INVOLUNTARY COMMITMENT OF NURSING FACILITY RESIDENTS

AND OTHER INAPPROPRIATE USES OF MENTAL HEALTH INSTITUTIONS

BY NURSING FACILITIES

I. INTRODUCTION

The nursing home reform law, enacted by Congress in 1987 as part of the Omnibus Budget Reconciliation Act, requires that skilled nursing facilities (SNFs)⁽¹⁾ and nursing facilities (NFs)⁽²⁾ identify and meet residents' mental health needs. The law also gives residents the right to notice and an opportunity for a hearing to challenge proposed transfers and discharges from their home. Despite these mandates, some nursing facilities have used state mental health laws that authorize involuntary commitment as a way of evading both their obligations to provide appropriate mental health services to residents and the reform law's protections against involuntary transfer and discharge.⁽³⁾ Litigation and administrative proceedings have successfully challenged facilities' efforts to evict residents in this way.

II. FEDERAL REQUIREMENTS ON MENTAL HEALTH SERVICES

A. Statute

Although mental health is not identified as a separate service under the reform law, the statute requires that residents' mental health needs be met through three mandated services: "nursing and related services and specialized rehabilitative services;"⁽⁴⁾ "medically-related social services;"⁽⁵⁾ and an ongoing activities program.⁽⁶⁾ Each facility must provide each of these services, as needed, "to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident."

B. Rules

Federal rules discuss mental health services in provisions addressing comprehensive resident assessment;⁽⁷⁾ quality of care, specifically mental and psychosocial functioning;⁽⁸⁾ and "mental health rehabilitative services for mental illness and mental retardation,"⁽⁹⁾ within the portion of the rules addressing specialized rehabilitative services.

HCFA broadly defines mental health services in the preamble to the "final final Requirements of Participation for facilities.⁽¹⁰⁾

C. Interpretive Guidelines

HCFA provides additional explanation of its rules in the Interpretive Guidelines that are published in the State Operations Manual to guide state surveyors' review of facilities. Residents' mental health needs are addressed in Guidelines discussing social services,⁽¹¹⁾ resident assessment,⁽¹²⁾ quality of care,⁽¹³⁾ and specialized rehabilitative services.⁽¹⁴⁾

III. FEDERAL REQUIREMENTS ON TRANSFER AND DISCHARGE

A. Statute

The 1987 reform law limits the permissible reasons for transfer or discharge,⁽¹⁵⁾ requires facilities to give residents advance notice, in writing, and an opportunity for a hearing, and requires states to provide residents with a fair hearing, on request, to challenge a proposed transfer or discharge.⁽¹⁶⁾ The law also provides a right, under Medicaid only, to have a bed held during a period of temporary absence, due to hospitalization or other causes.⁽¹⁷⁾

B. Rules

Federal rules repeat the statutory mandates.⁽¹⁸⁾

C. Federal Guidance

HCFA has confirmed that transfer or discharge of a resident to a mental health facility does not void the resident's statutory right to return to his/her nursing facility when his/her psychiatric hospitalization ends.⁽¹⁹⁾

IV. FORUMS FOR ASSERTING RESIDENTS' RIGHTS TO MENTAL HEALTH SERVICES

Residents have asserted their rights to appropriate mental health services in care planning conferences, transfer/discharge hearings, litigation, and involuntary commitment proceedings.

In Washington State, a resident successfully used a post-discharge administrative hearing to challenge his transfer to a psychiatric facility.⁽²⁰⁾ The ALJ ruled that the facility could not avoid its obligations under the reform law - to evaluate and to meet the resident's mental health needs and, if the facility considered transfer necessary, to comply with the transfer and discharge provisions of the nursing home reform law - by using the 72-hour mental evaluation provision authorized by the state's mental health system. Permanent discharge is permitted only when the facility complies with the statutorily-mandated procedures for involuntary discharge. The ALJ found the facility out of compliance with state law and regulations and ruled that the resident was eligible for readmission.

In a New Hampshire case, a state court judge issued a Preliminary Injunction and ordered a nursing facility to readmit a resident whom it had sent to a psychiatric hospital.⁽²¹⁾ The court ruled that state law permits emergency transfers without notice, but that the resident has the right to be readmitted once the emergency situation has passed and the requirements of the bedhold statute have been met.

Two residents successfully challenged their transfers to a psychiatric facility in post-discharge proceedings in state court.⁽²²⁾ The residents were involuntarily committed to a state-run psychiatric hospital under temporary orders. Although the judge ruled at the final involuntary commitment hearing that both women should be returned to their nursing facility, the facility refused to readmit them. The women filed suit. The judge held that the facility violated provisions of the federal nursing home reform law that gives priority in readmissions to residents whose hospitalization or other temporary absence from the facility exceeds the period of bed-hold paid by the state Medicaid program and on similar provisions of state law. The court did not reach residents' claims based on New Jersey's antidiscrimination statute, the Americans with Disabilities Act, and the Rehabilitation Act of 1973.

V. CONCLUSION

Some nursing facilities appear to use involuntary commitment under state mental health law as an illegal transfer mechanism in violation of the nursing home reform law when they fail both to conduct comprehensive assessment and care planning, which are mandated by the reform law, and to provide appropriate care and services to residents, particularly those who have dementia.

A continuing challenge for residents' advocates is assuring implementation of the nursing home reform law, which requires creative and comprehensive assessment, care planning, and provision of all services that residents need, including mental health services, and which treats each resident as an individual.

Additional resources from the National Senior Citizens Law Center:

Issues of The Nursing Home Law Letter:

"Transfer and Discharge," 1992 Issue No. 4 (Mar. 29, 1993).

"The Mental Health Needs of Nursing Facility Residents," 1993, Issue No. 4 (May 4, 1994).

"New Survey Guidelines," 1995, Issue No. 3 (Jul. 31, 1995).

"Involuntary Commitment of Nursing Facility Residents," 1996 Issue No. 1 (Feb. 15, 1996).

NSCLC, Nursing Facility Transfer and Discharge: An Advocate's Manual (Mar. 1994).

Administrative decisions involving transfer and discharge.

Toby S. Edelman

May 3, 1999

1. The term "skilled nursing facility" is used to designate facilities that are eligible for reimbursement under the Medicare program.

2. The term "nursing facility" is used to designate facilities that are eligible for reimbursement under the Medicaid program.

3. For example, a five-part series in The St. Petersburg Times, May 21-25, 1995, exposed a practice in Pinellas County, Florida in which private psychiatric hospitals filed petitions to treat, and then provided psychiatric treatment to, older persons, many of whom were committed from nursing facilities against their will. Following the series, the Oversight and Investigations Subcommittee of the House Committee on Aging and Human Services of the Florida House of Representatives held a series of public hearings, issued an interim report, and proposed state legislation.

The inappropriate commitment of nursing facility residents to psychiatric facilities is not unique to Florida. A report by Newhouse News Service and Maturity News Service (of the American Association of Retired Persons) estimated, "Tens of thousands of hard-to-manage nursing home residents with Alzheimer's and other dementias are being dumped back home to families, warehoused in state mental hospitals or shuffled in and out of psychiatric units each year." "Some Homes Find It Easier to Dump Alzheimer's Patients," in Final Indignities: The Care of Elders with Dementia 11 (A Special Report by Newhouse News Service and Maturity News Service) (1995).

4. 42 U.S.C. §1395i-3(b)(4)(A)(i), 1396r(b)(4)(A)(i).

5. Id. §§1395i-3(b)(4)(A)(ii), 1396r(b)(4)(A)(ii).

6. Id. §§1395i-3(b)(4)(A)(v), 1396r(b)(4)(A)(v).

7. 42 C.F.R. §483.20(b)(2)(vii).

8. Id. §483.25(f).

9. Id. §483.45(a). Mental health rehabilitative services are distinguished from "specialized services" for people with mental illness and/or mental retardation, which are federally-mandated but fully state-funded services. Mental health services provided under the reform law's specialized rehabilitative services are required to be covered by the Medicare and Medicaid programs, just like any other SNF or NF service.

10. 56 Fed. Reg. 48826, 48848 (Sep. 26, 1991) (providing examples of mental health services and confirming that "all NF residents who display mental or psychosocial adjustment difficulties must receive appropriate treatment and services to correct the assessed problem.")

11. HCFA, State Operations Manual No. 274, PP 60-62 (June 1995).

12. Id. PP 68-81.

13. Id. PP 100-102 (mental and psychosocial functioning).

14. Id. PP 156-159.

15. 42 U.S.C. §§1395i-3(c)(2)(A)(i)-(vi), 1396r(c)(2)(A)(i)-(vi) (residents' rights), Medicare and Medicaid, respectively.

16. Id. §§1395i-3(e)(3), 1396r(e)(3) (states' obligation to provide a fair mechanism for hearing appeals); id. §§1395i-3(f)(3), 1396r(f)(3) (federal minimum standards for state appeals).

17. Id. §1396r(c)(2)(D).

18. 42 C.F.R. §§483.12 (residents' rights), 483.204 (hearing and appeals system), 483.206 (transfers, discharges, and relocations subject to appeal). HCFA implemented 42 U.S.C. §§1395i-3(f)(3) and 1396r(f)(3) and published final rules for transfer and discharge as part of its rules for preadmission screening and annual resident review. 42 C.F.R. Subpart E (42 C.F.R. §§483.200-.206).

19. Letter from Thomas E. Hoyer, Director, Office of Chronic Care and Insurance Policy, Bureau of Policy Development, HCFA, to Eunice Dorten Montfort, District Director, The Hillhaven Corporation (Jan. 9, 1995).

20. In re V.P. v. Regency Care Center of Arlington, Docket No. 0992 A 332 20 (Wash.Office of Admin. Hearings, DSHS, Jan. 14, 1993), 26 Clearinghouse Rev. 1613 (Apr. 1993) (Clearinghouse No. 48,764).

21. N.Sr. V. Clipper Home, Docket No. 95-E-032 (N.H.Super.Ct., Strafford Co., Apr. 27, 1995).

22. J. and D. v. Princeton Nursing Home and Rehabilitation Center, Docket No. HNT-L-480-92, In the Matter of Rosa Lee J., Docket No. MECC-371-93, In the Matter of Janet D., Docket No. MECC-372-93 (N.J. Super. Cot., Hunterdon Co., Oct. 21, 1993), 27 Clearinghouse Rev. 1233 (Feb. 1994) (Clearinghouse No. 49,526).