The Centers for Medicare and Medicaid Services (CMS) has issued a “broad revision” to regulations that affect the care of more than 1.4 million nursing home residents across the country including over 16,000 people in skilled nursing facilities in Washington State according to SkilledNursingFacilities.org.
The U.S. Census Bureau in 2000 found that the fastest growing age group in the US is those ages 85 and over. About half of those ages 85 and over have memory problems such as Alzheimer’s disease which often leads to nursing home placement.
So these new CMS regulations affect not only a great number of people now, but also those who have family members who may need to move into care in the next few years.
These new regulations are to be phased in over the next three years and impact such diverse areas of care as: residents’ rights to autonomy, choice and privacy; access to personal and medical records; participating in care decisions; communication to the resident from the facility in a language the resident understands; personal financial management and safety of residents’ personal property.
Let’s look at how these new regulations can affect the care our loved ones receive and facilities implementing them:
1. Residents’ rights to autonomy, choice and privacy
The new regulations provide that nursing facilities must ensure that the resident can exercise his or her rights without interference, coercion, discrimination or reprisal from the facility.
CMS states that facilities may no longer reduce group activity time of a resident who is trying to organize a residents’ group; require residents to seek prior approval to distribute information about the facility; discourage a resident from hanging a religious ornament above their bed; or single out residents for prejudicial treatment such as isolating residents in activities or purposefully assigning inexperienced aides to a resident with heavy care needs because the resident or their representative exercises their rights, including making a report to a state long term care ombudsman.
2. Access to personal and medical records
The new regulations require that facilities provide residents access to personal and medical records within 24 hours (excluding weekends and holidays) upon an oral or written request in the form that the resident requests, including electronic format if the records are maintained electronically and are readily producible in that form.
A facility cannot require a written request as the regulations specifically equate an oral request with a written one. A facility must provide a copy of the records upon request and two working days notice.
3. Participating in care decisions
The new regulations require that residents have the right not only to be informed of, but also to participate in making care decisions.
The resident has the right to be informed, in advance, of information necessary to make a health care decision, including advance directives. CMS directs that state surveyors visiting facilities look for ongoing efforts of the facility to communicate with residents regarding their care in a way that residents can understand.
Obviously it isn’t helpful or adequate communication to residents if the only materials available on care decisions are printed in small type in English if the resident is vision impaired or speaks another language. Facilities will need to be sensitive to language and cultural differences as well as sensory changes such as hearing and vision impairments that affect how residents can effectively receive communication.
Residents who are competent will now have the right to designate a resident “representative.”
Discharge planning must include an evaluation of the resident’s needs and discharge plan, which must be discussed with the resident or their representative and included in the clinical record.
However, if the facility has reason to believe that the resident representative is making decisions or taking actions that are not in the best interest of a resident, the facility shall report such concerns as required under state law.
4. Communication to the resident from the facility in a language the resident understands
The new regulations also require that information on a resident’s total health status, including functional status, medical care, nursing care, nutritional status, rehabilitation and restorative potential, cognitive status and more, be presented in a in a language the resident understands.
This could mean Braille materials, a sign language or foreign language interpreter, removal of technical jargon and or materials at a lower grade reading level. It could also mean the use of pictures for those who cannot read and voice amplifiers for those who have difficulty hearing.
5. Personal financial management
The new regulations also prohibit a facility from requiring that residents deposit their personal funds with the facility as the resident has the right to manage their own financial affairs.
This now includes the right to know, in advance, what charges the facility may impose against the resident’s personal funds. If the resident chooses to deposit their personal funds with the facility, then the facility must act as the fiduciary of the resident’s funds.
This new fiduciary responsibility holds facilities accountable and potentially exposes them to greater civil, liability for breach of their fiduciary duty in the case of mismanagement of residents’ personal funds. In the case of non-Medicaid residents, the facility must deposit resident’s funds in excess of $100 in an interest-bearing account that is separate from the facility’s operating accounts and the interest on that account is credited to the resident’s account.
In the case of residents on Medicaid, the separate deposit interest bearing account regulation applies to resident funds greater than $50. This will put additional staffing and bookkeeping pressures on facilities to properly manage resident funds.
6. Safety of residents’ personal property
The new regulations will have a great impact on facility safety and management of residents’ personal property. Under the new regulations, a facility cannot ask or require that a resident or potential resident sign a waiver to waive potential facility liability for losses of personal property such as eyeglasses, dentures and hearing aids.
Further, when a resident is discharged or dies, the facility must convey the resident’s funds to the resident or the individual who is administering the resident’s probate estate along with a final accounting of the funds. Formerly, this rule only applied in the case of death.
Christina M. Davitt is of counsel to Ogden Murphy Wallace P.L.L.C. Her practice focuses on elder law including estate planning, guardianship and probate, health law and business matters. She is a Washington State Certified Professional Guardian and acts as a Title 11 guardian ad litem. She also worked as a geriatric nurse practitioner for Saint Vincents Medical Center in New York and is a co-author of Case Studies in Geriatric Medicine.