The Rights of a Nursing Home Resident

  • October 21, 2019

A current 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 effort to manage their conduct and behavior. The Wall Street Journal has reported that the utilization of new anti-psychotic drugs to manage behavior of dementia patients has surged, despite FDA warnings about the utilization of said drugs. The Center for Medicare and Medicaid Services has additionally 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 learn, understand and effectively advocate nursing home residents’rights.

The 1987 Nursing Home Reform Act (“NHRA”), area 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. These were promulgated to enhance the quality of care of their residents. The typical goals of OBRA are to:

(a) promote and improve the quality of life of the resident;

(b) provide services and activities to attain or maintain the highest practicable, physical, mental and psycho social wellness of each resident in accordance with a published plan of care; 121 Residences review

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

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

A copy of the nursing home resident’s Bill of Rights should be conspicuously posted in the lobby of the facility. While these rights are general in nature, NHRA specifically defines the parameters of each right. For instance, relative to medication, NHRA proscribes a resident be without any unnecessary physical or chemical restraints, including anti-psychotic drugs and sedatives, except when authorized by way of 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 means of contacting the physicians accountable for the resident’s care;

(b) facilities must inform the resident, his or her guardian or interested family person in any deterioration of the resident’s health or if the physician wishes to improve treatment;

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

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

(e) the resident has a right to privacy, which extends to all aspects of care; and

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

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