Nursing Home and Assisted Living Rights

Recent Developments
Nursing Home and Assisted Living Rights

The need to find good nursing home and assisted living care can be both a personal and a professional concern. Many attorneys face personal nursing home issues as their parents age, and are also asked for information and advice about nursing homes by their clients. Unfortunately, at a time of life when they should be getting the best care, they may be put at risk, and may inadvertently lose important legal rights.

Recent Developments

Some nursing homes are adding an arbitration clause to their admission contracts. The admission contract should be reviewed closely. An arbitration clause generally provides that if a dispute that arises between the resident and the nursing home, the resident would not have the right to trial but would have to instead have the issue resolved through binding arbitration in the manner specified in the contract. At the very least, if you are consulted before the contract is signed, you can advise about the important rights given up with an enforceable arbitration clause. Your client might be better off at a comparable facility without such a provision in its standard agreement.

Nursing home resident rights were recognized in the Federal Nursing Home Reform Act that became part of the Omnibus Budget Reconciliation Act of 1987, or "OBRA 87." The intention was to create a national set of minimum standards of care and rights for people living in nursing facilities receiving funding under Medicare or Medicaid.

For more information about the federal regulations implementing the nursing home Medicare and Medicare provisions in 42 USC 1395 and 1396, see 42 CFR 483. CFR provisions can be accessed at: www.gpoaccess.gov

Another development is a corporate shell game in which the nursing home company forms a separate corporation to "carry out operations." This has become a major issue in nursing home litigation. If it is necessary to bring a legal claim against a nursing home, counsel should carefully evaluate the corporate relationships so that the correct corporations are named in any civil action or other legal proceedings.

Nursing Home Residents' Rights Week

States around the country are recognizing Nursing Home Residents' Rights Week this fall. Any resident of a nursing home is entitled to certain legal rights and protections.

Nursing Home and Assisted Living Rights

Care Plan
By law, a nursing home must develop a care plan for each resident. The resident has the right to participate in the plan, and with their permission, family members can help. The nursing staff should get information on medical history, current condition, and necessary treatment and medications in order to prepare a plan. The care plan should include personal and health services, equipment and supplies needed, diet, health goals, and the plan if these health goals are reached. A comprehensive care plan should be in place within 14 days of admission. This care plan should be reevaluated every 90 days, and also with any significant changes.

Dignity/Respect
Residents have the right to be treated with dignity and respect. As long as it fits the care plan, they have the right to make their own schedule, including when to go to bed, rise in the morning, and eat meals. They have the right to choose which activities to enjoy.

Abuse/Neglect
Each resident has the right to be free from verbal, sexual, physical and mental abuse, and forced isolation. If someone feels that they have been abused or that their needs have not been met, that should be reported to the nursing home, the family, and the local Seniors and Disabled agency. (In Lane County, Senior & Disabled Services can be contacted at 682-4038).

Residents have the right to be free from restraints unless they are necessary to treat medical symptoms. Physical or chemical restraints should not be used for disciplining or or the convenience of staff.

Attorneys should be aware that, although they are generally not mandatory reporters under The Elderly and Disabled Person Abuse Act, ORS 124.050 et seq ., reporting obligations may arise under ORS 441.640. Under that statute, any "public or private official" must report abuse of a long-term care facility resident. The definition of "public or private official" includes legal counsel for the resident or for the guardian or family member of the resident. ORS 441.630(6)(h).

Admission
Residents have the right to be informed in writing about services and fees before moving into the nursing home. The nursing home cannot change the initial fee as a condition of admission if the care is paid by Medicare or Medicaid.

Financial Rights
Residents have the right to manage their own money or to choose someone to do that for them. If they choose to allow the nursing home to manage their money, any amount over $50 should be placed in an interest-bearing account, and the nursing home should provide quarterly statements.

Right to Privacy
Each resident has the right to privacy, which includes the right to use a telephone and talk privately. Residents have the right to have visitors at reasonable hours and to have family see them at any time, if they wish to see them.

Freedom from Retaliation
Residents have the right to make a complaint to the staff of the nursing home or to the state without fear of punishment.

Discharge
A resident cannot be forced to leave a nursing home unless: (a) it is necessary for their health and safety or the health and safety of others, (b) the nursing home can no longer meet the person's medical needs, (c) the resident's health has improved so much that nursing home care is no longer necessary, (d) the nursing home has not been paid for the care, or (e) the nursing home closes. Except in emergencies, the resident should be given 30 days written notice of a nursing home's plan to discharge the individual. A nursing home cannot make a resident leave if they are waiting to get Medicaid.

Nursing Home and Assisted Living Rights

Recent Developments

Nursing Home Residents' Rights Week

Nursing Home and Assisted Living Rights

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