Federal Regulations of Nursing Homes

Who is “vulnerable” to nursing home abuse?

As I mentioned previously, nursing home abuse isn’t necessarily exclusive to those 65 years old and older.

In states such as Washington and Minnesota, “vulnerable adult” is used to refer to those who are alleged victims of nursing home abuse. Vulnerable adult is a broader category of individuals than the elderly and they are also frequent victims of nursing home abuse. The term is used in various states laws, including Washington and Minnesota. In Washington, “vulnerable adult” includes a person

a)     Sixty years of age or older who has the functional, mental, or physical inability to care for himself or herself; or

b)     Found incapacitated under chapter 11.88 RCW; or

c)      Who has a developmental disability as defined under RCW 71A.10.020; or

d)     Admitted to any facility; or

e)     Receiving services from home health, hospice, or home care agencies licensed or required to be licensed under chapter 70.127 RCW; or

f)       Receiving services from an individual provider; or

g)     Who self-directs his or her own care and receives services from a personal aide under chapter 74.39 RCW.

At the federal level, the Omnibus Reconciliation Act (OBRA) of 1987 was an important turning point in showing a serious commitment to ensuring better care for vulnerable adults. Included in the OBRA of 1987 was the Federal Nursing Home Reform Act (NHRA) with a Residents’ Bill of Rights. The goal of NHRA: To ensure that nursing home residents receive quality care that will result in their achieving/maintain their “highest practicable” physical, mental psychosocial well-being. While the NHRA was passed in 1987, the law did not truly become effective until the United States Department of Health and Human Services implemented regulations on September 26, 1991.

The NHRA specifies the services a nursing home must provide to its residents. The Act also lays out the standards for these services.  Among the required services: individualized comprehensive care plan, periodic assessments for each resident, nursing services, rehabilitation services, pharmaceutical services, dietary services. For nursing homes with more than 120 beds, a full-time social worker is required.

Over 90% of all nursing homes have Deficiencies

The vast majority of nursing homes in this country accept Medicare/Medicaid payment. When accepting reimbursement from the Center of Medicare and Medicaid Services (CMS), a nursing home is bound to CMS rules along with federal and relevant state regulations. According to federal regulations, a deficiency is a nursing home facility’s failure to meet participation requirements in the Act or in 42 CFR 483.

But guess what? A 2008 federal report that came out of the Department of Health and Human Services revealed that no less than 91% of 15,000 nursing homes that were included in the survey had seven deficiencies on average. Sadly, Washington State has one of the highest numbers for reported deficiencies in the country.  In 2010, a whopping 97.8% of Washington nursing homes were reported with deficiencies.  No wonder lawyers for nursing home abuse are sought after.

There are many reasons why the number is so high, despite the fact that  CMS and state health care agencies impose layers of rules and standards on nursing homes. One reason is that enforcement is difficult. The burden of enforcement is on the state. These days, most states cannot audit and investigate all the complaints. Even when a facility is found noncompliant, the penalties are relatively low and difficult to collect.  Only in the most egregious cases does does a nursing home get shut down.

This information and future posts that appear in this blog is intended to inform those who are concerned about the quality of care at a specific facility. Stay alert to signs of abuse because they are not always obvious. We will discuss much more about the different types of elder abuse.

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