“People who reside in nursing homes are in a vulnerable position, since they are in need of near-constant assistance–not just with medical and health problems, but also, often, for daily living activities. Federal and state laws exist to safeguard nursing home residents’ care. However, your ability to protect yourself or your loved one during a short- or long-term nursing home stay, depends in part on knowing what these facilities are not allowed to do and what action to take if a violation occurs.”
Investopedia’s recent article, “Things Nursing Homes Are Not Allowed to Do” cautions that the discussion points in its article apply specifically to skilled nursing facilities, that are defined by Medicare as a special facility or part of a hospital that provides medically necessary professional services from nurses, physical and occupational therapists, speech pathologists and audiologists. They don’t apply to assisted living facilities or retirement homes.
Discrimination. Federal law prohibits skilled nursing facilities from making a decision about whether someone can live there based on race, color, religion, age, sex or any other protected characteristic.
Services Provided. A skilled nursing facility must state in writing the types of services it will provide and fees before a patient moves in. Some types of retirement facilities, like continuing care communities, also require a large buy-in fee up front that guarantees residents access to various levels of care as their needs change, but skilled nursing facilities can’t charge those fees.
Health Assessment. When a patient first enters a nursing home, he is given a health assessment. These assessments continue daily for the length of his stay. The medical staff will evaluate the patient’s physical and mental health, medications, ability to take basic care of himself and ability to speak and make decisions. The assessments are used to plan treatment, evaluate progress and determine ongoing eligibility for Medicare coverage. Residents can participate in their care plan, and if they’re not able to do so, an adult child can participate on their behalf.
Money Management. A nursing home may offer to manage a resident’s personal funds as part of its services, but it can’t require a resident to let it manage their money, and it cannot do so without the resident’s written consent. When approved, the nursing home must provide quarterly financial statements and cannot prevent residents from accessing their bank accounts, cash or financial documents. If a resident deposits more than $50 into a managed account, that account must pay interest.
Dignity and Respect. Federal law states that nursing home residents have the right to be treated with dignity and respect. This includes making decisions on the time they want to go to bed and when they get up; what time to eat; and what to do during the day, provided their decisions don’t conflict with the care plan. Residents cannot be verbally or physically abused, medicated with drugs that aren’t in their treatment plan, restrained physically (unless they pose a danger to themselves or others), involuntarily isolated or to have their property used or taken by anyone else at the facility. Patients have the right to privacy and to personal property—this means being allowed to open their own mail and to have private phone conversations.
Visitation. Patients can have visitors during reasonable times of day. They’re also allowed to refuse visitors they don’t want to see. Family members must be allowed to have access to the patient at any time (unless the patient says otherwise).
Physical Condition. Even though a patient is in poor physical or mental health, she has the right to be told her physical condition; her diagnoses; and the types of medications she’s been prescribed. She also has a right to see her medical records. Patients can continue to see their own doctors, meaning they don’t have to accept the services of practitioners provided by the nursing home. Patients also have the same right to refuse treatments and medications that outpatients do. If a patient needs mental, legal, or financial counseling concerning her treatment, the nursing home must provide these services.
Medicare Benefits. Nursing homes don’t have to keep track of the Medicare benefits being used to pay for a patient's care. When it comes to facilities, Medicare coverage can be complicated because it covers a stay completely for a certain number of days but then pays a set amount for an additional period and all this only under certain conditions. After that, patients are responsible for the whole bill, unless they have long-term care insurance or some other form of coverage.
The nursing home doesn’t have to notify a resident that the benefit days are ending, and it can continue to charge them for their care. The one exception is if Original Medicare benefits stop earlier than expected, because the care is deemed no longer “medically reasonable and necessary.” In that case, the nursing home must notify the patient that coverage is ending, when it’s ending and why. The nursing home must also tell such patients that they’ll be responsible for further costs and how much it estimates those costs will be. But a facility usually can’t require another family member to pay for a resident’s care.
Discharge Planning. Nursing homes must help with discharge planning, and they generally can’t discharge a patient or transfer him to another facility without his consent, unless:
- the patient’s health has declined to the stage, where the facility can no longer meet his needs;
- the patient has improved to the point, where he no longer requires the facility’s services; or
- the patient poses a threat to his own welfare or that of other residents.
In addition, a resident can be discharged for not paying the facility’s bills (but not when the delinquency is caused by waiting for Medicaid payments from the government).
Complaints. Residents and their advocates have a right to complain about any issue they have in a nursing home, and nursing homes can’t punish someone for doing so.
Ability to Sue. A 2016 regulation gave nursing home residents and their families the ability to sue any nursing home that receives federal funding. Before this, nursing homes could try to force people into arbitration, and any quality of care and safety issues could be kept private. However, a preliminary injunction granted in Mississippi in late in 2016 put this regulation on hold for now.
New Rules. There are new rules that give nursing home residents more rights. Residents will be allowed to receive any visitor, not just relatives, at any hour of the day, provided visitors don’t disturb fellow residents. Residents who want to live together will be permitted to do so, and nursing homes will have greater responsibility for ensuring that residents’ personal belongings aren’t lost or taken. In addition, nursing homes will be required to provide meals and snacks when residents want them, rather than only at set times. Staff will get more training in caring for dementia patients and preventing elder abuse, and nursing homes won’t be able to easily discharge residents with dementia, by sending them to a hospital and then refusing to readmit them.
In effect, a person’s rights as a nursing home resident should be the same as the rights she had outside the facility. Dealing with Nursing Homes can be tricky and you shouldn’t have to do it alone, Call Rowley Law today to schedule an appointment.
Reference: Investopedia (September 30, 2018) “Things Nursing Homes Are Not Allowed to Do”