Medicare and Medicaid were signed into law in 1965. Since then, federal acts and regulations have been passed requiring nursing homes that desire to qualify for payments under those programs to provide certain standards of conduct and care to their residents. Those acts and regulations include:
Omnibus Budget Reconciliation Act of 1987 (OBRA 87 - The Nursing Reform Act)
This act assures quality of care in skilled nursing facilities. It states that to qualify under its program, a nursing home “must provide services and activities to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident…”
Omnibus Budget Reconciliation Act of 1990 (OBRA 90)
This act has thirteen titles addressing a variety of areas including Medicaid programs and providers, and standardizing policies and curbing marketing abuses for Medicare Supplemental insurance.
Americans with Disabilities Act (ADA – The Patient Self Determination Act)
This act seeks to establish a clear and comprehensive prohibition of discrimination on the basis of disability. Among other things, it requires accessibility to places of public accommodations and commercial facilities by individuals with disabilities.
Under OBRA 87, nursing homes “must provide services and activities to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident in accordance with a written plan of care…”
To participate in the Medicare and Medicaid programs, nursing homes must be in compliance with the federal requirements for long term care as prescribed in the U.S. Code of Federal Regulations (42 CFR Part 483). Following are some of those requirements.
Sec. 483.10 Resident rights
The resident has a right to a dignified existence, self-determination, and communication with and access to persons and services inside and outside the facility. A facility must protect and promote the rights of each resident.
Sec. 483.12 Admission, transfer and discharge rights
The facility must permit each resident to remain in the facility, and not transfer or discharge the resident from the facility unless under legally specified conditions.
Sec. 483.13 Resident behavior and facility practices
The resident has the right to be free from any physical or chemical restraints imposed for purposes of discipline or convenience.
The resident has the right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion.
Sec. 483.15 Quality of life
A facility must care for its residents in a manner and in an environment that promotes maintenance or enhancement of each resident's quality of life.
The facility must promote care for residents in a manner and in an environment that maintains or enhances each resident’s dignity and respect in full recognition of his or her individuality.
The facility must provide a safe, clean, comfortable, and home-like environment, and housekeeping and maintenance services necessary to maintain a sanitary, orderly, and comfortable interior, as well as
clean bed and bath linens that are in good condition.
The facility must ensure that the resident has the right to choose activities, schedules, and health care consistent with his or her interests, assessments and plan of care.
Sec. 483.20 Resident assessment
The facility must conduct initially and periodically a comprehensive, accurate, standardized, assessment of each resident's functional capacity.
The facility must develop a comprehensive care plan for each resident that includes measurable objectives and timetables to meet a resident’s medical, nursing, and mental and psychosocial needs that are identified in the comprehensive assessment.
Sec. 483.25 Quality of care
Each resident must receive the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care.
The facility must prevent the deterioration of a resident’s ability to bathe, dress, groom, transfer and ambulate, toilet, eat, and to use speech, language or other functional communication systems.
The facility must provide, if a resident is unable to carry out activities of daily living, the necessary services to maintain good nutrition, grooming, and personal and oral hygiene.
The facility must ensure that residents receive proper treatment and assistive devices to maintain vision and hearing abilities.
The facility must ensure that residents do not develop pressure sores and, if a resident has pressure sores, must provide the necessary treatment and services to promote healing, prevent infection and prevent new sores from developing.
The facility must provide appropriate treatment and services to incontinent residents to restore as much normal bladder functioning as possible and prevent urinary tract infections and to restore as much normal bladder function as possible.
The facility must ensure that the resident receives adequate supervision and assistive devices to prevent accidents.
The facility must ensure that a resident maintains acceptable parameters of nutritional status, such as body weight and protein levels.
The facility must provide each resident with sufficient fluid intake to maintain proper hydration and health.
The facility must ensure that residents are free of any significant medication errors.
Sec. 483.30 Nursing services
The facility must 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.
Sec. 483.35 Dietary services
The facility must provide each resident with a nourishing,
palatable, well-balanced diet that meets the daily nutritional and
special dietary needs of each resident.
The facility must procure food from government approved sources; store, prepare, distribute, and serve food under sanitary conditions; and
dispose of garbage and refuse properly.
Sec. 483.40 Physician services
A physician must personally approve in writing a recommendation that an individual be admitted to a facility. Each resident must remain under the care of a physician.
The facility must ensure that the medical care of each resident is supervised by a physician and must provide or arrange for the provision of physician services 24 hours a day, in case of an emergency.
Sec. 483.45 Specialized rehabilitative services
If specialized rehabilitative services are ordered in writing by a physician for the resident, the facility must provide the required services, or obtain them from a qualified outside provider.
Sec. 483.55 Dental services
The facility must assist residents in obtaining routine and 24-hour
emergency dental care.
Sec. 483.60 Pharmacy services
The facility must provide pharmaceutical services (including procedures that assure the accurate acquiring, receiving, dispensing, and administering of all drugs and biologicals) to meet the needs of each resident.
Sec. 483.65 Infection control
The facility must establish and maintain an infection control program designed to provide a safe, sanitary, and comfortable environment and to help prevent the development and transmission of disease and infection.
Sec. 483.70 Physical environment
The facility must be designed, constructed, equipped, and maintained
to protect the health and safety of residents, personnel and the public.
Sec. 483.75 Administration
A facility must be administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident.
The facility must maintain clinical records on each resident in accordance with accepted professional standards and practices that are complete, accurately documented, readily accessible, and systematically organized.
CALIFORNIA STATE LAW
In addition to federal laws and regulations, many states have enacted laws covering the care of elder and dependent adults. State laws must be at least as stringent as the federal laws, and normally are even tougher.
The state of California, recognizing that elders are subject to risks of abuse, neglect, and abandonment, has enacted the Elder Abuse and Dependent Adult Civil Protection Act. The act provides that “adult protective services agencies, long-term care ombudsman programs, and local law enforcement agencies shall receive complaints and take any actions considered necessary to protect the elder or dependent adult and correct the situation and ensure the individual’s safety.” The act further provides that interested persons be enabled “to engage attorneys to take up the cause of abused elderly persons and dependent adults.”
If you believe that a love one has been the victim of a law designed to protect elders and dependent adults from abuse or neglect, and you would like more information, or a consultation with an Elder Abuse attorney, call (800) 215-1190 toll free.