Nursing Home Care Standards

**ENCORE:  This podcast was recorded on December 11, 2019.**

Anne Kelsey, previous staff attorney at DRNY, discusses nursing home facility care standards.

**Resources**
Open Doors:  https://ilny.us/transition-center
NYAIL's Transition Center Hotline: 844-545-7108 or secq@ilny.org
Long Term Care Ombudsman: https://www.ltcombudsman.ny.gov/Whois/RegionalNewYorkStateLTCOP-Directory.pdf
Long Term Care Community Coalition:  https://nursinghome411.org/about-ltccc/; Tel: 212-385-0355; Email: info@ltccc.org
New York Department of Health: 1-888-201-4563 (report complaints to DOH)
ICAN: http://icannys.org/; Tel: (844) 614-8800 (for insurance issues)

Transcript

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♬ Upbeat music fades in ♬

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K: This is Katrin with Disability Rights
New York. Welcome to our podcast

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Empire State of Rights: Closed Captioned. We are
here to bring you information on the

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most relevant topics regarding
disability rights and advocacy.

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Today we have Ann Kelsey, staff attorney at DRNY.
She's here to discuss nursing home

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facility care standards. Anne, thank you so
much for joining us today. How are you doing?

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AK: I'm great. Thank you for having me.

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K: Well thanks for joining us and this is a

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big topic, so could you start by
providing us with the official

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definition of a nursing home facility?

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AK: Sure. So a nursing home facility is a

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facility, could be standalone or it could
be attached to a hospital, that's going

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to be providing 24-hour nursing care and
supervision outside the scope of a hospital.

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So there're typically three
kinds of services that are going to be provided.

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Skilled nursing, hence the name
skilled nursing facility, which is the

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the most intensive level. So care for
someone recovering from a stroke, wound

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care, acute medical conditions, the most
serious level of care. The second one, and

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this is a big one also, rehabilitation. So
occupational therapy, physical therapy,

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that kind of care provided sometimes a
couple of times a week sometimes daily

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to assist a person to recover from an
injury or illness.

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The final kind is long term care.

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So this is going to be for
someone with a chronic or permanent

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physical condition who needs daily care
with activities of daily living, which is

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for example bathing, assistance with
feeding, assistance with dressing, walking,

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or ambulation as they call it "transferring".

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So that sort of daily hands-on care that the person is going to need for a long time.

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K: So you just went over the three areas of why someone may be there, which I think a lot of

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people have a little different idea of
what a nursing home facility actually is.

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We think of it in
one sense of as someone ages if they're--

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if they need assistance they're going
into a nursing facility, but can you

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expand a little bit more on when someone
is usually admitted into a nursing home

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facility? And talk to us a little bit
about that process. How that happens.

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AK: Typically someone's going to be admitted
to a nursing home facility from a

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hospital admission. So there's been an
injury, someone has fallen, or a

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chronic illness that has gotten to the
point where, you know, they need

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hospitalization for it like a wound is a
good example of that. Or for some other

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reason, you know, they're not being
successful in their apartment or their

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home and people tend to think, 
"Okay. Let's get them to a hospital."

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From there, once the hospital has stabilized
or treated them, the hospital discharge

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planner is going to start looking at
what an appropriate discharge is.

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And generally for an older person, the
nursing facility is going to be really

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at the top of their mind. If that happens,
the hospital discharge planner is going

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to be doing a lot of the groundwork.
There's required assessments, it's called

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a PRI . So a word you might hear. If
you're going through this

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process and they'll-- they can
contact the nursing facilities directly

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that can kind of take you through that
process. But from-- from a patient

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perspective, that's a good time. Or at a
family perspective, that's a good time to

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really think, "Do I need a nursing
facility? Are these services available in

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the home?" And oftentimes they are things
like occupational therapy, physical

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therapy, can be provided in the home or
on an outpatient basis.

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There's home aides can come for up to 24 hours a day
and provide that activities of daily living.

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So there's options. You know, for
example: if I were in a hospital with a

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with a broken leg, the hospital discharge
planner wouldn't think, "Oh, we're going to

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send her to a nursing facility." And it
should be the same for an older person

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The home and community-based services should really

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be explored to determine  whether a nursing home is really the right spot for you

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K: So the discharge plan
is really a conversation not only with

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the patient but also with the family
and/or caregivers that may be outside of

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the family to really have a successful
transition for the patient really to

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either decide to go to a nursing home or
if the option is available at home to do that.

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AK: Right, absolutely. I mean, really it's
the patient's decision. Can't be forced

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into a nursing home if you have capacity
to make decisions. The decision of where

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you go is yours. And so that's some
question we get a lot, you know, "Can my--

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can my insurance man force me into a
nursing home or can my loved one force

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me into a nursing home?" And the answer is no, assuming you have capacity to make decisions.

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And of course that's a whole
other potential argument, but

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you shouldn't be afraid to stand up for
your rights and really think

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through what the best choice for you is.

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K: I do think that that's a big question

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and concern out there is the idea of
involuntary transition to a resident,

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you know, nursing facility that someone
may not want to go to. And we talked a

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little bit about diminished capacity, but
is that something that is worked out

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through the family or does that go
through a different process?

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AK: So that's a good question.
Sometimes it is worked out with the

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family and worked out can mean different
things. You know, like we've finally

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bullied somebody into submission or we've really had a talk about

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what you need and what you're able
to get in the community is not meeting

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your needs or whether the plan
for the nursing facility to be a

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temporary stay for rehab. And that's very
common that you go in for a

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couple weeks, even a couple of
months and then are able to be

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discharged once your wound is
healed. So, you know, I don't want to scare

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people but it is again something to talk about.

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But as you mentioned, there is a
more official set of regulatory and

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paths that could be taken if capacity is
in doubt. And that--that could be

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there's a hospital Ethics Board. The
doctor can make decisions or

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into the guardianship path. And so, I think that's a whole other

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topic for discussion, but I think you're
right to ask. And it can really be

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resolved in a various number of ways.

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K: Agreed. This-- the subject matter itself

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has so many different facets and each
one of them is a much larger issue, so

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thank you for just touching on it. And so,
as we're thinking about this as if it

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were-- you know, we're talking about a
patient in process. We're talking about

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the patient's rights to actually make
the decision. If they're-- if the decision

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is that they're going to go into a
nursing facility, what are their--

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the patient rights after that fact?

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AK: There are many. So the-- I'm going to lawyer you for

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a second. So, it's the Nursing Home Reform
Act of 1987 and there's regulations that

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follow it including some recent
regulations. So that's from a federal

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level. And that's where you go
if you really want to get that specific

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language about what a patient's
rights are. A better tool I think for

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an introduction is called the New York
Nursing Home Residents Bill of Rights.

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And that's a document in plain language
that kind of goes through the various

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aspects, but I'll highlight a couple. The
first is patient autonomy as we've

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been talking about that the patient's
rights to make decisions, to be informed

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of the care he or she is receiving, to
make decisions about his or her

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schedule. Those rights all continue when
someone is admitted to a nursing home.

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That that doesn't change. So a
couple other things, communication rights.

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So if you are a person whose primary
language is not English, you have the

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right to be provided interpreters for
discussions with the doctor about your

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prognosis or about any treatment decisions.

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Now obviously that's not enough, right?
Because you would be isolated

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for the rest of your daily activities
and so that's certainly an area

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of concern for us as advocates. But at
least as these critical medical

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decisions, you have the right to be provided
the interpreter to understand what is going on.

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Care planning is a big one.
And care planning is closely tied to

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discharge planning. So as soon as you
are admitted to a nursing home, the

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nursing home should assess you and put
together a care plan within seven days, I believe.

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And as part of that, discharge
planning should be talked about.

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So right from the very start, discharge
planning should be part of a care plan.

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What does this person need
to return to the community? What are this

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person's goals to return to the
community? So, you know, again from

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day one, the discharge planning should be
there. Another big question we get--

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visitation rights. So you absolutely have
rights to visitors, but it is-- there are

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some limits here. So it's not, you know,
any visitor anytime you want.

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The facility is able to limit it to if
there's some disturbance, if the visitor

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is disturbing other residents causing a
ruckus, if that you have a roommate, there

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can be some limits there. So that's
really a discussion to have, I think, if

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they're-- if you have concerns
about your visitors. And of course on the

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other side you can't be forced to have
visitors. So if you don't want people to

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visit you, that's fine too. You can
enforce that. So, you know, a little more

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gray over right there but definitely worth advocating for if you

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have concerns about that. That's a couple
of the highlights we see. I don't know if

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you have any questions about any of that.

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K: No. I think it is such a large area of

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what patient rights are. And there are
many more and there's much more we could go into.

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But I think for us to have the
link to the original Bill of Rights that

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we talked about. I think people if they
have other questions, certainly they

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could call DRNY and ask for some assistance in that area.

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Would it be correct to say that
a patient or a family member of a

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patient if they're seeing things
that are of concern to them can they

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call DRNY? Can they let them know
what's going on? Is this a way that they

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can facilitate a monitoring visit?

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AK: Absolutely, absolutely.

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It's a big concern for us. New York has
the biggest population of people in

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nursing homes in the country and the
biggest population of children in

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nursing homes in the country if you can
believe it. So it's really a concern for

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us that if people are in nursing homes
that they're getting the highest level

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of care. And if they want to be returned
to the community, that discharge planning

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is happening rapidly and effectively to
return them to their communities so absolutely.

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But we're not the only
resource. Every nursing home or nursing

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home area is going to have a what's
called a "Long-term Care Ombudsman" assigned.

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That's a statewide program and the
Ombudsman can meet with the resident,

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can talk to about their rights,
can connect them to other resources,

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can help communicate with the administration
so that's always a good option.

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You can always report complaints to the
Department of Health and you

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don't always necessarily get the
response that you might want or it can

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be slow, but there's real value in
reporting to the state to make a record

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of what's going on. And for someone who
is a family member, you know,

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overwhelmed by what's going on, that can
be a hard sell. But we really do

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recommend kind of making a record with
the state about any issues.

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There is Opening Doors, which is another statewide
program to assist nursing home residents

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with discharge to the community. And they
have peer support, and can connect folks

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to resources, and really take them
through the discharge process connecting

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them to housing option. So, you know,
please call us but also know that you're

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not alone out there and there's
definitely a variety of resources out there.

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K: That's a lot of great information
and additional resources and we will

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list those at the end of this podcast in
case people need to find them on their

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own. And so we just talked about some
violations that we might observe, can

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you give us an example of a couple of
violations that maybe we have observed

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in the past? And how are they resolved?

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AK: So one thing just to sort of clarify, so

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every nursing home is going to be
inspected by the state and that's really

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where kind of enforcement of these rules
should come from. It should-- they have a

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very detailed list of every regulation
that they go through. Violations are

0:13:50.300,0:13:56.200
ranked by severity and how widespread
they are, and the states are able to

0:13:56.200,0:14:02.900
to punish them. I guess to sort of
put in a plan of change to kind of

0:14:02.900,0:14:10.140
address these issues. So-- but when we're
there, what we're looking for is are

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residents kind of getting what they're
entitled to in terms of their care

0:14:15.000,0:14:20.400
planning, their PTOT. And really often
what we're looking for is discharge

0:14:20.400,0:14:25.000
planning process and we see a lot of
violations there not only from the

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nursing home side but from the state's
responsibility to do their part of

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the discharge planning process in terms
of identifying

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people who have, for example,
mental health or developmental

0:14:37.780,0:14:42.840
disabilities. And there's some specific
requirements there but also any other

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services people might be entitled to.
So discharge planning-- another one is

0:14:48.200,0:14:53.500
dementia care and psychotropic
medication. The psychotropic medication

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is not prescribed and not appropriate
for people with dementia but it's often

0:14:59.700,0:15:05.960
prescribed to control behavior. So people
with dementia have lost the ability to

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really reason and understand and that
can lead to behaviors that are

0:15:11.580,0:15:17.400
frustrating for a caregiver: vocalisation,
wandering, shouting, that

0:15:17.400,0:15:23.320
kind of thing. But are really reflective
often of either their ways to

0:15:23.320,0:15:30.200
communicate some sort of--  there
may be a pain or some sort of health condition.

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It's their way of sort of
reasoning through the world and the way

0:15:33.940,0:15:40.100
to do that is to really kind of address
the dementia and there's protocols and

0:15:40.100,0:15:45.200
ways to do that that are not drugging
someone. And so a person has the right to

0:15:45.200,0:15:49.800
be free of unnecessary drugs.
Psychotropic medication has to be

0:15:49.800,0:15:55.860
reviewed and reported. So again that's
something that is all too common. This

0:15:55.860,0:16:01.640
overuse of drugs to deal with sort of
dementia related behavior that we see.

0:16:01.640,0:16:05.200
K: Anne, that's so much great information.
Thank you for sharing it with us and

0:16:05.200,0:16:10.300
before we sign off, is there anything else you would like to talk about regarding this subject?

0:16:10.300,0:16:14.940
AK: New York has a ton of people in nursing facilities and

0:16:14.940,0:16:20.740
they have the right to a high standard
of care, they have the right to be in the

0:16:20.740,0:16:25.220
community with the appropriate support
services if that's where they want to be,

0:16:25.220,0:16:30.680
and we're here to help with that. So I
hope that people give us a call if there

0:16:30.680,0:16:37.200
are issues and, you know, we can't help
with everything unfortunately. We're only

0:16:37.200,0:16:42.800
human, but we can give referrals where
appropriate and do monitoring or take on

0:16:42.800,0:16:46.460
cases where appropriate as well. So---so
we're here for you.

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K: Anne, thank you so much for your time today. It has been wonderful speaking with you. Have a great day.

0:16:51.220,0:16:52.500
AK: Thank you so much.

0:16:53.360,0:16:58.060
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0:16:58.060,0:17:00.860
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