Nursing Home Law

Pamela Walz, trainerCommunity Legal Services, Inc.

Federal Law

• OBRA ’87 – Omnibus Budget Reconciliation Act of 1987

• Nursing Home Reform Amendments (NHRA) of 1990

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

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.

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.

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.

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.

RAI

Minimum Data Set (MDS)

Assessment must be used to develop written plan of care

Major Provisions of the NHRA, cont’d

• Pre-admission screening requirements (PASSAR) for residents with mental illness or mental retardation

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.

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.

RESIDENTS’ RIGHTS

1. Right to a dignified existence

2. Right to refuse medical treatment

3. Free Choice

4. Accommodation of needs and preferences

5. Privacy

Residents’ Rights, cont’d

6. Freedom from physical and mental abuse

7. Freedom from physical and chemical restraints

8. Right to apply for and receive Medicare and Medicaid benefits

9. Prohibition on requirement of third party guarantee of payment

Residents’ Rights, cont’d

10. Freedom from discrimination based on source of payment

11. Right to information

12. Notice of residents’ rights

Residents’ Rights, cont’d

13.Notice of financial obligations, services and items for which resident may or may not be charged

14.Right to control personal funds and have funds protected

15.Right to discharge planning

16.Notice on bed-hold policy and right of readmission

Residents’ Rights, cont’d

17.Relocation within the facility

18.Access and visitation rights

19.Right to participate in social, religious and community group activities

20.Grievances

21.Rights of incapacitated residents

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

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

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