How does living in a nursing home affect my personal rights and privileges?
You do not check your rights and privileges at the door when you enter a nursing home. Although institutional care, by its very nature, substantially limits one's lifestyle and scope of privacy, one should nevertheless expect high-quality, compassionate, and dignified care from nursing facilities.
The federal Nursing Home Reform Amendments of 1987, and corresponding state laws, protect residents in nearly all nursing facilities. For residents who lack decision-making capacity, the resident's agent under a power of attorney for health care or another legal surrogate recognized by state law (typically a family member) may exercise the resident's rights. Federal law requires that nursing homes meet strong basic standards for the quality of life of each resident and for the provision of services and activities. Specific rights guaranteed by federal and state law include the following:
Information Rights
Nursing homes must provide
written information about residents' rights;
written information about the services available under the basic rate and any extra charges for extra services;
advance notice of changes in room assignment or roommate;
upon request, latest facility inspection results and any plan of correction submitted to state officials;
explanation of the resident's right to make a health-care advance directive--that is, power of attorney for health care, or living will--and facility policies on complying with advance directives (see the discussion of advance directives under "Health-Care Decision-Making Issues" on page 644); and
information about eligibility for Medicare and Medicaid and the services covered by those programs.Self-Determination Rights
Each resident has the right to
participate in an individualized assessment and care-planning process that accommodates the resident's personal needs and preferences;
choose a personal physician;
voice complaints without fear of reprisal and receive a prompt response; and
organize and participate in resident groups (such as a resident council) and family groups.Personal and Privacy Rights
Residents have the right to
participate in social, religious, and community activities as they choose;
privacy in medical treatment, accommodations, personal visits, written and telephone communications, and meetings of resident and family groups;
confidentiality of personal and clinical records;
access to the long-term care ombudsman, their physician, family members, and reasonable access to other visitors, all subject to the resident's consent;
freedom from physical or mental abuse, corporal punishment, and involuntary seclusion;
freedom from any physical restraint or psychoactive drug used for purposes of discipline or convenience, and not required to treat the resident's medical symptoms; and
protection of resident's funds held by the facility with a quarterly accounting.Transfer and Discharge Rights
Residents may be transferred or discharged only if
the health, safety, or welfare of the resident or other residents requires it;
the resident fails to make necessary payments (nonpayment of fees);
the resident's health improves so that he or she no longer needs nursing-home care; or
the facility closes.Normally, residents must receive at least thirty days' advance notice, with information about appealing the transfer and how to contact the state long-term care ombudsman program. The facility must prepare a discharge plan and orient residents to ensure safe and orderly transfer from the facility.
Protection Against Medicaid Discrimination
Nursing homes must
have identical policies and practices regarding services to residents regardless of the source of payment (however, be aware that not all facilities participate in Medicaid);
provide information on how to apply for Medicaid;
explain the Medicaid "bed-hold" policy--that is, how many days Medicaid will hold the resident's bed, or ensure priority readmission, after temporary absences;
not request, require, or encourage residents to waive their rights to Medicaid;
not require a family member to guarantee payment as a condition of a resident's admission or continued stay; and
not "charge, solicit, accept or receive gifts, money, donations or other considerations" as a precondition for admission or continued stay for persons eligible for Medicaid.
American Bar Association Family Legal Guide Copyright © 2004 American Bar Association