 This month's column is guest-written by Katie Mulford, Administrative Assistant:
Celebrate Independence Day throughout July by inviting residents and tenants to parade their rights of freedom of expression and visitation around the facility/program. Grill through the rules to ensure those living with a decision maker can maximize their independence. Fire up the patriotism to show off residents' and tenants' independence through various activities and expression of rights. Explode with joy while residents and tenants visit with whom they choose as explained in this information issued by the previous State Long-Term Care Ombudsman.
The focus of the Office of the
State Long-Term Care Ombudsman (OSLTCO) is to advocate for the rights and
wishes of residents and tenants residing in Iowa’s long-term care facilities.
In fact, residents’ rights are guaranteed by the federal Nursing Home Reform
Law of 1987[1] that requires nursing facilities to promote and protect the
rights of each resident and places a strong emphasis on individual dignity and
self-determination. Iowa has incorporated these rights into state law for
residents and tenants of nursing facilities, residential care facilities,
assisted living programs and elder group homes[2].
The OSLTCO receives inquiries on
a regular basis as to whether an attorney-in-fact, under a durable power of
attorney for health care, can limit or deny visitation to a resident or tenant.
For the following reasons, the position of the OSLTCO is that an
attorney-in-fact acting under a durable power of attorney for health care cannot
limit visitation or access to a resident or tenant:
1. Residents’ and Tenants’ Rights
All long-term care residents and
tenants are guaranteed access and visitation rights. These rights are essential
to a meaningful quality of life.
· Residents have the right and long-term care facilities must provide access
to any resident by immediate family, other relatives or other visitors, subject
to a resident’s right to withdraw consent at any time[3].
· Tenants have the right to associate and communicate privately and without
restriction with persons and groups of their choice, including the tenant
advocate or long-term care ombudsman, on a tenant’s initiative or on the
initiative of the persons or groups at any reasonable hour[4].
· Limitations to access are provided for in Iowa law[5]. A visitor may be restricted by the facility if:
a) The resident
refuses to see the visitor;
b) The
resident’s physician documents specific reasons why such a visit would be harmful
to the resident’s health; or
c) The
visitor’s behavior is unreasonably disruptive to the functioning of the
facility.
2.
Durable Power of Attorney for Health Care
As discussed below, an attorney-in-fact is appointed only for the
purpose of making health care decisions for the principal and the decision to
allow or deny access to a resident is not a “health care” decision as defined
by law[6].
Therefore,
the resident’s right to receive or refuse a visitor does not transfer to an
attorney-in-fact pursuant to a durable power of attorney for health care[7].
· A durable power of attorney for health care is a
document that authorizes an attorney-in-fact to make health care decisions for
the principal if the principal is unable, in the judgment of the attending
physician, to make health care decisions.
· An attorney-in-fact is an individual who is
designated by a durable power of attorney for health care to act as the agent
and make health care decisions on behalf of the principal. The attorney-in-fact
has consented to act in that capacity and must act consistently with the
principal’s desires as stated in the document or otherwise made known. If the
principal has not refused visits in the past, a presumption should be made that
he/she would not now wish to limit visits.
· A principal is an individual who is 18 or older who
has executed a durable power of attorney for health care.
· Since an attorney-in-fact is designated to make
health care decisions, it is important to understand the definition of a
“health care” decision as stated in Iowa law[8]:
a)
A health care decision means the consent, refusal of
consent or withdrawal of consent to health care.
b)
Health care is defined as any care, treatment,
service or procedure to maintain, diagnose or treat an individual’s physical or
mental condition.
An attorney-in-fact’s authority is over health care decisions and
visitation and access to a resident or tenant is not a health care decision.
The law does not specifically set out restrictions on visitation as a right
that an attorney-in-fact can exercise. Therefore, it is the position of the
OSLTCO that an attorney-in-fact does not have any authority to determine visitation.
As such, that right remains with the resident or tenant.
For more information on the Long-Term Care Ombudsman Program or to
reach a Local Long-Term Care Ombudsman, please call 866.236.1430.
[1] 42
U.S.C. 1396r; 42 C.F.R. 483.10
[2] Iowa
Code 135C.14(8) (2018); 481 IAC 67.3
[3] 42
C.F.R. 483.10(f)
[4] 481
IAC 67.3(6)
[5] 481
IAC 58.47(2)
[6] Iowa
Code 144B (2018)
[7] 42
C.F.R. 483.10(b) (3). This states that, in the case of a resident who has not
be adjudged incompetent by the State Court, any legal surrogate designated in accordance
with State Law may exercise the resident’s rights to the extent provided by
State Law.
[8]
Iowa Code 144B.1 (2018)
 Consumer Voice reported in July 2018, CMS will begin posting the number of
hours worked by other staff (i.e. non-nursing) submitted through the
Payroll-Based Journal system, in order for stakeholders to learn how different
categories of staff can improve quality and outcomes for residents. The
information will be posted on data.cms.gov.
 Ensuring that your nursing home is providing LGBT-friendly
care: Mcknights article
 Flooding and other disasters can strike at any minute be
sure emergency preparedness policies are up to date. Additional ideas to consider
having in policies may be found at the following link: http://ltcombudsman.org/issues/emergency-preparedness
Consumer Voice's Robyn Grant Speaks About Bed Rails on the
Nursing Home Abuse Podcast: https://www.schenksmith.com/podcast/episode-71-why-are-bedrails-in-nursing-homes-so-dangerous/
New Journal on Resident-to-Resident Incidents in Long-Term
Care Homes Resulting in Deaths: https://www.ncbi.nlm.nih.gov/pubmed/29851550
In a new report, experts offered a list of recommendations
to improve scientific priorities for research on persons with dementia and
their families: http://www.providermagazine.com/news/Pages/2018/MAY/Alzheimer%E2%80%99s-Council-Recommends-New-Care,-Research-Protocols.aspx
 Please check to be sure that the discharge information from your facility is being sent to the attention of Katie Mulford by
fax: 515-725-3313 or
email: katie.mulford@iowa.gov or
mail: 510 E. 12th Street, Rm 2 Des Moines, Iowa 50319
 Resources
The Managed Care Ombudsman Program's website has a variety of information to share with members living in long-term care facilities as well as providers. Specifically the guidebook can assist members in advocating for themselves: https://www.iowaaging.gov/state-long-term-care-ombudsman/managed-care-ombudsman-program/members, and providers may find additional information at the following link: https://www.iowaaging.gov/state-long-term-care-ombudsman/managed-care-ombudsman-program/providers.
 volunteervop@iowa.gov or 1-866-236-1430
Statewide VOP Conference Call/Video Meeting
Local Long-Term Care Ombudsman, Julie Pollock will host the VOP statewide conference call/video meeting on Wednesday, July 18 at 2:00 pm. Discussion will be around drug diversion and attendees will gain one hour of CEU credit. Call in information and link to the video webinar will be sent in a future email. This session will be recorded. If you have any questions call 1-866-236-1430.
CEUs
Emails were sent out regarding CEUs if you have any questions on your CEUs please call or email us: volunteervop@iowa.gov. If you need additional CEUs check the VOP Resources website to view an approved webinar: https://www.iowaaging.gov/vop-resources.
Applications
The Office of the State Long-Term Care Ombudsman is accepting applications again for the Volunteer Ombudsman Program please email volunteervop@iowa.gov to receive an application and background check forms.
 Not eligible for VOP CEUs
Overview of Guardianship and Alternatives to Guardianship
July 10 (1:00 CST)
More Information | Register
GAIN Annual Fall Conference "Blurred Lines - Navigating the Conflicts of Substitute Decision Making
October 12 (8:30 am - 4:00 pm)
Iowa State Bar Association Headquarters
More Information | Register
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