Elders in Long Term Care/Ombudsman/Act 28

1. Elders in Long Term Care/Ombudsman/Act 28

2. What is long-term care? • Services and supports needed when ability to care for self has been reduced by a chronic illness, disability, or aging. • Services usually provided: • by family and friends at home, • through home and community-based services, such as home health care, personal care, and adult day care; • or in institutional settings, such as nursing homes, personal care homes, assisted living

3. People with Long-Term Care Needs, 2000 62% are age 65 and above 38% are under age 65 Total = 9.5 Million

4. Federal Regulations • OBRA ‘87 • Americans with Disabilities Act (ADA) • Section 504 of the Rehabilitation Act • Fair Housing Act Amendments • Older Americans Act

5. OBRA ‘87(42 U.S.C. §§ 1395-1396) • Emphasis on dignity, choice, self-determination • Focus on “resident-centered care” • Applies to all residents of Medicare/MA certified facilities regardless of payment source

6. Americans with Disabilities Act(42 U.S.C. §§ 12101-12213) • Prohibits discrimination on the basis of broadly defined physical/mental disability • Facilities may violate ADA if they refuse to admit, transfer, or discharge based upon disability • May refuse to admit, transfer, or discharge residents who pose “direct threat” to health/ safety of others

7. Section 504 Rehabilitation Act(29 U.S.C. § 794) • Prohibits discrimination on the basis of physical or mental handicap • Wagner v. Fair Acres

8. Fair Housing Act Amendments(42 U.S.C. § 3602) • Prohibits discrimination against individuals with disabilities

9. Federal “Anti-Dumping” Law • Prohibits transfers or discharges of residents from nursing facilities as a result of a facility’s voluntary withdrawal from MA participation.

10. Older Americans Act(42 U.S.C. § 3058) • Authorizes the Long Term Care Ombudsman Program

11. The Role of the Ombudsman • Authorized by Federal Older Americans Act • Advise residents/families about rights • Help to negotiate those rights • Help to resolve complaints • Serve as a voice to advocate for policy change

12. Resident Perspective “Our physical weakness and mental fatigue have robbed us of much of our independence and often lowered our self-esteem, but we need the opportunity to make more of our own decisions. With our options narrowed as they are, by necessity, it should not follow that so many opportunities are closed to us, or only available after complaints and protest.” - Elizabeth Wyckoff, nursing home resident

13. What People Fear Most About Nursing Homes: • The prospect of having to yield: • freedom • privacy • choice • independence • control

14. Reality for Residents • Residents live with one or more of the following: • emotional abandonment • loss of dignity/self-respect • loss of love/companionship • loss of material possessions • severed ties to the community • lack of independence

15. Resident’s Rights • Advance Directives • Freedom of choice • Freedom from restraints • Privacy • Confidentiality • Accommodation of needs • Grievances

16. Resident’s Rights cont. • Participation in Resident/Family Groups • Participation in other activities • Examination of Survey results • Notice of rights • Access and Visitation • Equal access to quality care

17. Respecting Resident’s Rights • Three key variables to ensuring residents’ rights are preserved: • Facility culture • Awareness of barriers • Flexibility/creativity

18. Admissions • Applicants cannot be required to waive rights to Medicare/MA • Must provide info about applying for benefits • Cannot require 3rd party guarantee of payment • May not accept gift as a precondition of admission • Cannot require responsible person if resident is capable of managing own affairs

19. Transfer/Discharge • Definitions • Timing of notices • Exceptions to timing of notices • Special circumstances • Appeals • Intra-facility transfers

20. Resident Funds • Do not have to be on deposit at facility • Must be in interest bearing account if over $50 • Accounting must be provided quarterly and upon reasonable request • Cannot be commingled with facility funds • Must be available within 7 bank business days • Facility must notify MA residents if balance exceeds Medicaid allowance

21. Resident/Family Participation • Resident is focal point, participant in care delivered • Do not have to accept facility’s care plan • Have the right to refuse treatment • Can ask for a review, change in care plan

22. Responsible Parties • Certified facilities are prohibited from requiring a 3rd party financial guarantor • Facilities cannot require duration-of-stay • Agent in Fact, Trustee, or Guardian can have legal responsibility for resident

23. Restraints • OBRA ‘87 • Legislative attempt to initiate a major restraint reduction movement • Residents have the right to be free from physical or chemical restraints unless they are necessary to treat medical symptoms

24. Physical Restraints • A vest that ties resident in wheelchair/bed • ties attaching resident’s hands to bed • hand mitts • lap cushion, seat belts • lap trays • bed rails • chairs that are angled in such a way that they prevent a resident from getting out

25. Chemical Restraints • Psychotropic medications are classified as chemical restraints and are to be used only in limited circumstances

26. Act 28 – Neglect of Care Dependent Persons • Effective September 8, 1995 • Act 28 is an amendment to the PA Crime Code • Makes it a crime to neglect a care-dependent person

27. Who is Subject to Prosecution under the Law? • Caretakers: any subject who is an owner , operator, manager or employee of a(n): • Nursing home • Personal care home • Domiciliary care home • Community residential facility • Intermediate care facility for the mentally retarded • Adult daily living center • Home health agency • Home health service provider (licensed or unlicensed)

28. Is There Mandatory Reporting? • If the employees of PA Department of Aging, Department of Health, or Department of Welfare, are conducting regulatory or investigative responsibilities, and have reasonable cause to conclude that Act 28 has been violated, a report must be made to local law enforcement or the the Office of Attorney General

29. “MANY SHORTCOMINGS EXIST IN EFFORTS TO PROTECT RESIDENTS FROM ABUSE” • …the number of homes cited for deficiencies involving actual harm to residents or placing them at risk of death or serious injury remained unacceptably high—30% of the nation's 17,000 nursing homes. Concerns exist that too many nursing home residents are subjected to abuse—such as pushing, slapping, beating, and sexual assault—by the individuals entrusted with their care. • Leslie Aronovitz testifying before the Special Committee on Aging, U. S. Senate 3/4/02

30. 'He Choked Me:' Why Some Elderly Attacks Go UnnoticedBy BRYAN ROBINSON - ABC NewsMarch 7, 2002 • Helen Love, a 75-year-old grandmother of three, looked into the video camera and told of being severely beaten by a nursing home caregiver who discovered she had soiled herself. • "He choked me and he went and broke my neck," said Love, who had to wear a metal halo in the videotaped deposition from July 1998. "He broke my wrist bones, in my hand. He put his hand over my mouth." • Two days later, Love died.

31. “BUCKS CAREGIVER FOUND GUILTY OF MURDER” • [William] Neff, 83, died Sept. 11, 2000, at Alterra Care Bridge, a personal-care facility in Lower Makefield Township. Six days earlier [Care Aide, Heidi] Tenzer fatally stomped on him during her overnight shift, enraged that Neff had soiled his bed. (Philadelphia Inquirer, August 30, 2003)