20 Common Nursing Home Problems and How to Solve Them, #6-10

Number 6: Prohibiting inappropriate use of behavior-modifying medication

What you hear: “No, your mother needs medication in order to make her more manageable.”

The Facts: Medication can be used to modify behavior only when the behavior is caused by a diagnosed illness, such as depression, for which a specific medication is needed for the resident’s treatment.

Under the Reform Law, a behavior-modifying medication – also called a “psychoactive” medication – can be used only to treat a resident’s medical conditions or symptoms. It cannot be used for discipline or the nursing home’s convenience (Section 483.12(a) of Title 42 of the Code of Federal Regulations).

If a nursing home is trying to get you to allow them to put your loved one on a medication so that they can better “manage” them, tell them that it that is unacceptable and that it is their job to find productive ways of cooperation. Suggest activities that your loved-one enjoys and would benefit from. If you find that your loved one has been medicated without your permission, don’t hesitate to give us a call and let us intercede. We work with clients nation-wide.

Number 7: Limiting the use of feeding tubes

What you hear: “No we must insert a feeding tube into your father because he is taking too long to eat.”

The Facts: The use of a feeding tube should be a last resort. Under the Nursing Home Reform Law, a nursing home must assist a resident in maintaining his ability to eat. Federal guidelines mention specific steps that a nursing home might take, including providing therapy to improve swallowing skills, food in a more easily eaten form, like pureed, assist devices like easy grip handles or simply feeding the resident by hand.

Only when a resident is unable to take food via mouth should a feeding tube be used. The Reform Law’s regulations state: “A resident who has been able to eat enough alone or with assistance is not fed by [a] tube unless the resident’s clinical condition demonstrates that use of a…tube was unavoidable (Sections 483.25(f)(1) of Title 42 of the Code of Federal Regulations).

Please remember, these facilities are being PAID to take CARE of your loved one. If that means assisting them with eating, then it is completely reasonable. If you have any questions about this law or others regarding your loved one, don’t hesitate to call us.t in maintaining his ability to eat. Federal guidelines mention specifict stps that a nursing home might take, including providing therapy to improve swallowing skills, food in a more easily eaten form, like pureed, assist devices like easy grip handles or simply feeding the resident by hand. Only when a resident is unable to take food via mouth should a feeding tube be used. The Refrom Loaw’s regulations state: “A resident who has been able to eat enough alone or with assistance is not fed by [a] tube unless the resient’s clinical condition demonstrates that use of a…tube was unavoidable (Sections 483.25(f)(1) of Title 42 of the Code of Federal Regulations).If a nursing home is trying to get you to allow them to put your loved one on a medication so that they can better “manage” them, tell them that it that is unacceptable and that it is their job to find productive ways of cooperation. Suggests activities that your loved-one enjoys and would benefit from. If you find that your loved one has been medicated without your permission, don’t hesitate to give us a call and let us intercede. We work with clients nation-wide.

Number 8: VIisitors

What you hear: ”No, your children can visit you only during visiting hours.”

The Facts: A resident’s family member can visit at any time of the day or night.

Under the Nursing Home Reform Law, a nursing home should be as homelike as possible. Consistent with this philosophy, a nursing home cannot limit visiting hours for “immediate family or other relatives” (Section 483.10(j)(i) of Title 42 of the Code of Federal Regulations).

If a nursing home tells you or a family member that visits can be made only during official visiting hours, inform them of this law and tell them that they must abide by it or you will make an official report to DHS and your attorney.

Number 9: “RESPONSIBLE PARTY” provisions in admission agreements

What you hear: “You must sign the admission agreement as a ‘Responsible Party,’ otherwise we can’t admit your mother.”

The Facts: A nursing home cannot require anyone but the resident to be financially responsible for nursing home expenses.

The Nursing Home Reform Law prohibits a nursing home from requiring a family member or friend to become financially liable for nursing home expenses (Section 483.12(d)(2) of Title 42 of the Code of Federal Regulations).

The signature of a family member or friend can be required only if the family member or friend is signing on the resident’s behalf. For example it is appropriate for a family member to sign an admission agreement as the resident’s appointed agent, because in that case teh financial liability belongs solely to the resident.

Nursing Homes are already protected by Medicaid if a resident runs out of money. It is unfair to expect a family member to become liable for expenses that could end up at $100,000, depending on the circumstances.

Asking you to sign as responsible party is no more than tricking you into becoming financially liable.

If a nursing home insists that you sign a responsible party agreement, refuse to sign as yourself and only sign unless you are have a power of attorney and even then, sign only on behalf of the resident. Your signature should say “John Doe, as appointed agent for Jane Doe.”

If you need assistance with this or any other problems with a nursing home, don’t hesitate to call us.

Number 10: Arbitration agreements

What you hear: “Please sign this arbitration agreement. It’s no big deal. Arbitration allows disputes to be resolved quickly.”

The Facts: There is no good reason for a resident (or resident’s representative) to sign an arbitration agreement at the time of admission.

In an arbitration agreement, the parties agree that future disputes between the parties will not go to court, but instead will be handled by a private judge called an arbitrator. Generally, arbitration is not a good option for residents. The process is often more expensive than a state or federal lawsuit because the parties to the suit are responsible for paying the arbitrator by the hour. Also, arbitrators often are less sympathetic to residents’ concerns than are judges or juries and nursing homes commonly write arbitration agreements in a way that favors the home over the resident.

To challenge an arbitration agreement during admission, you can comment to the employee that there is no need to commit to arbitration at the time of admission. Many times an employee may be confused about the agreement and continue to admit you or a loved one. A refusal to sign is not risky at all when a resident already has been admitted because Refusal to sign an arbitration agreement is not one of the six reason for eviction under the Reform Law.

If a resident has not been admitted, you still have some leverage. In some states a nursing home can request, but not demand signing. Also, if the resident is eligible for payment of the home through Medicare or Medicaid, federal law prohibits the home from asking any more from the resident other than co-pays and deductibles (Section 483.12(d)(3) and 489.30 of Title 42 of the Code of Federal Regulations. And if you have already signed one and are going to pursue a legal matter, a signed arbitration agreement may or may not be binding. Give us a call and we can let you know.

Coming soon – Common Nursing Home Problems and How to Solve Them #11-#15