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| Feature
Article |
Guide to
Nursing Home
Residents' Rights
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In 1998 in Texas alone, more than 200
nursing home facilities were sanctioned for jeopardizing the health and
safety of their residents. |
The Problem.
More than 1.5 million elderly and disabled Americans reside in more than
16,000 nursing homes across this country. Despite the fact that by
law, these nursing homes must take steps to attain or maintain the
"highest practicable physical, mental, and psychosocial well-being of
each resident," too many of these residents are the victims of
neglect or abuse by these facilities and/or their employees. In
fact, in 1998 in Texas alone, more than 200 nursing home facilities were
sanctioned for jeopardizing the health and safety of their residents,
according to the Texas Department of Human Services. Despite
increased regulatory oversight of the nation's nursing homes, it is safe
to assume that many violations posing threats to the health and safety of
the residents go unreported. According to Jim
Lehrman, Associate Commissioner for Long Term Care for the TDH,
"we cannot be in every facility 24 hours a day so we are only one
part of the safety net." Therefore, family members with loved
ones who are residents of nursing homes must never take the
resident's care for granted and assume adequate protections are in place.
The nursing home resident's only protection may be the family member's
diligence in reporting any perceived problems.
The Law.
Residents of nursing homes are guaranteed certain rights under both
federal and state law. Nursing homes must meet residents' rights
requirements in order to receive Medicare and Medicaid funding.
Because the government inspectors cannot be everywhere at all times, it is
up to others, such as the families of residents, with the help of private
attorneys and advocacy groups, to guarantee that the following rights of
nursing home residents and the elderly are protected.
Each and every nursing home resident in Texas has the following
rights: |
- to be provided services to see that the
resident attains or maintains the highest practicable physical,
mental, and psychosocial well-being;
- to be free from abuse and exploitation;
- to safe, decent, and clean conditions;
- to be treated with courtesy,
consideration, and respect;
- to not be subjected to discrimination
based on age, race, religion, sex, nationality, or disability and to
practice the resident's own religious beliefs;
- to privacy, including privacy during
visits and telephone calls;
- to complain about the institution and to
organize or participate in any program that presents residents '
concerns to the administrator of the institution;
- to have information about the resident
in the possession of the institution maintained as confidential;
- to retain the services of a physician
the resident chooses, at the resident's own expense or through a
health care plan, and to have a physician explain to the resident, in
language that the resident understands, the resident's complete
medical condition, the recommended treatment, and the expected results
of the treatment;
- to participate in developing a plan of
care, to refuse treatment, and to refuse to participate in
experimental research;
- to a written statement or admission
agreement describing the services provided by the institution and the
related charges;
- to manage the resident's own finances or
to delegate that responsibility to another person;
- to access money and property that the
resident has deposited with the institution and to an accounting of
the resident's money and property that are deposited with the
institution and of all financial transactions made with or on behalf
of the resident;
- to keep and use personal property,
secure from theft or loss;
- to not be relocated within the
institution, except in accordance with nursing home regulations;
- to receive visitors;
- to receive unopened mail and to receive
assistance in reading or writing correspondence;
- to participate in activities inside and
outside the institution;
- to wear the resident's own clothes;
- to discharge himself or herself from the
institution unless the resident is an adjudicated mental incompetent;
- to not be discharged from the
institution except as provided in nursing home regulations; and,
- to be free from any physical or chemical
restraints imposed for the purposes of discipline or convenience, and
not required to treat the resident's medical symptoms.
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The foregoing rights may only
be restricted to the extent necessary to protect a right of another
resident (particularly a right relating to privacy and
confidentiality) or to protect the resident or another person from
danger or harm.
ADDITIONAL
RIGHTS OF THE ELDERLY
In addition to the foregoing
rights, elderly individuals are guaranteed the following rights
under Texas law:
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- An elderly individual has all the rights,
benefits, responsibilities, and privileges granted by the
constitution and laws of this state and the United States,
except where lawfully restricted. The elderly individual has the
right to be free of interference, coercion, discrimination, and
reprisal in exercising these civil rights.
- An elderly individual has the right to be
treated with dignity and respect for the personal integrity of
the individual, without regard to race, religion, national
origin, sex, age, disability, marital status, or source of
payment. This means that the elderly individual:
(1) has the right to make the individual's
own choices regarding the individual's personal affairs, care,
benefits, and services;
(2) has the right to be free from abuse,
neglect, and exploitation; and
(3) if protective measures are required,
has the right to designate a guardian or representative to
ensure the right to quality stewardship of the individual's
affairs.
- An elderly individual has the right to be
free from physical and mental abuse, including corporal
punishment or physical or chemical restraints that are
administered for the purpose of discipline or convenience and
not required to treat the individual's medical symptoms. A
person providing services may use physical or chemical
restraints only if the use is authorized in writing by a
physician or the use is necessary in an emergency to protect the
elderly individual or others from injury. A physician's written
authorization for the use of restraints must specify the
circumstances under which the restraints may be used and the
duration for which the restraints may be used. Except in an
emergency, restraints may only be administered by qualified
medical personnel.
- A mentally retarded elderly individual with
a court-appointed guardian of the person may participate in a
behavior modification program involving use of restraints or
adverse stimuli only with the informed consent of the guardian.
- An elderly individual may not be prohibited
from communicating in the individual's native language with
other individuals or employees for the purpose of acquiring or
providing any type of treatment, care, or services.
- An elderly individual may complain about
the individual's care or treatment. The complaint may be made
anonymously or communicated by a person designated by the
elderly individual. The person providing service shall promptly
respond to resolve the complaint. The person providing services
may not discriminate or take other punitive action against an
elderly individual who makes a complaint.
- An elderly individual is entitled to
privacy while attending to personal needs and a private place
for receiving visitors or associating with other individuals
unless providing privacy would infringe on the rights of other
individuals. This right applies to medical treatment, written
communications, telephone conversations, meeting with family,
and access to resident councils. An elderly person may send and
receive unopened mail, and the person providing services shall
ensure that the individual's mail is sent and delivered
promptly. If an elderly individual is married and the spouse is
receiving similar services, the couple may share a room.
- An elderly individual may participate in
activities of social, religious, or community groups unless the
participation interferes with the rights of other persons.
- An elderly individual may manage the
individual's personal financial affairs. The elderly individual
may authorize in writing another person to manage the
individual's money. The elderly individual may choose the manner
in which the individual's money is managed, including a money
management program, a representative payee program, a financial
power of attorney, a trust, or a similar method, and the
individual may choose the least restrictive of these methods. A
person designated to manage an elderly individual 's money shall
do so in accordance with each applicable program policy, law, or
rule. On request of the elderly individual or the individual's
representative, the person designated to manage the elderly
individual's money shall make available the related financial
records and provide an accounting of the money. An elderly
individual's designation of another person to manage the
individual's money does not affect the individual's ability to
exercise another right described by law. If an elderly
individual is unable to designate another person to manage the
individual's affairs and a guardian is designated by a court,
the guardian shall manage the individual's money in accordance
with the Probate Code and other applicable laws.
- An elderly individual is entitled to access
to the individual's personal and clinical records. These records
are confidential and may not be released without the elderly
individual's consent, except the records may be released:
(1) to another person providing services
at the time the elderly individual is transferred; or
(2) if the release is required by
another law.
- A person providing services shall fully
inform an elderly individual, in language that the individual
can understand, of the individual's total medical condition and
shall notify the individual whenever there is a significant
change in the person's medical condition.
- An elderly individual may choose and retain
a personal physician and is entitled to be fully informed in
advance about treatment or care that may affect the his or her
well-being.
- An elderly individual may participate in an
individual plan of care that describes the individual's medical,
nursing, and psychological needs and how the needs will be met.
- An elderly individual may refuse medical
treatment after the elderly individual:
(1) is advised by the person providing
services of the possible consequences of refusing treatment;
and
(2) acknowledges that the individual
clearly understands the consequences of refusing treatment.
- An elderly individual may retain and use
personal possessions, including clothing and furnishings, as
space permits. The number of personal possessions may be limited
for the health and safety of other individuals.
- An elderly individual may refuse to perform
services for the person providing services.
- Not later than the 30th day after the date
the elderly individual is admitted for service, a person
providing services shall inform the individual:
(1) whether the individual is entitled
to benefits under Medicare or Medicaid; and
(2) which items and services are covered
by these benefits, including items or services for which the
elderly individual may not be charged.
- A person providing services may not
transfer or discharge an elderly individual unless:
(1) the transfer is for the elderly
individual's welfare, and the individual's needs cannot be met
by the person providing services;
(2) the elderly individual's health is
improved sufficiently so that services are no longer needed;
(3) the elderly individual's health and
safety or the health and safety of another individual would be
endangered if the transfer or discharge was not made;
(4) the person providing services ceases
to operate or to participate in the program that reimburses
the person providing services for the elderly individual's
treatment or care; or
(5) the elderly individual fails, after
reasonable and appropriate notices, to pay for services.
- Except in an emergency, a person providing
services may not transfer or discharge an elderly individual
from a residential facility until the 30th day after the date
the person providing services provides written notice to the
elderly individual, the individual's legal representative, or a
member of the individual's family stating:
(1) that the person providing services
intends to transfer or to discharge the elderly individual;
(2) the reason for the transfer or
discharge;
(3) the effective date of the transfer
or discharge;
(4) if the individual is to be
transferred, the location to which the individual will be
transferred; and
(5) the individual's right to appeal the
action and the person to whom the appeal should be directed.
- An elderly individual may:
(1) make a living will by executing a
directive under the Natural Death Act (Chapter 672, Health and
Safety Code);
(2) execute a durable power of attorney
for health care under Chapter 135, Civil Practice and Remedies
Code; or
(3) designate a guardian in advance of
need to make decisions regarding the individual's health care
should the individual become incapacitated.
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