Medicare and Medicaid

It was the creation of Medicare and Medicaid in 1965 that provided regulation for nursing homes. Congress set the first set of standards for nursing homes in 1967 and differentiated between “skilled nursing facilities” and “intermediate care facilities.” (Skilled nursing facilities provide nursing and rehabilitation services; intermediate care facilities provide care to people who do not need immediate nursing care.) Congress periodically updated the standards, notably in 1987 as part of the Omnibus Budget Reconciliation Act (OBRA) and again as part of the 1990 OBRA.

The 1987 OBRA standards require that skilled nursing facilities and intermediate care facilities provide a level of care that will allow patients “to attain or maintain the highest practicable physical, mental, and psychosocial well-being.” Among the specifics:

  • Facilities must allow patients (or their proxies) to make their own choices in activities, schedules, and health care decisions.
  • Facilities must have around-the-clock licensed practical nurse care and at least one registered on duty at least eight hours every day. Nurse’s aides are required to receive specialized training.
  • State agencies must create, monitor, and enforce both state and federal standards, in part through the establishment of investigatory units and ombudsman units.

The Patient Self Determination Act of 1990, part of OBRA 90, governs long-term facilities that participate in Medicare or Medicaid:

  • Facilities must provide patients with information in writing that outlines their rights to participate in medical care decisions (including the right to accept or refuse treatment).
  • Facilities must provide written statements outlining their policies.
  • Patients have a right to issue advance directives, and facilities must document this in their records.
  • Facilities must comply with state laws on advance directives and cannot discriminate against patients who have or have not issued them.
  • Facilities must provide education for staff and the general community on advance directive issues.

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