Chapter 8 – Rights of a Nursing Home Resident


Introduction

Though people may live in an “institution,” or a care facility, they are no less citizens of this great nation. As citizens, they have the same basic civil rights that you do. And, beyond these rights, the national and state governments have legislated some further “rights” that apply specifically to nursing homes that house residents who receive financial assistance from Medicare or Medicaid (of 16,000 facilities, only 3% are not Medicare or Medicaid certified). The following description of these rights is provided through the auspices of the United States Department of Health and Human Services and is prepared by the Centers for Medicare & Medicaid Services (CMS). CMS and States oversee the quality of nursing homes. State and Federal Government agencies certify nursing homes. The nursing home must provide the resident with a written description of his or her legal rights.


What Are Your Rights as a Nursing Home Resident?

As a nursing home resident, you have certain rights and protections under Federal and state law that help ensure you get the care and services you need.  You have the right to be informed, make your own decisions, and have your personal information kept private.  The nursing home must tell you about these rights and explain them in writing in a language you understand.  They must also explain in writing how you should act and what you’re responsible for while you’re in the nursing home.  This must be done before or at the time you’re admitted, as well as during your stay.  You must acknowledge in writing that you got this information. 

At a minimum, Federal law specifies that nursing homes must protect and promote the following rights of each resident. You have the right to:

Be Treated with Respect:  You have the right to be treated with dignity and respect, as well as make your own schedule and participate in the activities you choose.  You have the right to decide when you go to bed, rise in the morning, and eat your meals.

Participate in Activities:  You have the right to participate in an activities program designed to meet your needs and the needs of the other residents.

Be Free from Discrimination:  Nursing homes don’t have to accept all applicants, but they must comply with Civil Rights laws that say they can’t discriminate based on race, color, national origin, disability, age, or religion.  The Department of Health and Human Services, Office for Civil Rights has more information.  Visit http://www.hhs.gov/ocr.

Be Free from Abuse and Neglect:  You have the right to be free from verbal, sexual, physical, and mental abuse.  Nursing homes can’t keep you apart from everyone else against your will.  If you feel you have been mistreated (abused) or the nursing home isn’t meeting your needs (neglect), report this to the nursing home, your family, your local Long-Term Care Ombudsman, or State Survey Agency.  The nursing home must investigate and report all suspected violations and any injuries of unknown origin within 5 working days of the incident to the proper authorities.

Be Free from Restraints:  Nursing homes can’t use any physical restraints (like side rails) or chemical restraints (like drugs) to discipline you for the staff’s own convenience. 

Make Complaints:  You have the right to make a complaint to the staff of the nursing home, or any other person, without fear of punishment.  The nursing home must address the issue promptly. 

Get Proper Medical Care:  You have the following rights regarding your medical care:

To be fully informed about your total health status in a language you understand.

To be fully informed about your medical condition, prescription and over-the-counter drugs, vitamins,and supplements.

To be involved in the choice of your doctor.

To participate in the decisions that affects your care.

To take part in developing your care plan.  By law, nursing homes must develop a care plan for each resident.  You have the right to take part in this process.  Family members can also help with your care plan with your permission. 

To access all your records and reports, including clinical records(medical records and reports) promptly (on weekdays).  Your legal guardian has the right to look at all your medical records and make important decisions on your behalf.

To express any complaints (sometimes called “grievances”)you have about your care or treatment.

To create advance directives (a health care proxy or power of attorney, a living will, after-death wishes) in accordance with State law. 

To refuse to participate in experimental treatment. 

Have Your Representative Notified:  The nursing home must notify your doctor and, if known, your legal representative or an interested family member when the following occurs: 

You’re involved in an accident and are injured and/or need to see a doctor. 

Your physical, mental, or psycho-social status starts to get worse. 

You have a life threatening condition. 

You have medical complications. 

Your treatment needs to change significantly. 

The nursing home decides to transfer or discharge you from the nursing home.

Get Information on Services and Fees:  You have the right to be told in writing about all nursing home services and fees (those that are charged and not charged to you) before you move into the nursing home and at any time when services and fees change.  In addition: 

The nursing home can’t require a minimum entrance fee if your care is paid for by Medicare or Medicaid.  

For people seeking admission to the nursing home, the nursing home must tell you (both orally and in writing) and also display written information about how to apply for and use Medicare and Medicaid benefits.

The nursing home must also provide information on how to get a refund if you paid for an item or service, but because of Medicare and Medicaid eligibility rules, it’s now considered covered. 

Manage Your Money:  You have the right to manage your own money or to choose someone you trust to do this for you.  In addition: 

If you deposit your money with the nursing home or ask them to hold or account for your money, you must sign a written statement saying you want them to do this. 

The nursing home must allow you access to your bank accounts, cash, and other financial records. 

The nursing home must have a system that ensures full accounting for your funds and can’t combine your funds with the nursing home’s funds. 

The nursing home must protect your funds from any loss by providing an acceptable protection, such as buying a surety bond.

If a resident with a fund dies, the nursing home must return the funds with a final accounting to the person or court handling the resident’s estate within 30 days.

Get Proper Privacy, Property, and Living Arrangements:  You have the following rights:

To keep and use your personal belongings and property as long as they don’t interfere with the rights, health, or safety of others.

To have private visits.

To make and get private phone calls.

To have privacy in sending and getting mail and email.

To have the nursing home protect your property from theft.

To share a room with your spouse if you both live in the same nursing home (if you both agree to do so).

The nursing home has to notify you before your room or your room mate is changed and should take your preferences into account.

To review the nursing home’s health and fire safety inspection results.

Spend Time with Visitors:  You have the following rights:

To spend private time with visitors.

To have visitors at any time, as long as you wish to see them, as long as the visit does not interfere with the provision of care and privacy rights of other residents.

To see any person who gives you help with your health, social, legal, or other services at any time. This includes your doctor, a representative from the health department, and your Long-Term Care Ombudsman, among others.

Get Social Services:  The nursing home must provide you with any needed social services, including the following: 

Counseling.

Help solving problems with other residents.

Help in contacting legal and financial professionals.

Discharge planning. 

Leave the Nursing Home: 

Leaving for visits:  If your health allows, and your doctor agrees, you can spend time away from the nursing home visiting family or friends during the day or overnight, called a “leave of absence.  Talk to the nursing home staff a few days ahead of time so the staff has time to prepare your medicines and write your instructions.  Caution:  If your nursing home care is covered by certain health insurance, you may not be able to leave for visits without losing your coverage.

Moving out:  Living in a nursing home is your choice.  You can choose to move to another place.  However, the nursing home may have a policy that requires you to tell them before you plan to leave.  If you don’t, you may have to pay an extra fee.

Have Protection Against Unfair Transfer or Discharge:  You can’t be sent to another nursing home, or made to leave the nursing home, unless any of the following are true: 

It’s necessary for the welfare, health, or safety of you or others. 

Your health has improved to the point that nursing home care is no longer necessary. 

The nursing home hasn’t been paid for services you got. 

The nursing home closes.

You have the following rights:  You have the right to appeal a transfer or discharge to the State.  The nursing home can’t make you leave if you’re waiting to get Medicaid.  Except in emergencies, nursing homes must give a 30-day written notice of their plan and reason to discharge or transfer you.  The nursing home has to safely and orderly transfer or discharge you and give you proper notice of bed-hold and/or readmission requirements. 

Form or Participate in Resident Groups:  You have a right to form or participate in a resident group to discuss issues and concerns about the nursing home’s policies and operations.  Most homes have such groups, often called “resident councils.  The home must give you meeting space and must listen to and act upon grievances and recommendations of the group.

Have Your Family and Friends Involved:  Family and friends can help make sure you get good quality care.  They can visit and get to know the staff and the nursing home’s rules.  Family members and legal guardians may meet with the families of other residents and may participate in family councils, if one exists.  Family members can help with your care plan with your permission.  If a family member or friend is your legal guardian, he or she has the right to look at all medical records about you and make important decisions on your behalf. 


Family Members Note

Some states enforce the Nursing Home Reform Amendments better than others. Therefore, family members and friends of nursing home residents still have an important role to play in protecting their loved one’s rights. This fact underlines the need for caring, committed Christian volunteers to help fill the gap in personal love and attention to nursing home residents. It is estimated that, on a national average, 60% of the residents in nursing homes never have a visitor who comes to see just them!

Become familiar with both the Federal Nursing Home Reform Amendments outlined above and your state’s law. Nursing homes must post and make available a copy of the rights of nursing home residents.

Report violations. If you observe or experience a violation of a nursing home resident’s rights, report it to the nursing home. Use the facility’s grievance procedures. If you are not satisfied, then, report the violation to the local long-term care ombudsman. Nursing homes must post and make available the name and telephone number of the ombudsman.

Follow up to make sure that action is being taken and the facility is correcting the violation.

Keep informed of movements within your state to introduce legislation that would change nursing home laws or regulations. By making your views known before legislation is voted on, you can help protect the rights of long-term care residents.


Rights of an Assisted Living Resident In the State of Virginia

Virginia Code – § 63.2-1808. Rights and responsibilities of residents of assisted living facilities; certification of licensure.

A. Any resident of an assisted living facility has the rights and responsibilities enumerated in this section. The operator or administrator of an assisted living facility shall establish written policies and procedures to ensure that, at the minimum, each person who becomes a resident of the assisted living facility:

1. Is fully informed, prior to or at the time of admission and during the resident’s stay, of his rights and of all rules and expectations governing the resident’s conduct, responsibilities, and the terms of the admission agreement; evidence of this shall be the resident’s written acknowledgment of having been so informed, which shall be filed in his record;

2. Is fully informed, prior to or at the time of admission and during the resident’s stay, of services available in the facility and of any related charges; this shall be reflected by the resident’s signature on a current resident’s agreement retained in the resident’s file;

3. Unless a committee or conservator has been appointed, is free to manage his personal finances and funds regardless of source; is entitled to access to personal account statements reflecting financial transactions made on his behalf by the facility; and is given at least a quarterly accounting of financial transactions made on his behalf when a written delegation of responsibility to manage his financial affairs is made to the facility for any period of time in conformance with state law;

4. Is afforded confidential treatment of his personal affairs and records and may approve or refuse their release to any individual outside the facility except as otherwise provided in law and except in case of his transfer to another care-giving facility;

5. Is transferred or discharged only when provided with a statement of reasons, or for nonpayment for his stay, and is given reasonable advance notice; upon notice of discharge or upon giving reasonable advance notice of his desire to move, shall be afforded reasonable assistance to ensure an orderly transfer or discharge; such actions shall be documented in his record;

6. In the event a medical condition should arise while he is residing in the facility, is afforded the opportunity to participate in the planning of his program of care and medical treatment at the facility and the right to refuse treatment;

7. Is not required to perform services for the facility except as voluntarily contracted pursuant to a voluntary agreement for services that states the terms of consideration or remuneration and is documented in writing and retained in his record;

8. Is free to select health care services from reasonably available resources;

9. Is free to refuse to participate in human subject experimentation or to be party to research in which his identity may be ascertained;

10. Is free from mental, emotional, physical, sexual, and economic abuse or exploitation; is free from forced isolation, threats or other degrading or demeaning acts against him; and his known needs are not neglected or ignored by personnel of the facility;

11. Is treated with courtesy, respect, and consideration as a person of worth, sensitivity, and dignity;

12. Is encouraged, and informed of appropriate means as necessary, throughout the period of stay to exercise his rights as a resident and as a citizen; to this end, he is free to voice grievances and recommend changes in policies and services, free of coercion, discrimination, threats or reprisal;

13. Is permitted to retain and use his personal clothing and possessions as space permits unless to do so would infringe upon rights of other residents;

14. Is encouraged to function at his highest mental, emotional, physical and social potential;

15. Is free of physical or mechanical restraint except in the following situations and with appropriate safeguards:

a. As necessary for the facility to respond to unmanageable behavior in an emergency situation, which threatens the immediate safety of the resident or others;

b. As medically necessary, as authorized in writing by a physician, to provide physical support to a weakened resident;

16. Is free of prescription drugs except where medically necessary, specifically prescribed, and supervised by the attending physician, physician assistant, or nurse practitioner;

17. Is accorded respect for ordinary privacy in every aspect of daily living, including but not limited to the following:

a. In the care of his personal needs except as assistance may be needed;

b. In any medical examination or health-related consultations the resident may have at the facility;

c. In communications, in writing or by telephone;

d. During visitations with other persons;

e. In the resident’s room or portion thereof; residents shall be permitted to have guests or other residents in their rooms unless to do so would infringe upon the rights of other residents; staff may not enter a resident’s room without making their presence known except in an emergency or in accordance with safety oversight requirements included in regulations of the Board;

f. In visits with his spouse; if both are residents of the facility they are permitted but not required to share a room unless otherwise provided in the residents’ agreements;

18. Is permitted to meet with and participate in activities of social, religious, and community groups at his discretion unless medically contraindicated as documented by his physician, physician assistant, or nurse practitioner in his medical record;

19. Is fully informed, as evidenced by the written acknowledgment of the resident or his legal representative, prior to or at the time of admission and during his stay, that he should exercise whatever due diligence he deems necessary with respect to information on any sex offenders registered pursuant to Chapter 9 (§ 9.1-900 et seq.) of Title 9.1, including how to obtain such information. Upon request, the assisted living facility shall assist the resident, prospective resident, or the legal representative of the resident or prospective resident in accessing this information and provide the resident, prospective resident, or the legal representative of the resident or prospective resident with printed copies of the requested information; and

20. Is informed, in writing and upon request, of whether the assisted living facility maintains the minimum liability coverage, as established by the Board pursuant to subdivision A 10 of § 63.2-1805.

B. If the resident is unable to fully understand and exercise the rights and responsibilities contained in this section, the facility shall require that a responsible individual, of the resident’s choice when possible, designated in writing in the resident’s record, be made aware of each item in this section and the decisions that affect the resident or relate to specific items in this section; a resident shall be assumed capable of understanding and exercising these rights unless a physician determines otherwise and documents the reasons for such determination in the resident’s record.

C. The rights and responsibilities of residents shall be printed in at least 12-point type and posted conspicuously in a public place in all assisted living facilities. The facility shall also post the name and telephone number of the regional licensing supervisor of the Department, the Adult Protective Services’ toll-free telephone number, as well as the toll-free telephone number for the Virginia Long-Term Care Ombudsman Program, any sub-state ombudsman program serving the area, and the toll-free number of the Commonwealth’s designated protection and advocacy system.

D. The facility shall make its policies and procedures for implementing this section available and accessible to residents, relatives, agencies, and the general public.

E. The provisions of this section shall not be construed to restrict or abridge any right that any resident has under law.

F. Each facility shall provide appropriate staff training to implement each resident’s rights included in this section.

G. The Board shall adopt regulations as necessary to carry out the full intent of this section.

H. It shall be the responsibility of the Commissioner to ensure that the provisions of this section are observed and implemented by assisted living facilities as a condition to the issuance, renewal, or continuation of the license required by this article.


Ombudsmen: Who They Are and How They Can Help

Every state, the District of Columbia, Puerto Rico, and Guam has an advocate, called a Long-Term Care Ombudsman, for residents of nursing homes, board and care and assisted living facilities, and similar residential care facilities. Ombudsman programs work to resolve problems affecting residents’ health, safety, welfare, and rights. Residents, their families, and others have the right to contact their local Ombudsman program to help them understand their rights, learn about community resources, and work through problems.

You can find your local Ombudsman program online or call 202-332-2275.

Abuse in a Long-term Care Setting

Alarming things happen when scores of strangers are placed in a close living environment, often against their will. Sometimes, unfortunately, what occurs to a care facility resident is abusive and wrong. But, as Christian volunteers we must remember that the circumstances and events leading up to any questionable observations made in a facility are mostly unknown to us. Also, the underlying reasons why a given individual is in a care facility are often very complex and hard to understand from the limited viewpoint of a volunteer. Therefore, we must be careful not to quickly assume the role of judge and jury over decisions and actions made by professional social workers, facility staff and family members. Try to maintain the attitude that you are there to be a blessing, an encouragement, a peacemaker to the residents, their families and all who care for them. There are almost always two sides to a story, if not more — and there are probably parts of that story that are none of our business!

A Federal definition of abuse is: “Abuse means the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish.” (Centers for Medicare & Medicaid Services, 42 CFR 488.301).

Abuse can happen at any care facility. No matter how refined the setting, no matter how professional the staff, abuse may occur. And, abuse can happen to anyone: man or woman, young or old, nice or grouchy, lucid or suffering dementia. And all of us are capable of being abusive, however so slightly, but still abusive. ANY ABUSE OF ANYONE RECEIVING LONG-TERM CARE IS TOO MUCH ABUSE!!! Therefore, we feel it is appropriate to, at least, provide some very general information on this highly explosive issue in long-term care. Our intention here is not to create controversy or lay blame. Neither do we deal comprehensively with the subject, but we hope these ideas will help all involved to think positively in the direction of preventing elder abuse.


Indicators of Abuse in a Care Facility

Resource: http://www.carescout.com/

Unexplained or unexpected death.

Rapid weight loss.

Development of bedsores (“pressure sores” or “decubitus ulcers”).

Heavy medication and sedation is used in place of adequate nursing staff and supervision.

Caretaker cannot adequately explain condition.

Injury resulting from restraining a resident.

The occurrence of a broken bone.

Suddenly and unexpectedly emotionally upset or agitated or withdrawn and non-communicative resident.


Reasons a Resident May Not Mention Their Abuse:

The following is adapted from material compiled by Marci Stocks.

may be too frightened to tell their caregiver

may be frightened because of threats from the abuser

may think that this abuse is “normal”

may not even be aware that they are being abused

may think that they deserved to be “punished”


Warning Signs From the Resident

Loved one may report abuse

Loved one may be afraid of staff; may pull away when certain staff is approaching

Loved one may have lost his appetite

Unusual or unexplained marks on the body


Warning Signs From the Abuser

Caregivers not called when loved one is taken to the emergency room

Unexplained marks or bruises

Staff not telling caregivers what has been happening

Constant emergency room visits without explanations

Staff not calling caregiver when an “accident” occurs


Some Reasons Abuse May Occur in a Facility

Caregiver’s burnout.

Overworked staff, long shift hours.

Untrained staff.

Staff underpaid or not enough benefits.

Staff may be frustrated with aggressive or rebellious clients.

Staff in a hurry to leave after a long day.


Preventative Measures for Family Members

Find out how much training the staff has received. If your loved one has dementia, make sure that the staff is properly trained to deal with challenging behaviors. If the staff has not received specific training, ask how well they are qualified, such as how much experience have they had working with Alzheimer’s patients.

Visit your loved one often and ask how they are doing. Find out what workers they like best and what workers they like least. Some residents will have a bond with certain workers while, at the same time, they may not care for other workers. If this is the case, find out why.


Preventative Measures for the Staff

Take your profession seriously enough to seek out proper training. If you are unfamiliar with certain behaviors, receive training so that you will know how to deal with particular situations. Facilities usually train their employees, especially so in long-term care facilities.

Learn about the elderly, especially if the individual has a dementing disease such as Alzheimer’s Disease. Behaviors associated with these diseases can often be difficult to deal with. If you have never worked with a person afflicted with a disease like Alzheimer’s, you may feel overwhelmed. Be professional, get yourself informed.

If you are not sure how to deal with a particular situation, ask for help. Think of it as a learning experience. If it should happen again, you will then know what to do.


For more information about residents rights and how to address issues, in the United States see the Medicare website.