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20 Lies Told By Nursing Homes

Eric Carlson

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Presentation based on newly-published consumer guide.

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Nursing Home Reform Law (OBRA ’87)

 Applies to every facility certified for Medicare and/or Medicaid (“Medi-Cal” in California).

 Applies regardless of resident’s payment source.



See

42 U.S.C. §§ 1395i-3 (Medicare certification), 1396r (Medi-Cal certification); 42 C.F.R. § 483.

4 Cornerstone of Law: Individualized Care

 Facility must provide services that resident needs “to attain or maintain the highest practicable physical, mental, and psychosocial well being.” 42 C.F.R. § 483.25.

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#1:

“Medi-Cal does not pay for the service that you want.”

 A 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

.” 42 C.F.R. § 483.12(c).

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Residents Eligible for Medi-Cal Are Not Second-Class Citizens

 Reform Law requires high quality care for all residents.

 A facility must not discriminate on the basis of payment source.

 Don’t listen to facility tales of financial woe ; it is hypocritical for facility to accept Medi-Cal money and then plead poverty as an excuse.

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Resist emphasis on reimbursement.

8 #2:

“The nursing staff will determine the care that you receive.”

 Assessments done within 14 days.

 Care plan completed within 7 days of assessment.

 Resident and resident’s representative participate in preparation of care plan.

42 C.F.R. § 483.20.

Some care planning is deficient!

30 seconds?!!

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Anxiety

Problems

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Anxiety

Goals

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Anxiety

Interventions

14 #3:

“We don’t have enough staff. You must wake up every morning at six.”

 A resident has right “to reside and receive services with reasonable accommodation of individual needs and preferences.” 42 U.S.C. §§ 1395i-3(c)(1), 1396r(c)(1).

 “[A] resident has the right to [c]hoose activities, schedules, and health care consistent with his or her interests, assessments, and plans of care.” 42 C.F.R. § 483.15.

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#4: “We don’t have enough staff. You

should hire a private duty aide.”

 Reform Law requires a facility to provide all necessary care.

– Expense of care is not an excuse; after all, facility does not give refunds for residents with light care needs.

16 #5:

“If we don’t tie your father into his chair, he may fall or wander away.”

 Resident has 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.” 42 C.F.R. § 483.13.

 Use of restraints requires physician order and informed consent by resident or resident’s representative.

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#6

“Your mother needs medication to make her more manageable.”

 Medication cannot be used for discipline or facility convenience. 42 C.F.R. § 483.13(a).

– Is the medication for the resident’s good, or the facility’s convenience?

#7:

“We must insert a feeding tube; your father is eating too slowly.”

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 Facility must assist resident in maintaining resident’s ability to eat.

 Tube feeding should be done only if absolutely necessary. 42 C.F.R. § 483.25(g).

19 #8:

“Your children can visit you only during visiting hours.”

 “[I]mmediate family or other relatives” have the right to visit at any time. 42 C.F.R. § 483.10(j).

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#9:

“We can’t admit your mom unless you become ‘Responsible Party.’”

 “Responsible Party” is financially liable.

– – But Reform Law prohibits facilities from requiring financial guarantees. 42 C.F.R. § 483.12(d).

Facilities claim that person “volunteers” to become “Responsible Party.”

21 ‘Responsible Party’ Provisions Are Illegal and Unenforceable

 Why illegal?

1.

Facility actually is requiring guarantee.

2. Family members are deceived.

3. No benefit provided.

Podolsky v. First Health Care Corp.

, 58 Cal. Rptr. 2d 89 (1996).

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#10:

“Please sign this arbitration agreement; it’s no big deal.”

 There is no reason to agree to arbitration at the time of admission.

 Arbitration agreements generally are written to favor facilities.

– Residents usually are better off with juries than with arbitrators.

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#11:

“Because of your limited needs, you can’t get Medicare reimbursement.”

 Medicare pays for up to 100 days, if resident… – Is hospitalized for at least three nights; and – Needs skilled nursing services or skilled rehabilitation services.

 Days 21 through 100 have daily co-payment of $124.

Resident Can Force Facility to Bill

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 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.

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#12:

“We must discontinue therapy because you aren’t making progress.”

 Medical judgment: – Facility is responsible for trying to “maintain” resident's condition.

 Medicare rules: – Payment source should not affect the care provided.

– Medicare payment does not necessarily require “progress.”42 C.F.R. § 409.32.

#13:

“We can’t give therapy; Medicare has expired and Medi Cal doesn’t cover it.”

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 Services required by Reform Law.

 Payment source should not affect care provided.

 Therapy must be provided under Medi-Cal daily rate.

#14:

“You aren’t eligible for Medicare, so you must leave the Medicare bed.”

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 Medicare certification does not prevent bed from being used for private payment or Medi-Cal reimbursement (assuming facility is certified for Medi-Cal reimbursement).

 Under Reform Law, resident can refuse transfer within facility if purpose of transfer is to move resident to or from Medicare-certified bed. 42 C.F.R. § 483.10(o).

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#15:

“We don’t have an available Medi Cal bed for you.”

 In California, if a nursing home is certified for Medi-Cal reimbursement, any bed in that facility can be used for Medi-Cal.

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“We don’t have to readmit you from the hospital; your bed hold has expired.”

 A resident eligible for Medi-Cal has the right to be readmitted to the next available bed certified for Medi-Cal, regardless of the length of the hospital stay. 42 C.F.R. § 483.12(b).

– Advocacy tip – don’t worry about proving that a bed is available immediately.

30 #17:

“You must pay any amount set by the facility for extra charges.”

 Amount of charges limited by admission agreement, based on principles of contract law. 42 C.F.R. § 483.10(b)(6) (requirement that charges be listed).

 Medicare and Medi-Cal must be accepted as payment in full.

#18:

“We have no available space for resident or family meetings.”

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 Residents and residents' family members have the right to form resident councils and family councils. 42 C.F.R. § 483.15(c).

 If groups form, facility is obligated to provide private meeting space, and must designate facility employee as liaison.

 A facility must seriously consider, and respond to, all complaints or recommendations made by resident or family council.

32 #19:

“You must leave because you are a difficult resident.”

 1.

2.

3.

4.

5.

6.

Only six legitimate reasons for eviction (42 C.F.R. § 483.12(a): Resident failed to pay.

Resident no longer needs nursing facility care.

Facility is going out of business.

Resident’s needs cannot be met in a nursing facility.

Resident’s presence in facility endangers others’ safety.

Resident’s presence in facility endangers others’ health.

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#20:

“You must leave because you are refusing treatment.”

 Resident, like any other individual, has legal right to refuse medical treatment.

 “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 42 C.F.R. § 483.12(a).

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Eric Carlson National Senior Citizens Law Center [email protected]