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A Handbook for Nursing Home (LTC) Ministry - 5th Edition

Rights of a Nursing Home Resident - Section 5

Rights

 

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 (according to the latest figures, 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 individual 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.

 

Disclaimer: The material in this section is provided only to inform and educate our readers. This material is not and should not be considered legal opinions or advice. You do not and cannot have any client-attorney relationship with Christian Concourse or any of its employees. You should not take legal action based upon advice you perceive as legal found in A Handbook for Nursing Home Ministry. You are advised to seek professional counsel before taking any legal action based upon information found herein.

 

Your Resident Rights and Protections

 

What are my rights in a nursing home?

 

As a resident of a nursing home, you have the same rights and protections as all United States citizens. Nursing home residents have certain additional rights and protections under the law. Each resident has a right to a dignified existence, self-determination, and communication with and access to people and services inside and outside the nursing home. These rights are specified in the Medicare program, but keep in mind that they can vary under state law.

 

The nursing home must tell you your rights and give you a written description of your legal rights in a language that you understand. They must also give you all the rules and regulations regarding your conduct and responsibilities during your stay in the home. This must be done before or at the time you are admitted and also during your stay. You must acknowledge in writing that you received this information.

 

Keep the information you get about your rights, admission and transfer policies, and any other information you get from the nursing home in case you need to look at it later.
At a minimum, Federal law specifies that a nursing home must protect and promote the following rights of each resident:

 

Freedom from Discrimination:  Nursing homes don't have to accept all applicants, but they must comply with Civil Rights laws that don't allow discrimination based on race, color, national origin, disability, age, or religion under certain conditions. If you believe you have been discriminated against, call the Department of Health and Human Services, Office of Civil Rights at 1-800-368-1019. TTY users should call 1-800-587-7697.

 

Respect:  You have the right to be treated with dignity and respect. You have the right to make your own schedule, including when you go to bed, rise in the morning, and eat your meals. You have the right to choose the activities you want to go to. Also, the nursing home can't interfere with, coerce, discriminate or retaliate against you in exercising your rights.

 

Freedom from Abuse and Neglect:  You have the right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion by anyone. This includes, but isn't limited to, nursing home staff, other residents, consultants, volunteers, staff from other agencies, family members or legal guardians, friends, or other individuals.

 

If you feel you have been abused or neglected (your needs not met), report this to the nursing home, your family, your local Long-Term Care Ombudsman, or State Survey Agency. It may be appropriate to report the incident of abuse to local law enforcement or the Medicaid Fraud Control Unit. Their telephone number should be posted in the nursing home.

 

The nursing home must investigate and report to the proper authorities all alleged violations and any injuries of unknown origin within five working days of the incident.

 

Freedom from Restraints:  A physical restraint is any manual method or physical or mechanical device, material, or equipment attached or next to the resident's body that the resident can't remove easily, which restricts freedom of movement or normal access to one's own body. A chemical restraint is a drug that is used for discipline or convenience and not required to treat medical symptoms.

 

It is against the law for a nursing home to use physical or chemical restraints, unless they are necessary to treat your medical symptoms. Restraints may not be used for punishment, or for the convenience of the nursing home staff. You have the right to refuse restraint, except if you are at risk of harming yourself or others.

 

Information on Services and Fees:  You must be informed in writing about all facility services (those that are charged and not charged to you) and fees before you move into the nursing home. The nursing home can't require a minimum entrance fee as a condition of admission if your care is paid for by Medicare or Medicaid. Also, you must be informed when any services and fees change. You also have the right to chose to either work or not work for the facility.

 

Money:  You have the right to manage your own money or to choose someone you trust to do this for you. If you ask the nursing home to hold, safeguard, manage, and account for your personal funds that are deposited with the facility, you must sign a written statement that allows the nursing home to do this. However, the nursing home can't require you to deposit your personal funds with the facility and they must allow you access to your bank accounts, cash, and other financial records.

 

Your money (over $50) must be placed by the nursing home in a separate account than the nursing home's that will provide interest to you on your money. They have to have a system that ensures full accounting for those funds and must not mingle them with the nursing home's or other residents' funds.

 

If the nursing home puts many residents' funds together, the nursing home must account for each person's funds separately. They must give you quarterly statements and your individual financial record must be given to you when you or your legal representative asks for it. The nursing home must protect your funds from any loss by buying a surety bond or providing other similar acceptable protections.

 

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. Regarding Medicaid residents, the nursing home has to provide certain information regarding a resident with funds of certain balances.

 

Privacy, Property, and Living Arrangements:  You have the right to privacy and to keep and use your personal belongings and property as long as they don't interfere with the rights, health, or safety of others. You have the right to send and receive mail and nursing home staff should never open your mail unless you allow it. You have the right to use a telephone and talk privately. Some nursing homes may provide you with greater rights and protections of your health information. Ask the nursing home.

 

The nursing home must protect your property from theft. This may include a safe in the facility or cabinets with locked doors in resident rooms.

 

If you and your spouse live in the same nursing home, you are entitled to share a room (if you both agree to do so). You also have the right to reject a move to an inappropriate room. The nursing home has to notify you before your room or your roommate is changed.

 

You also have the right to review the nursing home's health and fire safety inspection results.

 

Medical Care:  You have the right to be fully informed in a language you understand about your total health status, including your medical condition and medications. You have the right to see your own doctor.

 

You have the right to take part in developing your care plan. You can also express any grievances you may have about your care and treatment. You also have the right to create an advance directive.

 

You have the right to self-administer medications unless the nursing home finds this unsafe. You also have the right to refuse medications and treatments (but this could be harmful to your health) and refuse to participate in experimental treatment.

 

You have the right to access all your records and reports, including clinical records (medical records and reports), within 24 hours. You also have the right to photocopy your records for a standard fee when you provide two days notice to the nursing home.

 

Finally, the nursing home must notify your physician and, if known, your legal representative or an interested family member when

 

(1) you are involved in an accident that resulted in an injury or may require a physician's intervention;

 

(2) a deterioration of your health, mental, or psychosocial status in a life threatening condition or clinical complications;

 

(3) your treatment needs to change significantly;

 

(4) or when the nursing home decides to transfer or discharge you from the home.

 

Visitors:  You have the right to spend private time with visitors. The nursing home must permit your family to visit you at any time, as long as you wish to see them. You don't have to see any visitor you don't wish to see. Any person who gives you help with your health, social, legal, or other services may see you at any reasonable time. This includes your doctor, representative from the health department, and your Long-Term Care Ombudsman, among others.

 

Social Services:  The nursing home must provide you with any needed social services, including counseling, help solving problems with other residents, help in contacting legal and financial professionals, and discharge planning. They also have to provide you with an appropriate activities program designed to meet the needs of you and its residents.

 

Leaving the Nursing Home:  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 them an extra fee.

 

If you are going to another nursing home, make sure there is a bed available for you. If your health allows and your doctor agrees, you can spend time away from the nursing home visiting friends or family during the day or overnight. This is called a leave of absence. Talk to the nursing home staff a few days ahead of time if you want to do this so medication and care instructions can be prepared.

 

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.

 

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 resolve the issue promptly.

 

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 is necessary for the welfare, health, or safety of you or others.

 

Your health has declined to the point that the nursing home can't meet your care needs.

 

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 received.

 

The nursing home closes.

 

Except in emergencies, nursing homes must give a 30-day written notice of their plan and reason to discharge or transfer you. They have to safely and orderly transfer or discharge you and give you proper notice of bed-hold and/or readmission requirements. You have the right to appeal a transfer to another facility. A nursing home can't make you leave if you are waiting to get Medicaid. The nursing home should work with other state agencies to get payment if a family member or other individual is holding your money.

 

Your Family and Friends:  Family members and legal guardians may meet with the families of other residents and may participate in family councils. By law, nursing homes must develop a plan of care (care plan) for each resident. You have the right to take part in this process, and family members can help with your care plan with your permission. If your relative 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 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.

 

Resident Groups:  You have a right to form a resident group to discuss issues and concerns about the nursing home's policies and operations. Most home have such groups, often called a resident council. The home must give you meeting space, and must listen to and act upon grievances and recommendations of the group.

 

For people seeking admission to the nursing home, the nursing home must provide (orally and in writing) and prominently display written information about how to apply for and use Medicare and Medicaid benefits. They must also provide information on how to receive refunds for previous payments covered by such benefits.

 

The above rights were copied from the U. S. Gov. Medicare/Medicaid website in May 2010 and was dated current as of November 2008.

 

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.

 

Ombudsmen: Who They Are and How They Can Help

 

A Long-Term Care Ombudsman is an independent advocate (supporter) for nursing home and assisted living facility residents that works to solve problems between residents and nursing homes or assisted living facilities.

 

An ombudsman can give you information about how to find a facility and what to do to get quality care.

 

The National Ombudsman Program is administered by the Administration on Aging (AoA).  The network has 8,700 volunteers certified to handle complaints and more than 1,300 paid staff. Most State Ombudsman Programs are housed in their State Unit on Aging.  Nationally, in 2008 the Ombudsman Program investigated over 271,000 complaints made by 182,506 individuals and provided information on long-term care to another 327,000 people. Visit the AoA website for more information.

 

Whether through individual contact with residents or systemic advocacy, ombudsmen make a difference in the lives of residents in long-term care facilities everyday.

 

A Long-Term Care Ombudsman:

 

Resolves complaints made by or for residents of long-term care facilities.

 

Educates consumers and long-term care providers about residents' rights and good care practices.

 

Promotes community involvement through volunteer opportunities.

 

Provides information to the public on nursing homes and other long-term care facilities and services, residents' rights and legislative and policy issues.

 

Advocates for residents' rights and quality care in nursing homes, personal care, residential care and other long-term care facilities.

 

Promotes the development of citizen organizations, family councils and resident councils.

 

Long-Term Care Ombudsman efforts are summarized in the National Ombudsman Reporting System (NORS 2008 data)  which includes the number of facilities visited, the types of complaints handled and the kinds of complaints filed with ombudsmen. Data has been collected since 1996 and gives a good picture of the extent of ombudsman activities nationally and in every state. A 2001 report compares national data from FY 1996-2001.

 

To find out more about ombudsmen, you can look at the National Long-Term Care Ombudsman Resource Center website or call 1-202-332-2275.

 

For more information about the rights of nursing home residents, contact:

 

National Training Project
AARP Foundation

601 E Street, NW
Washington, DC 20049

 

National Consumer Voice for Quality Long-Term Care
1828 L Street, NW,  Suite 801, Washington DC  20036
(Phone) 202-332-2275

 

Also, for indepth treatment of the subject of the well-being of the elderly, visit the website of the University of Cincinnati, College of Nursing - the Center for Aging with Dignity.

 

Prevention of Abuse in Care Facilities

 

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!

 

The 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 A CARE FACILITY RESIDENT 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

 
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.

 

Copyright © 1999, 2000, 2004 by Christian Concourse Ministries, Inc., 1543 Norcova Ave., Norfolk, VA 23502  Ph.: 757-714-3133.  All rights reserved.

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