Federal and State Nursing Home and Malpractice Statutes
A. Federal Laws regarding Nursing Homes or Skilled Nursing facilities
- OBRA 1987; 42 U.S.C. 1396R, 42 U.S.C. 1395i-3; 42 C.F.R. § 483.10, et seq. and the regulatory scheme for enforcement
In 1987, President Ronald Reagan signed into law the first major revision of the federal standards for nursing home care since the 1965 creation of both Medicare and Medicaid. This landmark legislation, known at Omnibus Reconciliation Act of 1987 (OBRA 1987) changed society’s legal expectations of nursing homes care. Long-term care facilities seeking to participate in the Medicare or Medicaid programs were required to meet the minimum standards set forth under OBRA, along known at the Nursing Home Reform Act.
It was not until 1995 that the federal government issued regulations to implement the survey process, under which nursing homes would be subject to annual inspections to determine compliance with these new regulatory standards.
The primary objective of OBRA was to ensure that residents of skilled nursing facilities would receive quality care that will result in their achieving or maintaining their “highest practicable” physical, mental, and psychosocial well-being.” To secure quality care in nursing homes, the Nursing Home Reform Act requires the provision of certain services to each resident and establishes a Residents’ Bill of Rights.
Examples of Regulatory Standards flowing from OBRA include the following:
- Federal OBRA regulations §483.20(k) Resident assessment specifies that “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.”
- Federal OBRA regulations §483.10 (b)(11)(B and C) requires that a facility immediately consult with the resident’s physician when there is a significant change in the resident’s physical status and/or a need to alter treatment significantly.
- Federal OBRA regulations §483.25 (c) (1) requires that “a resident who enters the facility without pressure sores does not develop pressure sores unless the individual’s clinical condition demonstrates that they were unavoidable….” §483.25 (c) (2) specifies that “a resident having pressure sores receives necessary treatment and services to promote healing, prevent infection and prevent new sores from developing.”
- Federal OBRA regulations Section 483.20 (b) (1) (xii) requires a facility to make periodic comprehensive patient assessments [including skin condition].
- Federal OBRA regulations §483.75 (1) requires that nursing facilities maintain records on each resident in accordance with accepted professional standards and practice. F tag 514 provides guidance to surveyors in interpreting Federal OBRA regulations §483.75 (1), specifically requiring that clinical records are complete, accurately documented, easily accessible, and systematically organized. The CMS Interpretive Guidelines for F tag 514 direct state surveyors to ask the following question during the survey: “Is there enough record documentation for staff to conduct care programs and revise the program, as necessary, to respond to changing status of the resident as a result of interventions?”
- Federal OBRA regulations §483.13 (c) specifies that “the facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents.”
- The Nursing Home Reform Act established the following rights for nursing home residents:
- The right to freedom from abuse, mistreatment, and neglect;
- The right to freedom from physical restraints;
- The right to privacy;
- The right to accommodation of medical, physical, psychological, and social needs;
- The right to participate in resident and family groups;
- The right to be treated with dignity;
- The right to exercise self-determination;
- The right to communicate freely;
- The right to participate in the review of one’s care plan, and to be fully informed in advance about any changes in care, treatment, or change of status in the facility; and
- The right to voice grievances without discrimination or reprisal.
To monitor whether a SNF meet the Nursing Home Reform Act requirements, the federal government established a certification process that requires states to conduct unannounced surveys, at intervals at least once every 15 months. The surveys generally focus quality of care issues, medication administrations, injuries to residents, violation of residents’ rights, along with other issues. Surveyors also conduct more targeted surveys, or complaint investigations, in response to complaints against nursing homes by residents or their families.
If the inspection reveals that a nursing home is out of compliance, the SNF can be fined and required to correct the problem. The severity of the remedy depends on whether the violation or deficiency puts a resident in immediate jeopardy, and whether the deficiency is an isolated incident, part of a pattern, or widespread throughout the facility. For most violations, the nursing facility has an opportunity to correct the deficiency before remedies may be imposed. Any or all of the following sanctions can be imposed to enforce compliance with OBRA:
- Directed in-service training of personnel;
- Directed plan of correction to prevent recurrence;
- State monitoring of facility for future violations;
- Civil monetary penalties, which are based on the severity of the violation;
- Denial of payment for all new Medicare or Medicaid admissions;
- Temporary management of facility by third parties; and/or
- Termination of the provider agreement or exclusion from the Medicare program.
B. The Hi Tech Act 42, USC 139w-(4)(2)(Feb. 2009); 45 C.F.R. 164.502 (g)
The HITECH Act was created to promote the adoption of health information technology, specifically, the use of electronic health records (EHRs) by healthcare providers. It also allows patients to obtain medical records at significantly reduced costs by requesting an electronic copy of the records. Under the HITECH Act, any fee that a covered entity may impose for providing a copy of electronic health records “shall not be greater than the entity’s labor costs” in responding to the request. 42 U.S.C. § 17935(e)(2). The facility has 30 days to respond to a request. When a covered entity “uses or maintains an electronic health record with respect to protected health information of an individual” then the patient has the right to obtain an electronic copy, to direct the provider to transmit the copy to the entity of his choice, and only be charged the covered entity’s labor cost in responding to the request. 42 U.S.C. § 17935(e). Regulations make clear that the costs are limited to the labor cost, the cost of supplies, and postage. 45 C.F.R. 164.524(c)(4)(i)-(iii). Because the imaging was created and gathered in an electronic format, it is subject to the HITECH Act. Please produce the imaging files on a CD.
The patient or his designated representative can request the records himself. You should make the request in writing and if your attorney is going to get the records, you need to explain that under 45 CFR 164.502(g), that you designate your attorney as your personal representative.
Many nursing homes and hospitals make it difficult to obtain records. If you run into any problems, call out office to discuss the problem in the context of a free consultation or report the facility to their licensing authority.
If you have questions about federal law or if you or a loved one have been abused or neglected by a health care provider, call us for a free consultation.
Law Office of Jeffrey J. Downey, PC
8270 Greensboro Drive, Suite 810
McLean, VA 22102
On the web at www.jeffdowney.com
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