The federal Nursing Home Reform Law was enacted in 1987, and became effective in October 1990. The Reform Law governs any nursing facility that accepts reimbursement from Medicare or Medicaid, and applies to all residents in any such facility, regardless of the individual resident’s payment source. In other words, the law applies whether the resident’s bill is paid privately by the resident, or is reimbursed through Medicare, Medicaid, private insurance, or some other source.

Regulations accompanying the federal Nursing Home Reform Law were first released in September 1991. In recent years, the Centers for Medicare & Medicaid Services began work on updating the regulations. Final, updated regulations were released on October 4, 2016. The new regulations can be found in the federal register at 81 Fed. Reg. 68,688.

This blog post discusses some provisions of the revised regulations that provide additional rights to nursing facility residents, new obligations imposed on nursing facilities and protections related to the admissions process.

Nursing Home Obligations

• A baseline care plan must be prepared based upon an initial assessment within 48 hours of admission. The baseline care plan must include: Initial goals, MD orders, dietary orders, therapy services and social services.

• The facility must prepare a comprehensive care plan within 7 days of the initial assessment. The care plan must include services needed for resident’s highest practicable well-being, resident’s goals and desired outcomes, resident’s preference and potential for future discharge and discharge plans.

• Each resident must have a discharge plan, which must be updated as needed. The resident and/or the resident’s representative must be involved. If discharge to community is determined to be not feasible, the facility must document who made the determination and why.

• A facility can discharge a resident only for the following reasons: (1) the resident’s health has improved; (2) the resident’s needs cannot be met by the facility; (3) the health and safety of other residents is endangered; (4) the resident has not paid after receiving notice; and, (5) the facility stops operating. Residents must be given 30-days written notice of any planned discharge, and an opportunity to appeal the discharge decision. Facilities must send a copy of transfer/discharge notice to the state’s long-term care ombudsman. Facilities must assist resident in completing the form and submitting the appeal hearing request. There can be no transfer/discharge while an appeal is pending, absent documented endangerment to the health or safety of the resident or others.

• To prevent resident “dumping,” which occurs when a facility transfers a resident to a hospital and then refuses to allow the resident to return, each facility must give notice of its 10-day bed-hold policy. Facilities also must allow residents to return to the next available room. If a facility determines “resident cannot return to the facility,” the facility must comply with transfer/discharge regulations “as they apply to discharges.

• A facility must “[n]ot request or require residents or potential residents to waive their rights as set forth in this subpart and in applicable state, federal or local licensing or certification laws, including but not limited to their rights to Medicare or Medicaid.”

Resident Rights

• A resident must have opportunities to interact with the community outside of the facility. A related regulation requires that the facility provide activities that “encourage[e] both independence and interaction in the community.

• The facility must be able to communicate with the resident in his or her language.

• A facility must permit the resident to engage in activities based on a comprehensive assessment and care plan and the preferences of each resident.

• Meals must “[r]eflect, based on a facility’s reasonable efforts, the religious, cultural, and ethnic needs of the resident population, as well as input received from residents and resident groups.”

• “Suitable, nourishing alternative meals and snacks must be provided to residents who want to eat at non-traditional times or outside of scheduled meal service times, consistent with the resident plan of care.”

• Each resident has right to “immediate access” to visits by relatives or non-family visitors. Non-family visitation is “subject to reasonable clinical and safety restrictions.”

• A facility cannot “request or require residents or potential residents to waive potential facility liability for losses of personal property.”

• A facility “[m]ust have a policy identifying those circumstances when the loss or damage of dentures is the facility’s responsibility and may not charge a resident for the loss or damage of dentures determined in accordance with facility policy to be the facility’s responsibility.”

• A resident has right to voice grievances to the facility or relevant agencies regarding care and other concerns. Every facility must have Grievance Official to oversee the process, lead any necessary investigations, and issue written grievance decisions.

• Residents can refuse intra-facility transfers if the purpose is to move the resident out of a Medicare-certified room, or the move is “solely for the convenience of staff.” Written notice, including reason for change, must be provided before any changes in room assignment or roommate is initiated.

Admissions

• The federal Nursing Home Reform Law prohibits a nursing facility from requiring a third-party financial guarantee as a condition of admission or continued stay. The regulations improve on the statutory protection by prohibiting a facility from requiring or requesting a financial guarantee.

• The regulations prohibit a nursing facility from obtaining waivers of a resident’s rights.

• The regulations do not allow a facility to obtain a pre-dispute arbitration agreement from the resident (A federal court in Mississippi has enjoined enforcement of this provision, and the ruling is pending, on appeal to the Fifth Circuit Court of Appeals)

• The terms of any admission contract must not conflict with the requirements of the new nursing home regulations.

(This blog post was adapted from an Issue Brief issued by Justice in Aging. Justice in Aging is a national organization that, since 1972, has used the power of law to fight senior poverty by securing access to affordable health care, economic security, and the courts for older adults with limited resources.)

For additional information concerning nursing home law and litigation, visit: https://vanarellilaw.com/nursing-home-law-litigation/