Considering a Nursing Home? Know Your Rights

by | Apr 11, 2018

Approximately 30 years ago, Congress adopted the Nursing Home Reform Act (NHRA) which provided sweeping modifications of the federal regulations governing nursing homes that participate in Medicare and Medicaid services.  The NHRA was adopted primarily as a result of disturbingly high rates of elder abuse occurring in nursing facilities.

More recently, on October 4, 2016, the Centers for Medicare and Medicaid Services (CMS) published another set of revisions to these regulations, which took effect in phases.  The goals of the revised regulations are to improve quality of care, quality of life, and resident safety.  Between the NHRA, CMS, Medicare, and Medicaid, nursing homes are strictly governed.  Unfortunately, those who seek admittance into a nursing facility, whether it be the resident himself/herself or the resident’s family, usually find themselves in a vulnerable position trying to resolve an imminent need while dealing with intense emotions.  It is imperative that people understand the laws as they apply to these facilities and the rights residents have in making the transition and living life in one of these facilities.  The laws and regulations are very comprehensive and detailed.  What you read below is simply a brief synopsis of some of the most important rights.

  1. Right to Retain Legal Rights

Nursing homes are prohibited from even asking residents or potential residents to waive their legal rights, whether those rights stem from local or state law or whether those rights stem from federal law such as Medicare or Medicaid.  Whether it be an admission agreement, a post-dispute agreement, or negotiationregarding life in the facility, nursing homes cannot request that residents waive their rights.

  1. Right to Sue Facility for Loss of Property

Nursing homes are now prohibited from even asking residents or potential residents to waive the facility’sliability for the loss of personal property.  In fact, the new regulations obligate the facilities to take reasonable measures to protect the resident’s belongings from loss or theft.

  1. No Third-Party Guarantee of Payment

While facilities have long been prohibited from requiring a third party to guarantee payment to the facility, under the revised regulations, the facilities now are prohibited from even requesting a third party to guarantee payment.  This regulation does not prohibit a facility from requiring a fiduciary who controls the potential resident’s funds to sign an agreement to use the resident’s assets to pay the facility.

  1. No Pre-Dispute Arbitration

The new regulations prohibit facilities from requiring residents or potential residents from agreeing to a pre-dispute arbitration clause.  This regulation does not prohibit the facility from requesting that the resident sign an arbitration agreement after a dispute arises.  Unfortunately, right now, this new regulation has been banned as a result of a lawsuit, and CMS has not appealed.  However, if the facility does require an arbitration agreement for admission, there’s a decent legal argument that it may not be enforceable.

  1. Right to Participate in One’s Own Care

Care Plans and Discharge Plans must be created, maintained, and modified by a team of individuals including the resident, a representative for the resident, and all employees or professionals with any responsibility toward the resident.  Even residents who have been adjudicated incompetent must still be allowed to participate in their care plan.  The new regulations around Care Plans stem from the new person-centered care approach, making the resident the center of control for decision-making.

Additionally, the facility is required to make reasonable efforts to include the resident and resident representative in the care plan meetings, even to the point of scheduling the meetings to accommodate the resident’s schedule and allowing participation through telephone or video conference. If the resident and resident representative are not included in the care plan meetings, the facility must specifically document why they were not included.

Specifically, the care plans must be drafted with considerations of the resident’s specific needs, culture, and limitations of any trauma or suffering experienced by the resident in the past.

The Care Plan must include a Discharge Plan.  The Discharge Plan must include considerations for the resident’s needs and goals and the availability of other caretakers.  Additionally, the Discharge Plan must include procedures to reduce the likelihood of preventable readmissions into the facility after the resident leaves the facility.

Finally, if the resident wishes to leave the facility and enter the community, the facility must make any appropriate referrals to agencies that can assist with the transition.  If the facility determines that the resident cannot be discharged, the facility must specifically document this decision, who made the decision, and the reasons for the decision.

  1. Right to Be Treated with Respect

Facilities must treat all residents with respect and dignity, care for each resident in a manner thatenhances the residents’ quality of life, andprovide equal access to quality care regardless of the residents’ medical diagnosis, severity, or payment source.

  1. Right to Enforce Your Rights

The NHRA requires that residents be allowed to exercise their rights without reprisal from the facility.  In fact, the regulations require that the facilities support the residents in the exercise of their rights.  Residents have the right to designate a representative to take any action necessary on their behalf to exercise the residents’ rights including taking legal action to enforce their rights.

  1. Right to Understand and to Plan for Healthcare

CMS has dictated that residents have a right to be informed of their medical conditions, health status, and treatment plan in a language they can understand.  Importantly, the facility must make reasonable efforts to speak in layperson’s terms rather than medical terms so that the residents can meaningfully understand and participate in their treatment plans.  Residents have the right to request, refuse, or terminate medical treatment, and to create a medical advance directive.

  1. Right to Choose Doctor

Residents retain the right to choose their attending physician.  If the pre-admission physician does not meet the facility’s requirements, the facility may choose a physician for the resident only after discussing it with the resident and honoring the resident’s wishes.

  1. Right to Be Free from Unnecessary Restraints

Sadly, restraints have historically been imposed upon residents, not for the residents’ medical needs, but rather for staff convenience.  However, the NHRA has always prohibited unnecessary restraints.  The new regulations, though, more specifically define the rules regarding restraints.  The revised regulations state that residents must remain free from unnecessary restraints, both physical and chemical.  When restraints are medically necessary, the staff must use the least restrictive means for the least amount of time.  Additionally, unnecessary restraints are specifically defined as “abuse.”

  1. Right to Choose Roommate

Married residents have always been allowed to room together.  However, the revised regulations expand this right allowing residents to choose their roommates.  In fact, a resident can refuse a room transfer in certain situations.

  1. Right to Make Decisions

Residents’ decisions about their schedules, visitation, and activities must be respected and promoted.  Residents must be allowed to dictate their schedules, including sleeping and waking schedules, and to make decisions about aspects of their life within the facility that are significant to the residents.  Additionally, residents must be allowed and even encouraged to participate in activities both inside and outside the facility.  The facility must assist the residents in doing so by arranging transportation.

  1. Right to Have Visitors

Facilities must provide “prompt access” to residents by immediate family members, other relatives, and resident representatives so long as the residents wish to receive visits.  The right to receive other types of visitors is balanced against the safety of the residents and the facility.  Additionally (and this is my favorite part), the facility must provide “reasonable access” to residents by an entity or individual who provides legal services.

  1. Right to Communicate and Receive Information

Facilities must allow residents reasonable access to and use of a telephone and reasonable access to and use of communication devices for the purpose of email and video communication.  Additionally, facilities must allow residents reasonable access to computers for the purpose of internet research, to the extent available to the facility.  Additionally, residents may, at their own expense, retain and use a private cell phone.

  1. Right to Live Comfortably and Safely

Facilities must provide a “homelike” environment that is safe, clean, and comfortable.  Additionally, the facility must provide housekeeping and maintenance services, clean linens, private, adequate and comfortable lighting, comfortable and safe temperatures, and comfortable sound levels.  The revised regulationsfurther require that residents safely receive treatment, that the facility provide a safe physical layout, and that the facility exercise reasonable care for the protection of the resident’s property from loss or theft.

  1. Right to File a Grievance

Residents must be notified of their right to file a grievance.  Additionally, facilities must designate a grievance official who oversees the grievance process including receiving the grievance, investigating the grievance, and providing a written decision to the resident regarding the grievance.  A resident who files a grievance must not suffer retaliation or reprisal as a result of the filed grievance.

  1. Right to Privacy

Residents retain the right to privacy and confidentiality with regard to their personal and medical records.

  1. Right to Refuse Transfer/Discharge

Under the NHRA, a nursing facility can transfer a resident against his or her will for one of six reasons only:

  1. The resident needs a level of care that the nursing facility cannot provide
  2. The resident does not need nursing facility care
  3. The resident’s presence endangers the health of others at the facility
  4. The resident’s presence endangers the safety of others at the facility
  5. The resident owes money for nursing facility care despite having received adequate notice
  6. The nursing facility is going out of business.

Importantly, facilities may not discharge a resident for non-payment when the resident has applied for Medicaid or has filed an appeal after an initial denial.  If the facility’s reason for transfer/discharge is that the facility cannot meet the needs of the resident, the resident’s physician must review the situation, specifically identify the needs that cannot be met, specifically outline the facility’s attempts to meet those needs, and the services available at the receiving facility to meet those needs.  A further protection in this area is the new requirement that requires facilities to provide potential residents with written notice of any special characteristics or service limitations.

Source:  Advocating for Nursing Facility Residents Under the Revised Federal Requirements by Eric Carlson, Lori Smetanka, and Nancy Stone, NAELA Journal, Spring 2018

DISCLAIMER: Yes, I am an attorney, but I’m not your attorney and your reading of this article does not create an attorney-client relationship between you and me. I am licensed to practice law in North Carolina and South Carolina, and I have based the information in this article on the laws of those two states and the United States. This blog contains general legal information only and should not be taken or relied upon as legal advice. All cases are unique and require a detailed analysis. Additionally, the laws are everchanging which causes certain pieces of article content to become outdated. You should consult with an attorney before you take any action in reliance on this information.