Legal Rights of Nursing Home Residents

Poor treatment is a common worry when choosing a nursing home or assisted living facility for yourself or a family member. Moving into a long-term care facility doesn’t mean being subject to any type of abuse or neglect. All residents, even those with cognitive and physical incapacities, have legal protections and rights in a nursing home.

This article provides basic information regarding nursing home abuse laws and residents’ rights in a care facility. Whether you are comparing facilities or your loved one is a current resident, learn what you can do when you have concerns about substandard care.

Remember, if you believe a resident is in immediate danger, they should be removed from the nursing home facility as soon as possible. You can also talk to a personal injury lawyer about how to protect your loved one.  

Legal Standards of Nursing Homes

Nursing homes are private institutions that furnish shelter, feeding, and care services to sick, aged, or infirm persons. They are not strictly considered hospitals in that they do not necessarily render actual medical treatment. Sometimes they may be considered hospitals for certain purposes. This can depend on laws that may govern their operation.

Facility Classifications Affect Standards

Federal laws distinguish among four types of healthcare facilities. The distinction depends on the level of nursing care they provide.

The classifications from the lowest to the highest degree of care are as follows: 

• Adult boarding facilities
• Residential care facilities
• Intermediate care facilities
• Skilled nursing facilities

Different standards apply depending on how an institution is classified. State and federal governments regulate skilled nursing facilities and intermediate care facilities. This is with respect to their participation in Medicare and Medicaid. National Medicare standards exist for nursing homes serving as long-term care facilities.

Residents’ Bill of Rights

Nursing home residents are entitled to a general bill of rights. The bill ensures their fair treatment and access to proper care. Under federal guidelines, including the Nursing Home Reform Act, each nursing facility must develop and implement written policies and procedures. The facility must comply with its residents’ bill of rights.

A residents’ bill of rights outlines residents’ rights to basic needs while prohibiting:

• Mistreatment (such as improper physical restraints or drug/chemical restraints)
• Nursing home negligence (such as neglect leading to malnutrition and bedsores)
• Abuse of residents (elder abuse, such as mental abuse or sexual abuse)

A resident in such a nursing facility is entitled to receive verbal and written notice of their rights. The notice must contain legal disclaimers relating to assisted living facilities. Residents must receive it before or upon admission. It must also be provided periodically throughout the resident’s stay in a language the resident understands. The resident must acknowledge receipt of such notice in writing.

Rights of Nursing Home Residents

Residents have the right to be free from mental and physical abuse (personal injury). This section lists a few specific categories of legal rights. The Centers for Medicare and Medicaid Services (CMS) also publishes a similar list of rights pertaining to the welfare of nursing home residents.

These rights aim to balance residents’ agency and dignity with their care needs and safety. Keep in mind the unique circumstances and rights of incapacitated adults.

If you aren’t sure about whether a care facility violated these rights, you may want to get professional legal help. 

Visitors and Communication

Residents have a right to receive certain visitors, including:

• Family members
• Ombudsmen, the Department of Health, or other resident advocates
• Physicians
• Service providers
• Representatives of the state and federal government

Nursing home residents also cannot be kept apart from other residents against their will. Residents may participate in social, religious, and community activities. This is true to the extent that they do not interfere with the rights of other residents.

Personal Effects and Privacy

Residents have rights that protect their personal boundaries and privacy while in a facility. For example, they may keep and use their personal possessions and clothing. This is true unless doing so would endanger health and safety.

Below are a few more privacy rights of residents:

• Residents have the right to keep their clinical and personal records (e.g. medical condition) confidential.
• Residents cannot be required to deposit their personal funds with the nursing home. If they request that the home manage their funds, the home must do so according to state and federal record-keeping requirements.
• Residents have the right to privacy, including in their rooms. Privacy extends to medical treatment, communications, visits, and meetings with family and resident groups.

Insurance 

Residents also have the right to apply for and receive Medicare and Medicaid benefits. They cannot be asked to leave a home because they receive such benefits.

Indeed, nursing homes must treat all residents the same, regardless of whether they are:

• Private payers
• Medicare or Medicaid recipients

Residents are entitled to lists of what services Medicare and Medicaid will pay. They are entitled to disclaimers regarding additional services to be charged.

Medical Care

Here are a few rights residents have regarding medical treatment:

• Nursing home care residents have the right to choose their own personal physician.
• Residents have the right to be fully informed about their medical care and care plan.
• Residents have the right to participate in the planning of their care and treatment.
• Nursing home facility residents have the right to refuse treatment from staff members.
• Residents cannot be tied down or given drugs to restrain them if restraint is unnecessary to treat their medical symptoms.
• Residents have the right to review their medical records within twenty-four hours of making a request.

Facility Transparency

Here are a few of the rights residents have regarding the facility:

• Residents must be informed of their rights upon admission. They must be given their rights in writing if requested.
• Nursing home residents have the right to review the most recent state inspection report relating to the home.
• Residents have the right to raise grievances against nursing home staff and have them resolved quickly.

Facility Transfers and Removal

Nursing home residents’ rights also include:

• Residents must be given notice before their room or roommate is changed. Residents can refuse the transfer under certain circumstances. They can refuse if the purpose is to move them from a Medicare bed to a Medicaid bed or vice versa.
• Residents have the right to stay in the nursing home. They can only be removed if necessary for the resident’s welfare. Other exceptions include preventing nursing home injuries and harm to others in the facility. Removal is also appropriate if the resident fails to pay after reasonable notice or the facility ceases to operate.
• Nursing home residents and their representatives have the right to thirty days’ notice of a proposed transfer or discharge. They have the right to appeal.
• Before transferring residents for hospitalization or therapy, the nursing home must make disclosures. They must inform them of the length of time that their beds will be held open for their return. This is called the “bedhold period.”
• Nursing home residents returning from a hospital or therapeutic leave after expiration of the bedhold period have the right to be readmitted. However, they must wait for the first semi-private bed to become available.

What To Do When a Care Facility Violates a Resident’s Rights

There are a number of civil claims you may be able to pursue against a nursing home or skilled nursing facility. These include:

• Negligence (carelessness leading to personal injury, such as excessive bedsores)
• Wrongful death (carelessness that leads to death),
• Medical malpractice (mistreatment of elderly residents by medical staff)
• Breach of contract (violations of long-term care facility service agreements)

Keep in mind that legal actions can be civil, criminal, or both. Criminal cases against nursing homes are brought by a district attorney or government prosecutor on behalf of the elderly victim. The government may criminally punish those at fault for the abuse. That means jail time, fines, and the potential suspension or revocation of licenses.

Civil lawsuits are different because they involve private parties only. A civil nursing home abuse lawsuit is meant to provide some financial compensation for you or your loved one’s losses. You may be entitled to bring a civil lawsuit on your loved one’s behalf. You may need a power of attorney (POA) or declaration of guardianship or conservatorship over the victim. While this can get complicated, it is best to consult a nursing home abuse attorney or personal injury lawyer before attempting to file a lawsuit.

Get a Review of Your Nursing Home Injury Case

Nursing home residents must deal with stress from care providers and insurance companies, and sometimes their legal rights are violated as well. To correct injustices, it may be necessary to involve a legal team of personal injury attorneys.

If you or your loved ones are looking for a personal injury lawyer, focus on finding a nursing home abuse lawyer. Depending on their policies, the law office of a nursing home abuse attorney might provide a free case evaluation. Enforcing your rights may be just a phone call away.