Resident Rights In Long Term Care Facilities

I. OVERVIEW OF RESIDENT'S RIGHTS.

Recent changes in federal law and proposed federal regulations respecting residents' rights show a trend toward strengthening the protection given to nursing home residents. The most important and comprehensive legislative changes are contained in the Nursing Home Reform Act (NHRA) of 1987. In addition to an expansion of rights, the NHRA requires that a review of a facility's compliance with residents' rights be included in the annual standard survey used to determine overall performance and compliance with federal regulations. It also requires facilities to protect and promote the rights of each resident.

The new law defines several categories of residents' rights:

• general rights;
• transfer and discharge rights;
• access and visitation rights;
• equal access to quality car (Medicaid discrimination);
• admissions policy; and
• protection of residents' funds.

The general rights provisions include free choice, freedom from restraints, privacy, confidentiality, grievances, participation in resident and family groups as well as other activities, and accommodation of individual needs. A resident also has the right to examine the results of the annual survey of a particular nursing home. These rights must be given to a resident orally and in writing at the time of admission. The following is a brief outline of the more important of these rights.

II. LEGISLATION AFFECTING RESIDENT'S RIGHTS

A. Introduction. In order to properly address resident rights, one must have a basic understanding of the general laws involved. The following is a brief outline of some of the state and federal laws that may be involved in a resident rights issue.

B. Federal Legislation.

1. Social Security Act

a. Medicaid - 42 U.S.C. §1396 et seq.; 42 C.F.R. Pt. 430 et seq

1) largest source of federal government funding--nearly 50%-- of long term care, providing health benefits to people of all ages whose income is below certain limits and who meet other requirements, such as dependence, disability, or advanced age (65 and older)
2) to participate states must submit plans for approval through HCFA
b. Medicare - 42 U.S.C. §1395 et seq.; 42 C.F.R. Pt. 400 et seq.

1) provides health insurance benefits for disabled individuals and those over age 65

2) Part A (Hospital Insurance for the Aged and Disabled) covers hospitalization, nursing home services, and home health care, and is generally free to those who receive Social Security benefits

3) Part B (Supplementary Medical Insurance) provides coverage for additional health services such as physical therapy and doctors' services

2.. 1987 Nursing Home Reform Act (NHRA)

a. most far-reaching reform of nursing home regulation in 20 years

b. basic purpose it to improve standard of care and quality of life for nursing home residents by strengthening:

c. requirements of Medicaid/Medicare participation

d. intermediate sanctions available against nursing homes by states and the federal government

e. Survey and certification" process for monitoring compliance

f. also contains resident;s bill of rights and sets federal standards for training nurses' aides and for staffing by licensed and registered nurses

3. Veterans Administration Benefits - 42 U.S.C. §1710 et seq

a. VA may provide nursing home care for veterans in its own facilities or in private facilities with which it contracts

b. VA nursing homes and state VA homes may provide services to veterans with or without service-connected disabilities

c. state veterans' homes receive grants from VA

d. non-VA facilities may be reimbursed by VA for providing nursing home services to veterans if nursing home maintains VA-approved physical and professional standards

e. veterans qualify for coverage of varying duration primarily depending on whether their disabilities are service-connected

4. Hill-Burton Act- 42 U.S.C. §291 et seq.; 42 C.F.R. 124.501

a. nursing homes that receive federal construction loans, guarantees, and interest subsidies must make available a reasonable amount of free services to
those unable to pay

b. companion condition is community service assurance, a promise to participate in government-sponsored health-care payment programs such as Medicare and Medicaid

c. refusal by certified facility to admit Medicare or Medicaid recipients is grounds for filing an administrative complaint with HHS or a lawsuit

5. Older Americans Act - 42 U.S.C. §3011,3027

a. federal Administration on Aging helps states and communities develop comprehensive and coordinated service systems to serve older individuals through network of 57 state and territorial Units on Aging, 660 Area Agencies on Aging, and 25,000 service providers

b. requires that each state has a long-term care ombudsman program to investigate and resolve complaints in long-term care facilities

C. State Law.

1. Bill of Rights for Residents of Long Term Care Facilities- §44-81-40 of the Code of Laws of South Carolina.

2. Rules and Regulations of the SC Health and Human Services Finance Commission

3. Rules and Regulations of DHEC.


III. ADMISSION RIGHTS

A. Who can and should be admitted to a Nursing Home. One of the most difficult decisions faced by families with older members is when is it appropriate to place my family member in a nursing home. Unfortunately, in addition to the personal conflicts surrounding this question their are a number of legal and financial issues to be considered as well. If an individual will be paying for his or her stay in the facility on a private pay basis, there is generally no legal impairment to the individual entering the nursing home. However, if the individual's stay will be paid for by medicare or Medicaid there are specific medical requirements that must be met. One way for families to ensure that institutionalization is appropriate is to obtain a thorough assessment of the functional capacity of the individual. Once a clear picture of the individuals needs has been assessed it can be determined what level of care is required. In South Carolina, a functional capacity assessment can be obtained through Community Long Term Care (CLTC), a division of the Health and Human Services Finance Commission. There is currently no charge for this assessment. However, the state assessment may be inappropriate for your client. The state assessment is designed to determine medical eligibility for Medicaid. Unfortunately, just because an individual does not medically qualify for Medicaid does not mean he or she would not benefit from a nursing home setting. In cases where he goal of the assessment is to determine the needs of the individual rather than his Medicaid eligibility use of a private care manager is probably more appropriate. This service is discussed in more detail later in this seminar.

B. The Admission Process . The nursing home admission process in South Carolina is far from organized. In general individuals needing a nursing home bed are relegated to making a visit to each facility, obtaining an application, filling out the application, and being place on a waiting list for a bed, as there are no centralized filing procedures. This can be extremely frustrating when a family member is in a hospital and their medicare days are running out. Frequently the family will be caught between a hospital demanding the patient be removed and the nursing homes saying no beds are available. This is particularly where the individual will be a Medicaid resident.

C. The Admission Agreement.. Virtually all nursing homes utilize some type of admission agreement with their residents. This is the resident's contract with the nursing home and generally sets forth the obligations of the nursing home and those of the resident. While most of these contracts have become very standard in their language, there are a number of areas of particular concern that the attorney should look for in assessing a nursing home admission agreement.. In particular, many nursing homes place a requirement in their admission agreements that a person other than the resident guarantee payment of the facility's fees and charges. If the facility is a medicare or Medicaid certified facility, this practice is expressly prohibited by the Nursing Home Reform Act of 1987 for admissions after October 1, 1990. If the admission agreement contains such a guarantee requirement, the resident or his representative should demand that it be stricken from the agreement prior to signing the agreement.

Other questionable or illegal clauses frequently found in admission agreements are as follows are as follows: (1) attempts to restrict Medicaid availability, (2) waivers of liability for negligence, and (3) restrictions on medical or nursing care based on source of pay.

Finally, both federal and state law requires that every new resident of a nursing home or other long term care facility receive a copy of the federal or state "Residents Bill of Rights." An attorney should review the bill of rights provided to his client to confirm that it is in conformity with federal and state law. An attorney reviewing an admission agreement should be certain that the agreement does not restrict or alter the resident's rights as granted by federal law. It is not uncommon for a facility to seek to minimize or restrict a resident's rights in the admission agreement.

D. Admission rights under the Nursing Home Reform Act. Under the Nursing Home Reform Act of 1987, with respect to admission practices, Medicare or Medicaid certified facilities must:

1. not require residents or potential residents to waive their rights to benefits under the Medicare or Medicaid program;

2. not require oral or written assurances that potential residents are not eligible for or will not apply for benefits under the Medicare or Medicaid programs;

3. provide oral and written information about how to apply for Medicaid and Medicare benefits, how to use such benefits, and how to obtain a refund for previous payments covered by benefits;

4. not require a third party guarantee of payment as a condition of admission, to expedite admission, or as a condition of continued stay in the facility;

5. in the case of a Medicaid recipient, not charge, solicit, accept or receive in addition to any amount otherwise required to be paid under the state Medicaid plan any gift, money, donation or other consideration as a precondition of admitting or expediting the admission of the individual to the facility or as a requirement for the individuals continued stay in the facility.

E. Medicaid Discrimination in Admission. While in most cases discrimination by a Medicare or Medicaid certified facility against Medicaid-eligible residents is prohibited, the admission process is an exception to that rule. Effective October 1, 1990 the NHRA requires Medicare and Medicaid certified facilities to establish and maintain identical policies and procedures regarding transfer, discharge, and the provision of services for all residents regardless of source of payment. Unfortunately nothing in the Act expressly prohibits unfair admission practices based on source of payment. While a handful of states expressly prohibit such discrimination, South Carolina is not one of those states. Consequently in South Carolina, Medicaid eligible individuals are frequently refused admission or put on Medicaid only waiting lists even though beds are available. This allows the facility to save the beds for private pay or medicare residents.

III. DISCHARGE RIGHTS

A. Introduction. When a facility seeks to involuntarily discharge or transfer a resident, its request is often an admission that the facility can not or does not wish to meet the residents needs. From the facility's standpoint, the resident may have become too difficult to handle or may require too much care or the residents family may ask too many questions or may make to many complaints.
While the facility demands for discharge are very stressful and difficult for a resident and his family to deal with, there are both federal and state laws that assist the resident in resisting an improper discharge. The most useful of these laws is the Nursing Home Reform Act of 1987.

B. The Nursing Home Reform Act. The Nursing Home Reform Act (the NHRA or the Act) was enacted by congress in 1987. The Act establishes requirements for facilities, the US Secretary of Health and the States, in a number of areas including resident discharge rights.

1. Facility Requirements for Discharge or Transfer. The NHRA applies to all facilities which participate in either medicare or Medicaid program. For covered facilities, the act prohibits the facility from transferring or discharging residents except under certain limited circumstances. In general these circumstances are as follows:

a. the transfer or discharge is necessary to meet the resident's welfare and the resident's welfare cannot be met in the facility;

b. the transfer or discharge is appropriate because the resident's health has improved sufficiently so the resident no longer meeds the services provided by the facility;

c. the safety of individuals in the facility is endangered;
d. the health of individuals in the facility would otherwise be endangered;

e. the resident has failed, after reasonable and appropriate notice, to pay (or to have paid on the residents behalf) for a stay at the facility; or

f. the facility ceases to operate.

The Act requires that the basis of the transfer or discharge be documented in the residents clinical record. Under Medicare, all reasons other than the closing of the facility must be documented in the clinical record. In the case of a Medicaid resident only reasons a through d must be so documented.

Before transferring or discharging a resident, the Act requires the facility to notify the resident and a family member of the resident or his legal representative of the reason for transfer or discharge. The notice must state that the resident has the right to appeal the transfer of discharge to a designated state agency, and must include the name, mailing address, and telephone number of the State Long Term Care Ombudsman. Further for residents with developmental difficulties or mental illness
additional information may be required.

As a general rule, the facility must provide 30 days notice of the transfer or discharge of a resident, but there are many exceptions to this rule. Under exigent circumstances, federal law permits earlier discharge for any reason other than nonpayment and the facility ceasing to operate. South Carolina law also requires thirty days notice before discharge of a resident. However, under South Carolina law the thirty days is required unless the health, safety or welfare of the other residents in the facility would be endangered.

Finally, a facility must provide discharge planning, and sufficient preparation and orientation to residents to ensure safe and orderly transfer or discharge from the facility.

2. What is Transfer or Discharge. Discharge is defined as movement to a noninstitutional setting when the discharging facility ceases to be legally responsible for the care of the resident. Transfer is movement from one institution to another. In addition HCFA rules state that all residents have appeal rights when transferred from a certified bed to a noncertified bed.

3. Hearing Requirements. The Act requires each state participating in the federal Medicaid program (currently all states) to provide for a fair mechanism for hearing appeals on transfers and discharges of residents. In South Carolina such a hearing may be obtained by contacting the State Long Term Care Ombudsman's office which is operated out of the Governor's office. The hearing is conducted by a hearing officer of the State Health and Human Services Finance Commission. An adverse decision by a commission hearing officer may be appealed to the Commissioner and ultimately to an Administrative Law Judge. Except in emergency situations the resident may not be discharged or transferred while the appeal is pending, and the agency has the burden of proof on all issues.

4. Bed Hold and Readmission. In addition to discharge protection the Act gives Medicaid (but not Medicare) residents the right to return to their facility after they have been absent due to hospitalization or therapeutic leave. In other words the residents bed must be held open for a certain period of time. If the hospital stay exceeds the bed hold period and the resident still needs the facility's services, the resident must be given the first available bed in a semiprivate room in the facility.



C. State Discharge and Transfer Law. Chapter 81 of Title 44 of the Code of Laws of South Carolina contains a Bill of Rights for residents of Long Term Care Facilities. The code sections of this chapter set forth an extensive list of resident rights, including discharge rights. In addition the State Health and Human Service Finance Commission has promulgated rules with respect to patient discharge rights, including procedures for discharge and transfer appeals as discussed in B(3) above.


IV. OTHER IMPORTANT RESIDENT RIGHTS.

A. Introduction. While many of the resident rights guaranteed by the NHRA and State law center around admission and discharge, there are a number of other protected areas of equal importance to the quality of life of the nursing home resident. The following is a brief discussion of some of those rights.

B. Freedom of Choice. The NHRA grants to nursing home residents certain rights to be involved in decisions affecting their care and who will provide their care. These rights are as follows:

1. The Right to choose a personal attending physician. While all residents have this right for reasons of economics and practicality most choose to use the facility's physician. An ancillary question is whether the resident can choose his own pharmacy. The answer to this question is unclear.

2. The right to be fully informed in advance about care and treatment.

3. The right to be fully informed in advance of any changes in the residents plan of care and treatment .

4. The right to participate in planning care and treatment.


C. Privacy. The resident has a right to privacy with regards to accommodations, medical treatment, written and telephonic communications, visits, and meetings of family and of resident groups. This is one of the most violated patient rights. The facility should arrange for adequate privacy when administering treatment. Staff should knock before entering a resident's room. Staff should not discuss a residents care or treatment with other residents or unauthorized persons.

D. Confidentiality. A resident has a right to confidentiality of personal and clinical records.

E. Grievances. With respect to a residents complaints, he or she has the following rights:

1. The right to voice grievances with respect to care or treatment without fear of discrimination or reprisal.

2. The right t prompt efforts by the facility to resolve the resident's grievances, including those concerning the behavior of other residents.

3. The right to written information concerning State agencies which can be contacted if grievances cannot be resolved.

F. Accommodation of Needs. The resident has the right to receive services with reasonable accommodation of individual needs, except where the health and safety of the resident or other residents would be endangered. Although not included in the residents' rights provisions, several sections of the NHRA underscore the obligation of the facility to provide individualized care, treatment and attention.

G. Participation in Resident and Family Groups. The nursing home must protect and promote the right of the residents to organize and participate in resident groups, and the right of the resident's family to meet in the facility with families of other residents in the facility. Further, the facility may not interfere with a residents religious, social, and community activities that do not interfere with the rights of other residents.

H. Access and Visitation. A nursing facility must permit the following with respect to visitation and access to a resident.

1. Permit immediate access to any resident by any representative of the U.S Department of Health and Human Services, any representative of the state, or the resident's individual physician.

2. Permit immediate access to a resident, subject to the resident's consent, by his or her immediate family or other relatives.

3. Subject to reasonable restrictions, permit immediate access to the resident by others who are visiting with the resident's consent.

I. Equal Access to Quality Care. A nursing facility must establish and maintain identical policies and practices regarding the transfer, discharge, and provision of services required under the state plan for all individuals regardless of source of payment.

J. Incompetent Residents. The rights of an incompetent resident devolve upon and may be exercised by his guardian, conservator or power of attorney.

K. Right to Inspect Survey Results. The nursing facility must protect and promote the right of a resident to examine, upon reasonable request, the results of the most recent survey of the facility conducted by a federal or state agency having jurisdiction over the facility.

L. Personal Funds. With respect to a resident's personal funds:

1. The facility may not require the resident to deposit his personal funds with the facility.

2. If the facility accepts control of a resident's funds, it must

a. deposit any personal funds in excess of $50.00 in an interest bearing account for the resident's benefit;

b. maintain a full written accounting of each resident's personal funds, including any transactions with those funds and provide access to such records by the resident;

c. notify residents receiving Medicaid benefits when the amount in their account reaches $200 less than the applicable resource limit and if the amount in the account reaches the resource limit the resident may lose Medicaid eligibility;

d. Upon the death of a resident, promptly convey all funds to the personal representative of his estate.

M. Freedom >From Abuse and Restraints. Each resident has the right to be free from physical or mental abuse, corporal punishment, involuntary seclusion, and any physical or chemical restraints imposed for purposes of discipline or convenience and not required to treat the residents symptoms. The following are questions frequently asked by residents or their family concerning restraints.

1. Can the nursing home place me in restraints?

Yes, but only under very specific conditions. The NHRA guarantees residents freedom from chemical and physical restraints under most circumstances. The NHRA provisions state that nursing homes cannot use restraints for purposes of discipline or for the convenience of the staff, nor can restraints be used if they are not required to treat the resident's medical symptoms.

2. What kind of restraints are used?

Physical restraints are any manual method or physical device, material, or equipment that restricts freedom of movement or normal access to one's body. Physical restraints include bed rails, leg restraints, arm restraints, hand mitts, soft ties or vests, wheelchair safety bars, and geri-chairs.

Chemical restraints are drugs that are given for the primary purpose of controlling a resident's mood, mental status, or behavior.

3. When can a nursing home lawfully use restraints?

Physical restraints can be used only to ensure the physical safety of the resident or other residents and must be prescribed by a physician. The order must specify how long and circumstances under which the restraints are to be used. Psychopharmacologic drugs (drugs that have an altering effect on the mind) can only be administered on the order of a physician as a part of a written plan of appropriateness of the drug plan of each resident receiving such drugs.
4. What problems can arise when restraints are used?

While prevention of resident injury is the reason most frequently given by nursing homes, restraints actually pose serious hazards to both the physical and mental health of residents. Studies at nursing facilities around the country show that psychologically, the use of restraints increases agitation and leads to withdrawal. In addition, when physical restraints are used, residents are prone to:

• Skin breakdown and the formulation of skin ulcers;
• Pneumonia;
• Decreased appetite;
• Loss of bladder or bowel control
• Constipation;
• Decreased bone mass and muscle strength (due to inactivity); and
• Dehydration (because of inability to reach liquids).
  Further, the known hazards of chemical restraints include:
• Urinary retention;
• Constipation;
• Dry mouth;
• Anemia;
• Skin and cardiovascular problems;
• Increased cognitive impairment;
• Adverse drug reactions;
• Irreversible side effects; and
• Paradoxical reactions (drug has the opposite effect of what was intended).

V. ENFORCING PATIENT RIGHTS

One of the most difficult topics in discussing resident rights is how do you enforce a resident's rights. Unfortunately most statutes regulating the activities of nursing facilities are designed to allow the government to regulate and punish the facility and do not provide a private cause of action for the resident. Therefore the Elderlaw attorney must be innovative in advocating for his client. The primary tool used by the lawyer in protecting his clients rights are his knowledge of the rules and a willingness to push state regulators to do their job. Nonetheless, when all else fails, traditional negligence law does apply to nursing facilities. While a detailed discussion of nursing home tort suits is beyond the scope of this presentation, suffice it to say that the threat of a negligence suit is a valuable tool in advocating for your client.


PRIVATE CARE MANAGEMENT

A. What is Private Geriatric Care Management

Geriatric care management is a growing field comprised of professionals who help the elderly and their families cope with the medical and social complexities of aging by developing care strategies that allow older persons to remain independent for as long as possible and to assist in arranging for and assuring the quality of long term care when it becomes necessary. According to Ruth C. Cohen, president of the National Association of Professional Geriatric Care Managers, a Geriatric Care Manager must have a minimum of a degree in social work, nursing, psychology or gerontology, and a commitment to the elderly.

B. When is Private Care Management Appropriate

Geriatric Care Managers are useful in providing expertise in areas an attorney may not have a chance to deal with on a regular basis. For example, a Care Manager can evaluate a client's home environment and make suggestions as to the clients physical and medical needs. It is the responsibility of the Care Manager to know what resources are available in the community to assist the client in his daily living. In that regard the Care Manager is the ideal person to assess the need of the client for nursing home care.

C. What Do Private Care Managers Do?

1. Institutional Care Management
a. Quality of Care Visits and report to family
b. Assessment of Care Plan for Patient
c. Assess adherence of institution to care plan
d. Act as liaison between institution, family, and physician
e. Advise patient and family as to patient rights
f. Audit of monthly bill from institution

2. Noninstitutional Care Management
a. Perform Elder Needs Assessments
b. Quality of Life Visits and Report to Family
c. Work with physician in developing a private care plan and consult with family as to adherence to care plan.
d. Assess Availability of Local Services
e. Arrange for Provision of Local Services
f. Assistance in filing medicare and insurance forms for reimbursement
g. Assess adequacy of insurance
h. Consult with hospital regarding discharge planning
i. Assist hospital or family in locating housing or nursing home
j. Assess Mental Ability
k. Assess Ability to Handel Finances.
l. Assess Medical Eligibility for Medicaid
m. Assess Financial Eligibility Medicaid
n. Assist family in obtaining Medicaid
o. Monitor quality of home health services
p. Assess care plan and adherence to plan by home health agencies
q. Act a liaison between home health agencies, patient, family and physician

This summary was prepared by

ElderLife Services Incorporated
A care planning and management service for elderly and disabled persons
Karen Greer, R.N., Director
(803) 252-7080 Facsimile (803) 799-2517