Are there laws that govern the conduct of nursing homes?
Both the Federal government and the State of Florida take very seriously their obligation to provide for the protection of the health and welfare of residents in nursing homes and assisted living facilities within the state. As a result, there are a number of rules, codes and laws that govern the conduct and operation of nursing homes within the state.
Nursing homes that receive federal funds must comply with federal legislation that calls for a high quality of care. Though all states must comply, at a minimum, with the federal regulations, some states have adopted tougher laws.
On a Federal level, in order to address widespread reportsof neglect and abuse occurring in the nation’s nursing homes in the 1980s, Congress enacted legislation in 1987 requiring all nursing homes participating in the Medicare and Medicaid programs to comply with certain requirements for quality of care. More commonly known as the “Nursing Home Reform Act of 1987” (42 CFR §483) ,the legislation specifies, in part, that a nursing home “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.
Under the regulations, a nursing home participating in the program must:
* Have sufficient nursing staff. (42 CFR §483.30)
* Conduct initially a comprehensive and accurate assessment of each resident’s functional capacity. (42 CFR §483.20)
– Develop a comprehensive care plan for each resident. (42 CFR §483.20)
– Prevent the deterioration of a resident’s ability to bathe, dress, groom, transfer and ambulate, toilet, eat, and to communicate. (42 CFR §483.25)
* Provide, if a resident is unable to carry out activities of daily living, the necessary services to maintain good nutrition, grooming, and personal oral hygiene. (42 CFR §483.25)
* Ensure that residents receive proper treatment and assistive devices to maintain vision and hearing abilities. (42 CFR §483.25)
*Ensure that residents do not develop pressure sores and, if a resident has pressure sores, provide the necessary treatment and services to promote healing, prevent infection, and prevent new sores from developing. (42 CFR §483.25)
* Provide appropriate treatment and services to incontinent residents to restore as much normal bladder functioning as possible. (42 CFR §483.25)
* Ensure that the resident receives adequate supervision and assistive devices to prevent accidents. (42 CFR §483.25)
* Maintain acceptable parameters of nutritional status. (42 CFR §483.25)
* Provide each resident with sufficient fluid intake to maintain proper hydration and health. (42 CFR §483.25)
* Ensure that residents are free of any significant medication errors. (42 CFR §483.25)
* Promote each resident’s quality of life. (42 CFR §483.15)
* Maintain dignity and respect of each resident. (42 CFR §483.15)
* Ensure that the resident has the right to choose activities, schedules, and health care. (42 CFR §483.40)
* Provide pharmaceutical services to meet the needs of each resident. (42 CFR §483.60)
* Be administered in a manner that enables it [the nursing home] to use its resources effectively and efficiently. (42 CFR §483.75)
* Maintain accurate, complete, and easily accessible clinical records on each resident. (42 CFR §483.75)
The State of Florida also extends regulation of nursing homes and protection to their residents, both by statute and code, and has agencies that are watchdogs overseeing compliance and adherence to those rules. To provide a framework of the services necessary to protect the health and welfare of its residents, the Legislature enacted Chapter 59A-4 of the Florida Administrative Code, Minimum Standards for Nursing Homes.
Under Chapter 59A-04, minimum acceptable standards for every area of nursing home operation from licensing (59A-103), Physician and Nursing services (59A-04.107 and 59A-04.108), dietary services (59A-04.110), Physical Environment (59A-4.122) and every conceivable area that could possible affect the health, safety and well-being of the residents living in a nursing home facility. Most notably, Chapter 59A-4.106 provides a compressive list of facility policies and procedures that all nursing homes in the State of Florida must maintain to be licensed. Those policies and procedures are as follows:
(b) Advance directives;
(c) Consultant services;
(d) Death of residents in the facility;
(e) Dental services;
(f) Staff education, including HIV/AIDS Training;
(g) Diagnostic services;
(h) Dietary services;
(i) Disaster preparedness;
(j) Fire prevention and control;
(l) Infection control;
(m) Laundry service;
(n) Loss of power, water, air conditioning or heating;
(o) Medical director/consultant services;
(p) Medical records;
(q) Mental health;
(r) Nursing services;
(s) Pastoral services;
(t) Pharmacy services;
(u) Podiatry services;
(v) Resident care planning;
(w) Resident identification;
(x) Resident’s rights;
(y) Safety awareness;
(z) Social services;
(aa) Specialized rehabilitative and restorative services;
(bb) Volunteer services; and
(cc) The reporting of accidents or unusual incidents involving any resident, staff member, volunteer or visitor. This policy shall include reporting within the facility and to the Agency for Health Care Administration.
The Agency for Health Care Administration has been empowered to oversee the implementation of, and compliance with State regulations. Charged with the duty of licensing nursing homes and long term facilities, the Agency alsoroutinely performs spot inspections of facilities and responds to complaints. In the event the facility if found to be out of compliance with Agency rules and/or found to be violating the rights of a resident, the Agency is empowered to assert a variety of administrative remedies, including denying the facility the right to admit any new residents or, in more extreme situations, revocation of a facility’s license. A listing of nursing homes that have recently been found out of compliance can be found on the Agency website at: www.fdhc.state.fl.us/nurhome/index.html
The State of Florida also affords nursing home residents protection through various statutes. Florida Statutes 429, Assisted Living Facilities, contains no less than 47 separate subsections enacted to provide statutory authority to establish rules and regulations governing the conduct and operation of nursing homes. The purpose of the Statute is to “to promote the availability of appropriate services for elderly persons and adults with disabilities in the least restrictive and most homelike environment, to encourage the development of facilities that promote the dignity, individuality, privacy, and decision making ability of such persons, to provide for the health, safety, and welfare of residents of assisted living facilities in the state, to promote continued improvement of such facilities, to encourage the development of innovative and affordable facilities particularly for persons with low to moderate incomes, to ensure that all agencies of the state cooperate in the protection of such residents, and to ensure that needed economic, social, mental health, health, and leisure services are made available to residents of such facilities through the efforts of the Agency for Health Care Administration, the Department of Elderly Affairs, the Department of Children and Family Services, the Department of Health, assisted living facilities, and other community agencies. To the maximum extent possible, appropriate community-based programs must be available to state-supported residents to augment the services provided in assisted living facilities. The Legislature recognizes that assisted living facilities are an important part of the continuum of long-term care in the state. In support of the goal of aging in place, the Legislature further recognizes that assisted living facilities should be operated and regulated as residential environments with supportive services and not as medical or nursing facilities. The services available in these facilities, either directly or through contract or agreement, are intended to help residents remain as independent as possible. Regulations governing these facilities must be sufficiently flexible to allow facilities to adopt policies that enable residents to age in place when resources are available to meet their needs and accommodate their preferences” (Florida Statutes. 429.01).
If you, or a loved one, know of a family member that has been a victim of nursing home abuse, you should contact a qualified, experienced attorney to advise you of your legal rights. The Law Office of Dan Newlin & Partners is dedicated to protecting those rights. We have a staff that is experienced in handling nursing home abuse cases and knows the right questions to ask in order to get the right answers. You are encouraged to call our office any time for a free consultation and it would be an honor to answer any questions you may have. Call Dan now at (407) 888-8000.