Tips on Residents’ Rights in Nursing Homes: Individualized Plan of Care Required

Once a person has moved into a nursing home, they are situated in a health care facility and receiving patient care, but they are also living there, and are therefore referred to as a “resident” rather than as a “patient.” The critical laws governing Residents’ Rights are the federal Nursing Home Reform Act, 42 USCS ‘ 1395i-3(b) and 42 CFR ‘ 483.10, and its state counterpart statute (N.J.S.A. 30:13-1 et seq.) and regulations.  It is plain that some of the rights contained in the law reflect privacy rights that pertain to a citizen no matter where he or she lives.

A nursing home is required to provide services for each resident in manner designed to preserve the resident’s dignity and to attain and maintain highest practicable physical, mental and psycho-social well-being of the individual resident based on his or her individual needs, and must abide by the Nursing Home Resident’s Rights Act, 42 USC 1395i-3(b), (c), 1396r; 42 CFR  483.10 et. seq., 483.12, 13, 15; 4.25, 483.30B; 483.60, 483.65, and 483.70; NJS 30:13-1 et. seq.; NJAC 8:39-4.1. For case discussions, see; In re Keri, (NJ Supreme Court. 2004); Profeta v. Dover Christian Nursing Home, (N.J. App. Div. 1983).

The federal regulations implementing the Nursing Home Reform Act, 42 CFR ‘ 483.12, requires the facility to develop an individualized plan of care that will maximize the well-being of the individual resident. Services must be provided without discrimination based on payor source. This means that the same level of service must be provided to the private pay resident as to the Medicaid recipient. Input from the resident, resident’s next of kin or fiduciary, and the attending physician and registered professional nurse responsible for the resident’s care should be obtained whenever possible. 42 USC 1395i-3(b)(2), 42 USC1396r(b)(2). An initial plan of care is developed and is then reviewed at regular intervals.

The resident has an enforceable right to have a specific level of care to maintain or assist the resident to perform daily living activities which include but are not limited to maintaining nutrition and hydration and avoiding accidents.  This means that if the resident cannot feed herself, the facility must include manual feeding in the personal plan of care. The facility cannot maintain that it’s too time-consuming to do so. Similarly, if the resident tends to try to get out of bed or walk on her own, the facility has to include safety arrangements such as higher supervision within her plan of care. The facility cannot insist that the family provide extra personal aides to deliver services that are needed to protect these residents’ rights.

 

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

Don’t guarantee that nursing home bill unless you plan to pay it

When an individual moves into a nursing home for long-term care, there are an array of admissions documents that get signed. These include everything from personal preferences information to insurance and financial disclosures, medical releases, selection of physicians etc. One of these documents contains the contract for payment for the services being rendered.

Typically, the contract contains the daily rate and potential add-on charges, as well as information concerning the obligation to pursue potential Medicaid eligibility. The party signing the contract agrees to  pay the bill and to file a Medicaid application in a timely way, and to pursue that Medicaid application process by providing necessary documentation to the board of social services. Who should sign the contract?

Nursing homes are regulated by the state and federal governments. The law prohibits a nursing home facility from requiring a third party guarantee of payment as a condition of admission to the facility http://www.ecfr.gov/cgi-bin/text-idx?rgn=div8&node=42:5.0.1.1.2.2.7.4   [41 CFR 483.12(d)(2)]. These are among many protections contained in the federal Nursing Home Reform Act, http://www.law.cornell.edu/uscode/text/42/1395i-3  [42 USC 1395i–3(c), and the NJ law is at NJSA 30:13-3].     Nevertheless, it is not uncommon for nursing facilities to request that a family member or friend also sign the Admission Agreement as a “responsible party.” There is typically an optional signature line for the “responsible party.”  Be careful. If you choose to take on that responsibility, you may find that you’ve made a binding contract to personally pay the nursing home if the resident fails to pay or fails to become eligible for Medicaid.

The admission contract should be signed by the incoming resident. It can also be signed by the spouse, because — at least under NJ law —  married people who reside together are legally responsible for each other’s “necessary” medical bills [Jersey Shore Medical Center – Fitkin vs. Estate of Baum,  84 NJ 137 (1980)]. This post, though, is really a caution to the non-spouse who is involved in the situation. If the resident is incapable of signing the contract themselves, the legal representative should sign on their behalf  and should clearly indicate their role. The legal representative would be either the court-appointed Guardian or the person who is the Agent under Power of Attorney. Either way. the legal representative is the person who manages the funds and government benefits for the applicant, and basically “stands in the shoes” of the applicant. By signing the contract on behalf of the resident, they take on the obligation to make sure they pay the bill from the resident’s income or assets and to file a Medicaid application when that becomes necessary.

Although a nursing home is a health care facility, the admissions contracts can be complex. Legal advice is useful to make sure your interests are protected.

For advice on nursing home admissions, Medicaid and elder care care, call 732-382-6070