Knowing Your Rights as a Nursing Home Resident, Relative or Friend.
(5/15/20)-A provision in the New York State budget that was passed at the end of March, that was lobbied for by the nursing home industry, shielded nursing homes, hospitals and other medical facilities from being sued for actions during the pandemic, unless they were guilty of gross negligence or misfeasance.
New Jersey, Massachusetts, North Carolina, Utah and Wisconsin have also passed measures that would shield nursing homes from being sued for their actions during the pandemic. Governors in at least 9 other states including Arizona, Connecticut, Hawaii, Illinois, Kansas, Michigan, Mississippi, Rhode Island and Vermont have issued executive orders shielding health care facilities from most lawsuits stemming from the pandemic.
The legislation does not protect the homes from intentional criminal misconduct or gross negligence.
(10/26/17)- The Florida Assisted Living Association and two other industry groups that also represents nursing homes in Florida filed petitions for review of the new rules state regulators put in place after the death of 8 residents in a nursing home that lost power following Hurricane Irma.
A three-judge panel denied the petitions by a 2 to 1 vote, so the trio is now challenging that decision before the Florida Division of Administrative Hearings.
The new requirements had to be met within 60 days, or face a $1,000 a day fine. Included in the new requirements were additional generator capacity so that in the event of a power failure the facility needed to have additional fuel as well as generator capacity to keep the temperature under 81 degrees for at least 96 hours after a power outage.
The Florida Health care Association estimates that the new rules would cost the state’s nursing homes a total of $230 million, or about $350,000 for a 120-bed home.
(8/20/17)- The Trump administration is seeking to scrap the rule that we wrote about in our item dated 9/30/16 below that eliminated binding arbitration clauses in nursing home contracts that receive payments from Medicare or Medicaid.
Trump administration officials asserted that clauses banning arbitration in nursing home agreements imposes “unnecessary or excessive costs on providers” The Centers for Medicare and Medicaid Services (CMS) cited guidance from the White House for the proposal.
(12/5/16)- Under new rules set
by the Centers for Medicare and Medicaid Services that went into effect in
November every adult or their custodian admitted to a medical facility must get
a written notice of their rights — including the right to appeal planned
discharges — within two days. If you remain in the hospital for at least five
days, you should receive a second notice before being discharged.
This “Important Message from Medicare” will give you the name and a phone number for your Medicare Quality Improvement Organization (QIO) — an entity charged with handling fast appeals as well as other matters, such as complaints about the quality of care.
Residents of homes may receive any visitor he or she chooses, including non-relatives without any restrictions on the time of the visit, as long as the visitor does not disturb the other residents. The new rules allow residents to choose their roommates when both parties agree as to who their roommate should be.
Facilities will have to make meals and snacks available when residents want to eat, not only at designated mealtimes.
Nursing homes will have to take “reasonable care” of residents’ personal property, and can’t require residents to sign waivers. Long-term residents will not be able to be “bounced” to a hospital and then not be allowed to return to the home.
The American Health Care Association has gone to court to prevent the banning of arbitration clauses in nursing home admission contracts, so that issue is still presently before the judicial system.
(11/18/16)- Our item dated 9/30/16 below referred to the ruling from the Centers of Medicare and Medicaid Services (CMS) that prevented nursing homes that receive payments from Medicare or Medicaid from having clauses requiring binding arbitration in their admission contracts for new residents.
With a new administration taking charge in Washington on January 21, 2017, that ruling may be stricken from the books by a new leadership at the CMS.
(9/30/16) –The Centers for Medicare and Medicaid Services (CMS) announced a new rule that will go into effect in November that will prevent nursing homes that receive payments from the agency if their admission contract requires binding arbitration clauses therein. The rule will apply to new residents entering the homes in November and thereafter, but will not be applicable to residents admitted prior to that date.
The rule would affect nursing homes with about 1.5 million residents, but it is subject to being appealed by the court. The industry is expected to challenge the rule, since it asserts that arbitration is a quicker and less costly method to resolve disputes.
The rule came after came after officials in 16 states and the District of Columbia urged the government to cut off funding to homes that use the arbitration clause
(10/15/14)- The federal government announced changes to its five-star rating system for nursing homes that was put into place 5 years ago. The changes will take effect in January and cover more than 15,000 nursing homes.
Nursing homes will have to start reporting their staffing levels quarterly using an electronic system that can be verified with payroll data. Inspectors will initiate a nationwide auditing program aimed at checking whether the so called quality measure rating on each and every patient is accurate.
Starting in January, nursing homes’ ratings will also be based partly on the percentage of its residents being given antipsychotic medications. The number of homes receiving four-or-five star ratings has increased from 37% in 2007 to 65% in 2013.
The recently enacted Medicare Post-Acute Care Transformation Act, also known as the Impact act requires more frequent inspection of hospice facilities, which now must be inspected at least once every three years.
The homes had previously reported their staffing levels on a printed form which was collected during an inspection and not checked.
(4/14/08)- More and more nursing homes and assisted living facilities are requiring potential residents to sign compulsory arbitration clauses into their contracts before accepting them. They claim that this type of clause is necessary because exorbitant punitive damage awards in the court system are bringing them to the brink of bankruptcy.
Senator Mel Martinez (Rep.-Fl) and Senator Herb Kohl (Dem.-Wis.) have introduced legislation in the Senate to effectively ban nursing homes from using agreements that compel arbitration in advance.
"It is an unfair practice given the unequal bargaining position between someone desperate to find a place for their loved ones and a large corporate entity like a nursing home." said Senator Martinez.
The largest arbitration provider, the American Arbitration Association, frowns on agreements requiring arbitration in nursing-home care dispute cases, and generally refuses to get involved in them. A second group, the American Health Lawyers Association, also generally avoids them.
(9/26/04)- As a nursing home resident, or as the relative or friend of a nursing home resident, it is quite important for you to know what your rights are. Although the question may never arise you should always be prepared to prevent any misunderstanding between yourself and the nursing home.
As a Medicare or Medicaid beneficiary applying for admission to a nursing home you can not be required to pay a cash deposit as a condition of admission. The home may require that you pay coinsurance amounts or any other extraneous charges as they become due but only as they become due.
Federal Law prohibits the nursing home from using physical or chemical restraints on residents for discipline or for the convenience of the staff of the home. Restraints can be used only when necessary to treat medical symptoms or to ensure the safety of other nursing home residents.
If you have a complaint in regards to these or any other matter in connection with a nursing home go to the CMS web site http://www.cms.hhs.gov) to find your State's survey agency to register your complaint.
After being admitted to a nursing home you are entitled to the following rights:
As a relative or friend of a nursing home resident you have rights that must be adhered to also. You have the right to meet privately with the resident if requested to do so by the resident. You also have the right to meet with the families of the other residents of the home. If the home has a family or friends organization you must have the right to join it if you so desire, and you must also have the right to address that organization as well.
All nursing homes must develop a plan of care for every resident. You as a family member can have the right to assist in the preparation of that plan if the resident gives you that permission. The legal guardian of the resident also has the right to examine all medical records of the resident. You have the right to complain to the medical or administrative staff whenever you see something that you feel is improper in the treatment or care of the resident.
If you feel that you have a complaint that is not being properly addressed there are governmental agencies available to you for you to complain to. If you have a nursing home complaint in NYC call 1-800-425-0316; Nassau-Suffolk call 1-800-425-0323. Keep in mind that the Centers for Medicare and Medicaid Services is the Federal government's overseer of Nursing Homes in the United States. Their telephone number is 1-800-638-6833.
You must remember that living in a nursing home means that you will have to adjust to a different set of circumstances than living in your own home. It does not mean however that you have surrendered all your rights to having an enjoyable a stay as possible in the home.
New York State Ombudsman
Information on nursing home complaints that have been resolved at a lower level than those reported to licensing can be obtained. The ombudsman tries to resolve the concerns at the lowest level, therefore these would not be shown on the Medicare nursing home surveys for example.
Martha Haase, State LTC Ombudsman, NY State Office for the Aging
Thanks to Linda Kelly for emailing this one in to us.
FOR AN INFORMATIVE AND PERSONAL ARTICLE ON PRACTICAL SUGGESTIONS WHEN
SELECTING A NURSING HOME SEE OUR ARTICLE
"How to Select a Nursing Home"
Allan Rubin and Harold Rubin
updated May 15, 2020