Nursing Home, Elder Abuse The Nursing Home Reform Act and Residents' Rights

  1. Senior citizens living in nursing homes require health care assistance and are more vulnerable to abuse than the average person. The elderly are less able to defend themselves because of their aging physical and mental capabilities. As a result, the Nursing Home Reform Act (part of the Omnibus Budget Reconciliation Act of 1987) established rights for nursing home residents and standards of quality for nursing homes. It also helps protect the elderly against nursing home abuse.

    Rights Under the Nursing Home Reform Act


    A full list of resident rights can be found in 42 C.F.R. § 483.10, some of which include:
    • Privacy rights
    • Freedom from abuse, neglect and other mistreatment
    • Freedom from physical restraints
    • Being provided appropriate medical, physical, mental (psychological) and social accommodations
    • The ability to voice complaints without discrimination or retaliation
    • The ability to review one’s own care plan and receiving complete information, in advance, regarding any changes in the care, treatment or status in the nursing home
    The Act also requires that nursing homes which receive funding for Medicare or Medicaid be certified and required to meet a specific set of criteria that addresses the reasonable needs of each resident. Every nursing home must assess the needs, interests and abilities of a resident within 14 days of being admitted to a facility. Medicare residents require an initial assessment within 7 days of admission. Additional assessments should be made at least once per year or if the condition of a resident changes with some degree of significance. An initial care plan should be completed within 7 days after a final assessment and detail what tasks are required, the people who will perform them as well as any applicable completion dates. The failure of a nursing home to comply with the NHRA requirements and regulations can result in specified penalties.

    What types of records are nursing homes required to keep?


    There is federal and state legislation that requires nursing homes to keep records of the care provided to residents. This also includes any assessments made and plans to provide care.

    How should the property and finances of nursing home residents be managed?


    It is usually advisable to have an immediate family member (or guardian) assist a nursing home resident with his or her finances. State law requires that nursing homes place money belonging to residents (in excess of $50 and $100 for Medicare residents) in an interest bearing account and keep accurate accounting records. Money used to pay for care is deposited into a resident account and not directly with the nursing home.

    What privacy rights to nursing home residents have?


    Medical records of residents may be protected by law such as HIPAA (Health Insurance Portability and Accountability Act of 1996) as well as the Nursing Home Reform Act of 1987. A nursing home should respect the resident’s individual right of privacy for matters such as visits by family and friends, personal phone calls and religious observance. It may also be useful to review all facility policies which will spell out the rights to which all residents are entitled and not covered by law.

    Can a nursing home restrict visitors and enforce visiting hours?


    Generally nursing homes are permitted to practice what would be in the best interests of the residents, which would equate to the establishment of reasonable visiting hours. Residents generally have the right to allow or refuse visits from family members or other persons. When a nursing home resident becomes unable to reasonably make decisions, a member of the immediately family may assist although establishing a guardianship is frequently required.

    Can a nursing home remove a resident?


    Federal law, such as the NHRA, requires that before a resident can be removed from a nursing home the resident must receive (i) at least 30 days prior written notice, and (ii) an assessment with an acceptable discharge plan. A reason must be given by the nursing home for the termination of the resident’s removal and termination of services. An arbitrary decision is unacceptable. Reasons may include:
    • Closure of the nursing home
    • The nursing home is unable to provide acceptable or appropriate care for the resident
    • The health of the resident has improved and care is no longer necessary
    • Inability of the resident to afford care (the nursing home cannot remove a resident who is awaiting Medicaid eligibility)
    • The nursing home is not meeting health and safety standards and may place people at risk

    Can nursing home residents move to another nursing home?


    Nursing home residents who have the capacity to make decisions may move to another facility. While immediate family should probably be consulted in the event the resident lacks the capacity to make such a choice, a guardianship may be required in order to make substantial changes in the resident’s care such as moving the resident to another nursing home.

    Michael M. Wechsler

    Michael M. Wechsler
    Michael M. Wechsler is an experienced attorney, founder of TheLaw.com and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at Zedge.net and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.

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