The Center for Medicare and Medicaid Services has recently reported that approximately thirty percent of nursing home residents are being medicated with anti-psychotic drugs to control their conduct and behavior. While the issues relevant to behavior are more prevalent in residents with cognitive impairment, these reports reinforce the need for attorneys, families and friends to know, understand and effectively advocate nursing home residents’ rights.
The 1987 Nursing Home Reform Act (“NHRA”), part of the Omnibus Budget Reconciliation Act of 1987 (“OBRA”), established quality standards for nursing homes nationwide and defined the state survey and certification process to enforce the standards. These regulations represent minimum standards for long-term care facilities.
One of OBRA’s main objectives is to promote and enhance the quality of life of the resident, ensuring long-term care facilities provide services and activities to maintain his or her highest practicable, physical, mental and psycho social wellbeing in accordance with a written plan of care. OBRA established that resident and advocate participation is a criterion for assessing the facility’s compliance with administrator requirements. It also guarantees access to the State’s Long Term Care Ombudsman (a third party resident advocate) to residents and ensures that the Ombudsman has access to records, residents and care providers.
OBRA’s goals are implemented by NHRA establishing the Resident’s Bill of Rights, which includes the right to:
- Freedom from abuse, mistreatment, and neglect;
- Freedom from physical restraints;
- Privacy and to be treated with dignity;
- Accommodation of medical, physical, psychological, and social needs;
- Participate in resident and family groups;
- Exercise self-determination and communicate freely;
- Participate in the review of one’s care plan, and to be fully informed in advance about any changes in care, treatment, or change of status in the facility; and
- Voice grievances without the discrimination or reprisal.
A copy of the Bill of Rights must be conspicuously posted in the lobby of the facility. While these rights are general in nature, NHRA specifically defines the parameters of each right. For example, relative to medication, NHRA proscribes that a resident be free of unnecessary physical or chemical restraints, including anti-psychotic drugs and sedatives, except when authorized by a physician for a specified and limited period of time.
Additionally, the NHRA specifically provides that facilities must:
- Inform the resident of the name, specialty and means of contacting the physicians responsible for the residents care;
- Inform the resident, his or her guardian or interested family member of any deterioration of the resident’s health or if the physician wishes to change treatment;
- Provide the resident access to his or her medical records within one business day, and a right to copies of the records at a reasonable cost;
- Provide a written description of a resident’s rights, explaining state laws relevant to living wills, durable powers of attorney, etc., along with a copy of the facilities policy on carrying out these directives. This becomes particularly important when a facility refuses to honor the residents advance directive relevant to end-of-life decisions, the use of feeding tubes, ventilators and respirators; and
- Provide the resident their right to privacy, which extends to all aspects of care; and ensures that he or she may not be moved to a different room, different nursing home, a hospital or back home without advanced notice, and an opportunity for appeal.
The above information is valuable when dealing in a number of relevant areas:
- Abuse, including unnecessary or excessive restraints;
- Pressure sores, infections, falls and fractures;
- Adverse drug reactions and over-medication;
- Nutrition, hydration, and unintended weight loss;
- Dining and Food Service;
- Sufficiency of staff, including nursing; and
- Rehabilitative care, including physical therapy and speech therapy.
As the baby boomer generation comes of age it is an inevitable reality that a significant number of these individuals will spend some time in a nursing home. Knowledge of their rights will be of critical importance not only for their lawyers, but also for their families and friends.