and at least once every 12 months thereafter.
The resident and/or residents representative has the right to participate in developing the plan of care, and the care plan must include measurable
objectives and timetables.
Federal and Massachusetts law guarantees residents the right to choose their own personal attending physicians.
Too many care plans are treated in a perfunctory way. Residents and their advocates should take the care planning process seriously.
FICTION #3: We can't provide therapy services because Mrs. Jones isn't making any progress.
FACTS: Even if the resident is not making progress, the facility has the obligation to provide services to maintain the residents condition: a facility must ensure that [a] residents abilities in activities of daily living do not diminish unless circumstances of the individuals clinical condition demonstrate that diminution was unavoidable.
Payment source should not affect the care provided.
Medicare reimbursement rules do not necessarily require progress. The resident must need skilled nursing services or skilled rehabilitation services."
FICTION #4: We can't provide therapy services because Mrs. Jones Medicare coverage has expired and Medicaid doesn't cover therapy.
FACTS: Facilities are not permitted to discriminate based on source of payment. This often happens when a resident transfers from Medicare to Medicaid coverage. There is a significant disparity between the Medicare and Medicaid reimbursement rates.
Facilities must provide services to enable residents to attain or maintain the highest practicable physical, mental and psychosocial well-being.
FICTION #5: Now that Mrs. Jones is no longer eligible for Medicare, she must leave her Medicare-certified bed.
FACTS: A facility may seek Medicare certification for some of all of its beds. However, Massachusetts does not have partial Medicaid certification: if the facility accepts Medicaid, every bed is a Medicaid bed.
Termination of Medicare coverage is not a permissible basis for transferring the resident.
Residents have the right to refuse a transfer within the facility if a purpose of the transfer is to move the resident from a Medicare to a non-Medicare certified bed.
FICTION #6: Mrs. Jones must be tied into her chair so that she doesnt go wandering away.
FACTS: Residents have the right to be free from any physical or chemical restraint imposed for purposes of discipline or convenience and not required to treat the resident's medical symptoms.
Restraints may be used only to ensure the physical safety of the resident or other residents, and [except in an emergency] only upon the written order of a physician that specifies the duration and circumstances under which the restraints are to be used.
A physical restraint is a device that restricts the residents freedom of movement or access to his or her body and whose intended use is to restrict the resident in some way. A chemical restraint is a drug used for discipline or convenience to reduce certain behaviors and is not required to treat medical symptoms.
FICTION #7: Mrs. Jones has to wake up at 6:00 a.m. because thats when the aides are scheduled to take care of her.
FACTS: A facility must take individual needs into account, and must care for its residents in a manner and in such an environment as will promote maintenance or enhancement of each residents quality of life.
Residents have the right to receive services with reasonable accommodation of individual needs and preferences, except where the health or safety of the individual or other residents would be endangered.
A resident has the right to choose activities, schedules, and health care consistent with his or her interests, assessments, and plans of care.
FICTION #8: Mr. Jones may visit Mrs. Jones only during scheduled visiting hours.
FACT: Restricting visits conflicts with the principle that a nursing facility should be home to the resident.
Immediate family and other relatives have the right to visit at any time, subject to the residents right to refuse visitors.
FICTION #9: We cant re-admit Mrs. Jones from the hospital because her bed-hold period has expired.
FACT: Medicaid-eligible residents are entitled to a bed-hold of 10 days for both medical and non-medical leaves of absence.
Even after the bed hold period expires, the facility must admit the resident to the next available semi-private bed.
FICTION #10:Mrs. Jones must leave the facility because her behavior has been inappropriate.
FACT: A facility may not evict a resident unless it can establish one of the following permissible bases for doing so:
(i) the transfer or discharge is necessary to meet the resident's welfare and the resident's welfare cannot be met in the facility;
(ii) the transfer or discharge is appropriate because the resident's health has improved sufficiently so the resident no longer needs the services provided by the facility;
(iii) the safety of individuals in the facility is endangered;
(iv) the health of individuals in the facility would otherwise be endangered;
(v) the resident has failed, after reasonable and appropriate notice,
to pay (or to have paid under [the Medicaid or Medicare program]
on the resident's behalf) for a stay at the facility; or
(vi) the facility ceases to operate.
Inappropriate behavior is not a permissible basis for eviction. Nursing facilities are set up to care for people with physical and mental impairments, and must make reasonable accommodation of a residents disability, and to provide medical, nursing and psychosocial care under an individualized plan designed to meet the particular needs of each resident.
Facilities are required to attempt less drastic measures, such as appropriate therapy, medication, and social work support, before attempting to evict a mentally ill resident.
C. CONCLUSION
When a nursing home resident or family member contacts you about nursing home care, one of the most important things you can do is provide information about the residents rights and confirm that the callers concerns are valid. Suggestions for advocacy include:
Whos Your Client? Be careful to identify your client at the outset to avoid conflicts of interest, and have your client clearly identify her objectives. In some cases, the resident is adamantly opposed to the proposed move, and wants above all else to remain in her current room. In other cases, the resident or family members agree that a transfer would be for the best, but want adequate time to find an appropriate placement without being pressured by the nursing home.
Provide Support and Reassurance. Educate yourself and your clients about the rights of long-term care residents (See Sample Client Handout below). Residents and their family members often need your immediate support to help them stand up to pressure from nursing home staff. Reassure a client facing an involuntary transfer or discharge that, except in an emergency, the nursing home may not precipitously discharge or transfer a resident against the residents wishes.
Pick Your Battles. If the nursing home has engaged in blatantly illegal tactics or if the resident or family member is very upset by the facilitys actions, it may be tempting to take an aggressive approach. However, such an approach risks poisoning relationships between the resident (and family members) and those who are responsible for providing personal care to your client over an extended period of time. By definition, your client is in need of long-term care and is dependent on the good will of the facilitys staff. Be careful not to win the battle but lose the war.
Preserve Appeal Rights. If the facility has given written notice of discharge or transfer, review the notice as soon as possible. It is critical that a timely appeal be filed (usually within 30 days) in order to preserve your clients rights.
Provide Attorney Referral. If the case involves a discharge or transfer, or if other serious rights are at stake, consider referring the client to an elder law attorney. Form a working alliance with one or more knowledgeable elder law attorneys in your areas, so that you can call them as questions come up. Elder law referral information is available through the National Academy of Elder Law Attorneys (www.naela.org). If a client decides not to retain counsel because she cannot afford attorneys fees, make a referral to the clients local legal services program, which provides free legal assistance to low-income and socially isolated elders, including nursing home residents. Get to know local medical malpractice attorneys who specialize in nursing home cases.
Report to State Agencies. Consider reporting clinical issues and involuntary discharge and transfer cases to the licensing agency for your state (Department of Public Health, Division of Health Care Quality (telephone 617-753-8000). You may also consider filing a complaint directly against the nursing home administrator with the DPH Division of Health Professions Licensure.
Utilize Advocacy Resources. Get to know your local ombudsman program staff (www.ltcombudsman.org). Every long-term care facility is staffed by at least one program volunteer, and these individuals often have considerable expertise in the area of residents rights. Consider joining National Citizens Coalition for Nursing Home Reform (www.nccnhr.org). Their handbook, Nursing Homes: Getting Good Care There, makes a great gift for clients. Familiarize yourself with the materials available from the National Senior Citizens Law Centers long-term care (www.nsclc.org)
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