Nursing home residents are vulnerable. To protect a loved one who lives in a nursing home, you’ll need to know what the facilities are and are not permitted to do, and what actions to take, if necessary.
A nursing home is defined by Medicare as a special facility or part of a hospital that provides medically necessary professional services from a nurse, physical or occupational therapists, speech pathologists or audiologists. Nursing home protocols are governed by federal law called the Nursing Home Reform Act, which has just been revised. Some rules from this law are:
Discrimination. Skilled nursing facilities are prohibited by federal law from making a decision about whether someone can become a resident for reasons of race, color, religion, age, sex, or method of payment or any other protected characteristic.
Provided Services. The types of services to be provided and fees must be stated in writing before a patient becomes a resident. In some facilities, like continuing care communities, a large buy-in fee is required that ensures that residents will have access to various levels of care, as health needs change. Skilled nursing facilities may not charge those fees.
Patient Health Assessment. Patients receive a health assessment when they first enter a nursing home, called a care planning method, and every day for as long as they are in the nursing home. The medical staff evaluates the physical and mental health, ability to speak and make decisions and to perform basic acts of daily living. The information from the assessment is used to plan treatment, evaluate progress and decide if the patient continues to be eligible for Medicare coverage. Residents have the right to be actively involved in their care planning. If they cannot, an adult child can participate for them.
Finances. While the nursing home is permitted to manage a resident’s personal finances, although it is rare. This is limited to the receipt of the social security benefit. It cannot require a resident to do so, and it cannot do so without the written consent of the resident. If the resident decides to permit the nursing home to manage his money, they must receive quarterly financial statements, may not prevent residents from accessing their accounts, cash or financial documents and if more than $50 is deposited, the account must pay interest.
Respect and Dignity. It’s unfortunate that this has to be a law, but it does. Residents have the right to decide when they want to go to bed, when they want to wake, when they want to take their meals and what activities they want to do, as long as their decisions do not conflict with the plan of care. This is called patient centered care. Abuse is not allowed, verbal or physical. No one is allowed to be medicated with any drugs not in their treatment plan. Physical restraint is not permitted, unless they pose a danger to themselves or others, and no one should be isolated. Residents also have the right to own personal property, privacy and security.
Visitation. Patients have the same rights in the nursing home that they have at their own homes. They may have visitors during reasonable times of day and they have the right not to see people, if they do not wish to see them. Family members must be permitted to visit at any time, unless the patient does not wish to see them.
General Health. The patient has the right to be treated like an adult, regardless of his or her physical or mental health. That means that she, or her duly appointed agent, is entitled to know her diagnoses, what medications she is being given and to see her medical records. She is also entitled to see her own doctor and not those of the nursing home. She may refuse treatments and medications, just as an outpatient may do. If she requests mental, legal or financial counseling, those services must be provided.
Medicare Benefits. Things get a little tricky here. The nursing home is not required to track the Medicare benefits being used to pay for the patient’s care. They also don’t have to notify residents that the benefit days are ending. The only exception: if Original Medicare benefits stop earlier than expected because the patient is deemed not to be in need of the care. That’s the only time the nursing home is legally obligated to inform the patient. Patients or their family members need to be very cognizant of their coverage status. Medicare may cover a certain amount of time, under certain conditions, and then the benefits may end. Patients will be responsible for the rest of the bill.
Discharge Planning. Patients have the right to have help from the nursing home in the discharge planning process. Without the patient’s consent, they may not be discharged or transferred, unless:
- the patient’s health has declined to the stage, where the facility can no longer meet his needs;
- the patient has improved to the point, where he no longer requires the facility’s services; or
- the patient poses a threat to his own welfare or that of other residents.
In addition, a resident can be discharged for not paying the facility’s bills (but not when the delinquency is caused by waiting for Medicaid payments from the government).
Complaints. Residents and their advocates have a right to complain about any issue they have in a nursing home, and nursing homes can’t punish someone for doing so.
Ability to Sue. A 2016 regulation gave nursing home residents and their families the ability to sue any nursing home that receives federal funding. Before this, nursing homes could try to force people into arbitration, and any quality of care and safety issues could be kept private. However, a preliminary injunction granted in Mississippi in late in 2016 put this regulation on hold for now.
New Rules. There are new rules that give nursing home residents more rights. Residents will be allowed to receive any visitor, not just relatives, at any hour of the day, provided visitors don’t disturb fellow residents. Residents who want to live together will be permitted to do so, and nursing homes will have greater responsibility for ensuring that residents’ personal belongings aren’t lost or taken. In addition, nursing homes will be required to provide meals and snacks when residents want them, rather than only at set times. Staff will get more training in caring for dementia patients and preventing elder abuse and nursing homes won’t be able to easily discharge residents with dementia, by sending them to a hospital and then refusing to readmit them. At the essence, the patient’s rights in a nursing home should be the same as the patient’s rights in their own home. The more family members can be involved in their loved one’s day to day life at the home, the better the quality of life will be for the patient.
If you need advocacy with nursing home issues or you have questions or the rights of your loved ones in a nursing home, please contact Grimaldi and Yeung.
Reference: Investopedia (September 30, 2018) “Things Nursing Homes Are Not Allowed to Do”