Ask the legal expert: How do facilities respond to HCBS push?

Share this article:
Attorney John Durso, Ungaretti & Harris LLP
Attorney John Durso, Ungaretti & Harris LLP
Q: Every now and then a resident clamors to be “let out” to go live independently because of all the home- and community-based services push they're seeing from the federal government. How should we respond?

With the federal government's renewed focus on the benefits of non-institutional health care, it is no wonder that you are starting to hear more of these pleas. However, it is unlikely that individuals have any cause of action that would “force” you to “let them out” of their current residency agreement.

Although it may seem obvious, it is sometimes useful to remind “private pay” residents that they are free to leave the community at any time, subject to the terms and conditions of their residency agreement.

If the state is paying for an individual's care, however, the individual also may have some recourse regarding his or her arrangements.

For example, in the widely publicized 1999 decision of Olmstead v. L.C., the U.S. Supreme Court found that unjustifiable institutionalization of disabled inpatients within a state facility that, with proper support, can live in the community is discrimination under the Americans With Disabilities Act. The court found that institutionalization severely limits a person's ability to interact with family and friends, to work and to make a life for herself. The court based its ruling on sections of the ADA and federal regulations that require states to administer their services, programs and activities “in the most integrated setting appropriate to the needs of qualified individuals with disabilities.”

In any event, the burden to provide such an accommodation falls on the state, not on your facility.
Share this article:

More in News

Double homicide at Houston nursing home; victims' roommate arrested

Double homicide at Houston nursing home; victims' roommate ...

A double murder occurred late Tuesday night in a Houston nursing home room shared by four men, according to local authorities. Police arrested Guillermo Correa on suspicion of beating two ...

$2 million HIPAA settlement highlights mobile device risks facing healthcare providers

Laptops and other mobile devices containing personal health information have been stolen from long-term care ombudsman programs and other healthcare organizations, including from Concentra Health Services and QCA Health Plan Inc. Now, Concentra and QCA have agreed to legal settlements totaling nearly $2 million, federal ...

Long-term care nurses often 'scramble' to get family members' blessing for palliative ...

Nursing home residents might not transition to full palliative care until they are very near death, at which point nurses and family members act in a state of crisis, suggests recently published research out of Canada.