What are my rights as a nursing home resident and are they being protected?
Is my loved one receiving the utmost care they deserve? Are nursing home residents fully informed of their rights under federal and state laws? These are the important questions residents and family members should be asking on behalf of their loved ones in long-term care facilities.
In 1987, Congress passed the “Nursing Home Reform Law” (OBRA) to encourage personalized care for nursing home residents and safeguard their rights. There are lots of gray areas and misinformation about the protection of nursing home residents and the regulations nursing facilities must follow, which is also known as the Nursing Home Bill of Rights. Massachusetts has its own rules as well. For example, Massachusetts law gives nursing home patients the right to have their personal preferences reasonably accommodated, and to be informed of their rights and responsibilities as a consumer. There are other rights as well; to learn more about the regulations, visit the following links: https://manhr.org/essential-information/links-resources/federal-and-ma-nursing-home-laws-regulations/ and https://www.mass.gov/service-details/residents-rights.
Below is a description of frequently misunderstood material that can save you and your loved one’s time, money, and health:
Developing a Proper Plan of Care
A nursing facility does not have to accept all applicants; however, they must comply with the Civil Rights law that forbids discrimination on the basis of race, national origin, color, disability, age, or religion. Facilities are also not allowed to discriminate based on the source of payment. Upon accepting an applicant, nursing facilities are required, by law, to develop an individualized plan for each resident. To create this plan, they must first complete an assessment within 14 days after admission. That plan of care is required to help the resident maintain the highest practicable physical, mental, and psychosocial of their well-being. This plan must also be reasonable enough to measure attainable objectives. Residents have the absolute right to take part in this development, have prompt access to all reports and records, including clinical records, choose their own personal attending physician, and participate in the decision-making affecting their care. A resident also has the right to choose specific activities, schedules, and health care that is parallel with their plan of care, assessment, and interests. Family members are also allowed to take part in the creation of the care plan provided the resident grants permission.
Abuse and Neglect
Residents have the right to be free from any physical, verbal, sexual, or mental abuse. Should abuse, neglect, or mistreatment be suspected, I highly encourage you to report this behavior to State Government Agencies, Long-Term Care Ombudsman offices, your family, and the nursing home. Once this is reported to the nursing home, they must investigate and report all suspected violations and injuries. If the cause of an injury is unknown, the nursing facility must investigate and report it within 5 working days of the incident to the proper authorities. Nursing facilities also cannot physically or chemically restrain residents as a punishment or disciplinary action for the staff’s convenience. Restraints may only be used to ensure the safety of themselves or others. An exception to this rule only applies in emergency situations where a physician provided a written order for the specific times and circumstances of when it should take place and how the restraint should be conducted. Residents always have the right to make a complaint to nursing home staff and should not fear repercussions or a retaliatory response. Click here for more information.
Evicting a Nursing Home Resident
A nursing facility may not evict or remove a resident unless it can establish that either the transfer was necessary for the resident’s welfare and safety which could not have been achieved at the current facility; the safety and health of themselves, other residents, and nursing facility staff were in danger; the resident’s performance and health have since improved and is no longer in need of the facility’s services; after several attempts to collect payment and supplied reasonable notice, the resident failed to pay for their stay, including the failure to comply with governmental benefits such as Medicaid or Medicare programming; and lastly, the nursing home facility ceases to operate. A resident's failure to pay for the facility’s services is a permissible basis for discharging a resident. However, once the resident files a MassHealth application, the facility is prohibited from discharging or transferring the resident until all administrative appeals have been exhausted in the MassHealth Medicaid application process. (Source: https://attorney.elderlawanswers.com/the-ins-and-outs-of-massachusetts-nursing-facilities-admission-transfer-and-discharge-7348.)
These are just a few important facts when learning more about the rights of nursing home residents. All in all, do not be afraid to speak up and ask for help! Feel free to reach out to your local state agencies and seek financial and legal help should you need it. Educate yourself and preserve your rights!
If you need to get started on a MassHealth Medicaid application, call our office at 978-657-7437 or book a Strategic Planning Session with one of our attorneys.