Transcript Contracting for Long Term Care: What clients need to know

Contracting for Long Term Care:
What clients need to know when selecting
and dealing with eldercare facilities
Christian S. Kelso, Esq.
Winn, Beaudry & Winn, Attorneys at Law
4200 Thanksgiving Tower
1601 Elm St.
Dallas, Texas 75201
214-969-0001
csk@wbwllp.com
Be nice to your kids. They get
to pick your nursing home!
The Problem
• More and more Americans are reaching an
age where they need increased care and
assistance with daily living.
• Most Americans will be involved with
selecting no more than1 or 2 nursing homes
in their lifetime (typically for their parents).
• Typically, this is done after some emergency,
so the decision maker is stressed, hurried
and vulnerable.
The Problem
• Entering a home carries stigma and is often
made under protest by the resident and/or
other family members
• Eldercare facilities are tremendously
expensive.
• The quality of eldercare facilities varies
greatly.
• The amount of information available to
decision makers can be overwhelming.
Presentation Objectives:
• Understand what to look for when deciding on
a home for yourself or a client or loved one
• Understand what rights exist for those living
in an eldercare facility
• Understand how to approach potential
problems that may arise
• Understand what is required of you or your
client if abuse is suspected
The Basics – Levels of Care
• Assisted Living
– For people who may need some assistance but
still want to maintain as much personal space and
independence as possible
– Services vary greatly, but generally provide:
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Meals
Personal Care
Social activities
24-hr supervision
The Basics – Levels of Care
• Nursing Home:
– For individuals requiring more help than assisted
living is able to provide
– May be specialized to cater to a specific ailment
– Additional services:
• Provides for more basic needs, such as bathing, toileting
and other ‘activities of daily living’
• Nurses on staff
• One or more doctors who make regular visits
The Basics – Levels of Care
• Skilled Nursing
– Often a temporary stop between a hospital and
home or another facility
– Tends to focus on rehabilitation rather than
serving as a permanent home
The Basics – Levels of Care
• Hospice
– Care for terminally ill
– Focus on pain management rather than curing
illnesses
– Provides more emotional/spiritual support
The Basics – Levels of Care
• Continuing Care Retirement Community
– Multiple levels of care and services
– Availability of various services determined under
an initial contract, which often allows for the level
of care to be escalated, as needed
Selection - Generally
• Selecting a community can be thought of as a
three-step process
– First, the field of potential candidates must be
narrowed to a manageable number
– Next, each of the finalists must be evaluated and
inspected
– Finally, an agreement should be reached between
the facility and the resident (or the resident’s
representative)
Selection - Narrowing
• Narrowing the field requires the decision
maker to determine what facilities are
available and then factor in the resident’s
preferences to arrive at a good match.
• Not every facility is right for every person!
• Remember also that higher expense may not
mean higher quality!!
Selection - Narrowing
• First, determine the level of care needed
– Is nursing care warranted or is assisted living sufficient?
– Will the stay be permanent or temporary?
– Is specialized care needed?
• Security and monitoring for Alzheimer’s sufferers?
• Dietary services for the malnourished?
• Rehabilitation for stroke or accident victims?
• Next, determine when space might be available
– Those needing space immediately will fine their options
more limited
Selection - Narrowing
• Once you know what is available, you can
factor in the resident’s preferences
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Will they like the look of the facility?
What activities do they like?
Will their transportation needs be met?
Is their language spoken?
Might resident (or staff) demographics be a
problem?
Selection - Narrowing
• Other considerations when narrowing the
field of prospective facilities:
– How will the care be paid for?
– Which family member will take the lead?
• It is typically not advisable to care for loved ones
democratically, but this does not mean that tasks cannot
be delegated to keep everyone involved
– What is the proximity to family and friends?
Selection - Evaluation
• Once the pool of potential facilities has been
narrowed to a manageable group of finalists,
individualized evaluation can begin.
• This involves significant leg work which some
decisions makers might find daunting.
– Elderly spouses may not understand
– Younger family members may be pressured at work or home
• Although a significant amount of research can be
done online, on-site inspection is also required
Selection - Evaluation
• A wide array of online resources are available to help
you compare different facilities, including:
– Texas Department of Aging and Disability Services (DADS) Long
Term Care Quality Reporting Service (QRS), available at:
• http://facilityquality.dads.state.tx.us
– Medicare’s Nursing Home Compare (NHC), available at:
• http://www.medicare.gov/NHCompare
– Department of Health & Human Services’ Eldercare Locator,
available at:
• http://www.eldercare.gov
Selection - Evaluation
• Additionally, onsite evaluation is a must
• Decision makers should check for:
– Interactions between staff and residents
• Do staff members gather and chat or walk the floor?
– Response times to resident’s rooms
• Press a call button and see how long it takes someone to
show up.
– Odors
• Occasional bad smells are common in most facilities, but
pervasive or stale odors are a sign of neglect.
Selection - Evaluation
• Decision makers should also:
– Observe residents’ open doors
• Sights and sounds from within an existing resident’s
room can be informative.
– Talk to volunteers
• Volunteers who regularly visit many different facilities will
be able to provide a more balanced and informative
report than spokespeople who live at the facility.
– Make multiple visits at different times
• Most facilities know that weekend are convenient, so visit
during the week when you’re not expected.
Selection - Contracting
• The final step in the selection process is
arriving at an agreement with the facility.
• Reviewing the desired facility’s standard
contract may also serve as a method of
evaluation.
• Unless the decisions maker is an attorney,
this is often where the attorney gets involved.
– Attorneys receiving this call should remember that
their clients have been through the process above.
Selection - Contracting
• Eldercare facilities are subject to special
rules that:
– Supplement traditional contract theory
• Review with same care as any contract
– Stem from a number of federal and state
sources
– Are primarily administrative
– Can be highly bureaucratic
Legal Framework
• Nursing Home Reform Act (NHRA)
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42 USC §1395i-3 (Medicare certified facilities)
42 USC §1396r (Medicaid certified facilities)
Regs at 42 CFR §483
Statutes apply to private pay facilities as well
• Texas Administrative Code (TAC), Title 40
– Mirrors federal rules and is sometimes more comprehensive
• Texas Health & Safety Code (THSC) §242.502
– Nursing Home Resident’s Bill of Rights
• Texas Human Resources Code (THRC)
– Abuse Reporting requirements
Residents’ Bill of Rights:
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Sec. 242.501. RESIDENT'S RIGHTS. (a) The department by rule shall adopt a statement of the rights of a resident.
The statement must be consistent with Chapter 102, Human Resources Code, but shall reflect the unique
circumstances of a resident at an institution. At a minimum, the statement of the rights of a resident must address the
resident's constitutional, civil, and legal rights and the resident's right:
(1) to be free from abuse and exploitation;
(2) to safe, decent, and clean conditions;
(3) to be treated with courtesy, consideration, and respect;
(4) to not be subjected to discrimination based on age, race, religion, sex, nationality, or disability and to practice the
resident's own religious beliefs;
(5) to place in the resident's room an electronic monitoring device that is owned and operated by the resident or
provided by the resident's guardian or legal representative;
(6) to privacy, including privacy during visits and telephone calls;
(7) to complain about the institution and to organize or participate in any program that presents residents' concerns
to the administrator of the institution;
(8) to have information about the resident in the possession of the institution maintained as confidential;
(9) to retain the services of a physician the resident chooses, at the resident's own expense or through a health care
plan, and to have a physician explain to the resident, in language that the resident understands, the resident's
complete medical condition, the recommended treatment, and the expected results of the treatment, including
reasonably expected effects, side effects, and risks associated with psychoactive medications;
(10) to participate in developing a plan of care, to refuse treatment, and to refuse to participate in experimental
research;
(11) to a written statement or admission agreement describing the services provided by the institution and the related
charges;
Residents’ Bill of Rights
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(12) to manage the resident's own finances or to delegate that responsibility to another person;
(13) to access money and property that the resident has deposited with the institution and to an accounting of the
resident's money and property that are deposited with the institution and of all financial transactions made with or on
behalf of the resident;
(14) to keep and use personal property, secure from theft or loss;
(15) to not be relocated within the institution, except in accordance with standards adopted by the department under
Section 242.403;
(16) to receive visitors;
(17) to receive unopened mail and to receive assistance in reading or writing correspondence;
(18) to participate in activities inside and outside the institution;
(19) to wear the resident's own clothes;
(20) to discharge himself or herself from the institution unless the resident is an adjudicated mental incompetent;
(21) to not be discharged from the institution except as provided in the standards adopted by the department under
Section 242.403;
(22) to be free from any physical or chemical restraints imposed for the purposes of discipline or convenience, and
not required to treat the resident's medical symptoms; and
(23) to receive information about prescribed psychoactive medication from the person prescribing the medication or
that person's designee, to have any psychoactive medications prescribed and administered in a responsible manner,
as mandated by Section 242.505, and to refuse to consent to the prescription of psychoactive medications.
Rights – Practical Application
• The list above is long, complex and only
describes a small part of applicable law.
• Practical examples of prohibited
practices are more informative
Rights – Practical Application
• Problem #1 – Care Plan Violations
– Facility may not decide unilaterally what care the
resident will receive
– Texas and federal law require a comprehensive
“care plans”
– Must be implemented by group of professionals
and resident or representative
– Reviews required quarterly and major reviews
required annually
Rights – Practical Application
• Problem #2 – Resident Preferences
– Facility may not dictate schedules or deny
unreasonable meal requests
– Residents have the right to reasonable
accommodations of individual needs and
preferences, except where health or safety
concerned
– NHRA §483.15
– TAC §19.701
Rights – Practical Application
• Problem #3 – Necessary Services
– Facility must provide all necessary services and
may not require that the resident pay for such
services independently.
– Standard = Care needed to reach “highest
practicable level of functioning”
• NHRA §483.25
Rights – Practical Application
• Problem #4 – Restraints
– Facility may not use restraints beyond those
required to treat medical symptoms
– Includes physical & chemical restraints
– Only allowable to ensure physical safety
– Requires physician’s order (unless emergency)
– Improper restraints may be grounds for claim of
assault and/or unlawful restraint
• See Texas Penal Code §22.01
Rights – Practical Application
• Problem #4 – Restraints (cont’d)
– Restraints used for discipline or convenience of
the facility are a particular red flag
• See 42 CFR 483.13(a)
– Note that failure to use restraints can also create a
cause of action.
• See Golden Villa Nursing Home, Inc. v. Smith, 674
S.W.2d 343 (Tex. App.—Houston [14th Dist.] 1984, writ
ref’d n.r.e)
Rights – Practical Application
• Problem #5 – Feeding tubes
– Facilities may not use feeding tubes except as a
last resort
• See 42 CFR 483.25; 42 TAC §19.901
– Feeding tubes are painful
– Studies show that feeding tubes are ineffective
– If a feeding tube is requested by a doctor or nurse,
families should be informed of alternative forms of
care
Rights – Practical Application
• Problem #6 – Visitors
– Visiting hours may not be limited by a facility
– Residents may have visitors at any time, day or
night
– Visiting in off hours may assist a caregiver in
assessing the quality of care
– See NHRA §483.10; 40 TAC §§19.413
&19.705
Rights – Practical Application
• Problem #7 – Guarantors
– Facilities may not require a 3rd party guarantor as
a condition for admission
• See 42 CFR 483.12(d)(2); 42 TAC §19.501 et seq.
– Guarantor will often be dubbed “responsible party”
Rights – Practical Application
• Problem #8 - Private Meetings
– A facility cannot deny privacy for meetings with
family, attorneys or resident councils
Rights – Practical Application
• Problem #9 – Medicare/Medicaid
– Numerous issues surround Medicare/Medicaid
– Facility must provide care no matter what the
source of payment
– Therapy may not end merely because benefits
end
– Facilities must assist in proper billing
Problems
• What happens when things go wrong?
• Filing a lawsuit is probably not the best first action.
– Remember who you’re dealing with!! Staff will typically want
to help, so be as friendly as possible.
• A facility should have a procedure for filing and
escalating grievances
– Nurse, Head Nurse, Director of Nursing, Administrator
• If not, the state does.
– DADS Long-Term Care Ombudsman is a good place to start
• If security is an issue, install “nanny cams”
– Facilities may not prohibit this
Litigation
• Parties wishing to litigate alleged violations
should consider the following:
– There is no independent right to sue a nursing
home for violating a federal statute (such as the
NHRA), but common law principals may apply
where a facility has violated an accepted standard
of care established by the federal rule.
– Also, tort reform has had a tremendous impact on
such litigation.
Watch Out!
• Texas has a mandatory reporting statute authorizing
criminal punishment for those who fail to report:
– Abuse
– Exploitation
– Neglect
• Attorney-client confidentiality is no exception!
– See THRC §48.051
• Penalty may be up to $4,000 and/or 1 year in jail
– Tex. Penal Code §12.21
Watch Out! – Types of Abuse
• Injury
– Serious bodily injury
– Serious mental deficiency, impairment or injury
• Neglect
– Failure to provide goods or services necessary to
avoid physical or emotional harm or pain
• Exploitation
– Illegal or improper act or process by which the
victim’s resources are used for profit or gain of
another without the victim’s informed consent
Watch Out! – What to do
• Texas law requires a person having cause to believe
that an elderly or disabled person is in the state of
abuse, neglect or exploitation to report certain
required information immediately
– THRC §48.051
• If abuse of an elderly person is suspected, call Adult
Protective Services at 1-800-252-5400 of visit their
website at: www.txabusehotline.org
• For emergency situations, call 9-1-1 immediately!
– Standard = Immediate risk of abuse or neglect that could
result in death or serious bodily harm.
Questions?