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Nursing Home IssuesTHIS IS AN OVERVIEW OF A COMPLEX SUBJECT. INDIVIDUAL CIRCUMSTANCES MAY TRIGGER A RULE OR REGULATION NOT MENTIONED HERE. THE INFORMATION GIVEN IS NOT INTENDED TO BE AND SHOULD NOT BE REGARDED AS LEGAL ADVICE IN A PARTICULAR SITUATION. 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. There are free materials available 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. Access the site through our links or go to www.medicare.gov/, then click on NH Compare. 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. 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 is about $4,000 in 2004. Medicare – Pays for a short time in a few cases. IF you go to a nursing home:
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 $101.50 a day (in 2002), 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; in fact it is a good idea to get an application and begin to gather the needed information immediately. 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. For further information on financing, see also our topic Long Term Care Financing. YOUR RIGHTS IN A NURSING HOME 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. Ideally, residents and nursing home staff will 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: CARE PLANS 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. 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 have at least a thirty day advance notice stating exactly when the discharge will occur, for what reason, and to where. There must be a 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. THERAPY Residents have a right to therapy services not just to improve their conditions but also to keep them from getting worse. BED HOLDS The nursing home can charge for holding your 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 your 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. Nursing homes sometimes insist that a resident who is having difficulty eating be placed on tube feeding. Alabama nursing homes resort to tube feeding much more often than those in other states. Facilities are sometimes understaffed and available staff do not have time to spend the necessary time to assist patients to eat. They are also under regulatory pressure to avoid “unexplained weight loss”. There is widespread misinterpretation of the term “unexplained”. The situation is complicated by 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 for terminally-ill patients. Many terminally ill or permanently unconscious patients apparently do not feel or are not aware of pain, and the final stages of many common illnesses do not cause significant discomfort. But where a resident has a terminal illness that does require strong drugs for relief, these sometimes need to be given in or with food or water. In such cases artificial hydration and nutrition may not be completely terminated immediately, but carefully reduced and monitored. Hospice staff can be helpful to patients, families and nursing home caregivers, in dealing with the dual goals of complying with the patient's wishes while continuing to provide adequate comfort care, and explaining what to expect. 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. A facility may not legally discharge such a resident for exercising his/her right to refuse this or any other medical treatment. Any resulting weight loss is not “unexplained”. 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. OTHER RESOURCES
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