Managing difficult behavior in nursing homes: assessment and interventions

A hot-button issue for nursing home administrators and admissions personnel seems to be “behavior disturbances.” Family members may be encouraged to make alternate arrangements because the facility maintains that it cannot manage the person and the person is “creating a danger for the staff and other residents. ” In advocating for your loved one, there are tools available to help get the administrator to put the brakes on hasty efforts to get the family to relocate the resident.

Appendix B to the State’s Standards for Licensure of Long-Term Care Facilities is a deeply detailed Guideline for the Management of Inappropriate Behavior and Resident-to-Resident Abuse. Removal if the resident is not the first step, and should not be the reflex reaction. Rather, the staff are obligated to go through numerous types of assessments in an effort to pinpoint the cause of the behavior, find strategies that would avoid or prevent the behavior, redirect the resident’s attention,  and otherwise enable the resident to remain in the facility.

This appendix is really worth reading. It provides practical descriptions of what staff need to do to better understand what might be triggering a reaction and what can be done to prevent this. Also, some of the text cautions staff not to provoke a resident and to try to understand the individual and what he or she may be going through.  The staff are required to “determine the resident’s emotional adjustment to the nursing facility, including his/her general attitude, adaptation to surroundings, and change in relationship patterns,” all of which can contribute to a resident being hostile, easily aggravated, verbally abusive to staff, physically pushy, restless or resistant to programming or treatment.

Here are the categories to be assessed, each of which is described in tremendous detail: 1. Sense of initiative/involvement; 2. Unsettled relationships; 3. Past roles and current sense of self. Further elements must be considered to determine a resident’s mood and the reasons for it. All staff are expected to make a record of their observations so that based on all of that data, changes in approach can be designed: 1. sadness or anxiety and the practical causes of same, 2. mood persistent for a week and is resistant to cheering up efforts; 3. behaviors that appear disruptive but in fact may not be so different than other residents, 4. reasons for resistance to care; 5. steps for behavior management program that may include identifying whether the behavior of a different resident is triggering the seemingly disruptive reaction; 6. whether there has been a change in mood over the past 90 days, and 7. whether there has been a overall increase in the “problem behaviors” over the past 90 days.

The staff of skilled nursing facilities are trained professionals working in a setting where unusual behavior is the norm, not the exception. They have many ways to figure out how to address a challenging situation with a resident. By using those skills and getting some insights from the resident or the resident’s support network, situations can be defused and progress can be made. Too often, though, a sense of hysteria arises instead of the calm, deliberate approach that is needed to actually solve the problem. Removal of the resident should be the last resort.Appendix B

 

For legal advocacy and advice regarding nursing home care planning, call us at … 732-382-6070

Pet therapy provisions in the New Jersey Skilled Nursing Facility Manual

Are you watching out for a loved one or a client who resides in a nursing home? You will want to become familiar with some of the provisions in the State’s regulations for skilled nursing facilities. In this series of posts I will talk about some sections of the Code and its appendices that are useful for a patient’s advocate to know about.

Let’s start with the provisions about pet therapy. Can a resident of a nursing home be visited by their pets? Can a resident of a nursing home bring in a pet to live with them? Facilities are permitted to establish protocols that enable a resident to have a pet as a companion or to receive visits from animals that are residents of the nursing home or are brought in as visitors. The details are in Appendix A, which is found at page 105-107. Appendix A.

The idea of bringing animals into nursing homes for pet therapy isn’t new. The NY Times did this piece about it in 1987, and  researcher H.M. Hendy at the National Institutes of Health published a study that same year in the International Journal of Aging and Human Development which was a follow-up study of the effects of pet visits vs. human visits on residents’ alertness and other indicators of contentment and satisfaction.

Under the New Jersey program, allowable companion pets are dogs, cats, non-carnivorous birds, domestic rabbits, gerbils, hamsters, guinea pigs and fish. Reptiles, ferrets and other wild animals are not permitted. The facility itself (or a staff person or other party) can own and maintain the animals,   or  a resident can own the animal and keeps it on the premises. Any animal that resides at the facility more than 4 hours a day is referred to as a “residential pet.” Appendix A contains explicit requirements regarding the health and safety of such animals.

There is a category called “visiting pets.” If pets are brought in so that the resident can visit with the pet, the party bringing it in must abide by certain requirements. Dogs and cats must be vaccinated, housebroken, and not in estrus (not “in heat”) at time of visit. Dogs must be licensed and tagged. The owner must accompany the animal and is responsible and liable for its behavior while on the premises. Visiting birds are not permitted, but hamsters, gerbils, guinea pigs, domestic rabbits, rats and lab mice may visit.

Resident pets and visiting pets cannot be allowed into certain areas such as nursing stations, drug preparation areas, linen storage areas and sterile supply rooms, for example. Food handlers may not be involved in the cleanup of animal waste. There must be a pet-free area within the facility so that residents can avoid undesired contact with animals. 

If you want to read the State’s entire manual of requirements for skilled nursing facilities, here it is. — Chapter 8:39 of the NJ Administrative Code.

A person who moves into a skilled nursing facility for long-term care is a resident, not a patient, and the SNF is their new home. Not only is an individualized plan of care required, but many protections and rights which  people have in their communities follow them into this new residence. Vigilant, attentive and creative advocacy can assure a good quality of life for your loved one in a senior care facility.

For advice and advocacy on senior care and elder law issues, call us at ……732-382-6070

 

Notice of Medicaid Ineligibility violates Due Process if it doesn’t specify the Reason

The Superior Court of Massachusetts recently addressed the question of whether a state Medicaid agency had given adequate notice to the Medicaid applicant of the reason for denial of eligibility. What’s useful for New Jersey purposes is the exended discussion of the federal regulations pertaining to Notices of denial, and the explanation given by the Court as to why the Notices in question were deficient.

The case concerned assets that were held in a Trust. An applicant cannot be eligible for Medicaid if his or her non-excluded “countable” resources exceed a certain limit. In this case, each Notice merely stated  that the applicant was ineligible due to having excess resources, but gave no explanation as to why the assets of the Trust were being counted as the applicant’s resources. The Court held that the Notice was deficient; stayed (enjoined) the denial of benefits pending the outcome of the lawsuit, and certified the case to move forward as a class action because the practice had adversely affected all the individuals in the lawsuit class in a similar manner.

Maas vs Sudders et al and Hirvi vs Sudders et al. (Mass Superior Court, 2018)

Federal regulations require that a Medicaid agency give explicit written notice of reasons for an adverse action and of the opportunities for appeal. The notice must be served on the affected individual. The law provides as follows:

§ 431.210 Content of notice.

A notice required under § 431.206 (c)(2), (c)(3), or (c)(4) of this subpart must contain –

(a) A statement of what action the agency, skilled nursing facility, or nursing facility intends to take and the effective date of such action;

(b) A clear statement of the specific reasons supporting the intended action;

(c) The specific regulations that support, or the change in Federal or State law that requires, the action;

(d) An explanation of –

(1) The individual‘s right to request a local evidentiary hearing if one is available, or a State agency hearing; or

(2) In cases of an action based on a change in law, the circumstances under which a hearing will be granted; and

(e) An explanation of the circumstances under which Medicaid is continued if a hearing is requested.”

We have seen situations over the years in which no reason was given for an adverse conclusion by the county Medicaid Agency. For example, the denial of benefits notice might just say “applicant has excess resources” without specifying which resources are allegedly in excess of the limits. There are times that there can be a bona fide legal and factual dispute over whether certain resources are countable or excludable. Or the denial notice might say that “there were transfers of assets in violation of N.J.A.C. 10:71-4.10″ without specifying what is being treated as a “transfer.” In some circumstances, a check that was payable to cash is treated as a gift to a third party (transfer of assets) for no reason other than it was a check payable to “cash.” An applicant needs to know just what the issue is, so that s/he can prepare for an appeal. This is a matter of Due Process, a principal established by the US Supreme Court in 1970 in the landmark case of Goldberg vs. Kelly.

Medicaid applications are a landmine of potential legal problems. Applicants can benefit by legal advice which protects their rights in this process.

For individual senior care advice on protecting your rights, interests and resources, call us at …. 732-382-6070

Guidebook available regarding common nursing home problems

Justice in Aging is a non-profit organization that is dedicated to fighting for the rights and interests of poor elderly people in the United States. The organization has just released a free guidebook called “25 Common Nursing Home Problems and How to Resolve them.” Click here to find out how to get this publication.

Readers of this blog are aware that skilled nursing facilities/ long-term care facilities are regulated by both federal law and state law. There are numerous protections for the residents of such facilities, but vigilance and vigorous advocacy are often required.

Senior care planning often involves looking at a variety of choices for long-term care and developing both a clinical care plan and a financial plan. The process can be distressing and difficult. Understanding the legal protections for residents and the obligations of the facilities will make you better equipped to help your loved one. Individualized legal advice coupled with publications like this one can be helpful as you navigate this process. Forewarned is forearmed.

For individualized legal advice on the elder care plan that’s right for you, call us at …. 732-382-6070

 

Estate Planning with Stand-by Trusts

Some Trusts are written into a Last Will and Testament, and are designed to receive the eventual inheritance by the beneficiary of the estate. These are called “testamentary trusts.” Other Trusts are set up during the lifetime of the creator of the Trust. This latter group is called inter vivos” which is a Latin term meaning “during the lifetime.” Some inter vivos trusts are funded — the creator of the Trust may give up his/her ownership of certain assets and transfer the assets to the Trust. Other Trusts are designed to be “stand-by Trusts” which will be there in case they are needed.

Here’s an example. From time to time, I have had a client who told me that they had older relatives out of state who wanted to be able to leave some money for my client’s children, but wanted it to be held in trust for some years and didn’t want to write that Trust into their own estate plan or Will. A stand-by trust created by the clients is sometimes a good solution solution. When we write the trust document, the client can be the trustee of the trust. We would get an EIN# and the client would provide all of the relatives with the proper name and EIN# for the Trust, so that in those other Wills, the bequest could be directed to this particular Trust. In this example, the stand-by Trust may be initially funded with just the bare minimum to set up the account. If those relatives decided to make gifts during their lifetimes, the gifts could be deposited right into the Trust.

Estate planning must be individually tailored. Your needs and worries are no doubt different from your neighbor’s. Planning isn’t a cookie-cutter process; merely downloading a form and filling in the blanks isn’t “planning.”  You want your plan to address the issues that are of particular concern to you. Some typical goals of an estate plan that includes inter vivos Trusts are:

(a)  setting assets aside for other family members to avoid the risk that those assets will be spent on health care or nursing home care, (b) having a supplemental needs stand-by Trust available for benefit of a disabled family member that can be the recipient of money from other relatives such as grandparents who may make gifts (during their lifetime) or may leave a bequest (under a Will) or leave assets via a beneficiary designation to the disabled person, or (c) streamlining the estate administration process when there is out-of-state property. Of course, leaving your child’s inheritance in Trust under your Will might also be important if you are concerned that they are too immature to handle the assets, of they have debtor-creditor problems, addiction problems, or problems within a marriage or other areas of life.

 

Call us about the estate planning that is right for you …. 732-382-6070