Negligence in the Nursing Home Setting

If you or a loved one has been harmed while a nursing home resident, contact an attorney for advice about protecting your legal rights and seeking recompense for injury.

Nursing homes are institutions that furnish shelter, feeding, and care for sick, aged, or infirm persons. They are not strictly considered hospitals, in that they do not necessarily render medical treatment, but may be considered hospitals for certain purposes, depending on various laws that govern their operation.

Federal regulations distinguish among four types of health care facilities, starting with those that offer the lowest level of nursing care, " adult boarding facilities," then " residential care facilities," " intermediate care facilities, and finally, those that offer the highest level of nursing care, " skilled nursing facilities." Different standards apply depending on how an institution is classified. State and federal governments regulate skilled nursing facilities and intermediate care facilities, particularly with respect to their participation in Medicare and Medicaid. National standards for nursing homes serving as " extended care facilities" are contained in the Federal Medicare Health Insurance Program for the Aged.

A resident in a nursing facility that participates in the Medicare program has the right, under statute, to be free from verbal, sexual, physical and mental abuse, and any physical or chemical restraint that is imposed for purposes of discipline or convenience, rather than to treat a medical condition. Restraints may be used upon the written order of a physician who specifies the duration and circumstances under which the restraints are to be used, but only to insure the safety of the resident or other residents. The Secretary of Health and Human Services has the authority to specify circumstances in which emergency use of restraints is permitted until such an order can reasonably be obtained.

Under federal guidelines, each nursing facility must develop and implement written policies and procedures prohibiting mistreatment, neglect, or abuse of residents. Each facility must also insure that all alleged violations of the foregoing policies are immediately reported to the facility administrator or other officials, and must demonstrate that all alleged policy violations are thoroughly investigated. Additionally, they must prevent further potential abuse while an investigation is in progress, report investigation results to the administrator or other officials within five working days of the alleged incident and, if the alleged violation is verified, take appropriate corrective action.

A resident in such a nursing facility is entitled to receive verbal and written notice of the rights and services to which he or she is entitled during his/her stay in the facility. This notice must be given prior to or upon admission, and periodically throughout the resident's stay, in a language the resident understands. The resident must acknowledge his or her receipt of such notice in writing.

• Nursing home residents have the right to see family members, ombudspersons or other resident advocates, physicians, service providers, and representatives of the state and federal government.
• Residents may keep and use their personal possessions and clothing unless doing so would endanger health and safety.
• Residents have the right to apply for and receive Medicare and Medicaid benefits and cannot be asked to leave a home because they receive such benefits.
• A nursing home must treat all individuals the same, regardless of whether they are private payers or Medicare or Medicaid recipients.
• Residents have the right to keep their clinical and personal records confidential.
• Residents are entitled to lists of what services are paid by Medicare and Medicaid and the additional services for which the residents will be charged, plus the fees for those services.
• Nursing home residents have the right to choose their own personal physician.
• Residents have the right to be fully informed about their medical care.
• Residents have the right to participate in the planning of their care and treatment.
• Nursing home residents have the right to refuse treatment.
• Residents have the right to be free from mental and physical abuse.
• Nursing home residents cannot be kept apart from other residents against their will.
• Residents cannot be tied down or given drugs to restrain them if restraint is not necessary to treat their medical symptoms.
• Residents have the right to raise grievances and have them resolved quickly.
• Residents may participate in social, religious, and community activities to the extent that they do not interfere with the rights of other residents.
• Residents cannot be required to deposit their personal funds with the nursing home, and if they request that the home manage their funds, the home must do so according to state and federal record-keeping requirements.
• Residents have the right to privacy, including in their rooms, medical treatment, communications, visits, and meetings with family and resident groups.
• Residents have the right to review their medical records within twenty-four hours of making a request.
• Nursing home residents have the right to review the most recent state inspection report relating to the home.
• Residents must be given notice before their room or roommate is changed, and residents can refuse the transfer if the purpose is to move them from a Medicare bed to a Medicaid bed or vice versa.
• Residents have the right to stay in the nursing home and can only be removed if it is necessary for the resident's welfare, the resident no longer needs the facility's services, it is necessary to prevent harm to the health or safety of others in the facility, the resident fails to pay after reasonable notice, or the facility ceases to operate.
• Nursing home residents and their representatives have the right to thirty days' notice of a proposed transfer or discharge, and they have the right to appeal.
• Before transferring residents for hospitalization or therapy, the nursing home must inform them of the length of time that their beds will be held open for their return, called the " bedhold period."
• Nursing home residents returning from a hospital or therapeutic leave after expiration of the bedhold period have the right to be readmitted as soon as the first semi-private bed becomes available.
• Residents must be informed of their rights upon admission, and must be given their rights in writing if so requested.

If you or a loved one has been harmed while a nursing home resident, contact an attorney for advice about protecting your legal rights and seeking recompense for injury.

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

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