Posts Tagged ‘Nursing Home Reform Act of 1987’

Physical Restraint Of Nursing Home Patients Limited By Law


The Nursing Home Reform Act of 1987 mandated changes in American nursing care. Chief among those changes: patients may not be restrained (either physically or chemically) unless it is medically necessary. How has that mandate fared in practice?

Frail (usually elderly) nursing home patients may be unable to walk, or even to support their own weight. Among those patients who are able to stand, gait and balance may be so compromised that there is a constant risk of falls.

The purpose behind most restraints, particularly so-called “soft” restraints like vests that tie patients to their chairs, or tables that make it impossible to stand (and that can not be easily removed by a confused, weakened elderly patient) is to prevent the patient from getting out of a chair or bed, and thereby to avoid falls and resultant injuries. The problem with those restraint devices, according to a growing portion of the elder care community, is that they actually endanger rather than protect patients.

Restraints have been cited as the causative factor in numerous deaths and injuries of patients. A frail elderly patient who is constantly trying to escape from restraints may be in danger of slipping part way out of the restraint system, and patients have even been strangled by the “protective” device.

Furthermore, according to advocates for the elderly, the mere fact of being restrained can lead to increased anxiety and confusion, and may itself be the cause of future increases in the use of restraints, including tranquilizers for the resulting agitation. The frail patient’s adverse reaction to restraints can become the cause of further loss of mobility, strength, dignity and self-control, accelerating the patient’s decline and resulting in an earlier death.

One powerful force behind the use of physical restraints is the demand by families for what is perceived as protection of elderly patients. Legitimately concerned and well-meaning family members often demand that facilities tie up elders to prevent the possibility of falls. Because the danger of restraints may not be apparent to family members, the facility has a special duty to not only resist the use of restraints but also to help educate patients’ families.

Does the 1987 law prevent the use of restraints? No, but it does call for restraints to be used only for legitimate medical needs of the patient, and not for the convenience of the facility or the comfort of family members.

A small but growing number of American nursing homes have moved toward elimination of restraints altogether. One leader in this movement is the Kendal Corporation of Pennsylvania, which has operated restraint-free nursing homes in four states beginning in 1973. The Kendal Corporation, in fact, operates a nationwide educational and advocacy program, called “Untie the Elderly,” in which it promotes the elimination of restraints in other nursing facilities as well. The program offers a videotape on the use of restraints in nursing homes and a compelling and practical handbook for use by nursing homes considering eliminating the use of restraints. The “Untie the Elderly” program also operates a website, with more information about its program and training materials.

Another excellent resource on the use of restraints in nursing homes is the National Citizen’s Coalition for Nursing Home Reform (NCCNHR), which has long advocated for reduced use of restraints and increased emphasis on patient’s rights. NCCNHR has published a short Fact Sheet on the use (and overuse) of restraints. More details (including NCCNHR’s excellent books Avoiding Physical Restraint Use: New Standards in Care and Nursing Homes: Getting Good Care There) can be ordered from the organization’s site.

Court Voids Joint Tenancy Transfer To Effect Will


Lloyd Hines, a New York farmer, had no children. His Will left the family farmhouse (where he had lived with his brother for many years) to his niece Sandra Johnson. The rest of his estate he left to his nephew Arne Lih.

In 1991, Mr. Hines became concerned about Medicaid eligibility for possible nursing home care. Someone apparently told him that he should place someone else’s name on his residence to prevent it being taken by the State after his death, and so he asked his attorney to place the farmhouse in joint tenancy with his nephew, Arne Lih. At the time, he also made it clear to his attorney that he did not wish to change his Will.

Mr. Hines apparently did not understand that the joint tenancy meant the farmhouse would pass to Mr. Lih despite his Will, and Mr. Hines’ attorney did not explain this result to him. When Mr. Hines died two months later his niece sued to invalidate the transfer.

The New York court found that Mr. Lih had impliedly promised, while assisting Mr. Hines with his planning, that he would honor the provisions of Mr. Hines’ Will. Although there was no explicit promise to do so, the fact that Mr. Lih was actively assisting Mr. Hines with his affairs and arrangements created a “confidential relationship” which permitted the court to invalidate the joint tenancy.

The actual mechanism by which the deed was invalidated in this case was what is known as a “constructive trust.” Essentially, the court ruled that Mr. Lih was in fact a trustee over the property, which he held for the benefit of Ms. Johnson, and he was ordered to transfer the property to her.Johnson v. Lih, N.Y. Sup. Ct. App. Div., June 29, 1995.

Arizona law contains similar provisions. On the same facts, the result should be expected to be the same.

Congressional Reform Proposals Advance

As Congress debates how to balance the budget, adopt the “Contract with America” and reform welfare, various legislative proposals dealing with Medicare, Medicaid, the Older Americans Act and related issues have steadily advanced through the process. For more information about the specific proposals, see Elder Law Issues, Vol. 3, Issue 16.

Public opinion polling consistently shows that the American public disapproves of efforts to drastically limit Medicaid benefits or to dramatically reshape Medicare. Less well known to the public is the effort to repeal the 1987 Nursing Home Reform Act, a principal source of protection for the quality of nursing home care. Repeal of that Act (ironically, in the very year that regulations were finally made effective) has become a part of both the Senate and House Republican proposals.

The National Citizen’s Coalition for Nursing Home Reform has now published an analysis of the 1987 law, the changes in nursing home care attributable to that Act, the resultant savings in medical costs, and the likely effect of repeal.

Congressional Activity Steps Up As Senate Debates Cuts


The new Republican majority in Congress has consistently worked toward balancing the federal budget and returning governmental control to a more local level. Shortly after taking charge, the new majority was also presented with projections of shortfalls in Medicare and Medicaid.

Since Medicare provides the vast majority of medical care for elderly citizens and Medicaid pays for about half of all nursing home costs nationally, any proposals for change in those two programs would necessarily have a disproportionate impact on the elderly and disabled. Recent discussions in the House and in several key Senate committees show just how dramatic that impact is likely to be.

Earlier this year, the House of Representatives and the Senate agreed to a budget for fiscal year 1996 which included a $270 billion cut in Medicare, $182 billion cut in Medicaid, elimination of many federal programs, reductions in other social programs, and a tax cut of $245 billion. The expressed goal is to balance the budget in seven years.

As the House and Senate begin to work out minor differences in their respective proposals, several common themes have emerged. It is now almost certain that the Republican plan will contain the following elements:

  • Elimination of Medicaid by converting it to a program consisting of federal block grants to the states.
  • Elimination of the Nursing Home Reform Act of 1987.
  • Major modifications to the funding and reimbursement elements of Medicare.
  • Dramatic funding cuts and restrictions on the Legal Services Corporation.
  • Drastic reductions in funding under the Older Americans Act.

Medicaid Block Grants

The largest impact might well be felt in connection with the conversion of the federal Medicaid program into a block grant to the states. Under the House proposal, for example, Arizona’s anticipated increases in Medicare funding would be reduced by a total of $711 million less over the next seven years (the 1996 payment would actually increase by $110 million). The Senate version would reduce Arizona’s anticipated Medicaid subsidy by over $1.1 billion over the same seven years, including a $141 million reduction in 1996.

At the same time that federal subsidies are drastically reduced, federal mandates on service would also be cut. Although there are differences between the House and Senate versions, both would eliminate most eligibility standards, allowing states to set their own rules for participation, copayments and deductibles. While childhood immunizations must be covered in both versions, the Senate does not expressly require nursing home coverage (though it does require coverage for elderly and disabled individuals earning less than $1142/month.

Most insidiously of all, however, the House version eliminates any requirement of rules governing spousal impoverishment. States would be free to return to the pre-1987 rules, under which an nursing home patient would receive assistance only if his spouse had spent down to $3,000 in countable assets. Even the current exemption for the patient’s home could be limited, and liens could be required at the state’s option.

Repeal of Nursing Home Standards

The Nursing Home Reform Act of 1987 set national standards of care for the industry. Among the most important consequences of the NHRA has been the dramatic reduction in use of restraints. In fact, recent studies suggest that the implementation of NHRA standards has reduced hospitalization among nursing home residents by as much as 25%.

Both the House and Senate would repeal the Nursing Home Reform Act. This would leave the adoption and enforcement of regulations to the same state governments whose inaction and failure generated bipartisan federal action in the first place.

Medicare Financing

Both the House and Senate have acted to increase premiums for all recipients. Next year, for example, premiums would be expected to rise from $46.10 per month for Medicare Part B to $54 (the premium had been scheduled to drop slightly next year). For the first time Medicare would be partially means-tested, with high income individuals (over $75,000) and couples (over $125,000) paying higher premiums. The Senate would also increase the age for Medicare coverage to 67, to match the scheduled increase in Social Security eligibility.

Originally, a significant portion of the savings was scheduled to come from reductions in payments to doctors. Facing possible American Medical Association opposition to the proposals, House Speaker Newt Gingrich last week agreed to as-yet unspecified limitations on those reductions. News reports indicate that the AMA has voted to approve the changes, after having been promised another $300 million in fees.

Legal Services Cutbacks

The national Legal Services Corporation (“Legal Aid” to most) has been the target of many previous budget cutting cycles. This time, the current budget of $415 million is slated to be cut by between 18% (Senate version) and 33% (House version). In addition, Legal Services programs will be prohibited from various activities seen as threatening the pace of welfare or regulatory reform. In the Senate version, for example, LSC lawyers would be prohibited from filing class actions.

Among the specific proposals being debated regarding Legal Services, training and education programs now provided by the National Senior Citizen’s Law Center would be eliminated. LSC lawyers would be specifically prohibited from filing any action challenging the legality of welfare reform measures or from handling fee generating cases in Medicaid, Medicare or similar litigation, even though private attorneys have not been interested in such cases.

Long Term Care Ombudsman

Since Richard Nixon’s administration, in 1972, the Long Term Care Ombudsman program has been an integral part of funding under the Older Americans Act. The Ombudsman program has been a mainstay of assistance and support for institutionalized patients and their families and advocates. Anyone working in the field for the past 25 years would be able to recall nursing home conditions and the quality of long term care prior to the activist work of local Ombudsmen.

The House Appropriations Bill would zero out funding for the Long Term Care Ombudsman, as well as elder abuse prevention. These actions would save $4.4 million and $4.7 million, respectively (remember that the Doctors’ lobby asked for and was given approximately $300 million in restored funding). The Senate would continue these programs, plus $1.3 million for legal hotline programs like the one administered by Southern Arizona Legal Aid.

The House bill also would reduce funding for the Older Americans Act by 13%. Services provided under the OAA include much of the funding for Area Agencies on Aging (such as the Pima Council on Aging in the Tucson area).

Congressional Activity Steps Up As Senate Debates Cuts

Medicare and Medicaid “Reform” Proposals


The debate in Congress over changes to federally-subsidized health care has shifted focus in the last few weeks. Rather than making proposals to “save” Medicare and Medicaid, Republican strategists have begun to discuss “reform” of those programs.

At the center of the legislative discussion is the need to deal with Medicare’s anticipated $270 billion shortfall over the next seven years. At the same time, Medicaid spending has come under scrutiny as one of the few areas where cuts can be made, given the realities of federal debt, defense and entitlement payments.

The U.S. House of Representatives has already adopted several proposed changes in the funding mechanism for Medicare and Medicaid, and the Senate is now discussing its own version of change. Late last week the Senate Finance Committee adopted “reform” proposals which would:

  • Permit states to adopt unlimited “transfer penalty” rules, potentially making any person who had made a gift to family or others permanently ineligible for Medicaid benefits.
  • Repeal all spousal impoverishment protections. Under current law the spouse of a nursing home resident is permitted to retain the family home, automobile, household furnishings and as much as $74,000 in cash or investments. Under proposed changes, states would be free to establish their own rules.
  • Repeal the Nursing Home Reform Act of 1987, leaving nursing home standards to state governments.
  • Save about $30 billion by increased use of managed care plans. The remaining $240 billion savings in Medicare would come from lower payments to providers and higher premiums for beneficiaries.

Meanwhile, President Clinton indicated Saturday morning that the Medicaid proposals were “outrageous.” Political insiders speculate that Clinton will veto the Medicaid “reform” legislation if it passes in its current form, and that the real work of balancing the Medicaid budget will begin after the veto.

©2021 Fleming & Curti, PLC