Searching for knowledge in the complex and nerve-wracking area of elder care, (due to my aunt’s imminent immersion into this maelstrom of dark, dense horse-pucky), I came across an attorney’s website from New Haven, Connecticut.

On the links for lawyers page it listed the following article by the National Senior Citizens Law Center as no longer available and it was indeed not there.

Not having any of that, as you might imagine. There is a need here for awareness of impending bullshit, so, on to Mister Peabody’s most excellent Wayback Machine it was. And lo and behold, there it was.

And here, for your enlightenment and reference, is said article.

Eric Carlson
National Senior Citizens Law Center
(213) 639-0939, ext. 313
ecarlson at nsclc dot org

In 1986 the National Institute of Medicine published a study on nursing facilities. The study found that:

! Residents didn’t receive enough individualized attention; and

! State and federal law focused on mechanical measures of care, and as a result didn’t do nearly enough to protect residents.

In 1987 Congress passed the Nursing Home Reform Law (OBRA ‘87).

The Nursing Home Reform Law applies to every resident of any facility certified to accept payment from Medicare and/or Medicaid.

The Nursing Home Reform Law is located at sections 1395i-3 and 1396r of Title 42 of the United States Code. Sections 1395i-3 and 1396r are essentially identical; section 1395i-3 applies to Medicare-certified facilities; section 1396r applies to Medicaid-certified facilities.

The federal regulations (applicable to facilities that are Medicare-certified and/or Medicaid-certified) are located at section 483 of Title 42 of the Code of Federal Regulations. CMS’s Surveyor’s Guidelines to those regulations are found in Appendix PP of CMS’s State Operations Manual.

The Nursing Home Reform Law is based upon the premise that each resident deserves individualized care.

Section 483.25 of Title 42 of the Code of Federal Regulations provides that a nursing facility must provide the services that the resident needs “to attain or maintain the highest practicable physical, mental, and psychosocial well-being.”

Each state has a separate body of law that applies to every nursing facility licensed in the state. On occasions state law applies in situations in which the federal law provides no help.

Too many residents and advocates defer inappropriately to facility employees.

Disputes generally do not involve the interpretation of technical medical information.

Rather, disputes arise when a nursing facility refuses to do something that obviously is in the resident’s best interests.

Problems should be directed up the facility’s chain of command: ÷ nurse aide, nurse, director of nursing, administrator, and corporate manager.

Falsehood #1: “We can’t admit John unless John Jr. signs as a ‘Responsible Party.’”

Nursing Home Reform Law prohibits a nursing facility from requiring a third-party guarantee of payment as a condition of admission or continued stay. Section 483.12(d) of Title 42 of the Code of Federal Regulations.

“Responsible Party” language is an attempted evasion of the law.

John Jr. believes that he is becoming a contact person, although he purportedly is “volunteering” to become financially responsible.

For three reasons, “responsible party” provisions are illegal and unenforceable:

1. “Responsible party” provisions are used to require guarantees, in direct violation of federal law.

2. “Responsible party” provisions provide no consideration to either a resident or the “responsible party.”

3. “Responsible party” provisions are deceptive.

The reasoning of this outline is supported by the case of Podolsky v. First Healthcare Corporation, 50 Cal. App. 4th 632, 58 Cal. Rptr. 2d 89 (1996).

Falsehood #2: “The nursing staff will determine the care that John will receive.”

A facility must complete a full assessment of a resident’s condition within 14 days after admission, and at least once every 12 months thereafter. More limited assessments must be done at least quarterly. Section 483.20(b), (c) of Title 42 of the Code of Federal Regulations.

Assessments are done with a standardized assessment instrument called the Minimum Data Set (“MDS”).

Assessments are used for development of a comprehensive care plan, which must be prepared initially within seven days after completion of the first full assessment. Every three months, care plans must be reviewed and, if necessary, revised. Section 483.20(d), (k) of Title 42 of the Code of Federal Regulations.

A resident and/or resident’s representative has a right to participate in a care plan conference. Section 483.20(k) of Title 42 of the Code of Federal Regulations.

A care plan must include measurable objectives and timetables. Section 483.20(k) of Title 42 of the Code of Federal Regulations.

Too many care plans are perfunctory. Residents and family members should take care plans seriously.

Falsehood #3: “John can’t receive Medicare reimbursement because we have determined that he needs custodial care only.”

Medicare pays for up to 100 days, if resident –

1) Is hospitalized for at least three nights;

2) Needs skilled nursing services or skilled rehabilitation services.

Days 21 through 100 have daily co-payment of $105.

John can force the facility to submit a bill.

Procedure required by the Stipulation and Order in the case of Sarrassat v. Sullivan (N.D.Cal. 1989).

Nursing facility makes initial determination on whether or not to submit bill.

Resident has right to force facility to submit a “demand bill.”

Resident cannot be charged for any amount for which Medicare subsequently may pay.

Falsehood #4: “We can’t give John therapy services because he isn’t making progress.”

This denial may be blamed on medical judgment or Medicare rules.

If the denial is based on medical judgment, the facility should be informed that a facility is responsible for trying to “maintain” a resident’s condition: “a facility must ensure that [a] resident’s abilities in activities of daily living do not diminish unless circumstances of the individual’s clinical condition demonstrate that diminution was unavoidable.” Section 483.25(a)(1) of Title 42 of the Code of Federal Regulations (emphasis added).

If the denial is blamed on Medicare rules, there are two rebuttal points to be made:

1. Payment source should not affect the care provided. Section 483.12(c)(1) of Title 42 of the Code of Federal Regulations.

2. Medicare reimbursement does not necessarily require “progress.” Resident must need “skilled nursing services” or “skilled rehabilitation services.” Sections 409.31-409.35 of Title 42 of the Code of Federal Regulations.

Falsehood #5: “We can’t give John therapy services because his Medicare reimbursement has expired, and Medicaid doesn’t pay for therapy.”

Facilities constantly attempt to tie care to payment source. This way of thinking must be resisted.

This payment-source discrimination is most obvious when a resident transfers from Medicare eligibility to Medicaid eligibility.

There is a gross disparity between the per diem rates for Medicare and Medicaid.

Appropriate therapy should be provided regardless of the form of payment.

1. Services are required.

Federal law requires that resident receive services necessary “to attain or maintain the highest practicable physical, mental, and psychosocial well-being.” Section 483.25 of Title 42 of the Code of Federal Regulations.

2. Services must not vary by source of payment.

A nursing facility “must establish and maintain identical policies and practices regarding transfer, discharge, and the provision of services required under the State [Medicaid] plan for all individuals regardless of source of payment.” Section 483.12(c)(1) of Title 42 of the Code of Federal Regulations (emphasis added).

3. Therapy must be provided under a Medicaid per diem rate.

The Surveyor’s Guidelines to Section 483.45(a) of Title 42 of the Code of Federal Regulations provide that therapy services must be provided “even when the services are not specifically enumerated in the State [Medicaid] plan.” (Emphasis added.)

In California, and probably other states, a nursing facility can receive additional Medicaid reimbursement for therapy services provided to a resident. Section 400-18 of the Medi-Cal Long-Term Care Provider Manual (Criteria for NF TAR Authorization (Valdivia v. Coye)).

Falsehood #6: “Because John is no longer eligible for Medicare reimbursement, he must leave his Medicare-certified bed.”

A nursing facility may seek Medicare certification for all or some of the facility’s beds.

Distinct-part certification does not prevent a bed from being used for a resident paying privately or through Medicaid.

A resident has the right to refuse a transfer within a facility if the purpose of the transfer is to move the resident to or from a Medicare-certified bed. Section 483.10(o) of Title 42 of the Code of Federal Regulations.

Falsehood #7: “John must be tied into his chair so that he doesn’t wander away from the facility.”

A resident has the right to be free from “any physical or chemical restraint imposed for purposes of discipline or convenience and not required to treat the resident’s medical symptoms.” Section 483.13 of Title 42 of the Code of Federal Regulations.

The term “physical restraint” includes (among other things) vest restraints, hand mitts, seat belts, bed rails, and chairs that are angled to prevent the resident from getting out. Surveyor’s Guideline to section 483.13(a) of Title 42 of the Code of Federal Regulations, Appendix PP to CMS State Operations Manual.

A restraint can be imposed only “to ensure the physical safety of the resident or other residents, and [except in an emergency,] only upon the written order of a physician that specifies the duration and circumstances und er whic h the restraints are to be used.” Sections 1395i-3(c)(1)(A)(ii) and 1396r(c)(1)(A)(ii) of Title 42 of the United States Code.

Although, as listed above, the law recognizes the use of restraints to protect residents, current nursing research increasingly sees the use of restraints as a factor in increasing the number of falls, and/or the severity of injury in the falls that occur.

Falsehood #8: “John has to wake up at 6:00 a.m. because we don’t have enough nurse aides to accommodate individual schedules.”

Nursing Home Reform Law is meant to assure that residents are treated as individual human beings.

! “A facility must care for its residents in a manner and in an environment that promotes maintenance or enhancement of each resident’s quality of life.” Section 483.15 of Title 42 of the Code of Federal Regulations.

! A resident has the right “to reside and receive services with reasonable accommodation of individual needs and preferences, except where the health or safety of the individual or other residents would be endangered.” Sections 1395i-3(c)(1)(A)(v)(I) and 1396r(c)(1)(A)(v)(I) of Title 42 of the United States Code (emphasis added).

! “[A] resident has the right to [c]hoose activities, schedules, and health care consistent with his or her interests, assessments, and plans of care.” Section 483.15(b) of Title 42 of the Code of Federal Regulations.

Falsehood #9: “We must insert a feeding tube into John because he is not finishing his meals during mealtime.”

A facility must assist a resident in maintaining the resident’s ability to eat. Section 483.25 of Title 42 of the Code of Federal Regulations.

Surveyor’s Guidelines mention specific steps that a facility might take, including: prompting the resident to eat; providing therapy to improve swallowing skills; or simply feeding the resident. Surveyor’s Guideline to Section 483.25, Appendix PP to CMS State Operations Manual.

Tube feeding should be done only if absolutely necessary. Section 483.25(g) of Title 42 of the Code of Federal Regulations.

Falsehood #10: “John’s children can visit only during visiting hours.”

A limitation on visiting hours conflicts with the idea that a nursing facility should be “home.”

“[I]mmediate family or other relatives” have the right to visit at any time. Section 483.10(j) of Title 42 of the Code of Federal Regulations.

For visits late at night, the Surveyor’s Guidelines to Section 483.10(j) suggest that visits might take place outside of the resident’s room.

Falsehood #11: “We don’t have to readmit John from the hospital because his bedhold period has expired.”

In most states, a resident is entitled to a bed hold of a few days or a week or two. Medicaid generally will pay for the bed hold.

Even if a bed-hold has expired, a nursing facility must readmit a resident eligible for Medicaid reimbursement from the hospital, if the nursing facility has an available bed. Section 483.12(b) of Title 42 of the Code of Federal Regulations.

Falsehood #12: “John must pay any amount set by the facility for ‘extra’ charges.”

Amount of charges are limited by the admission agreement, based on standard principles of contract law.

Medicare and Medicaid must be accepted as payment in full. Section 483.10(c) of Title 42 of the Code of Federal Regulations.

Falsehood #13: “We have no available space in which residents or family members could meet.”

Residents and resident’s family members have the right to form resident councils and family councils, respectively. If such a group forms, a facility is obligated to provide the group with a private meeting space, and must designate a facility employee as a liaison with the group. Section 483.15 of Title 42 of the Code of Federal Regulations.

A facility must seriously consider, and respond to, all complaints or recommendations made by a resident or family council. Section 483.15 of Title 42 of the Code of Federal Regulations.

Falsehood #14: “John must leave the facility because he is a difficult resident.”

Under the Nursing Home Reform Law, there are only six legitimate reasons for eviction:

! The resident has failed to pay.

! The resident no longer needs nursing facility care.

! The nursing facility is going out of business.

! The resident’s needs cannot be met in a nursing facility.

! The resident’s presence in the nursing facility endangers other’s safety.

! The resident’s presence in the nursing facility endangers other’s health.
Section 483.12(a) of Title 42 of the Code of Federal Regulations.

Thus “difficulty” is not a justification for eviction.

Nursing facilities exist in order to care for people with physical and mental problems.

Falsehood #15: “John must leave the facility because he is refusing medical treatment.”

A nursing facility resident, like any other individual, has a constitutional and common-law right to refuse medical treatment. Accordingly, an involuntary transfer or discharge cannot be based on a resident’s refusal of treatment.

The federal government has stated that:

! “Refusal of treatment would not constitute grounds for transfer, unless the facility is unable to meet the needs of the resident or protect the health and safety of others.” Surveyor’s Guideline to Section 483.12(a)(2) of Title 42 of the Code of Federal Regulations, Appendix PP to CMS State Operations Manual.

! “A facility may not transfer or discharge a resident for refusing treatment unless the criteria for transfer or discharge are met.” Surveyor’s Guideline to Section 483.10(b)(4) of Title 42 of the Code of Federal Regulations, Appendix PP to CMS State Operations Manual.