Understanding the New Protections for Nursing Home Residents

Daughter Hugging Elder Mother: Protections for Nursing Home Residents

When older adults enter nursing homes and long-term care facilities, they shouldn't have to check their safety, dignity, and control over their lives at the door. New federal rules are being rolled out to assure nursing home residents have more agency over their treatment and care. Facilities must comply with the rules in order to receive Medicare and Medicaid payments.

Nursing home regulations have evolved over time, but have not received a comprehensive revision for over 25 years: the last such updated was in 1991. During the Obama administration, an extensive overhaul of these regulations took place, with the first changes being implemented in November 2016 and the remainder gradually taking effect over the two subsequent years.

The goal of reviewing and revising rules applying to nursing homes was to improve residents' care and quality of life. In some places, new regulations were added to address new or unmet needs; in others, rules that were duplicative or outdated were culled to make compliance less burdensome. In general, the update was intended to bring legal requirements into alignment with existing standards of clinical practice.

New Rules Finalized by Centers for Medicare and Medicaid

The new rules that have been finalized by the Centers for Medicare and Medicaid generally offer nursing home residents more agency over their day to day lives. They include:

Visitors and Visiting Hours: Residents may choose whom they want to visit them and when, and visitors cannot be limited to a period of visiting hours imposed by the care facility. Subject to the preference of the resident, the nursing home must grant all visitors equal privileges and must not discriminate on the basis of race, color, national origin, religion, sex, gender identity, sexual orientation, or disability. Non-family visitors are subject to "reasonable clinical and safety restrictions," but a resident representative has been added to a list of people who must have immediate and unrestricted access to the resident Language regarding resident's access to a spouse or domestic partner is now specifically inclusive of spouses or partners of the same sex.

Roommates: So long as both parties agree to the arrangements, residents can now choose their own roommates in a nursing home.

Grievances: Residents have a right to file grievances against the nursing home. The facility is required to have a designated official for handling complaints and a grievance policy. This policy must explain how to contact the grievance official, how to file a grievance, the time frame for resolution, and other agencies with which the resident can file a grievance. Grievance decisions must be in writing, and residents should not have to fear retribution or discrimination for registering a grievance.

The new rules initially included a prohibition on requiring residents to agree, prior to a dispute actually arising, to resolve any disputes through binding arbitration. However, an association of nursing homes sued for and received a temporary injunction against this provision being implemented. It is expected that the current administration will lift the ban, allowing nursing homes to require residents to agree to arbitrate future disputes.

Transfer or Discharge: Under the new rules, nursing homes may not discharge residents for nonpayment if Medicaid or another third-party payor is in the process of considering a claim for payment. The new rules also limit the circumstances under which a resident can be transferred or discharged for nonpayment. Notices regarding an intended discharge or transfer must be sent in writing to not only the resident but the resident representative and the Long-Term Care Ombudsman program. In addition, a nursing home may not discharge a resident during a pending appeal.

Preserving the Rights of Nursing Home Residents

The population of nursing homes is expected to increase in the coming decades. It's reassuring to know that long-term care facilities have updated guidance and rules to help the surging number of residents continue to age with the dignity they deserve. You can read the complete text of the new rules and regulations from the Centers for Medicare and Medicaid to learn more about the updated requirements.

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