Landmark federal legislation known as the Nursing Home Reform Law (OBRA ‘87) passed in 1987 promised to promote individualized care for nursing home residents and respect for their rights. The Nursing Home Reform Law applies to every resident of any skilled 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.
Despite these protections, residents, family members and their advocates are often unaware of the rights of residents and defer unnecessarily to nursing home staff. It is important for residents and family members to know their rights and for advocates to help ensure that the facility honors those rights. There is often a significant gap between the ideals of residents’ rights as set out in federal and state laws and the “facts on the ground.” Here are seven common examples:
1. NURSING HOME ADMISSIONS PROCESS
• The decision to move to a nursing home is made after examining all options along the continuum of care, including less restrictive alternatives, and the elder’s right to self-determination is protected.
• Consumers have access to accurate data regarding quality of care in skilled nursing facilities in Department of Public Health survey reports and other public and private sources.
• Consumers may not be forced to waive important rights or otherwise agree to unfair terms in a nursing home admission agreement.
• Consumers should not be required to agree to mandatory pre-dispute arbitration as a condition of admission to the facility because these clauses require the resident to waive the constitutional right to a jury trial without any benefit to the resident.
• A model admission agreement developed by the University of Massachusetts Gerontology Center is used for Massachusetts nursing homes.
• The health care reimbursement system favors institutional over community care. Most elders express clear preference to remain in their own homes with services but many end up having to move to a nursing home because of inadequate community supports.
• The model admission agreement is not mandatory. Despite rules prohibiting unfair and deceptive terms in admission agreements, such language is common in nursing home admission agreements and residents and their family members rarely have time to review the admission documents in detail, much less consult with an attorney.
• Arbitration clauses are enforceable in Massachusetts nursing home admission agreements and are being used ever more frequently by facilities. Residents are often unaware of the arbitration requirement until it is too late, and they are not given the opportunity to negotiate the terms of the admission agreement before admission.
2. SOURCE OF PAYMENT
• Nursing homes are not permitted to discriminate among residents based on their source of payment (i.e., “Medicaid discrimination” is prohibited). Nursing homes are not required to admit a resident who has no source of payment, and are therefore arguably entitled to inquire into a prospective resident's finances.
• Facilities are not permitted to require residents to waive their rights to Medicaid benefits (e.g., they cannot require a resident to pay privately for a certain period before applying for Medicaid).
• Nursing homes routinely give preferential treatment in admissions to residents who can pay privately.
• In general, private payment for six months to one year will ensure that a potential resident gains entrance to facility of his or her choice.
• The requirement of financial disclosure has a chilling effect on residents who might otherwise be able to qualify for Medicaid at the time of admission or shortly thereafter.
3. THE “RESPONSIBLE PARTY” PROBLEM
• Nursing facilities are specifically prohibited from requiring a third party to guarantee payment for the resident’s care as a condition of admission or continued stay.
• Contracts that routinely include third-party guarantee clauses are inherently unenforceable.
• Despite these protections, nursing homes frequently try to require family members to “volunteer” to act as a “responsible party.”
• Nursing homes frequently overwhelm families with numerous admissions documents that “must” be signed on the day of admission.
4. DISCHARGE/TRANSFER WHEN MEDICARE COVERAGE ENDS
• Facilities are not permitted to discriminate based on source of payment.
• Termination of Medicare coverage is not a permissible basis for discharging or 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.
• 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.
• Even if the facility bills itself as a “rehabilitation” facility or “sub-acute” provider, or the admission agreement specifies that the resident is a “short-term” resident, if the facility is licensed as a long-term facility, the resident has all of the rights and protections afforded to nursing home residents under federal and state law.
• Nursing homes often attempt to discharge or transfer residents when their Medicare coverage ends. Nursing homes frequently accept residents for a “short-term” bed only.
• Nursing homes may claim that certain rooms are “non-Medicaid” rooms and are for private patients only.
• Whether it is worth challenging the facility’s action depends on whether staying in the Medicare bed is the best place for the resident. Medicare units are more “hospital-like” with frequent turnover of residents and staff and may not be the most stable environment for some residents. Consider the best interest of the resident before doing battle with the facility.
• The Department of Public Health may get involved in this type of unlawful transfer and discharge case.
5. DISCONTINUING THERAPY WHEN MEDICARE COVERAGE ENDS
• Medicare reimbursement rules do not necessarily require “progress.” The resident must need “skilled nursing services” or “skilled rehabilitation services.”
• Even if the resident is not making progress, the facility has the obligation to provide services to “maintain” the resident’s condition: “a facility must ensure that [a] resident’s abilities in activities of daily living do not diminish unless circumstances of the individual’s clinical condition demonstrate that diminution was unavoidable.”
• Nursing homes are often guided by reimbursement rather than clinical guidelines in determining when skilled services will be terminated under Medicare.
• Residents and families are frequently unaware of their appeal rights.
• Residents and family members should use care plan meeting as an opportunity to address care issues.
6. INVOLUNTARY TRANSFERS
• If a proposed room change involves a move from a Medicare-certified to a non-Medicare certified bed, the facility is required to give at least 30 days written notice, and the resident has the right to appeal and to refuse the transfer.
• Before a resident's roommate is changed, the resident must be given at least 48 hours advance written notice, excluding weekends and holidays, except in an emergency.
• Residents have very little protection against involuntary room transfers. They are generally given little or no notice of room transfers and may be moved with or without just cause.
• A 2012 state statute now permits facilities to move residents to a different room when, as certified by a physician and documented in the resident’s clinical record, the resident’s clinical needs have changed so that the resident no longer needs the specialized accommodations, care, services and technologies or staffing customarily provided in the resident’s original room.
• The statute also provides that the the resident has the right to appeal to the facility’s or institution’s medical director a decision to move the resident to a different living quarter or to a different room within the facility or institution.
7. EVICTING THE “PROBLEM” RESIDENT
• “Inappropriate” or “difficult” behavior is not a permissible basis for eviction. Nursing facilities supposedly specialize in caring for people with physical and mental impairments, and are required to make reasonable accommodation of a resident’s disability, and to provide medical, nursing and psychosocial care under an individualized plan designed to meet the particular needs of each resident.
• A facility may not evict a resident without a permissible basis for doing so, i.e., that the transfer or discharge is necessary for the health or safety of the resident or other residents or the resident has failed, after notice, to pay (or have Medicare or Medicaid pay) for services to the 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. The facility is required to give written notice of discharges and certain transfers, and the resident has the right to file an appeal.
• Facilities often attempt to discharge or transfer residents with behavior or mental health issues. A common tactic is to send the resident to the hospital for psychiatric “evaluation” and then refuse re-admission.
• A facility’s refusal to re-admit a resident from the hospital constitutes a discharge and triggers the resident’s appeal rights.
• Be sure to explore alternatives to nursing home placement. Your local ASAP (“Aging Service Access Point”) may be helpful. http://www.mass.gov/elders/housing/aging-services-access-points.html
• The task of locating an appropriate nursing facility can be overwhelming. Information on quality of care and nursing home ratings is available from the Massachusetts Department of Public Health, and on the following Medicare web site: http://www.medicare.gov/NHCompare
• If possible, consult with a knowledgeable attorney before signing the admission documents. The admission process is often rushed because of the pressures of the hospital discharge process. However, it is inappropriate for the facility to pressure prospective residents or family members into signing a stack of documents on the spot. Beware of arbitration provisions in facilities’ agreements. These clauses rarely benefit the resident, and benefit only the provider.
• Knowledge is power. If you or a family member are facing an involuntary transfer or discharge, know that, except in an emergency, the nursing home may not precipitously discharge or transfer a resident against the resident’s wishes.
• If the nursing home has engaged in blatantly illegal tactics or if you are very upset by the facility’s actions, it may be tempting to take an aggressive approach. However, such an approach risks poisoning relationships between the residents and caregivers. By definition, you are dependent on the good will of the facility’s staff. Be careful not to win the battle but lose the war.
• If possible, involve the Massachusetts long-term care ombudsman (617-727-7750). The ombudsman’s role is to resolve residents’ complaints and problems, usually on an informal basis.
• 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 rights. Consult with a knowledgeable attorney as soon as possible. Even if you cannot afford private counsel, a legal services organization may be able to provide free legal assistance to nursing home residents. (See http://www.masslegalservices.org/ for a directory).
• If the case involves a discharge or transfer, or if other clinical issues arise, consider working with a geriatric care manager who can provide a professional objective assessment of the resident’s clinical needs.
• Consider reporting clinical issues and involuntary discharge and transfer cases to the Department of Public Health, Division of Health Care Quality (telephone 617-753-8000) and/or to the Attorney General’s Consumer Protection & Antitrust Division.
• You may also consider filing a complaint directly against the nursing home administrator with the DPH Division of Health Professions Licensure (for more information, see http://www.mass.gov/dpl/boards/nh/).
• Utilize Advocacy Resources. The Massachusetts Advocates for Nursing Home Reform (MANHR) is a network of family members, friends and advocates of long-term care residents. www.manhr.org Get to know your local ombudsman program staff (www.ltcombudsman.org. Consider joining National Citizens’ Coalition for Nursing Home Reform (www.nccnhr.org). Their handbook, Nursing Homes: Getting Good Care There, is a valuable resource.