## LongTerm Care Ombudsman Annual Report: Fiscal Year 1995

## 

## Part V. MajorLong-Term Care Issues 

States were asked to describe the priority issues which theirprogram had identified and/or worked on during the reportingperiod; barriers to resolution; and recommendations forsystem-wide changes needed to resolve the issue, or how the issuewas resolved in their state. 

Not all states responded to this question, and no broadconclusions can be drawn from the individual state responses.However, a number of states addressed similar problems. Theextent to which the major resident/facility issues identified bythe states were interconnected was striking, demonstrating thatone root cause will have a variety of effects in the long termcare setting and, conversely, that one fundamental correction canalso correct several manifestations of a problem. 

Most of the issues identified by the states correspond closelywith the numbers of types of individual complaints, summarized inPart II of this report. 

As indicated in the summaries below, in some areas ombudsmenare resolving long-standing problems affecting large numbers ofolder people living in nursing and board and care homes and thosein need of long term care. However, it is also clear that manyproblems remain. 

Highlights from each state's report are provided in AppendixD. The following is a summary of issues identified by three ormore states, barriers to resolving the issues, and state actionsand recommendations to resolve the issues. They are dividedbetween resident/facility issues and ombudsman program issues andlisted in the order of the frequency with which they werementioned in the state reports. 

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### **A.Resident/Facility Issues**

#### **1. Board and care and similar adult day care facilities**

13 states (DC, GA, KS, MT, NC, NJ, OR, NV, PR, TN, VA, VT, WA)

**Major Issues**

- difficulties with unlicensed facilities, including the        rapid growth of these facilities which is exceeding        regulatory capacity; 
- weak oversight by local or state authorities; 
- inappropriate care for a very dependent population, many        of whom have "aged in place" and require care        which is beyond what regulations permit for this level of        facility; 
- untrained/unskilled workers; 
- lack of rules on appeal of discharge; 
- housing projects providing unlicensed assisted living        services; 
- use of restraints in lower levels of care; and 
- lack of clarity by consumers and advocates about what        "assisted living" is. 

**Barriers**

- lack of alternative placements for many board and care        residents, including pressure on discharge planners to        find the "first available bed"; 
- lack of statutory authority to take regulatory actions        beyond suspending or de-licensing a facility; 
- moratoria on nursing home beds; 
- lower costs of services in lower levels of care; 
- residents and their families lacking knowledge of what        services these other homes are legally allowed to        provide; and 
- lack of regulatory staff and resources to properly survey        these homes. 

**Best practices**

- promoting board and care reform legislation, including        interim sanctions and increased numbers of regulators for        board and care facilities (WA); 
- supporting legislation (which was enacted into law)        combining licensing for care settings below the nursing        home level under a single state agency and expanding the        options available to residents (MT); 
- assisting good providers to become licensed and working        to see that abusive providers are penalized and their        facilities closed (DC); 
- working closely with personnel of regulatory agencies to        effect changes to improve life for residents (several        states); 
- securing Medicaid funding for personal care for        residents, accompanied by new requirements for        facilities, such as completing client assessments,        providing independent case management, requiring aide        training, and increasing monitoring and supervision of        residents (NC); 
- securing a regulatory agency prohibition against homes        charging residents for laundry (DC); 
- educating the public and lawmakers about the impact of        eliminating residents' cost-of-living (COLA) adjustment        and filing a class action lawsuit when the successful        legislative outcome was unilaterally rescinded by the        Governor (VT); 
- working with advocates and the legislature to gain        consumer knowledge and statutory definitions of assisted        living services (WA); and 
- assisting a consumer group to conduct a statewide survey        of adult foster care home public disclosure files (OR). 

**Recommendations**

- screen potential providers prior to licensing;        particularly, perform criminal record checks, assess for        financial stability, and require a criminal record check        of all substitute caregivers; 
- promulgate regulations to prevent professional social        workers, discharge planners, and mental health        professionals from placing clients in inappropriate,        substandard and/or unlicensed homes; 
- educate state legislators about these homes; 
- make landlords co-providers on the license when they are        actively involved in their tenant's adult foster care        home business and develop a mechanism to ensure a legally        responsible party through the succession of adult foster        care home rental arrangements; 
- establish a registry to track abusers through the system        to keep them from providing "care" to frail        older persons; and 
- change the law that defines adult foster care facilities        as single-family homes and exempts them from regulation        by the fire service. 

**2. Inadequate state nursing facility regulations andenforcement, and inadequate state enforcement resources**

10 states (AR, FL, LA, DC, IN, KS, MI, NM, OR, VT) 

**Major Issues**

- survey dates are routine and predictable; 
- inadequate and out-of-date rules; 
- lack of a timely and responsive complaint investigation        system; 
- woefully inadequate numbers of regulatory staff and other        resources due to budget constraints; 
- regulators not attuned to a consumer-focused system; and 
- allowing homes to continue operating with the same        problems year after year, with no definitive action to        effect fundamental changes in the facility. 

**Best practices**

- organizing a coalition which successfully worked for        closure of a facility where for years residents had been        subjected to gross neglect and other conditions that        deprived them of their constitutional and statutory        rights and assisting in the transfer of the residents to        new homes (DC); 
- holding frequent meetings with state regulatory people to        suggest revised policies/procedures and often providing        testimony/comments on proposed regulations (many states);    
- advocating for effective sanctions against facilities        which do not provide the kind of care and services        residents expect and deserve (most states). 

The Vermont Ombudsman said, "The Ombudsman Program needsto be proactive in order to assure that it is informed of pendingpolicy discussions and afforded an opportunity to provide inputon behalf of consumers." 

**3. Abuse of residents and issues related to stateprotective systems, reporting requirements, and the need forabuse prevention**

10 states (AK, LA, CT, KS, MN, IN, NJ, OH, PA, SC) 

**Major Issues**

- need for state law which makes elder abuse and neglect a        criminal offense; 
- abuse by legal representatives and fiduciary abuse by        families; 
- need to eliminate confusion about what is reportable and        to decrease duplicate reporting by facilities to the        Ombudsman Program and other agencies; 
- lack of a system to prevent facilities from hiring        employees with criminal records; and 
- inconsistent application of laws and systems designed to        protect elders against abuse, neglect and exploitation,        due in part to insufficient resources. 

**Barriers**

- an incorrect belief that the current system already        prevents individuals with a conviction record from being        hired (IN); 
- belief that the decision to do background checks on        potential employees should be left to each facility        administrator (IN); 
- lack of clarity of other's roles in the entire adult        protective system (several states); 
- different resource needs for those living in nursing        homes, board and care and home care settings (OH); and 
- insufficient cooperation among agencies at the local        level (several states). 

**Best practices**

- educating the public and lawmakers about need for        effective legislation; 
- providing abuse prevention training for facility managers        and staff; 
- instituting reporting requirements which distinguish        between actual abuse and incidents between impaired        residents, both of whom need assistance (CT); 
- instituting regular, on-going problem-solving discussions        among the affected agencies; 
- researching, analyzing and successfully advocating for        legislation to require criminal background checks for all        individuals whose work involves direct contact with        vulnerable adults, with provision for licensing sanctions        for perpetrators of abuse (MN); 
- participating in broad-based coalitions to reform the        state elder abuse reporting and protection act; 
- the ombudsman program supplementing the Certified Nurses        Aide registry by offering potential industry employers        "Substantial Abuser" information (in less than        30 days the New Jersey program received 357 employer        inquiries); 
- developing an Elder Rights Plan which includes using        existing local abuse prevention and reporting systems as        models for replication in other areas of the state and        development of protocols for responding to abuse, neglect        and exploitation for each long term care setting (OH);        and 
- in Pennsylvania, the Attorney General's using ombudsman        records to successfully prosecute a nursing home        corporation for negligence in failing to provide quality        care to residents. 

**4. Staff shortages in general and chronic shortages of welltrained and equitably compensated certified nurse assistants**

9 states (CO, FL, MO, WV, GA, IN, MI, NM, WA) 

**Major Issues**

- staff shortages resulting in call lights not being        answered, water pitchers left empty, late meals,        residents not being walked or taken to the bathroom, lack        of personal hygiene, violations of privacy and dignity,        bedsores, abuse; 
- a culture where individuals are objects to be dressed,        bathed and fed, rather than people to be related to; 
- out-dated staffing ratios; 
- staff turn-over; and 
- residents in a survey identifying their need for adequate        care as their first priority. 

**Barriers**

- poor wages; lack of training for aides; staff exhaustion        leading to injuries; 
- poor management; lack of administrative support of aides        and team-building skills; and 
- low staff self-esteem related to job not being valued by        society and aides not being recognized as a valuable        member of the care team. 

**Recommendations**

- institute rules requiring a  sufficient  minimum        ratio of nursing assistants to residents on each shift        (The Washington Ombudsman is working to obtain a        regulation requiring one assistant for every eight        residents and one social worker for every 60 residents)        and require facilities to disclose the ratio of        assistants to residents on each shift to residents,        family members and the general public on a weekly basis; 
- publish quarterly a list of facilities that are cited for        understaffing and research, analyze and make public        correlations between deficiencies for understaffing and        other deficiencies; 
- promote ways to recruit and retain assistants; 
- explore the feasibility of changing reimbursement rates        to nursing facilities to ensure that a minimum amount is        allocated to nursing assistants; and 
- reconfigure staff by organizing facilities into        "neighborhood units", with all staff        responsible for all that needs to be done in that unit. 

The Colorado report said, "The key to resolving staffingproblems is management which respects all individuals, whichmakes the Certified Nurse Assistant an integral part of the team,which has an employee assistance program and offers equitablebenefits." 

**5. Transfer and discharge issues (discrimination,procedures)**

*(These issues are related to issue # 6, treatment forresidents with mental illness, dementia.*) 

9 states (AR, AZ, LA, MO, CT, MN, MT, NC, OH) 

**Major Issues**

- improper transfer or discharge notices, no written        notice, families not wanting to appeal cases, and        informal meetings where the discharge notice is        withdrawn; 
- lack of legal representation at hearings; 
- a systemic problem of financial exploitation of residents        by their responsible parties, with the consequent failure        to pay the bill resulting in discharge; and 
- nursing homes' failure to use the proactive assessment        and care planning process to deal with behavior issues        and instead waiting until problems reach a crisis stage        and then trying to transfer the resident to another        facility, and (in one state) even placing the resident on        the steps of the Adult Protective Services (APS) agency        as an allowable transfer. 

**Barriers**

- limited involvement of the mental health system in        nursing facilities; 
- inadequate initial and ongoing assessment of resident        behavioral symptoms and inadequate staff knowledge of        best practice to treat and respond to behavioral        symptoms; 
- facilities not recognizing ombudsmen as a resource prior        to discharge action; and 
- in the case of discharging the resident to the APS        agency, both the state and national nursing home        associations supporting and promulgating the position        that this was an allowable transfer. 

**Best Practices**

- representing residents' interests before state agencies        and the legislature, particularly with regard to        room-to-room transfer and inter-facility discharge, and        developing a systematic approach to fair hearings for        individuals who are notified of impending transfers from        the facility (CT); 
- training facility personnel on ways to deal with this        constellation of issues (several states); 
- amending the Residents' Bill of Rights under state law to        extend to residents of non-certified nursing facilities        the rights guaranteed to residents of certified        facilities under the Nursing Home Reform Amendments to        appeal an involuntary transfer or discharge (Louisiana);        and 
- in North Carolina where residents were being transferred        to the APS agency doorstep, securing assistance from Toby        Edelman of the National Senior Citizens Law Center and        taking other steps which resulted in withdrawal of        sanction for such a practice. 

See the end of this part for the systemic approach Minnesotatook in addressing the problem of non-payment due to financialexploitation of residents by their relatives. 

**6. Lack of placement, needed services, and staff trainingfor those caring for mentally ill and dementia residents**

9 states (AL, FL, NH, DC, GA, IN, UT, WA, OH) 

**Major Issues**

- providers having inadequate knowledge of dementia and        dementia care; 
- a lack of mental health services and/or educational staff        to teach providers the basic approaches and strategies        inherent in facilitating the needs of behaviorally        challenging individuals who are mentally-ill, retarded or        demented; 
- a lack of systems whereby clients could have single-entry        access to services; and 
- residents with dementia who are under commitment and        placed in a nursing facility not being given mental        health treatment because they do not respond to the type        of therapy provided at the nursing facility. 

The Washington report stated, 

"Nursing homes offering ‘special units’ forpeople with dementia are proliferating. So are special `assistedliving’ boarding homes. In many cases, the only specialthing about the facility or ward is that it is locked. Actualservices which assist the residents are often at a lower qualitywith fewer staff hours than services on the `ordinary’ unitsof the same home. Residents are left with very few staff hours,little or no organized activity, and aimless boredom. 

"A long standing principle of mental health servicedelivery is that patients are most responsive to treatment whenit is delivered in the contexts of their normal daily lives.Uprooting patients from natural surroundings typicallyexacerbates their mental health problems and creates theadditional problem of reintegration into their normal socialsystem. Moreover, the Medicaid reimbursement system covers thecosts of facility delivered mental health services. In WashingtonState nursing facilities received a nine percent one-timereimbursement adjustment to cover expanded mental healthservices, yet these services are rarely delivered." 

The Indiana report said: 

"Residents of long term care facilities may at timesexhibit behaviors that challenge the most skilled providers. Someof these behaviors include yelling, fighting, wandering,resisting care, cursing and inappropriate sexual behavior. Thesebehaviors are often symptoms of dementia. Since it is estimatedthat between 50-75% of nursing home residents have some type ofdementia, behaviors of this nature are frequently manifested inthe nursing home setting. In other cases, these behaviors may beexhibited by individuals who have serious mental illnesses, suchas schizophrenia. 

"Far too often, the `answer’ to the presence ofthese symptoms is to simply transfer the resident to anotherfacility — despite the fact that the other facility is heldto the same standards and regulations as the original facility.Moreover, these transfers are often the first resort rather thanthe last, and may occur without an appropriate medicalevaluation, behavior assessment or care plan having been done ortried. The standards of practice and care and the rights ofresidents with such challenging behaviors must be improved."

**Barriers**

- residents and family members not being informed about        what steps the facility is required to take to assess the        resident's needs and develop and implement a care plan        and consequently not being aware of their rights and        often just accepting the facility's statement that        "they should find another place for mother"; 
- the fact that a nursing home setting may not be        appropriate for a certain percentage of individuals,        despite all interventions; 
- unwillingness of facilities to pay for staff training or        for a behavior consultant; and 
- turf issues, agencies blaming other agencies for the        problem, communication breakdown, misunderstanding of        role and limitations of all agencies involved,        misunderstanding of federal and state regulations, and        misunderstandings around restraining residents from        eloping from facility (UT). 

**Best practices**

- working on Assisted Living Facility (ALF) regulations        that would allow ALF's to accept Alzheimer's residents        (AL); 
- successfully advocating for regulations for Community        Residential Facilities which house residents with a        mental illness (DC); and 
- working with the Alzheimer's Disease and Related        Disorders Program to assess data and create and provide        educational activities for elderly or disabled adults,        providers and families (NH). 

**Recommendations**

- The Ombudsman Program, state survey agency and nursing        home trade associations should work together to provide        statewide training for nursing facility staff on skills        to deal with these behaviors, while individual facilities        should assure that their staff receive in-depth training        in managing behavioral symptoms; 
- consultation with behavioral specialists and community        experts should be an automatic part of addressing the        symptoms of residents; 
- facilities that have transferred a resident or tried to        transfer a resident without first attempting to meet all        the federal requirements for care and treatment by using        various types of interventions should be cited by the        state survey agency; and 
- facilities should be encouraged to address the behavioral        symptoms of a resident when they first appear, rather        than waiting until they escalate. 

**7. Ensuring that rules and regulations established in thefederal Nursing Home Reform Act (OBRA '87) are continued andenforced**

7 states (FL, DC, CT, GA, NC, OH, WA) 

**Major Issues**

- difficulty implementing the Nursing Home Reform Law in        the face of federal debate over whether the law should be        retained and delays in enforcement; and 
- facilities inadequately completing comprehensive        assessments of residents and comprehensive care plans. 

**Barriers**

- the expense that facilities incur in conducting thorough        assessment reviews, both in terms of training staff and        retraining due to staff turn-over, and the large amount        of staff time spent completing such tasks; 
- the failure of facilities to fully understand the process        and how it can benefit residents and facilities; and 
- lack of strong penalties for violation of provisions of        the Act. 
- Best practices 
- adopting the federal regulations at the state/local level        (DC); 
- with residents' permission, providing information to        surveyors prior to nursing home inspections, and        assisting residents and families who wish to talk with        surveyors (CT); 
- monitoring the state's request for a waiver from the OBRA        enforcement regulations (GA); and 
- evaluating state implementation of OBRA (several states).    

North Carolina recommended development of a comprehensivetraining program on how to conduct assessments and care plans andmaking the training readily available throughout the state, withstrict penalties for facilities which continue not to comply. 

**8. Subacute care and "distinct parts"**

*(related to difficulty in finding a bed, issue # 10)*

7 states (AL, CT, IL, GA, MI, VT, WA) 

**Major Issues**

- sub-acute care being provided widely without standards        for it, or even formal recognition of it, as a legitimate        "level" of care; 
- a limited number of beds in a Medicaid-certified facility        being declared "Medicaid beds," thus creating        an acute shortage of Medicaid beds and leading to        eviction of private pay patients who exhaust their        resources and become eligible for Medicaid; 
- facilities operating separate Medicare wings, known as        "distinct parts," and transferring patients        onto and off of these wings, based solely on the        patients' source of payment, despite the fact that the        Nursing Home Reforms Act abolished the distinctions        between nursing levels of care and banned source of pay        transfers; 
- facilities maintaining separate waiting lists — one        for Medicaid, one for Medicare; and 
- forcing Medicaid residents who are hospitalized to find        another facility after they exhaust their Medicare        benefits, even when they were a resident of the facility        prior to going to the hospital and becoming eligible for        Medicare benefits. 
- Best practices 
- providing information on these practices and their impact        on consumers to the state licensing/certifying agency        (several states); 
- advocating for regulations and a separate license for        sub-acute care (AL); 
- obtaining a list of facilities which are approved for        distinct parts and making the information available to        current and potential residents and to facilities which        claim to have been approved for distinct parts but have        not been so approved (IL); 
- advocating for state and federal rules to require        Medicaid-certified facilities to certify all their beds        for Medicaid, not just some beds (MI and other states); 
- advocating for mandatory Medicare certification for all        nursing homes (VT); and 
- negotiating with facilities to retain individual        residents who have expended their private funds and must        convert to public reimbursement, only to learn that the        Medicaid distinct part is full (many states). 

**9. Inappropriate and excessive use of chemical and physicalrestraints, and related issues**

6 states (MO, WV, CT, GA, OR, WA) 

**Major Issues**

- family members insisting that their resident be        restrained for safety; 
- the need for careful assessment of rehabilitation needs        before release from restraints; 
- staff seeking convenience for themselves over what is        best for residents; facilities' fear of liability if an        unrestrained resident falls; and 
- the use of restraints in non-medically supervised        settings, such as adult foster homes, with resulting and        predictable abuse of restraints and residents. 
- Best Practices 
- educating nursing home personnel and families about        appropriate use of restraints, encouraging replication of        successful restraint reduction programs around the state        (MO, GA and other states); 
- re-writing regulations to clarify what constitutes a        restraint (WV); and 
- forming a committee of nursing home providers, health        professionals and state agencies which facilitated        educational programs on individualized care alternatives        to restraints to reframe thinking from "problem        residents" to "residents with problems"        (CT). 

Oregon reported resounding success in restraint reduction: 

"In the nursing home setting, the use of physicalrestraints on residents is diminishing to the point where somenursing facilities are restraint-free. Not only is there federallaw mandating this change in care practice, but there isconsiderable evidence that physical restraints are extremelydeleterious to the health and well-being of residents." 

**10. Difficulty in finding a nursing home bed for those inneed — especially for Medicaid-eligible individuals, thosewith special care needs, and those with moderate financialresources (financial discrimination in admissions)**

5 states (WV, GA, MI, SC, WA) 

**Major Issues**

- a state moratorium on new beds making it difficult to        find beds for those with special needs, especially those        with dementia who wander, have a prior history of        combative behavior, or are obese; 
- few properly trained staff for those with special needs; 
- additional costs to the facility required to care for        those with special needs (several states); and 
- "nursing facility policies which tie care to wealth        — there is no limit to how much nursing homes can        charge a resident paying privately" (several states;        quote from MI report); in some states, such as South        Carolina, these factors add up to "no freedom of        choice of nursing homes; (residents) must take the first        bed available after a one year wait." (quote from SC        report) 

**Recommendations**

- establish special units in existing facilities geared to        meet special needs and carry out extensive education and        training to better prepare staff to meet these residents'        individual needs; 
- re-adjust reimbursement system to better compensate        facilities which have residents with mental health needs;        and 
- require nursing homes to admit applicants from one list,        in the order of application, rather than by amount of        money available to pay privately (MI) (See end of this        part for the Michigan Ombudsman's work on Medicaid        discrimination in admissions.); 

The South Carolina report stated: 

The General Assembly should appropriate sufficient funds forMedicaid nursing home beds. If people have a choice, they willchoose the best facilities and the worst will have toclose....supply and demand is the best possible regulator.However, we must create an environment where this is possible. 

**11. Improving communication and coordination with licensureand certification agency staff**

5 states (IL, DC, NJ, NV, VT) 

**Major Issues**

- residents and families often perceiving that their        concerns are not heard or incorporated into the survey        and inspection process and that inadequate attention is        paid by the survey agency to quality of life issues; and 
- a lack of understanding between ombudsmen and surveyors        regarding their respective roles and responsibilities and        consumer advocates being regarded as adversaries, both by        nursing home personnel and the survey agency. 
- Best Practices 
- establishing work groups to discuss roles of ombudsmen        vs. inspectors and developing protocols for sharing        information; 
- establishing good personal and working relationships with        regulators; and 
- increased ombudsman involvement in the survey process. 

The Vermont Ombudsman reported that Vermont's efforts atimproved communication and coordination with the regulatoryagency were deemed so successful by HCFA that many aspects of theVermont cooperative model were incorporated into the new federalenforcement regulations. 

**12. Medicaid reductions/eligibility delays, denials**

4 states (MD, MN, TN, WA) 

**Major Issues**

- a high percentage of Alzheimer and dementia patients        being found ineligible for Medicaid because they were        found not to require daily medical attention (MD), and        legislative changes in level of functional impairment for        Medicaid which may impact access (MN); 
- lack of assistance for individuals in applying for        Medicaid and the need to defend initially denied        applications (TN); and 
- the large discrepancy between need and the funding which        would be provided under proposed changes in Medicare        (WA). 

The Tennessee report summed up the problem as follows: 

"Several local ombudsmen spend a significant part oftheir time assisting families and individuals in this area.Physicians' offices and home health agencies are reluctant tocomplete these applications and seem to lack knowledge of theprocess. Nursing facilities are assuming a practice of chargingprivate pay rates from initial admission of the patient.Sometimes when the State Medicaid Bureau denies the benefit, evenafter months or perhaps a year of care, the patient then"owes" thousands of dollars in arrears. Families andindividuals are reluctant to seek nursing home care when there isthis risk of financial surprise." 

**Best practices**

- working with legal assistance providers to appeal        denials, most of which were reversed (MA, MD); 
- ombudsman program hosting an informal meeting with        Medicaid staff to challenge policies on eligibility and        redeterminations, which resulted in significant        reductions in denials (MA); and 
- formation of the Family Coalition to provide information        to Congress and the State Legislature on the need for        adequate Medicaid funding (WA). 

**13. Bedhold — nursing facilities sending residents toa hospital or local mental health center for evaluation or careand refusing to readmit the resident**

3 states (IN, VT, WA) 

**Major Issues**

- facilities refusing to readmit when a resident has        exhibited certain behavior symptoms, the facility is        tired of dealing with a family member, or there is an        issue of nonpayment; 
- in some cases, the facility sending the resident to the        hospital or mental health center with the clear intent        from the start to refuse readmission, which takes place        despite regulations prohibiting this practice (IN); and 
- in Vermont, a proposed elimination of the 10-day        guarantee that the resident would be able to return to        his/her bed in the nursing home after a period of        hospitalization lasting no more than 10 days in order to        save state funds. 

**Barriers**

- lack of a mechanism to require a nursing home to readmit        a resident at the time the facility is denying        readmission (appeals required within 23 days upon        resident request in transfer/discharge cases would be        held after the resident has been forced to find another        facility, rendering the right to appeal meaningless)        (IN); 
- residents, family members and staff in hospitals and        mental health centers not being aware of the state and        federal requirements that apply in these circumstances        (IN); and 
- opposition of nursing facilities to a bedhold policy        because it is a deterrent against facilities dumping        undesirable residents in hospitals on specious grounds        and it prohibits them from filling the bed with a more        affluent private-paying resident (VT). 

**Best practices**

- the Vermont Ombudsman's mobilizing concerned residents,        families, and nursing home staff to contact legislators        and ask them to oppose the cut proposed by eliminating        bed holds. This resulted in legislative appropriations        committees voting unanimously to preserve funding for the        program. 

**Recommendations**

- impose fines on facilities that refuse to readmit        residents to their homes; 
- revise the appeals process to allow appeals to be held        within a matter of days, rather than weeks, in these        cases (since "emergency" transfers are        permitted under the regulations, "emergency"        appeals should also be required and could be held in the        hospital or mental health center where the resident is        located); 
- cite facilities for improper transfer or discharge if,        upon appeal, the hearing officer rules in the resident's        favor; 
- change the priority that is assigned to complaints        relating to such discharges so that they can be        investigated within a time frame that can produce        meaningful results for residents; 
- develop a "quick response" approach in which        the ombudsman program can contact the survey agency,        which in turn would contact the facility and remind them        of laws pertaining to transfer/discharge and bedhold; 
- work with the hospital association and mental health        centers to address the problem jointly; educate hospital        discharge planners and mental health providers and state        and federal requirements and steps they can take if a        facility is refusing to readmit a resident; 
- prepare and disseminate to residents, families, and the        public informational material about residents' rights in        these situations; and 
- develop a protocol for hospitals, mental health centers,        and nursing homes in which communication between the two        treatment teams is promoted and the nursing home is        assisted in maintaining the resident's stability, once        the resident is back in the facility. 

(All the above recommendations are from the Indiana report.) 

**14. Lack of needed services for elderly and disabled**

3 states (AL, DC, NM) 

**Major Issues**

- no system to house disabled adults on an emergency basis        who are in a crisis and need long-range permanent housing        arrangements; and 
- lack of resources for and provision of community based        alternatives to institutional care, such as in-home,        adult day and respite care. 

**Best Practices**

- working with coalitions to address the need for home        health and assisted living to allow persons to stay in        their own home (AL); and 
- creating a system of temporary housing (DC). (DC is        examining models used in other counties and states as        well as the established crisis bed system in D.C. for        emergency psychiatric situations. The Ombudsman has        proposed recruiting licensed health professionals to        volunteer in an emergency capacity, as needed, to        administer tests and perform physical examinations.) 

**15. Advocacy through education about rights, benefits andcosts and the residents' perspective on life in a nursing home**

3 states (NH, CT, VA) 

**Major Issues**

- individuals needing to know what their rights are, what        the resources are and how to mobilize them; and 
- there being far more individuals who continue to need        this education than there are ombudsman program staff        available to provide it. 

**Best practices**

- increasing the involvement of highly qualified volunteer        staff to provide education (NH); 
- developing, in coordination with the state Health        Services Cost Review Council, a consumer's guide to        nursing home charges which includes information about        alternatives to institutional care, how to choose a        nursing home, assistance available for financing        long-term care, and residents' rights (VA); and 
- holding discussions with the general public, nursing home        providers, and other state agencies about the needs of        nursing home residents and their experience of nursing        home life. (CT — See end of Appendix D for excerpts        on the resident's point of view from the Connecticut        Report.) 

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### **ProgramIssues**

**1. Ombudsman Program Coverage**

10 states (AK, AZ, CA, MS, NJ, NY, PA, VA, VT, WA) 

**Major Issues**

- the need to develop or expand a volunteer program to        provide facility coverage at a time of diminishing        resources to do so (several states); 
- increased federal and state mandates on the ombudsman        program with no additional resources to carry out the        mandates; 
- inability to provide sufficient paid staff to expand the        program to cover residential care homes due to inadequate        funding; and 
- inadequate provision of legal assistance and counsel for        the program and residents. 

**Best Practices**

- forming a statewide elder rights coalition, which is        advocating for increased ombudsman funding to enable the        program to cover board and care homes, with plans to        lobby the legislature for an appropriation of funds (AZ);    
- developing a volunteer program (AK, NJ, MS); 
- developing program posters and brochures for statewide        distribution and providing ombudsman certification        training (MS); and 
- providing coverage in areas without local ombudsman        programs by placing posters in facilities advising        residents and their representatives that they may call        the state ombudsman office with problems (NY). 

These issues and others mentioned by fewer than three statesare explored more fully in Appendix D. 

**Other exemplary and "best practices" whichemerged from the state reports include:**

- developing a letter signed by the state ombudsman, the        appropriate local ombudsman, and the director of the        state survey agency which is sent to residents and their        families when a facility is scheduled for closure; to        date, residents and their families, while understandably        concerned when they learn the news, have expressed        appreciation for having been informed (IN); 
- achieving an amendment of the Residents' Bill of Rights        under state law to extend to residents of non-certified        nursing facilities the right guaranteed to residents of        certified facilities (under the federal Nursing Home        Reform Law) to appeal an involuntary transfer or        discharge (LA); 
- convening an Ethics Task Force made up of ethicists,        lawyers, physicians, nurses, social workers and        interested professionals to review and discuss the role        of the Office of the Ombudsman in end-of-life        decision-making for the institutionalized elderly who        have no advance directive and provide consultation to        ombudsmen in resolving disputes at the bedside regarding        end-of-life decision-making and appropriate levels of        care (NJ); 
- successfully making the case to Congress that the federal        Nursing Home Reform Law prohibits financial screening of        people who apply for nursing home admission (MI); 
- targeting for special monitoring a law creating an        alternative contract demonstration program as a new way        to reimburse for nursing home care (MN); and 
- developing a model discharge planning manual for        distribution to all institutionalized settings (NV). 

**Other recommendations in the state reports include:**

- emphasize "consumer satisfaction" in the        facility survey process and require facilities to have        satisfaction surveys twice a year; 
- identify successful models of small, integrated        facilities (those which have "neighborhoods" of        20-25 residents, mixed by type) in Washington and other        states and publicize their successes; 
- establish a regulation that requires a geriatric        practitioner in every nursing facility; work with the        state medical society to improve the commitment to        long-term care residents and expand physicians'        utilization of "Gentle Care" and other recently        developed techniques in place of chemical and physical        restraints; seek legislation to require physical review        of resident condition before prescribing treatment; work        with professional associations and licensing agencies to        provide additional training to physicians, residents and        their families on the requirements of the Federal        "Patient Self-Determination Act" (WA); and 
- work with the insurance commissioner and oversight agency        staff to assure that insurance claims are processed and        paid (WA). 

**Other insights on emerging issues and proposed solutionswhich will be helpful in policy-making and health advocacy:**

**Vermont**

Vermont's nursing home bill of rights legislation permitsnext-of-kin to waive important rights based on a mere allegationof a resident's incapacity, without any court authorization oroversight. As a result, families have used the next-of-kin clauseto order nursing homes to physically or chemically restrainresidents and to withhold medical treatment even from residentswho are not terminally ill. Yet, there is a concern thattightening the legislation will go too far and require courtapproval of all medical decision-making, even mundane, routine,or futile care. The Ombudsman Program proposed a "summitmeeting" to work out differences and develop compromiselanguage for the legislation. 

**Washington State**

Too often consumers feel "railroaded" into settingsthey do not prefer, either because of the lack of time to find aplace to live, or the inability to find an appropriate settingnear their family and friends. If they do find a place to live,they often discover that the staff lack the skills necessary toassist them. There is a need to develop more individualized caresettings, with the special, highly technical skills forsupporting health and mental health needs of residents,empowering their exercise of their rights and providing for theircontinued active integration into their community. 

The Legislature, as part of the state Long-Term Care ReformAct, provided for staff to assist hospital patients in findingthe long-term care setting of their choice, additionalcase-management services to follow long-term care residents, andthe development of additional community-based long-term caresettings. The departments are drafting or revising regulations tocarry out these reforms, contracting with Area Agencies on Aging,and hiring additional staff to deliver these services. TheOmbudsman Program will monitor the implementation of theLong-Term Care Reform Act and other mechanisms which will expandthe availability of options for which consumers have expressedpreference and work to assure safety, skilled staffing, andresident empowerment in all long-term care residential settings. 

Some residents have long-term care insurance which would avoidtheir need for Medicaid funding. However, some facilities do notprovide itemized bills for services; while some insurancecompanies will only pay bills which are itemized. Thus, theseresidents' coverage is denied and Medicaid picks up these costs.During the past year the State Ombudsman met with the Director ofResidential Care Services and representatives of the InsuranceCommissioner. It was determined that insurance companies cannotengage in this practice, and a procedure was set up for thesecomplaints to go from the Ombudsman Program to the InsuranceCommissioner to assure that benefits are paid. 

The Division of Mental Health has provided training forseveral nursing home staffs and some Adult Family Home providersin "Gentle Care" techniques. In addition, the Aging& Adult Services Administration has provided training indementia care around restraint reduction. Both these efforts haveprimarily been directed to nursing home staff, while few of thesenecessary tools have been provided to alternative residentialproviders. Moreover, the targeted nursing home system has only afraction of trained staff in these more humane technologies,which both increase quality of life and reduce costs. Thoughthere is too little availability of this training, it is highlyeffective, as evidenced by untrained staff in nursing homesrequesting Gentle Care training after seeing it implemented inspecial dementia care units where they work. 

**Missouri**

A state elderly abuse hotline, which handles over 56,000 callseach year, in FY 1995 directed over 7,000 calls about abuse,neglect and other concerns in long term care facilities to thestate survey staff. Concerns about this system included: the highnumber of complaints classified as "invalid," the lackof consistency regarding classification of complaints; and weakand tardy follow-up with the complainants. These problems weredue to: 

- too few staff to handle the volume of complaints, 
- lack of training for hotline staff, 
- most staff conducting the investigations spending most of        their time surveying facilities, which caused them to        lean toward writing deficiencies rather than assisting        the facility in resolving the complaint and, 
- inadequate staff training on how to conduct        investigations. 

Better coordination with the Ombudsman Program on certaincomplaints might result in better complaint resolution; havingsurvey agency staff who do nothing but complaint investigationprovides better results. 

**Minnesota**

To address the issue of financial exploitation of residents byrelatives leading to discharge for non-payment of the nursinghome bill, the Ombudsman Program helped secure a new definitionof financial exploitation in the state Vulnerable Adults Act. Thelaw provides for state protective services for residents whocould not pay their bill because their relatives exploited them.The Ombudsman brought together advocates, agency representatives,and facility lawyers to identify the problems with facilitybilling practices which created so much back debt and worked todevelop: 

- amendments to the state law governing nursing home        admission contracts to help address this problem, and 
- a procedure for facility business office staff to follow        for bill collection, referral to the ombudsman for        medical assistance application problems, and referral to        county adult protective services for potential financial        exploitation. 

The nursing home associations agreed to educate their membersabout how to best handle these problems in the future. 

**Michigan**

As a result of work initiated by the Ombudsman Program,Congress explained in its Committee Report on the Omnibus BudgetReconciliation Act of 1993 that the Secretary of Health and HumanServices does have the authority to prohibit financial screening.While the clear Congressional mandate and the HCFA ruling willnot solve all problems of Medicaid recipients in finding care, itis progress. It is well beyond time for the Health Care FinancingAdministration within HHS to enforce the federal law prohibitingfinancial screening and to end distinct part certification. 

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For questions about the LTC Ombudsman Program, contact Sue WheatonHypertext conversion by Saadia Greenberg,June 25, 1997