Common Nursing Homendpea.nd.aft.org/files/article_assets/9F79DB39-0... · Medicare beneficiary for...

20 Problems— and How to

Common

Nursing Home

Resolve Them

National Senior Citizens Law Center

With Support from The Commonwealth Fund

Eric Carlson, Esq.

20 Common Nursing Home Problems—and How to Resolve Them

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Copyright ©2005 by the National Senior Citizens Law Center. All rightsreserved. No part of this guide may be reproduced or transmitted in anyform or by any means, electronic or mechanical, includingphotocopying, recording or by any information storage and retrievalsystem, without written permission from NSCLC.


National Senior Citizens Law CenterWith Support from The Commonwealth Fund

by Eric M. Carlson, Esq.December 2005


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Contents

Introduction ................................................................ 5Recommendation: Be A Squeaky Wheel! ..................... 7A Brief Introduction to Medicare & Medicaid .............. 8

20 Problems—and How to Resolve Them .................... 9

#1 No Discrimination Against Medicaid-Eligible Residents ............... 9

Problems 2–7: Providing Care .............................................. 10#2 Care Planning........................................................................... 10#3 Honoring Resident Preferences ................................................. 12#4 Providing Necessary Services ................................................... 13#5 Limiting Use of Physical Restraints............................................ 14#6 Prohibiting Inappropriate Use of Behavior-Modifying

Medication ............................................................................... 16#7 Limiting Use of Feeding Tubes .................................................. 17

#8 Visitors ...................................................................................... 18

Problems 9–10: The Admissions Process ............................. 19#9 ‘Responsible Party’ Provisions in Admission Agreements .......... 19#10 Arbitration Agreements ............................................................. 22

Problems 11–14: Medicare–Related Issues .......................... 24#11 Determining Eligibility for Medicare Payment ........................... 24#12 Continuation of Therapy When Resident Is Not Making

Measurable Progress ................................................................. 27#13 Continuation of Therapy After Medicare Payment

Has Ended ............................................................................... 28#14 Continued Stay in Medicare-Certified Bed Even After End of

Medicare Payment .................................................................... 29


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#15 Medicaid Certification for Only Certain Beds WithinNursing Home .......................................................................... 31

#16 Readmission from Hospital ....................................................... 32

#17 Payment ................................................................................... 33

#18 Resident and Family Councils ................................................... 34

Problems 19–20: Evictions .................................................. 35#19 Eviction Threatened For Being ‘Difficult’ ................................... 35#20 Eviction Threatened for Refusing Medical Treatment ................. 37

Concluding Thoughts ................................................ 38

Ordering Additional Copies ....................................... 39


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Introductioneither program and as a result ispaying privately. Because Medicareand Medicaid are important sources ofpayment, over 95 percent of nursinghomes are governed by the ReformLaw.

The cornerstone of theReform Law is the require-ment that each nursing homeprovide the care that a resi-dent needs to reach his or herhighest practicable level offunctioning. (See Section483.25 of Title 42 of the Codeof Federal Regulations) Someresidents are capable ofgaining strength and func-tion; other residents arecapable of maintaining theircurrent condition. Still otherresidents at most may be ableto moderate their level ofdecline. In all of these situations, thenursing home must provide all neces-sary care.

In implementing this guide’s strate-gies, a resident or resident’s familymember at times may benefit from theassistance of an attorney or otheradvocate. One good source of assis-tance is the long-term care ombudsmanprogram. Each state has an ombuds-man program that provides advocacyfor nursing home residents free ofcharge. Contact information for aparticular state’s ombudsman programcan be found at the website of theNational Long Term Care OmbudsmanResource Center atwww.ltcombudsman.org.

Each state maintains an inspectionagency (often part of the state’s HealthDepartment) that is responsible formonitoring nursing homes’ compliancewith the Reform Law, certifyingnursing homes for participation inMedicare and Medicaid, and issuingstate licenses. Each of these agencies

The average consumer knows muchmore about cars (or apartments, orcell phones) than she knows aboutnursing homes. What if, for example,an apartment tenant is told by herlandlord that she has to move outwithin 48 hours, because she is too“difficult”? The tenant likely willobject, and the law will be on her sidein most cases, assuming that the renthas been paid.

As is explained in the discussion ofProblem #19, being “difficult” never isenough to justify eviction from anursing home, and evictions fromnursing homes generally require 30-day advance notice. These evictionrules are set by the federal NursingHome Reform Law, and they applyacross the country.

Unfortunately, however, if a nursinghome resident is told by the nursinghome that she must leave within 48hours on account of being “difficult,”the resident may panic and move out.Because she is unfamiliar with therelevant law, she is inclined to auto-matically believe everything told to herby the nursing home.

Too frequently, nursing homesfollow standard operating proceduresthat violate the Nursing Home ReformLaw and are harmful to residents.This guide discusses some of the mostcommon practices, which are actuallyillegal, and explains strategies thatresidents and family members can useto avoid or reverse these illegal proce-dures. The goal is for each resident toreceive the best care possible in fullaccordance with the law.

The Nursing Home Reform Law,referred to above, applies to everynursing home that is certified toaccept payment from the Medicare orMedicaid programs (or both), even ifthe resident involved is not eligible for

Note:Note:Note:Note:Note: Copies ofthe relevantfederalregulations areprovided onNSCLC’swebsite, atwww.nsclc.org/20common.html.


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will investigate in response to a con-sumer complaint, and can issue warn-ings or impose penalties to force anursing home to fix a particularviolation. Contact information forthese agencies can be found at the“Where Can I Go for Help?” page ofthe National Citizens’ Coalition forNursing Home Reform website, atwww.nursinghomeaction.org/static_pages/help.cfm.

Additional information about nurs-ing homes is available in The BabyBoomer’s Guide to Nursing Home Care,a book co-written by Eric Carlson(author of this guide) and KatharineHsiao. Both Mr. Carlson and Ms.

Hsiao are attorneys at the NationalSenior Citizens Law Center. The BabyBoomer’s Guide to Nursing Home Carewill be published in Spring 2006.

The National Citizens’ Coalition forNursing Home Reform(www.nccnhr.org) likewise has manyhelpful publications for nursing homeresidents and their families. Thefederal government maintains a Nurs-ing Home Compare website(www.medicare.gov/NHCompare/home.asp) that provides extensiveinformation on individual nursinghomes.

Important NoteThis guide is not a substitute for the independentjudgment and skills of an attorney or other professional.If you require legal or other expert advice, please consult acompetent professional in your geographic area.


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Recommendation:Be A Squeaky Wheel!

monthly to care for a resident, and isobligated by the Reform Law to pro-vide individualized care. A resident orfamily member shouldn’t feel sheepishto ask (for example) that necessarytherapy be provided, or that a residentbe allowed to sleep as long as shewants in the morning.

While a resident or family membermay be afraid of retaliation, that risk issmall, particularly when compared tothe risk of being passive. Nursinghome employees generally have noreason or inclination to retaliate.Complaints usually are made to anursing home’s nurses and administra-tors, but most day-to-day care is pro-vided by nurse aides. In any case, theissues covered in this guide are, inmost instances, focused on nursinghome policy and are not directedagainst a particular employee.

As the cliché counsels, the squeakywheel gets the grease. If a resident andfamily are too afraid or shy to ask foranything, the resident almost assur-edly will get relatively little attention.If, however, a resident and family aredetermined (but generally polite) inasking for individualized care, and areappropriately friendly and apprecia-tive, the resident will tend to receivemore attention and better care.

Can it really be possible that manynursing homes follow illegal proce-dures? Regrettably, the answer to thisquestion is an emphatic “yes,” basedon the experiences of the author, andof other attorneys and ombudsmanprogram representatives who assistnursing home residents.

The next question is “How?” Morespecifically, how can it be that somany nursing homes have been al-lowed to develop standard proceduresthat violate the Nursing Home ReformLaw?

Certainly part of the answer isconsumers’ unfamiliarity with nursinghomes, specifically with the protec-tions provided by the Reform Law.Another part of the answer is theunwillingness of residents and theirfamily members to make complaints tonursing homes, due to shyness and afear that a nursing home will retaliateagainst a resident in some way. To-gether, this shyness, lack of knowl-edge, and fear of retaliation allow somenursing homes to develop and followillegal procedures.

This guide recommends that resi-dents and their families develop ahealthy sense of entitlement to high-quality nursing home care. A nursinghome is paid thousands of dollars


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A Brief Introduction to

Medicare & MedicaidUnder Medicaid, the resident might

have to pay a monthly deductible,depending on the resident’s incomeand (in some cases) the income of theresident’s spouse. The name of thismonthly deductible varies from state tostate – for example, “patient payamount,” “share of cost,” or “Medicaidco-payment.” This guide will use theterm “patient pay amount.”

The Medicare program, by contrast,pays for nursing home care for a verylimited period of time. At most, Medi-care will pay for only 100 days ofnursing home care per benefit period.A new benefit period starts when theMedicare beneficiary for at least 60days has not received Medicare-cov-ered inpatient care in the nursinghome or in a hospital.

Of those 100 days, only the first 20days are paid in full. For days 21through 100, the beneficiary must paya daily co-payment of $119 (for 2006).Many Medicare Supplement insurancepolicies (commonly called “Medigap”policies) will cover this co-payment.

The Medicare program can pay fornursing home care only if the residentis entering the nursing home within30 days after a hospital stay of at leastthree nights. The need for nursinghome care must be related to themedical care received in the hospital.

Finally – and this is the biggestlimitation of all – Medicare paymentfor nursing home care is only availableif the resident requires skilled nursingservices or skilled rehabilitationservices on a daily or almost-dailybasis. The need for these skilledservices is discussed in considerabledetail during this guide’s discussionsof Problems #11 and #12.

Eligibility

Under both the Medicare and Medic-aid programs, an adult beneficiarygenerally must be at least 65 years old,or disabled. For Medicare coverage, thebeneficiary or beneficiary’s spouseusually must have made certain contri-butions through payroll deductions tothe Social Security program. Abeneficiary’s income and resources donot matter. In general, Medicare cover-age can be thought of as a healthinsurance policy purchased throughpremiums deducted from payrollchecks.

Under the Medicaid program, abeneficiary need not have contributedto the Social Security program, butmust have limited resources and in-come. Medicaid money comes fromboth federal and state governments; asa result, some Medicaid rules varyfrom state to state. The Medicaidprogram can be thought of as a safety-net health care program provided bythe federal and state governments forpersons who otherwise have inad-equate resources to pay medical bills.

Payment for Nursing HomeCare

The Medicare and Medicaid pro-grams differ in the way that they payfor nursing home care. Because theMedicaid program is (as describedabove) a safety-net source of paymentfor individuals who have no otheroptions, Medicaid will pay indefinitelyfor nursing home care, assuming thatthe resident remains financially eli-gible and continues to need nursinghome care.


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20 Problems—and How to Resolve Them

No Discrimination AgainstMedicaid-Eligible Residents

The Nursing Home Reform Lawprohibits discrimination based on aresident’s Medicaid eligibility. Anursing home “must establish andmaintain identical policies and prac-tices regarding transfer, discharge, andthe provision of services requiredunder the State [Medicaid] plan for allindividuals rrrrregaregaregaregaregardless odless odless odless odless of sourf sourf sourf sourf source oce oce oce oce offfffpaymentpaymentpaymentpaymentpayment.” (Section 483.12(c)(1) ofTitle 42 of the Code of Federal Regula-tions (emphasis added))

Nursing homes have a love-hatefinancial relationship with Medicaid.On one hand, approximately two-thirds of nursing home residents areMedicaid-eligible, and the Medicaidprogram accounts for approximatelyone-half of nursing homes’ total rev-enues. On the other hand, Medicaidrates tend to be the lowest – lowerthan private-pay rates, and much lower

than the rates paid by the Medicareprogram.

What To Do to FightMedicaid Discrimination

A Medicaid-eligible resident shouldresist any attempt by the nursing hometo give her second-class treatment. Sheshould emphasize the federal law(quoted above) that prohibits a nurs-ing home from discriminating againstMedicaid-eligible residents.

Nursing home staff members arequick to claim – generally withoutproof – that the nursing home losesmoney on each Medicaid-eligibleresident. A resident should avoidgetting drawn into a discussion of thenursing home’s financial status. Thereis no way to win the argument withouta detailed audit of the nursing homeand any related corporations.

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The Facts:

What You Hear: “Medicaid does not pay for theservice that you want.”

A Medicaid-eligible resident isentitled to the same level ofservice provided to any othernursing home resident.

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A better strategy is to assume thatthe nursing home’s finances are irrel-evant as, indeed, they are in thissituation. By seeking Medicaid certifi-cation, a nursing home promises thefederal and state governments that itwill provide Medicaid-eligible resi-dents with the care guaranteed by theNursing Home Reform Law. It iscompletely hypocritical for the nursinghome to accept Medicaid money for aresident’s care, and then turn around

and tell the resident that the care willbe inadequate because Medicaid pay-ment rates are low.

If a nursing home feels that Medic-aid rates truly are too low, then itshould cancel its Medicaid certifica-tion. Otherwise, the nursing homeshould provide Medicaid-eligibleresidents with the high-quality carerequired by the Nursing Home ReformLaw.

Problems 2–7: Providing Care

Care Planning#2What You Hear: “The nursing staff will determine

the care that you receive.”

The Facts: The resident and resident’sfamily have the right toparticipate in developing theresident’s care plan.

A nursing home must complete afull assessment of a resident’s condi-tion within 14 days after admission,and thereafter at least once every 12months and after a significantchange in the resident’s condition.More limited assessments must bedone at least once every threemonths. Assessments use a standard-ized document called the MinimumData Set (“MDS”).

Assessments are used for develop-ment of a comprehensive care plan,which must be prepared initiallywithin seven days after completionof the first full assessment. Every

three months, care plans must bereviewed and, if necessary, revised.Also, a care plan can be reviewedand revised at any time as necessary.

The care plan is prepared by ateam that includes the resident’sdoctor, a registered nurse, and otherappropriate nursing home staffmembers. Most importantly, the teamshould include the resident, theresident’s legal representative, and/ora member of the resident’s family.(See Section 483.20(k)(2) of Title 42of the Code of Federal Regulations)The nursing home staff is required toschedule care plan meetings at a timethat allows others to attend.

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What To Do To Ensure aGood Care Plan

The resident or family membershould attend all care plan meetings.(In this discussion, “family member”includes the resident’s legal repre-sentative.) If the nursing home failsto give notice of the meetings, theresident or family member shouldask when the meetings are beingheld, and request to be included.

Care planning should be takenseriously. An individualized careplan can be an invaluable tool toimprove the care provided to aresident.

Prior to a care plan meeting, theresident or family member shouldthink creatively about what theresident might want or appreciate.There is no reason to be timid. Anursing home is paid thousands ofdollars monthly to care for a resi-dent, and should be expected toprovide personalized care. Also, theReform Law requires that a nursinghome address a resident’s particularneeds and preferences. (See Problem#3 for more information.)

Some nursing homes treat careplans as a meaningless formality,resulting in care plans that arealmost identical from one resident tothe next. This is a great waste of thecare planning process. To be mean-ingful, a care plan truly shouldaddress individual needs and prefer-ences.

A resident or family member oftenfeels intimidated by care planningmeetings. “Who am I,” a family membermight think, “to tell a nurse what shouldbe done for my dad in a nursing home?”The sense of intimidation or shyness isonly intensified by the fact that, in acare plan meeting, a resident or familymember is likely to be outnumbered bynursing home staff members.

The resident or family member shouldresist any sense of intimidation. In mostcases, care planning decisions do notinvolve complicated medical issues.Instead, the optimal plan of care isrelatively obvious, and the issue iswhether or not the nursing home willcommit to providing that type of care.

So, the resident or family membershould not feel limited to a one-size-fits-all care plan presented by the nursinghome. The resident or family membershould think of what the resident needsor prefers, and ask that that service bewritten into the care plan.

Once the care plan is in place, theresident or family member can use it asneeded to assure that the resident re-ceives the best possible care. Assume forexample that the care plan calls for theresident to be walked around the blockdaily, but the nursing home fails to makea staff member available to assist theresident. In such a case, the resident orfamily member can point to the careplan as a requirement that the nursinghome provide the resident with thenecessary assistance.


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Honoring ResidentPreferences

What You Hear: “We don’t have enough staff toaccommodate individual schedules.You must wake up every morning atsix a.m.”

“Because of our scheduling, your bathalways will be at two p.m.”

“If you don’t like the meal entrée, youronly option is a peanut buttersandwich.”

The Facts: A nursing home must make reasonableadjustments to honor resident needsand preferences.

Freedom of choice is a vital part of aresident’s quality of life. A nursinghome should feel like a home ratherthan a health care assembly line.

Accordingly, the Nursing HomeReform Law requires a nursing hometo make reasonable adjustments tomeet resident needs and preferences.For example, a resident has the right to“[c]hoose activities, schedules, andhealth care consistent with his or herinterests, assessments, and plans ofcare.” (Section 483.15(b)(1) of Title42 of the Code of Federal Regulations)

The resident or resident’s represen-tative should not feel bound by anursing home’s standard operatingprocedures. It does not necessarilymatter that up to now the nursinghome never has allowed residents tosleep past six a.m., or has refused toserve Chinese food (for example). If arequested change in procedure isreasonable, the nursing home mustmake the change.

Of course, the $64 million questionis “What is reasonable?”, but thisquestion has no scientific answer.Because the definition of “reasonable”is not precise, residents and familymembers must be prepared to explainwhy the benefit from a proposedchange is worth whatever inconve-nience or expense may be involved.

More enlightened nursing homes arerealizing the benefits – both to resi-dents and to the nursing homes – ofgiving more control to residents and toindividual staff members. The goal isto change the culture of nursing homesso that care is more “resident cen-tered.” By implementing this “culturechange,” nursing homes across thecountry have improved resident careand customer satisfaction, and havedone so while making a profit. Themessage to nursing homes is: “Goodcare is good business.”

Helpful information about nursinghome culture change and resident-

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centered care is available from thePioneer Network,www.pioneeernetwork.net.

What To Do To HaveResident PreferencesHonored

As is true throughout the problemsdiscussed in this guide, a resident orresident’s representative should not behesitant about making a request to thenursing home. The nursing home ispaid to care for each resident, andthere are legal and moral reasons whyeach resident is entitled to be treatedas an individual human being.

Letting a resident sleep past six a.m.is easily supportable, because mostobservers would understand why anadult would not want to be awakenedevery day at the crack of dawn. Thenursing home could adjust its nurse

aide schedules or, if necessary, in-crease its nurse aide staffing. A late-waking resident could be served cerealand fruit rather than a hot breakfast.

In requesting a change, the residentor resident’s representative shouldexplain why the change would be goodfor the resident, and why the lawrequires such a change. A follow-upletter is helpful, as is a copy of thisguide. Oftentimes, the request for achange can be made in a care planningmeeting.

A resident council or family council(see Problem #18) can be a good placein which to organize support for achange in a nursing home’s proce-dures, and specifically for care that ismore resident centered. There isstrength in numbers: if an entire groupof residents and/or family members ispushing for a particular action, thenursing home is much more likely togive in.

Providing Necessary Services

What You Hear: “We don’t have enough staff. Youshould hire your own private-dutyaide.”

The Facts: A nursing home must provide allnecessary care.

The foundation of the NursingHome Reform Law is the previously-discussed requirement that eachnursing home provide the care that aresident needs to reach the highestpracticable level of functioning. (SeeSection 483.25 of Title 42 of the Codeof Federal Regulations) Obviously,that requirement is being violated ifthe nursing home is expecting orencouraging the hiring of private-dutyaides.

What To Do To EnsureNecessary Services AreProvided

The resident or family membershould make clear that it is the nurs-ing home’s legal responsibility toprovide necessary care, and that aclaimed shortage of staff or money isno excuse. The specific request shouldbe made in writing and, if necessary,the relevant law and/or a copy of this

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guide can be included as support. Theneed for the specific care might beshown by such documents as adoctor’s order, the assessment, and/orthe care plan.

If the nursing home continues torefuse to provide necessary care, a

complaint can be made to the stateinspection agency (see pages 5-6).Other options include raising the issueat a resident or family council meeting(pages 34-35), seeking assistance fromthe long-term care ombudsman pro-gram (page 5), or consulting with anattorney.

Limiting Use of PhysicalRestraints

What You Hear:

Physical restraints cannot be used forthe nursing home’s convenience or asa form of discipline.

“If we don’t tie your father into hischair he may fall or wander away fromthe nursing home. There’s just no waywe can always be watching him.”

The Facts:

A physical restraint is a device thatrestricts a resident’s freedom of move-ment. Perhaps the most commonphysical restraint is a vest or belt thatties the resident into his wheelchair orbed. A seat belt is a physical restraint,as is a chair that is angled back toprevent the resident from standing up.Bed rails are another common type ofphysical restraint.

Under the Nursing Home ReformLaw, a physical restraint can be uti-lized only to treat a resident’s medicalconditions or symptoms. Restraintsnever can be used for discipline or thenursing home’s convenience. (SeeSection 483.13(a) of Title 42 of theCode of Federal Regulations)

The use of physical restraints hasdropped drastically over the pastfifteen years and many nursing homesnow function completely restraint-free.

Part of this decline certainly is due tothe Reform Law’s restriction on theuse of physical restraints. Anotherpart of the decline is due to a growingmedical consensus that, instead ofprotecting residents, the use of re-straints is harmful, both physicallyand psychologically. By limiting aresident’s ability to move, restraintsmay cause a resident to become evermore unsteady, and more susceptibleto falls and injuries. Some residentsare asphyxiated and die after becomingtangled up in restraints. Psychologicalconsequences can be equally devastat-ing.

Like any type of medical interven-tion, physical restraints can be usedonly with the consent of the residentor – if the resident does not havemental capacity to consent – theresident’s representative. If the use ofrestraints is recommended by the

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resident’s doctor, the resident orresident’s representative has thechoice whether to accept or reject thatrecommendation, but that choiceshould be made with knowledge ofrestraints’ negative consequences. Thenursing home must suggest less re-strictive methods of managing theproblem for which restraints are beingrecommended.

What To Do To Limit Useof Restraints

If the nursing home recommendsrestraints to prevent the resident fromwandering, the resident’s representa-tive should just say no. First, ofcourse, the use of restraints requiresan order from the resident’s doctor,not just a recommendation from thenursing home. Also, in this case theuse of restraints evidently is beingproposed solely for the nursing home’sconvenience. Instead of imposingrestraints, the nursing home shouldexplore options such as increasingstaffing levels, installing an electronicmonitoring system, or having meaning-ful activities available to combatboredom and use up excess energy.

What if a resident’s doctor proposesa restraint to prevent the resident fromfalling – for example, a vest restraintproposed to prevent the resident fromslipping from his wheelchair? Al-though the restraint likely will bepresented as a means of preventingfalls and injuries, it is important tokeep in mind that the restraint insteadmay cause the resident to becomeweaker and more vulnerable to injury.In addition, the experience of beingtied to a chair may tend to make theresident agitated or depressed. In a

worst-case scenario, the residentbecomes so depressed that he is mute,withdrawn, and slumped over. Also,the use of restraints not infrequentlyleads to injury, as an agitated residentthrashes around in an attempt to freehimself. The worst-case scenario ofphysical injury is that the residentstrangles himself while trying to getloose.

Alternatives to restraints alwaysexist, and those alternatives can beeffective in protecting residents’ healthand safety. An alternative to bed rails,for example, is a bed that can belowered to just a few inches from thefloor, along with a padded mat placednext to the bed.

The ultimate decision on the use ofrestraints rests with the resident or(more likely) the resident’s represen-tative, and depends on the facts of theparticular situation. In making thedecision, the resident’s representativeshould make sure that the use ofrestraints is a last resort, and shouldbe aware of the considerable researchon how the use of restraints can belimited or virtually eliminated. See, forexample, the “Untie the Elderly”resources assembled by the nonprofitKendal Corporation, available on theInternet at www.ute.kendal.org.

If and when restraints are recom-mended, a resident’s representativemay want to discuss the issues in acare plan meeting. The care planningprocess is a good opportunity to dis-cuss the pros and cons of restraints,and to examine possible alternatives.


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Prohibiting InappropriateUse of Behavior-ModifyingMedication

The Facts:

What You Hear: “Your mother needs medication inorder to make her more manageable.”

Medication can be used to modifybehavior only when the behavior iscaused by a diagnosed illness, such asdepression, for which a specificmedication is needed for the resident’streatment.

Under the Reform Law, a behavior-modifying medication – also called a“psychoactive” medication – can be usedonly to treat a resident’s medical condi-tions or symptoms. Behavior-modifyingmedication cannot be used for disciplineor the nursing home’s convenience. (SeeSection 483.13(a) of Title 42 of theCode of Federal Regulations)

Like any other medication, behav-ior-modifying medication can beadministered only with the consent ofthe resident or – if the resident doesnot have mental capacity to consent –the resident’s representative. If behav-ior-modifying medication is recom-mended by the resident’s doctor, theresident or resident’s representativemust be told what condition or illnessis being treated, and then has thechoice whether to accept or reject therecommendation.

What To Do To Prevent theInappropriate Use ofBehavior-ModifyingMedication

It should be noted that behavior-modifying medications can and (as

appropriate) should be used to treatvarious psychological and emotionalconditions – schizophrenia, paranoiaor depression, for example. In decidingwhether use of a particular medicationis advisable, a good rule of thumb is toconsider whether the medication’s useis intended for the resident’s benefit totreat a specifically diagnosed healthproblem, or is meant for the nursinghome’s benefit to keep the residentmore manageable. If the benefit is tothe resident, then use of the medica-tion is likely to be advisable. If, on theother hand, use of the medicationwould be solely for the nursing home’sbenefit – for example, to keep theresident quiet and out of the way –then the medication likely should berefused.

The most important point withbehavior-modifying medications is theright of the resident or (more likely)the resident’s representative to decidewhether or not to use them. If aresident’s representative feels that theuse of such medication would beunwise, premature, or excessive, heshould feel free to say “no.”

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A care planning meeting is a goodforum in which to discuss issuesrelating to medication. A resident’srepresentative should not be coercedinto approving a behavior-modifyingmedication that does not benefit the

resident. If the use of such medicationis recommended by the doctor ornursing home staff members, therepresentative should ask the doctor orstaff members to propose alternatives.

Limiting Use of FeedingTubes

What You Hear: “We must insert a feeding tubeinto your father because he istaking too long to eat.”

The Facts: The use of a feeding tube shouldbe a last resort.

Under the Nursing Home ReformLaw, a nursing home must assist aresident in maintaining his ability toeat. Federal guidelines mention spe-cific steps that a nursing home mighttake, including:

• prompting the resident to eat;

• providing therapy to improveswallowing skills;

• providing foods in a more easily-eaten form (pureed in a blender,for example);

• providing assistive devices (suchas eating utensils with easy-to-grip handles); or

• simply feeding the resident byhand.

For a resident unable to take foodvia mouth, nutrition can be providedthrough a tube into the stomach. Anaso-gastric tube enters the stomachthrough the nose and the nasal pas-sages; a gastrostomy tube enters thestomach directly. The most commongastrostomy is a percutaneous endo-scopic gastrostomy, abbreviated PEG.

An endoscope gives the physician aclose-up view inside the body. A PEGtube is inserted through the stomachwall with the assistance of an endo-scope that has entered the stomachthrough the resident’s throat.

In a study comparing tube feedingwith careful hand feeding, it was foundthat the tube feeding did not increasethe length of survival of residents withdementia. In other research, tubefeeding was not shown to reduce therisk of aspiration (inhaling food intothe lungs). A further disadvantage oftube feeding is that it often is accompa-nied by restraint use, to prevent theresident from pulling out the tube. (See“Quality Matters” website maintainedby State of Texas, atmqa.dhs.state.tx.us/qmweb/TubeFeeding.htm)

Tube feeding in a nursing homeshould be done only if absolutelynecessary. The Reform Law’s regula-tions state: “A resident who has beenable to eat enough alone or with assis-tance is not fed by [a] tube unless theresident’s clinical condition demon-strates that use of a … tube was un-

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avoidable. (Section 483.25(g)(1) ofTitle 42 of the Code of Federal Regula-tions)

A resident’s slowness in eating isnot reason enough for insertion of afeeding tube. Neither is a nursinghome’s shortage of staff. It is thenursing home’s responsibility toprovide necessary assistance. If neces-sary, the nursing home should increaseits staffing or stagger its mealtimes.

On occasion, a nursing home willclaim that it must use tube feedingbecause otherwise it will be penalizedby government inspectors for theresident’s loss of weight. This claim iswrong because (as discussed above)adequate nutrition generally can beprovided even without tube feeding,and because inspectors will not penal-ize a nursing home for following atreatment choice made by a resident orresident’s representative.

What To Do To Limit Useof Feeding Tubes

Because the insertion of a feedingtube is a medical procedure, the inser-

tion cannot be performed without theconsent of the resident or – if theresident does not have the mentalcapacity to consent – the resident’srepresentative. Because lack of mentalcapacity is common among residentswho have difficulty eating, the follow-ing discussion presumes that thedecision belongs to the resident’srepresentative.

The representative should nothesitate to refuse feeding tube inser-tion whenever the resident is capableof eating with assistance. As discussedabove, the Reform Law requires thatfeeding tubes be used only as a lastresort. Indeed, eating is one of thebasic pleasures of life, and a resident’squality of life is likely to be diminishedif his meals are replaced by tube-delivered nutrients.

Once again, the care planningprocess is a good opportunity to ad-dress the issues. A resident’s represen-tative should work with the careplanning team to develop ways inwhich the resident can eat withoutneed of tube feeding.

Visitors

What You Hear: “Your children can visit you onlyduring visiting hours.”

The Facts: A resident’s family member canvisit at any time of the day ornight.

Under the Nursing Home ReformLaw, a nursing home should be ashomelike as possible. Consistent withthis philosophy, a nursing homecannot limit visiting hours for “imme-diate family or other relatives.” (Sec-tion 483.10(j)(1) of Title 42 of theCode of Federal Regulations) For alate-night visit, federal guidelines

suggest that the visit take place outsideof the resident’s room – in the nursinghome’s dining room, for example – toavoid disturbing other residents’ sleep.

There are good reasons why afamily member might want to visitoutside of “normal” visiting hours.The family member might not get off

#8NO


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work until visiting hours are over. Orthe resident may have a lifelong habitof staying up late.

In addition, an off-hours visit maygive a family member a better opportu-nity to check up on a nursing home. Avisit at midnight or five in the morning(for example) gives a visitor a goodlook at how the nursing home handlesresidents’ late-night needs.

Naturally, a visit can only be made ifthe resident wants the visitor to bethere. If a resident does not want tosee a visitor, the visitor has no right tovisit.

If a resident lacks mental capacity,decisions regarding visitors can bemade by the resident’s representative.

In most cases, the appropriateness of avisit is obvious, because the resident ofcourse wants visits from family mem-bers and friends.

What To Do To ChallengeVisiting Hour Restrictions

If a nursing home tells a familymember that visits can be made onlyduring official visiting hours, thefamily member should let the nursinghome know that the Reform Lawallows a family member to visit at anytime. To back up this argument, thefamily member should give the nursinghome a copy of the law (see Section483.10(j)(1) of Title 42 of the Code ofFederal Regulations) and/or this guide.

Problems 9–10: The AdmissionsProcess

“We can’t admit your mother unlessyou sign the admission agreement as a‘Responsible Party.’”

What You Hear:

The Facts: A nursing home cannot require anyonebut the resident to be financiallyresponsible for nursing home expenses.

The Nursing Home Reform Lawprohibits a nursing home from requir-ing a family member or friend tobecome financially liable for nursinghome expenses. (See Section483.12(d)(2) of Title 42 of the Code ofFederal Regulations) The signature ofa family member or friend can be

required only if the family member orfriend is signing on the resident’sbehalf. For example, it is appropriatefor a family member to sign an admis-sion agreement as the resident’s ap-pointed agent, because in that case thefinancial liability belongs solely to theresident.

‘Responsible Party’ Provisionsin Admission Agreements

#9

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This law makes good sense. Nursinghomes already are protected if a resi-dent runs out of money: the Medicaidprogram will pay for residents whootherwise are unable to pay. Also, it isunfair for a nursing home to force afamily member or friend to take on anunspecified and potentially hugeliability. Unlike a family member whoco-signs on a car loan of $10,000 (forexample), a family member whobecomes liable for nursing homeexpenses might become liable for$1,000 or $100,000, depending on thecircumstances.

Some nursing homes use “Respon-sible Party” signatures as a way oftricking a family member or friendinto becoming financially liable.Usually, the “Responsible Party”signature line does not explain what“Responsible Party” means. As aresult, family members are likely tobelieve that a “Responsible Party” ismerely a contact person.

A son or daughter might think: “Ishould be the ‘Responsible Party’ sothat the nursing home will let meknow what’s going on. After all, Icertainly don’t want to be irrespon-sible.”

What the son or daughter does notrealize is that a paragraph in themiddle of the admission agreementdefines “Responsible Party” as some-one who is 100 percent liable finan-cially for nursing home expenses.Because admission agreement packetscommonly are from 20 to 60 pages inlength, a family member almost neverwill find, read and understand the“Responsible Party” definition.

Generally the definition paragraphclaims, falsely, that the “ResponsibleParty” understands that she is notrequired to become financially liablefor nursing home expenses, but none-theless is volunteering to take on thatliability. This language represents astrategy by nursing homes to evade the

Reform Law. As discussed above, theReform Law prohibits a nursing homefrom requiring a family member orfriend to become financially liable fornursing home expenses. Nursinghomes claim that this prohibitiondoesn’t apply to “Responsible Party”provisions because (according to thenursing homes) the “ResponsibleParties” are vvvvvolunteeringolunteeringolunteeringolunteeringolunteering to becomefinancially liable.

The nursing homes’ arguments arewrong. For three reasons, “Respon-sible Party” provisions are illegal andunenforceable. The first reason is that“Responsible Party” provisions oftenare used to rrrrrequirequirequirequirequireeeee guarantees, indirect violation of the Reform Law. Inthe example at the beginning of thissection, the nursing home is requiringthe resident’s daughter to sign as“Responsible Party.” Like any otherfamily member or friend, the daughterhas no good reason to “volunteer” tobecome financially liable.

The second reason is that “Respon-sible Party” provisions are deceptive.Generally a family member or friendbelieves that a “Responsible Party” ismerely a contact person.

The third reason is that neither theresident nor the Responsible Partyreceives any benefit from the Respon-sible Party signature. Under generalcontract rules, a contract is enforce-able only if each party to the contractgets a benefit. When a family memberor friend signs as a “ResponsibleParty,” however, only the nursinghome benefits. From the point of viewof the resident and the “ResponsibleParty,” the only possible benefit is theresident’s admission, but the ReformLaw says that admission decisionscan’t be dependent upon a familymember or friend becoming financiallyliable.

Some nursing home admissionagreements claim that a “ResponsibleParty” is not guaranteeing the


21

resident’s financial obligations, butinstead is promising to take all neces-sary steps (including the filing of aMedicaid application, as appropriate)to arrange for payment of theresident’s nursing home bills. Inpractice, such language is used bynursing homes as an illegal financialguarantee. If the resident’s bill isunpaid at some point, the nursinghome likely will claim that the Re-sponsible Party is at fault, and will suethe Responsible Party for all moneyallegedly owed on the resident’s ac-count.

What To Do To Challenge‘Responsible Party’Provisions

• During AdmissionIf a family member or friend is

being asked to sign as a “ResponsibleParty,” she should not hesitate torefuse, assuming that the residentalready has moved physically into herroom in the nursing home. Once theresident physically has moved in, thereare only six reasons that can cause theresident’s eviction (see this guide’sdiscussion of Problem #19), and arefusal by a family member or friendto sign as “Responsible Party” is notone of those six reasons.

If the resident has not moved intothe nursing home yet, the situation ismore precarious. If the family memberor friend refuses to sign as “Respon-sible Party,” the nursing home possi-bly will refuse admission.

In this situation, this guide recom-mends that the family member orfriend consider refusing to sign as“Responsible Party,” with a polite butfirm explanation of why “ResponsibleParty” provisions are illegal andunenforceable. If the family member orfriend is the resident’s agent, thefamily member or friend can sign as anagent whose sole responsibility underthe admission agreement is to makepayments to the nursing home fromthe resident’s money.

The nursing home staff memberprobably will be too embarrassed orconfused to object, and will continuewith the resident’s admission. Ofcourse, there is a risk that the nursinghome will refuse admission, butavoiding that risk generally is notworth the signing of an illegal andunfair admission agreement. Also,refusing to sign is an important step ineducating nursing homes and theirstaff on the inappropriateness of“Responsible Party” provisions.

• During or After Resident’sStay at Nursing HomeWhat if a family member or friend

signed as a “Responsible Party,” andnow is being asked for payment by thenursing home? This guide recom-mends that the family member orfriend consult with a knowledgeableattorney about how the nursinghome’s demand can be countered. Asdiscussed above, “Responsible Party”provisions are generally held to beillegal and unenforceable, if the courtis aware of the Reform Law’s relevantprovisions.


22

Arbitration Agreements

What You Hear: “Please sign this arbitrationagreement. It’s no big deal.Arbitration allows disputes to beresolved quickly.”

The Facts: There is no good reason for a resi-dent (or resident’s representative) tosign an arbitration agreement at thetime of admission.

In an arbitration agreement, theparties agree that future disputesbetween the parties will not go tocourt, but instead will be handled by aprivate judge called an arbitrator.Sometimes arbitration agreementsapply to all disputes between theresident and the nursing home; othertimes, arbitration applies to claimsmade by the resident but not to claimsmade by the nursing home.

The arbitration process generally isnot a good option for residents. Thearbitration process often is moreexpensive than a state or federallawsuit, because the parties to thelawsuit are responsible for paying thearbitrator by the hour. Also, arbitra-tors often are less sympathetic toresidents’ concerns than are judges orjuries, and nursing homes commonlywrite arbitration agreements in a waythat favors the nursing home over theresident.

In any case, there is no need for aresident to agree to arbitration at thetime of admission, when neither theresident nor the nursing home has anyidea as to whether a dispute will arise,

or what such a dispute might involve.If for whatever reason arbitrationmight be the best option for a resident,the decision (for or against arbitra-tion) should be made after the disputehas arisen and the resident has con-sulted with a knowledgeable attorney.

What To Do To ChallengeArbitration Agreements

• During AdmissionIf at all possible, a resident or

resident’s representative should notsign an arbitration agreement. In mostcases, the nursing home will processthe admission even without a signedarbitration agreement. If a nursinghome employee raises a question, theresident or representative can explainthat there is no need to commit toarbitration at the time of admission.

As in the “Responsible Party”situation discussed in Problem #9, arefusal to sign is not risky at all whena resident already has been admitted.Refusal to sign an arbitration agree-ment is not one of the six reasons foreviction under the Reform Law. (SeeProblem #19)

#10NO


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If the resident has not been admittedalready, the resident or representativestill has some leverage. In some states,a nursing home can request but notdemand the signing of an arbitrationagreement. Also, if the resident iseligible for payment of his nursinghome care through Medicare orMedicaid, federal law prohibits thenursing home from asking any morefrom the resident than the payment ofany co-payment or deductibleauthorized by law. (See Sections483.12(d)(3) and 489.30 of Title 42 ofthe Code of Federal Regulations)Arguably, these laws prohibit anursing home from requiring aresident to sign an arbitrationagreement.

In situations in which the residenthas not moved into the nursing homeyet, this guide recommends that theresident or resident’s representativeconsider refusing to sign an arbitrationagreement. As is the case with “Re-sponsible Party” provisions, a politebut firm explanation is advisable. Thenursing home staff likely will be tooembarrassed or confused to object, andthe benefit of standing firm is gener-

ally worth the risk of being denied anursing home bed.

Of course, each situation is differ-ent, and residents and their represen-tatives can tolerate different levels ofrisk. Consultation with a knowledge-able attorney may well be appropriatein many instances.

• During or After Resident’sStay at Nursing Home, IfArbitration AgreementPreviously Was SignedA signed arbitration agreement may

or may not be binding, depending onstate law, the language of the arbitra-tion agreement, and the circumstancessurrounding the arbitrationagreement’s signing. A resident orresident’s representative should con-sult with a knowledgeable attorney.


24

Medicare is not a comprehensivehealth insurance program. One com-mon limitation is that Medicare pay-ment is often dependent upon a tie tohospital care. In the case of nursinghome care, Medicare payment is lim-ited to situations in which the residenthas entered the nursing home within30 days after a hospital stay of at leastthree nights.

At most, the Medicare program willpay in full for only 20 days of nursinghome care. For the next 80 days – days21 through 100 of the nursing home

stay – the resident is required to pay adaily co-payment of $119 (for 2006).This co-payment is covered by mostMedicare Supplement insurancepolicies, which are often called“Medigap” policies.

(These benefits renew themselvesin each benefit period. A new benefitperiod starts when a resident for atleast 60 days has not used Medicarepayment either for hospital care ornursing home care.)

Problems 11–14:Medicare–Related Issues

What You Hear: “We have determined that you aren’tentitled to Medicare payment for yournursing home care, because of yourlimited health care needs.”

The Facts: A resident can insist that the nursinghome bill Medicare – the nursinghome does not have the last word onwhether the resident’s conditionqualifies for Medicare payment. Oncethe nursing home is required to submitthe bill, the nursing home has anincentive to consider with favor theresident’s need for therapy or anyother qualifying skilled service.

Determining Eligibilityfor Medicare Payment

#11

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There is one additional limitation,and this is the limitation that keepsmost residents from qualifying forMedicare payment for nursing homecare. If a resident needs only “custo-dial care” – for example, medicationadministration – the Medicare pro-gram will not pay. Payment underMedicare is possible only if the resi-dent needs skilled nursing services orskilled rehabilitation services. Theseskilled services generally must beprovided every day, although an excep-tion can allow for Medicare paymenteven if rehabilitation services areprovided only five days per week.

“Skilled” services require the activeand direct participation of a nurse orlicensed therapist. It is not enoughthat a nurse is overseeing theresident’s care.

If a resident is a Medicare benefi-ciary, a nursing home is required togive the resident written notice when-ever the nursing home first decidesthat it will not bill the Medicareprogram for the resident’s care. Thus,this notice may be given when theresident first is admitted or may begiven later, after the Medicare programhas paid for nursing home care for acertain period of time.

The important fact is that theresident is not bound by a nursinghome’s decision that it will not bill theMedicare program. The resident caninsist that the nursing home submit abill to the Medicare program. If thenursing home properly has givenwritten notice, the resident can returnthe notice to the nursing home afterchecking a box that requests that thenursing home submit a bill to theMedicare program for the resident’scare. If the nursing home has failed togive the required notice, the residentcan submit his own written requestthat the nursing home submit a bill.

While the Medicare program isconsidering a submitted bill, thenursing home may not charge theresident for any amount that theMedicare program subsequently maypay. If the Medicare program refusesto pay, the resident can make anappeal, although the resident will befinancially liable for the bill while theappeal is pending. If the resident alsowere eligible for Medicaid, of course,the nursing home would be prohibitedfrom charging anything more than theMedicaid monthly patient pay amount(see page 8).

What To Do To ObtainMedicare Eligibility

These issues most commonly arisein relation to therapy. Assume that aresident is recovering from a brokenhip. He will want therapy in order toregain the ability to walk. In suchcases, timely receipt of therapy iscrucial. If therapy is not provided, oris not provided for an adequate periodof time, the resident may never walkagain.

Counterbalancing the resident’sneed for therapy is the Medicareprogram’s frequent reluctance to pay.Nursing homes receive pressure fromthe Medicare program to not submitbills, or to cease billing for residentswhose nursing home care previouslyhas been covered by the Medicareprogram. Nursing homes often passthis pressure on to doctors and thera-pists, encouraging them to discontinuetherapy services.

In combatting this pressure, theresident must do battle on two fronts –the resident both must compel thenursing home to submit a bill to theMedicare program, and convince thedoctor (or therapist) to continueordering (or recommending) therapyservices. Battle on the first front is


26

relatively easy – as explained in thisguide, the resident can require thenursing home to submit a bill to theMedicare program.

But, of course, submitting a bill willprove futile unless the resident actu-ally receives the therapy services thatwould qualify him for Medicare pay-ment for nursing home care. Theresident (or resident’s representative)should encourage the doctor or thera-pist to initiate or continue appropriatetherapy services. In many instances,the doctor or therapist may be just asfrustrated as the resident by the pres-sure that discourages necessarytherapy. The resident or resident’srepresentative should encourage thedoctor or therapist to focus on medicalconsiderations and leave the Medicare-related issues to the resident orresident’s representative. In certain

cases, the resident may want to switchto a different doctor, if the seconddoctor is more aware of the resident’sneed for therapy.

If a doctor orders therapy, thenursing home must provide it. Anursing home always must followdoctors’ orders (assuming that theresident or resident’s representativeconsents).

The two advocacy steps – relating tothe nursing home, and to the doctorand/or therapist – reinforce eachother. If the nursing home is forced tosubmit a bill, the nursing home has anincentive to make sure that the resi-dent receives services that justifyMedicare payment. Similarly, if thedoctor or therapist is persuaded toprovide therapy services, then thedoctor and the therapist have a finan-cial interest in ensuring that theMedicare program will pay for thoseservices.


27

A nursing home sometimes moves tostop therapy prematurely. The nursinghome commonly claims that the resi-dent has “plateaued” – in other words,that he is no longer making progress.

Most likely, the real reason for thetermination is part medical and partfinancial. Possibly, the resident’sprogress has slowed or temporarilystopped. Because the nursing homehas been pressured by the Medicareprogram, the nursing home is tooquick to terminate therapy, even whenthe resident still can benefit.

A resident or resident’s representa-tive should keep in mind that recoveryfrom an illness or injury is not alwayssteady. If, for example, a resident isrecovering from a broken hip, it isunderstandable that he would havegood days and bad days. If he were towalk 15 feet unassisted on Tuesday,therapy likely still would be advisableif on Wednesday he were still only ableto walk 15 feet, or even just 10 feet.

Under the Nursing Home ReformLaw, as discussed in this guide’sIntroduction, a nursing home residentmust be provided with medicallynecessary care. Thus, therapy should

Continuation of TherapyWhen Resident Is Not

Making Measurable Progress

What You Hear: “We must discontinue therapy servicesbecause you aren’t making progress.”

The Facts: Therapy may be appropriate even if theresident is not making measurableprogress. Accordingly, the Medicareprogram can pay for therapy serviceseven if progress for the time being is notbeing made.

be provided if the therapy improvesthe resident’s condition, maintains theresident’s condition, or slows thedecline of the resident’s condition. (SeeSection 483.25(a) of Title 42 of theCode of Federal Regulations)

If the termination of therapy isblamed on Medicare rules, there aretwo rebuttal points to be made. First,as explained in this guide’s discussionof Problem #1, a nursing home mustprovide the same high quality of carewhether the resident’s care is fundedthrough private funds, Medicare orMedicaid.

Second, the Medicare program canpay for therapy services even if, for thetime being, no progress is being made.A relevant federal regulation states:

The restoration potential of apatient is not the deciding factorin determining whether skilledservices are needed. Even if fullrecovery or medical improve-ment is not possible, a patientmay need skilled services toprevent further deterioration orpreserve current capabilities.(Section 409.32(c) of Title 42 ofthe Code of Federal Regulations)

#12

NO


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What To Do When ToldThat The Resident Has‘Plateaued’

The resident or resident’s represen-tative should follow the same generalstrategy recommended for Problem#11. Again, there are two basic advo-cacy steps: forcing the nursing hometo submit a bill to the Medicare pro-gram, and convincing the doctor or

therapist that therapy is the rightthing to do.

The important point is that a lack ofprogress is not an automatic reason forterminating therapy. If therapy iscompletely futile then, yes, therapyshould not be provided. But if therapycan improve or maintain a resident’scondition, then it should be provided.This is good medicine, and consistentwith relevant Medicare rules.

Continuation of TherapyAfter Medicare PaymentHas Ended

What You Hear: “We can’t give you therapy services becauseyour Medicare payment has expired, andMedicaid doesn’t pay for therapy.”

The Facts: Therapy should be provided whenever medi-cally appropriate, regardless of the resident’ssource of payment.

Therapy should not be discontinuedjust because a resident has reached theend of his 100 days of Medicare cover-age. The two reasons have been dis-cussed already in this guide. A resi-dent is entitled to receive medicallynecessary services. Also, a resident’sservices shouldn’t depend on hissource of payment. Specifically, aMedicaid-eligible resident is entitled tothe same level of service provided toother residents. (See Introduction andProblem #1 for discussion of these twoissues.)

Accordingly, federal guidelinesexplicitly require that therapy servicesbe provided even if the nursing homeis entitled to no more than the typicalMedicaid rate. (See Guideline toSection 483.45(a) of Title 42 of theCode of Federal Regulations, AppendixPP to State Operations Manual ofCenters for Medicare and MedicaidServices) In some states, in addition,a nursing home may be entitled toextra Medicaid payment for therapyservices provided to residents.

#13

NO


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Continued Stay inMedicare-Certified BedEven After End of MedicarePayment

What You Hear: “Because you are no longer eligiblefor Medicare payment, you mustleave this Medicare-certified bed.”

The Facts: A Medicare-certified bed can beoccupied by a resident whose careis not being reimbursed through theMedicare program.

What To Do To ContinueTherapy

The resident or resident’s represen-tative should explain the relevant rulesto the nursing home, the doctor, andthe therapist. The most importantperson to convince is the doctor, sincethe nursing home and the therapist are

Understanding this issue requiresan explanation of how nursing homebeds are certified by the Medicareprogram. A nursing home may seekMedicare certification for all or someof its beds. A bed must be Medicare-certified for the nursing home to billMedicare for care provided to theresident assigned to that bed.

Medicare certification does notnotnotnotnotmean that the bed is reserved exclu-sively for residents whose care is beingpaid for by the Medicare program. AMedicare-certified bed can be occupiedby a resident who is paying privately,

or through private insurance. A Medi-care-certified bed in addition can beoccupied by a resident who is payingthrough the Medicaid program, assum-ing that the bed also is certified forMedicaid payment.

Because the Medicare programgenerally pays more per day than anyother source of payment, nursinghomes prefer to use Medicare-certifiedbeds for residents whose care is beingreimbursed through Medicare. Once aresident is no longer eligible for Medi-care payment of his nursing homeexpenses (see this guide’s discussion of

required to comply with a doctor’sorders. The focus should be placed onthe resident’s need for therapy, ratherthan on the nursing home’s finances.In limited cases, the resident maybenefit by switching from one doctorto another, if the second doctor is moreconscious of the resident’s continuedneed for therapy.

#14

NO


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Problems #11 and #12 for more de-tails), the nursing home has an incen-tive to move that resident out of theMedicare-certified bed, so that thenursing home can use the bed for aresident who is eligible for Medicarepayment.

Although shuttling residents aroundin this fashion may make financialsense for a nursing home, it can bedetrimental to a resident. The residentmay have grown accustomed to hisoriginal room. Also, because Medicarepayment is available only to thoseresidents who need skilled nursing orrehabilitation services, the nursingcare provided in the Medicare-certifiedbeds may be generally better than thenursing care provided in the rest of thenursing home.

To protect residents, the NursingHome Reform Law gives a resident theright to veto a transfer within thenursing home if the purpose of thetransfer is to move the resident out ofa Medicare-certified bed. (See Section483.10(o) of Title 42 of the Code ofFederal Regulations) This rightprovides a counterbalance to theMedicare program’s transfer-encourag-ing financial incentives.

What To Do To Stay InMedicare-Certified Bed

If a resident does not want to leave aMedicare-certified bed, he should nothesitate to assert his veto right.

If the resident will be relying onMedicaid payment, he should be surethat the bed is Medicaid-certified. Insome states, Medicaid certification isan all-or-nothing proposition: if thenursing home has Medicaid certifica-tion, every single bed is Medicaid-certified. Other states allow nursinghomes to certify only a portion of theirbeds for Medicaid. General informa-tion about a nursing home’s certifica-tion is available at the federalgovernment’s Nursing Home Comparewebsite, www.medicare.gov/NHCompare/home.asp. More detailedinformation about the certification ofparticular beds should be available atthe state agency that inspects, certifiesand licenses nursing homes (often partof the state’s Health Department). Thenursing home may or may not be ableto provide accurate information on theMedicaid certification of particularbeds.

When a resident refuses a transferfrom a Medicare-certified bed, thenursing home often complains thatsuch transfers ultimately will cause allof the nursing home’s Medicare-certified beds to be occupied by resi-dents who are ineligible for Medicarepayment. In response, the residentshould point out that the nursinghome always is free to certify addi-tional beds for Medicare payment.There is nothing preventing anynursing home from seeking Medicarecertification for every single one of itsbeds.


31

Medicaid Certification forOnly Certain Beds WithinNursing Home

What You Hear: “Even though you’re now financiallyeligible for Medicaid payment, wedon’t have an available Medicaid bedfor you.”

The Facts: A nursing home can certifyadditional beds for Medicaidpayment.

As mentioned in the discussion ofthe previous problem, some statesallow a nursing home to certify only apercentage of its beds for Medicaidpayment. Such partial certificationcreates a particular problem when aresident initially pays privately for hernursing home care, but later becomeseligible for Medicaid payment afterspending her savings down toMedicaid limits.

If at that time the resident is not ina Medicaid-certified bed, and thenursing home does not have an avail-able Medicaid-certified bed, the nurs-ing home likely will state that itcannot accept Medicaid payment onthe resident’s behalf. This may lead tononpayment and then eviction, be-cause the resident will have spentdown her savings and will be unable topay the private-pay rate.

It is important that a resident orresident’s representative understandsthat the nursing home in this situationhas the option of certifying additionalbeds for Medicaid payment. Nursinghome employees often give the impres-sion that partial Medicaid certificationis forced upon the nursing home, but

that is not true. Even in the states thatallow partial certification, a nursinghome is free to seek certification forevery bed.

What To Do To ObtainMedicaid-Certified Bed

Resolution of this problem requiresearly action.

Ideally, information regarding anursing home’s Medicaid certificationshould be obtained prior to admission,as part of the process of choosing thenursing home. As soon as possible, theresident (or resident’s representative)should determine whether the nursinghome accepts Medicaid payment and,if the nursing home accepts Medicaid,whether the Medicaid certification isfull or partial. The resident afteradmission should determine whetherher current bed is Medicaid-certified.

As mentioned in the discussion ofthe preceding problem, general infor-mation about a nursing home’s certifi-cation is available on the federalgovernment’s Nursing Home Comparewebsite. Information about the certifi-cation of a particular bed should be

#15

NO


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Readmission from Hospital

What You Hear: “We don’t have to readmit you from thehospital because your bed-hold periodhas expired.”

The Facts: A Medicaid-eligible resident has theright to be readmitted to the nextavailable Medicaid-certified bed,regardless of the length of the hospitalstay.

When a nursing home resident ishospitalized, the nursing home gener-ally is required by state law to hold thebed for a week or two, if the residentwants the bed to be held. If the resi-dent is paying privately, she will beresponsible for paying for the bedhold. If the resident is Medicaid-eligible, the Medicaid program gener-ally will pay for the bed hold.

In addition, the Nursing HomeReform Law establishes a readmissionright for Medicaid-eligible residents.Even if a bed hold period is exceeded

(or if state law does not require a bedhold), a nursing home must admit aMedicaid-eligible resident to the nextavailable Medicaid-certified bed, nomatter how long the hospitalizationhas lasted. (See Section 483.12(b) ofTitle 42 of the Code of Federal Regula-tions) A bed is not considered avail-able if the hospitalized resident andthe proposed roommate are not of thesame gender.

This provision of the Reform Law isa reasonable compromise to protect aresident from being moved unnecessar-

available from the state’s inspectionagency. Information also can be ob-tained from the nursing home; if adispute arises, however, it is best toexamine the government records tocross-check information provided bythe nursing home.

If a resident foresees herself in thesituation discussed earlier in thisproblem – being financially eligible forMedicaid, but in a bed not certified forMedicaid – she as soon as possibleshould request that the nursing homeseek certification for her bed from theappropriate state agency. Ideally, thisrequest should be made from four tosix months before the residentbecomes financially eligible forMedicaid.

In making this request, the residentputs the nursing home on notice thatshe will need to use Medicaid pay-ment. In most cases, in order to avoiddisputes, the nursing home will takethe necessary steps to have theresident’s bed certified for Medicaidpayment. If the nursing home fails toobtain a Medicaid-certified bed for theresident, and instead tries to evict theresident for nonpayment when theresident becomes Medicaid-eligiblefinancially, the resident in an evictionhearing will have a good argument thatthe nonpayment is the nursing home’sfault.

Eviction procedures and appeals arediscussed in Problem #19.

#16NO


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ily to a new nursing home. Because theMedicaid program generally pays arelatively low rate, Medicaid-eligibleresidents are often seen as less desir-able by finance-conscious nursinghomes. For this reason, Medicaid-eligible residents can benefit fromspecial protections.

Nonetheless, it doesn’t make sensefor the Medicaid program to pay tohold a vacant bed for a long period oftime. It does make sense, however, fora nursing home to be required toreadmit a Medicaid-eligible resident tothe next available Medicaid-certifiedbed. Since the nursing home has avacancy anyway, the resident’s right tobe readmitted should not inconve-nience the nursing home in any signifi-cant way.

What To Do To BeReadmitted from Hospital

A Medicaid-eligible resident shouldnot hesitate to assert her right to bereadmitted to the next available Medic-aid-certified bed. The resident shouldbe persistent if the nursing homeclaims that it does not have a vacancy.If the nursing home is led to believethat the resident will keep checkingand checking for the next availablebed, the nursing home will be morelikely to accept the inevitable andreadmit the resident.

If the nursing home indicates that ithas no intention of readmitting theresident, she should make a complaintto the state inspection agency (seepages 5-6) and/or consult with aknowledgeable attorney.

Payment

What You Hear: “You must pay any amount set by thenursing home for extra charges.”

The Facts: A nursing home can assess extracharges only if those charges wereauthorized in the admissionagreement.

Some nursing homes charge sepa-rately for various items and services –for example, catheter supplies, diapersand other incontinence products, andwound dressings. These separatecharges are inappropriate if theresident’s care is covered by Medicareor Medicaid, because the nursing homemust accept payment from Medicare orMedicaid as payment in full. Theresident’s only financial obligation isto pay the deductibles and co-paymentsauthorized by law.

Such separate charges also areinappropriate if they were not autho-rized in the admission agreement,whether or not the resident’s care iscovered by Medicare or Medicaid.Federal regulations to the NursingHome Reform Law require that anursing home during the admissionsprocess notify residents of any extracharges. (See Section 483.10(b)(6) ofTitle 42 of the Code of Federal Regula-tions) Also, standard principles ofcontract law require a nursing home to

#17NO


34

limit its charges to the amount autho-rized by the admission agreement.

What To Do To ChallengeExtra Charges

Assume that a resident is not eligiblefor Medicare or Medicaid payment, andhis admission agreement lists amonthly rate of $4,000, with no men-tion of additional charges. This month,however, he has been charged a total of$4,211.50 – the $4,000 monthly rateplus $211.50 for various items andservices.

The resident has at least two choicesand, as is often true, the riskier choicehas the largest potential upside. Theriskier choice is to refuse to pay theunauthorized extra charges, with awritten explanation to the nursinghome that the admission agreementobligates the resident to pay only$4,000 monthly. The nursing homelikely will accept the $4,000 grudginglyand will take no action against theresident. If, however, the nursing hometries to evict the resident for nonpay-ment, the resident can claim withjustification that he has paid in full

under the terms of the admissionagreement. The resident likely willprevail in an eviction hearing al-though, of course, there can be noguarantees in any legal proceeding.(See Problem #19 for discussion ofevictions and eviction procedures.)

The less risky course of action is tomake a complaint to the state agencythat inspects and licenses nursinghomes. Ideally, the state agency willorder the nursing home to stop assess-ing extra charges against the resident.One downside of this approach is thatthese agencies are often hesitant torule on financial matters. Their exper-tise is in health care, and a complaintregarding billing likely will receive thelowest priority.

The advantage of the pay-only-what-is-owed strategy is that it gives theresident some power over the situa-tion. If the resident pays only $4,000,than the nursing home has the burdento change the status quo. On the otherhand, if the resident pays the $4,000plus the extra charges, then the burdenremains on the resident to somehowchange the nursing home’s practices.

Resident and Family Councils

What You Hear: “We have no available space in whichresidents or family members couldmeet.”

The Facts: A nursing home must provide a privatemeeting space for a resident council orfamily council.

Under the Nursing Home ReformLaw, residents and residents’ familymembers have the right to form resi-dent councils and family councils,respectively. If such a group forms, anursing home is obligated to providethe group with a private meeting

space, and must designate an employeeas a liaison with the group. A nursinghome must seriously consider, andrespond to, all complaints or recom-mendations made by a resident orfamily council. (See Section 483.15(c)of Title 42 of the Code of FederalRegulations)

#18NO


35

Problems 19–20: Evictions

Eviction Threatened ForBeing ‘Difficult’

What You Hear: “You must leave the nursing homebecause you are a difficultresident.”

The Facts:

Under the Nursing Home ReformLaw, there are only six legitimatereasons for eviction:

1. The resident has failed to pay.2. The resident no longer needs nurs-

ing home care.3. The resident’s needs cannot be met

in a nursing home.4. The resident’s presence in the

nursing home endangers others’safety.

5. The resident’s presence in thenursing home endangers others’health.

6. The nursing home is going out ofbusiness.(See Section 483.12(a) of Title 42 of

the Code of Federal Regulations)

What To Do To OrganizeResident and FamilyCouncils

It’s a cliché but it’s true – there isstrength in numbers. Resident andfamily councils can be a powerfulmechanism for making positivechanges in a nursing home. A residentor family council is a good forum in

which to raise any of the issues dis-cussed in this guide, or any other issuerelated to the nursing home.

Residents and family membersshould do their best to make sure thata council does not become merely ashow-and-tell session for the nursinghome. Nursing home employees can beguests at a council meeting, but theyshould not run or control a meeting.

Thus, being “difficult” is not ajustification for eviction. The impor-tant thing to remember is that nursinghomes exist in order to care for peoplewith physical and mental problems.Most nursing home residents are“difficult” in one way or another.

Some nursing homes attempt toevict a resident because (for example)the resident tends to wander aimlessly,or has severe dementia and is makinghowling sounds during the night.These evictions almost always areimproper, because such residentsbelong in a nursing home. The factthat they are arguably “difficult” doesnot mean that they should be evicted.In most cases, it is pointless to evict aresident from one nursing home

#19

Eviction is allowed only for sixlimited reasons.

NO


36

merely so he can be transferred toanother nursing home.

A nursing home may cite reason #3,arguing that it cannot meet the needsof the supposedly “difficult” resident.This argument is wrong, becausereason #3 only applies if the resident’sneeds cannot be met in a nursing homegenerally – for example, if the residentneeds placement in a subacute unit ora locked psychiatric ward. The federalgovernment has stated that a nursinghome cannot use its own inadequatecare as a justification for evictionunder reason #3. (See Federal Register,vol. 56, page 48,839 (Sept. 26, 1991))

What To Do To ChallengeEviction for Being‘Difficult’

To evict a resident, a nursing homemust give a written notice that liststhe reason for the eviction, along withthe facts that allegedly support theeviction. The notice must list thetelephone number for the state agencythat inspects and licenses nursinghomes, along with instructions onhow the resident can request an appealfrom the agency. Generally the noticemust be given at least 30 days prior tothe date of the proposed eviction.

Upon receiving the notice, theresident or resident’s representativeshould request an appeal from thestate agency. In response, the state willschedule an appeal hearing.

The hearing generally will be held atthe nursing home by a state hearingofficer. It is preferable but not essentialthat the resident be represented by alawyer, ombudsman program represen-tative, or other advocate. The hearingstend to be relatively informal.

At a hearing, the resident and hisfamily should emphasize that theresident is appropriate for a nursinghome. In most cases, it can be shownthat the nursing home did not doadequate care planning, and insteadtried to evict the resident when adifficulty presented itself.

Oftentimes the nursing home pro-poses to transfer the resident to an-other nursing home. This is goodevidence that the resident is appropri-ate for nursing home care. After all, ifthe second nursing home can provideadequate and appropriate care, thereprobably is no reason why a similarlevel could not be provided by theresident’s current nursing home.

The resident should resist theinclination to give up. Sometimes aresident will think, “If the nursinghome doesn’t want me, then I’m betteroff going elsewhere.” The reality is,however, that the second nursing homemay be no better – or may be worse –than the first one. A resident whofights an eviction, wins and stays mayfind himself receiving more respect andbetter care from the nursing home.


37

Eviction Threatened forRefusing Medical Treatment

What You Hear: “You must leave the nursinghome because you are refusingmedical treatment.”

The Facts: Refusal of treatment, by itself, isnot an allowable reason foreviction.

A nursing home resident, like anyother individual, has a constitutionaland common-law right to refuse medi-cal treatment. For that reason, aneviction cannot be based solely on aresident’s refusal of treatment.

As discussed above, eviction is onlyallowed for one of the six specifiedreasons. Federal nursing home guide-lines state: “Refusal of treatmentwould not constitute grounds fortransfer, unless the [nursing home] isunable to meet the needs of the resi-dent or protect the health and safety ofothers.” (Surveyor’s Guideline toSection 483.12(a)(2) of Title 42 of theCode of Federal Regulations, AppendixPP to CMS State Operations Manual)

On occasion, a resident refusestreatment because he is terminally illand does not want to take steps toextend his life. This is his right, andhe should not be forced to move fromthe nursing home for this reason.

A small number of nursing homes,mostly affiliated with religious de-nominations, have policies that requireprovision of life-sustaining treatmentunder all circumstances. A nursinghome can follow such a policy only ifallowed by state law, and only if thepolicy is described in considerabledetail during a resident’s admission.

What To Do To ChallengeEviction for RefusingMedical Treatment

Following the procedures discussedabove in Problem #19, a resident orresident’s representative should appealan eviction based on refusal of treat-ment. At the hearing, the resident orrepresentative should be prepared todiscuss how the refusal of treatmentdoes not endanger others, and why theresident does not need a higher level ofcare (such as a hospital or subacuteunit).

#20

NO


38

Concluding ThoughtsThese 20 problems are unfortu-

nately common. But it doesn’t haveto be that way. These problems arereduced significantly when residentsand family members are more knowl-edgeable about the Nursing HomeReform Law’s protections, and morewilling to be the squeaky wheelsthat get the grease.

This guide’s advice to residentsand family members is: “Speak up.”You may feel embarrassed or awk-

ward at first, but don’t let that stopyou. It is the nursing home thatshould be embarrassed when it isviolating the Reform Law.

Nursing home residents deservehigh-quality nursing home care. Forthis high-quality care to becomereality, residents and family mem-bers must speak up and be heard.

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