What Are Nursing Home Resident Rights?
Understand your rights if you live in a long-term care facility
on October 31, 2022
Residents of nursing homes have legal rights guaranteed by both state and federal laws.
If you or a loved one resides in a nursing home, it’s essential to be aware of residents’ rights and what to do when these rights are violated.
Violation of nursing home resident rights can “occur in a variety of ways,” says Indiana personal injury attorney Ashley N. Hadler.
As a nursing home abuse lawyer, Hadler “handles typical physical injuries such as falls or choking [as well as] more medically complex issues like medication administration errors or other decisions by a medical provider.”
“Unfortunately, you also see a lot of acts of physical and sexual abuse in nursing homes, [perpetrated] either by an employee of the facility, another resident, or a guest of another resident.”
This article will explain the sources of nursing home resident rights, what those rights are, and how to know when the rights are being violated.
Sources of Nursing Home Resident Rights
In response to studies concluding nursing home residents were frequently abused or neglected, Congress passed the Nursing Home Reform Act (NHRA) in 1987.
- Aims to “promote and protect the rights of each resident” in a nursing home
- Requires nursing homes to “promote maintenance or enhancement of the quality of life of each resident” through quality care
To enact these goals, the NHRA created a bill of rights for nursing home residents and established national standards for long-term care facilities.
The NHRA applies to any nursing home that receives reimbursement through Medicare or Medicaid. The nursing home must comply with the NHRA’s regulations to receive federal funding.
Several states have incorporated the NHRA’s rights and regulations into their own state laws. For states that have, compliance is required regardless of whether the facility receives federal funding through Medicare or Medicaid.
Enforcement of Nursing Home Resident Rights
Enforcement of nursing home resident rights happens in a couple of basic ways:
- Oversight by federal or state agencies
- Lawsuits brought by residents to enforce their rights
Oversight by State or Federal Agencies
“There are a few different ways that nursing homes are monitored,” says Hadler.
“The first [method] depends on whether [the nursing home] accepts reimbursement from Medicare or Medicaid. If they do, they are subject to federal regulations and oversight by the Department of Health and Human Services (HHS) or the Centers for Medicare & Medicaid Services (CMS) to make sure they’re compliant with federal laws,” she says.
“If they accept Medicaid, they’re also subject to regulation by their state, which the state’s department of health usually oversees.”
“On an annual basis, the department of health will inspect the facility to ensure it’s in compliance. If the facility is not, it may receive a citation or a monetary fine and be subject to reinspection within a certain amount of time,” Hadler says.
“In addition to that, a resident can request a report at any time through their state department of health, asking that an investigation take place as to their specific complaint,” she says.
“Many states have other programs, such as an ombudsman program or an adult protective services division, that may also become involved in an investigation if something happens,” says Hadler.
On the ground, it’s vital for nursing home residents to know how to contact their state survey agency or ombudsman programs for help when there is a problem. Being able to contact help means rights can be enforced.
In addition to filing complaints about mistreatment with state agencies, nursing home residents may sometimes need legal representation. Finding an attorney in your area with experience in the laws regulating nursing homes is essential. You can find an experienced attorney by visiting the Super Lawyers directory.
Lawsuits To Enforce Rights
It’s crucial for nursing home rights to be guaranteed by law. However, the law is only as good as its enforcement.
The issue of enforcement is “a really interesting question right now [due to] a case pending before the U.S. Supreme Court called Health and Hospital Corporation of Marion County, Indiana v. Talevski,” says Hadler.
“It’s an Indiana court case [in which] the Justices will be deciding whether nursing home residents have a private right of action under [the NHRA],” explains Hadler.
“Currently, in many states, you are able to bring a federal cause of action [for violations of the NHRA] as well as any protections you have under state law, but that could change in some ways based on what the court decides in that case,” she says.
“Several federal circuits have decided that individuals do have the right to bring a federal action under NHRA, but now it’s before the Supreme Court for the first time. The decision [the Justices] make will apply to all federal circuits and all states.”
Nursing Home Resident Rights
Under the NHRA and various state laws, nursing home residents have the following rights:
- To be treated with dignity and respect
- To be free from abuse and neglect
- To receive appropriate care and reasonable accommodations for medical needs
- To see or have contact with family members, legal representatives, or ombudspersons
- To have self-determination in:
- Managing their own financial affairs
- Choosing who their physician or healthcare provider will be
- Choosing their plan of care
- Creating advanced directives
- To be fully informed. Residents must receive information in a language they understand (including sign language and braille). Residents should be informed of the following:
- Their rights as residents
- Nursing home rules and regulations
- Changes in their health status and housing
- Contact information for their state’s long-term care ombudsman program (LTCO) or state survey agency
- Findings of state survey agency investigations and their nursing home’s plan of correction
- Right to privacy and confidentiality, which is limited only to the extent that the rights of other individuals are involved:
- Their medical records
- Treatment of personal needs or medical conditions
- Financial matters
- To present grievances and have them addressed without fear of reprisal
- To participate in community activities and their nursing facility’s resident council
- To be free of both physical restraints and chemical restraints
- To remain in the nursing home facility unless:
- They no longer need nursing home care
- A discharge or transfer would be in their best interests or the best interests of other residents
Questions for a Nursing Home Attorney
If you or a loved one is a nursing home resident and you think your rights have been violated, consider speaking with a nursing home abuse lawyer.
Many lawyers provide free consultations for potential clients. These meetings let you get legal advice and decide if the attorney or law firm meets your needs.
To get the most out of a consultation, ask informed questions such as:
- What are your attorney’s fees and billing options?
- What are my rights under state law?
- How do I report abuse or neglect?
- Do I have a legal claim against the nursing home?
- What is the process of filing a lawsuit?
- Are there alternatives to litigation?
- What damages could I get in a lawsuit?
Once you have met with a lawyer and gotten your questions answered, you can begin an attorney-client relationship.
Look for a nursing home attorney in the Super Lawyers directory for legal help as a nursing home resident.