NURSING HOME ISSUES
THIS IS AN OVERVIEW OF A COMPLEX SUBJECT. IT IS GENERAL INFORMATION, AND SHOULD NOT BE REGARDED AS LEGAL ADVICE IN A PARTICULAR SITUATION.
Making the decision
The decision to move to or to place a loved one in a nursing home is usually painful, but sometimes there is no other way to provide the necessary level of care. Around-the-clock home care is expensive and it is often difficult to find competent providers at any price.
Many nursing homes provide good care. Some residents are content, and a few actually thrive, but the sad reality is that through no fault of theirs, many will never again be content. In any event, providing care for very sick or cognitively impaired people is as difficult for caregivers in a facility as it is for caregivers at home, and friends and families can have unrealistic expectations. On the other hand, responsible family members are sometimes reluctant to insist on the rights to which every resident is entitled
The best of all worlds is to establish a cooperative working relationship with the facility and its caregivers. But the best protection for the resident is to visit often, stay alert, attend all Care Planning Conferences, know the caregivers assigned to your loved one, and know the rights as well as responsibilities of residents and families. If a problem arises that you cannot work out by talking with the immediate supervisor for the area in which the resident is located, or the facility administrator if that fails, you can contact the Ombudsman for your County. (Information at the end of this article).
Selecting a nursing facility. For free materials on selecting the best nursing home for yourself or a family member, call the Alabama Department of Public Health, Division of Health Provider Standards, at 334-206-5366, for a helpful brochure to get started. Also click on Links to Elder Law and Other Resources for Elders on this web site. Another good resource is the Administration on Aging web site at www.aoa.dhhs.gov/wecare or call the AAoA at 1-800-677-1116.
The Medicare web site provides a summary of the most recent state inspection of every nursing home in the country that accepts Medicare or Medicaid reimbursement, with information to help determine the importance of the different criteria used. Since tight funds mean that inspections rarely occur more often than once a year, the information may be somewhat dated, but it can be helpful. Access the site through our links (see above) or go to www.medicare.gov/nhcompare.
Many organizations offer suggestions about finding the best place for your situation. If the nursing home residence will follow a hospitalization, the hospital planner can be very helpful. (Remember, though, that a major goal for the discharge planner is to move the patient out of that hospital bed.) As a practical matter, your “choice” may be limited to the nursing home that happens to have a bed open.
Paying for care
Private Pay. It is almost always easier to find a place in a nursing home if you or your family can pay, at the minimum, for the first month’s stay. In Alabama that may be around $4,600 a month in 2009,, depending on where you live.
Medicare – Pays for a short time in a few cases. IF you go to a nursing home:
(a) from a hospital after a minimum three-day stay (not counting the day of discharge,
(b) your doctor certifies that you need skilled care, and
(c) you go to a skilled nursing care facility,
Medicare will pay all charges for twenty days. It will pay for part of up to 80 more days if you still need skilled care, but the co-pay is $ 133.50 a day (in 2009), which in Alabama is as much as many nursing homes charge anyway. Medicare supplemental policies (“Medigaps”) “C” through “J” pay this co-pay. (Blue Cross/Blue Shield “C+” policies, which are actually Medigap “B” policies, do not cover the co-pay.)
Medicaid. If you cannot pay privately and are not eligible for Medicare, you should apply for Medicaid as soon as you have been in the nursing home for at least 30 days. You can have only limited assets and income to qualify for Medicaid assistance. If you transferred property for less than its fair market value in the last three years you may not be eligible unless the recipient returns it, or the penalty period has run. See the Medicaid topic on this web site for more information.
The "Nursing Home Reform Law" of 1987 requires nursing homes to post a list of rights where everyone can read it. If a nursing home accepts money from Medicare or Medicaid it must ;
“provide services and activities to attain and maintain the highest practicable physical, mental and psycho-social well-being of each resident”.
The goal of the Nursing Home Reform Law is to give each resident as much dignity and independence as possible. The ideal is for residents and nursing home staff to work together to make the nursing home a pleasant, caring, healthy, homelike place. The NHRA has resulted in significant improvements in the care and atmosphere in nursing homes since the 1980s. Even so, the ideal is not always achieved, and it is up to the resident and family – the consumer – to ask for and if necessary demand the care that the law decrees. Here are a few of the rights you have as a resident:
Every resident has a “Care Plan” developed just for him or her. This is not “just another form”! You and your family should participate actively in the care planning session, because your Plan should reflect your personal needs and preferences as well as medical needs. For instance, if you enjoy sleeping late you do not have to get up at 6:00 a.m. just because it is convenient for the staff, and if the only time a family member can visit you is 9:00 at night, (s)he can visit then, though you must be considerate of others.
Significant changes in the Plan must be recorded within a certain time; nursing notes should reflect adherence to the Plan. For instance, if a resident’s Plan specifies that a resident be assisted to the restroom every three hours, but notes show that is not being done, the family or advocate should find out why not. Before consenting to placing a resident in diapers, advocates should assure that the staff is not neglecting to fulfill a Plan that might avoid it.
FAMILY MEMBERS DO NOT HAVE TO GUARANTEE PAYMENT
A family member should not have to sign an Admission Agreement saying that (s)he will pay your bill from his/her own money. The nursing home does not have to admit you if you can’t show how you are going to pay, but it cannot make your family pay. This may be the most frequently violated of the rules.
A facility does have the right to insist that families who have access to available funds of the resident use that money to pay for his care. And a nursing home may legally discharge a resident for non-payment, after the required notice. Therefore, as a practical matter, during a resident’s lifetime a family must usually either come up with the money or make other care arrangements. (To be sure an individual situation does not fall within an exception to the rule, contact the area Ombudsman or Area Agency on Aging legal services provider.)
Often, however, nursing homes pursue family members of deceased residents in an effort to collect for charges unpaid at death. If a resident leaves an estate, the estate is liable for payment. But if there is no “estate”, as is almost always the case with long term residents on Medicaid, the family is not liable. Some families are able to pay and want to do so. In many cases, however, families have been devastated by the long illness of a loved one and are not in a position to pay the debt. Families being pursued by nursing homes should contact the nearest Area Agency on Aging legal services provider for advice.
Few attorneys are familiar with Medicaid and nursing home rules. An attorney contacted by family members being harassed by collectors of nursing home debts should be aware that these are not ordinary debts. The NHRA provides a defense against such collection efforts and there is solid case law as well.
PROTECTION AGAINST DISCHARGE.
There are only a few reasons that residents may legally be discharged against their wishes:
- The resident's needs cannot be met in the facility.
- The resident's health has improved to the point that (s)he no longer needs nursing home care.
- The health and safety of individuals in the facility would be endangered if the resident remains.
- The resident's bill has not been paid after reasonable and appropriate notice, or the resident has failed to have Medicare or Medicaid payment made.
- The facility has ceased to operate.
Those reasons do not include being difficult or expensive to care for, but these are sometimes reasons given for attempting to discharge a resident. Even if there is a legitimate reason for the discharge the resident and a family member or other responsible contact must almost always (1) have at least a thirty day advance notice stating exactly when the discharge will occur, (2) for what reason, (3) and to where. (4) There must be a written plan to help the resident adjust to the new place.
PROTECTION AGAINST RESTRAINTS
Residents must not be restrained with drugs or physical restraints except in rare circumstances and under a doctor’s orders. If use of restraints is suspected, that should be addressed promptly with staff and if the answers are unsatisfactory, then with the Ombudsman.
Residents have a right to therapy services not just to improve their condition but also to keep them from getting worse. Denial or cessation of therapy because the resident "isn't improving" is fairly frequent, but can be appealed. Another cooperate. That is a personal issue, but sometimes a facility's social worker can help.
The nursing home can charge for holding a bed when the resident must leave temporarily. If the resident is on Medicaid the nursing home can charge the bed hold after four days if (s)he is in a hospital, or three days for a doctor-approved visit to the home or the home of family or friends. Medicaid- eligible residents who are in a hospital for more than the allowable days and do not pay the bed hold must be allowed to return to the first available semi-private bed.
It is not unknown for a facility to attempt to get rid of a difficult resident by claiming there is “no bed available” when the time comes for readmission after a hospital stay. The claim may be legitimate, as nursing homes are often near capacity. Semi-private beds are particularly scarce for male patients. But if your loved one is a resident considered “difficult” by nursing home staff, you may want to check with other families or the hospital discharge planner to see if other patients of the same gender are being admitted to that facility.
CONSENT TO TREATMENT.
Nursing home residents have the same right to consent to or refuse treatment that they would have anywhere else. The resident and sponsor must be informed of any changes in care or medication.
Tube feeding a frequent issue. Nursing homes sometimes have residents who are having difficulty eating placed on tube feeding. Sometimes there is medical justification for the move. But before consenting to this medical treatment, loved ones should insist on knowing both its benefits and risks to the patient. Alabama nursing homes resort to tube feeding much more often than those in other states. While facilities are under considerable regulatory pressure to avoid “unexplained weight loss”, there is widespread misinterpretation of the term “unexplained”. Weight loss resulting from honoring a terminally-ill resident's expressed wish not to receive it is not "unexplained".
Risks. As with any medical treatment, there are risks involved in artificial nutrition and hydration, such as infection, and discomfort for some patients. Too often these are not disclosed to families. In addition, there is widespread and often highly emotional misinformation about artificial nutrition and hydration, which take on strong symbolic importance for some family members. While the procedure is appropriate and welcome in some cases, it is not necessarily “kind” to the recipient; and in fact the reverse is often true.
Public and private insurers reimburse facilities for tube feeding, which is a medical treatment, but do not pay for extra nursing home personnel to spend time assisting residents who have difficulty eating. Nonetheless, a competent resident who refuses tube feeding, or an incapacitated resident who, while competent, appointed a health care agent (or in terminal cases, executed an Advance Directive ) or stated that (s)he did not want it, cannot legally be force-fed. Unless a facility indicates at the time of admission that it will not honor such directions in Living Wills, it may not legally discharge a resident for exercising his/her right to refuse this or any other medical treatment.
Although health care providers, including nursing facilities, have improved in their attention to pain management in recent years, expressions or physical manifestations of pain by nursing home residents remains too often overlooked or ignored. Almost any type of pain can be relieved with adequate attention. This is basic medical care, and basic quality-of-life care.
The Ombudsman. Every regional Area Agency on Aging has a “Nursing Home Ombudsman” whose job is to protect the rights of nursing home residents. If you have a serious problem you cannot work out reasonably with the nursing home staff, call the Ombudsman in your area to see if (s)he can help. Call your local Area Agency on Aging; or the State Ombudsman can give you the number for your area. In Alabama call AGE-LINE at 1-800-243-5463.
Area Agency on Aging Legal Service Providers. Each Area on Aging also contracts with a legal service provider that provides a range of free legal services to those 60 and over who live in that area. These attorneys can often assist with difficult nursing home situations and they usually work closely with the Ombudsmen in their areas.
- The Nursing Home Reform Act of 1987 is codified at 42 U.S.C. § 1395-i-3 et seq. (Social Security Act, Title XIX, § 1819 et seq.) and 42 C.F.R. § 483 et seq. In Alabama, state regulations, which follow the federal rules almost exactly, are found in the Alabama Administrative Code at Rule 420 et seq..
- The premier resource on long term care generally and nursing home rights in particular is Long Term Advocacy, by Eric Carlson, from Matthew Bender (Lexis Publishing),1999, updated annually. Modestly priced for the quantity and quality of information included.
- The National Senior Citizens Law Center has several good publications on this topic, including "20 Common Nursing Home Problems and How to Resolve Them", and "Baby Boomer's Guide to Nursing Home Care". The charges are moderate. See http://www.nsclc.org/publications,; call NSCLC
at 1444 Eye Street, Suite 1100, Washington, D.C. 20005; or call 202-683-1996.
- Chapter 15 of Alabama Elder Law, Hugh M. Lee and Jo A.Taylor, Thomson-West Publishing, 2008 (updated annually), addresses nursing home issues in detail.