Nursing home residents and their advocates have scored some improvements in the types and quality of care provided. But in many facilities, the caring concept of “nursing” and “home” are still hard to come by.

While lauding the good changes, Eric Carlson, directing attorney of the advocacy group Justice in Aging, recently took to the cyberwaves to describe the 10 most common complaints he receives from residents, family members, and other advocates — and offered some helpful tangible advice about what to do about each of them, summarized and augmented here with tips from other experts.

In many cases, the wrongful behavior is prohibited by a law, so it may help to have that knowledge and language in your arsenal; links to specific laws are provided here. But Carlson also stresses that for those hoping to resolve an issue, it’s not enough to cite the law and bang the table. You also need to be very specific in identifying the problem to nursing home administrators. In addition, it often helps if you’re willing to suggest a creative solution or two.

Problem #1: The nursing staff alone dictates the care to be given.

While staff tend to pooh pooh the requirement, every resident is entitled to a written “care plan” specifically tailored to meet his or her needs — and to invite family members, friends, and other advocates to participate in fashioning it. The focus of the plan, which must be completed in writing within 48 hours after being admitted and then reviewed every three months, should be the resident’s needs and preferences — both medical and nonmedical. A number of staff members are also required to attend the care meetings: the attending doctor, RN and CNA responsible for the resident, a member of the food staff, and any others the resident requests.

Tip: It’s a good idea for residents and their advocates to prepare for care plan meetings in advance by making a list of the individual care and services he or she expects. Bear in mind that the facility is getting paid — and most are paid dearly — to provide care 24/7, and that plans should cover social and psychological as well as medical needs.

Problem #2: Residents eligible for Medicaid get less care.

Discrimination based on ability to pay goes to the heart of a misconception many residents and family members, and many nursing home staffers like to keep alive. The law strictly provides, however, that facilities must have identical policies and practices for transferring, discharging, and providing services to residents, regardless of how they pay.

Tip: While nursing home administrators often grouse that Medicaid (called Medi-Cal in California) does not pay them enough, the reality is that to be eligible to receive Medicaid money, the facility must promise to follow the federal law, which specifically prohibits discriminating based on payment source. “It’s unfair for the facility to accept money, then shortchange the resident,” Carlson says.

Problem #3: Substandard dental care is provided — or not provided at all.

Studies show that many of the health problems and discomfort nursing home residents endure stem from the substandard dental care they receive. However, the law is clear that facilities must make a dentist available to provide routine and emergency dental services for every resident.  Residents eligible for Medi-Cal or Medicaid receive the dental services covered by their state’s program; facilities can assess charges for residents who pay privately or through Medicare.

Tip: An often-ignored clause in the law also requires the facility to help find alternative dental care services if a resident is not able to pay the charges, and must also assist in providing transportation to and from the appointment if needed. And if a resident’s dentures are damaged or lost — an unfortunately common occurrence — the facility must make a referral for dental services within three days.

Problem #4: Visitation hours are strictly enforced.

For their own convenience, many facilities slavishly limit and enforce specific visiting hours. But the law recognizes the importance of residents maintaining contact with the outside world, and ensures they have the right to “immediate access” by visitors.

Tip: There is a narrow exception to the free visitation rule if a person is not a family member and “clinical or safety concerns” indicate a restriction. It is difficult for nursing homes to claim such exceptions, however. Visitors who are barred or limited must actually be suspected of abusing the resident, have committed a crime, or be drunk and disruptive; it’s not enough that a person is annoying or a loud talker.

Problem #5: Physical therapy is stopped because a resident is no longer showing improvement.

It doesn’t matter if a resident has “plateaued” and no longer appears to be making strides in therapy; the facility must provide “specialized rehabilitative services”  to residents who need them.

Tip: The law also specifically details that even if a resident is not likely to make a full recovery or medical improvement through therapy, the services may be needed to “prevent further deterioration” or “preserve current capabilities.” That covers most people and most conditions.

Problem #6: A resident is evicted when Medicare payments end.

In most situations, facilities are legally required to give residents written notice, which must also contain information about the right to appeal, at least 30 days before the date of a proposed transfer or discharge.

Tip: The most important thing to do when threatened with an eviction that seems questionable is to hold your ground and stay put until the matter is considered by outside authorities. Once you leave, you lose all clout — and usually all chances of being readmitted to the facility you left.

Problem #7: Residents who are “difficult” are evicted.

The law specifies only six reasons that a resident may be transferred or discharged from a nursing home. Such moves are authorized only if a facility is going out of business, or if a resident:

• Needs a higher level of care;
• Does not require skilled nursing care any longer;
• Has endangered others’ safety;
• Has endangered others’ health; or
• Has not paid for the shelter and services provided.

Tip: Again, a word to the wise is to stay put if a transfer or eviction seems unreasonable. If a resident is accused of being “difficult,” request a care planning meeting so that the team of people involved can consider alternate kinds of care that may help keep a resident from becoming anxious or agitated. A facility must also provide documentation — indicating a resident’s specific needs it cannot meet, as well as its past attempts to meet those needs. Requesting this documentation sometimes gets the facility to change its tune about eviction.

Problem #8: A resident is not allowed to return to the nursing home after a hospitalization.

Nursing home administrators, who often send residents to a hospital unnecessarily, will sometimes claim that a resident can’t return because a “bed hold” has expired. However, facilities must allow residents to return to a former room, if available, or to the next available room if it’s not. Importantly, this requirement applies to Medicaid and Medi-Cal payors as well as those who pay privately or through Medicare.

Tip: Another controlling authority, the Surveyor’s Guidelines, specify that a resident “must be permitted to return and resume residence in the facility while an appeal is pending.” This helps buy time, if not complete peace of mind. Appeals generally take several months to process.

Problem #9: Family members must agree to be the “responsible party” on an admission contract.

Signers, beware. In this context, “responsible party” doesn’t mean the prime person who will check in on mom or dad; it means the person who will assume financial responsibility. Federal law prohibits nursing homes from requiring or even requesting that a third party guarantee payment. But the sneaky practice still goes on — with unwitting relatives pledging their pay during the fraught process of admitting a loved one to a nursing home.

Tip: Despite the strongly worded legal prohibition, some facilities even threaten to sue a family member or representative to collect on unpaid bills. Their reasoning is that people often just fold and comply with a request rather than face the time and expense of dealing with a legal matter. Don’t be one of them.

Problem #10: The nursing home requires residents to agree to resolve any future disputes through arbitration.

Arbitration, in which an allegedly neutral third party decides a case after informally listening to both sides rather than have the matter proceed through a court, was originally held out to be faster and less expensive — so a better choice for consumers. In reality, however, it has not panned out that way, and as a rule, arbitrated decisions tend to favor big business over consumer rights. Also, signing an arbitration agreement means consumers will be forever barred from having “their day in court,” when that’s the place that might allow for a fair resolution. You can simply refuse to agree to a mandatory arbitration clause by crossing it out and initialing it before signing the completed agreement.

Tip: Many admission agreements, in an attempt to appear reasonable, include the wording that arbitration is “voluntary,” so if confronted with one, check the language closely. Also, in reality, given that there is often confusion on move-in day, parties often do not process all the underlying paperwork until after a resident is ensconced in his or her room. One that happens, it is more difficult to negotiate agreement terms.

For Additional Information

• Justice in Aging recently updated a comprehensive downloadable guide, 25 Common Nursing Home Problems—& How to Resolve Them, and
• The National Center on Law & Elder Rights also publishes a helpful downloadable summary, “Using Consumer Law to Protect Nursing Facility Residents.”