The Challenges of Today s Changing Nursing Home Population: Balancing the Three R s Rights, Regulations and Requirements

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1 The Challenges of Today s Changing Nursing Home Population: Balancing the Three R s Rights, Regulations and Requirements By: Danielle Holley, Esq. O Connell & Aronowitz

2 Beyond the Basics for the Admissions Process The Basics: Capacity of the Resident Responsible Part(ies) Legally Authorized Representative Documentation and Admission Agreement Considerations Beyond the Basics examples: Early onset dementia? Sex offender status? Special needs? 2

3 Case Example 1: Resident A Background upon admission: Diagnosis: Frontal Lobe Dementia and expressive aphasia Male, Mid 50s Lacks capacity Signs of aggression & agitation Treatment recommendations: Multiple psychiatric medications Developing Issues Legally authorized representative is refusing some psychiatric medications Patient is aggressive and violent towards staff and other residents Police are called multiple times 3

4 Case Example 2 - Resident B Background upon admission: Male, 65 years of age Needs assistance and has some cognitive deficit but has capacity Issues that developed Resident began lurking and trying to touch other residents Learned after admission that resident was a Level 2 sex offender Concerns raised regarding notification to other residents and implementing appropriate plan of care 4

5 News Stories Across the Nation on Sex Offenders 5 Iowa lawmakers: Don't send aging sex offenders to nursing homes, GAO Report Long-Term Care Facilities: Information on Residents Who Are Registered Sex Offenders or Are Paroled for Other Crimes, available at GAO htm Lawmakers: Sex offenders in nursing homes issue begs for answers, available at Assault at nursing home raises questions about why sex offender was living there, available at Study finds sex offender living at nursing home, available at 7News Investigation Exposes Sex Offenders in Nursing Homes Across Massachusetts, available at

6 Relevant Regulations Resident Living 6 All residents have the right to be free from verbal, sexual, mental or physical abuse, corporal punishment and involuntary seclusion, and free from chemical and physical restraints except those restraints authorized in accordance with section of this Part. 10 N.Y.C.R.R (c)(1)(vii) Residents have a right to reside and receive services in the facility with reasonable accommodation of individual needs and preferences, except when the health or safety of the individual or other residents would be endangered. 10 N.Y.C.R.R (e) facility shall have sufficient nursing staff to provide nursing and related services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by resident assessments and individual plans of care. The facility shall assure that each resident receives treatments, medications, diets and other health services in accordance with individual care plans 10 N.Y.C.R.R (c) The facility shall ensure that all residents are afforded their right to a dignified existence, self-determination, respect, full recognition of their individuality, consideration and privacy in treatment and care for personal needs and communication with and access to persons and services inside and outside the facility. 10 N.Y.C.R.R (a) 6

7 Relevant Regulations - Medication Nursing homes may order and use psychotropic medications to treat a specific documented illness or condition and not otherwise contraindicated for a given resident 10 N.Y.C.R.R (l) Psychotropic drugs shall be used, except in emergencies, only as an integral part of a resident's comprehensive care plan and only after alternative methods for treating the condition or symptoms have been tried and have failed 10 N.Y.C.R.R (l) Psychotropic medications cannot be used for purposes of discipline or convenience, and not required to treat the resident's medical conditions or symptoms. 10 N.Y.C.R.R (a)(1) Nursing homes have an obligation to discontinue these drugs and assist the resident to attain and maintain optimum physical and emotional functioning if clinically indicated. 10 N.Y.C.R.R (l). 7 7

8 Laws & Regulations on Sex Offenders New York does not prohibit sex offenders from living in a nursing home (some states do have restrictions) In fact, New York prohibited Suffolk County from passing a local ordinance to restrict housing that was overturned see People v. Diack, 24 N.Y.3d 674 Sex Offender Registration Act (SORA) Sexual Assault Reform Act in 2000 (SARA) Sex Offender Management and Treatment Act (SOMTA) in 2007 Chapter 568 (2008) and 9 N.Y.C.R.R

9 Resident Living Concerns The Rise of Social Media In the past year there have been numerous articles and commentary raising concerns about residents and social media August 15, 2016 CMS issued a memorandum to State Survey Agency Directors on Protecting Resident Privacy and Prohibiting Mental Abuse Related to Photographs and Audio/Video Recordings by Nursing Home Staff The memorandum was directed in response to media reports over staff abuses; however, the issues to protect resident privacy apply equally to visitors and family members of residents 9

10 10 CMS Memorandum

11 11

12 Beyond the Basics Why is it Important? Nursing homes bear the burden of ensuring resident s rights are properly addressed both individually and as a whole Screening and understanding additional factors regarding the individual allows nursing homes to Place residents in the appropriate room Creating the appropriate care plan Train staff 12

13 Next Steps Review policies and procedures Review policies for social media if haven t already create social media policy for staff Consider drafting social media policy for visitors Ensure policy on assessing residents encompasses other factors Do Training Have training on effective plans of care for more complicated residents Ensure staff and facility are aware of policy related to social media Review implementation continued oversight! 13

14 Moving Beyond Admission - Grounds for Discharge Under 10 N.Y.C.R.R (h)(1)(i)(a), a facility may transfer or discharge a resident, in consultation with the resident or the resident's designated representative, when it is determined that: the transfer or discharge is necessary for the resident s welfare and the resident s needs cannot be met after reasonable attempts at accommodation in the facility; 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; the safety of individuals in the facility is endangered; or the health of individuals in the facility is endangered. Under 10 N.Y.C.R.R (h)(1)(i)(b), a resident may also be discharged when the resident has failed, after reasonable and appropriate notice, to pay for (or to have paid under Medicare, Medicaid or third-party insurance) a stay at the facility. 14

15 15 Discharge Notice Requirements 10 N.Y.C.R.R (h)(1)(v) The written notice shall include the following: (a) the reason for transfer or discharge; (b) the specific regulations that support, or the change in Federal or State law that requires, the action; (c) the effective date of transfer or discharge; (d) the location to which the resident will be transferred or discharged; (e) a statement that the resident has the right to appeal the action to the State Department of Health, which includes: (1) an explanation of the individual's right to request an evidentiary hearing appealing the decision; (2) the method by which an appeal may be obtained; (3) in cases of an action based on a change in law, an explanation of the circumstances under which an appeal will be granted; (4) an explanation that the resident may remain in the facility (except in cases of imminent danger) pending the appeal decision if the request for an appeal is made within 15 days of the date the resident received the notice of transfer/discharge; (5) in cases of residents discharged/transferred due to imminent danger, a statement that the resident may return to the first available bed if he or she prevails at the hearing on appeal; and (6) a statement that the resident may represent him or herself or use legal counsel, a relative, a friend, or other spokesman; (f) the name, address and telephone number of the State long-term care ombudsman; (g) for nursing facility residents with developmental disabilities, the mailing address and telephone number of the agency responsible for the protection and advocacy of developmentally disabled individuals established under Part C of the Developmental Disabilities Assistance and Bill of Rights Act; (h) for nursing facility residents who are mentally ill, the mailing address and telephone number of the agency responsible for the protection and advocacy of mentally ill individuals established under the Protection and Advocacy for Mentally Ill Individuals Act

16 Discharge Steps Determine if the resident meets one (or more) of the criteria to be discharged *Consult with the resident (if has capacity) or the legally authorized representative Document the consultation (or inability to consult) with the legally authorized representative Completely document the clinical record Before discharging, notify the resident or his/her legally authorized representative and document Provide the notice requirements for at least 30 days except if immediate discharge is required Do your discharge plan Permit the resident, or legally authorized representative, the opportunity to participate in deciding where the resident will reside after discharge Advise resident of the right to appeal 16

17 Most Common Discharge Issues at Hearing Failure to consult with resident or his/her legally authorized representative Not sufficiently documenting imminent danger health and/or safety Discharging to hospital Discharging when conflict arises with legally authorized representative over psychotropic medications 17

18 Steps to Address Discharge Issues Exhaust all reasonable accommodations Get the Medical Director involved Try mediation When starting the discharge process, consult with the resident or legally authorized representative and DOCUMENT consultation Document all incidences and issues arising with other residents Create a safe discharge plan 18

19 QUESTIONS? Danielle Holley, Esq. 19