General
1)What are ADLs or Activities of Daily Living?
ADLs are personal care tasks that people perform daily.ADLs include bathing, dressing, toileting, transferring (for example moving from bed to chair), and eating.Assessments measure someone’s ability to perform these tasks and indicate the level of assistance that is needed in these areas so that the appropriate level of care can be arranged.
2) What are IADLs or Instrumental Activities of Daily Living?
IADLs are cetain tasks that may not be necessary every day, but are essential to living independently.IADLs include meal preparation, housekeeping, laundry, money management, transportation, shopping, using the telephone and performing basic home maintenance.
Questions about Admission to a Nursing Home
1) What should you do before signing the admissions agreement?
Be sure to read the agreement carefully before you sign it.Ask questions if you don’t understand something.If you are not in an emergency situation, have an attorney or someone else read the contract before you sign it.There are parts of an admission agreement which you may want to politely refuse to sign or to cross out (and initial), such as a responsible party or third party guarantee of payment provision, an arbitration agreement, or a negotiated risk or indemnification provision (see below).
2)Can a nursing home require a responsible party or third party guarantee of payment as a condition of admission?
No.Both federal and state law prohibit a nursing home from requiring a third party guarantee of payment as a condition of admission, expedited admission, or continued stay in the facility.If a third party has legal access to the resident’s income and assets (for example, by serving as the resident’s agent through the resident’s power of attorney or if appointed by a court as her guardian or conservator), the nursing home can require the third party to sign a contract agreeing to pay the nursing home out of the resident’s income or resources.In that situation, the third party would not be personally liable for the bill (out of his or her own money), unless he or she misused the resident’s money by using it to pay the third party’s bills instead of the resident’s nursing home bill.
3)What should I do if the admissions agreement contains a responsible party or third party guarantee provision?
Read any responsible party or third party guarantee provision very carefully.If the provision seems to make you (as the responsible party) personally liable for the resident’s bill out of your own pocket—over and above your duty to pay the facility out of the resident’s income or resources-- you should consider either refusing to sign that provision or crossing out that provision and writing your initials next to the crossed out section.You should, politely but firmly, explain that you understand such a provision to be illegal and unenforceable. The nursing home staff may be embarrassed or surprised by your refusal, and may simply go ahead with the rest of the admissions packet and not object to your refusal to sign this provision.
If you have already signed an admission agreement as the responsible party and the facility is now asking you for payment or if you are sued by the nursing home for payment, you should get advice from an attorney who knows about nursing home law.
4)What is an arbitration agreement? How is arbitration different from going to court?
An arbitration agreement is an agreement that any future disputes between you and the nursing home, other than those specifically excepted, will be handled by a private judge called an arbitrator, rather than by going to court.Often arbitration agreements in nursing home admissions contracts require all claims of the resident to go to arbitration, but allow the facility’s claims to be heard in court.Most advocates believe that the arbitration process is generally not good for residents. Arbitration tends to be more expensive than a case in court because the arbitrator is paid an hourly fee by the parties.Most advocates also believe that courts are generally more sympathetic to the kinds of cases a resident or a resident’s family might bring against a nursing home than an arbitrator would be.It is best to make a decision about arbitration after a dispute has arisen and after talking with a lawyer, rather than agreeing to arbitration at the time of admission before any dispute has arisen.
5)Should I sign an arbitration agreement which is part of the admissions agreement or contract with the nursing home?
Not if you can avoid it.If possible, you should avoid signing the arbitration agreement at the time of admission.Often, the facility will not object if you or your representative simply refuses to sign the arbitration agreement.You can say you’d prefer to make the decision about arbitration after a dispute has come up, but do not want to commit to arbitration now.
Whether or not you have signed the arbitration agreement, if the facility attempts to send your claim against the facility to arbitration, you should contact an attorney right away.The agreement may or may not be binding, depending on the circumstances surrounding the signing, the language or terms of the arbitration agreement, who signed it, etc.Before agreeing to have your claim sent to arbitration, check with an attorney to see if there is a way to challenge the arbitration agreement.
6)What is a negotiated risk or indemnification provision (also called a “hold harmless” or “limitation of liability” provision)?
An indemnification or negotiated risk provision essentially says the facility does not provide one-on-one care 24 hours per day and that the facility will not be liable for any injuries to a resident which result from the resident’s decision not to obtain supplemental private duty nursing care.
7)Should I sign a negotiated risk or indemnification provision if it is included in the admissions agreement?
Do not sign such a provision if you can avoid it.Nursing homes are obligated, by law, to have sufficient nursing staff to provide nursing and related services “to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident.”The resident should not have to pay extra for private duty nurses, in addition to the monthly nursing home bill, in order to receive adequate care.No facility should be able to avoid liability for the negligence of its staff by, in effect, blaming the resident for failing to hire private duty nurses.If such a provision is in the admissions contract, consider crossing out that provision and initialing the crossed out provision to show your refusal to be bound by that section.
8)Can a nursing home require an applicant to make a donation or gift, or promise to pay at the private pay rate for several months?
No.Because the facility receives a higher monthly payment rate for a private pay resident than for a Medicaid-eligible resident, a facility may prefer to admit a private pay resident instead of a Medicaid applicant.The facility may want some assurance that an applicant will be a private paying resident for some specified length of time.As to any Medicaid-eligible resident, a nursing home may not charge, request, accept, or receive any gift, donation or other consideration, other than what is allowed by the Medicaid state plan, as a precondition of admission, expedited admission or continued stay of the individual in the nursing home.
In addition, a facility cannot require a resident or potential resident to waive his or her right to Medicaid or Medicare, or require any promise that a resident or potential resident is not eligible for, or will not apply for, Medicaid or Medicare.Under federal law, a facility cannot require an applicant to promise to pay the private pay rate for a period of time, because such a promise would prevent the resident from applying for Medicaid as soon as he becomes eligible.
9)Can a nursing home treat Medicaid residents differently from private pay residents?
No.Federal law says that 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.”Medicaid-eligible residents should receive the high-quality care required by federal law, without any discrimination based on payment source (or amount).
Questions about Nursing Home Transfer/Discharge Rights
1) Can a nursing home resident be evicted from the facility because he breaks a rule or because he complains too much?
No.Federal law limits the reasons a person can be transferred or discharged from a nursing home.There are only six valid reasons a nursing home resident can be forced to move to another nursing home or institutional setting (a “transfer”) or sent to a non-institutional setting such as his home or the home of an adult child (a “discharge”).The only allowable reasons for an involuntary transfer or discharge are:
(1) the transfer or discharge is necessary for the resident’s welfare and the resident’s needs cannot be met in the facility;
(2) the resident’s health has improved enough that she no longer needs the facility’s services;
(3) the safety of individuals in the facility is endangered;
(4)the health of individuals in the facility would otherwise be endangered;
(5) the resident has failed to pay despite reasonable and appropriate notice; or
(6) the facility ceases to operate.
These are the only legitimate reasons for an involuntary transfer or discharge under federal law.
2)Can a nursing home force the family to remove the resident from the facility without notice?
No.Federal law requires a nursing home to have a valid reason for the discharge or transfer (see previous Q&A) and also requires the facility to give the resident and a family member or legal representative advance written notice of the planned transfer or discharge.The notice must be in language that the resident and family can understand.Normally, the nursing home should give at least 30 days notice of the transfer or discharge, but there are some exceptions to the 30 day requirement, and, in those cases, the notice must be given “as soon as practicable.”
The notice must include specific information, including the reason for the discharge or transfer, the effective date of the transfer or discharge, the location to which the resident is to be transferred or discharged, a statement of the resident’s right to appeal the action, the name, address and phone number of the State Long Term Care Ombudsman, the mailing address and phone number of the agency responsible for the protection and advocacy of the developmentally disabled if the resident has a developmental disability, and the mailing address and phone number of the agency responsible for the protection and advocacy of the mentally ill if the resident has a mental illness.
3) What can I do if I receive, or my loved one receives, a notice from the nursing home threatening to transfer or discharge me or my loved one?
You should immediately contact the local long term care ombudsman who covers the area in which the nursing home is located.The ombudsman’s job is to help residents resolve problems in the nursing home.Sometimes, the ombudsman can talk to the administrator and convince him or her that the discharge or transfer is not appropriate.
You also have the right to file an appeal with the Department of Medical Assistance Services (“DMAS”).You have a right to appeal an involuntary transfer or discharge to DMAS even if you are not on Medicaid. (The exception to this rule is if your nursing home does not accept Medicaid, meaning it only take private pay and Medicare.In this situation, there are no appeal rights).Even if you are self-pay or private pay, if your nursing home accepts Medicaid residents, you have the right to appeal the discharge. You must file an appeal before the date the transfer/discharge is scheduled.Filing an appeal will stop the threatened transfer or discharge until the hearing is held and a written decision is issued.Normally, the hearing will be held at the nursing home so that the resident can attend.You have the right to review the file, to have witnesses, to question the facility’s witnesses, etc.Because the hearing is very important to whether you have the right to stay in the facility, it is a good idea to be represented by a lawyer or paralegal.You may want to contact legal aid to see if a lawyer or paralegal can represent you or you can contact a private attorney familiar with nursing home issues.Do not delay seeking representation, because your representative will need plenty of time to obtain records and prepare your case.
4)How do I file an appeal with the Department of Medical Assistance Services (DMAS)?
You may want to read about the appeals process or down load their brochure at
http://www.dmas.virginia.gov/app-home.htm. You may appeal the discharge by writing to:
Department of Medical Assistance Services
Division of Client Appeals
600 E. Broad Street, Suite 1300
Richmond,
Virginia
23219
Telephone:(804)-371-8488; Fax:(804)-371-8491
Be sure to state that you are appealing the discharge and include pertinent information such as the facility name and resident name along with the discharge notice, and your contact information.
5)Do I have the right to an appeal if the facility wants to transfer me, or my loved one, from one unit of the facility to another unit and I don’t want to move?
You do not have the right to appeal simply because the facility wants to change your roommate or change your room assignment.But you do have the right to an appeal if you are being asked to move from one distinct part of the facility to another part which is separately certified under Medicare or Medicaid.If the transfer is between two units which are separately certified, you are entitled to all the notice and appeal protections that are available for any other involuntary transfer or discharge.
6) What is the doctor’s role in making a transfer/discharge decision?
It is very important that you contact your, or your loved one’s, doctor to see if he or she agrees with the facility’s decision to transfer or discharge you, and to ask your doctor to help fight the transfer/discharge if he or she does not agree with it.Under state law, the facility is required to consult with the resident’s attending physician (and with the resident and family or responsible party) before the discharge or transfer.In addition, the attending physician or medical director of the facility, under state law, is supposed to make a written notation in the clinical record approving the discharge or transfer “after consideration of the effects of the transfer or discharge, appropriate actions to minimize the effects of the transfer or discharge, and the care and kind of service the patient needs upon transfer or discharge.”In addition, federal law also requires that the resident’s clinical record be documented by the resident’s doctor if the reason for the transfer or discharge is either that it is necessary for the resident’s welfare or that the resident’s health has improved sufficiently that he no longer needs the facility’s services.However, facilities do not always obtain the legally required documentation.Failure to properly document the clinical record or to obtain the attending physician’s approval is one basis for challenging the transfer/discharge.
7) Can the facility simply put me, or my loved one, out without any assurance that the new placement is appropriate for my care needs?
Unfortunately, this does occur sometimes, but it is illegal under federal and state law.Federal and state law requires that the discharging facility provide sufficient preparation and orientation to residents to “ensure safe and orderly transfer or discharge from the facility.”At a minimum, this obligation requires that the resident be sent to a place which can provide the care the resident needs.Sending a quadriplegic resident home to live with his disabled daughter, without any plan for in-home services, for example, would not be an appropriate discharge plan and would be grounds to challenge the discharge.
8) What kind of arguments can be made at a hearing which might successfully stop a threatened transfer or discharge?
There are a number of possible arguments.The notice itself may be defective—it may not have all the necessary information or may include erroneous or misleading information.The facility may not have obtained the documentation of the clinical record which is required by federal and state law.The facility may not have done appropriate discharge planning and may plan to send the resident to a place which is unable to care for him appropriately.Or, the facility may not have valid legal grounds for the transfer or discharge.For example, the facility may claim that a resident is a danger to the safety of others, but the resident’s behavior consists merely of cursing or other irritating, but not dangerous, behaviors.In that case, the hearing officer may find that the discharge is not justified because the resident is not truly a danger to the safety of others. All relevant and valid arguments should be made at the hearing—don’t rely on just one—since you don’t know which argument or arguments the hearing officer may find persuasive.
9) What actions can a DMAS hearing officer take once a hearing has been held? What should I do if I receive an unfavorable decision?
The hearing officer could sustain (or agree with) the facility’s action to transfer or discharge the resident.If so, the facility could go ahead with the plan to transfer or discharge the resident as set out in the original letter, although they would probably send a new notice with the new discharge date.The hearing officer could reverse the action of the facility and tell the facility that it cannot transfer or discharge the resident, either because the facility did not have valid legal grounds for the transfer/discharge or because the facility had not followed the legally-required procedures prior to transferring or discharging the resident.A hearing officer could also remand or send the case back to the facility to take further actions before transferring or discharging the resident.Although this allows the facility to go ahead with the transfer or discharge once those additional steps have been taken, the facility may decide not to go ahead with the transfer/discharge after all.Sometimes, conditions have changed or the relationship between the resident and staff has improved to the point that the facility is no longer as anxious to “get rid” of the resident.
If the hearing decision is unfavorable to the resident, there are additional appeals which might be taken under certain circumstances.A lawyer should immediately assess the case to decide whether an appeal is justified.You should consult a lawyer quickly before the resident is actually moved from the facility.
10) Is it a good idea to be represented at the transfer/discharge hearing by an attorney or trained paralegal?
Yes, definitely.These cases are complicated.There are many different kinds of arguments that can be made and there are records which need to be reviewed. Failure to put on a persuasive compelling case at the hearing may result in the resident being transferred or discharged from his home.Further appeals from the hearing officer’s decision are usually based on the hearing record, so there may be little that can be done on appeal if a thorough record was not made at the hearing.If the resident has limited income, he or she may qualify for legal services representation at no cost.It is very important to contact legal aid or a private lawyer as early as possible and certainly as soon as you have requested a Medicaid hearing.It is also important to contact the local long term care ombudsman immediately when you first receive the notice of the transfer/discharge so that the ombudsman can attempt to resolve the problem before a hearing becomes necessary.Often these cases can be won if someone simply stands up for the resident and advocates for her rights under federal and state law.
Questions about the Right to Readmission from the Hospital or Therapeutic Leave
(Therapeutic Leave is when a resident leaves the nursing home to visit family or friends overnight or goes to a rehabilitation center for a limited time period.)
1) If a nursing home resident is sent to the hospital or goes on therapeutic leave, does he or she have the right to come back to the same facility once he or she is ready to be released from the hospital or to return from therapeutic leave?
If the resident is Medicaid-eligible and still needs nursing home care, she does have the right to be readmitted to the same facility as soon as a bed in a semi-private room with the same gender roommate becomes available. This right clearly applies to all Medicaid residents as long as the resident still requires nursing home care and is eligible for Medicaid nursing facility services; it is less clear whether this right also applies to residents who are not covered by Medicaid. The facility must have a written policy regarding the readmission rights for those whose hospital stay or therapeutic leave exceeds the state’s bed hold period.
Significantly, a facility is required to readmit a resident even if the resident has an unpaid bill, the facility considers the resident to be a danger to the health or safety of others, or the facility claims the resident’s needs cannot be met by the facility. The facility must readmit the resident, but if there is a justifiable reason for transfer or discharge, the facility could then begin transfer/discharge proceedings by following the requirements set out in federal and state law. (See Transfer/Discharge Rights)
2) What is
Virginia’s bed hold coverage for hospital stays or therapeutic leave?
Virginia Medicaid does not pay for any bed hold days when a nursing home resident is admitted to the hospital. Unless the resident or family chooses to pay to hold the specific bed, the facility has the right to offer the bed to another person. However, while the hospitalized resident may not be able to return to the same bed if it has already been filled, he or she still has the right to be readmitted to the same facility to the next available bed in a semi-private room, as long as the resident still requires nursing home care and is eligible for Medicaid nursing facility services.
Virginia Department of Medical Assistance Services (DMAS – Medicaid) does cover up to 18 therapeutic leave days within a 12 month period. During these 18 days, Medicaid will pay to hold the bed of the resident if the leave is within the resident’s plan of care and that is noted in the resident’s chart. Therapeutic leave includes visits to relatives or friends or admission to a rehabilitation center for up to 7 days for evaluation, but it does not include admission to an inpatient hospital.
3) Does a nursing home have any obligation to advise residents and families about the resident’s readmission rights?
Yes. Two written notices are required—one notice must be given to the resident and a family member or legal representative before a resident is transferred to a hospital or allowed to go on therapeutic leave (probably given at time of admission as part of the admissions package). This notice must state the duration of the bed-hold policy under Medicaid and the facility’s policy regarding the bed hold period, including the facility’s readmission policy. A second notice about the bed hold policy must be given at the time the resident is transferred to the hospital or for therapeutic leave.
In addition, the State Provider Manual states that the facility must post a notice regarding readmission rights in a conspicuous place accessible to residents and their families, and that the resident’s record must include a statement signed by the resident or the resident’s representative that he or she has been fully informed of the right to readmission.
4) Are nursing homes required to keep any documentation of residents’ transfers to the hospital and of whether the resident was readmitted, etc.?
Yes. According to the State Provider Manual, a facility is supposed to document each discharge, the date of admission to the hospital, the date of discharge from the hospital, the discharge destination, and if the destination is not the pre-admission facility, the reason the resident was not re-admitted. The Provider Manual also requires follow-up contacts by the pre-admission facility to ensure the resident is offered the next available vacancy, including offers of the next available vacancy in writing and signed by the resident or representative, and documentation of the reason if the resident was not readmitted at the time of the next vacancy. The only exception to the documentation requirement is if a facility has submitted a letter to the Department of Medical Assistance Services (DMAS) indicating that the facility routinely holds beds for at least 12 days for residents discharged to a hospital, regardless of whether anyone is paying to hold the bed.
5) What can a resident do if he or she is sent to the hospital, but the nursing home refuses to re-admit him or her once the hospital is ready to release him or her?
The resident, legal representative or family member, or the hospital social worker should contact the local long term care ombudsman to see if he or she can persuade the nursing home administrator of the facility’s legal obligation to readmit the resident to the first available bed. If the ombudsman is unable to obtain the resident’s readmission, the resident should promptly file an appeal with the Department of Medical Assistance Services (DMAS or Medicaid) so that there can be a hearing to determine whether the facility acted properly. It is important to act quickly on a failure to readmit case because the hospital will be eager to discharge the resident and may be forced to send the resident to another facility (which could be miles away from family and friends) if the first facility refuses to readmit the resident.
Questions about Residents’ Rights in Nursing Homes
1) Can a nursing home treat everyone the same regardless of the individual resident’s needs and preferences?
No. A resident has the right, under federal law, to 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.” This includes the right to choose activities, schedules and health care which are in line with the resident’s interests, assessments and plan of care.
2) What does “reasonable accommodation of individual needs and preferences” mean?
It should mean, for example, that different residents should have different schedules for eating and bathing, based on the individual resident’s preferences. A person who has always stayed up late at night and slept late in the morning should not suddenly be forced to get up at 6 a.m. to be bathed and dressed because that is the time convenient to staff. A resident who hates crafts but loves gardening should not be forced to go to a craft activity but should have the opportunity to garden.
The need to accommodate individual needs and preferences can be more complicated when the health or safety of other residents is affected. For example, how does a facility accommodate the needs of a smoker-resident without endangering the health and safety of other residents? Usually the needs of both groups can be accommodated. For example, the resident may not be allowed to smoke in his room or in certain other parts of the building, but the facility may designate a smoking area for residents who wish to smoke.
3) If a resident has repeated falls or starts wandering into other residents’ rooms or even out the door of the facility, can the facility use physical or chemical restraints to prevent the resident from falling or wandering?
Only if restraints are necessary to ensure the physical safety of the resident or other residents, and, except in an emergency, only with a written order of a physician which states the duration and circumstances under which restraints may be used. Physical restraints include a vest or belt that ties the resident to a wheelchair or bed or a bedrail. A chemical restraint is a behavior-modifying or psychoactive medication. Federal law states that the resident has the right to be free from chemical or physical restraints which are not necessary to treat the resident’s medical symptoms. Restraints should never be used for the convenience of staff or to discipline the resident, but only to treat the resident’s medical symptoms. Physical restraints have actually been shown to cause harm to residents—for example, there may be a greater risk of falls because the resident has become more unsteady or tries to climb over a bed rail; risk of asphyxiation from entanglement in the restraint; pressure sores from not moving around; or depression or agitation from being tied to a chair. Other alternatives are often safer and more effective than restraints. For example, scheduling an aide to walk with a resident a couple times each day may reduce wandering. A resident who is experiencing falls may need a walker or staff support when walking.
4) Does a resident give up any rights to privacy when he or she moves into a nursing home?
No. Federal law protects a resident’s right to privacy in written and telephone communications, accommodations, medical treatment, visits, meetings of family and resident groups, and to confidentiality of personal and clinical records. A resident does not have the right to a private room, but a married couple has the right to share a room if they reside in the same facility and both agree.
5) Can a nursing home limit visiting hours for a resident’s family members?
No, unless the resident does not want the immediate family or other relatives to visit. Otherwise, federal law allows immediate access to the resident by an immediate family member or other relatives. Of course, the family should be sensitive to the needs of the resident’s roommate and other residents and may need to visit somewhere other than the resident’s room if the roommate is sleeping.
6) What rights does a resident have with regard to access or visitation by people other than family members?
The resident’s physician and certain agencies (including a representative of the Secretary of Health and Human Services, any representative of the State, the State Long Term Care Ombudsman, or someone from the agency for the protection and advocacy for the developmentally disabled or mentally ill) must have immediate access to the resident without limitation. Otherwise, the facility must permit immediate access, “subject to reasonable restrictions,” and subject to the resident’s right to deny or withdraw consent to others visiting. Anyone who provides health, social, legal or other services to the resident must be given reasonable access. Except for the doctor and protection agencies, other visitation is subject to the resident’s right to deny or withdraw consent at any time.
7) Residents or family members often express fear that if they complain, the nursing home will retaliate against them. Is this fear justified?
The fear is reasonable since, unfortunately, this does sometimes occur. However, retaliation is forbidden by federal law. A resident has the right to voice grievances about his or her care or treatment (or the facility’s failure to provide proper care or treatment) without discrimination or reprisal and has the right to expect the facility to act promptly to resolve his or her grievances.
In addition, a resident and resident’s family have the right to organize and to participate in resident or family councils, to have those groups meet in the facility, and to expect the facility to listen to and act upon the grievances and recommendations made by the residents and families about policies and operational decisions affecting resident care and life in the facility.