How Does the Nursing Home Reform Act Protect Elderly Residents?

June 30, 2020

Senior citizens typically enter a nursing home because their health and safety can no longer be assured if they continue to live independently. As a result, nursing home residents are extremely vulnerable to the actions of the facility to which they have been admitted. Fortunately, laws exist at the federal and state levels to protect our senior citizens. The most significant of these laws is the Nursing Home Reform Act (NHRA).

If someone you care about is living in a nursing home, understanding the NHRA can better equip you to ensure the protection of his or her rights, safety, and well-being. A compassionate elder law attorney will be able to address any concerns you have.

What are the Basic Provisions for Minimum Standards of Care Under the NHRA?

The NHRA was passed by Congress in response to a 1986 study which concluded that nursing home residents across the country were being abused and neglected on a continual basis. The basic provisions of the NHRA include establishing a set of minimum standards which all skilled nursing facilities must meet in order to be eligible for Medicare and Medicaid payments. These provisions cover eight areas, including the following:

  • Quality of life: Skilled nursing facilities must provide a level of care directed at maintaining or enhancing the quality of life for each resident.
  • Plan of care: The facilities must maintain a written plan of care for each resident.
  • Resident assessment: A team of licensed professionals, including a registered nurse, must regularly assess each resident’s functional capacity.
  • Services: The facility must provide a standard list of services, including but not limited to 24-hour nursing care, rehabilitation, pharmacy, medically related social services, meals, and dental care.
  • Trained and competent nurses aids: Aids must undergo regular performance reviews and in-house training.
  • Physician-supervised medical care: Clinical records must be maintained on all residents.
  • Social workers: If a facility has 120 beds or more, it must maintain at least one full-time social worker on staff.
  • Daily posting of nursing staff schedules: This includes both licensed and unlicensed nursing staff.

In addition to these minimum standards, the NHRA has requirements related to the administration and ownership of the facility.

The Residents’ Bill of Rights

One of the most important aspects of the NHRA is the creation of the Residents’ Bill of Rights. The NHRA goes into a fair amount of detail about these various rights. Speaking generally, these rights cover the following areas:

  • Dignity: This includes freedom from abuse and neglect and the security of individual possessions. Residents also have the right to manage their own financial affairs.
  • Privacy: Residents have the right to admit visitors of their choosing and have privacy during those visits.
  • Self-determination: The facility must make reasonable accommodations for residents’ needs and preferences, including the right to request or refuse medical treatment.
  • Freedom from restraints: Chemical and physical restraints cannot be used for the purposes of discipline or convenience.
  • Access to information: This right covers a broad range of subjects, including access to individual medical care plans, as well as state survey reports and the facility’s plan to correct deficiencies.
  • Raise grievances: Residents must be allowed to complain without fear of retaliation.

Residents also have the right to receive a written notice before there is any change in room assignments or roommates. Also, residents maintain their rights as citizens, including the right to vote, religious expression, and religious liberty.

How is Disease and Infection Controlled?

The NHRA states that skilled nursing home facilities must provide a safe, sanitary, and comfortable environment to help prevent residents from developing and transmitting diseases. In the wake of the COVID-19 pandemic, it is clear that many nursing homes fell short of this goal. In the state of New Jersey alone, approximately half of all fatalities related to COVID-19 occurred in nursing homes.

According to the New England Journal of Medicine, the pandemic has shed new light on America’s failure to invest in a truly effective long-term care system. Nursing homes lacked resources, including test kits, personal protective equipment (PPE), and thus were largely ill-equipped to stop the spread of the virus. Underpaid and undertrained staff bore the brunt of the burden in trying to contain the disease.

Lack of staffing and supplies is not unusual in nursing homes, unfortunately. The New England Journal of Medicine article cites evidence that these systemic problems can be traced to the piecemeal approach that typically pays for long-term care. Medicare is available to temporarily fund nursing home stays for rehabilitation after hospital discharge, but that is short-term. Although Medicaid now pays for about half of all long-term care residents, there are coverage gaps.

Eligibility for Medicaid also requires spending down of assets or placing assets in trust. Obtaining and paying for long-term care in our country can be quite complicated. If you are concerned about your future or that of an elderly loved one, contact an experienced elder law attorney to learn more about long-term care planning options, including Medicaid planning.

How are Provisions of the NHRA Enforced?

Skilled nursing facilities must be regularly certified to be eligible for Medicare and Medicaid payments. Certification is contingent upon the results of unannounced surveys conducted on the state level. The surveys can happen anytime but must occur at least once every 15 months. The surveys investigate the following aspects of nursing home life:

  • Quality of care
  • Residents’ rights
  • Quality of life
  • Services provided to residents

If a survey indicates that there are violations, any number of the NHRA-specified sanctions may be imposed to enforce compliance. If the deficiency is believed to be an isolated incident or not very serious, the sanctions may include the following:

  • Providing a plan of correction
  • Implementing in-service training of staff
  • Follow-up monitoring by the state

Violations that appear to follow a pattern, or are widespread, or put residents in immediate jeopardy may be subject to sanctions listed previously plus additional ones, including the following:

  • Monetary penalties
  • Denial of Medicare or Medicaid payments for new admissions
  • Denial of Medicare or Medicaid payments for current residents
  • Temporary management by outside agencies
  • Termination of the provider agreement

Nursing home residents or their relatives can also file complaints about facilities by phone or mail. State regulators also follow up on complaint investigations.

Nursing home residents and their advocates also have rights as citizens to pursue legal redress to protect against nursing home abuse and neglect.

Is the NHRA Effective?

Nursing homes must be found to be in substantial compliance with the NHRA in order to receive Medicaid and Medicare payments. Since federal dollars typically pay for the majority of nursing home case, the incentive to demonstrate compliance with the NHRA is quite tangible. Most experts concur that the NHRA has helped improve the quality of care and the quality of life for nursing home residents. However, the extent to which the NHRA is truly effective depends on enforcement.

In addition, the COVID-19 pandemic brought systemic flaws in nursing home care to the surface. The NHRA has been effective to an extent; however, there are times when experienced legal representation is the only means for ensuring the protection of elderly loved ones who are in nursing homes.

Brooklyn Elder Law Lawyers at Korsinsky & Klein, LLP Work to Uphold Standards of Care as Specified in the Nursing Home Reform Act

The NHRA was designed to ensure that residents of nursing homes enjoy the same rights as all other citizens in our communities. While progress has been made, many of our vulnerable nursing home residents still suffer unjustly. If your loved one is in a facility that may be violating the NHRA standards of care, one of our Brooklyn elder law lawyers at Korsinsky & Klein, LLP can help. For an initial consultation, complete our online form or call us at 212-495-8133. Located in Brooklyn, Manhattan, and Lakewood, New Jersey, we serve clients throughout New York and New Jersey.