RIGHTS OF THE ELDERLY AND THOSE WITH DISABILITIES IN LONG TERM CARE FACILITIES:
On this page we will discuss some of the fundamental rights of senior citizens and those with severe disabilities when residing in a nursing home. This is a complex area of law and if you feel a member of your family is being mistreated in a nursing home, you should seek guidance from an experienced attorney. Our attorneys have significant experience in this area of law.
A. Overview of Rights
The most important and comprehensive rights for residents of long term care facilities or nursing homes are contained in the Nursing Home Reform Act (NHRA) of 1987. In addition to an expansion of each resident’s personal 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 NHRA defines several categories of residents’ rights:
The rights provisions include freedom of 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.
Who can and should be admitted to a Nursing Home. One of the most difficult decisions faced by families is placing a loved one in a nursing home. Unfortunately, in addition to the personal conflicts surrounding this question there 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 Department of Health and Human Services. 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.
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.
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.
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: i. not require residents or potential residents to waive their rights to benefits under the Medicare or Medicaid program; ii. 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; iii. 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; iv. 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; v. 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. 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.”
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. 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.
When a facility seeks to involuntarily discharge or transfer a resident, its request is often an admission that the facility cannot or does not wish to meet the resident’s needs. From the facility’s standpoint, the resident may have become too difficult to handle or may require too much care or the resident’s family may ask too many questions or may make too 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.
The Nursing Home Reform Act. The Nursing Home Reform Act (the NHRA or the Act) establishes requirements for facilities, the US Secretary of Health and the States, in a number of areas including resident discharge rights.
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 needs 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 NHRA requires that the basis of the transfer or discharge be documented in the resident’s 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 some 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.
IF A NURSING HOME IS THREATENING TO INVOLUNTARILY DISCHARGE A FAMILY MEMBER YOU SHOULD CONTACT AN EXEPERIENCED ATTORNEY AS SOON AS POSSIBLE. YOUR TIME TO SEEK A FAIR HEARING IS LIMITED, AND YOU SHOULD NOT GO IT ALONE.
What is Transfer or Discharge? Discharge is defined as movement to a non-institutional setting when the discharging facility ceases to be legally responsible for the care of the resident. Transfer is movement from one institution to another.
FAIR HEARING REQUIREMENTS:
The NHRA 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 must be requested by the resident or someone acting on his or her behalf. The hearing may be obtained by contacting the State Long Term Care Ombudsman’s office which is operated out of the Lt. Governor’s office. You can access their website through our Resources Page. The hearing is conducted by a hearing officer of the Department of Health and Human Services (DHHS). An adverse decision by the DHHS may be appealed to an Administrative Law Judge. Except in emergency situations the resident may not be discharged or transferred while the appeal is pending, and the nursing home has the burden of proof on all issues.
BED HOLD AND READMISSION RIGHTS.
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 resident’s 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.
OTHER IMPORTANT RESIDENT RIGHTS.
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.
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:
i. 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.
ii. The right to be fully informed in advance about care and treatment.
iii. The right to be fully informed in advance of any changes in the resident’s plan of care and treatment.
iv. The right to participate in planning care and treatment.
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.
Confidentiality. A resident has a right to confidentiality of personal and clinical records.
Grievances. With respect to a residents complaints, he or she has the following rights:
i. The right to voice grievances with respect to care or treatment without fear of discrimination or reprisal.
ii. The right to prompt efforts by the facility to resolve the resident’s grievances, including those concerning the behavior of other residents.
iii. The right to written information concerning State agencies which can be contacted if grievances cannot be resolved.
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.
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 resident’s religious, social, and community activities that do not interfere with the rights of other residents.
Access and Visitation. A nursing facility must permit the following with respect to visitation and access to a resident.
i. 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.
ii. Permit immediate access to a resident, subject to the resident’s consent, by his or her immediate family or other relatives.
iii. Subject to reasonable restrictions, permit immediate access to the resident by others who are visiting with the resident’s consent.
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.
Incompetent Residents. The rights of an incompetent resident devolve upon and may be exercised by his guardian, conservator or power of attorney.
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.
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 resident’s symptoms.
i. 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.
ii. 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 drug plan of each resident receiving such drugs.
IF YOU HAVE QUESTIONS ABOUT YOUR LOVED ONES NURSING HOME RIGHTS, OR TREATMENT IN A NURSING HOME WE WANT TO HELP, CONTACT US.
Also if you have questions about a specific Nursing Home or want to compare nursing homes you can access the Medicare’s Nursing Home Compare Web Site. Access is available through our Useful Links Page under Resources above.
The foregoing information is subject to change at any time, and other more complex rules may apply. Do not rely on this information for any action or inaction as you may not fully understand the topic. If you need help in this area seek the assistance of an experienced Elder Law Attorney. This site is not intended as legal advice.