The job of a nursing home is to provide 24-hour nursing care to those who are chronically ill or injured, have health care needs as well as personal needs and are unable to function independently. There are approximately 17,000 nursing homes in the United States with approximately 1.2 million residents. The team of care givers in a nursing home includes the administrator, a physician who serves as the facility’s medical director, registered nurses, licensed practical nurses, certified nursing assistants, a dietitian, activity coordinator, social worker and house keeping staff.
Nursing homes typically provide two levels of care, which are intermediate case and skilled care. Intermediate care provides the resident with non-skilled care (activities of daily living). A Pre-Admission Screening and Resident Review (PASSR) Level I screening is required for all residents. A PASSR Level II screening is required if there is a mental health diagnosis.
Skilled care is usually paid by Medicare for up to 100 days following a qualifying hospital stay. It provides the residents with more extensive services such as physical, occupational, speech or respiratory therapy. Nursing homes may have an Alzheimer’s Unit. This is a distinct part of the home that cares for those residents who have dementia. The unit is secured and residents are not able to leave the area. There are special state regulations which apply to the Alzheimer’s Unit.
CMS publishes information on how to choose a nursing home. In addition, a checklist that can be used when inspecting nursing homes is available at: http://www.medicare.gov/Nursing/Checklist.pdf.
Each resident in a Georgia nursing home has a right to appropriate care under Georgia law, Georgia regulations, and federal law, 42 U.S.C. § 1395i-3 (Medicare statute); 42 U.S.C. § 1396r (Medicaid statute); 42 C.F.R. Part 483 (federal regulations). In passing legislation to protect Georgians, the Georgia legislature found:
persons residing within long-term care facilities are isolated from the community and often lack the means to assert fully their rights as individual citizens. The General Assembly further recognizes the need for these persons to live within the least restrictive environment possible in order to retain their individuality and personal freedom. It is therefore the intent of the General Assembly to preserve the dignity and personal integrity of residents of long-term care facilities through the recognition and declaration of rights safeguarding against encroachments upon each resident’s need for self-determination. It is the further intent of the General Assembly that this article complement and not duplicate or substitute for other survey and inspection programs regarding long-term care facilities.
Although there is no private right to enforce federal quality of care regulations, in Brogdon Ex Rel. Cline v. National Healthcare Corp., 103 F. Supp. 2d 1322 (N.D. Ga. 2000), the Court held that participation requirements under Medicare and Medicaid are relevant to the extent that they relate to the degree of care and skill required of nurses in Georgia neglect and malpractice cases.
Each resident and his or her guardian or representative must be given a written and oral explanation of his rights, as well as the grievance procedure and enforcement provisions.
Facilities must provide written notice of their rates, services and related charges, and must provide 30 days advance notice before changing rates.
Facilities may not discriminate based on a resident’s or applicant’s history or condition or physical disease. The only basis for denying admission or continued residence based on condition is if it would cause the facility or any resident to lose eligibility for any state or federal program of financial assistance or unless the facility cannot provide adequate and appropriate care, treatment, and services to the resident due to such disease or disability.
Each resident shall receive care, treatment, and services which are adequate and appropriate. Care, treatment, and services shall be provided as follows:
- With reasonable care and skill;
- In compliance with applicable laws and regulations;
- Without discrimination in the quality of a service based on the source of payment for the service;
- With respect for the resident’s personal dignity and privacy; and
- With the goal of the resident’s return home or to another environment less restrictive than the facility.
In the provision of care, treatment, and services to the resident by the facility, each resident or guardian shall be entitled to the following:
- To choose the resident’s physician. The physician so chosen shall inform the resident in advance whether or not the physician’s fees can be paid from public or private benefits to which the resident is entitled and shall provide such documentation as may be required by law or regulation;
- To participate in the overall planning of the resident’s care and treatment. The resident or guardian shall be informed of this right each time a substantial change in the treatment plan is made;
- To refuse medical treatment, dietary restrictions, and medications for the resident. The resident or guardian shall be informed of the probable consequences of such refusal, the refusal shall be noted in the resident’s medical records, and the resident’s attending physician shall be notified as soon as practical. If such refusal apparently would be seriously harmful to the health or safety of the resident, the facility shall either refer the resident to a hospital or notify a responsible family member or, if such a family member is not readily available, the county department of family and children services. If such refusal would be harmful to the health or safety of others, as documented in the resident’s medical records by the resident’s physician, this subsection shall not apply. Any facility or employee of such facility which complies with this paragraph shall not be liable for any damages resulting from such refusal;
- To receive from the facility upon the request of the resident, guardian, or representative the name, address, and telephone number of the resident’s physician;
- To have any significant change in the resident’s health status reported to persons of his choice by the facility within a reasonable time; and
- To obtain from the resident’s physician or the physician attached to the facility a complete and current explanation concerning the resident’s medical diagnosis, treatment, and prognosis in language the resident can understand. Each resident shall have access to all information in the medical records of the resident and shall be permitted to inspect and receive a copy of such records unless medically contraindicated. The facility may charge a reasonable fee for duplication, which fee shall not exceed actual cost.
Facilities shall not use threats, isolation or unnecessary restraints as punishment, incentive, behavior modification of convenience.
Nursing home residents retain their rights as citizens. This includes the right to vote, free exercise of religion, right to meet and communicate with others privately, and the right to participate in social, family, religious and community activities whether inside or outside the facility.
There are only six legal reasons for an involuntary discharge (42 CFR § 483.15(c)). They are:
(A) The transfer or discharge is necessary for the resident’s welfare and the resident’s needs cannot be met in the facility;
(B) The transfer or discharge is appropriate because the resident’s health has improved sufficiently so the resident no longer needs the services provided by the facility;
(C) The safety of individuals in the facility is endangered due to the clinical or behavioral status of the resident;
(D) The health of individuals in the facility would otherwise be endangered;
(E) The resident has failed, after reasonable and appropriate notice, to pay for (or to have paid under Medicare or Medicaid) a stay at the facility. Non-payment applies if the resident does not submit the necessary paperwork for third party payment or after the third party, including Medicare or Medicaid, denies the claim and the resident refuses to pay for his or her stay. For a resident who becomes eligible for Medicaid after admission to a facility, the facility may charge a resident only allowable charges under Medicaid (Appendix PP indicates that while an application for Medicaid remains pending, a resident is not in non-payment status; see F622 and “note” in F620); or
(F) The facility ceases to operate.
Appendix PP to CMS’s State Operations Manual System, Guidance to Surveyors for Long Term Care Facilities, provides interpretive language regarding how the federal quality of care regulations should be applied. For organizational purposes, Appendix PP reprints and follows the regulations and is further divided into “F Tags.” The F Tags are used to identify specific facility violations of the regulations.
If you believe your rights as a nursing home resident were violated, you should contact a long term care ombudsman. You may call 866-552-4464, or go online at https://www.georgiaombudsman.org/. The North Georgia Ombudsman program is administered by Legacy Link, Inc., which can be located as follows:
4080 Mundy Mill Road
Oakwood, GA 30566
Mailing Address:
P.O. Box 1480
Oakwood, GA 30566
Office:(770)-538-2685
Fax: (770)-538-2696
If you believe you or your loved one is a victim of malpractice or neglect, then you should speak with an attorney. If you don’t have an attorney, EZ Elder Law can help you find one or you can contact Blue Ridge Injury Law.
Search “Nursing Home” in U.S. Government Documents at archive.org
BLOG POSTS
CMS Announces Nursing Home Minimum Staffing Rule
On April 22, 2024, the Centers for Medicare and Medicaid Services announced a new final rule requiring minimum staffing levels in nursing homes. The new rule applies to all nursing homes that receive funds from Medicare or Medicaid. Nursing homes must provide at least 3.48 hours of care per resident per day. This consists of […]
Cost of Long-Term Care
For many years, Genworth has produced a Cost of Care Survey tracking the cost of long-term care in America. According to the survey, the projected national monthly median costs will be as follows: Homemaker Services: $5,417 Home Health Aide: $5,625 Adult Day Health Care: $1,847 Assisted Living Facility: $4,917 Nursing Home Semi-Private Room: $8,641 Nursing […]
Opting Out of Arbitration Agreements
Ideally, health care providers do the right thing. Good Care is provided. There is no negligence. But what if they don’t do the right thing? What if they are negligent? Should you have the right to consider your options regarding how to hold them accountable? Over the past two decades, many long-term care providers, especially […]
Supreme Court Rules Nursing Home Resident Rights Are Enforceable Under Section 1983
Last year we reported that Talevski v. Health and Hospital Corporation of Marion County (HHC) was headed to the Supreme Court. On June 8, 2023, the U.S. Supreme Court issued its opinion, affirming the Seventh Circuit, and held that the Federal Nursing Home Reform Act (FNHRA) is enforceable under 42 U.S.C. § 1983. Justice Jackson […]
Updated Fact Sheet on Medicare Nursing Home Benefit
Medicare includes a nursing home benefit of up to 100 days following a qualifying hospital stay. The Medicare rehabilitation benefit is per spell of illness. On reason we say “up to” is because the Medicare benefit is a rehabilitation benefit and it ends when the need for skilled therapy ends. Historically, that meant Medicare coverage […]
Nursing Home Quality of Care Regulations Amended to Remove Expired COVID-19 Provisions
On June 5, 2023, the Centers for Medicare and Medicaid Services (CMS) amended 42 C.F.R. § 483.80 (infection control) and § 483.430 (Condition of participation: Facility staffing) to remove expired COVID-19 provisions. See 88 FR 36485. The specific amendments are: Section 483.80 is amended by removing paragraphs (h) and (i). Section 483.430 is amended by […]
Elder Law Mishmash June 2023
The following is a mishmash of information on various Elder Law, Special Needs Law, and Estate Planning issues. It also includes anything else we found interesting during the month of June, 2023. We will continue updating from time to time throughout the month. Last updated 6/8/2023. Keep in mind, you are using linked content at […]
CMS Oversight of Nursing Home Staffing Levels
Nursing homes are intended to be places of comfort and healing. More than 1.4 million individuals live in over 15,500 Medicare- and Medicaid-certified nursing homes across the nation. Everyone knows staffing is the most significant issue when determining whether your loved one gets the care he or she needs. Staffing levels have a direct impact […]
The Plaintiff’s Injury Case
There are many types of “Plaintiff’s cases.” This article focuses on injury cases. Injury cases can be as simple as a car wreck or as complex as a medical malpractice case. Regardless, they generally require four essential elements: duty, breach of duty, causation, and damages. See Calhoun First Nat’l Bank v. Dickens, 264 Ga. 285 […]
Should You Buy Long-Term Care Insurance
Like all insurance, long-term care insurance policies are designed to cover risk. With these policies, the risk is that you will need custodial care such as in-home care, assisted living care or nursing home care. The best thing about these policies is that they create a pool of someone else’s money you can use to […]
