Nursing home residents have a right to a dignified existence, self-determination, and communication with and access to persons and services inside and outside the facility. A facility must protect and promote the rights of each resident. The rights of nursing home residents are protected under federal law and State law. Federal law protects and promotes the rights of Medicare beneficiaries at 42 U.S. Code § 1395i, and Medicaid beneficiaries at 42 U.S. Code § 1396r. Federal regulations outlining quality of care and resident rights appear at 42 C.F.R. § 483.1 through 42 C.F.R. § 483.75. Rights under Georgia law are codified at O.C.G.A. § 31-8-100 et seq. (the Bill of Rights for Residents of Long-term Care Facilities). The most comprehensive statement concerning resident quality of care appears at 42 C.F.R. § 483.25. There, federal regulations provide: Each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care. Notice the regulations require facilities to provide necessary care by use of the word “must” – good care is not optional. Other basic rights include the following:
Dignified Existence. 42 C.F.R. § 483.10(a)
The resident has a right to a dignified existence, self-determination, and communication with and access to persons and services inside and outside the facility. A facility must protect and promote the rights of each resident, including each of the following rights:
(a) Exercise of rights. (1) The resident has the right to exercise his or her rights as a resident of the facility and as a citizen or resident of the United States.
(2) The resident has the right to be free of interference, coercion, discrimination, and reprisal from the facility in exercising his or her rights.
(3) In the case of a resident adjudged incompetent under the laws of a State by a court of competent jurisdiction, the rights of the resident are exercised by the person appointed under State law to act on the resident’s behalf.
(4) In the case of a resident who has not been adjudged incompetent by the State court, any legal-surrogate designated in accordance with State law may exercise the resident’s rights to the extent provided by State law.
Right to Records. 42 C.F.R. § 483.10(b)(2)
(2) The resident or his or her legal representative has the right—
(i) Upon an oral or written request, to access all records pertaining to himself or herself including current clinical records within 24 hours (excluding weekends and holidays); and
(ii) After receipt of his or her records for inspection, to purchase at a cost not to exceed the community standard photocopies of the records or any portions of them upon request and 2 working days advance notice to the facility.
Fully informed of condition. 42 C.F.R. § 483.10(b)(3)
The resident has the right to be fully informed in language that he or she can understand of his or her total health status, including but not limited to, his or her medical condition.
42 C.F.R. § 483.10(d) provides:
The resident has the right to—
(1) Choose a personal attending physician;
(2) Be fully informed in advance about care and treatment and of any changes in that care or treatment that may affect the resident’s well-being; and
(3) Unless adjudged incompetent or otherwise found to be incapacitated under the laws of the State, participate in planning care and treatment or changes in care and treatment.
Refuse treatment. 42 C.F.R. § 483.10(b)(4)
The resident has the right to refuse treatment, to refuse to participate in experimental research, and to formulate an advance directive as specified in paragraph (8) of this section.
Rights relating to Medicaid benefits. 42 C.F.R. § 483.10(b)(5)
The facility must—
(i) Inform each resident who is entitled to Medicaid benefits, in writing, at the time of admission to the nursing facility or, when the resident becomes eligible for Medicaid of—
(A) The items and services that are included in nursing facility services under the State plan and for which the resident may not be charged;
(B) Those other items and services that the facility offers and for which the resident may be charged, and the amount of charges for those services; and
(ii) Inform each resident when changes are made to the items and services specified in paragraphs (5)(i) (A) and (B) of this section.
42 C.F.R. § 483.10(b)(7)(ii) provides: The facility must furnish a written description of legal rights which includes—A description of the requirements and procedures for establishing eligibility for Medicaid, including the right to request an assessment under section 1924(c) which determines the extent of a couple’s non-exempt resources at the time of institutionalization and attributes to the community spouse an equitable share of resources which cannot be considered available for payment toward the cost of the institutionalized spouse’s medical care in his or her process of spending down to Medicaid eligibility levels.
42 C.F.R. § 483.10(b)(10) provides: The facility must prominently display in the facility written information, and provide to residents and applicants for admission oral and written information about how to apply for and use Medicare and Medicaid benefits, and how to receive refunds for previous payments covered by such benefits.
42 C.F.R. § 483.10(c)(8) provides that during a Medicare or Medicaid covered stay, the facility may not charge the resident for basic services listed in that regulation. Those services include nursing services, dietary services, activities, room/bed, routine personal hygiene items and services, and social services.
Access and visitation. 42 C.F.R. § 483.10(j)
(1) The resident has the right and the facility must provide immediate access to any resident by the following:
(i) Any representative of the Secretary;
(ii) Any representative of the State:
(iii) The resident’s individual physician;
(iv) The State long term care ombudsman (established under section 307(a)(12) of the Older Americans Act of 1965);
(v) The agency responsible for the protection and advocacy system for developmentally disabled individuals (established under part C of the Developmental Disabilities Assistance and Bill of Rights Act);
(vi) The agency responsible for the protection and advocacy system for mentally ill individuals (established under the Protection and Advocacy for Mentally Ill Individuals Act);
(vii) Subject to the resident’s right to deny or withdraw consent at any time, immediate family or other relatives of the resident; and
(viii) Subject to reasonable restrictions and the resident’s right to deny or withdraw consent at any time, others who are visiting with the consent of the resident.
(2) The facility must provide reasonable access to any 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.
(3) The facility must allow representatives of the State Ombudsman, described in paragraph (j)(1)(iv) of this section, to examine a resident’s clinical records with the permission of the resident or the resident’s legal representative, and consistent with State law.
Transfers and discharges. 42 C.F.R. § 483.12
The facility must permit each resident to remain in the facility, and not transfer or discharge the resident from the facility unless—
(i) The transfer or discharge is necessary for the resident’s welfare and the resident’s needs cannot be met in the facility;
(ii) The transfer or discharge is appropriate because the resident’s health has improved sufficiently so the resident no longer needs the services provided by the facility;
(iii) The safety of individuals in the facility is endangered;
(iv) The health of individuals in the facility would otherwise be endangered;
(v) The resident has failed, after reasonable and appropriate notice, to pay for (or to have paid under Medicare or Medicaid) a stay at the facility. For a resident who becomes eligible for Medicaid after admission to a facility, the facility may charge a resident only allowable charges under Medicaid; or
(vi) The facility ceases to operate.
[Note: The Code of Federal Regulations sections were reorganized after this memo was prepared. Updates are on EZElderLaw.com.]The rights listed above are selected based on frequently asked questions. As a nursing home resident, you have many other rights designed to protect your dignity, and promote quality care. If you have questions regarding your rights in a nursing home, please call us at (706) 428-0888 or (800) 241-8755. In the meantime, if you want additional information, you can read further at National Consumer Voice website or the Georgia Long-Term Care Ombudsman’s website.
