Federal law requires that nursing home patients be given the same services and same level of care regardless of whether who is paying for it — Medicaid or otherwise. The federal “bill of rights” for nursing home residents is at 42 U.S.C. 1396r(c)(4)(A): “(4) Equal access to quality care.(A) A nursing facility must establish and maintain identical policies and practices regarding transfer, discharge, and the provision of services required under the State plan for all individuals regardless of source of payment.”
When your loved one moves into a nursing home, they are not just moving into a health care facility. They are moving to a new home – perhaps their final home — and they become residents. They do not leave their civil liberties at the nursing home door. In the federal nursing home resident’s right statute, you’ll find the following provisions. New Jersey’s counterpart to the federal law is N.J.S.A. 30:15 (statute) and N.J.A.C. 8:39-4.1 (Department of Health regulation):
(c) Requirements relating to residents’ rights
(1) General rights
(A) Specified rights
A nursing facility must protect and promote the rights of each resident, including each of the following rights:
(i) Free choice The right to choose a personal attending physician, to be fully informed in advance about care and treatment, to be fully informed in advance of any changes in care or treatment that may affect the resident’s well-being, and (except with respect to a resident adjudged incompetent) to participate in planning care and treatment or changes in care and treatment.
(ii) Free from restraints The right to be free from physical or mental abuse, corporal punishment, involuntary seclusion, and any physical or chemical restraints imposed for purposes of discipline or convenience and not required to treat the resident’s medical symptoms. Restraints may only be imposed—
(I) to ensure the physical safety of the resident or other residents, and
(II) only upon the written order of a physician that specifies the duration and circumstances under which the restraints are to be used (except in emergency circumstances specified by the Secretary until such an order could reasonably be obtained).
(iii) Privacy The right to privacy with regard to accommodations, medical treatment, written and telephonic communications, visits, and meetings of family and of resident groups.
(iv) Confidentiality The right to confidentiality of personal and clinical records and to access to current clinical records of the resident upon request by the resident or the resident’s legal representative, within 24 hours (excluding hours occurring during a weekend or holiday) after making such a request.
(v) Accommodation of needs The right—
(I) to reside and receive services with reasonable accommodation of individual needs and preferences, except where the health or safety of the individual or other residents would be endangered, and
(II) to receive notice before the room or roommate of the resident in the facility is changed.
(vi) Grievances The right to voice grievances with respect to treatment or care that is (or fails to be) furnished, without discrimination or reprisal for voicing the grievances and the right to prompt efforts by the facility to resolve grievances the resident may have, including those with respect to the behavior of other residents.
(vii) Participation in resident and family groups The right of the resident to organize and participate in resident groups in the facility and the right of the resident’s family to meet in the facility with the families of other residents in the facility.
(viii) Participation in other activities The right of the resident to participate in social, religious, and community activities that do not interfere with the rights of other residents in the facility.
(ix) Examination of survey results The right to examine, upon reasonable request, the results of the most recent survey of the facility conducted by the Secretary or a State with respect to the facility and any plan of correction in effect with respect to the facility.
(x) Refusal of certain transfers The right to refuse a transfer to another room within the facility, if a purpose of the transfer is to relocate the resident from a portion of the facility that is not a skilled nursing facility…. to a portion of the facility that is such a skilled nursing facility.
(xi) Other rights Any other right established by the Secretary.
There are specific rights concerning access to the resident by outside people such as family or doctors:
42 USC 1396r (c) (3) Access and visitation rights
A nursing facility must—
(A) permit immediate access to any resident by any representative of the Secretary, by any representative of the State, by an ombudsman or agency… or by the resident’s individual physician;
(B) permit immediate access to a resident, subject to the resident’s right to deny or withdraw consent at any time, by immediate family or other relatives of the resident;
(C) permit immediate access to a resident, subject to reasonable restrictions and the resident’s right to deny or withdraw consent at any time, by others who are visiting with the consent of the resident;
(D) permit reasonable access to a resident by any entity or individual that provides health, social, legal, or other services to the resident, subject to the resident’s right to deny or withdraw consent at any time; and
(E) permit representatives of the State ombudsman … with the permission of the resident (or the resident’s legal representative) and consistent with State law, to examine a resident’s clinical records.
Your family member can sign HIPAA releases so that loved ones can have access to their medical or nursing information. Residents have the right to allow and disallow visitors, to read their chart and to direct that their records be shared with certain other people The have the right to participate in care planning meetings. I had a case once where a competent nursing home resident wanted to move out of the nursing home she was in, to another facility where she had previously volunteered over the years. To do so, she needed her records sent to the new facility so they could confirm what her medical/nursing needs were. This resident had a family member who had muscled in and had persuaded the facility administrator that the resident wasn’t of sound mind and shouldn’t be listened to. The facility refused to complete any paperwork to facilitate my client’s application for admission to the other place, despite calls from me and from my client’s outside social worker. It was clear that they were violating the law. We actually had to get the State Ombudsman involved. The matter was finally concluded with my client happily relocating to the place where she knew everybody and really felt “at home.”
These rights are chiseled in stone. They are not merely suggestions. Strong advocacy is sometimes needed when a resident encounters resistance to their requests.
Contact us for representation and advice on problems with nursing home admission, care and discharge issues … 732-382-6070