Nursing Home Law

1. Nursing Home Law Pamela Walz, trainer Community Legal Services, Inc.

2. Federal Law • OBRA ’87 – Omnibus Budget Reconciliation Act of 1987 • Nursing Home Reform Amendments (NHRA) of 1990

3. NHRA • Title XVIII (Medicare) & Title XIX (Medicaid) of the Social Security Act • 42 U.S.C. § 1395i-3 et seq. (for Medicare provisions) • 42 U.S.C. § 1396r et seq. (for Medicaid provisions) • 42 C.F.R. Part 483: Requirements for LTC facilities

4. Major Provisions of the NHRA • Quality of Life: residents are entitled to care in a manner and environment that will promote the maintenance & enhancement of their quality of life.

5. Major NHRA Provisions, cont’d • Quality of Care residents are entitled to receive care and services to attain or maintain their highest practicable level of physical, mental and psychosocial well-being.

6. Major NHRA Provisions, cont’d • Residents’ Rights enumerates specific rights under federal law and requires states to have regulations at least as protective as federal regulations.

7. Major Provisions of the NHRA, cont’d • Resident Assessment Instrument (RAI): used to provide comprehensive, accurate, standardized, reproducible assessment of each resident’s functional capacity.

8. RAI Minimum Data Set (MDS) Assessment must be used to develop written plan of care

9. Major Provisions of the NHRA, cont’d • Pre-admission screening requirements (PASSAR) for residents with mental illness or mental retardation

10. Survey and Certification Process • 42 U.S.C. § 1395i-3 (Medicare), § 1396r (Medicaid) - state licensure agencies must conduct annual unannounced inspections of Medicare/Medicaid certified nursing facilities to determine compliance with federal standards.

11. Survey and Certification, cont’d • Survey must provide a case-mix stratified sample of residents. • Survey results must be disclosed. • Sanctions for noncompliance are imposed according to CMS guidelines.

12. RESIDENTS’ RIGHTS • Right to a dignified existence • Right to refuse medical treatment • Free Choice • Accommodation of needs and preferences • Privacy

13. Residents’ Rights, cont’d • Freedom from physical and mental abuse • Freedom from physical and chemical restraints • Right to apply for and receive Medicare and Medicaid benefits • Prohibition on requirement of third party guarantee of payment

14. Residents’ Rights, cont’d 10. Freedom from discrimination based on source of payment • Right to information • Notice of residents’ rights

15. Residents’ Rights, cont’d • Notice of financial obligations, services and items for which resident may or may not be charged • Right to control personal funds and have funds protected • Right to discharge planning • Notice on bed-hold policy and right of readmission

16. Residents’ Rights, cont’d • Relocation within the facility • Access and visitation rights • Right to participate in social, religious and community group activities • Grievances • Rights of incapacitated residents

17. Transfer/Discharge Cases • Only for statutorily permitted reasons: • Necessary for resident’s welfare/needs cannot be met in facility • Resident’s health has sufficiently improved • Resident poses danger to health or safety of other in facility • Resident has failed to pay after reasonable and appropriate notice or • Facility ceases to operate

18. Transfer/Discharge Cases, cont’d Notice: • Must be given at least 30 days before discharge • Must be given to resident and family member or legal representative • Must include reasons for discharge and reasons must be documented in record

19. Transfer/Discharge, cont’d Notice • Must include name, mailing address and telephone number of state long-term care ombudsman • Must include effective date of discharge and location to which resident is to be discharged • Must include explanation of appeal rights