It’s a tough time financially for Pennsylvania nursing
homes. They recently suffered a reduction in payments from Medicare and then barely
survived a cut back in Medicaid payments that Governor Corbett included in his
budget proposal.
If elected, the Romney/Ryan team
proposes to change Medicaid funding to a block grant, which would likely
further restrict funding for nursing home care. The head of Pennsylvania’s
Department of Public Welfare, Gary Alexander, has announced his support for moving Medicaid to a block grant.
So, it looks like the next few years will be tough on
nursing homes, and probably even tougher on their residents. Further reductions in funding will almost surely impact staffing levels and quality of care.
Many nursing home residents are unable to act effectively to protect
themselves from poor care and abuse and to assert their basic human
rights. Funding cut-backs make it increasingly important that nursing home
residents, their families, and advocates understand the laws that exist to
protect the rights of those who have become dependent on nursing home care.
Federal Law has long imposed the obligation to protect
patient rights on any long term care facility that participates in Medicare or
Medicaid. The law (The Nursing Home Reform Law of 1987) is set out in Title 42,
Section 483.10 of the Code of Federal Regulations. These protections apply to any resident of a Medicare or Medicaid certified facility regardless of their payment source.
Title 42 - Public
Health. CHAPTER IV - CENTERS FOR MEDICARE & MEDICAID SERVICES, DEPARTMENT
OF HEALTH AND HUMAN SERVICES (CONTINUED). SUBCHAPTER G - STANDARDS AND
CERTIFICATION. PART 483 - REQUIREMENTS FOR STATES AND LONG TERM CARE FACILITIES.
Subpart B - Requirements for Long Term Care Facilities.
§ 483.10
Resident
rights.
The resident has a right to a dignified
existence, self-determination, and communication with and access to persons and
services inside and outside the facility. A facility must protect and promote
the rights of each resident, including each of the following rights:
(a) Exercise of rights.
(1) The resident
has the right to exercise his or her rights as a resident of the facility and
as a citizen or resident of the United States.
(2) The resident has the right to be free
of interference, coercion, discrimination, and reprisal from the facility in
exercising his or her rights.
(3) In the case of a resident adjudged
incompetent under the laws of a State by a court of competent jurisdiction, the
rights of the resident are exercised by the person appointed under State law to
act on the resident's behalf.
(4) In the case of a resident who has not
been adjudged incompetent by the State court, any legal-surrogate designated in
accordance with State law may exercise the resident's rights to the extent
provided by State law.
(b) Notice of rights and services.
(1) The
facility must inform the resident both orally and in writing in a language that
the resident understands of his or her rights and all rules and regulations
governing resident conduct and responsibilities during the stay in the
facility. The facility must also provide the resident with the notice (if any)
of the State developed under section 1919(e)(6) of the Act. Such notification
must be made prior to or upon admission and during the resident's stay. Receipt
of such information, and any amendments to it, must be acknowledged in writing;
(2) The resident or his or her legal representative
has the right—
(i) Upon an oral or written request, to
access all records pertaining to himself or herself including current clinical
records within 24 hours (excluding weekends and holidays); and
(ii) After receipt of his or her records
for inspection, to purchase at a cost not to exceed the community standard
photocopies of the records or any portions of them upon request and 2 working
days advance notice to the facility.
(3) The resident has the right to be fully
informed in language that he or she can understand of his or her total health
status, including but not limited to, his or her medical condition;
(4) The resident has the right to refuse
treatment, to refuse to participate in experimental research, and to formulate
an advance directive as specified in paragraph (8) of this section; and
(5) The facility must—
(i) Inform each resident who is entitled to
Medicaid benefits, in writing, at the time of admission to the nursing facility
or, when the resident becomes eligible for Medicaid of—
(A) The items and services that are
included in nursing facility services under the State plan and for which the
resident may not be charged;
(B) Those other items and services that the
facility offers and for which the resident may be charged, and the amount of
charges for those services; and
(ii) Inform each resident when changes are
made to the items and services specified in paragraphs (5)(i) (A) and (B) of
this section.
(6) The facility must inform each resident before,
or at the time of admission, and periodically during the resident's stay, of
services available in the facility and of charges for those services, including
any charges for services not covered under Medicare or by the facility's per
diem rate.
(7)
The facility must furnish a written description of legal rights which includes—
(i) A description of the manner of
protecting personal funds, under paragraph (c) of this section;
(ii) A description of the requirements and
procedures for establishing eligibility for Medicaid, including the right to
request an assessment under section 1924(c) which determines the extent of a
couple's non-exempt resources at the time of institutionalization and
attributes to the community spouse an equitable share of resources which cannot
be considered available for payment toward the cost of the institutionalized
spouse's medical care in his or her process of spending down to Medicaid
eligibility levels;
(iii) A posting of names, addresses, and
telephone numbers of all pertinent State client advocacy groups such as the
State survey and certification agency, the State licensure office, the State
ombudsman program, the protection and advocacy network, and the Medicaid fraud
control unit; and
(iv) A statement that the resident may file
a complaint with the State survey and certification agency concerning resident
abuse, neglect, misappropriation of resident property in the facility, and
non-compliance with the advance directives requirements.
(8) The facility must comply with the
requirements specified in subpart I of part 489 of this chapter relating to
maintaining written policies and procedures regarding advance directives. These
requirements include provisions to inform and provide written information to
all adult residents concerning the right to accept or refuse medical or
surgical treatment and, at the individual's option, formulate an advance
directive. This includes a written description of the facility's policies to
implement advance directives and applicable State law. Facilities are permitted
to contract with other entities to furnish this information but are still
legally responsible for ensuring that the requirements of this section are met.
If an adult individual is incapacitated at the time of admission and is unable
to receive information (due to the incapacitating condition or a mental
disorder) or articulate whether or not he or she has executed an advance
directive, the facility may give advance directive information to the
individual's family or surrogate in the same manner that it issues other
materials about policies and procedures to the family of the incapacitated
individual or to a surrogate or other concerned persons in accordance with
State law. The facility is not relieved of its obligation to provide this
information to the individual once he or she is no longer incapacitated or
unable to receive such information. Follow-up procedures must be in place to
provide the information to the individual directly at the appropriate time.
(9) The facility must inform each resident
of the name, specialty, and way of contacting the physician responsible for his
or her care.
(10) The facility must prominently display
in the facility written information, and provide to residents and applicants
for admission oral and written information about how to apply for and use
Medicare and Medicaid benefits, and how to receive refunds for previous
payments covered by such benefits.
(11)
Notification of changes. (i) A facility must immediately inform the resident;
consult with the resident's physician; and if known, notify the resident's
legal respresentative or an interested family member when there is—
(A) An accident involving the resident
which results in injury and has the potential for requiring physician
intervention;
(B) A significant change in the resident's
physical, mental, or psychosocial status (i.e., a deterioration in health,
mental, or psychosocial status in either life-threatening conditions or
clinical complications);
(C) A need to alter treatment significantly
(i.e., a need to discontinue an existing form of treatment due to adverse
consequences, or to commence a new form of treatment); or
(D) A decision to transfer or discharge the
resident from the facility as specified in § 483.12(a).
(ii) The facility must also promptly notify
the resident and, if known, the resident's legal representative or interested
family member when there is—
(A) A change in room or roommate assignment
as specified in § 483.15(e)(2); or
(B) A change in resident rights under
Federal or State law or regulations as specified in paragraph (b)(1) of this
section.
(iii) The facility must record and
periodically update the address and phone number of the resident's legal
representative or interested family member.
(12) Admission to a composite distinct
part. A facility that is a composite distinct part (as defined in § 483.5(c) of
this subpart) must disclose in its admission agreement its physical
configuration, including the various locations that comprise the composite
distinct part, and must specify the policies that apply to room changes between
its different locations under § 483.12(a)(8).
(c) Protection of resident funds.
(1) The
resident has the right to manage his or her financial affairs, and the facility
may not require residents to deposit their personal funds with the facility.
(2) Management of personal funds. Upon
written authorization of a resident, the facility must hold, safeguard, manage,
and account for the personal funds of the resident deposited with the facility,
as specified in paragraphs (c)(3)-(8) of this section.
(3) Deposit of funds. (i) Funds in excess
of $50. The facility must deposit any residents' personal funds in excess of
$50 in an interest bearing account (or accounts) that is separate from any of
the facility's operating accounts, and that credits all interest earned on
resident's funds to that account. (In pooled accounts, there must be a separate
accounting for each resident's share.)
(ii) Funds less than $50. The facility must
maintain a resident's personal funds that do not exceed $50 in a non-interest
bearing account, interest-bearing account, or petty cash fund.
(4) Accounting and records. The facility
must establish and maintain a system that assures a full and complete and
separate accounting, according to generally accepted accounting principles, of
each resident's personal funds entrusted to the facility on the resident's
behalf.
(i) The system must preclude any
commingling of resident funds with facility funds or with the funds of any
person other than another resident.
(ii) The individual financial record must
be available through quarterly statements and on request to the resident or his
or her legal representative.
(5) Notice of certain balances. The
facility must notify each resident that receives Medicaid benefits—
(i) When the amount in the resident's
account reaches $200 less than the SSI resource limit for one person, specified
in section 1611(a)(3)(B) of the Act; and
(ii) That, if the amount in the account, in
addition to the value of the resident's other nonexempt resources, reaches the
SSI resource limit for one person, the resident may lose eligibility for
Medicaid or SSI.
(6) Conveyance upon death. Upon the death
of a resident with a personal fund deposited with the facility, the facility
must convey within 30 days the resident's funds, and a final accounting of
those funds, to the individual or probate jurisdiction administering the
resident's estate.
(7) Assurance of financial security. The
facility must purchase a surety bond, or otherwise provide assurance
satisfactory to the Secretary, to assure the security of all personal funds of
residents deposited with the facility.
(8) Limitation on charges to personal
funds. The facility may not impose a charge against the personal funds of a
resident for any item or service for which payment is made under Medicaid or
Medicare (except for applicable deductible and coinsurance amounts). The
facility may charge the resident for requested services that are more expensive
than or in excess of covered services in accordance with § 489.32 of this
chapter. (This does not affect the prohibition on facility charges for items
and services for which Medicaid has paid. See § 447.15, which limits
participation in the Medicaid program to providers who accept, as payment in
full, Medicaid payment plus any deductible, coinsurance, or copayment required
by the plan to be paid by the individual.)
(i)
Services included in Medicare or Medicaid payment. During the course of a
covered Medicare or Medicaid stay, facilities may not charge a resident for the
following categories of items and services:
(A) Nursing services as required at §
483.30 of this subpart.
(B) Dietary services as required at §
483.35 of this subpart.
(C) An activities program as required at §
483.15(f) of this subpart.
(D) Room/bed maintenance services.
(E) Routine personal hygiene items and
services as required to meet the needs of residents, including, but not limited
to, hair hygiene supplies, comb, brush, bath soap, disinfecting soaps or
specialized cleansing agents when indicated to treat special skin problems or
to fight infection, razor, shaving cream, toothbrush, toothpaste, denture
adhesive, denture cleaner, dental floss, moisturizing lotion, tissues, cotton
balls, cotton swabs, deodorant, incontinence care and supplies, sanitary
napkins and related supplies, towels, washcloths, hospital gowns, over the counter
drugs, hair and nail hygiene services, bathing, and basic personal laundry.
(F) Medically-related social services as
required at § 483.15(g) of this subpart.
(ii) Items and services that may be charged
to residents' funds. Listed below are general categories and examples of items
and services that the facility may charge to residents' funds if they are
requested by a resident, if the facility informs the resident that there will
be a charge, and if payment is not made by Medicare or Medicaid:
(A) Telephone.
(B) Television/radio for personal use.
(C) Personal comfort items, including
smoking materials, notions and novelties, and confections.
(D) Cosmetic and grooming items and
services in excess of those for which payment is made under Medicaid or
Medicare.
(E) Personal clothing.
(F) Personal reading matter.
(G) Gifts purchased on behalf of a
resident.
(H) Flowers and plants.
(I) Social events and entertainment offered
outside the scope of the activities program, provided under § 483.15(f) of this
subpart.
(J) Noncovered special care services such
as privately hired nurses or aides.
(K) Private room, except when
therapeutically required (for example, isolation for infection control).
(L) Specially prepared or alternative food
requested instead of the food generally prepared by the facility, as required
by § 483.35 of this subpart.
(iii) Requests for items and services. (A)
The facility must not charge a resident (or his or her representative) for any
item or service not requested by the resident.
(B) The facility must not require a
resident (or his or her representative) to request any item or service as a
condition of admission or continued stay.
(C) The facility must inform the resident
(or his or her representative) requesting an item or service for which a charge
will be made that there will be a charge for the item or service and what the
charge will be.
(d) Free choice. The resident has the right
to—
(1) Choose a personal attending physician;
(2) Be fully informed in advance about care
and treatment and of any changes in that care or treatment that may affect the
resident's well-being; and
(3) Unless adjudged incompetent or
otherwise found to be incapacitated under the laws of the State, participate in
planning care and treatment or changes in care and treatment.
(e) Privacy and confidentiality. The
resident has the right to personal privacy and confidentiality of his or her
personal and clinical records.
(1) Personal privacy includes
accommodations, medical treatment, written and telephone communications,
personal care, visits, and meetings of family and resident groups, but this
does not require the facility to provide a private room for each resident;
(2) Except as provided in paragraph (e)(3)
of this section, the resident may approve or refuse the release of personal and
clinical records to any individual outside the facility;
(3) The resident's right to refuse release
of personal and clinical records does not apply when—
(i) The resident is transferred to another
health care institution; or
(ii) Record release is required by law.
(f) Grievances. A resident has the right
to—
(1) Voice grievances without discrimination
or reprisal. Such grievances include those with respect to treatment which has
been furnished as well as that which has not been furnished; and
(2) Prompt efforts by the facility to
resolve grievances the resident may have, including those with respect to the behavior
of other residents.
(g) Examination of survey results. A
resident has the right to—
(1) Examine the results of the most recent
survey of the facility conducted by Federal or State surveyors and any plan of
correction in effect with respect to the facility. The facility must make the
results available for examination in a place readily accessible to residents,
and must post a notice of their availability; and
(2) Receive information from agencies
acting as client advocates, and be afforded the opportunity to contact these
agencies.
(h) Work. The resident has the right to—
(1) Refuse to perform services for the
facility;
(2) Perform services for the facility, if
he or she chooses, when—
(i) The facility has documented the need or
desire for work in the plan of care;
(ii) The plan specifies the nature of the
services performed and whether the services are voluntary or paid;
(iii) Compensation for paid services is at
or above prevailing rates; and
(iv) The resident agrees to the work
arrangement described in the plan of care.
(i) Mail. The resident has the right to
privacy in written communications, including the right to—
(1) Send and promptly receive mail that is
unopened; and
(2) Have access to stationery, postage, and
writing implements at the resident's own expense.
(j) Access and visitation rights.
(1) The
resident has the right and the facility must provide immediate access to any
resident by the following:
(i) Any representative of the Secretary;
(ii) Any representative of the State:
(iii) The resident's individual physician;
(iv) The State long term care ombudsman
(established under section 307(a)(12) of the Older Americans Act of 1965);
(v) The agency responsible for the
protection and advocacy system for developmentally disabled individuals
(established under part C of the Developmental Disabilities Assistance and Bill
of Rights Act);
(vi) The agency responsible for the
protection and advocacy system for mentally ill individuals (established under
the Protection and Advocacy for Mentally Ill Individuals Act);
(vii) Subject to the resident's right to
deny or withdraw consent at any time, immediate family or other relatives of the
resident; and
(viii) Subject to reasonable restrictions
and the resident's right to deny or withdraw consent at any time, others who
are visiting with the consent of the resident.
(2) The facility must provide reasonable
access to any resident by any entity or individual that provides health,
social, legal, or other services to the resident, subject to the resident's
right to deny or withdraw consent at any time.
(3) The facility must allow representatives
of the State Ombudsman, described in paragraph (j)(1)(iv) of this section, to
examine a resident's clinical records with the permission of the resident or
the resident's legal representative, and consistent with State law.
(k) Telephone. The resident has the right
to have reasonable access to the use of a telephone where calls can be made
without being overheard.
(l) Personal property. The resident has the
right to retain and use personal possessions, including some furnishings, and
appropriate clothing, as space permits, unless to do so would infringe upon the
rights or health and safety of other residents.
(m) Married couples. The resident has the
right to share a room with his or her spouse when married residents live in the
same facility and both spouses consent to the arrangement.
(n) Self-Administration of Drugs. An
individual resident may self-administer drugs if the interdisciplinary team, as
defined by § 483.20(d)(2)(ii), has determined that this practice is safe.
(o) Refusal of certain transfers.
(1) An
individual has the right to refuse a transfer to another room within the
institution, if the purpose of the transfer is to relocate—
(i) A resident of a SNF from the distinct
part of the institution that is a SNF to a part of the institution that is not
a SNF, or
(ii) A resident of a NF from the distinct
part of the institution that is a NF to a distinct part of the institution that
is a SNF.
(2) A resident's exercise of the right to
refuse transfer under paragraph (o)(1) of this section does not affect the
individual's eligibility or entitlement to Medicare or Medicaid benefits.
Pennsylvania has its own separate regulations governing the
rights of residents of long-term care nursing facilities which provide either
skilled nursing care or intermediate nursing care, or both. The Pennsylvania
regulations can be found at 28 Pa Code
Section 201.29.
