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The Rights of Nursing Home Residents

While residents of nursing homes have no fewer rights than anyone else, the combination of an institutional setting and the disability that put the person in the facility in the first place often results in a loss of dignity and the absence of proper care.

As a result, in 1987 Congress enacted the Nursing Home Reform Law that has since been incorporated into the Medicare and Medicaid regulations. In its broadest terms, it requires that every nursing home resident be given whatever services are necessary to function at the highest level possible. The law gives residents a number of specific rights:

  1. Residents have the right to be free of unnecessary physical or chemical restraints. Vests, hand mitts, seat belts and other physical restraints, and antipsychotic drugs, sedatives, and other chemical restraints are impermissible, except when authorized by a physician, in writing, for a specified and limited period of time. 

  2. To assist residents, facilities must inform them of the name, specialty, and means of contacting the physician responsible for the resident’s care. Residents have the right to participate in care planning meetings. 

  3. When a resident experiences any deterioration in health, or when a physician wishes to change the resident’s treatment, the facility must inform the resident, and the resident’s physician, legal representative or interested family member. 

  4. The resident has the right to gain access to all his or her records within one business day, and a right to copies of those records at a cost that is reasonable in that community. The facility must explain how to examine these records, or how to transfer the authority to obtain records to another person. 

  5. The facility must provide a written description of legal rights, explaining state laws regarding living wills, durable powers of attorney for health care and other advance directives, along with the facility’s policy on carrying out these directives. 

  6. At the time of admission and during the stay, nursing homes must fully inform residents of the services available in the facility, and of related charges. Nursing homes may charge for services and items in addition to the basic daily rate, but only if they already have disclosed which services and items will incur an additional charge, and how much that charge will be. 

  7. The resident has a right to privacy, which is a right that extends to all aspects of care, including care for personal needs, visits with family and friends, and communication with others through telephone and mail. Residents thus must have areas for receiving private calls or visitors so that no one may intrude and to preserve the privacy of their roommates 

  8. Residents have the right to share a room with a spouse, gather with other residents without staff present, and meet state and local nursing home ombudspersons or any other agency representatives. They may leave the nursing home, or belong to any church or social group. Within the home, residents have a right to manage their own financial affairs, free of any requirement that they deposit personal funds with the facility. 

  9. Residents also can get up and go to bed when they choose, eat a variety of snacks outside of meal times, decide what to wear, choose activities, and decide how to spend their time. The nursing home must offer a choice at main meals, because individual tastes and needs vary. Residents, not staff, determine their hours of sleep and visits to the bathroom. Residents may self-administer medication. 

  10. Residents may bring personal possessions to the nursing home such as clothing, furnishings and jewelry. Residents may expect staff to take responsibility for assisting in the protection of items or locating lost items, and should inquire about facility policies for replacing missing items. Residents should expect kind, courteous, and professional behavior from staff. Staff should treat residents like adults. 

  11. Nursing home residents may not be moved to a different room, a different nursing home, a hospital, back home or anywhere else without advance notice, an opportunity for appeal and a showing that such a move is in the best interest of the resident or necessary for the health of other nursing home residents. 

  12. The resident has a right to be free of interference, coercion, discrimination, and reprisal in exercising his or her rights. Being assertive and identifying problems usually brings good results, and nursing homes have a responsibility not only to assist residents in raising individual concerns, but also to respond promptly to those concerns.

Nursing Home Myths and Realities

Myth

Reality

Medicaid does not pay for the service you want.

Medicaid residents are entitled to the same service as other residents.

Only staff can determine the care you receive.

Residents and family have the right to participate in developing a care plan.

Staff cannot accommodate individual schedules.

A nursing home must make reasonable adjustments to honor residents’ needs and preferences.

You need to hire private help.

A nursing home must provide all necessary care.

Restraints are required to prevent the resident from wandering away.

Restraints cannot be used for the nursing home’s convenience or as a form of discipline.

Family visiting hours are restricted.

Family members can visit at any time of day or night.

Therapy must be discontinued because the resident is not progressing.

Therapy may be appropriate even if resident is not progressing; Medicare may pay even without current progress.

You must pay any amount set by the nursing home for extra charges.

A nursing home may only require extra charges authorized in the admission agreement.

The nursing home has no available space for residents or family members to meet.

A nursing home must provide a private space for resident or family councils.

The resident can be evicted because he or she is difficult or is refusing medical treatment.

Being difficult or refusing treatment does not justify eviction.

MEMBER:

•National Academy of Elder Law Attorneys

•American Bar Association

•New York State Bar Association

•United States District Court New York Southern District • USDC NY Eastern District

•State of New York Unified Court System

•National Alliance of Trust & Estate Professionals

•Temple University • Cardozo Law School NY

•AARP Listed Attorney

BRIAN A. RAPHAN, ESQ.

BRIAN A RAPHAN, P.C.
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(370 7th Avenue)

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New York, NY 10001

 

Tel: 212-268-8200

Fax: 212-244-3075
info@RaphanLaw.com

bedsores@RaphanLaw.com

 

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The information on this site is not, nor is it intended to be legal advice and does not automatically create an attorney/client relationship.  On negligence and medical malpractice cases we may participate or partner with other counsel with disclosure to potential client before we or such partnering counsel accept the case.                         © 2020 Brian A. Raphan, P.C.