Twenty Common Nursing Home Problems —and How to Resolve Them

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Often, standard operating procedures in nursing homes actually violate regulations in the federal Nursing Home Reform Law, which applies to any nursing home certified to accept payment from Medicare or Medicaid, which is about 95 percent of all homes. Residents and their families may not be aware of their rights under this law, or may be unwilling or unable to raise their concerns. This booklet describes common nursing home practices that violate the Reform Law, such as restraining residents against their wishes, and offers strategies that residents and family members can use to address them.

Organization: National Senior Citizens Law Center

Target Populations: Nursing home residents and their families; nursing home administrators

The Issue: Often, standard operating procedures in nursing homes actually violate the federal Nursing Home Reform Law, which applies to any nursing home that is certified to accept payment from Medicare or Medicaid, which is about 95 percent of all homes. Not only are such procedures illegal, but they can cause great harm or suffering to residents. Residents and their relatives may not be aware of their rights under this law, or be unable or unwilling to raise their concerns, fearing reprisals.

Among other provisions, the Reform Law requires that each nursing home provides individualized care so that a resident can reach his or her highest level of functioning.

The Intervention: 20 Common Nursing Home Problems—and How to Resolve Them is a 40-page booklet that describes common nursing home practices that violate the Nursing Home Reform Law and offers strategies that residents and family members can use to address them.

The 20 issues discussed are:

  • discrimination against Medicaid beneficiaries;
  • family and resident rights regarding development of care plans;
  • honoring residents' preferences;
  • providing necessary services;
  • use of physical restraints;
  • use of behavior-modifying medication;
  • use of feeding tubes
  • visiting hours;
  • "responsible party" provisions in admissions procedures;
  • arbitration agreements;
  • Medicare eligibility determinations;
  • continuation of therapy when resident is not progressing;
  • continuation of therapy after Medicare payment ends;
  • continuation of residence in Medicare-certified bed, after Medicare payment ends;
  • availability of Medicaid-certified beds;
  • readmission from hospital;
  • supplemental charges;
  • resident and family councils;
  • evictions; and
  • refusal of medical treatment.

The booklet is written in clear and consumer-friendly style by Eric Carlson, an attorney with expertise in the law governing long-term care facilities. For each of the 20 issues, Carlson identifies common misconceptions about nursing homes—"What You Hear"—and then clearly outlines residents' rights, or "The Facts." Carlson addresses discrimination against Medicaid-eligible residents, for example, using the following format:

What You Hear: "Medicaid does not pay for the service that you want."

The Facts: A Medicaid-eligible resident is entitled to the same level of service provided to any other nursing home resident. The Nursing Home Reform Law prohibits discrimination based on a resident's Medicaid eligibility. A nursing home "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]). Nursing home staff members are quick to claim—generally without proof—that the nursing home loses money on each Medicaid-eligible resident. A resident should avoid getting drawn into a discussion of the nursing home's financial status. A better strategy is to assume that the nursing home's finances are irrelevant as, indeed, they are in this situation. By seeking Medicaid certification, a nursing home promises the federal and state governments that it will provide Medicaid-eligible residents with the care guaranteed by the Nursing Home Reform Law.

Carlson also offers advice on how to speak up when there are problems and contact information for organizations, such as the Long Term Care Ombudsman Program (http://www.ltcombudsman.org) and National Citizens' Coalition for Nursing Home Reform (http://www.nccnhr.org), that can help.

For further information: Electronic downloads or printed copies of the booklet are available for purchase through the National Senior Citizens Law Center Web site, www.nsclc.org.

Contact: Eric Carlson, attorney for the National Senior Citizens Law Center, ecarlson@nsclc.org.

March 2006

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