One of the primary goals of the life care planning we provide to our clients is trying to keep our older clients out of the nursing home if at all possible. Nonetheless, that is not always possible. And when it looks like a loved one will need to move into a skilled nursing facility, we often notice that families hold a number of misconceptions about nursing homes. Specifically, many families are unaware that under federal law nursing home residents have a number of important rights and protections.
Many of those rights are afforded by the Nursing Home Reform Act (“Act”), a piece of federal legislation that was passed in 1987. The Act pertains to all facilities that collect payments from Medicaid or Medicare. And since that is the case for some 95% of all facilities, few facilities are beyond the Act’s reach. It is worth considering some of the most important protections mandated by the Act.
- Nursing homes cannot discriminate against Medicaid-eligible residents. That means that any Medicaid-eligible resident is entitled to receive the exact same level of services as residents who are not on Medicaid.
- Nursing homes cannot use physical restraints simply because the facility finds it convenient or thinks it can be used as a form of discipline. A nursing home can only use physical restraints if there is an order from the resident’s physician.
- The Act prevents facilities from restricting the hours of the day when friends and family can visit residents. Family members are entitled to visit at any time of the day or night.
- A facility cannot require anyone except the resident to be financially responsible for nursing home expenses. However, that does not prevent the facility from trying to obtain signatures from a resident’s family members as a “responsible party” for the resident’s expenses. Any individual who signs in that capacity can be held liable for the resident’s care expenses. Unfortunately too many family members are unaware of the potential ramifications of signing such a “responsible party” designation.
- Nursing homes who accept Medicaid at all cannot evict a resident who becomes Medicaid-eligible financially. Since Medicaid pays a lower rate than nursing homes charge residents who are paying privately for their care, facilities will naturally seek to minimize Medicaid recipient beds if they can. So this piece of the Act prevents that.
The Act lists just five legitimate reasons why a resident can be evicted. Those are: if a resident has failed to pay; if the resident no longer needs nursing home care; if the resident’s needs can’t be met by the nursing home; if the resident’s presence in the nursing home endangers others’ safety or health; or if the nursing home is going out of business. Having a resident that the staff considers “difficult to deal with” is not a legitimate reason for eviction.
Lastly, in November 2016 the United States Department of Health and Human Services issued a new rule that gives greater rights to consumers to sue nursing homes. Facility admissions agreements often seek to mandate that all disputes go to mandatory arbitration, a non-judicial process that some have criticized as being too much in favor of facilities over consumers. This new rule is intended to restore some of the litigation rights of consumers.
If you have any questions about the issues presented above or care to discuss any other planning issues, please call us at 860-769-6938, visit our website at http://www.weatherby-associates.com or email us at info@weatherby-associates.com.
