You make the decision to help a family member move to a nursing home with your loved one’s best interests at heart, typically because they need a higher level of care than they can receive at home or in assisted living. That doesn’t mean the decision is an easy one. And now that COVID-19 has made it more difficult for people to spend time with family members in nursing homes, you may be even more concerned about your loved one’s welfare in the nursing home. Let’s talk about nursing home residents’ rights and how you can enforce them.
The legal rights of nursing home residents are governed by the federal Nursing Home Reform Act of 1987 (NHRA). The NHRA applies only to residents of nursing homes, not to residents of assisted living or independent living facilities, whose rights are governed by contract law and landlord-tenant law. The NHRA was enacted to ensure that nursing home residents receive quality care that allows them to achieve or maintain the highest level of physical, mental, and psychosocial well-being practicable.
The NHRA does more than create aspirational goals for nursing homes. A facility that is not in substantial compliance with the requirements of the NHRA loses its eligibility for Medicare and Medicaid payments, which make up the majority of nursing home income, according to AARP.
The Act requires nursing homes to provide certain services to their clients, and sets standards for the provision of these services, which include:
In addition to being entitled to those services, nursing home residents also have certain rights under the NHRA:
These rights are in addition to the rights to be free of abuse and neglect, the right not to be exploited, and to receive comprehensive, person-centered care.
Right now, with the pandemic posing such a threat, family members are often concerned about whether a nursing home will discharge their patient. There are only five reasons that a facility may discharge a resident. A nursing home may discharge a resident whose health has improved, or whose needs cannot be met by the facility. A nursing home can also legally discharge a resident whose presence endangers the health and safety of other residents. Residents may be discharged for non-payment of nursing home costs as well; however, this may not be done while there is a pending application for Medicaid. And, of course, a resident may be discharged if the facility ceases operation.
A discharge, even for an allowable reason, must follow certain rules. The resident or their agent must be given proper notice, and the resident must be discharged to a place that is able to meet their needs. Before resorting to discharge, however, the nursing facility must document that it tried to meet the resident’s needs before making the decision to remove them.
All of the rights and obligations listed above are designed to protect nursing home residents. They cannot be enforced by a private lawsuit against the nursing home. If you believe your family member’s nursing home is not honoring their rights under the NHRA, you need to notify the agency that enforces these regulations. In Ohio, the appropriate agency is the Ohio Department of Health.
The NHRA, as noted above, states that nursing home residents’ rights include visitations with family. The act did not foresee the COVID-19 pandemic, which necessitated limiting or banning visits for the health of residents and the general public.
As of this writing, the total ban on in-person visitation that was in place until September 2020 has been lifted, but indoor, in-person visitation is strictly limited. There may have been no positive COVID cases in the nursing home for at least 14 days, including employees, and the number of positive cases in the county must be at an acceptable level. Because the risk of transmission is somewhat lower out of doors, there may be fewer restrictions on outdoor visits when weather permits. This determination is usually made at the facility level, with the facility showing the reasonableness of their policy.
Gudorf Law Group has been practicing elder law in Dayton, Ohio for almost 30 years. As experienced elder law attorneys, we are well versed on the rights of your loved ones in nursing homes and the responsibilities the facility owes them.
If you have questions about visiting a family member in a nursing home during COVID, or about their rights and protections in general, please contact Gudorf Law Group to schedule a consultation.