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Nursing Home Law Changes

Nursing Home Law Changes
Elder Law
October 30, 2016

Changes to Nursing Home laws (implementing certain sections of the Affordable Care Act – ACA).

 New rule has several themes:

 ·        Person-centered care –existing protections maintained.

o   Prohibits pre-dispute arbitration and requirements for post-dispute arbitration

o   Increases rights to participate in care and discharge planning meetings

·        Quality of care

o   Issues related to restraints, pain management, bowel incontinence, dialysis services, trauma-care.


§ Section 6102(c) of ACA

·        Facility assessment/competency

·        Alignment with HHS priorities:

o   Reducing unnecessary hospital readmission

o   Reducing incidences of healthcare acquired infections

o   Improving behavioral healthcare

o   Safeguarding nursing home residents from the use of unnecessary psychotropic/anti psychotic medications

o   Comprehensive review: modernizing the regulations to make consistent with current health and safety knowledge as the last comprehensive law change was in 1991!

 Consumer Protections

Ban on pre-dispute arbitration agreements is one of the most significant changes as it preserves patient/resident access to justice.

Greater support for resident preferences. Ongoing activities must be develop with resident preferences in mind. Food will consider religious and dietary preferences.

Care planning process –resident can identify who they want involved in created care plan (type/amount of care).

Strengthening residents rights: new rule calls for a more robust grievance process. A grievance officer must document grievance and outcome in writing and reasoning.

Facility cannot waive liability for loss of patient’s personal property.

Must give written notice if resident being moved from one right to another, with reason why, and resident can refuse if solely for staff’s convenience.

Exploitation/abuse/neglect:facilities cannot hire nurses and aides with disciplinary violations on their license.

Baseline care-plans must be created within 48 hours of admission, with addition of behavioral health services, along with enhanced training obligations. Use of psychotropic drugs are severely limited to treat specific conditions diagnosed and documented in the clinical record and provides for gradual dose reductions and behavioral interventions (unless clinically contraindicated). 

More documentation needed if facility is claiming that they can no longer meet resident’s needs(record must now include what specific needs that cannot be met, that the facility has attempted to meet needs, and that the service is, in fact,available at the receiving facility that will better meet the patient’s need).The requirement, preadmission, now requires facility to provide “notice of special characteristics or service limitations.”

Facility must give notice of bed-hold policy, must allow return to next-available room (previous room if available).

New Protections

No transfer/discharge while an appeal is pending (unless danger to health/safety of resident or others). Facility must send copy of transfer/discharge notice to long-term care ombudsman program.

Sec. 483.60(c) requires each resident’s drug regimen to be reviewed by a licensed pharmacist each month. Irregularities must be reported to the facility’s medical director.

**Now prohibits a facility from requiring or requesting third-party financial guarantees (but does not address situation where an financial agent volunteers to pay resident’s money to facility and/or arrange for Medicaid eligibility).

**Transfer/Discharge for Nonpayment: There is no “nonpayment” violation if a resident has submitted the necessary paperwork for third-party reimbursement (i.e. an application for medicaid coverage)

Concerns with New Rule

Staffing: Fails to address one of the biggest nursing home problems: inadequate staffing. Nothing to stop nursing homes from cutting staff down to dangerous levels. RN only required to be there 8 hours a day. This significantly impacts a nursing home's ability to assess serious events that might happen after hours.

Only one full-time social worker for facilities with over 120 beds.


Jason Neufeld is the Founder and Managing Partner of Elder Needs Law, a Florida estate planning and elder law firm he created in 2017. With more than 15 years of experience practicing law, he represents clients in a wide range of legal matters, including Medicaid planning, estate planning, elder law, probate, Medicare, and life insurance.

Jason received his Juris Doctor from the University of Miami — School of Law and is a member of the Florida Bar and the Broward County Bar Association. He has received numerous accolades for his work, including being named a Rising Star and Super Lawyer by Super Lawyers and among the Florida Legal Elite by Florida Trend in 2024.

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