The rising prevalence of substance abuse disorders has placed a growing demand on skilled nursing operators to provide comprehensive care within the continuum of healthcare services.
Yet there are complex legal considerations that operators must grapple with when it comes to admitting individuals being treated for substance abuse disorders, and clinical teams must be trained and equipped to treat residents. For SNFs, admitting such patients becomes problematic, especially since these individuals often don’t adhere to treatment for substance abuse disorders, according to legal experts and nursing home executives.
Federal and state enforcement agencies, armed with anti-discrimination laws, have issued warnings and taken actions against SNFs refusing admission to individuals in treatment for substance abuse disorders.
On the federal level, the pressure to admit has been compounded by Centers for Medicare & Medicaid Services’ (CMS) recent ruling on the matter, which threatens enforcement action in some cases.
On the state level, many recent actions have forced SNFs to admit such patients, or face dire consequences. In some states, the state legislature has stepped in in instances where operators have turned residents away due to their substance abuse or opioid addiction.
In Pennsylvania, Attorney General Michelle Henry’s office announced that 38 nursing homes in the state have committed to complying with state and federal disability laws. These laws prohibit nursing facilities from refusing patients based on their previous history of opioid drug use, unless the patient is currently engaged in illegal drug use.
The initiative was prompted by a complaint from a 76-year-old man with opioid addiction. After hospitalization, surgery, and medical interventions related to Covid, the man faced multiple denials from facilities due to his opioid use history, despite having a hospital referral.
Attorney General Henry’s office said it would be cracking down on skilled nursing operators not in compliance.
“Opioid dependency impacts every Pennsylvania community, and those receiving medication that enables recovery should not be discriminated against,” Attorney General Henry said. “These settlements highlight how people in recovery deserve to be treated with dignity and respect. In fact, the law requires it.”
Similarly, in Washington State, two nursing home operators changed company policies following a Department of Justice (DOJ) investigation that found their facilities were violating the Americans with Disabilities Act (ADA) by rejecting patients with substance abuse issues.
State attorneys general and U.S. Attorney Offices in Massachusetts and Vermont have also pursued investigations and enforcement actions as well, obtaining settlements against SNFs that have refused admission to individuals undergoing substance abuse treatment.
Legal obligations and the ADA
Howard L. Sollins, a health care regulatory attorney, said that it is crucial for skilled nursing operators to recognize the legal repercussions of such refusals and work towards compliance with anti-discrimination laws.
He said that SNFs are obligated to conduct annual facility-wide assessments, ensuring they have the necessary resources to competently care for residents.
“Such assessments can prompt a SNF to question whether it has the resources to safely and effectively provide services to individuals with substance abuse disorders,” he said. “By the same token, there are also SNFs that not only admit such individuals, but they also develop focused programming around individuals with such needs.”
Sara Deiter, VP of Consulting with Health Dimensions Group, said that on a federal level, CMS wants nursing homes to become more comfortable treating patients with multiple conditions, including addiction.
“In order to receive care for opioid addiction, you [used to] have to go to a special place with a special doctor,” she said. “We’re beginning to see those doctors moving into long term care care settings as well. It’s a safe place where a person can recover. So CMS really intends for us to get more comfortable with this more comfortable than we are with dementia and to be prepared to reach out and care for some of these folks who may have these complexities during the course of their aging.”
Sollins pointed out that not all individuals seeking admission to SNFs adhere to treatment for substance abuse disorders. This challenge is further complicated by recent language in the CMS’ State Operations Manual, which threatens enforcement action against SNFs for resident rights violations.
Still, Sollins warned that facilities should not try to act as law enforcement when they find potentially illicit substances, and consider referring cases to local law enforcement if necessary.
“Advance working relationships with local law enforcement are encouraged to ensure a timely response to potential illegal drug use within SNFs,” he noted.
Sollins said that in order to safeguard the well-being of residents, it may be necessary for facilities to enhance their monitoring and supervision efforts. Should facility personnel discover items or substances that present potential risks to residents’ health and safety and are easily visible, they have the authority to confiscate such items.
However, he noted that it is important for facility staff to refrain from conducting searches on a resident or their personal belongings unless the resident or their representative willingly consents to a voluntary search and comprehends the purpose behind it.
“Facilities need to consider staff training and policies when appropriate for consented searches, visitation policies, and policies differentiating between elopements and discharges against medical advice,” he said.