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A Handbook for Nursing Home Ministry - Fifth Edition Section Five
Copyright © 1999, 2000, 2004 by Christian Concourse Ministries, Inc. All rights reserved.
Handbook Table of Contents Web Site Table of Contents

Rights of a Nursing Home Resident

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 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.

At a minimum, Federal law specifies that a resident in a nursing home has rights which include:

● Freedom from Discrimination: Nursing homes do not have to accept all applicants, but they must comply with Civil Rights laws that do not allow discrimination based on race, color, national origin, disability, age, or religion under certain conditions.

● Respect: The right to be treated with dignity and respect. As long as it fits a resident’s care plan, they have the right to make their own schedule, including when they go to bed, rise in the morning, and eat meals. They have the right to choose the activities they want to go to.

● Freedom from Abuse and Neglect: The right to be free from verbal, sexual, physical, and mental abuse, and involuntary seclusion by anyone. This includes, but is not limited to nursing home staff, other residents, consultants, volunteers, staff from other agencies, family members or legal guardians, friends, or other individuals. If abuse or neglect (neglect means the resident’s needs are not met) is suspected, 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).

● Freedom from Restraints: Physical restraints are any manual method or physical or mechanical device, material, or equipment attached to or near the body so that a resident can’t remove the restraint easily. They prevent freedom of movement or normal access to one’s own body. A chemical restraint is a drug used to limit freedom of movement and is not needed to treat medical symptoms. It is against the law for a nursing home to use physical or chemical restraints, unless it is necessary to treat medical symptoms. Restraints may not be used to punish nor for the convenience of the nursing home staff. The resident has the right to refuse restraint use except if they are at risk of harming themselves or others.

● Information on Services and Fees: The nursing home resident must be informed in writing about services and fees before they move into the nursing home. The nursing home cannot require a minimum entrance fee as a condition of resistance.

● Money: The residents have the right to manage their own money or to choose someone they trust to do this for them. If the nursing home is asked by residents to manage their personal funds, they must sign a written statement that allows the nursing home to do this for them. However, the nursing home must allow the residents access to their bank accounts, cash, and other financial records. The nursing home must protect residents’ funds from any loss by buying a bond or providing other similar protections.

● Privacy, Property, and Living Arrangements: The right to privacy, and to keep and use personal belongings and property as long as they don’t interfere with the rights, health, or safety of others. Nursing home staff should never open a resident’s mail unless the resident allows it. The resident has the right to use a telephone and talk privately. The nursing home must protect the residents’ property from theft. This may include a safe in the facility or cabinets with locked doors in resident rooms. When a married couple lives in the same nursing home, they are entitled to share a room if they so desire.

HIPAA: Congress called on the Department of Health and Human Services to issue patient privacy protections as part of the Health Insurance Portability and Accountability Act of 1996 (HIPAA). HIPAA included provisions designed to encourage electronic transactions and also required new safeguards to protect the security and confidentiality of health information. The final regulation covers health insurance companies, health care billing companies and health care providers including nursing homes.

Each nursing home is responsible to implement their own plans for observing privacy regulations. And, they may provide residents with even greater rights and protections of their health information and their privacy in general. As a volunteer, you should consult with the appropriate staff of the nursing home to determine how they expect you to help them abide by these rules. In all cases, please show the utmost respect for the personal privacy and personal property of the residents of the facility in which you volunteer. As a ministry, it is the policy of Christian Concourse not to take photographs, audio recordings, or video recordings of care facility residents without a signed permission slip from the resident(s) and without the full knowledge and consent of the facility. For a sample of a permission slip see Section 13, “Tools.”

● Medical Care: The resident has the right to be informed about their medical condition, medications, and to see their own doctor. They also have the right to refuse medications and treatments (but this could be harmful to their health). They have the right to take part in developing their plan of care. They have the right to look at their medical records and reports when they ask to do so.

● Visitors: The right to spend private time with visitors at any reasonable hour. The nursing home must permit family to visit at any time, as long as the resident wishes to see them. Conversely, the residents don’t have to see any visitor they don’t wish to see. Any person who gives help with health or legal services may see them at any reasonable time. This includes the resident’s doctor, representative from the health department, and their Long-Term Care Ombudsman, among others.

● Social Services: The nursing home must provide the residents with any needed social services, including counseling, help solving problems with other residents, help in contacting legal and financial professionals, and discharge planning.

● Leaving the Nursing Home: Living in a nursing home is the resident’s choice. They can choose to move to another place. However, the nursing home may have a policy that requires the resident to tell them before they plan to leave. If they don’t, they may have to pay them an extra fee. If a resident is going to another nursing home, they should make sure that there is a bed available for them.

If the resident’s health allows and their doctor agrees, they can spend time away from the nursing home visiting friends or family during the day or overnight. The nursing home staff should be informed a few days ahead of time if the resident wants to do this so medication and care instructions can be prepared.

Caution: If a resident’s nursing home care is covered by certain health insurance, they may not be able to leave for visits without losing their coverage.

● Complaints: 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: A nursing home resident cannot be sent to another nursing home, or made to leave the nursing home unless:

• It is necessary for their welfare, health, or safety of themselves or others,
• Their health has declined to the point that the nursing home can not meet their care needs,
• Their health has improved to the point that nursing home care is no longer necessary,
• The nursing home has not been paid for services received by the resident, or
• The nursing home closes.

Except in emergencies, nursing homes must give a 30-day written notice of their plan to discharge or transfer a resident. Residents have the right to appeal a transfer to another facility.

A nursing home cannot make someone leave if they 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 the resident’s money.

● 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. A good care plan can help make sure that the resident is getting the care they need and help make their stay more pleasant. Health assessments (a review of someone’s health condition) must be done within 14 days of admission. A resident should expect to get a health assessment at least every 90 days after their first review, and possibly more often if their medical status changes. The resident has the right to take part in this process, and family members can help with the care plan with the resident’s permission. If a relative is the legal guardian, he or she has the right to look at all medical records about the resident and has the right to make important decisions on their behalf.

Family and friends can help make sure the resident gets good quality care. They can visit and get to know the staff and the nursing home’s rules.

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

Thanks to Prof. Tom McCormick of Toronto, Canada for his research on this topic. Taken from material he presented to the national Christian Fellowship of Care Center Ministries, March 2004. To contact Mr. McCormick, leave a note in our guestbook .
Resource: http://www.carescout.com/resources/nursing_home/ombudsman.htm

“Every state has an ombudsman program that, for free, acts as an advocate on behalf of nursing home residents. Each state designates individuals to serve as long-term care ‘ombudsmen.’ Nationwide, there are more than 500 local ombudsman programs.

“An ombudsman is responsible for receiving and resolving complaints affecting residents in nursing homes throughout the state. If you have a legitimate complaint about you or your loved one’s nursing home that the administrator of a facility has not resolved to your satisfaction, you may wish to contact the Ombudsman office for help. It is part of an ombudsman’s job to help you resolve your nursing home problems and complaints.”

The telephone numbers for the Ombudsman in each State are given at the website listed above.

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

National Training Project
AARP Foundation
601 E Street, NW
Washington, DC 20049

National Citizens’ Coalition for Nursing Home Reform
1424 16th St., NW, Suite 202
Washington, DC 20036
or call: (202)332-2275

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 Resource:

http://www.carescout.com/resources/nursing_home/ombudsman.htm

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 on her website, Elderly Place (http://www.geocities.com/~elderly-place/ ).

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.

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