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

Tips on the nursing home admissions process

The need to place a beloved family member in a nursing home may be one of the most harrowing and heartbreaking decisions a person has to make. Not only is there a terrible sense of guilt and failure, but the sheer cost of a single month in a nursing home is staggering, and leaves the family with a bleak view of their future security. They feel vulnerable, because they are at the mercy of forces they cannot control, and are thrust into a world full of acronyms, shorthand and procedures they have never encountered.

At the time of application for admission, the applicant needs to provide medical information that reports the individual’s clinical condition, diagnoses, relevant recent medical history, and treatment needs, so that the facility can make an informed decision about whether it can meet the needs of the resident. This will need to be coordinated with the physician(s) at home or the hospital discharge planner, as the case may be. Although all facilities are licensed to provide the full range of services needed for a long-term nursing home resident (with the exception of ventilator services that are beyond the scope of this article), certain facilities are known informally for better handling certain kinds of situations. It could be that an applicant is denied admission due to presence or recurrence of infection, or some documented, serious behavioral disorders. For instance, a particular resident may require a private room or extra supervision. The resident may have a unique degenerative medical condition such as ALS, and would do better in a facility that has specialized services available. Or a resident may require psychiatric placement instead of an “ordinary” nursing home.

Admissions contracts should be signed by the resident himself, but can also be signed by the spouse, a Guardian or an Agent under Power of Attorney. When a fiduciary signs on behalf of a resident, the fiduciary is signing in their fiduciary/representative capacity, and is assuring the facility that they will manage the income and assets as authorized by law. There is no need for a family member to personally take on the duty to pay the nursing home bill. Commonly, a facility will ask the person who is handling the resident’s income and resources to sign as “Responsible Party.” This would amount to a personal guarantee. No one should sign as “responsible party” unless they voluntarily intend to personally guarantee the payment out of their personal assets. The Nursing Home Act (NHA), NJSA 30:13-1 to -17 prohibits a facility from requiring a third party to guarantee the bill.

The person agreeing to be Fiduciary for the resident needs to be aware that they still have obligations to arrange for the nursing home bills to be paid using the applicant’s funds, and to apply for Medicaid benefits in a timely way. See generally, Manahawkin Convalescent v. O’Neill, 217 N.J. 99, 85 A.3d 947 (2014) (fiduciary failed to turn over the income; facility sued; fiduciary counterclaimed for violations of Consumer Fraud Act; counterclaim dismissed, but Supreme Court expressed the need for contracts to be clearly worded).

If a resident is not Medicaid eligible, the nursing home’s rates can be determined by any factors it considers appropriate. The rate schedule has to be clearly and plainly disclosed in the contract. 42 CFR ‘ 483.12(c).  A nursing home cannot obligate a Medicaid-eligible resident to sign a private pay contract to gain admission or to continue residing in the nursing home. NJAC 8:85-1.4(b). On the other hand, if the resident has not yet been determined to be Medicaid eligible, and has not yet applied for Medicaid, he or she may voluntarily sign a private pay contract at time of admission. Once the individual becomes Medicaid eligible, that contract will be void. NJAC 8:85-1.4(c).

Typically, a nursing home will ask the new resident for the first month’s fee plus a one-month security deposit, at the time of admission. If the resident expects to apply for Medicaid fairly soon, s/he needs to be sure that the security deposit has been spent on the care prior to the end of the spend-down period, so that once the resident thinks they are financially eligible, it doesn’t turn out that they have an excess resource sitting in the facility’s trust account. .

Call us for contract review and advocacy in the admissions process … 732-382-6070

 

 

 

 

Feeding the Patient is Part of the Plan of Care

What can you do if your loved one can’t feed himself but the nursing home staff just keep leaving the tray on his table? The Nursing Home Reform Act Residents’ Rights 42 CFR Ä 483 requires that provision of adequate nutrition be part of the services provided to all nursing home residents. The facility must provide adequate services to “attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by resident assessments and individual plans of care.” Dietary Services must be included in the Medicaid or medicare daily rate and cannot be billed to the patient separately, and this includes feeding. The facility must provide special equipment if that is what a resident needs to be able to feed him or herself, and in lieu of other certified staff dietary aides, a nursing home may employ a paid trained Feeding Assistants to take care of feeding certain patients who have non-complex feeding needs: ” (i) A facility must ensure that a feeding assistant provides dining assistance only for residents who have no complicated feeding problems.(ii) Complicated feeding problems include, but are not limited to, difficulty swallowing, recurrent lung aspirations, and tube or parenteral/IV feedings.”

I was responsible as legal Guardian for the care of a fellow who was confined to his bed in a nursing home for the last few months of his life due to various illnesses and weaknesses. When I would visit him, I often saw that his meal tray was on his table, the containers were opened, and spoonfuls of food were on the floor or on his bed or on himself. It was apparent that he could no longer hold his spoon. He was rapidly losing weight. The patient insisted that he could feed himself and didn’t need help, but clearly he wasn’t getting the nutrition he needed. Or he’d say he wasn’t hungry – clearly not true, as he ate eagerly when I fed him. I had a discussion with the case manager and they began assigning someone to sit with him and feed him and encourage him to eat.

The family of a nursing home resident is not responsible to feed their frail loved one. This is the facility’s legal duty. Call for a care planning meeting and address this with them if you are told that there “aren’t enough staff” or “not enough time” or “the family needs to do it” or “the patient keeps refusing.”

Call for legal advice about the rights of residents of nursing homes … 732-382-6070