The U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) has issued new guidance to help long-term care facilities comply with anti-discrimination obligations when they administer the Minimum Data Set (MDS) patient assessment tool so that the facilities’ residents receive care in the most integrated setting appropriate to their needs.

Those obligations arise under Section 504 of the Rehabilitation Act (29 U.S.C. § 701 et seq.) (Section 504) and the Americans with Disabilities Act (42 U.S.C. § 12101 et seq.) (ADA), which prohibit long-term care facilities receiving federal financial assistance from discriminating against individuals based on disability.  The unnecessary placement of residents in an inpatient setting when they could live in a more integrated setting may constitute discrimination under Section 504 and the ADA, as interpreted by the U.S. Supreme Court in Olmstead v. L.C., 527 U.S. 581 (1999).

OCR’s guidance, issued May 20, 2016, includes recommendations concerning MDS administration. OCR issued the guidance after finding that long-term care facilities have misinterpreted certain required questions when administering the MDS to their residents, namely – MDS Section Q, questions Q0400, Q0500 and Q0600.  Those questions, as well as others in Section Q of the MDS, are intended to ensure that long-term care facilities provide all residents with the opportunity to learn about home and community-based services.  The guidance sets forth detailed instructions concerning how operators should answer each of the three questions.  According to OCR, proper administration of these questions is critical to assisting residents to receive services in the most integrated setting.

The guidance also offers OCR’s recommendations concerning long-term care facilities’ relationships with and referrals to Local Contact Agencies (LCAs). LCAs are local community organizations responsible for providing counseling to nursing facility residents on community support options.  In general, long-term care facilities are required to make referrals to an LCA whenever a resident seeks additional information concerning community-based living or another living arrangement that acts as an alternative to the facility.

After making such a referral, OCR recommends that the facility designate a liaison who will maintain regular communication with the LCA about the resident and that the facility incorporate the LCA’s transition plans into its discharge and active care plans. To further strengthen ties between a facility and an LCA, OCR recommends that the facility invite the LCA on a regular basis (e.g., biannually) to provide presentations to residents and staff about the LCA’s services, community-based settings in which residents may elect to receive services and resident’s opportunities to seek a referral to the LCA regarding possible transition to the community.

OCR instructs long-term care facilities to adopt policies and procedures that comply with the guidance document and that the facility’s practices must be consistent with the guidance. Going forward, long-term care facilities should review and revise existing policies and procedures or develop new policies and procedures that comply with the guidance, which the facilities must then follow.

The guidance underscores OCR’s efforts to ensure that patients remain free to decide where to receive services and are not pressured to remain in a particular facility. Long-term care facilities must continue to provide residents with an opportunity to receive information and explore the possibility of receiving ongoing care in a different setting.