Nursing home residents' rights

Rights
Theoretical distinctions
Natural and legal rights Claim rights and liberty rights Negative and positive rights Individual and group rights
Human rights divisions
Three generations Civil and political Economic, social and cultural
Rights claimants
Animals · Humans Women · Men Fathers · Mothers Children · Youth · Students Indigenes · Minorities · LGBT
Other groups of rights
Authors' · Digital · Labor Linguistic · Reproductive
v · d · e

Nursing home residents' rights are the legal and moral rights of the residents of a nursing home.^[1] Legislation exists in various jurisdictions to protect such rights. An early example of a statute protecting such rights is Florida statute 400.022, enacted in 1980, and commonly known as the Residents' Rights Act.^[2]

Specific rights protected vary greatly by jurisdiction. Types of rights protected include: dignity, medical privacy, pecuniary, dietary and visitation rights. Process rights, such as right of complaint, are also sometimes protected.^[3]

Motivations for residents' rights

In the United States, concerns about poor quality care and ineffective regulation of nursing homes date back to the 1970s. Early regulation focused on the ability of nursing homes to provide care, rather than on the quality of the care provided or the experience of the individuals receiving care. In the 1980s, particularly in response to an influential Institute of Medicine (IoM) report, the US federal government moved to address these concerns by enacting more resident-focused regulations, and among these were a number of new quality-of-life rights for residents of nursing homes.^[4][5] Similar concerns over quality of care motivated people in other countries to advocate for residents' rights.^[6][7]

Australia

Advocates for residents' rights in Australia have established a Charter of Residents' Rights and Responsibilities and the Department of Health and Ageing provides an official unit to deal with complaints. In 1987, the government introduced substantial reform and regulation which included a program to monitor standards.^[8]

Canada

Nursing home residents' rights in Canada appear to have been primarily legislated at the provincial level. In Ontario, for instance,^[9] the Long Term Care Homes Act 2007 contains a "Residents' Bill of Rights", including, inter alia, the rights to be treated with courtesy and respect; to privacy in treatment; to be informed of one's medical condition and treatment; to consent to or refuse treatment; to confidentiality of medical records and treatment; to receive visitors; and, when near death, to have family members present 24 hours a day.^[10]

New Zealand

Since 1996, New Zealand has protected residents rights' (and rights of the disabled more broadly) under the Health and Disability Commissioner's Act, including rights to respect, freedom from discrimination and coercion, dignity, communication in a language the resident can understand, information and informed consent, and right of complaint.^[11][12]

United Kingdom

Residents' rights in the UK appear to have been primarily legislated at the country level. In England, for instance,^[9] the Care Quality Commission, the health and social care regulator for England, describes national minimum standards under the Care Standards Act 2000 for services in care homes, including dignity and privacy rights, dietary and pecuniary rights, and the right to complain if one is unhappy with the care provided.^[13]

United States

Residents' rights in the US are protected at both the federal and state level.

Federal law

In 1980 the Civil Rights of Institutionalized Persons Act was passed to protect the civil rights of, amongst others, residents of nursing homes and similar facilities. In 1987, amendments known collectively as the Federal Nursing Home Reform Act, including a robust section on nursing home residents' rights, were attached to an Omnibus Budget Reconciliation Act of 1987 (OBRA '87) which was then enacted into law and codified at section 483 of Volume 42 of the Code of Federal Regulations and related United States Code sections.^[14][15][16] These required nursing homes to provides facilities to ensure that residents had a high quality of life, good physical and mental activities and were able to participate in the administration of the home. Appeals to an ombudsman in case of dispute were to be facilitated.^[17] However, the act's protections may or may not not apply to some nursing home residents whose nursing homes receive only state funds, and do not participate in Medicare or Medicaid.^[18]

Some rights provided by federal law as of 2010 include rights to dignity, privacy, freedom from discrimination, freedom from restraint, to be informed of medical care and treatment, pecuniary rights, visitation, rights of complaint and protection against transfer and unfair discharge.^[19] Specific rights include: choice of physician and involvement in treatment options; a right to be admitted without a third-party guarantee as a condition of admission; freedom from improper physical or chemical restraints; freedom from abuse; right to be treated with dignity; right to reasonable accommodation; right to participate in planning care and treatment and any changes in care and treatment; right to informed consent in language patient can understand; right to refuse treatment; right of family and Ombudsman to immediately access resident and have reasonable access to facility; right to privacy, confidentiality, and visitors; a right to not be transferred unless necessary to meet residents' needs, resident no longer requires care, safety of others is endangered, resident has failed to make own payments, or facility no longer operates; right to readmission; right to appeal hearings; right to have necessary care and services for highest practicable well-being; right to have adequate number of personnel; and, various rights respecting the residents' financial matters and need for proper notice and information.^[20]

State law

In California, for instance,^[9] additional rights are protected. As of 2010, these include: a contract will not require the resident to provide advance notice of voluntary discharge; arbitration agreements may not be required as a condition of admission; an arbitration agreement may be rescinded by the resident or his or her agent within 30 days of signing it; a third party guaranty of payment may not be a condition of admission; Facility may not transfer or discharge resident for switching to Medi-Cal, or while qualification for Medi-Cal is still being determined; resident has a right to be notified in writing about discharges and transfers; resident has a right to appeal discharge and transfer decisions; resident has a right to return to a facility after a temporary stay in a hospital—to the first available bed, with Medi-Cal paying for the first seven days; resident has the right to visitors, and to privacy; and, that there shall be an adequate number of personnel on staff. ^[20][21]

There are still other protections for California residents, in part, because California incorporates federal law with respect to nursing home protections.^[22][23]

See also

Law portal

• Elder law

References

1. ^ "Nursing Home Residents' Rights", The Gerontologist 28 (6): 842–843, 1988, doi:10.1093/geront/28.6.842a, http://gerontologist.oxfordjournals.org/content/28/6/842.2.citation 
2. ^ TJ Crotts, DA Martinez (1996), "The Nursing Home Residents' Rights Act--A Good Idea Gone Bad", Stetson Law Review, http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/stet26&div=22&id=&page= 
3. ^ This paragraph summarizes material in the body; details and citations are found below. For examples of dignity and privacy rights, see #United Kingdom and #Canada. For pecuniary rights and rights of complaint, see #United States and #United Kingdom. See #Canada and #United States for rights of visitation.
4. ^ Improving the quality of care in nursing homes. Committee on Nursing Home regulation, Institute Of Medicine (U.S.). 1986. ISBN 9780309036467. http://books.google.com/books?id=S9DG-fU7lGcC&printsec=frontcover&hl=en&ei=dbdFTNz8E8L38Aa7_rDqBA&sa=X&oi=book_result&ct=book-thumbnail&resnum=1&ved=0CDQQ6wEwAA#v=onepage&q&f=false. 
5. ^ Joshua M. Wiener, Marc P. Frieman, David Brown (December 2007). "Nursing Home Care Quality: Twenty Years After the Omnibus Budget Reconciliation Act of 1987" (pdf). Kaiser Family Foundation. pp. 3–8. http://www.kff.org/medicare/upload/7717.pdf. Retrieved 2010-07-19. 
6. ^ Luciani, Tracy (1986-09-03). "Nursing-home laws a 'disgrace,' group says". Toronto Star (Canada). http://pqasb.pqarchiver.com/thestar/access/475406401.html?dids=475406401:475406401&FMT=ABS&FMTS=ABS:FT&type=current&date=Sep+03%2C+1986&author=Tracy+Luciani+Special+to+The+Star&pub=Toronto+Star&desc=Nursing-home+laws+a+%27disgrace%2C%27+group+says&pqatl=google. Retrieved 2010-07-19. "All of these homes, including the one here, are operating within the law, and the major thing that needs changing ... is the Ontario Nursing Home Act." 
7. ^ Nicole Kershen and Marie Mercat-Bruns (June, 1993). "Towards reform of long-term care in France". Ageing International 20 (2): 20–26. doi:10.1007/BF03032492. http://www.springerlink.com/content/e1747654n2522wr7/. Retrieved 2010-07-19. "Other issues not fully addressed by the reports are residents' rights in institutions ..." 
8. ^ Diane Gibson, Gavin Turrell, Anne Jenkins (March 1993), "Regulation and Reform: Promoting Residents' Rights in Australian Nursing Homes", Journal of Sociology 29 (1): 73–91, doi:10.1177/144078339302900105 
9. ^ ^{a b c} The sub-jurisdictional examples within nations are currently drawn from the largest sub-divisions by population. One can imagine adding examples based on other criteria, such as degrees of protection of rights.
10. ^ "Seniors' Care: Maintaining Standards of Care in Long-Term Care Homes". Ministry of Health and Long-Term Care (Ontario). http://www.health.gov.on.ca/english/public/program/ltc/25_standards.html#1. Retrieved 2010-07-18. 
11. ^ "Health and Disability Commissioner". New Zealand: Health and Disability Commissioner. http://www.hdc.org.nz/. Retrieved 2010-07-25. 
12. ^ "Health and Disability Commissioner (Code of Health and Disability Services Consumers' Rights) Regulations 1996 (SR 1996/78)". New Zealand: Parliamentary Counsel Office. 10 June 2004. http://www.legislation.govt.nz/regulation/public/1996/0078/latest/whole.html. Retrieved 2010-07-25. 
13. ^ "Your rights". Care Quality Commission. http://www.cqc.org.uk/usingcareservices/socialcare/usingsocialcareservices/yourrights.cfm. Retrieved 2010-07-18. 
14. ^ "OBRA '87 Summary" (pdf). Alliance for Health care reform. http://www.allhealth.org/briefingmaterials/obra87summary-984.pdf. Retrieved 2010-07-20. 
15. ^ "42 US § 1396r". Cornell University Law School. http://www.law.cornell.edu/uscode/html/uscode42/usc_sec_42_00001396---r000-.html. Retrieved 2010-07-20. 
16. ^ "Title 42, PART 483--REQUIREMENTS FOR STATES AND LONG TERM CARE FACILITIES". US Government Printing Office. http://www.access.gpo.gov/nara/cfr/waisidx_02/42cfr483_02.html. Retrieved 2010-07-20. 
17. ^ Geriatric education for emergency medical services, American Geriatrics Society, http://books.google.com/books?id=Z73O149TUXsC&pg=PT304 
18. ^ "History of Nursing Homes". eJustice. http://www.nursing-home-abuse-resource.com/nursing_home_abuse/history.html. Retrieved 2010-07-20. 
19. ^ "Guide to Choosing a Nursing Home" (pdf). Centers for Medicare & Medicaid Services. pp. 49–54. http://www.medicare.gov/Publications/Pubs/pdf/02174.pdf. Retrieved 2010-07-19. 
20. ^ ^{a b} "Outline of Nursing Home Residents’ Rights". California Advocates for Nursing Home Reform. http://canhr.org/factsheets/nh_fs/html/fs_outline_resrights.htm. Retrieved 2010-07-19. 
21. ^ "Nursing Home Residents Rights". California Department of Public health. http://www.cdph.ca.gov/healthinfo/pages/nursinghomepatient.aspx. Retrieved 2010-07-19. 
22. ^ "California Advocates for Nursing Home Reform". CANHR. http://canhr.org. Retrieved 2010-07-20. 
23. ^ "Senate Bill 1248". Senator Alquist. http://www.leginfo.ca.gov/pub/05-06/bill/sen/sb_1201-1250/sb_1248_bill_20060928_chaptered.html. Retrieved 2010-07-20.