What are Your Legal Rights at a Nursing Facility?

In this episode, Lisa Shoalmire and John Ross discuss the Nursing Home Reform Act and several common issues often faced at a nursing facility,  and  your legal rights when you are faced with those issues.

Episode Transcript
John
Welcome to Aging Insight. I'm your host, John Ross, here with my partner and co-host, Lisa Shoalmire. And you're watching the best place to get information related to aging in place, aging on your own terms, navigating through those remaining years. We know that you can do it on your own terms, that you can accomplish the goals that you want to accomplish. But the key to getting there and getting through this easily and peacefully is with knowledge. And that's what we're here to do, is to provide you that knowledge. One of the things we always talk about here on the show is that most people, when we talk to 'em, they want to avoid nursing home care. Well, that's a great goal, and it's a goal that many of us share. But unfortunately for some folks, that's either the best alternative based on their medical needs, or it's the only alternative based on the lack of other care resources that are available. And so when somebody is navigating through that nursing home stay, a lot of times problems come around.
Lisa
Yeah. Well, that's right, John. Sometimes when... We utilize that nursing home care because it's just necessary. There's a lot of things that patients and their families sometimes become dissatisfied about, whether that has to do with issues with the care or if it just has to do with issues with the paperwork, and business practices, and insurance, and how all of that works. But long-term care at a nursing facility or a nursing home is fraught with pitfalls that really... There's a bunch of law out there that addresses some of the most common pitfalls. And there's also just some ways to deal with those to where your loved one gets the care they need, and you are satisfied that you understand what services you're getting, and how it is being paid for.
John
That's right. So when we start talking about nursing home care, the first thing is to remember is that... Used to, there were quite a bit of problems with nursing homes and they've certainly gotten a lot better. And part of the reason that many of them have gotten a lot better is because of something called the Nursing Home Reform Act. The Nursing Home Reform Act came into play several years ago, and you can really boil down the entire law into one general concept. And that is that a person who is in a nursing home that their space should be as close to a home-like environment as possible. And that's really the goal of the Nursing Home Reform Act, was to make nursing homes very similar to a home environment. And with that, comes a number of rights for the patient and a number of responsibilities to the facility. And you can use this Nursing Home Reform Act and its provisions to address a number of the most common complaints that we see as elder law attorneys.
Lisa
Yeah, and that is nice as a family if you're aware of the Nursing Home Reform Act. I can assure you that the administrator and management staff at the facility that you might be visiting, or maybe you have a resident residing in, they're aware of the law as well. So, like John said a moment ago, the idea was to make it as homelike as possible, and that might not mean the exact environment that would be home, but it does mean the types of rights and independence that one has at home. For instance, maybe you were not a very early riser. Well, if you tend to sleep in and you're someone that eventually needs nursing home care, if you are a resident at a nursing home, you can still sleep in. And we've had complaints where a nursing facility said, "Well, no, everybody has to be up by a certain time because we have health aides that are going to assist with hygiene needs or meal time by, say, 7:30 AM". And you're told that you have to be awake and prepared to participate in those services by 7:30. Well, if you were at home, would you have to get up by 7:30 in the morning? And the answer is no. And that same answer is true at a nursing facility.
Lisa
Just because the facility may streamline some services at certain times a day, does not mean that you are required or forced to participate in those services at that time. If it's more comfortable for you to have those services at a later point during the day, then communication with the nursing home management, perhaps dropping names, such as the Nursing Home Reform Act, and you should be able to get an accommodation to meet your schedule.
John
That's right. And so when we're talking about whether it's what time you get up, or whether or not you want to participate in certain activities, the Nursing Home Reform Act is very clear that the resident has the right to choose their schedule, their choice of activities, and their healthcare. And this is another one of these common problems that pops up occasionally, is where a facility says, "Well, we've just determined what medical needs are appropriate, so you're just gonna do the things that we tell you to do. We're gonna assign you physical therapy, we're gonna assign you medical treatment based on what the facility thinks." And the Nursing Home Reform Act actually addresses this as well. There's a specific provision in there that says that, first of all, before a plan of treatment is put together, there's supposed to be a group of individuals, of doctors, nurses, psychiatrists, if necessary, are supposed to all get together and put together a plan. And when this plan is being developed, the family member, the resident or their representative is supposed to be a part of this, to develop this plan based on what the resident needs, but also what the resident wants.
John
And so, again, the law is very specific that the resident has a right to be involved in their choice of treatments while they're at that facility. And if that care plan changes along the way, that resident also has the right to know about any changes and can agree or refuse those treatments. So, again, if you keep thinking back on it, if you could do it at home, you should be able to do it at the nursing home. That's a good rule of thumb there.
Lisa
What I like, John, about talking about a care plan and putting that together is the resident, and if the resident is not competent, then that power of attorney or that closest family member who's representing that resident, they have the right to participate in those care planning meetings. And you can also bring others that you feel like will be of assistance to the family in evaluating that plan. If you have a daughter that's an RN, maybe that's someone you'd want to bring along to that meeting. So it's all about a collaborative effort, and you are to be given advanced notice of that meeting so that you can make it an opportunity to attend.
John
That's right. So, we're gonna take a quick break and when we come back, we're gonna talk about a few more common problems that arise and how to address 'em. So, stick around.
Lisa
Welcome back to Aging Insight. I'm Lisa Shoalmire and I'm here with John Ross and we are elder law attorneys based here in the Ark-La-Tex area. Now, today we're talking about... We're troubleshooting today, I guess you'd say. We're talking about how if you're at a nursing facility, if there are issues at that facility, what are those common issues and what are your legal rights when you are faced with those issues at a nursing facility? And we've talked how the Nursing Home Reform Act has made it so that the facilities are supposed to honor the choices of their patients as if their patients were at home. When do you eat breakfast? When do you get up? What if you don't wanna do something that day? That is the idea behind the Nursing Home Reform Act. And we're just picking out some different common problems we see and how that act applies to those.
John
Right. So, Lisa, let me give you a scenario. So, we have somebody whose mother is at a nursing facility, and the mother has Alzheimer's and she wanders. And this is not a locked facility. And the nursing home tells the family, they say, "Look, your mother will wander off and normally that's not a problem except at meal times. And at meal times, we don't have enough staff supervising everybody. So while we have her sitting at the dinner table, we're going to restrain her arm to her chair so that she can't get up and walk out. But this is just for mom's protection."
Lisa
Right. Yeah, this is just for your family member's protection and this is necessary. And as the caregiver for this patient, no, it just doesn't sit exactly right.
John
Yeah, that's right. And so, again, the Nursing Home Reform Act has some very clear rules related to restraints. And restraints can actually come in two forms. There's the physical restraint, like I described, where we're holding somebody down or using ropes or straps or something to keep them in place. But then there are also chemical restraints. And these would be your drugs, your narcotics and different things that can keep somebody basically comatose. And the Nursing Home Reform Act says that restraints are not to be used. They're just not. Now, there's a couple of very small exceptions for situations where... Like for example, if there is an imminent danger to the resident, or to another resident, then temporary use of a restraint can be used. The other circumstance is if there is a specific doctor's order related to the necessity of a restraint, and that order must be very specific as to why it's needed and it should have a very limited timeframe. So, for example, we have a psychotic episode that we think will pass in a matter of days once the medication gets through working in its system, so for the next few hours, restraints are okay. Something like that, where it's very temporary and ordered by the doctor, that's okay, but otherwise, restraints are off-limits.
Lisa
Yeah, and that's right, John. One thing about restraints is there is no such thing as a standing order at a facility for the use of restraints at the convenience of the facility or at the time someone at the facility, less than a doctor, just determines it's more convenient. So there, again, that must have a very specific order from the doctor.
John
Right. So anytime you hear that sort of thing, you ought to be immediately jumping up and saying, "Look, no, restraints are inappropriate." And excuses like, "Well, we just don't have the staff or the person's too hard to deal with," or things like that, those just don't fly. There's no basis for any of that in the law.
Lisa
Yeah. So one of the other things that we see quite commonly is keeping seniors healthy by making sure they get good nutrition, is a big part of what goes on at a skilled nursing facility. So it's very important that those seniors get the sustenance and nutrition that they need. And a lot of times, this means special diets, soft diets, protein diets. But it also means that the patient is able to take in that food, whether it's by feeding themselves or with assistance from a staff member. And sometimes, with a senior, there can be swallowing issues or just someone that really takes their sweet time with their meal. And one of the things we've seen is a recommendation from the facility that if the patient is taking too long to eat, or is particularly messy, or they're losing weight, that there is a recommendation for a feeding tube to be placed in the residence, so that way the nutrition gets in very quickly and it's assured. And the staff can service that PEG tube, get them the nutrition and go on to their next duty. This is a very serious thing to do and so, again, much like restraints, recommending a placement of a feeding tube when really if it just takes some more patience or some more staff time to make sure that patient's getting their nutrition, a feeding tube is just not appropriate.
John
Yeah. And a lot of times, you will hear excuses like, "Well, if we do the feeding tube, the person is less likely to choke on the food." Or that, "If we do the feeding tube, that that will prolong their life." And there have actually been medical studies that have shown that a person is no less likely to aspirate or choke from being orally-fed versus having a feeding tube and that the use of a feeding tube also does not prolong a person's life. So when you hear those excuses, they're not based in science, but usually, the underlying reason is it's just difficult on the facility and their staff, and it would be a whole lot easier on them if there was a feeding tube, but that's just not the case. That should be... Feeding tubes should be an absolute last resort. And if you're thinking about a feeding tube, you also need to be talking to a hospice because this is usually a end-of-life type situation when you start talking about feeding tubes.
Lisa
Well, and that's also a thing, John, where we're talking about a feeding tube, then let's get... Kinda like restraints. Let's get that doctor right back in to very specifically order such a thing in collaboration with the family rather than the recommendation coming from the facility.
John
Right. And of course keeping in mind the residents' wishes if they had a living will or advanced directive in play. So we're gonna talk about a couple more, primarily related to some financial issues, when you're dealing with the nursing home, and we'll talk about that when we come back here in just a second. So, stick around.
John
Welcome back to Aging Insight, everybody. I'm John Ross here with Lisa Shoalmire. And today, we're addressing some of the common problems with nursing home residents and their families, but more importantly, how to resolve those. And one of our ongoing themes throughout today has been the Nursing Home Reform Act because it addresses so many of these various issues. One of the things we talk about... Again, people don't wanna have to go to a nursing home, but they also don't wanna go broke. And the cost of nursing care is very expensive. Private pay can be 4 to $6,000 a month, and because of that, many people will rely on Medicare or Medicaid to pay some portion of all of this. And one of the things in all of this is that Medicaid cannot discriminate... The nursing home cannot discriminate against the person based on who's paying the bill. So if they've got... If they've got an empty bed and they accept Medicaid, they can't necessarily turn you away just because you're eligible for Medicaid, hoping that maybe they'll get somebody who will pay more privately. So they can't discriminate against that. But then you also get into some issues there in the admission contract with... Let's say there is a balance due out there. Who's financially responsible for that sort of thing?
Lisa
Right. So typically, when a person admits to a nursing facility, either they admit themselves and they sign all the paperwork, and for many of you who have recently had any encounters with the medical system, you know that you have to sign a stack of papers anytime you're accessing care, and it's certainly, I think, a little thicker of a stack when we're talking about residing at a facility. So oftentimes, that admission packet at a facility... Number one, it's yea thick, and they go through it with you in a very quick rapid manner. So my advice would be to ask for that admission packet and take it home prior to admission and have a chance to look over it. But more importantly, if you are signing on behalf of a loved one that needs that type of care, make sure that you sign for that person, but you're indicating on the documentation that you are not personally signing, that all of the execution of these documents is on behalf of the patient. Normally, you're gonna do that because you have a power of attorney for that patient, in which case, you will sign the document, with the patient's name by your name and then comma, POA or some other indication that you are signing with some authority under a power of attorney but you're not signing personally. It's kind of like co-signing for a teenager on a car.
Lisa
In this situation, you want the purchaser of the services, they're the ones that are liable for the cost of those services. You may simply be signing paperwork in order to facilitate the admission process. So just make sure you're signing that paperwork with the patient as the obligated person.
John
That's right. And if the facility were to say, for example, "Well, you have to sign this financial responsibility personally for your mother or for your father that that's a condition of admission." Well, that is a very clear violation of the Nursing Home Reform Act. It is against the law to require a third party to guarantee payment for that resident. So the only person that's responsible for that bill should be the resident and the resident themselves. So that can come up a lot, and we've certainly seen that come up quite a bit. And there is a lot of things in that nursing home admission packet, and really, there's no reason why you can't take that. And find an elder law attorney who's familiar with these, who's seen them before and can guide you through it and tell you what to sign, what's okay to sign, how to sign, and what parts of it you absolutely shouldn't sign, like arbitration agreements and things like that. So there's lots of little pieces to it.
Lisa
That's right. An arbitration agreement is basically your agreement stating that if there is any damages that you will not access the court system and file a lawsuit against the facility. And if you sign an arbitration agreement, the law is pretty strong that you're stuck with it. But again, the Nursing Home Reform Act does not require you to sign an arbitration agreement as a condition of admission. So you need to watch for those and it's okay to question the businessperson about what the document says. But the bottom line is they're there to do their job for their employer, which is the facility, that that person who's smiling and doing the admission, they are not there to protect your interest or represent you.
John
That's right. Well, Lisa, we've covered about, what? Four or five or six little problems here. But you and I have both given presentations on this several times here where we have listed upwards of 20 different problems. So there's a lot more to this. When you're navigating through this system, one resource that's available out there is the ombudsman, which is a program through the area agency on aging where you can get some help with this. So, utilize all the sources that are out there to help you when you run into problems with nursing homes.
Lisa
Yeah. I think the ombudsman program is one of the best things that... It's an advocate for families trying to resolve problems, so it's a great program.
John
That's right. Well, you've reached the end of another edition of Aging Insight. Stick around with us. If you ever have any questions, you can always call our live call-in show on 107.1 at noon every Saturday, and you can find us on the Internet at aginginsight.com. So, well, stick around, and we'll see you next time on Aging Insight.
Lisa
All right. Thanks a lot. Bye bye.

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