Your Rights in a Nursing Home
Because a person enters a nursing home and is dependent upon others to provide the care they once provided themselves, does not mean they must give up any rights of citizenship. In fact, these rights are protected under the laws of the United States and the State of Texas, and are specifically addressed in the Code of Federal Regulations (as a condition of participation in the Medicare & Medicaid programs).
A primary step toward protecting your rights is to know what they are. At Bishop Davies Nursing Center, we go above and beyond the minimum rights outlined by the Code of Federal Regulations, but want this information to be readily available to our residents, and to the general public.
The following is a brief summation of the Code of Federal Regulations by subject.
Constitutional & Legal Rights
No resident may be deprived of any rights, benefits, or privileges guaranteed by law, the Constitution of a State, or the Constitution of the United States solely on account of his status as a resident of a facility.
A resident shall be permitted to manage his own financial affairs unless he or his guardian or if the resident is a minor, authorizes the administrator of the facility in writing to manage such resident's cash. Authorizing the administrator to manage your money is not to be confused with assignment of all your financial rights by use of a legal instrument referred to as Power-of-Attorney. As a practical manner, this provision refers to the facility holding and managing your day-to-day cash needs.
As a public aid recipient, you may keep $30 of your monthly income and do whatever you want to with it. The nursing home must have your written permission to manage your money for you. If it keeps your money for safekeeping, you can take it any time you want. If the nursing home has more than $100 of your money, it must put the money in an interest earning bank account. The facility must provide you with statement of all financial transactions involving your funds at least quarterly.
A resident shall be permitted to retain and use or wear his personal property in his immediate living quarters, unless deemed medically inappropriate by a physician and so documented in the resident's clinical record. If clothing is provided to the resident by the facility, it shall be of proper fit.
The facility shall provide adequate storage space for the personal property of the resident. The facility shall provide a means of safeguarding small items of value for its residents in their rooms or in any other part of the facility so long as the residents have daily access to such valuables. The facility shall develop procedures for investigating complaints concerning theft of resident's property and shall promptly investigate all such complaints.
You Have the Right To Know About Your Condition & To Make Decisions About Your Care
A resident shall be permitted to retain the services of his own personal physician at his own expense or under an individual or group plan of health insurance, or under any public or private assistance program providing such coverage. However; the facility is not liable for the negligence of any such personal physician.
Every resident shall be permitted to obtain from his own personal physician or the physician attached to the facility complete and current information concerning his medical diagnosis, treatment and prognosis in terms and language the resident can reasonably be expected to understand.
Every resident shall be permitted to participate in the planning of his total care and medical treatment to the extent that his condition permits.
No resident shall be subject to experimental research or treatment without first obtaining his informed, written consent. The conduct of any experimental research or treatment shall be authorized and monitored by an facility review committee appointed by the administrator of the facility where such research and treatment is conducted.
Every resident shall be permitted to refuse medical treatment and to know the consequences of such action, unless such refusal would be harmful to the health & safety of others and such harm is documented by a physician in the resident's clinical record. The resident's refusal shall free the facility from the obligation to provide the treatment.
Every resident, resident’s guardian, or parent if the resident is a minor shall be permitted to inspect and copy all his clinical or other records concerning his care and maintenance kept by the facility or by his physician. The facility may charge a reasonable fee for duplication of a record.
Your Right To Privacy
A resident shall be permitted respect and privacy in his medical and personal care program. Every resident's case discussion, consultation, examination and treatment shall be confidential and shall be conducted discreetly, and those persons not directly involved in the resident's care must have his permission to be present.
You have the right to see visitors privately and to make private telephone calls. Your mail should not be opened. Nursing home staff members should knock (except in an emergency) and request permission to enter before coming into your room.
Communications – Visits – Married Residents
Every resident shall be permitted unimpeded, private and uncensored communication of his choice by mail, public telephone or visitation.
The administrator shall ensure that correspondence is conveniently received and mailed, and that telephones are reasonably accessible.
The administrator shall ensure that residents may have private visits at any reasonable hour unless such visits are not medically advisable for the resident as documented in the resident's clinical record by the resident's physician.
The administrator shall ensure that residents have unimpeded, private, and uncensored communication by mail, public telephone. Visitation may be reasonably restricted by a physician only in order to protect the resident or others from harm, harassment or intimidation; provided that the reason for any such restriction is placed in the resident's clinical record by the physician and that notice of such restriction shall be given to the resident.
However, all letters addressed by a resident to the Governor, members of the General Assembly, Attorney General, Judges, State's Attorneys, officers of the Department of Public Health, attorneys-at-law shall be forwarded at once to the persons to whom they are addressed without examination by facility personnel. Letters in reply from officials and attorneys mentioned above shall be delivered to the recipient without examination by facility personnel.
The administrator shall ensure that married residents residing in the same facility be allowed to reside in the same room within the facility unless there is no room available in the facility or it is deemed medically inadvisable by the resident's attending physician and so documented in the resident's medical records.
A resident shall be permitted the free exercise of religion. Upon a resident's request, and if necessary at his expense, the administrator shall make arrangements for a resident's attendance at religious services of the resident's choice. However, no religious beliefs or practices, or attendance at religious services, may be imposed upon any resident.
Access – Inspections
Any employee or agent of a public agency, any representative of a community legal services program or any other member of the general public shall be permitted access at reasonable hours to any individual resident of any facility, but only if there is neither a commercial purpose nor effect to such access and if the purpose is to do any of the following:
- Visit, talk with and make personal, social and legal services available to all residents;
- Inform residents of their rights and entitlements and their corresponding obligations, under federal and state laws, by means of educational materials and discussions in groups and with individual residents;
- Assist residents in asserting their legal rights regarding claims for public assistance, medical assistance and social security benefits, as well as in all other matters in which residents are aggrieved. Assistance may include counseling and litigation; or
- Engage in other methods of asserting, advising and representing residents so as to extend to them full enjoyment of their rights.
All persons entering a facility under this section shall promptly notify appropriate facility personnel of their presence. They shall, upon request, produce identification to establish their identity. No such person shall enter the immediate living area of any resident without first identifying himself and then receiving permission from the resident to enter. The rights of other residents in the room shall be respected. A resident may terminate at any time a visit by a person having access to the resident's living area under this section.
This section shall not limit the power of the Department of Public Health or other public agency otherwise permitted or required by law to enter and inspect a facility.
The administrator of a facility may refuse access to the facility to any person if the presence of that person in the facility would be injurious to the health and safety of a resident or would threaten the security of the property of a resident or the facility, or if the person seeks access to the facility for commercial purposes.
Discharges & Bedholds
If a resident decides he wants to be discharged AMA (Against Medical Advice), a resident may be discharged from a facility after he gives the administrator, a physician, or a nurse of the facility written notice of his desire to be discharged. If a guardian has been appointed for a resident or if the resident is a minor, the resident shall be discharged upon written consent of his guardian or if the resident is a minor, his parents unless there is a court order to the contrary. In such cases, upon the resident's discharge, the facility is relieved from any responsibility for the resident's care, safety or well-being.
A Nursing Home Can Not Discharge or Transfer You Against Your Will, unless:
- Your welfare and needs cannot be met in the facility, as documented in your medical record by your physician;
- Your health has improved sufficiently so you no longer need the services provided by the facility, as documented in your clinical record by your physician;
- You endanger other individuals in the facility;
- The health of individuals in the facility would otherwise be endangered, as documented in your clinical record by your physician;
- You have failed, after reasonable and appropriate notice, to pay for your stay in the facility;
- The facility ceases to operate.
Involuntary discharges are appealable. Before you can be involuntarily discharged, the facility must present you or your authorized representative with the following:
- "Notice of Involuntary Transfer or Discharge" form;
- "Request for Hearing" form
If you think you should not have to leave the facility, you may file a request for a hearing with the Department of Public Health within ten ( 10 ) days after receiving the notice of intent to involuntarily discharge. If you request a hearing, it will be held not later than ten ( 10 ) days after your request, and you generally will not be transferred/discharged during that time.
If the decision following the hearing is not in your favor, you generally will not be discharged/transferred prior to the expiration of 30 days following your receipt of the original notice of discharge.
Public Aide recipients: ( "Bedhold" ) If you go into the hospital, the nursing home must save a space for you for at least 10 days. If you are in the hospital longer than that, the nursing home must still take you back unless all of its beds are full. If that happens, the nursing home must let you come back as soon as a bed becomes available.
Grievances – You Have A Right To Complain
A resident shall be permitted to present grievances on behalf of himself or others to the administrator, the resident's council, the Long Term Care Facility Advisory Board, state governmental agencies or other persons without threat of discharge or reprisal in any form or manner.
If you have a problem with your nursing home, you have the right to complain. If you have reported your problem or complaint to a nurse or other staff member and the situation has not been corrected, contact the administrator directly. In the overwhelming majority of cases, your questions/concerns can be addressed by the facility's administrator. If the administrator is unable or unwilling to assist you, contact the facility's management company or owner. If you cannot solve your problem yourself or with the help of your resident's council, you can ask for help from the state. Consider contacting a public health regional office or state ombudsman for assistance.
This protocol is efficient and least disruptive to the facility's residents, other family members and staff. Our goal should be to address and fix the problem without disrupting the care & services being provided our elders.
Regulation: The administrator shall provide all residents or their representatives with the name, address, and telephone number of the appropriate sate governmental office where complaints may be lodged. Contact information for the Department of Public Health and Ombudsman must be conspicuously posted in the facility