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The Nursing Home Reform Law: A Partially Realized Vision
posted 11.13.2013

By Eric Carlson

Say you have just been elected to Congress, and find yourself sitting on the committee that considers healthcare bills. First up is a nursing home bill that would require nursing homes to make reasonable accommodations for a resident’s preferences, and allow family members to visit at any time of the day or night, at the resident’s discretion. Your congressional colleagues probably know little about the day-to-day reality in nursing homes, but nonetheless the decision rests with Congress. How do you vote?

This is a trick question—these two provisions have been part of federal nursing home law for more than two decades. Driven by profound dissatisfaction with existing nursing home quality, and broad recommendations in a report from the Institute of Medicine, Congress, in 1987, enacted the Omnibus Budget Reconciliation Act (known as OBRA ’87), or nursing home reform law. Passage was relatively bipartisan (particularly by today’s standards), and President Reagan signed the law, which went into effect October 1990.

The story does not end there, though, as an effective date does not always translate to a law being effective. The law is on the books, but too frequently it is honored in the breach, which is why additional action and energy for reform is needed from regulators, consumers, managed care organizations and others.

Rules Led to Increased Resident Involvement

The law marked a dramatic change in how nursing homes are regulated. Before its passage, the federal government had taken a relatively hands-off approach to nursing home quality, with great reliance placed on states’ licensure standards. The result was unsatisfactory; in too many nursing homes, as outlined in the Institute of Medicine report, nursing home residents “receive[d] very inadequate—sometimes shockingly deficient—care that [was] likely to hasten the deterioration of their physical, mental, and emotional health.” Faced with the report’s findings, Congress concluded that greater federal involvement was needed to protect residents and ensure that federal monies, especially Medicaid funds, were spent wisely.

The reform law changed the rules in many positive ways. Under the law, a resident is entitled to the care necessary to attain or maintain the highest practicable level of well-being. This care is provided under a personalized care plan developed jointly by healthcare professionals and the resident. Overall, care is provided and evaluated with an eye to what an individual resident needs.

Rule changes like this have led to significant improvements, including increased resident involvement in care planning and a marked decline in the use of restraints. Prior to the law’s implementation, physical restraints too often had been used to address inappropriate behavior or a propensity to fall, when staff assistance in either scenario would be more fruitful and humane. Six years after the law’s implementation, by contrast, restraint use had been reduced by 50 percent, freeing 250,000 residents annually from inappropriate restraints.

Strategies for Families Facing Nursing Home Care
  • Take the care planning process seriously. Under the nursing home reform law, care is set by a plan developed by the resident, in cooperation with his or her family and an interdisciplinary team of healthcare professionals. In practice, care plans often are generic, computer-generated documents that differ little from one resident to the next. To develop care plans that reflect residents’ needs and preferences, residents and their families should actively participate in thecare-planning process.
  • Express preferences forcefully. Quality of life is just as important as quality of care. A resident should have a choice in schedules, meals and activities, with the goal being to create a homelike environment
  • Don’t accept the “we can’t afford it” excuse. Medicaid-eligible residents are frequently told by nursing home staff that Medicaid does not pay for a certain level of service. This claim generally is false. The nursing home reform law applies to every resident of a facility that accepts Medicaid or Medicare, and specifically bars discrimination against Medicaid-eligible residents.
  • Make complaints to the regulatory agency as appropriate. The reform law is enforced by a state agency (often the state health department) following procedures set by CMS. On average, a state agency inspects a particular nursing home only once a year, and otherwise can address a problem in a nursing home only if the problem is raised in a complaint.
—Eric Carlson

Nursing Homes Still Not in Compliance

Problems remain, however, and our hypothetical member of Congress hears about them frequently from constituents. For many or most nursing home residents today, it will seem as if legislation is still needed to establish reasonable accommodations or visitation rights, even though those protections have been the law since 1990. Restraints also remain a problem, and is the subject of a current Centers for Medicare & Medicaid Services (CMS) initiative to reduce their use.

In short, many nursing homes are out of compliance with the reform law, as regulatory oversight and consumer pressure have been insufficient to overcome an inertia grounded in facility cost-cutting and staff disinterest.

The culture and processes of nursing homes can be change-resistant, as demonstrated by the thousands of nursing homes routinely posting visiting hours, ignoring residents’ legal right to accept family visitors at any time. Limiting visiting hours indicates a broader problem with too many nursing homes continuing to resist both the philosophy and the requirements of the law. This resistance diminishes both quality of care and quality of life for residents.

Nursing home management should recognize the necessity of meeting customer needs, because potential customers have the option of receiving care at home or in an assisted living facility. Today’s better nursing homes advocate culture change that translates to care that is resident-centered, which can be an attractive selling point both to consumers and to the managed care organizations that more and more are making decisions within state Medicaid programs.

Our new member of Congress should recognize that, in spite of the reform law, some nursing homes have a long, regrettable history of substandard care and little intention of changing their behavior. In these cases, federal and state surveyors must intensify enforcement to break the cycle. Federal and state governments should provide adequate funding and support to long-term-care ombudsman programs. Managed care organizations should demand high-quality care, and only contract with nursing homes that comply with the law and honor residents’ rights and preferences. 

Likewise, residents and their family members can and must take a more active role in planning care, requesting accommodations and asserting the rights that the law provided 26 years ago.

Eric Carlson is directing attorney at the National Senior Citizens Law Center in Los Angeles, Calif. He is the author of 20 Common Nursing Home Problems—and How to Resolve Them, a publication from the National Senior Citizens Law Center.

Editor’s Note: This article appears in the November/December 2013 issue of Aging Today, ASA’s bi-monthly newspaper covering issues in aging research, practice and policy. ASA members receive Aging Today as a member benefit; non-members may purchase subscriptions at our online store.

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