Tips on Residents’ Rights in Nursing Homes: Bed Holds

The Federal Nursing Home Reform Act and New Jersey Nursing Home Residents Bill of Rights along with their regulations create numerous enforceable rights and protections for nursing home residents. Among these are the obligations to keep the bed available for certain amounts of time if a resident is temporarily out of the facility.

There are times that a resident must be transferred to a hospital or psychiatric facility. As part of the admissions agreement, and again at the time a patient transfers to a hospital or elsewhere for therapeutic treatment, the facility must provide specific written notice of all bed-hold procedures that would apply in situations where a patient was transferred elsewhere for care. 42 CFR 483.12(b)(1). That notice must explain exactly how long the nursing home will hold the resident’s bed open. At the time of an actual transfer, another notice must be given to the resident and a family member or representative about bed hold policies and the duration of the hold for that absence.

When a NJ resident is transferred to a general or psychiatric hospital, New Jersey regulations require that the nursing home hold the bed open for up to 10 days. NJAC 8:85-1.14(a)(1). If the resident is receiving Medicaid, then Medicaid pays for the bed-hold days at the per diem rate. If the resident is private pay, the days are billed to the resident at the customary rate. If the resident stays away longer than the 10 days, the resident will receive the next available bed. NJAC 8:85-1.14(a)(3). If a physician certifies that the resident requires a “therapeutic leave” for rehabilitative home and community visits, the bed hold protections cover up to 24 such days out of the facility per year, separate and apart from the 10 bed-hold days for hospital care. . NJAC 8:85-1.14(b)(1) – (3). For Medicaid recipients, if the resident requires more than 24 days therapeutic leave in one calendar year, authorization can be sought from NJ DMAHS to pay bed holds for additional days. NJAC  8:85-1.14(b)(6). Of course, a private pay resident can simply make arrangements with the facility to keep the bed available, and will pay the normal daily rate.


For contract review, advice and representation in selecting a nursing home, navigating the admission process, protecting residents’ rights, and evaluating payment options, call us at 732-382-6070

Despite the JIMMO settlement, Medicare benefits are being prematurely terminated

Back in January 2013 the Centers for Medicare and Medicaid Services (CMS) settled a class action lawsuit called Jimmo v Sebelius concerning premature cutoffs of skilled care benefits under Medicare Part A. The problem was that patients in skilled care facilities after hospitalizations, who were placed there for skilled nursing and rehabilitation, were finding that their benefits were being cut off once they were “no longer progressing” towards the rehabilitation goals. “The patient has plateaued” was a common refrain that families would hear. The rule of thumb was that the patient had to meet the “Improvement Standard.” Yet  the Medicare statute authorizes payment for up to 100 days for a patient who requires skilled nursing services or skilled services from licensed personnel such as physical therapists, occupational therapists and speech language pathologists, when necessary to maintain their condition and prevent deterioration, regardless of failure to improve. And in the settlement, CMS agreed to send out clarifying directives to all facilities that participate in the Medicare program.

After two years in which facilities were apparently abiding by the CMS reminders regarding “need for skilled care” as the measure, my clients  in “rehab” centers are beginning to report to me that  the old “improvement standard” is once again being held out as the measuring rod for continued skilled care. This is evidently happening even for patients whose fragile clinical condition clearly requires the services of licensed nurses to maintain their condition and prevent further deterioration. If you encounter this problem, demand a care plan meeting to be set up. Bring a copy of the JIMMO settlement press release (attached)   and remind the staff that regardless of pressures brought by the patient’s insurance carrier, the law is the law.

For legal advocacy and representation concerning long-term care, skilled care and elder care call 732-382-6070