People who reside in nursing homes are in a vulnerable position, in need as they are of near-constant assistance – not just with medical and health problems, but also, often, for daily living activities. Federal and state laws exist to safeguard nursing home residents’ care. But your ability to protect yourself or your loved one during a short- or long-term nursing home stay depends in part on knowing what these facilities are not allowed to do and what action to take if a violation occurs.
Here are some of the patients' rights Medicare has spelled out, along with some insight from a nursing home expert. These include new rights just added in 2016, some of which will phase in between then and 2019 (see below), including the right to sue the home and to have any visitors at almost any time and have property safeguarded.
Note: These points apply specifically to skilled nursing facilities – defined by Medicare as a special facility or part of a hospital that provides medically necessary professional services from nurses, physical and occupational therapists, speech pathologists and audiologists. They do not apply to assisted living facilities or retirement homes.
Before Moving In
Federal law prohibits skilled nursing facilities from discriminating against protected classes. In other words, they can’t make a decision about whether someone can live there based on race, color, religion, age, sex or any other protected characteristic. If you suspect a nursing home has turned you or a loved one down for one of these reasons, you should report the facility to your local long-term care ombudsman and to the agency that regulates nursing homes in your state; Medicare offers an official complaint form.
A skilled nursing facility must state in writing which services it will provide and what its fees are before a patient moves in. Also, while some types of retirement facilities, such as continuing care communities, require a substantial buy-in fee up front that guarantees residents access to various levels of care as their needs change, skilled nursing facilities cannot impose such fees.
When a patient first enters a nursing home, he or she undergoes a health assessment, and assessments continue daily for the length of their stay. The patient’s doctor and the nursing home’s staff will evaluate the patient’s physical and mental health, medications, ability to take basic care of oneself (get dressed, eat, bathe, use the toilet, etc.) and ability to speak and make decisions. These assessments are used to plan treatment, evaluate progress and determine ongoing eligibility for Medicare coverage. Nursing home residents are allowed to participate and weigh in on their care plan. If they’re not capable of doing so, someone they trust, like an adult child or sibling, can participate on their behalf.
While a nursing home may offer to manage a resident’s personal funds as part of its services, it can’t require a resident to let it manage their money, nor can it do so without the resident’s written consent. Even if the resident gives consent, the nursing home must provide quarterly financial statements and it cannot prevent such individuals from accessing their bank accounts, cash or financial documents. Further, if a resident deposits more than $50 into a managed account, that account must pay interest.
Federal law protects nursing home residents’ “right to be treated with dignity and respect,” which includes making decisions such as what time to go to bed and get up; what time to eat meals; and what activities to do during the day, as long as these decisions don’t conflict with the care plan. Residents aren’t allowed to be verbally or physically abused, medicated with drugs that aren’t part of the treatment plan, restrained physically (unless they pose a danger to themselves or others), involuntarily isolated from others or to have their property used or taken by staff, other residents or anyone else working at or visiting the facility. Patients have the right to privacy and to personal property, which includes being allowed to open their own mail and to have private phone conversations.
Patients are allowed to have visitors during reasonable times of day, and they’re also allowed to forbid visitors they don’t want to see. Family members must be allowed access at any time (unless the patient desires otherwise). The facility also bears responsibility for patients' behavior vis-à-vis other patients: It must step in if it learns that one resident is giving another resident trouble, for example.
Although patients may be in poor health, physical or mental, they have a right to be told what their physical condition is, what ailments they’ve been diagnosed with and what medications they’ve been prescribed. They have a right to see their medical records. Patients can continue to see their own doctors – they don’t have to accept the services of practitioners provided by the nursing home – and they have the same right to refuse treatments and medications that outpatients do. If a patient needs mental, legal or financial counseling related to his or her treatment, the nursing home must provide these services.
One thing nursing homes are not required to do: Keep track of the Medicare benefits being used to pay for a patient's care. When it comes to facilities, Medicare coverage is somewhat complicated – it covers a stay completely for a certain number of days and then pays a set amount for an additional period – and all this only under certain conditions. After that, patients are responsible for the entire bill unless they have long-term care insurance or some other form of coverage. The nursing home is not required to notify a resident that the benefit days are ending, and it can continue to charge them for their care.
There is one exception: If Original Medicare benefits stop earlier than expected because the care is deemed no longer “medically reasonable and necessary,” the nursing home is required to notify the patient that coverage is ending, when it’s ending and why. It must also tell such patients that they will be responsible for further costs and how much it estimates those costs will be.
However, a facility usually cannot require another family member to pay for a resident’s care.
Leaving the Home
Nursing homes are required to help with discharge planning. Generally, they can’t discharge a patient or transfer him or her to another facility without his or her consent – unless (a) the patient’s health has declined to the point where the facility can no longer meet his or her needs; (b) the patient has improved to the point where he or she no longer requires the facility’s services; or (c) the patient poses a threat to his or her own welfare or that of other residents.
A resident can also be discharged for not paying the facility’s bills (unless the delinquency is caused by waiting for Medicaid payments to come through).
Residents and their advocates have a right to complain about any problem they experience in a nursing home, and nursing homes cannot punish someone for speaking up. Residents and caregivers should speak to a supervisor or administrator even about a seemingly minor problem, says Brian Lee, executive director of Tallahassee, Fla.-based Families for Better Care, a non-profit citizen advocacy group. Even the smallest of issues can snowball into a dangerous situation, he says. Something as simple as repeatedly placing a resident’s water out of reach at dinner can lead to dehydration, hospitalization, infection or even death, for example.
Other common violations to look out for include untreated bedsores; medication errors that may result in injury or death; disrespectful, demeaning or bullying speech; neglecting to follow proper hand-washing or other infection-control practices, which lead to outbreaks; and ill-prepared food, Lee says. Egregious violations like sexual assault, physical abuse, and overmedication “are not the norm, but they are more widespread than we even realize,” he adds. If the facility’s management can’t or won’t resolve the issue, Lee recommends reporting the problem to the state survey agency, which enforces nursing home laws and regulations, and to the local long-term care ombudsman, who can advocate on the family’s behalf for free.
A regulation promulgated in September 2016, gave nursing home residents and their families the ability to sue any nursing home that receives federal funding. Previously, nursing homes could try to force people into arbitration, meaning that many instances of quality of care and safety issues – including abuse, harassment, and wrongful death – could be kept under wraps. Because court proceedings are on the public record while arbitration proceedings are private, nursing homes now have a greater incentive to provide high-quality care and consumers have more information about which homes to avoid. The bad news: A preliminary injunction granted in Mississippi in November 2016 put this regulation on hold for now.
New regulations that will be phased in from November 2016 through 2019 will give nursing home residents additional rights. Residents will be allowed to receive any visitor, not just relatives, at any hour of the day, as long as their visitors don’t disturb fellow residents. Residents who want to live together will be allowed to, and nursing homes will have greater responsibility for ensuring that residents’ personal belongings aren’t lost or stolen. They'll also be required to provide meals and snacks when residents want them, not just at fixed hours. Staff will receive greater training in caring for dementia patients and preventing elder abuse, and nursing homes won’t be able to easily kick out residents with dementia by sending them to a hospital and then refusing to readmit them.
The Bottom Line
Essentially, a person’s rights as a nursing home resident mirror the rights he or she had outside the facility. Patients might have less control over their lives because of their physical or mental condition, but that doesn’t make it okay for anyone else to dominate, intimidate or exert authority beyond the bounds of what’s necessary to help them manage day-to-day life and get better. Neglect, discrimination, abuse, and theft are unacceptable in any setting, and that includes nursing homes.