Georgia regulations require that a resident’s representative be called at certain times. For example, when a resident suffers an injury or requires a new medication. On this week’s episode, nursing home abuse attorney Rob Schenk discusses five circumstances in which nursing homes are required to call a loved one.
Schenk: Hello out there. Welcome back. My name is Rob Schenk. I am an attorney and your singular host of this episode of the Nursing Home Abuse Podcast. This is going to be an episode where I try to address a common question that we get to our office. Sometimes we’ll get calls from potential clients and they want to report a particular type of neglect, so for example, “When I arrived at the nursing home, they told me that my mom had fallen.” “I was visiting my grandfather in the nursing home and they did not tell me that they changed his medication,” things along those lines where the client is not only angry about whatever the action was, but almost as importantly, the person that’s calling our office and talking to us is upset that they weren’t alerted, that they weren’t called and notified by the nursing home that something significant had occurred with their loved one.
So as any long-time listener of the show knows, nursing homes in Georgia, pretty much nursing homes across the country but we’re talking about nursing homes here in Georgia, nursing homes in Georgia that receive Medicare and Medicaid dollars from the federal government, which is to say most of them, most nursing homes in the state of Georgia that receive Medicare or Medicaid funding, because they do so, are required to follow certain rules that are we called promulgated, that are set forth by CMS and the federal government, regulations that apply to all nursing homes that are receiving Medicare or Medicaid dollars.
And for those law nerds, maybe there are some law students or maybe some lawyers out there that listen to this show, that is found in 42-CFR-483 et. al. Search in that area and you’re going to find the regulations.
But at some point in the distant past, the code of federal regulations that govern nursing homes that take Medicaid, Medicare dollars, decided that, you know what, there are going to be some particular instances in which the family or the designated representative of the nursing home resident should be alerted to something that has happened in the treatment or care of the life of that particular resident. And so those regulations do address in certain instances when that should in fact occur.
Now just as a disclaimer, everybody out there understand that on top of federal regulations that require certain things, there are also statewide regulations. So Georgia has its own code. In today’s episode, we’re going to be talking about what appears in the federal code, not in any type of state statutes that address nursing home regulations.
And on top of that, there are going to be instances that maybe we don’t address today where the nursing home should have called but didn’t. In other words, this is not going to be an extensive, exhaustive list. It’s just to give you an idea of the responsibilities of the nursing home with regard to contacting you if your loved one has undergone something at the nursing home. So it’s not exhaustive and we’re culling only from federal regulations, not state regulations and not any type of common law at this point.
So first of all, let me just say this, that the federal code allows a nursing home resident to nominate somebody to actually receive the call or to make decisions on behalf of the resident. It’s basically a resident representative. Most of the time that is spouse, son, daughter, granddaughter, grandson, and a lot of times, not all the times, but many times, that individual will have some type of power of attorney, healthcare directive, something along those lines, but sometimes not. But that’s what the code anticipates is that there will be one individual person, when the resident gets signed in and, “Hey, from now on, if something happens to Mrs. Johnson, we’re calling this individual first or the only individual that is listed.” So the code anticipates that and allows the resident to have a resident representative ho actually gets called.
Sometimes we have clients that actually don’t have any type of cognitive issues, cognitive impairments that would require that they need a representative. Sometimes those that don’t have any types of cognitive impairments still want a resident representative.
But at any rate, one of the first instances in which the resident representative should be contacted, should be involved is literally at the very beginning with the care plan. So the code sets out that the resident representative has the right to participate in the planning process to be informed of the total health status and participate in establishing the goals set forth in the care plan.
And we’ve had episodes in the past that deal with care plans, what goes in them and then care plan meetings, and essentially the care plan is after the assessment is done on a resident, meaning a head-to-toe, from cognitive issues to skin integrity to what activities of daily living the resident needs, once that is assessed in terms of what their needs are, then a plan of attack is created. So the code requires that the resident representative be contacted and informed about the care plan and they can actually participate. Now the resident representative doesn’t have to participate – they can decline. But according to the code, they need to be informed of that care plan – “Hey, the DON, the RN, the doctor, we’re all getting together to read the assessment and go over what’s actually going to be placed into the care plan. Do you want to be a part of that?” That should be a conversation that is had about the nursing home.
Another important instance that the nursing home should give the resident representative a call is when that care plan needs to be changed. So again, for the law nerds, that’s at 42-CFR-483.10 under C, subheading C. The resident representative has the right to be informed in advance of changes to the plan of care, including any kind of risks and benefits associated with the change.
So for example, sometimes – and we see a lot of this in regards to medication – sometimes the doctor will be attempting to treat maybe an issue with the resident, depression, something like that, and it causes another problem. Maybe we see a lot of times the resident, when they’re medicating, gets zonked out, and essentially they’re restrained because the medication is knocking them out. So we don’t want that. We want the resident living his or her best life. So when the doctor or the RN or whoever it is in the nursing home is saying something along the lines of, “Hey, we need to make a change to the medication. The doctor prescribed something different,” then the resident representative has the right to know when that happens and why it happens. So that way when you go and visit your loved one in the nursing home, you kind of have an understanding of what’s going on. That’s kind of one of the major points of all this.
One of the other aspects of the care plan and being informed about what’s going on is the resident representative has the right to be informed in advance of the care to be furnished and the type of caregiver or professional that will furnish the care. So in other words, if there is a change in the primary care physician that visits the facility on a periodic basis, if that’s a completely different person or is the resident going to get occupational therapy, physical therapy? What type of the rehab are they getting? Is it going to be for their generalized weakness of the legs, that kind of thing? Whoever is providing that care, if there’s change in that caregiver, then the resident’s representative has the right to come in there and put in their two cents, like, “Nope, I don’t want anybody from this particular wound care facility,” or “I prefer that the primary care physician be a woman.” These types of things, the resident representative has a right to weigh in on any types of changes to the actual care that’s being provided.
Something that doesn’t happen too often is the nursing home is required to call the resident representative when the physician that has already been providing care is unable to meet their care requirements. So whether there is some type of issue with the physician losing their license or maybe it’s something that’s above that physician’s pay grade, but kind of along the lines of change of physician, the code requires the nursing home contact you or the resident representative if the physician is unable to meet care requirements.
Another component is roommate change, like changes with the roommates. So written notice must be provided before a room or roommate change, and you must be provided with the reason for the change. So sometimes this might just be a space issue. Sometimes it might be a behavioral issue. So for example, it might be that one resident is triggering another resident to wander or triggering another resident to react in not necessarily an aggressive way, but causing unwanted physical incidents. So in order to minimize that from happening, the nursing home will move one resident to another room. But again, like I said, it might be a space issue.
But at any rate, regardless of whatever the reason is, this is an instance under the code of federal regulations that the nursing home is required to call you. You shouldn’t be surprised when you walk in one day and your grandmother is in a completely different wing of the nursing facility.
Moving on, another instance is dealing with Medicaid. Generally when the resident’s account is $200 or less than the Social Security Insurance Resource limit, they have to call you and say, “We’re running out of money.” That’s a time when they need to call you.
Different types of charges, like upcharges, they’ve got to let you know whenever a requested item will result in an extra charge for the resident. So this might be different personal items that the resident might want in their room. If there is going to be some type of charge above or beyond what has already been told to you, they have to let you know about that.
One of the more important reasons, one of the more important things that you have to be notified about is what’s called an accident under the code. This is in 42-CFR-483.10G. You are to be notified as the resident’s representative if “an accident that results in injury and has the potential for requiring physical intervention.”
So this is many different things. It can be if the resident falls, if the resident wanders, if the resident is in an altercation with another individual – anytime that there is an injury, a bodily injury to that resident that can potentially result in the person’s care being changed, then that’s when they need to give you a ring. It’s very important. If you go to that nursing home and you see your loved one has a bruise on her head and scratches on her knees and maybe a scrape on the back of her head and she has fallen, they should have called you about that. They should have called you about that.
These are instances that allow you to be involved because particularly when you’re dealing with falls, you need to be notified because care plans might need to be updated based on the fall. So for example, we’ve noticed that she is falling – she fell at 11 p.m. yesterday, she fell at 11 p.m. this evening. Perhaps this has to do with the fact that this is when she needs to go to the bathroom, so she gets up and attempts to go to the bathroom and falls, so therefore the care plan needs to indicate this and an intervention may need to be that we make sure that she goes to the bathroom at 10:30 and we avoid that issue.
That’s one of the most important reasons you should be involved in this if there’s been an injury and if that injury is some type of systematic thing that would require a change in the care plan. You need to be involved in that as the loved one of that resident. And again, this is something that’s important enough that the federal code of regulations requires it, that they give you a ring, that they give you a call.
Along those same lines, an injury doesn’t necessarily need to precipitate this, but whenever there’s been a significant change, so a significant change in the resident’s physical, mental or psychosocial status, they have to give you a call. This can be things like when someone that is usually active is no longer active, they sit in their lounge chair in the lobby and just stare. It can be an instance in which someone has just due to generalized weakness in their legs, they go from being able to walk with a walker or a rollator and now no longer do that, they have to be in a wheelchair.
That’s a significant change, where there is a difference from one day to the next or one week to the next in the overall health of that resident. And again, that can be not just the physical. In other words, “My grandmother was in wheelchair, now she can’t even do that, she’s in the bed,” or “My mother was walking, now she’s in a wheelchair,” or “My mother was able to communicate. Now she is silent.” These are significant changes in the physical or the mental or social status of these residents.
Whenever that has happened, whenever the nursing home staff observes this, they are required to call you, again, under the idea that you should be involved in what happens next, what’s going to happen in the care plan and what interventions are we going to incorporate into that care plan to address the change, because most of the time, these changes aren’t for the better. These are changes in which the health has deteriorated. So you want to be involved in how this individual lives their life from day to day from that day forward. You need to be involved in that care, and you can’t be involved in that care plan if they don’t call you.
Another one along those same lines is when treatment must be altered. So again for the law nerd, we’re still at 42-CFR-483.01G. The resident representative must be contacted if “a need to alter treatment significantly,” that is a need to discontinue or change an existing form of treatment due to adverse consequences…
Altering treatment. So again for the law nerds, we’re at 42-CFR-483.01G. A resident representative needs to be contacted where a need to alter treatment significantly – significantly, that is a need to discontinue or change an existing form of treatment due to adverse consequences of a new form of treatment. So in other words, if the individual is no longer responding to a particular type of rehab or a particular type of medication or a generalized treatment care plan, they need to change that up, they’ve got to let you know.
Pretty important. And we address this in Episode – what episode did we address this in? This was in Episode 140. Episode 140, we had William Rivera on to talk about the Medicare 100-day rule and improper discharges and improper evictions from nursing homes. So if you haven’t listened to that, go back and listen to that one. It’s a good episode.
But the nursing home is required to call you when there has been a decision made to transfer the resident or discharge the resident. In other words, the nursing home is not allowed to just give up and say, “We’re rolling this person’s bed out of here, out of the facility. We’re getting them out of here.” They have to let you know prior to making that decision and why that decision was made.
Another thing is this – there both in the federal code and in the Georgia code, there’s something called the Resident’s Bill of Rights, and that has to mostly do with the fact that a resident doesn’t give up their dignity and their rights simply for the fact that they have been admitted to a nursing home. So these are very important rights and we’ve addressed this in other episodes, and I’d suggest or I’d recommend you go and check those out. But whenever there’s been a change in the resident’s rights, you have to be notified. I don’t know – I’d have to go back and really look at the legislation, but I don’t think there’s been major changes to the actual wording of the residents’ rights in a while, either in Georgia or in the federal code.
And lastly, whenever the nursing home goes through once a year, usually in the fall and winter time, with regard to influenza and disease immunization, you get an opportunity as the resident’s representative to refuse immunization if you want from the flu. So that’s another option.
So we’re going to stop on that one. That’s the lucky 13. Those are 13 instances in which a nursing home is required to call you under the federal code. But again, like I said as a disclaimer is that there are other times they might need to call you for other reasons. I don’t want you to think and go away from this episode thinking that these are the only times that they’ve got to call you. But these are pretty important things that they need to call you for and this encapsulates a lot of them. But again, I would draw your attention to the fact that whenever there’s been any type of injury that has the potential for change in that care plan, for physical interventions that need to come in, that’s an important thing. So whenever there is a bedsore that is now requiring treatment, whenever there’s been a fall, these types of things that require that they go to the hospital or anything like that, they are required to let you know, and they’ve got to do that and they’ll be in violation of these regulations if they do not.
As this episode goes to air, it is June 8th of 2020. I will remind you that June 18th to June 24th is National Nursing Assistants Week, which is interesting. I should have said that Will is not in the south of France. I mean I should have said Will is in the south of France but it’s because he is celebrating National Nursing Assistants Week because Will was a CNA for several years before becoming an attorney. So he’s celebrating National Nursing Assistants Week. That’s why he’s not here. I’m going to stick to that as the reason why I’m doing this episode by myself. But go out there, hug a CNA, hug a nurse assistant. They’re on the front lines every day taking care of people and we really appreciate them for that.
And with that, that’s going to complete this episode. You are more than welcome to go back to the library, the expanding catalog of the Nursing Home Abuse Podcast. Like I said, this is Episode 149 – 149. Wow – 149. We have 148 other episodes for you to check out. We would love for you to do so. Leave us a comment if you like what you hear, but new episodes are every other week on Monday mornings, so the next episode will be in a couple weeks. Expect it. It’ll be Episode 150. It’ll be a big one. Hopefully Will will be here. That will be good times.
But at any rate, that’s going to conclude this particular episode of the Nursing Home Abuse Podcast and we appreciate you sticking around this far, and we will see you next time.