It is important to realize that changes may occur in this area of law. This information is not intended to be legal advice regarding your particular problem, and it is not intended to replace the work of an attorney.
You may be considering nursing home care for someone in your family. Or, because of a sudden health crisis, someone you love may unexpectedly be in the care of a nursing facility. In either case, there are things you and that person should know to help protect his or her safety, health and well-being.
Both federal and state laws protect the rights of vulnerable people when they are in nursing facilities that accept Medicare or Medicaid payments.
Nursing facilities require new residents to enter into a written contract for care. Family and nursing home residents should know that a nursing home contract is not likely to contain an acknowledgment of all of the rights the resident and resident’s family have. The contract may try to get you to give up certain rights, or take on certain responsibilities you have no duty to take on. It may even contain terms that violate state or federal laws.
Nursing homes cannot require a third party to guarantee payment as a condition for resident admission or continuation of stay. Someone who signs a contract as a “responsible party,” however, may be signing on not only to be a contact in case of emergency, but also as the one who will assume full financial responsibility for the resident’s expenses at the facility. If you have signed an admission contract on behalf of someone else, you should obtain legal advice about your rights.
Nursing facilities may not restrict the visiting hours of family and relatives, so long as the resident consents to the visits. The facility can require that the visits take place in a location where they won’t disturb other residents who are sleeping or who are receiving care or treatment. Even non-family members can be subjected only to reasonable restrictions on visits, again in consideration of the rights of other residents.
A nursing facility cannot evict residents just because it doesn’t like them.
A nursing home resident has the following rights:
- the right to be fully informed — by word and in writing — of the policies and procedures that protect the person’s other rights;
- all of the rights of citizenship the person has in the United States;
- the right to know all of the services available at the facility, including whether it is certified for Medicare or Medicaid residents, and the right to assistance in applying for those benefits;
- the right to be fully informed about the person’s own health condition;
- the right to choose one’s own physician;
- the right to refuse medication, treatment or care;
- the right not to be forced to perform therapeutic activities;
- the right to be free from punishment and involuntary isolation;
- the right to be free from verbal, physical, sexual and mental abuse;
- the right to be free from chemical or physical restraints except on a doctor’s order and as a last resort for the person’s safety;
- the right not to be transferred or discharged without good cause, advance notice, a discharge or transfer plan, and the right to a hearing to stop the proposed change;
- the right not to be sent to a new room without a good reason, advance notice and sufficient preparation;
- the right to make suggestions and complaints and to have the staff act promptly in response, and the right to be free from retaliation of any kind for making complaints or suggestions;
- the right to be treated with courtesy and respect;
- the right to privacy when receiving treatment or personal care;
- the right to get and send mail and to make and receive phone calls without anyone else’s interfering;
- the right to associate with anyone the resident chooses, in private if the resident requests privacy;
- the right to keep medical and personal records confidential (except as needed to evaluate the facility and follow up on complaints about your care);
- the right to inspect the person’s own records, and the right to purchase copies of all records;
- the right to participate in any social, religious or community activity the person chooses;
- the right to keep and use personal clothing and belongings, as space permits, and to have lockable storage space for personal belongings;
- the right to be reimbursed for belongings lost or stolen by facility employees;
- the right not to sign any contract or agreement that claims the person agrees to give up any of these rights.
Anyone who has concerns or complaints about the treatment of a person in a nursing home can contact the Oregon Office of the Long Term Care Ombudsman, at (503) 378-6533 or toll free at (800) 522-2602. Concerns about the resident’s treatment and safety also can go to local Area Agencies on Aging or to the statewide elder abuse hotline at (800) 232-3020.
To learn more about the terms of a contract that a nursing home wants you to sign — either for yourself or a family member — it is important to have the advice of an attorney before you sign the contract. Once the contract is signed, in most cases the signor is bound by the terms. An attorney knowledgeable about nursing home law can explain the provisions of the contract, determine whether those provisions seem lawful, and help resolve any questions and problems the contract presents.
Legal editor: Janay Haas, November 2009