The Rights of a Nursing Home Resident

A recently available group of articles in the Wall Street Journal have painted a disturbing picture of nursing homes nationwide systematically medicating residents with anti-psychotic drugs in an attempt to regulate their conduct and behavior. The Wall Street Journal has reported that the utilization of new anti-psychotic drugs to regulate behavior of dementia patients has surged, despite FDA warnings about the utilization of said drugs. The Center for Medicare and Medicaid Services has also reported that approximately thirty percent of nursing home residents are taking anti-psychotic drugs.

Although reports of this nature aren’t new, they reinforce the necessity 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 their state survey and certification process to enforce the standards (42 CFR 283.0). These regulations represent minimum standards for long term care facilities. They certainly were promulgated to enhance the quality of care of the residents. The general goals of OBRA are to:

(a) promote and enhance the standard of living of the resident;

(b) provide services and activities to attain or maintain the greatest practicable, physical, mental and psycho social well being of every resident relating with a published plan of care;

(c) provide that resident and advocate participation is a criteria for assessing the facilities compliance with administrator requirements; and

(d) assure usage of the State’s Long Term Care Ombudsman (a third party resident advocate) to the facilities residents, and assure that the Ombudsman has usage of records, residents and care providers.

A copy of the nursing home resident’s Bill of Rights must certanly be conspicuously posted in the lobby of the facility. While these rights are general in nature, NHRA specifically defines the parameters of every right. As an 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 with a physician for a specified and limited period of time.

Additionally, the NHRA specifically provides that:

(a) facilities inform the resident of the name, specialty and way of contacting the physicians in charge of the resident’s care;

(b) facilities must 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;

(c) facilities must give you the resident usage of his or her medical records within one business day, and a right to copies of the records at an acceptable cost;

(d) facilities must provide a published description of a resident’s rights, explaining state laws highly relevant to living wills, durable powers of attorney, etc., and also a copy of the facilities policy on carrying out these directives. This becomes particularly important each time a facility won’t honor the residents advance directive highly relevant to end-of-life decisions, the utilization of feeding tubes, ventilators and respirators;

(e) the resident includes a right to privacy, which extends to all or any facets of care; and

(f) a resident may not be moved to some other room, different nursing home, a hospital or back without advanced notice, and an opportunity for appeal.

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