I. INTRODUCTION
The rights of nursing home residents are set forth in a patchwork of federal and state laws. The primary sources of federal law are the 1987 Nursing Home Reform Law, also known as OBRA '87, and the corresponding federal regulations (42 C.F.R. §483.12). These laws apply to all facilities that accept Medicare or Medicaid reimbursement (i.e., the majority of long-term care facilities), regardless of the residents' source of payment. The Center for Medicare and Medicaid Services (CMS), formerly the Health care Financing Administration, the federal agency that oversees Medicaid- and Medicare-certified facilities, is responsible for federal oversight of facilities.
The state agencies most closely involved in monitoring quality of care and residents' rights are the Department of Public Health (through its survey process), the Office of Medicaid (formerly the Division of Medical Assistance), and the Attorney General. The Attorney General's regulations, promulgated in 1994 under the authority of the Massachusetts Consumer Protection Act, incorporate all of the provisions of the federal Nursing Home Reform Law, and define any violation of that law as an unfair or deceptive trade practice. 940 CMR 4.00. Facilities are required to give a copy of these regulations to every resident upon admission. 940 CMR 4.02(4). The Attorney General's regulations provide important protections for residents, because they establish a private right of action on behalf of residents, allowing a resident to recover not only damages, but also multiple damages, costs and attorney fees in certain cases where willful and knowing violations occur, under the consumer protection act.
The Attorney General's regulations apply to all providers licensed by Massachusetts as "long-term care facilities," regardless of whether they accept Medicaid or Medicare coverage. Under these regulations, it is an unfair or deceptive act or practice for a facility to fail to comply with any federal or state law that provides protection to a nursing home resident. 940 CMR 4.02(1).
II. NURSING HOME ADMISSIONS
A. Admission Agreements
At the time of admission, several legal and financial issues must be addressed. The most significant financial issue is the source of payment: private pay, long-term care insurance, Medicare, Medicaid, or some other source. The respective rights and responsibilities of the resident and the facility are spelled out in the nursing home admission agreement. Admission contracts and related documents must be printed in at least 12-point type and must be in a language the prospective resident understands. 940 CMR 4.04(6). Upon admission, facilities must give a copy of the Attorney General's 93A regulations to the resident or duly authorized representative, along with a copy of all policies affecting the resident's stay. 940 CMR 4.02(4).
Under the Attorney General's regulations, nursing homes' admission agreements may not:
require an applicant or resident to have a third-party guarantee of payment, or to have a guardian appointed or to appoint any other designated agent, as a condition of admission or continued stay;
demand that the resident waive or limit the facilitys liability for loss of personal property or any injury suffered as a result of the negligence of the facility staff;
limit the residents choice of physicians to the "house doctor;"
limit the resident's choice of pharmacy;
require that the resident agree to pay attorney fees or other costs incurred in collecting payment from the resident;
require a resident to waive any benefit or right conferred by statute or regulation that protects the rights of long-term care residents; or
require a non-refundable deposit or any deposit greater than the cost of one- month's care.
B. Massachusetts Model Nursing Home Admission Agreement
A 1997 study of 45 Boston-area nursing homes found that every facility's admission agreement contained provisions that were prohibited by law or were likely to confuse or deceive residents or their family members. Benson, Check Your Rights at the Door: Consumer Protection Violations in Massachusetts Nursing Home Admission Agreements, Gerontology Institute of the University of Massachusetts, Boston (1997). For example, 89 percent of the agreements specified reasons for discharge or transfer that are not permitted under federal or state law. The study recommended the development of a standardized admission form to protect Massachusetts nursing home residents.
In response, the Gerontology Institute and the Massachusetts Extended Care Federation convened a working group of elder advocates, long-term care providers, and state agency staff. The groups objective was to prepare a model nursing home admission agreement for Massachusetts facilities that would assist providers in complying with federal and state legal requirements and ensure that residents, their families and representatives understood their rights under the admission agreement. The Model Agreement was released in 1999 and is available from the Long-Term Care Ombudsman Office of the Executive Office of Elder Affairs (617-727-7750).
The Model Nursing Facility Admission Agreement is included as an Appendix to this chapter.
C. Non-Discrimination Based on Source of Payment
Facilities are prohibited from discriminating against residents based on their source of payment. See G.L. 151B, §4, cl. 10 (the Massachusetts anti-discrimination law); 940 CMR 4.03. Facilities' Medicare and Medicaid participation agreements also prohibit such discrimination.
Facilities must offer an admission application person to each person immediately upon request. 940 CMR 4.03(3). They may not assist in the "preparation of applications or in any facet of the admission process to private pay applicants in a manner greater than that rendered or offered to Medicaid recipients." 940 CMR 4.03(4).
D. Arbitration
Voluntary arbitration clauses are increasingly common in nursing home admission agreements. Because they require residents to irrevocably waive their rights, they are of no benefit to residents. Although courts in other jurisdictions are divided on this issue, Massachusetts' highest court has held that a voluntary arbitration agreement between a resident and a nursing facility is enforceable. Miller v. Cotter, 448 Mass. 671 (2007). In order to be found enforceable, however, the arbitration clause must be truly voluntary. In other words, facilities may not condition a residents admission on an agreement to arbitrate.
If someone other than the resident signs the arbitration agreement, that party must have authority to do so in order for the agreement to be binding. Some powers of attorney specifically exclude the authority to agree to arbitration from the agent's powers. An arbitration agreement signed by an agent without such authority would not be enforceable.
III. TRANSFER AND DISCHARGE
A nursing home residents right to remain in her "home" even if "home" has been reduced to a particular bed in a particular room can be of critical importance to a frail elder who has lost her lifelong home and her autonomy. Pursuant to the federal Nursing Home Reform Law, long-term care residents may be transferred or discharged only for cause and for specified reasons, and residents have the right to appeal a proposed transfer or discharge. A transfer is defined moving the resident from one "distinct part" of the facility to another, e.g., from a unit of the facility that is Medicare-certified to a unit that is not Medicare-certified. See 42 U.S.C. § 1396r(a). See also 42 C.F.R. § 483.202; 130 CMR 610.004 (defining "transfer" as movement of a resident from a bed with one type of certification to a bed with a different type of certification). State regulations track the federal regulations, and apply to all residents of licensed long-term care facilities, not just those who are Medicare- or Medicaid- eligible, and regardless of whether the facilities participate in the Medicare or Medicaid programs. 940 CMR 4.09 and 130 CMR 610.028.
A. Residents' Rights
1. Federal Law Federal law provides that a resident may be transferred or discharged from a facility only when one of the following occurs:
the transfer or discharge is necessary for the residents welfare and the residents needs cannot be met in the nursing facility;
the transfer or discharge is appropriate because the residents health has improved sufficiently and the resident no longer needs the services provided by the nursing facility;
the safety of individuals in the nursing facility is endangered;
the health of individuals in the nursing facility would otherwise be endangered;
the resident has failed, after reasonable and appropriate notice, to pay for (or failed to have Medicaid or Medicare pay for) a stay at the nursing facility; or
the nursing facility ceases to operate.
If the resident is being discharged or transferred for clinical reasons, the reasons must be documented in the residents clinical record, and in cases described in paragraphs (i) and (ii), the documentation must be provided by the residents personal physician. 42 U.S.C. §§ 1396r(c)(2)(A) and 1395i-3(c)(2)(a).
Under federal law, a nursing home resident also has the specific right to refuse a transfer to another room in the facility, if a purpose of the transfer is to relocate the resident from a portion of the facility that is Medicare-certified to a portion that is not Medicare-certified or vice versa. 42 U.S.C. §§ 1395i-3(c)(1)(A)(x) and 1396r(c)(1)(A)(x).
2. State Law Massachusetts regulations provide additional protections for residents. Any involuntary move of a Massachusetts nursing home resident is covered by the Attorney General's regulations, regardless of whether the move meets the federal definition of "discharge" or "transfer." The regulations prohibit a facility from moving a resident "to different living quarters within the facility, contrary to the resident's wishes, except to meet the resident's health care or safety needs which otherwise could not be met, as documented in the resident's clinical record by his/her attending physician. 940 CMR 4.09(4). This provision expands upon federal law in that it applies to virtually any proposed transfer to "different living quarters," even if the proposed move does not meet the definition of a "transfer" under federal law (i.e., the resident would not be moved from one "distinct part" of the facility to another). The regulations also require a facility to give a resident at least 48 hours advance written notice before changing the residents roommate, except in an emergency. 940 CMR 4.06(11).
3. Common Scenarios Discharge and transfer decisions are often made in the following situations: when the residents Medicare benefits terminate, when a resident fails to pay the facilitys charges or qualify for Medicaid, and when a residents behavior is "problematic."
Medicare Termination In an attempt to maximize Medicare reimbursement, a facility may attempt to discharge or transfer a resident when the resident's Medicare coverage terminates. However, a resident has the right, under federal law, to refuse a transfer from a Medicare-certified to a non-Medicare-certified bed. 42 U.S.C. § 1395i-3(c)(1)(A)(x). If the facility is Medicaid-certified and the resident is eligible for Medicaid, the facility may not use the rationale that the resident is in a so-called "Medicare bed." Although Massachusetts facilities may have partial certification for Medicare, there is no partial certification for Medicaid. This means that, in any facility that accepts Medicaid reimbursement, all of the facilitys beds are "Medicaid beds." The fact that a facility holds itself out as providing "sub-acute" or "short-term" care is irrelevant.
Non-Payment A residents failure to pay for the facilitys services is a permissible basis for discharging a resident. However, once the resident files a MassHealth application, the facility is prohibited from discharging or transferring the resident until all administrative appeals have been exhausted in the Medicaid application process. 940 C.M.R. § 4.09(2). The facility is under an affirmative obligation, both at the time of admission and again, at the earliest date on which the facility has "reason to believe that the resident may become eligible for" Medicaid, to provide information about the requirements and procedures for establishing Medicaid eligibility. 940 CMR 4.09(5).
Behavior Problems Nursing homes frequently allege a change in the residents condition as a way of evicting "difficult" residents or residents with "behavior problems." Facilities are required to make reasonable accommodation of a residents disability, and to provide comprehensive care to meet the individual needs of each resident. Providers must attempt less drastic measures, such as therapy, medication, and social work support, before attempting to evict a mentally ill resident. They may not "dump" their "difficult" residents by hospitalizing them for psychiatric evaluation or treatment, and then refusing to re-admit them. 130 CMR 456.429.
B. Procedural Protections: Notice and Right to a Hearing
Facilities must give a resident written notice of a proposed discharge or transfer and the resident has the right to file an appeal from that notice.
1. Notice Requirements
Before a facility may discharge or transfer a resident, it must deliver to the resident and to a designated family member or legal representative a notice written in 12-point type or larger, in a language understood by the resident. The notice must contain all of the following information:
the action to be taken by the facility, at least 30 days in advance of such action;
the specific reasons for the proposed discharge or transfer;
the effective date of the discharge or transfer;
the location to which the resident is to be discharged or transferred;
a statement informing the resident of his or her right to request a hearing before the Office of Medicaid;
the address to which the hearing request must be sent;
the deadline for filing the hearing request;
a statement that the filing of the appeal will stay the proposed discharge or transfer;
the name, address and telephone number of the local nursing home ombudsman program office; and
a statement that all residents may seek legal assistance and that free legal assistance may be available through their local legal services office, containing the address of the nearest legal services office and the name of the person at the facility who can answer questions about the notice and assist in filing an appeal.
130 CMR 610.004, 610.028.
Additional notice requirements apply where the resident is developmentally disabled or mentally ill. Separate provisions apply in emergency situations. 130 CMR 610.028(C)(7).
2. Right to a Hearing
A resident who wishes to appeal a proposed discharge or transfer must request a hearing within 30 days of receiving the notice, except that, in the case of an emergency transfer or discharge, the resident must request a hearing within 14 days of receipt of the notice. 130 CMR 610.015(3) and (4). All nursing home transfer and discharge hearings are conducted by the Board of Hearings of the states Office of Medicaid, regardless of whether the resident is Medicaid-eligible.
When the resident files a timely request for a hearing, the nursing home must stay the proposed discharge or transfer until 30 days after the Board of Hearings renders its decision. 130 CMR 610.030(A). In the case of an emergency, the facility must stay the proposed discharge or transfer until five days after the hearing decision, and if the resident receives a favorable decision after a discharge or transfer has already taken place, the facility must promptly readmit the resident to the next available bed in the facility. 130 CMR 610.030(B).
The hearing is an informal proceeding, and may be held telephonically to enable a resident with disabilities to participate. 130 CMR 610.013. The resident and the facility have the right to present witnesses and documentary evidence. 130 CMR 610.061 and 610.063. The Board of Hearings may offer the parties the option of mediation. 130 CMR 610.051(C).
A new statute requires that a resident who appeals from a discharge notice shall not be discharged or transferred unless the hearing officer determines that the facility has "provided sufficient preparation and orientation to the resident to ensure safe and orderly transfer or discharge from the facility to another safe and appropriate place." G.L. c. 111, § 70E (added by Chapter 251 of the Acts of 2008).
C. Discharge Planning
The laws protecting residents' rights reflect a concern that a nursing home resident facing involuntary transfer may be at risk of transfer trauma. Under the Nursing Home Reform Law, nursing facilities must provide sufficient preparation and orientation to residents to ensure safe and orderly transfer or discharge from the facility. 42 U.S.C. § 1395i-3(c)(2)(C) (Medicare); 42 U.S.C. § 1396r(c)(2)(C) (Medicaid); 42 C.F.R. § 483.12(7). Before a discharge, a facility must prepare a discharge summary, including a post-discharge plan of care. 42 C.F.R. 483.20(e).
Massachusetts nursing facilities are required to discuss the planned discharge or transfer with the resident and his or her legal representative or next of kin. 940 CMR 4.09(6). A facility must also consult with the resident and his or her legal representative or next of kin in choosing another facility, and take "all reasonable steps" to implement the residents choice of such facility. 940 CMR 4.09(7).
D. Re-Admission Following Hospital Stay
Facilities are required to re-admit a resident following a hospital stay as soon as the resident is medically stable, and provided that the resident still needs the facility's services. In Brunelle v. DMA (Essex County Superior Court No. 00-0200), the Office of Medicaid took the position that, where a nursing home refused to readmit a resident following an acute hospitalization, the resident had no right to a fair hearing, but rather had to file an abuse complaint with the Department of Public Health (DPH). The DPH investigates such complaints (under G.L. c. 111, § 74H), but the resident would have no appeal rights, and a finding by DPH that the complaint was "justified," i.e., that the nursing home must readmit the resident, would result only in a request for a "plan of correction." The resident himself would have no due process rights to a hearing, and would have to enforce DPH finding in court under G.L. c. 93A, the Consumer Protection Act.
The plaintiff in Brunelle sought to establish that he was entitled to a fair hearing to determine whether the facility had to re-admit him. See 42 C.F.R. §§ 431.241, 431.246. After losing at the trial level, the Brunelle plaintiff went to the Appeals Court, where at the eleventh hour, as its brief was nearly due, the Office of Medicaid agreed to revise its regulations and give the relief sought by the plaintiff. Relevant regulations were added as follows:
the facilitys refusal to re-admit the resident is defined as a discharge (130 CMR 456.402);
the facility must observe the bed-hold requirement (130 CMR 456.425(C));
the facility must re-admit the resident during the bed-hold period if the resident continues to require the facilityâ'‚¬'„¢s services (130 CMR 456.428(A));
the facility is subject to administrative sanctions for violations (130 CMR 456.429(B));
the facility must give written notice if it is refusing to re-admit a resident from the hospital (130 CMR 456.701(D)); and
the resident has the right to a fair hearing upon the facilitys failure to re-admit (130 CMR 610.028(D)).
E. Bed Hold Requirements
A nursing home resident has the right to return to his or her bed following a medical or non-medical leave of absence. Private-pay residents must pay privately to hold the bed. Medicaid participants are entitled to a "bed hold." The bed hold period is the period during which Medicaid will reimburse the nursing home to hold the bed of a resident during his or her hospitalization or other leave of absence from the facility. In Massachusetts, the bed hold period is now ten (10) days. 130 CMR 456.425. Facilities are required to give their residents notice of the bed hold policy. 130 CMR 456.426.
If the residents hospital stay exceeds the 10-day bed hold period, the facility must re-admit the resident "immediately upon the first availability of a bed in a semi-private room in the facility, if at the time of readmission, the resident requires the services provided by the facility." 42 U.S.C. § 1396r(c)(2)(D)(iii); 42 C.F.R. § 483.12(b)(3).
IV. CONCLUSION
Federal and state law are based on the premise that a nursing home should truly be "home" for its residents. Residents are entitled to have their individual needs and preferences honored by the facility, and the facility has an obligation to provide holistic individualized care that enables each resident to "attain or maintain the highest practicable physical, mental and psychosocial well-being." 42 U.S.C. §1396r(b)(2)(A).
Prospective residents can make informed decisions if they know their rights as consumers of long-term care services. They and their family members or legal representatives should carefully review the facility's admission packet carefully before admission, and, if possible, have the admission documents reviewed by counsel. Any resident facing an involuntary transfer or discharge should consult with the ombudsman program and, if necessary, with counsel.
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