Transcript Pennsylvania Long-Term Care: Legal And Financial Issues

Elders in Long Term
Care/Ombudsman/Act 28
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What is long-term care?
Services and supports needed when ability to
care for self has been reduced by a chronic
illness, disability, or aging.
Services usually provided:
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by family and friends at home,
through home and community-based services,
such as home health care, personal care, and
adult day care;
or in institutional settings, such as nursing homes,
personal care homes, assisted living
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18 July 2015
People with Long-Term Care Needs, 2000
62% are age 65 and above 38% are under age 65
Community
Residents
7.9 million
Age 65+
4.5 million
(47%)
Age 65+
1.5 million
Nursing Home
Residents
1.5 million
(17%)
(15%)
(83%)
Under Age 65
3.4 million
Under Age 65
0.16 million
(2%)
(36%)
Total = 9.5 Million
18 July 2015
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Federal Regulations
OBRA ‘87
Americans with Disabilities Act (ADA)
Section 504 of the Rehabilitation Act
Fair Housing Act Amendments
Older Americans Act
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OBRA ‘87
(42 U.S.C. §§ 1395-1396)
Emphasis on dignity, choice, selfdetermination
Focus on “resident-centered care”
Applies to all residents of Medicare/MA
certified facilities regardless of payment
source
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Americans with Disabilities Act
(42 U.S.C. §§ 12101-12213)
Prohibits discrimination on the basis of
broadly defined physical/mental disability
Facilities may violate ADA if they refuse to
admit, transfer, or discharge based upon
disability
May refuse to admit, transfer, or discharge
residents who pose “direct threat” to
health/ safety of others
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Section 504 Rehabilitation Act
(29 U.S.C. § 794)
Prohibits discrimination on the basis
of physical or mental handicap
Wagner v. Fair Acres
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Fair Housing Act Amendments
(42 U.S.C. § 3602)
Prohibits discrimination against
individuals with disabilities
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Federal “Anti-Dumping” Law
Prohibits transfers or discharges of
residents from nursing facilities as a result
of a facility’s voluntary withdrawal from MA
participation.
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Older Americans Act
(42 U.S.C. § 3058)
Authorizes the Long Term Care
Ombudsman Program
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The Role of the Ombudsman
Authorized by Federal Older Americans
Act
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Advise residents/families about rights
Help to negotiate those rights
Help to resolve complaints
Serve as a voice to advocate for policy
change
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Resident Perspective
“Our physical weakness and mental fatigue have
robbed us of much of our independence and often
lowered our self-esteem, but we need the
opportunity to make more of our own decisions.
With our options narrowed as they are, by necessity,
it should not follow that so many opportunities are
closed to us, or only available after complaints and
protest.”
- Elizabeth Wyckoff, nursing home resident
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What People Fear Most About
Nursing Homes:
The prospect of having to yield:
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freedom
privacy
choice
independence
control
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Reality for Residents
Residents live with one or more of the following:
 emotional abandonment
 loss of dignity/self-respect
 loss of love/companionship
 loss of material possessions
 severed ties to the community
 lack of independence
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Resident’s Rights
Advance Directives
Freedom of choice
Freedom from restraints
Privacy
Confidentiality
Accommodation of needs
Grievances
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Resident’s Rights cont.
Participation in Resident/Family Groups
Participation in other activities
Examination of Survey results
Notice of rights
Access and Visitation
Equal access to quality care
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Respecting Resident’s Rights
Three key variables to ensuring residents’
rights are preserved:
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Facility culture
Awareness of barriers
Flexibility/creativity
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Admissions
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Applicants cannot be required to waive rights to
Medicare/MA
Must provide info about applying for benefits
Cannot require 3rd party guarantee of payment
May not accept gift as a precondition of
admission
Cannot require responsible person if resident is
capable of managing own affairs
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Transfer/Discharge
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Definitions
Timing of notices
Exceptions to timing of notices
Special circumstances
Appeals
Intra-facility transfers
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Resident Funds
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Do not have to be on deposit at facility
Must be in interest bearing account if over $50
Accounting must be provided quarterly and upon
reasonable request
Cannot be commingled with facility funds
Must be available within 7 bank business days
Facility must notify MA residents if balance
exceeds Medicaid allowance
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Resident/Family Participation
Resident is focal point, participant in care
delivered
 Do not have to accept facility’s care plan
 Have the right to refuse treatment
 Can ask for a review, change in care
plan
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Responsible Parties
Certified facilities are prohibited from
requiring a 3rd party financial guarantor
Facilities cannot require duration-of-stay
Agent in Fact, Trustee, or Guardian can
have legal responsibility for resident
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Restraints
OBRA ‘87
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Legislative attempt to initiate a major restraint
reduction movement
Residents have the right to be free from
physical or chemical restraints unless they are
necessary to treat medical symptoms
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Physical Restraints
A vest that ties resident in wheelchair/bed
ties attaching resident’s hands to bed
hand mitts
lap cushion, seat belts
lap trays
bed rails
chairs that are angled in such a way that
they prevent a resident from getting out
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Chemical Restraints
Psychotropic medications are classified as
chemical restraints and are to be used
only in limited circumstances
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Act 28 – Neglect of Care
Dependent Persons
Effective September 8, 1995
Act 28 is an amendment to the PA
Crime Code
Makes it a crime to neglect a caredependent person
Who is Subject to Prosecution
under the Law?
Caretakers: any subject who is an owner ,
operator, manager or employee of a(n):
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Nursing home
Personal care home
Domiciliary care home
Community residential facility
Intermediate care facility for the mentally retarded
Adult daily living center
Home health agency
Home health service provider (licensed or unlicensed)
Is There Mandatory Reporting?
If the employees of PA Department of
Aging, Department of Health, or
Department of Welfare, are conducting
regulatory or investigative responsibilities,
and have reasonable cause to conclude
that Act 28 has been violated, a report
must be made to local law enforcement or
the the Office of Attorney General
“MANY SHORTCOMINGS EXIST IN
EFFORTS TO PROTECT RESIDENTS
FROM ABUSE”
…the number of homes cited for deficiencies
involving actual harm to residents or placing
them at risk of death or serious injury
remained unacceptably high—30% of the
nation's 17,000 nursing homes. Concerns exist
that too many nursing home residents are
subjected to abuse—such as pushing,
slapping, beating, and sexual assault—by the
individuals entrusted with their care.
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Leslie Aronovitz testifying before the Special
Committee on Aging, U. S. Senate 3/4/02
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'He Choked Me:'
Why Some Elderly Attacks Go Unnoticed
By BRYAN ROBINSON - ABC News
March 7, 2002
Helen Love, a 75-year-old grandmother of three, looked
into the video camera and told of being severely beaten
by a nursing home caregiver who discovered she had
soiled herself.
"He choked me and he went and broke my neck," said
Love, who had to wear a metal halo in the videotaped
deposition from July 1998. "He broke my wrist bones, in
my hand. He put his hand over my mouth."
Two days later, Love died.
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“BUCKS CAREGIVER FOUND
GUILTY OF MURDER”
[William] Neff, 83, died Sept. 11, 2000, at
Alterra Care Bridge, a personal-care
facility in Lower Makefield Township. Six
days earlier [Care Aide, Heidi] Tenzer
fatally stomped on him during her
overnight shift, enraged that Neff had
soiled his bed. (Philadelphia Inquirer,
August 30, 2003)
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