Protecting the Rights of Assisted Living Residents

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Protecting the Rights of Assisted Living Residents: The Letter and the Intent of the Law
by Nicole Jewell, Contributing Writer

The transition from independence to a full-time assisted living community can be a difficult and even painful process for aging seniors, as well as those who love them. However, families facing this situation should be able to rest easy knowing that each senior who makes the move to a new care center will be receiving the best care possible, and that any care plan developed will be specifically tailored to the unique needs of each individual.

Sadly, seniors cannot always be sure that the kind of treatment they expect is what they will receive. Stories of nursing home abuse are all too common, and reports can be found frequently in the news detailing the mistreatment that helpless patients have received at the hands of careless, or sometimes even intentionally abusive attendants, nurses, or other nursing home staff members.

In addition to the criminal laws that protect everyone from egregious forms of abuse and mistreatment, elderly people who are living under the long-term care of others are protected by a whole set of special rules as well. Beyond just providing legal protections against elder abuse, these laws are also designed to guarantee that those who leave their independence behind will not be expected to sacrifice their sovereignty as citizens, or their freedom as individuals. Nursing homes are expected to protect not just the bodies of the seniors who are in their care, but also their social, political, and human rights, fully and completely.

At the Time of Admission

When the time comes for a senior to enter an assisted living property, he or she will be presented with a legal contract to sign. This contract is usually several pages long, and may contain the kind of legal language that should be read very carefully before anything is signed. If they so choose, seniors and their family members can consult with a lawyer who specializes in elder law, just to make sure there is nothing in the contract that might require a potential nursing home resident to sacrifice rights that should be considered inalienable.

For example, some contracts may contain a clause that requires any legal dispute that should arise between community administrators and residents to be decided by arbitration instead of being allowed to go to court. This kind of stipulation can never be used as a condition for nursing home admission, and no one who finds such a requirement in their admissions contract should sign it until the arbitration clause is removed. Arbitration panels used by nursing homes are handpicked by nursing home administrators, and despite claims to the contrary, these panels are neither neutral nor unbiased. Surrendering legal rights to sue and go to court is never a good idea when signing any kind of contract, and this is certainly true with respect to nursing home admissions contracts.

Included, as a part of the admissions form, will be a page or pages that delineates all the rights and responsibilities of nursing home residents. This is a very important document, because it spells out in detail the kinds of protections and guarantees to which all nursing home residents are entitled.

The Rights of Nursing Home Residents

The Code of Federal Regulations – specifically 42 CFR, 483 – lists the rights of elders living in nursing homes that have been guaranteed by the federal government, which include such things as:

  • The rights of citizenship (voting, freedom of speech and worship, etc.)
  • The right to be kept fully informed about their medical situation
  • The right to participate in the creation of a personal care plan, and to ask for other options if the first option recommended by medical professionals is not considered desirable by the patient
  • The right to choose who is allowed to visit and who is not
  • The right to have a comprehensive medical evaluation performed within 14 days of admission to the facility, followed by the creation of a comprehensive care plan within 7 days
  • The right to choose a personal physician and pharmacy
  • Protection against discharge or transfer for reasons not related to medical or safety concerns; the right to appeal an order for discharge after it has been issued
  • The right to privacy, and to be treated with dignity and respect
  • The right to have all personal care needs taken care of, even if new needs develop after initial admission
  • Guarantees that sufficient nurses and attendants will be available to meet all of a patients personal and medical needs 24 hours a day
  • The right to be cared for in a manner that will maintain and enhance a resident's quality of life

Examining this list carefully (and this is only a partial list), it can be seen that assisted living staff have a responsibility to maintain a level of care and attention that will allow residents to be kept as comfortable as possible, and to have as much control over their fate and circumstances as their  physical and mental limitations will allow. It is not enough to simply keep residents from being abused or denied basic care; it is also necessary for nursing home staff to make positive contributions to the lives of their charges, and if they do not make efforts to do so they will be in violation of federal law. States also have their own individual laws to protect nursing home residents, and these statutes obligate nursing home staff to go even further in their efforts to make life pleasant, safe, and satisfying for seniors under their care.

Elder Law and Nursing Home Residents

Operating a nursing home is a sacred responsibility. Unfortunately, not all nursing homes live up to this responsibility, which is why experts in elder law are always available to help seniors who believe their rights have not been properly protected by those who are responsible for their care. The family members of seniors who are not able to assert their own rights because of the state of their health can also consult with qualified attorneys who are ready to step in and help them make sure that nursing homes live up to all of their obligations. It is important to realize that while certain specific rights are guaranteed to elderly people by the laws that have been passed to protect them, some of the language used in these laws – words like 'dignity', 'respect', and 'quality of life' – makes it clear that there is much more to protecting the rights of seniors than just granting them a few basic privileges. Both the letter and the deeper, more proactive intent of these laws must be respected by nursing homes, and no one who lives in one of these facilities should be willing to accept anything less.

 


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