The Nursing Home Reform
Amendments of OBRA 1987 require that nursing facilities "promote and protect the
rights of each resident." The residents rights must be displayed in the nursing
facility along with a contact number for the states Long Term Care Ombudsman (a
third-party resident advocate).The general goals of the law
are:
(1) Quality of Life: The law requires nursing homes to
"care for the residents in such a manner and in such an environment as will promote
maintenance or enhancement of the quality of life of each resident." A new emphasis
is placed on dignity, choice and self-determination for nursing home residents;
(2) Provision of Services and Activities: The law requires
each nursing home to "provide services and activities to attain or maintain the
highest practicable physical, mental and psychosocial well-being of each resident in
accordance with a written plan of care which. . . is initially prepared, with
participation to the extent practicable of the resident or the residents legal
representative;
(3) Participation in Facility Administration: The law makes
"resident and advocate participation" a criteria for assessing a facilitys
compliance with administration requirements; and
(4) Assuring Access to the Ombudsman Program: The law grants
immediate access by ombudsmen to residents and reasonable access, in accordance with state
law, by ombudsmen to records; requires facilities to inform residents how to contact
ombudsmen to voice complaints or in the event of a transfer or discharge from the
facility; requires state agencies to share inspection results with ombudsmen.
Specific Resident Rights
1. Rights to Self-Determination: Nursing home residents have the
right:
- to choose their personal physician;
- to full information, in advance, and participation in planning and
making any changes in their care and treatment;
- to reside and receive services with reasonable accommodation by the
facility of individual needs and preferences;
- to voice grievances about care or treatment they do or do not receive
without discrimination or reprisal, and to receive prompt response from the facility; and
- to organize and participate in resident groups (and their families
have the right to organize family groups) in the facility.
2. Personal and Privacy Rights: Nursing home residents have the
right:
- to participate in social, religious and community activities as they
choose;
- to privacy in medical treatment, accommodations, personal visits,
written and telephone conversations and meetings of resident and family groups; and
- to confidentiality of personal and clinical records.
3. Rights Regarding Abuse and Restraints: Nursing home residents
have the right:
- to be free from physical or mental abuse, corporal punishment,
involuntary seclusion or disciplinary use of restraints;
- to be free of restraints used for the convenience of the staff rather
than the well-being of the residents;
- to have restraints used only under written physicians orders to
treat a residents medical symptoms and ensure her safety and the safety of others;
and
- to be given psychopharmacologic medication only as ordered by a
physician as a part of a written plan of care for a specific medical symptom, with annual
review for appropriateness by an independent, external expert.
4. Rights to Information: Nursing homes must:
- upon request provide residents with the latest inspection results and
any plan of correction submitted by the facility;
- notify residents in advance of any plans to change their rooms or
roommate;
- inform residents of their rights upon admission and provide a written
copy of the rights, including their rights regarding personal funds and their right to
file a complaint with the state survey agency;
- inform residents in writing, at admission and throughout their stay,
of the services available under the basic rate and of any extra charges for extra
services, including, for Medicaid residents, a list of services covered by Medicaid and
those for which there is an extra charge; and
- prominently display and provide oral and written information for
residents about how to apply for and use Medicaid benefits and how to receive a refund for
previous private payments that Medicaid will pay retroactively.
5. Rights to Visits: The nursing home must:
- permit immediate visits by a residents personal physician and
by representatives from the licensing agency and the Ombudsman Program;
- permit immediate visits by a residents relatives, with the
residents consent;
- permit visits "subject to reasonable restriction" for
others who visit with the residents consent; and
- permit ombudsmen to review residents clinical records if a
resident grants permission.
6. Transfer and Discharge Rights: Nursing homes "must permit
each resident to remain in the facility and must not transfer or discharge the resident
unless:"
- the transfer or discharge is necessary to meet the residents
welfare and the residents welfare cannot be met by the facility;
- appropriate because the residents health has improved such that
the resident no longer needs nursing home care;
- the health or safety of other residents is endangered; or
- the resident has failed, after reasonable notice, to pay an allowable
facility charge for an item or service provided upon the resident request; and
- the facility ceases to operate.
Notice must be given to residents and their representatives before
transfer:
- Timing: at least 30 days in advance, or as soon as possible if more
immediate changes in health require more immediate transfer;
- Content: reasons for transfer, the residents right to appeal
the transfer, and the name, address and phone number of the Ombudsman Program and
protection and advocacy programs for mentally ill and developmentally disabled; and
- Returning to the Facility: the right to request that a
residents bed be held, including information about how many days Medicaid will pay
for the bed to be held and the facilitys bed-hold policies, and the right to return
to the next available bed if Medicaid bed-holding coverage lapses.
Orientation: A facility must prepare and orient residents to ensure
safe and orderly transfer or discharge from the facility.
7. Protection of Personal Funds: A nursing home must:
- not require residents to deposit their personal funds with the
facility; and
- if it accepts written responsibility for residents funds:
- keep funds over $50 in an interest bearing account, separate from the
facility account;
- keep other funds available in a separate account or petty cash fund;
- keep a complete and separate accounting of each residents
funds, with a written record of all transactions, available for review by residents and
their representatives;
- notify Medicaid residents when their balance account comes within
$200 of the Medicaid limit and the effect of this on their eligibility;
- upon a residents death, turn funds over to the residents
trustee;
- purchase a surety bond to secure residents funds in its
keeping; and
- do not charge a resident for any item or service covered by Medicaid,
specifically including routine personal hygiene items and services.
8. Protection Against Medicaid Discrimination: Nursing homes must:
- establish and maintain identical policies and practices regarding
transfer, discharge and the provision of services required under Medicaid for all
individuals regardless of source of payment;
- not require residents to waive their rights to Medicaid, and must
provide information about how to apply for Medicaid;
- not require a third party to guarantee payment as a condition of
admission or continued stay; and
- not "charge, solicit, accept or receive" gifts, money,
donations or "other consideration" as a precondition for admission or for
continued stay for persons eligible for Medicaid.