20 common problems nov 2010 final

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20 Common Nursing Home Problemsand How to Resolve Them

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Copyright 2010 by the National Senior Citizens Law Center. All rightsreserved. No part of this guide may be reproduced or transmitted in anyform or by any means, electronic or mechanical, including photocopying,recording or by any information storage and retrieval system, withoutwritten permission from NSCLC.

20 Common Nursing Home Problems

and How to Resolve Them

National Senior Citizens Law Center

With Support rom The Commonwealth Fund

by Eric M. Carlson, Esq.

June 2010

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Contents

Introduction .......................................................................................................5

Recommendation: Be A Squeaky Wheel!.................................................7

A Brie Introduction to Medicare & Medicaid ........................................ 8

20 Problemsand How to Resolve Them ...............................................9

#1 No Discrimination Against Medicaid-Eligible Residents ........................9

Problems 27: Providing Care ..................................................................................10

#2 Care Planning ..................................................................................................... 10

#3 Honoring Resident Preerences ...................................................................12#4 Providing Necessary Services .......................................................................13

#5 Limiting Use o Physical Restraints .............................................................14

#6 Prohibiting Inappropriate Use o Behavior-Modiying

Medication ........................................................................................................... 16

#7 Limiting Use o Feeding Tubes .....................................................................17

#8 Visitors ...................................................................................................................18

Problems 910: The Admissions Process ..............................................................19

#9 Responsible Party Provisions in Admission Agreements ..................19

#10 Arbitration Agreements ..................................................................................22

Problems 1114: MedicareRelated Issues .........................................................24

#11 Determining Eligibility or Medicare Payment .......................................24

#12 Continuation o Therapy When Resident Is Not Making

Measurable Progress ........................................................................................27

#13 Continuation o Therapy Ater Medicare PaymentHas Ended ............................................................................................................28

#14 Continued Stay in Medicare-Certied Bed Even Ater End o Medi-

care Payment ......................................................................................................29

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4

#15 Medicaid Certication or Only Certain Beds Within

Nursing Home ....................................................................................................31

#16 Readmission rom Hospital ...........................................................................32

#17 Payment ................................................................................................................33

#18 Resident and Family Councils .......................................................................34

Problems 1920: Evictions .........................................................................................35

#19 Eviction Threatened For Being Dicult ......................................................35

#20 Eviction Threatened or Reusing Medical Treatment .............................37

Concluding Thoughts ...................................................................................38

Ordering Additional Copies .......................................................................39

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20 Common Nursing Home Problems


IntroductionThe average consumer knows much

more about cars (or apartments, or cellphones) than she knows about nursinghomes. What if, for example, an apart-

ment tenant is told by her landlord thatshe has to move out within 48 hours,

because she is too difficult? The ten-ant likely will object, and the law will

Because Medicare and Medicaid areimportant sources of payment, over 95percent of nursing homes are governed

by the Reform Law.

The cornerstone of the Reform Lawis the requirement that each nursinghome provide the care that aresident needs to reach his or

be on her side in most cases, assumingthat the rent has been paid.

As is explained in the discussion ofProblem #19, being difficult never isenough to justify eviction from a nurs-ing home, and evictions from nurs-ing homes generally require 30-day

advance notice. These eviction rulesare set by the federal Nursing HomeReform Law, and they apply across thecountry.

Unfortunately, however, if a nursinghome resident is told by the nursinghome that she must leave within 48hours on account of being difficult,the resident may panic and move out.Because she is unfamiliar with the rel-

her highest practicable levelof functioning. (See Section483.25 of Title 42 of the Codeof Federal Regulations) Someresidents are capable of gain-ing strength and function;other residents are capable

of maintaining their currentcondition. Still other residentsat most may be able to moder-ate their level of decline. In allof these situations, the nursinghome must provide all neces-sary care.

In implementing thisguides strategies, a resident or resi-dents family member at times may

Note: Copies ofthe relevant federregulations areprovided onNSCLCswebsite,

www.nsclc.org/pu

lications/index_hml/manuals/Fedeal%20Regulation%20and%20Guidines

evant law, she is inclined to automati-

cally believe everything told to her bythe nursing home.

Too frequently, nursing homes followstandard operating procedures that

violate the Nursing Home Reform Lawand are harmful to residents. This guidediscusses some of the most commonpractices, which are actually illegal, andexplains strategies that residents andfamily members can use to avoid or re-

verse these illegal procedures. The goal

is for each resident to receive the bestcare possible in full accordance with thelaw.

The Nursing Home Reform Law, re-ferred to above, applies to every nursinghome that is certified to accept pay-ment from the Medicare or Medicaidprograms (or both), even if the residentinvolved is not eligible for either pro-gram and as a result is paying privately.

benefit from the assistance of an attor-

ney or other advocate. One good sourceof assistance is the long-term careombudsman program. Each state hasan ombudsman program that providesadvocacy for nursing home residentsfree of charge. Contact information fora particular states ombudsman pro-gram can be found at the website of theNational Long Term Care OmbudsmanResource Center at www.ltcombuds-man.org.

Each state maintains an inspectionagency (often part of the states HealthDepartment) that is responsible formonitoring nursing homes compliance

with the Reform Law, certifying nursinghomes for participation in Medicare andMedicaid, and issuing state licenses.Each of these agencies will investigatein response to a consumer complaint,and can issue warnings or imposepenalties to force a nursing home to fix

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a particular violation. Contact informa-tion for these agencies can be found atthe Where Can I Go for Help? pageof the National Citizens Coalition forNursing Home Reform website, at www.nursinghomeaction.org/static_pages/help.cfm.

Additional information about nurs-ing homes is available in The Baby

Boomers Guide to Nursing Home Care,a book co-written by Eric Carlson (au-thor of this guide) and Katharine Hsiao.Both Mr. Carlson and Ms. Hsiao are at-

torneys at the National Senior CitizensLaw Center.

The National Citizens Coalition forNursing Home Reform (www.nccnhr.org) likewise has many helpful publica-tions for nursing home residents andtheir families. The federal government

maintains a Nursing Home Comparewebsite (www.medicare.gov/NHCom-pare/home.asp) that provides exten-sive information on individual nursinghomes.

Important NoteThis guide is not a substitute for the independent judgmentand skills of an attorney or other professional. If you requirelegal or other expert advice, please consult a competentprofessional in your geographic area.

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Recommendation:

Be A Squeaky Wheel!

obligated by the Reform Law to provideindividualized care. A resident or familymember shouldnt feel sheepish to ask(for example) that necessary therapy beprovided, or that a resident be allowedto sleep as long as she wants in themorning.

While a resident or family membermay be afraid of retaliation, that risk issmall, particularly when compared tothe risk of being passive. Nursing homeemployees generally have no reasonor inclination to retaliate. Complaintsusually are made to a nursing homesnurses and administrators, but mostday-to-day care is provided by nurseaides. In any case, the issues covered inthis guide are, in most instances, fo-cused on nursing home policy and arenot directed against a particular em-ployee.

As the clich counsels, the squeakywheel gets the grease. If a resident and

family are too afraid or shy to ask foranything, the resident almost assur-edly will get relatively little attention.If, however, a resident and family aredetermined (but generally polite) inasking for individualized care, and areappropriately friendly and appreciative,the resident will tend to receive moreattention and better care.

Can it really be possible that manynursing homes follow illegal proce-dures? Regrettably, the answer to thisquestion is an emphatic yes, based onthe experiences of the author, and ofother attorneys and ombudsman pro-gram representatives who assist nursinghome residents.

The next question is How? Morespecically, how can it be that so manynursing homes have been allowed to de-

velop standard procedures that violatethe Nursing Home Reform Law?

Certainly part of the answer is con-sumers unfamiliarity with nursinghomes, specically with the protectionsprovided by the Reform Law. Anotherpart of the answer is the unwillingnessof residents and their family membersto make complaints to nursing homes,due to shyness and a fear that a nursinghome will retaliate against a resident insome way. Together, this shyness, lack

of knowledge, and fear of retaliation al-low some nursing homes to develop andfollow illegal procedures.

This guide recommends that resi-dents and their families develop ahealthy sense of entitlement to high-quality nursing home care. A nurs-ing home is paid thousands of dollarsmonthly to care for a resident, and is

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8

A Brie Introduction to

Medicare & Medicaid

depending on the residents incomeand (in some cases) the income of theresidents spouse. The name of thismonthly deductible varies from stateto state for example, patient payamount, share of cost, or Medicaidco-payment. This guide will use theterm patient pay amount.

The Medicare program, by contrast,pays for nursing home care for a verylimited period of time. At most, Medi-care will pay for only 100 days of nurs-ing home care per benet period. A new

benet period starts when the Medicarebeneciary for at least 60 days has notreceived Medicare-covered inpatientcare in the nursing home or in a hospi-tal.

Of those 100 days, only the rst20 days are paid in full. For days 21through 100, the beneciary must paya daily co-payment of $137.50 (for 2010).Many Medicare Supplement insurancepolicies (commonly called Medigap

policies) will cover this co-payment.

The Medicare program can pay fornursing home care only if the residentis entering the nursing home within30 days after a hospital stay of at leastthree nights. The need for nursing homecare must be related to the medical carereceived in the hospital.

Finally and this is the biggestlimitation of all Medicare paymentfor nursing home care is only availableif the resident requires skilled nursingservices or skilled rehabilitation ser-

vices on a daily or almost-daily basis.The need for these skilled services isdiscussed in considerable detail duringthis guides discussions of Problems #11and #12.

Eligibility

Under both the Medicare and Med-icaid programs, an adult beneciarygenerally must be at least 65 years old,or disabled. For Medicare coverage, the

beneciary or beneciarys spouse usu-ally must have made certain contribu-tions through payroll deductions to theSocial Security program. A beneciarysincome and resources do not matter.In general, Medicare coverage can bethought of as a health insurance policypurchased through premiums deductedfrom payroll checks.

Under the Medicaid program, a ben-eciary need not have contributed to theSocial Security program, but must havelimited resources and income. Medicaidmoney comes from both federal andstate governments; as a result, someMedicaid rules vary from state to state.The Medicaid program can be thoughtof as a safety-net health care programprovided by the federal and state gov-ernments for persons who otherwisehave inadequate resources to pay medi-cal bills.

Payment or Nursing Home

Care

The Medicare and Medicaid programsdiffer in the way that they pay for nurs-ing home care. Because the Medicaidprogram is (as described above) a safe-ty-net source of payment for individuals

who have no other options, Medicaidwill pay indenitely for nursing homecare, assuming that the resident remainsnancially eligible and continues toneed nursing home care.

Under Medicaid, the resident mighthave to pay a monthly deductible,

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20 Problems


No Discrimination Against

Medicaid-Eligible Residents

The Nursing Home Reform Lawprohibits discrimination based on a

residents Medicaid eligibility. A nurs-ing home must establish and maintainidentical policies and practices regard-ing transfer, discharge, and the provi-sion of services required under theState [Medicaid] plan for all individualsregardless of source of payment.(Section 483.12(c)(1) of Title 42 of theCode of Federal Regulations (emphasisadded))

Nursing homes have a love-hate

nancial relationship with Medicaid. Onone hand, approximately two-thirds ofnursing home residents are Medicaid-eligible, and the Medicaid programaccounts for approximately one-halfof nursing homes total revenues. Onthe other hand, Medicaid rates tend to

be the lowest lower than private-payrates, and much lower than the ratespaid by the Medicare program.

What To Do to Fight Medicaid

DiscriminationA Medicaid-eligible resident should

resist any attempt by the nursing hometo give her second-class treatment.She should emphasize the federal law(quoted above) that prohibits a nurs-ing home from discriminating againstMedicaid-eligible residents.

Nursing home staff members arequick to claim generally without proof that the nursing home loses money

on each Medicaid-eligible resident. Aresident should avoid getting drawninto a discussion of the nursing homesnancial status. There is no way to winthe argument without a detailed auditof the nursing home and any relatedcorporations.

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The Facts:

What You Hear: Medicaid does not pay or the

service that you want.

A Medicaid-eligible resident

is entitled to the same level o

service provided to any other

nursing home resident.

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A better strategy is to assume that thenursing homes nances are irrelevantas, indeed, they are in this situation.By seeking Medicaid certication, anursing home promises the federal andstate governments that it will provideMedicaid-eligible residents with thecare guaranteed by the Nursing HomeReform Law. It is completely hypocriti-cal for the nursing home to accept Med-icaid money for a residents care, and

then turn around and tell the residentthat the care will be inadequate becauseMedicaid payment rates are low.

If a nursing home feels that Medicaidrates truly are too low, then it shouldcancel its Medicaid certication. Other-

wise, the nursing home should provide

Medicaid-eligible residents with thehigh-quality care required by the Nurs-ing Home Reform Law.

Problems 27: Providing Care

Care Planning#2What You Hear: The nursing staf will determine

the care that you receive.

The Facts: The resident and residents

amily have the right to

participate in developing theresidents care plan.

A nursing home must complete afull assessment of a residents condi-tion within 14 days after admission,and thereafter at least once every 12months and after a signicant changein the residents condition. Morelimited assessments must be done atleast once every three months. As-sessments use a standardized docu-ment called the Minimum Data Set(MDS).

Assessments are used for develop-ment of a comprehensive care plan,

which must be prepared initiallywithin seven days after completion ofthe rst full assessment. Every threemonths, care plans must be reviewed

and, if necessary, revised. Also, a careplan can be reviewed and revised atany time as necessary.

The care plan is prepared by a teamthat includes the residents doctor,a registered nurse, and other appro-priate nursing home staff members.

Most importantly, the team shouldinclude the resident, the residentslegal representative, and/or a memberof the residents family. (See Section483.20(k)(2) of Title 42 of the Codeof Federal Regulations) The nursinghome staff is required to schedule careplan meetings at a time that allowsothers to attend.

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What To Do To Ensure a Good

Care Plan

The resident or family membershould attend all care plan meetings.(In this discussion, family memberincludes the residents legal repre-sentative.) If the nursing home failsto give notice of the meetings, theresident or family member should ask

when the meetings are being held,and request to be included.

Care planning should be taken seri-ously. An individualized care plan can

be an invaluable tool to improve thecare provided to a resident.

Prior to a care plan meeting, theresident or family member should

think creatively about what the resi-dent might want or appreciate. Thereis no reason to be timid. A nursinghome is paid thousands of dollarsmonthly to care for a resident, andshould be expected to provide per-sonalized care. Also, the Reform Lawrequires that a nursing home addressa residents particular needs and pref-erences. (See Problem #3 for moreinformation.)

Some nursing homes treat careplans as a meaningless formality,resulting in care plans that are almostidentical from one resident to thenext. This is a great waste of the careplanning process. To be meaningful, acare plan truly should address indi-

vidual needs and preferences.

A resident or family member oftenfeels intimidated by care planning meet-ings. Who am I, a family member mightthink, to tell a nurse what should bedone for my dad in a nursing home? Thesense of intimidation or shyness is onlyintensied by the fact that, in a care planmeeting, a resident or family memberis likely to be outnumbered by nursinghome staff members.

The resident or family member shouldresist any sense of intimidation. In mostcases, care planning decisions do not in-

volve complicated medical issues. Instead,the optimal plan of care is relatively obvi-ous, and the issue is whether or not thenursing home will commit to providingthat type of care.

So, the resident or family membershould not feel limited to a one-size-ts-all care plan presented by the nursinghome. The resident or family membershould think of what the resident needs orprefers, and ask that that service be writ-ten into the care plan.

Once the care plan is in place, theresident or family member can use it asneeded to assure that the resident re-ceives the best possible care. Assume for

example that the care plan calls for theresident to be walked around the blockdaily, but the nursing home fails to makea staff member available to assist the resi-dent. In such a case, the resident or familymember can point to the care plan as a re-quirement that the nursing home providethe resident with the necessary assistance.

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12

Honoring Resident Preerences

What You Hear: We dont have enough staf to

accommodate individual schedules.You must wake up every morning at

six a.m.

Because o our scheduling, your bath

always will be at two p.m.

I you dont like the meal entre, your

only option is a peanut butter sandwich.

The Facts: A nursing home must make reasonable

adjustments to honor resident needs and

preerences.

Freedom of choice is a vital part ofa residents quality of life. A nursinghome should feel like a home ratherthan a health care assembly line.

Accordingly, the Nursing HomeReform Law requires a nursing home tomake reasonable adjustments to meetresident needs and preferences. Forexample, a resident has the right to [c]hoose activities, schedules, and healthcare consistent with his or her interests,assessments, and plans of care. (Sec-tion 483.15(b)(1) of Title 42 of the Codeof Federal Regulations)

The resident or residents representa-tive should not feel bound by a nursinghomes standard operating procedures.It does not necessarily matter that upto now the nursing home never has al-lowed residents to sleep past six a.m., orhas refused to serve Chinese food (forexample). If a requested change in pro-cedure is reasonable, the nursing homemust make the change.

Of course, the $64 million question isWhat is reasonable?, but this questionhas no scientic answer. Because thedenition of reasonable is not precise,

residents and family members mustbe prepared to explain why the benetfrom a proposed change is worth what-ever inconvenience or expense may beinvolved.

More enlightened nursing homes arerealizing the benets both to resi-dents and to the nursing homes ofgiving more control to residents and toindividual staff members. The goal is tochange the culture of nursing homes so

that care is more resident centered.By implementing this culture change,nursing homes across the country haveimproved resident care and customersatisfaction, and have done so whilemaking a prot. The message to nursinghomes is: Good care is good business.

Helpful information about nursinghome culture change and resident-cen-

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tered care is available from the PioneerNetwork, www.pioneeernetwork.net.

What To Do To Have Resident

Preerences Honored

As is true throughout the problemsdiscussed in this guide, a resident orresidents representative should not

be hesitant about making a request tothe nursing home. The nursing home ispaid to care for each resident, and thereare legal and moral reasons why eachresident is entitled to be treated as anindividual human being.

Letting a resident sleep past six a.m.is easily supportable, because most ob-servers would understand why an adult

would not want to be awakened everyday at the crack of dawn. The nursinghome could adjust its nurse aide sched-ules or, if necessary, increase its nurse

aide stafng. A late-waking residentcould be served cereal and fruit ratherthan a hot breakfast.

In requesting a change, the residentor residents representative should ex-plain why the change would be good forthe resident, and why the law requires

such a change. A follow-up letter ishelpful, as is a copy of this guide. Often-times, the request for a change can bemade in a care planning meeting.

A resident council or family council(see Problem #18) can be a good placein which to organize support for achange in a nursing homes procedures,and specically for care that is moreresident centered. There is strength innumbers: if an entire group of residents

and/or family members is pushing fora particular action, the nursing home ismuch more likely to give in.

Providing Necessary Services

What You Hear: We dont have enough staf. You

should hire your own private-duty

aide.

The Facts: A nursing home must provide all

necessary care.

The foundation of the Nursing HomeReform Law is the previously-discussed

requirement that each nursing homeprovide the care that a resident needsto reach the highest practicable level offunctioning. (See Section 483.25 of Title42 of the Code of Federal Regulations)Obviously, that requirement is being

violated if the nursing home is expect-ing or encouraging the hiring of private-duty aides.

What To Do To Ensure

Necessary Services AreProvided

The resident or family membershould make clear that it is the nurs-ing homes legal responsibility to pro-

vide necessary care, and that a claimedshortage of staff or money is no excuse.The specic request should be made in

writing and, if necessary, the relevantlaw and/or a copy of this guide can be

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included as support. The need for thespecic care might be shown by suchdocuments as a doctors order, the as-sessment, and/or the care plan.

If the nursing home continues torefuse to provide necessary care, acomplaint can be made to the state

inspection agency (see pages 5-6).Other options include raising the issueat a resident or family council meet-ing (pages 34-35), seeking assistancefrom the long-term care ombudsmanprogram (page 5), or consulting with anattorney.

Limiting Use o Physical

Restraints

What You Hear:

Physical restraints cannot be used or

the nursing homes convenience or as a

orm o discipline.

I we dont tie your ather into his chair

he may all or wander away rom the

nursing home. Theres just no way wecan always be watching him.

The Facts:

A physical restraint is a device that

restricts a residents freedom of move-ment. Perhaps the most common physi-cal restraint is a vest or belt that ties theresident into his wheelchair or bed. Aseat belt is a physical restraint, as is achair that is angled back to prevent theresident from standing up. Bed railsare another common type of physicalrestraint.

Under the Nursing Home ReformLaw, a physical restraint can be utilizedonly to treat a residents medical condi-tions or symptoms. Restraints nevercan be used for discipline or the nurs-ing homes convenience. (See Section483.13(a) of Title 42 of the Code ofFederal Regulations)

The use of physical restraints hasdropped drastically over the past f-

teen years and many nursing homes

now function completely restraint-free.Part of this decline certainly is due tothe Reform Laws restriction on the useof physical restraints. Another part ofthe decline is due to a growing medicalconsensus that, instead of protectingresidents, the use of restraints is harm-ful, both physically and psychologi-cally. By limiting a residents ability tomove, restraints may cause a resident to

become ever more unsteady, and moresusceptible to falls and injuries. Some

residents are asphyxiated and die afterbecoming tangled up in restraints. Psy-chological consequences can be equallydevastating.

Like any type of medical interven-tion, physical restraints can be usedonly with the consent of the resident

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or if the resident does not have men-tal capacity to consent the residentsrepresentative. If the use of restraints isrecommended by the residents doctor,the resident or residents representa-tive has the choice whether to accept orreject that recommendation, but thatchoice should be made with knowledgeof restraints negative consequences.The nursing home must suggest lessrestrictive methods of managing theproblem for which restraints are beingrecommended.

What To Do To Limit Use o

Restraints

If the nursing home recommendsrestraints to prevent the resident from

wandering, the residents representativeshould just say no. First, of course, theuse of restraints requires an order fromthe residents doctor, not just a recom-mendation from the nursing home.

Also, in this case the use of restraintsevidently is being proposed solely forthe nursing homes convenience. In-stead of imposing restraints, the nurs-ing home should explore options suchas increasing stafng levels, installingan electronic monitoring system, or

having meaningful activities availableto combat boredom and use up excessenergy.

What if a residents doctor proposesa restraint to prevent the resident fromfalling for example, a vest restraintproposed to prevent the resident fromslipping from his wheelchair? Althoughthe restraint likely will be presented asa means of preventing falls and injuries,it is important to keep in mind that the

restraint instead may cause the residentto become weaker and more vulnerable

to injury. In addition, the experience ofbeing tied to a chair may tend to makethe resident agitated or depressed.In a worst-case scenario, the resident

becomes so depressed that he is mute,withdrawn, and slumped over. Also, theuse of restraints not infrequently leadsto injury, as an agitated resident thrash-es around in an attempt to free himself.The worst-case scenario of physicalinjury is that the resident strangles him-self while trying to get loose.

Alternatives to restraints always ex-ist, and those alternatives can be effec-tive in protecting residents health andsafety. An alternative to bed rails, forexample, is a bed that can be lowered to

just a few inches from the oor, alongwith a padded mat placed next to the

bed.

The ultimate decision on the useof restraints rests with the resident or(more likely) the residents representa-tive, and depends on the facts of theparticular situation. In making thedecision, the residents representativeshould make sure that the use of re-straints is a last resort, and should beaware of the considerable research onhow the use of restraints can be limited

or virtually eliminated. See, for ex-ample, the Untie the Elderly resourcesassembled by the nonprot KendalCorporation, available on the Internetat www.ute.kendal.org.

If and when restraints are recom-mended, a residents representative may

want to discuss the issues in a care planmeeting. The care planning process isa good opportunity to discuss the prosand cons of restraints, and to examine

possible alternatives.

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Prohibiting Inappropriate Use o

Behavior-Modiying Medication

The Facts:

What You Hear: Your mother needs medication inorder to make her more manageable.

Medication can be used to modiy

behavior only when the behavior is

caused by a diagnosed illness, such

as depression, or which a specic

medication is needed or the residents

treatment.

Under the Reform Law, a behavior-modifying medication also called apsychoactive medication can beused only to treat a residents medicalconditions or symptoms. Behavior-modifying medication cannot be usedfor discipline or the nursing homesconvenience. (See Section 483.13(a) ofTitle 42 of the Code of Federal Regula-tions)

Like any other medication, behavior-modifying medication can be admin-istered only with the consent of theresident or if the resident does nothave mental capacity to consent theresidents representative. If behavior-modifying medication is recommended

by the residents doctor, the resident orresidents representative must be told

what condition or illness is being treat-

ed, and then has the choice whether toaccept or reject the recommendation.

What To Do To Prevent the

Inappropriate Use o Behavior-

Modiying Medication

It should be noted that behavior-modifying medications can and (as

appropriate) should be used to treatvarious psychological and emotionalconditions schizophrenia, paranoiaor depression, for example. In deciding

whether use of a particular medicationis advisable, a good rule of thumb is toconsider whether the medications useis intended for the residents benetto treat a specically diagnosed healthproblem, or is meant for the nursinghomes benet to keep the residentmore manageable. If the benet is tothe resident, then use of the medicationis likely to be advisable. If, on the otherhand, use of the medication would besolely for the nursing homes benet for example, to keep the resident quietand out of the way then the medica-tion likely should be refused.

The most important point with

behavior-modifying medications is theright of the resident or (more likely)the residents representative to decide

whether or not to use them. If a resi-dents representative feels that the useof such medication would be unwise,premature, or excessive, he should feelfree to say no.

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A care planning meeting is a good fo-rum in which to discuss issues relatingto medication. A residents representa-tive should not be coerced into approv-ing a behavior-modifying medicationthat does not benet the resident. If the

use of such medication is recommendedby the doctor or nursing home staffmembers, the representative should askthe doctor or staff members to proposealternatives.

Limiting Use o Feeding Tubes

What You Hear: We must insert a eeding tube

into your ather because he is

taking too long to eat.

The Facts: The use o a eeding tube shouldbe a last resort.

Under the Nursing Home ReformLaw, a nursing home must assist aresident in maintaining his ability toeat. Federal guidelines mention specicsteps that a nursing home might take,including:

prompting the resident to eat;

providing therapy to improve swal-lowing skills;

providing foods in a more easily-eaten form (pureed in a blender,for example);

providing assistive devices (suchas eating utensils with easy-to-griphandles); or

simply feeding the resident byhand.

For a resident unable to take foodvia mouth, nutrition can be providedthrough a tube into the stomach. Anaso-gastric tube enters the stomachthrough the nose and the nasal pas-sages; a gastrostomy tube enters thestomach directly. The most commongastrostomy is a percutaneous endo-scopic gastrostomy, abbreviated PEG.

An endoscope gives the physician aclose-up view inside the body. A PEGtube is inserted through the stomach

wall with the assistance of an endoscopethat has entered the stomach throughthe residents throat.

In a study comparing tube feeding

with careful hand feeding, it was foundthat the tube feeding did not increasethe length of survival of residents withdementia. In other research, tube feed-ing was not shown to reduce the risk ofaspiration (inhaling food into the lungs).

A further disadvantage of tube feeding isthat it often is accompanied by restraintuse, to prevent the resident from pull-ing out the tube. (See Quality Matters

website maintained by State of Texas, athttp://qmweb.dads.state.tx.us/TubeFee

ding.asp)

Tube feeding in a nursing homeshould be done only if absolutely nec-essary. The Reform Laws regulationsstate: A resident who has been able toeat enough alone or with assistance isnot fed by [a] tube unless the residentsclinical condition demonstrates that useof a tube was unavoidable. (Section

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483.25(g)(1) of Title 42 of the Code ofFederal Regulations)

A residents slowness in eating is notreason enough for insertion of a feedingtube. Neither is a nursing homes short-age of staff. It is the nursing homesresponsibility to provide necessary as-

sistance. If necessary, the nursing homeshould increase its stafng or stagger itsmealtimes.

On occasion, a nursing home willclaim that it must use tube feeding

because otherwise it will be penal-ized by government inspectors for theresidents loss of weight. This claim is

wrong because (as discussed above)adequate nutrition generally can beprovided even without tube feeding, and

because inspectors will not penalize anursing home for following a treatmentchoice made by a resident or residentsrepresentative.

What To Do To Limit Use o

Feeding Tubes

Because the insertion of a feedingtube is a medical procedure, the inser-

tion cannot be performed without theconsent of the resident or if the resi-dent does not have the mental capacityto consent the residents representa-tive. Because lack of mental capacityis common among residents who havedifculty eating, the following discus-sion presumes that the decision belongsto the residents representative.

The representative should not hesi-tate to refuse feeding tube insertion

whenever the resident is capable ofeating with assistance. As discussedabove, the Reform Law requires thatfeeding tubes be used only as a lastresort. Indeed, eating is one of the basicpleasures of life, and a residents qual-ity of life is likely to be diminished if hismeals are replaced by tube-delivered

nutrients.

Once again, the care planning processis a good opportunity to address the is-sues. A residents representative should

work with the care planning team todevelop ways in which the resident caneat without need of tube feeding.

Visitors

What You Hear: Your children can visit you only

during visiting hours.

The Facts: A residents amily member can

visit at any time o the day or

night.Under the Nursing Home Reform

Law, a nursing home should be ashomelike as possible. Consistent withthis philosophy, a nursing home can-not limit visiting hours for immedi-ate family or other relatives. (Section483.10(j)(1) of Title 42 of the Code ofFederal Regulations) For a late-night

visit, federal guidelines suggest that the

visit take place outside of the residentsroom in the nursing homes diningroom, for example to avoid disturbingother residents sleep.

There are good reasons why a fam-ily member might want to visit outsideof normal visiting hours. The familymember might not get off work until

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visiting hours are over. Or the residentmay have a lifelong habit of staying uplate.

In addition, an off-hours visit maygive a family member a better oppor-tunity to check up on a nursing home.

A visit at midnight or ve in the morn-

ing (for example) gives a visitor a goodlook at how the nursing home handlesresidents late-night needs.

Naturally, a visit can only be madeif the resident wants the visitor to bethere. If a resident does not want to seea visitor, the visitor has no right to visit.

If a resident lacks mental capac-ity, decisions regarding visitors can bemade by the residents representative.

In most cases, the appropriateness of avisit is obvious, because the resident ofcourse wants visits from family mem-

bers and friends.

What To Do To Challenge

Visiting Hour Restrictions

If a nursing home tells a family mem-ber that visits can be made only duringofcial visiting hours, the family mem-

ber should let the nursing home knowthat the Reform Law allows a familymember to visit at any time. To backup this argument, the family membershould give the nursing home a copy ofthe law (see Section 483.10(j)(1) of Title42 of the Code of Federal Regulations)and/or this guide.

Problems 910: The Admissions Proce

We cant admit your mother unless

you sign the admission agreement as a

Responsible Party.

What You Hear:

The Facts: A nursing home cannot require anyone

but the resident to be nanciallyresponsible or nursing home expenses.

The Nursing Home Reform Lawprohibits a nursing home from requir-ing a family member or friend to be-come nancially liable for nursing homeexpenses. (See Section 483.12(d)(2) ofTitle 42 of the Code of Federal Regula-tions) The signature of a family mem-

ber or friend can be required only if thefamily member or friend is signing onthe residents behalf. For example, it isappropriate for a family member to signan admission agreement as the resi-dents appointed agent, because in thatcase the nancial liability belongs solelyto the resident.

Responsible Party Provisions in

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This law makes good sense. Nursinghomes already are protected if a resi-dent runs out of money: the Medicaidprogram will pay for residents who oth-erwise are unable to pay. Also, it is un-fair for a nursing home to force a familymember or friend to take on an unspeci-ed and potentially huge liability. Un-like a family member who co-signs ona car loan of $10,000 (for example), afamily member who becomes liable fornursing home expenses might becomeliable for $1,000 or $100,000, depend-ing on the circumstances.

Some nursing homes use Respon-sible Party signatures as a way oftricking a family member or friend into

becoming nancially liable. Usually, theResponsible Party signature line does

not explain what Responsible Partymeans. As a result, family membersare likely to believe that a ResponsibleParty is merely a contact person.

A son or daughter might think: Ishould be the Responsible Party sothat the nursing home will let me know

whats going on. After all, I certainlydont want to be irresponsible.

What the son or daughter does not

realize is that a paragraph in the middleof the admission agreement denesResponsible Party as someone who is100 percent liable nancially for nurs-ing home expenses. Because admis-sion agreement packets commonly arefrom 20 to 60 pages in length, a familymember almost never will nd, readand understand the Responsible Partydenition.

Generally the denition paragraphclaims, falsely, that the ResponsibleParty understands that she is notrequired to become nancially liablefor nursing home expenses, but none-theless is volunteering to take on thatliability. This language represents astrategy by nursing homes to evade theReform Law. As discussed above, the

Reform Law prohibits a nursing homefrom requiring a family member orfriend to become nancially liable fornursing home expenses. Nursing homesclaim that this prohibition doesnt applyto Responsible Party provisions be-cause (according to the nursing homes)the Responsible Parties are volun-teering to become nancially liable.

The nursing homes arguments arewrong. For three reasons, ResponsibleParty provisions are illegal and unen-forceable. The rst reason is that Re-sponsible Party provisions often areused to require guarantees, in direct

violation of the Reform Law. In theexample at the beginning of this section,the nursing home is requiring the resi-dents daughter to sign as Responsible

Party. Like any other family memberor friend, the daughter has no good rea-son to volunteer to become nanciallyliable.

The second reason is that Respon-sible Party provisions are deceptive.Generally a family member or friend

believes that a Responsible Party ismerely a contact person.

The third reason is that neither the

resident nor the Responsible Party re-ceives any benet from the ResponsibleParty signature. Under general contractrules, a contract is enforceable only ifeach party to the contract gets a benet.

When a family member or friend signsas a Responsible Party, however, onlythe nursing home benets. From thepoint of view of the resident and theResponsible Party, the only possible

benet is the residents admission, butthe Reform Law says that admission

decisions cant be dependent upon afamily member or friend becomingnancially liable.

Some nursing home admissionagreements claim that a ResponsibleParty is not guaranteeing the residentsnancial obligations, but instead is

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promising to take all necessary steps(including the ling of a Medicaid ap-plication, as appropriate) to arrange forpayment of the residents nursing home

bills. In practice, such language is usedby nursing homes as an illegal nancialguarantee. If the residents bill is unpaidat some point, the nursing home likely

will claim that the Responsible Party isat fault, and will sue the ResponsibleParty for all money allegedly owed onthe residents account.


Responsible Party Provisions

DuringAdmissionIf a family member or friend is being

asked to sign as a Responsible Party,

she should not hesitate to refuse, as-suming that the resident already hasmoved physically into her room in thenursing home. Once the resident physi-cally has moved in, there are only sixreasons that can cause the residentseviction (see this guides discussion ofProblem #19), and a refusal by a fam-ily member or friend to sign as Re-sponsible Party is not one of those sixreasons.

If the resident has not moved intothe nursing home yet, the situation ismore precarious. If the family memberor friend refuses to sign as ResponsibleParty, the nursing home possibly willrefuse admission.

In this situation, this guide recom-mends that the family member or friendconsider refusing to sign as Respon-

sible Party, with a polite but rmexplanation of why Responsible Partyprovisions are illegal and unenforce-able. If the family member or friend isthe residents agent, the family memberor friend can sign as an agent whosesole responsibility under the admis-sion agreement is to make payments tothe nursing home from the residentsmoney.

The nursing home staff memberprobably will be too embarrassedor confused to object, and will con-tinue with the residents admission. Ofcourse, there is a risk that the nursinghome will refuse admission, but avoid-ing that risk generally is not worth thesigning of an illegal and unfair admis-sion agreement. Also, refusing to sign is

an important step in educating nursinghomes and their staff on the inappropri-ateness of Responsible Party provi-sions.

DuringorAfterResidentsStayat

Nursing HomeWhat if a family member or friend

signed as a Responsible Party, andnow is being asked for payment bythe nursing home? This guide recom-mends that the family member or friendconsult with a knowledgeable attorneyabout how the nursing homes demandcan be countered. As discussed above,Responsible Party provisions are gen-erally held to be illegal and unenforce-able, if the court is aware of the ReformLaws relevant provisions.

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Arbitration Agreements

What You Hear: Please sign this arbitration

agreement. Its no big deal.

Arbitration allows disputes to beresolved quickly.

The Facts: There is no good reason or a resi-

dent (or residents representative) to

sign an arbitration agreement at the

time o admission.

In an arbitration agreement, the par-

ties agree that future disputes betweenthe parties will not go to court, but in-stead will be handled by a private judgecalled an arbitrator. Sometimes arbitra-tion agreements apply to all disputes

between the resident and the nursinghome; other times, arbitration appliesto claims made by the resident but notto claims made by the nursing home.

The arbitration process generally isnot a good option for residents. The

arbitration process often is more ex-pensive than a state or federal lawsuit,because the parties to the lawsuit areresponsible for paying the arbitrator bythe hour. Also, arbitrators often are lesssympathetic to residents concerns thanare judges or juries, and nursing homescommonly write arbitration agreements

in a way that favors the nursing home

over the resident.In any case, there is no need for a

resident to agree to arbitration at thetime of admission, when neither theresident nor the nursing home has anyidea as to whether a dispute will arise,or what such a dispute might involve. Iffor whatever reason arbitration might

be the best option for a resident, the de-cision (for or against arbitration) should

be made after the dispute has arisen

and the resident has consulted with aknowledgeable attorney.

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Arbitration Agreements

DuringAdmissionIf at all possible, a resident or resi-

dents representative should not signan arbitration agreement. In most

cases, the nursing home will process theadmission even without a signed arbi-tration agreement. If a nursing homeemployee raises a question, the residentor representative can explain that thereis no need to commit to arbitration atthe time of admission.

As in the Responsible Party situa-tion discussed in Problem #9, a refusalto sign is not risky at all when a residentalready has been admitted. Refusal tosign an arbitration agreement is not oneof the six reasons for eviction under theReform Law. (See Problem #19)

If the resident has not been admittedalready, the resident or representativestill has some leverage. In some states,a nursing home can request but notdemand the signing of an arbitrationagreement. Also, if the resident is eli-gible for payment of his nursing homecare through Medicare or Medicaid,federal law prohibits the nursing homefrom asking any more from the residentthan the payment of any co-payment ordeductible authorized by law. (See Sec-tions 483.12(d)(3) and 489.30 of Title42 of the Code of Federal Regulations)

Arguably, these laws prohibit a nursinghome from requiring a resident to signan arbitration agreement.

In situations in which the residenthas not moved into the nursing home

yet, this guide recommends that theresident or residents representativeconsider refusing to sign an arbitra-tion agreement. As is the case withResponsible Party provisions, a polite

but rm explanation is advisable. Thenursing home staff likely will be tooembarrassed or confused to object, andthe benet of standing rm is generally

worth the risk of being denied a nursinghome bed.

Of course, each situation is different,and residents and their representa-tives can tolerate different levels of risk.Consultation with a knowledgeable at-torney may well be appropriate in manyinstances.

DuringorAfterResidentsStay

at Nursing Home, I Arbitration

Agreement Previously Was SignedA signed arbitration agreement may

or may not be binding, depending onstate law, the language of the arbitra-tion agreement, and the circumstancessurrounding the arbitration agreementssigning. A resident or residents repre-sentative should consult with a knowl-

edgeable attorney.

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Medicare is not a comprehensivehealth insurance program. One com-mon limitation is that Medicare pay-ment is often dependent upon a tie tohospital care. In the case of nursinghome care, Medicare payment is lim-

ited to situations in which the residenthas entered the nursing home within30 days after a hospital stay of at leastthree nights.

At most, the Medicare program willpay in full for only 20 days of nursinghome care. For the next 80 days days21 through 100 of the nursing home stay the resident is required to pay a dailyco-payment of $137.50 (for 2010). This

co-payment is covered by most MedicareSupplement insurance policies, whichare often called Medigap policies.

(These benets renew themselvesin each benet period. A new benetperiod starts when a resident for at least60 days has not used Medicare paymenteither for hospital care or nursing homecare.)

There is one additional limitation,and this is the limitation that keepsmost residents from qualifying forMedicare payment for nursing homecare. If a resident needs only custodialcare for example, medication ad-

Problems 1114:

MedicareRelated Issues

What You Hear: We have determined that you arent

entitled to Medicare payment or your

nursing home care, because o your

limited health care needs.

The Facts: A resident can insist that the nursing

home bill Medicare the nursing home

does not have the last word on whether

the residents condition qualies or

Medicare payment. Once the nursing

home is required to submit the bill,

the nursing home has an incentive to

consider with avor the residents need

or therapy or any other qualiyingskilled service.

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ministration the Medicare programwill not pay. Payment under Medicareis possible only if the resident needsskilled nursing services or skilled reha-

bilitation services. These skilled servicesgenerally must be provided every day,although an exception can allow forMedicare payment even if rehabilitationservices are provided only ve days per

week.

Skilled services require the activeand direct participation of a nurse orlicensed therapist. It is not enough thata nurse is overseeing the residents care.

If a resident is a Medicare bene-ciary, a nursing home is required to givethe resident written notice wheneverthe nursing home rst decides that it

will not bill the Medicare program forthe residents care. Thus, this noticemay be given when the resident rst isadmitted or may be given later, after theMedicare program has paid for nursinghome care for a certain period of time.

The important fact is that the resi-dent is not bound by a nursing homesdecision that it will not bill the Medi-care program. The resident can insistthat the nursing home submit a bill to

the Medicare program. If the nursinghome properly has given written notice,the resident can return the notice to thenursing home after checking a box thatrequests that the nursing home submita bill to the Medicare program for theresidents care. If the nursing home hasfailed to give the required notice, theresident can submit his own writtenrequest that the nursing home submit a

bill.

While the Medicare program is con-sidering a submitted bill, the nursinghome may not charge the resident forany amount that the Medicare program

subsequently may pay. If the Medicareprogram refuses to pay, the resident canmake an appeal, although the resident

will be nancially liable for the billwhile the appeal is pending. If the resi-dent also were eligible for Medicaid, ofcourse, the nursing home would be pro-hibited from charging anything morethan the Medicaid monthly patient payamount (see page 8).

What To Do To Obtain

Medicare Eligibility

These issues most commonly arise inrelation to therapy. Assume that a resi-dent is recovering from a broken hip.He will want therapy in order to regainthe ability to walk. In such cases, timelyreceipt of therapy is crucial. If therapyis not provided, or is not provided foran adequate period of time, the residentmay never walk again.

Counterbalancing the residents needfor therapy is the Medicare programsfrequent reluctance to pay. Nursinghomes receive pressure from the Medi-care program to not submit bills, or tocease billing for residents whose nurs-ing home care previously has been cov-ered by the Medicare program. Nursinghomes often pass this pressure on todoctors and therapists, encouragingthem to discontinue therapy services.

In combatting this pressure, the resi-dent must do battle on two fronts theresident both must compel the nursinghome to submit a bill to the Medicareprogram, and convince the doctor (ortherapist) to continue ordering (orrecommending) therapy services. Battleon the rst front is relatively easy as

explained in this guide, the resident canrequire the nursing home to submit a

bill to the Medicare program.

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But, of course, submitting a bill willprove futile unless the resident actuallyreceives the therapy services that wouldqualify him for Medicare payment fornursing home care. The resident (or res-idents representative) should encour-age the doctor or therapist to initiate orcontinue appropriate therapy services.In many instances, the doctor or thera-pist may be just as frustrated as theresident by the pressure that discour-ages necessary therapy. The resident orresidents representative should encour-age the doctor or therapist to focus onmedical considerations and leave theMedicare-related issues to the residentor residents representative. In certaincases, the resident may want to switchto a different doctor, if the second doc-

tor is more aware of the residents needfor therapy.

If a doctor orders therapy, the nurs-ing home must provide it. A nursinghome always must follow doctorsorders (assuming that the resident orresidents representative consents).

The two advocacy steps relatingto the nursing home, and to the doc-

tor and/or therapist reinforce eachother. If the nursing home is forced tosubmit a bill, the nursing home has anincentive to make sure that the residentreceives services that justify Medi-care payment. Similarly, if the doctoror therapist is persuaded to providetherapy services, then the doctor andthe therapist have a nancial interestin ensuring that the Medicare program

will pay for those services.

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A nursing home sometimes moves tostop therapy prematurely. The nursinghome commonly claims that the resi-dent has plateaued in other words,that he is no longer making progress.

Most likely, the real reason for thetermination is part medical and partnancial. Possibly, the residents prog-ress has slowed or temporarily stopped.

Because the nursing home has beenpressured by the Medicare program, thenursing home is too quick to terminatetherapy, even when the resident still can

benet.

A resident or residents representa-tive should keep in mind that recoveryfrom an illness or injury is not alwayssteady. If, for example, a resident is re-covering from a broken hip, it is under-standable that he would have good days

and bad days. If he were to walk 15 feetunassisted on Tuesday, therapy likelystill would be advisable if on Wednes-day he were still only able to walk 15feet, or even just 10 feet.

Under the Nursing Home ReformLaw, as discussed in this guides Intro-duction, a nursing home resident must

be provided with medically necessarycare. Thus, therapy should be provided

Continuation o Therapy

When Resident Is Not Making

Measurable Progress

What You Hear: We must discontinue therapy services

because you arent making progress.

The Facts: Therapy may be appropriate even i

the resident is not making measurable

progress. Accordingly, the Medicare

program can pay or therapy services even

i progress or the time being is not being

made.

if the therapy improves the residentscondition, maintains the residents con-dition, or slows the decline of the resi-dents condition. (See Section 483.25(a)of Title 42 of the Code of Federal Regu-lations)

If the termination of therapy isblamed on Medicare rules, there aretwo rebuttal points to be made. First,

as explained in this guides discussionof Problem #1, a nursing home mustprovide the same high quality of care

whether the residents care is fundedthrough private funds, Medicare orMedicaid.

Second, the Medicare program canpay for therapy services even if, for thetime being, no progress is being made.

A relevant federal regulation states:

The restoration potential of apatient is not the deciding factorin determining whether skilledservices are needed. Even if fullrecovery or medical improvementis not possible, a patient mayneed skilled services to preventfurther deterioration or preservecurrent capabilities. (Section409.32(c) of Title 42 of the Codeof Federal Regulations)

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What To Do When Told That

The Resident Has Plateaued

The resident or residents represen-tative should follow the same generalstrategy recommended for Problem#11. Again, there are two basic advocacysteps: forcing the nursing home to sub-mit a bill to the Medicare program, andconvincing the doctor or therapist thattherapy is the right thing to do.

The important point is that a lack ofprogress is not an automatic reason forterminating therapy. If therapy is com-pletely futile then, yes, therapy shouldnot be provided. But if therapy canimprove or maintain a residents condi-tion, then it should be provided. Thisis good medicine, and consistent withrelevant Medicare rules.

Continuation o Therapy Ater

Medicare Payment Has Ended

What You Hear: We cant give you therapy services because

your Medicare payment has expired, and

Medicaid doesnt pay or therapy.

The Facts: Therapy should be provided whenever medi-

cally appropriate, regardless o the residentssource o payment.

Therapy should not be discontinuedjust because a resident has reached theend of his 100 days of Medicare cover-age. The two reasons have been dis-cussed already in this guide. A residentis entitled to receive medically neces-sary services. Also, a residents services

shouldnt depend on his source of pay-ment. Specically, a Medicaid-eligibleresident is entitled to the same level ofservice provided to other residents. (SeeIntroduction and Problem #1 for discus-sion of these two issues.)

Accordingly, federal guidelinesexplicitly require that therapy services

be provided even if the nursing homeis entitled to no more than the typicalMedicaid rate. (See Guideline to Sec-tion 483.45(a) of Title 42 of the Codeof Federal Regulations, Appendix PP

to State Operations Manual of Centersfor Medicare and Medicaid Services)In some states, in addition, a nursinghome may be entitled to extra Medicaidpayment for therapy services providedto residents.

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Continued Stay in Medicare-

Certied Bed Even Ater End o

Medicare Payment

What You Hear: Because you are no longer eligible

or Medicare payment, you must leave

this Medicare-certied bed.

The Facts: A Medicare-certied bed can be

occupied by a resident whose careis not being reimbursed through the

Medicare program.

What To Do To Continue

Therapy

The resident or residents representa-tive should explain the relevant rules tothe nursing home, the doctor, and thetherapist. The most important person toconvince is the doctor, since the nursinghome and the therapist are required tocomply with a doctors orders. The focus

Understanding this issue requires anexplanation of how nursing home bedsare certied by the Medicare program.

A nursing home may seek Medicarecertication for all or some of its beds. A

bed must be Medicare-certied for thenursing home to bill Medicare for careprovided to the resident assigned to that

bed.

Medicare certication does notmeanthat the bed is reserved exclusively forresidents whose care is being paid for

by the Medicare program. A Medicare-certied bed can be occupied by a resi-dent who is paying privately, or through

private insurance. A Medicare-certiedbed in addition can be occupied by aresident who is paying through theMedicaid program, assuming that the

bed also is certied for Medicaid pay-ment.

Because the Medicare programgenerally pays more per day than anyother source of payment, nursing homesprefer to use Medicare-certied bedsfor residents whose care is being reim-

bursed through Medicare. Once a resi-dent is no longer eligible for Medicarepayment of his nursing home expenses(see this guides discussion of Problems

should be placed on the residents needfor therapy, rather than on the nursinghomes nances. In limited cases, theresident may benet by switching fromone doctor to another, if the seconddoctor is more conscious of the resi-dents continued need for therapy.

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#11 and #12 for more details), the nurs-ing home has an incentive to move thatresident out of the Medicare-certied

bed, so that the nursing home can usethe bed for a resident who is eligible forMedicare payment.

Although shuttling residents around

in this fashion may make nancial sensefor a nursing home, it can be detri-mental to a resident. The resident mayhave grown accustomed to his originalroom. Also, because Medicare paymentis available only to those residents whoneed skilled nursing or rehabilitationservices, the nursing care provided inthe Medicare-certied beds may be gen-erally better than the nursing care pro-

vided in the rest of the nursing home.

To protect residents, the NursingHome Reform Law gives a residentthe right to veto a transfer within thenursing home if the purpose of thetransfer is to move the resident out ofa Medicare-certied bed. (See Section483.10(o) of Title 42 of the Code of Fed-eral Regulations) This right provides acounterbalance to the Medicare pro-grams transfer-encouraging nancialincentives.

What To Do To Stay In

Medicare-Certied Bed

If a resident does not want to leave aMedicare-certied bed, he should nothesitate to assert his veto right.

If the resident will be relying on Med-

icaid payment, he should be sure thatthe bed is Medicaid-certied. In somestates, Medicaid certication is an all-or-nothing proposition: if the nursinghome has Medicaid certication, everysingle bed is Medicaid-certied. Otherstates allow nursing homes to certifyonly a portion of their beds for Medic-aid. General information about a nurs-ing homes certication is available atthe federal governments Nursing HomeCompare website,www.medicare.gov/

NHCompare/home.asp. More detailedinformation about the certication ofparticular beds should be available atthe state agency that inspects, certi-es and licenses nursing homes (oftenpart of the states Health Department).The nursing home may or may not beable to provide accurate information onthe Medicaid certication of particular

beds.

When a resident refuses a transfer

from a Medicare-certied bed, the nurs-ing home often complains that suchtransfers ultimately will cause all ofthe nursing homes Medicare-certied

beds to be occupied by residents whoare ineligible for Medicare payment. Inresponse, the resident should point outthat the nursing home always is freeto certify additional beds for Medicarepayment. There is nothing preventingany nursing home from seeking Medi-

care certication for every single one ofits beds.

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Medicaid Certication or Only

Certain Beds Within Nursing

Home

What You Hear: Even though youre now nancially

eligible or Medicaid payment, we

dont have an available Medicaid bed

or you.

The Facts: A nursing home can certiy additional

beds or Medicaid payment.

As mentioned in the discussion of theprevious problem, some states allowa nursing home to certify only a per-centage of its beds for Medicaid pay-ment. Such partial certication createsa particular problem when a residentinitially pays privately for her nursinghome care, but later becomes eligiblefor Medicaid payment after spendingher savings down to Medicaid limits.

If at that time the resident is not in aMedicaid-certied bed, and the nursinghome does not have an available Med-icaid-certied bed, the nursing homelikely will state that it cannot acceptMedicaid payment on the residents be-half. This may lead to nonpayment andthen eviction, because the resident willhave spent down her savings and will beunable to pay the private-pay rate.

It is important that a resident or resi-

dents representative understands thatthe nursing home in this situation hasthe option of certifying additional bedsfor Medicaid payment. Nursing homeemployees often give the impressionthat partial Medicaid certication isforced upon the nursing home, but thatis not true. Even in the states that allowpartial certication, a nursing home isfree to seek certication for every bed.

What To Do To Obtain

Medicaid-Certied Bed

Resolution of this problem requiresearly action.

Ideally, information regarding anursing homes Medicaid certicationshould be obtained prior to admission,as part of the process of choosing thenursing home. As soon as possible, theresident (or residents representative)should determine whether the nursinghome accepts Medicaid payment and,if the nursing home accepts Medicaid,

whether the Medicaid certication isfull or partial. The resident after admis-sion should determine whether her cur-rent bed is Medicaid-certied.

As mentioned in the discussion of thepreceding problem, general informationabout a nursing homes certication is

available on the federal governmentsNursing Home Compare website. Infor-mation about the certication of a par-ticular bed should be available from thestates inspection agency. Informationalso can be obtained from the nursinghome; if a dispute arises, however, it is

best to examine the government recordsto cross-check information provided bythe nursing home.

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Readmission rom Hospital

What You Hear: We dont have to readmit you rom the

hospital because your bed-hold period

has expired.

The Facts: A Medicaid-eligible resident has theright to be readmitted to the next

available Medicaid-certied bed,

regardless o the length o the hospital

stay.

When a nursing home resident ishospitalized, the nursing home gener-ally is required by state law to hold the

bed for a week or two, if the resident

wants the bed to be held. If the residentis paying privately, she will be respon-sible for paying for the bed hold. If theresident is Medicaid-eligible, the Med-icaid program generally will pay for the

bed hold.

In addition, the Nursing HomeReform Law establishes a readmissionright for Medicaid-eligible residents.Even if a bed hold period is exceeded

(or if state law does not require a bedhold), a nursing home must admit aMedicaid-eligible resident to the nextavailable Medicaid-certied bed, no

matter how long the hospitalization haslasted. (See Section 483.12(b) of Title42 of the Code of Federal Regulations)

A bed is not considered available if thehospitalized resident and the proposedroommate are not of the same gender.

This provision of the Reform Law isa reasonable compromise to protect aresident from being moved unnecessar-ily to a new nursing home. Because the

If a resident foresees herself inthe situation discussed earlier in thisproblem being nancially eligiblefor Medicaid, but in a bed not certiedfor Medicaid she as soon as possibleshould request that the nursing homeseek certication for her bed from theappropriate state agency. Ideally, thisrequest should be made from four tosix months before the resident becomesnancially eligible for Medicaid.

In making this request, the residentputs the nursing home on notice thatshe will need to use Medicaid payment.In most cases, in order to avoid dis-

putes, the nursing home will take thenecessary steps to have the residents

bed certied for Medicaid payment.If the nursing home fails to obtain aMedicaid-certied bed for the resident,and instead tries to evict the residentfor nonpayment when the resident be-comes Medicaid-eligible nancially, theresident in an eviction hearing will havea good argument that the nonpaymentis the nursing homes fault.

Eviction procedures and appeals arediscussed in Problem #19.

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Medicaid program generally pays a rela-tively low rate, Medicaid-eligible resi-dents are often seen as less desirable bynance-conscious nursing homes. Forthis reason, Medicaid-eligible residentscan benet from special protections.

Nonetheless, it doesnt make sense

for the Medicaid program to pay to holda vacant bed for a long period of time. Itdoes make sense, however, for a nurs-ing home to be required to readmit aMedicaid-eligible resident to the nextavailable Medicaid-certied bed. Sincethe nursing home has a vacancy any-

way, the residents right to be readmit-ted should not inconvenience the nurs-ing home in any signicant way.

What To Do To Be Readmitted

rom Hospital

A Medicaid-eligible resident shouldnot hesitate to assert her right to bereadmitted to the next available Med-icaid-certied bed. The resident should

be persistent if the nursing home claimsthat it does not have a vacancy. If thenursing home is led to believe that theresident will keep checking and check-ing for the next available bed, the nurs-ing home will be more likely to acceptthe inevitable and readmit the resident.

If the nursing home indicates thatit has no intention of readmitting theresident, she should make a complaintto the state inspection agency (see pages5-6) and/or consult with a knowledge-

able attorney.

Payment

What You Hear: You must pay any amount set by the

nursing home or extra charges.

The Facts: A nursing home can assess extra

charges only i those charges

were authorized in the admission

agreement.

Some nursing homes charge sepa-rately for various items and services for example, catheter supplies, dia-

pers and other incontinence products,and wound dressings. These separatecharges are inappropriate if the resi-dents care is covered by Medicare orMedicaid, because the nursing homemust accept payment from Medicareor Medicaid as payment in full. Theresidents only nancial obligation is topay the deductibles and co-paymentsauthorized by law.

Such separate charges also are inap-propriate if they were not authorized inthe admission agreement, whether or not

the residents care is covered by Medi-care or Medicaid. Federal regulations tothe Nursing Home Reform Law requirethat a nursing home during the admis-sions process notify residents of anyextra charges. (See Section 483.10(b)(6)of Title 42 of the Code of Federal Regula-tions) Also, standard principles of con-tract law require a nursing home to limitits charges to the amount authorized bythe admission agreement.

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What To Do To Challenge Extra

Charges

Assume that a resident is not eligiblefor Medicare or Medicaid payment, andhis admission agreement lists a monthlyrate of $5,000, with no mention of ad-

ditional charges. This month, however,he has been charged a total of $5,211.50 the $5,000 monthly rate plus $211.50for various items and services.

The resident has at least two choicesand, as is often true, the riskier choicehas the largest potential upside. Theriskier choice is to refuse to pay the un-authorized extra charges, with a writtenexplanation to the nursing home thatthe admission agreement obligates theresident to pay only $5,000 monthly.The nursing home likely will accept the$5,000 grudgingly and will take no ac-tion against the resident. If, however,the nursing home tries to evict the resi-dent for nonpayment, the resident canclaim with justication that he has paidin full under the terms of the admis-sion agreement. The resident likely will

prevail in an eviction hearing although,of course, there can be no guarantees inany legal proceeding. (SeeProblem #19for discussion of evictions and evictionprocedures.)

The less risky course of action is tomake a complaint to the state agency

that inspects and licenses nursinghomes. Ideally, the state agency willorder the nursing home to stop assess-ing extra charges against the resident.One downside of this approach is thatthese agencies are often hesitant to ruleon nancial matters. Their expertise isin health care, and a complaint regard-ing billing likely will receive the lowestpriority.

The advantage of the pay-only-what-

is-owed strategy is that it gives the resi-dent some power over the situation. Ifthe resident pays only $5,000, than thenursing home has the burden to changethe status quo. On the other hand, ifthe resident pays the $5,000 plus theextra charges, then the burden remainson the resident to somehow change thenursing homes practices.

Resident and Family Councils

What You Hear: We have no available space in which

residents or amily members could

meet.

The Facts: A nursing home must provide a private

meeting space or a resident council or

amily council.

Under the Nursing Home ReformLaw, residents and residents fam-ily members have the right to formresident councils and family councils,respectively. If such a group forms, anursing home is obligated to providethe group with a private meeting space,

and must designate an employee as aliaison with the group. A nursing homemust seriously consider, and respondto, all complaints or recommendationsmade by a resident or family council.(See Section 483.15(c) of Title 42 of theCode of Federal Regulations)

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Problems 1920: Evictions

Eviction Threatened For Being

DificultWhat You Hear: You must leave the nursing home

because you are a dicult resident.

The Facts:

Under the Nursing Home ReformLaw, there are only six legitimate rea-sons for eviction:

1. The resident has failed to pay.

2. The resident no longer needs nursinghome care.

3. The residents needs cannot be met ina nursing home.

4. The residents presence in the nurs-

ing home endangers others safety.5. The residents presence in the nurs-

ing home endangers others health.

6. The nursing home is going out ofbusiness.

(See Section 483.12(a) of Title 42 ofthe Code of Federal Regulations)

Thus, being difcult is not a justi-cation for eviction. The important thing

What To Do To Organize

Resident and Family Councils

Its a clich but its true there isstrength in numbers. Resident and fam-ily councils can be a powerful mecha-nism for making positive changes ina nursing home. A resident or familycouncil is a good forum in which to raiseany of the issues discussed in this guide,

or any other issue related to the nursinghome.

Residents and family membersshould do their best to make sure that acouncil does not become merely a show-and-tell session for the nursing home.Nursing home employees can be guests

at a council meeting, but they shouldnot run or control a meeting.

to remember is that nursing homes existin order to care for people with physi-cal and mental problems. Most nursinghome residents are difcult in one

way or another.

Some nursing homes attempt toevict a resident because (for example)the resident tends to wander aimlessly,or has severe dementia and is makinghowling sounds during the night. Theseevictions almost always are improper,

because such residents belong in anursing home. The fact that they arearguably difcult does not mean thatthey should be evicted. In most cases,it is pointless to evict a resident fromone nursing home merely so he can betransferred to another nursing home.

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Eviction is allowed only or six

limited reasons.

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A nursing home may cite reason #3,arguing that it cannot meet the needsof the supposedly difcult resident.This argument is wrong, because reason#3 only applies if the residents needscannot be met in a nursing home gener-ally for example, if the resident needsplacement in a subacute unit or a lockedpsychiatric ward. The federal govern-ment has stated that a nursing homecannot use its own inadequate care asa justication for eviction under reason#3. (See Federal Register, vol. 56, page48,839 (Sept. 26, 1991))


Eviction or Being Dificult

To evict a resident, a nursing homemust give a written notice that lists thereason for the eviction, along with thefacts that allegedly support the eviction.The notice must list the telephone num-

ber for the state agency that inspectsand licenses nursing homes, along withinstructions on how the resident can re-quest an appeal from the agency. Gener-ally the notice must be given at least 30days prior to the date of the proposedeviction.

Upon receiving the notice, the resi-dent or residents representative shouldrequest an appeal from the state agency.In response, the state will schedule anappeal hearing.

The hearing generally will be held atthe nursing home by a state hearing of-cer. It is preferable but not essential thatthe resident be represented by a lawyer,ombudsman program representative, orother advocate. The hearings tend to berelatively informal.

At a hearing, the resident and hisfamily should emphasize that the resi-dent is appropriate for a nursing home.In most cases, it can be shown that thenursing home did not do adequate careplanning, and instead tried to evict theresident when a difculty presenteditself.

Oftentimes the nursing home pro-poses to transfer the resident to anothernursing home. This is good evidence

that the resident is appropriate for nurs-ing home care. After all, if the secondnursing home can provide adequate andappropriate care, there probably is noreason why a similar level could not beprovided by the residents current nurs-ing home.

The resident should resist the inclina-tion to give up. Sometimes a resident

will think, If the nursing home doesntwant me, then Im better off going else-

where. The reality is, however, that thesecond nursing home may be no better or may be worse than the rst one.

A resident who ghts an eviction, winsand stays may nd himself receivingmore respect and better care from thenursing home.

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Eviction Threatened or Reusing

Medical Treatment

What You Hear: You must leave the nursing

home because you are reusing

medical treatment.

The Facts: Reusal o treatment, by itsel,

is not an allowable reason or

eviction.

A nursing home resident, like anyother individual, has a constitutionaland common-law right to refuse medi-cal treatment. For that reason, an evic-tion cannot be based solely on a resi-dents refusal of treatment.

As discussed above, eviction is onlyallowed for one of the six specied rea-sons. Federal nursing home guidelinesstate: Refusal of treatment would notconstitute grounds for transfer, unlessthe [nursing home] is unable to meetthe needs of the resident or protect thehealth and safety of others. (Survey-ors Guideline to Section 483.12(a)(2) ofTitle 42 of the Code of Federal Regula-tions, Appendix PP to CMS State Opera-tions Manual)

On occasion, a resident refuses treat-ment because he is terminally ill anddoes not want to take steps to extendhis life. This is his right, and he shouldnot be forced to move from the nursinghome for this reason.

A small number of nursing homes,mostly afliated with religious de-nominations, have policies that requireprovision of life-sustaining treatmentunder all circumstances. A nursinghome can follow such a policy only if al-lowed by state law, and only if the policyis described in considerable detail dur-ing a residents admission.


Eviction or Reusing Medical

Treatment

Following the procedures discussedabove in Problem #19, a resident orresidents representative should appealan eviction based on refusal of treat-ment. At the hearing, the resident orrepresentative should be prepa

20 common problems nov 2010 final

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