COMMON NURSING HOME RESIDENT RIGHTS ISSUES

Nursing Home Residents’ Rights are guaranteed by the federal 1987 Nursing Home Reform Law.(42 CFR 483.10). The law requires nursing homes to care for its residents in a manner that promotes and enhances the quality of life of each resident, ensuring dignity, choice, and self-determination.

The Reform Law’s primary emphasis is that each nursing home provide the care that a resident needs to reach his or her highest level of functioning.

The Reform Law also protects the rights of nursing home residents.

However, nursing homes often violate the law and residents rights.

Here are some Common Nursing Home Rights issues and the resolution.

1.      Discrimination Against Medicaid-Eligible Residents

Often the nursing home will say, “Medicaid does not pay for the service that you want.” However, a Medicaid-eligible resident is entitled to the same level of service provided to any other nursing home resident regardless of payment.

2.     Failing to Allow the Family and Resident to participate in Care Plan

Often the nursing home will say, “The nursing staff will determine the care that you receive.” Fortunately, the resident and resident’s family have the right to participate in developing the resident’s care plan.

3.   Disregarding Resident Preferences

Often the nursing home will say, “We don’t have enough staff to accommodate individual schedules and preferences.”  Fortunately, a nursing home must make reasonable adjustments to honor resident needs and preferences.

4.    Failing to Provide Necessary Services

Often the nursing home will say, “We don’t have enough staff. You should hire your own private-duty aide.” Fortunately, the law provides that a  nursing home must provide all necessary care.

5.   Improper Use of Physical Restraints

Often the nursing home will say, “If we don’t tie your father into his chair he may fall or wander away from the nursing home. There’s just no way we can always be watching him.” Fortunately, physical restraints cannot be used for the nursing home’s convenience or as a form of discipline.

6.    Improper Use of Behavior-Modifying Medication

Often the nursing home will say, “Your mother needs medication in order to make her more manageable.” Fortunately, medication can be used to modify behavior only when the behavior is caused by a diagnosed illness for which a specific medication is needed for the resident’s treatment.  Remember One Flew Over the Cuckoos Nest.

7.   Use of Feeding Tubes

Often the nursing home will say, “We must insert a feeding tube into your father because he is taking too long to eat.” However, the use of a feeding tube should be a last resort and only when medically necessary.

8.   Visiting Hours Imposed on Families and Friends

Often the nursing home will say, “Your children can visit you only during visiting hours.” Fortunately, the law provides that a resident’s family member can visit at any time of the day or night.

9.   Requiring Family Members to Take on Financial Liability

Often the nursing home will say, “We can’t admit your mother until you sign the admission agreement as a ‘Responsible Party.”  However, a nursing home cannot require anyone but the resident to be financially responsible for nursing home expenses.  So read that agreement and don’t sign it until it is changed.

10.  Requiring the Resident to Commit to Arbitration

Often the nursing home will say,  “Please sign this arbitration agreement. It’s no big deal. Arbitration allows disputes to be resolved quickly.” Fortunately, there is no requirement or good reason for a resident to sign an arbitration agreement.  So read that agreement and don’t sign it until it is changed.

11.   Failure to Make Progress

Often the nursing home will say, “We must discontinue therapy services because you aren’t making progress.” However, under the medicaid rules, therapy may still be allowed even if a resident is not making progress in order to maintain the current status.

12.     Medicare Payment Has Ended

Often the nursing home will say, “We can’t give you therapy services because your Medicare payment has expired, and Medicaid doesn’t pay for therapy.” Fortunately, therapy should be provided whenever medically appropriate, regardless of the resident’s source of payment.

13.    Eviction After Medicare Payment Ends

Often the nursing home will say, “Because you are no longer eligible for Medicare payment, you must leave this Medicare-certified bed.” However, people with expertise know that a Medicare-certified bed can be occupied by a resident whose care is not being reimbursed through the Medicare program.

14.    Refusal to Accept Medicaid

Often the nursing home will say, “Even though you’re now financially eligible for Medicaid payment, we don’t have an available Medicaid bed for you.” Fortunately, this is not a real issue since a nursing home can certify additional beds for Medicaid payment.

15.    Refusal to Readmit from Hospital

Often the nursing home will say,  “We don’t want to readmit you from the hospital because your bed-hold period has expired.” Under the law, a Medicaid-eligible resident has the right to be admitted to the next available Medicaid-certified bed, regardless of the length of hospital stay.

16.   Excessive Charges

Often the nursing home will say, “You must pay any amount set by the nursing home for extra charges.” However, A nursing home can assess extra charges only if those charges were authorized in the admission agreement.

17.   Eviction For Being ‘Difficult’

Often the nursing home will say, “You must leave the nursing home because you are a difficult resident.” Fortunately, under the law, eviction is allowed for only six limited reasons and being difficult is not one of them.  The reasons are: 1. The resident has failed to pay. 2. The resident no longer needs nursing home care. 3. The resident’s needs cannot be met in a nursing home. 4. The resident’s presence in the nursing home endangers others’ safety. 5. The resident’s presence in the nursing home endangers others’ health. 6. The nursing home is going out of business

18.   Eviction For Refusing Medical Treatment

Often the nursing home will say, “You must leave the nursing home because you are refusing medical treatment.” Again, under the law, eviction is allowed for only six limited reasons and refusing medical treatment.

These laws only apply to Nursing homes receiving federal funds (almost all).  Unfortunately, Independent Living and Assisted Living are not covered under these laws.

You May Need an Advocate

Unfortunately, residents rights in Nursing Homes is a complex maze and issues often arise at very stressful times.  In protecting a residents rights, the resident or resident’s family member may benefit from the assistance of an attorney or other advocate.  A strong advocate that knows the law can be invaluable.