RIGHTS
& LEGAL INFORMATION
With
the rise in nursing home population and projected longer life expectancies,
nursing home litigation is becoming more common in this country. No
matter how closely we investigate a facility, neglect and mistreatment
can and do occur and is often hard to uncover. The purpose of this website
is to help put a stop to this gross injustice by helping victimized
families take action. In addition to prosecuting these facilities, nursing
home abuse attorneys are doing everything they can to raise awareness
of nursing home abuse.
Federal
and State laws require that residents receive the necessary
care and services that will enable them to reach and maintain their
highest possible level of physical, mental and social well-being. In
addition, civil rights law mandates equal access in all nursing homes
regardless of race, color or national origin. Numerous federal and state
laws were developed to provide nursing home patients protection from
abuse and neglect. Additionally, patients have privacy, security and
other rights. Nursing homes that receive federal funds must comply with
federal legislation that calls for a high quality of care.
Nursing
Home Regulations
Nursing Home Resident Rights
Filing a Lawsuit Against a Nursing Home
Nursing
Home Regulations
In 1965 Medicare and Medicaid came into existence and along with it
came federal nursing home regulation. Nursing homes that qualify and
voluntarily elect Medicare and Medicaid to their facility must follow
a set of guidelines put forth by federal standards. To participate in
the Medicare and Medicaid programs, nursing homes must be in compliance
with the federal requirements for long term care facilities as prescribed
in the U.S. Code of Federal Regulations.
Under
the regulations, the nursing home must:
- Have
sufficient nursing staff
- Conduct
initially a comprehensive and accurate assessment of each resident's
functional capacity
- Develop
a comprehensive care plan for each resident
- Prevent
the deterioration of a resident's ability to bathe, dress, groom,
transfer and ambulate, toilet, eat, and to communicate
- Provide,
if a resident is unable to carry out activities of daily living, the
necessary services to maintain good nutrition, grooming, and personal
oral hygiene
- Ensure
that residents receive proper treatment and assistive devices to maintain
vision and hearing abilities
- Ensure
that residents do not develop pressure sores and, if a resident has
pressure sores, provide the necessary treatment and services to promote
healing, prevent infection, and prevent new sores from developing
- Provide
appropriate treatment and services to incontinent residents to restore
as much normal bladder functioning as possible
- Ensure
that the resident receives adequate supervision and assistive devices
to prevent accidents
- Maintain
acceptable parameters of nutritional status.
- Provide
each resident with sufficient fluid intake to maintain proper hydration
and health
- Ensure
that residents are free of any significant medication errors
- Promote
each resident's quality of life
- Maintain
dignity and respect of each resident
- Ensure
that the resident has the right to choose activities, schedules, and
health care
- Provide
pharmaceutical services to meet the needs of each resident
- Be
administered in a manner that enables it [the nursing home] to use
its resources effectively and efficiently
- Maintain
accurate, complete, and easily accessible clinical records on each
resident.
The
Health Care Finance Administration that is part of the United
States
Department of Health and Human Services enforces these nursing
home regulations. Congress authorized the first set of standards
that were
to be met by nursing facilities in 1967 and created classifications
for the Skilled Nursing Facilities and Intermediate Care
Facilities.
Both in 1980 and again in 1987, these standards were updated
with the most current nursing home regulations imposed under
the Omnibus
Budget Reconciliation Act of 1987, also called the Nursing
Home Reform Act.
OBRA
87: Omnibus Budget Reconciliation Act of 1987
- requires
that the facility provide each patient with care that will enable
the patient "to attain or maintain the highest practicable physical,
mental and psychosocial well-being."
- establishes
that quality
of life for patients is the goal. The facility
must allow patient
choice in activities, schedules and health care decisions.
- requires
that facilities provide 24-hour licensed practical nurse care seven
days a week, and have at least one RN on duty at least 8 hours per
day, seven days a week. Nurse’s aides are required to undergo
special training.
- makes
it the State's responsibility to establish, monitor and enforce state
licensing and federal standards. States are required to maintain investigatory
units and Ombudsman units, and to fund and staff them adequately.
OBRA
90: Omnibus Budget Reconciliation Act of 1990
The Patient Self-Determination Act covers all long-term care facilities
that participate in Medicare or Medicaid. At the time of admission to
a hospital or nursing home, at the time of enrollment with an HMO, Hospice,
or Home Health Care Agency, the following must happen:
- The
facility must provide the patient written information
concerning the
patient's rights under state law to participate in decisions
concerning medical care, including the right
to accept or refuse medical or surgical
treatment, and the right to formulate advance directives.
- The
facility must provide a written statement of its policy regarding
implementation of these rights.
- The
facility must document in its records whether the patient has executed
an advance directive. Note: the facility is not required to provide
advance directives to patients.
- The
facility is forbidden to discriminate in the provision of medical
care on the basis of whether a patient has or has not executed an
advance directive.
- The
facility is required to comply with all state laws regarding advance
directives.
- The
facility must provide for staff and community education on issues
related to advance directives.
Nursing
Home Resident Rights
All nursing home residents have rights protected by the Nursing
Home Reform Act and Americans with Disabilities Act.
In evaluating health care providers, you should be aware of these rights
to monitor care provided in a nursing home.
Federal
law requires a nursing home to care for its residents in a way that
promotes their quality of life. The Administration on Aging adds that
residents must be treated with respect and dignity.
Rights
of a nursing home resident under federal law include:
Access
to information
Residents have the right to:
- information
on all services available and the charges for those services
- information
on the facility's policies, procedures, rules, and regulations
- information
about how to contact their state ombudsman and licensure office and
advocacy groups
- review
the state survey reports on the facility
- daily
communication in their own language; and
- assistance
if there is sensory impairment
Participation
in care
Residents have the right to:
- receive
adequate or appropriate care
- be
informed of their medical condition and participate in treatment planning
- refuse
medication and treatment and be offered treatment alternatives
- participate
in discharge planning
- review
their medical records
Ability
to make independent choices
Residents have the right to:
- choose
their physician
- participate
in activities in the facility and community
- participate
in a residents' council
Privacy
and confidentiality
Residents have the right to:
- private
and unrestricted communication, including privacy for phone calls,
mail, and meetings with family, friends, and residents
- access
to any entity or individual that provides health, social, legal, and
other services
- confidentiality
regarding medical, personal, and financial affairs
Dignity,
respect, and freedom
Residents have the right to:
- be
free from mental and physical abuse
- be
free from physical and chemical restraints
- self-determination
- be
treated with consideration, dignity, and respect
Security
for possessions
Residents have the right to:
- manage
personal financial affairs
- file
a complaint with the state survey and agency for abuse, neglect, or
misappropriation of property
Transfers
and discharges
Residents have the right to:
- be
transferred or discharged only for medical reasons, if health or safety
is endangered, for nonpayment of services, or if the facility closes
- be
notified of transfer 30 days in advance (in most instances)
- know
the reason for transfer, the date it's effective, the location to
which the resident is discharged, and a statement of the right to
appeal
- receive
preparation from the facility to ensure a safe and orderly transfer
- and
have policies and practices upheld by the facility that are the same
for all individuals regardless of payment source
Concerns
and complaints
Residents have the right to:
- present
grievances to the staff or others without fear of reprisal
- have
grievances promptly resolved by the facility
Filing
A Lawsuit Against a Nursing Home
In response to reports of widespread neglect and abuse in nursing
homes in the 1980s, Congress enacted legislation in 1987 to
require nursing
homes participating in the Medicare and Medicaid programs to
comply with certain requirements for quality of care. This law
is included
in the Omnibus Budget Reconciliation Act of 1987 (OBRA 1987),
also known as the Nursing Home Reform Act. It specifies that
a nursing home "must
provide services and activities to attain or maintain the highest
practicable physical, mental, and psychosocial well-being of
each resident in accordance
with a written plan of care..." If these rights are violated,
that’s
when you should hire an attorney.
Hire
a Nursing Home Attorney
Many
times a lawsuit must be filed to protect the resident’s rights
and to obtain compensation for the physical or mental pain and suffering
and/or wrongful death. The action may be brought by the resident, a
guardian, or any person or organization acting on behalf of the resident
with the consent of the resident or guardian, or by the estate of a
deceased resident when the cause of death resulted from the violation
of the resident’s rights. Injury claims for elder abuse require
an attorney with experience in nursing home negligence. There are time
limitations in each state within which legal action must be taken. You
should consult an attorney to determine those time frames and to provide
guidance on how to proceed with legal action on behalf of your loved
one.
The
lawyers chosen to be part of the Nursing Home Lawyers
Network have experience in handling these types of delicate
cases. They are compassionate and talented, knowledgeable and prepared.
They have the resources to find out how your loved one’s rights
have been violated, and they are dedicated to improving the quality
of life for our elderly.
If
you have a loved one in a nursing home, make sure their rights are being
upheld. If you have reason to believe any of these rights are being
violated, an experienced nursing home negligence attorney can help you
uncover the truth.
