Federal Nursing Home Reform Amendments (OBRA ’87)
First enacted in 1965, Title XIX of the Social Security Act established a federal funding program which remains critically important to America’s elderly population today: Medicaid. Title XIX, frequently referred to simply as Medicaid or the Medicaid Act, allows the federal government to furnish participating states with grants intended to provide medical care for low-income persons, as well as rehabilitation and education services designed to foster greater financial self-sufficiency. While participation in the Medicaid program is not compulsory, those states which do elect to accept federal funding are subsequently obligated to comply with the provisions contained within the Medicaid Act.
Prior to amendments made by Congress in 1987, the Medicaid and Medicare (Title XVIII) Acts arguably suffered from weak enforcement. Before 1987, these Acts provided few forms of penalization for noncompliance. If a nursing home was found to be in violation of either Act, the consequences were limited to revocation of the offending facility’s certification, termination of Medicaid reimbursements, and the imposition of a maximum 11-month period during which payment for new admissions could be denied. In turn, non-compliant facilities often faced little to no significant penalization for violations, which too often allowed for substandard care to continue unchecked.
Eventually, Congress raised concerns about lax Medicaid Act enforcement and the resulting climate of neglect and abuse. These concerns led to the aforementioned reforms of 1987, when Congress passed the Federal Nursing Home Reform Amendments (also known as the Federal Nursing Home Reform “Act”), contained in OBRA, to provide for the oversight and inspection of nursing homes that participate in Medicare and Medicaid programs. The requirements for certification include satisfying certain standards in areas such as “quality of care” and “resident rights.”
The plain language of the FNHRA shows that it was not intended to benefit health care providers, but rather it was intended to benefit nursing home residents. The statute contains a long list of rights to be afforded residents and commands certain state and nursing home activities in order to ensure that residents receive necessary services. In short, after clearly identifying those it seeks to protect, the statute goes on to endow them with particular rights and the standard of care they are owed by nursing home facilities.
Provisions and Care Standard Requirements of the FNHRA
Specifically, the FNHRA provides for:
- The right to privacy;
- The right to remain in a home (absent non-payment, dangerous resident behaviors, or significant changes in a resident’s medical condition);
- The right to voice grievances without facing reprisal or discrimination;
- The right to participate in their own care plan, including advance notice of changes in treatment, care, or facility status in the facility;
- The right to be free from physical or mental abuse, corporal punishment, and involuntary seclusion;
- The right to be free from any physical or chemical restraints imposed for the purposes of discipline or convenience and not required to treat the resident’s medical symptoms;
- The right to participate in family and resident groups.
In addition, FNHRA specifically set forth care standards owed to residents. Some of the most significant provisions provide that participating nursing homes and nursing facilities must:
- Provide residents with an environment and degree of care which will enhance or at least maintain their preexisting quality of life;
- Offer activities and services designed to attain or at least maintain the greatest possible degree of physical, mental, and social well-being. Such services must be in accordance with a written care plan delineating both residents’ medical and social needs, and how those needs will be met. This care plan must also be periodically reevaluated, and accordingly revised where appropriate. Similarly, care facilities must also provide medical services geared toward securing the greatest possible degree of physical, mental, and social well-being.
- Assess each resident’s functional capacity in an accurate, thorough, and reproducible manner. This assessment must detail the subject resident’s abilities related to daily functions (e.g. the ability to walk, make decisions, or follow instructions), and must also note any major impairments or medical issues.
- Offer food and dietary services which meet both standard and resident-specific nutritional needs.
- Offer a continuing program designed to satisfy the interests and support the mental, physical, and social well-being of each resident. This program must be directed by a qualified professional.
- Keep detailed and accurate medical records of all residents. These records must include care plans, the functional capacity assessments noted above, and the results of preadmission screenings.
Additionally, the FNHRA also reinforced the previous nursing home inspection guidelines. In accordance with the 1987 changes affected by the FNHRA, participating facilities are now subject to surprise surveys, during which medical records may be reviewed and residents may be interviewed. If a facility fails to pass a surprise assessment due to noncompliance with the Act, it may be subject to harsh penalties. While all states are subject to identical minimum inspection requirements, some states have also opted to impose their own additional set of standards, making their compliance standards even more rigorous. As a result of the FNHRA, today’s standards for nursing homes are far more stringent than they were just a few decades ago.
If you’re worried about the standard of care at your elderly loved one’s facility, call nursing home neglect attorney Brent Wieand at (215) 666-7777, or contact us online to set up a free and private case evaluation.