IR14 — Rights Of Nursing Facility Residents

February, 2001

In 1987, the U. S. Congress made sweeping reforms in laws affecting residents of nursing facilities. One of these changes was to clearly set forth the rights of all residents of nursing facilities. The changes also set forth certain requirements relating to quality of services provided to nursing facility residents. This handout summarizes the rights of residents and the quality of services required.

A. Rights Of Residents Of Nursing Facilities

Nursing facilities are required to protect and promote the rights of all residents, including the following rights.

Free Choice - Residents have the right to choose an attending physician, to be fully informed in advance about care and treatment and any changes in care and treatment that may affect their well being, and to participate in planning for their own care and treatment. Unless a resident has a guardian with the power to make these decisions, only the resident may make them unless a surrogate decision-maker has been appointed in accordance with state law. See section C. Surrogate Decision-Makers below.

Freedom from Restraints - Residents have the right to be free from physical or mental abuse, corporal punishment, involuntary seclusion, and any physical or chemical restraints (including drugs) used for purposes of discipline or convenience and not required to treat the resident's medical symptoms. Restraints may be used only when necessary to ensure the physical safety of the resident or other residents, and only upon the written order of a physician. The physician's order must specify the circumstances under which restraints may be used and the length of time the restraint may be used.

Privacy - Residents have the right to privacy with regard to accommodations, medical treatment, telephone conversations, written communication, visits, and meetings with family and resident groups.

Confidentiality -- Residents have the right to have personal and clinical records kept confidential. They must give their written consent before information contained in these records can be released to anyone.

Accommodation of Needs -- Residents have the right to have their individual needs and preferences provided for within reason, except where the health or safety of the individual or other residents would be endangered. Residents have the right to receive notice before their room or roommate is changed.

Grievances -- Residents have the right to voice grievances about the care and treatment in the nursing facility, without being subject to discrimination or reprisal for making the grievance. Residents have the right to prompt efforts by the facility to resolve grievances the resident may have, including those with respect to the behavior of other residents.

Participation in Resident and Family Groups -- Residents have the right to organize and participate in resident groups in the facility. Residents' families have the right to meet in the facility with the families of other residents in the facility.

Participation in Other Activities -- Residents have the right to participate in social, religious, and community activities that do not interfere with the rights of other residents in the facility.

Access and Visitation Rights -- A nursing facility must permit immediate access to any resident, subject to the resident's right to deny or withdraw consent at any time, by immediate family, relatives and other visitors, as well as to any representative of the state or federal government, the Texas Department of Aging Long Term Care Ombudsman, Advocacy, Inc., and the resident's physician.

Examination of Survey Results -- Residents have the right to examine, upon reasonable request, the results of the most recent survey of the facility conducted by the Texas Department of Health or the Secretary of the U. S. Department of Health and Human Services.

Notice of Rights -- A nursing facility must inform each resident, orally and in writing, at the time of admission to the nursing facility, of each of these legal rights. A written statement of rights must be available upon request. Residents who are Medicaid eligible must also receive a statement of all items and services that are paid for by Medicaid and for which the resident cannot be charged. The statement must also inform the resident of other items and services that the facility offers, and of any charges associated with them. This written statement must also include a statement regarding measures that will be taken by the nursing facility to protect residents' personal funds. All information described above, whether presented orally or in writing, should be provided in the resident's native language.

Transfer and Discharge Rights -- Residents may only be transferred or discharged from a nursing facility in the following circumstances:

  1. The resident's welfare cannot be met in the facility and a transfer or discharge is necessary to meet the resident's welfare;
  2. The resident's health has improved since admission to the nursing facility and the resident no longer needs the services of the nursing facility;
  3. The presence of the resident to be discharged or transferred endangers the safety of other individuals in the nursing facility;
  4. The presence of the resident to be discharged or transferred endangers the health of other individuals in the nursing facility;
  5. The resident has failed, after reasonable notice, to pay for allowable charges; or
  6. The nursing facility ceases to operate.

If a resident is transferred or discharged, the reasons for the transfer or discharge must be documented in the resident's clinical record and the resident must be given as many days before the date of the transfer or discharge as is practicable. (In some cases, 30 days notice is required). The notice must include a statement of the resident's right to appeal the transfer or discharge; the name, address, and telephone number of the Texas Department of Aging Long Term Care Ombudsman; and, if the resident has a developmental disability or mental illness, the mailing address, and telephone of Advocacy, Inc. The nursing facility must provide sufficient preparation to ensure a safe and orderly transfer or discharge from the nursing facility.

Transfer for Hospitalization -- If a resident is being transferred for hospitalization or therapeutic leave, the nursing facility must provide written information to the resident and an immediate family member or legal representative concerning the period of time during which the resident will be permitted to return and resume residence in the nursing facility. Each nursing facility must have and follow a written policy that allows a resident who is transferred for hospitalization or therapeutic leave, and whose transfer period exceeds the period of time during which the facility will hold the resident's bed, to be readmitted to the nursing facility immediately upon the first availability of a bed, so long as the resident requires the services of a nursing facility.

Equal Access to Quality Care -- Nursing facilities must have and follow identical policies and practices regarding the provision of services, transfer, and discharge for all residents regardless of source of payment.

Admissions Policy -- Residents or potential residents may not be required to waive their rights to governmental benefits as a condition of admission or continued stay at the facility. Nursing facilities must provide all residents with information about how to apply for and use such benefits. Nursing facilities may not require a third party guarantee of payment to the facility as a condition of admission or continued stay. The nursing facility may not require persons eligible for Medicaid to make any other payment for Medicaid covered services as a condition of admission or continued stay.

Protection of Resident Funds -- The nursing facility may not require residents to deposit their personal funds with the facility. If the resident requests that the facility manage personal funds, and the facility accepts, the resident must sign a written authorization. In such cases the facility must deposit any amount of personal funds in excess of $50 in an interest-bearing account that is separate from any of the facility's operating accounts. The facility must credit all interest earned on the resident's account to that account. Amounts less than $50 may be maintained in a non-interest bearing account or petty cash fund. The facility must maintain a full, complete, and separate accounting of each such resident's personal funds. It must also maintain a written record of each transaction involving the resident's personal funds and allow the resident reasonable access to the financial records. The facility must notify Medicaid recipients when their account balance comes within $200 of the amount established by law as the maximum amount of resources an individual may have without losing their Medicaid or SSI benefits.

Nursing facility residents who have been found to be incapacitated by a court may have restrictions of some of these rights. If so, the right may be exercised by the court-appointed guardian.

B. Requirements Regarding Quality Of Services

In general, a nursing facility must care for its residents so as to promote the quality of life of each resident. Services provided by a nursing facility must be provided in an environment that promotes quality of life for each resident.

Scope of Services -- A nursing facility must provide services and activities to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident. These services must include at least the following: nursing services, specialized rehabilitative services, medically-related social services, pharmaceutical services, dietary services, and dental services. The facility must also provide an ongoing program of activities designed to meet the interests and the well-being of each resident. Services and activities must be provided in accordance with the terms of the plan of care, and must be provided by qualified persons.

Written Plan of Care -- Each resident must receive services in accordance with a written plan of care that describes the medical, nursing, and psychosocial needs of the resident, and how such needs will be met. This plan of care must be initially prepared by a team which includes the resident's attending physician and a registered professional nurse with responsibility for the resident. It must be prepared to the extent possible with the participation of the resident or the resident's family or legal representative.

Resident's Assessment -- The nursing facility must conduct a comprehensive assessment of each resident's functional capacity. It must describe the resident's capability to perform daily life functions and significant impairments in the resident's functional capacity. The assessment must be standardized and based on minimum criteria set forth by law. The assessment must be conducted or coordinated by a registered professional nurse who signs and certifies the completion of the assessment. The assessment must be conducted within four (4) days of a resident's admission, promptly after a significant change in the resident's physical or mental condition, and at least annually. The law sets forth penalties for falsification of any part of an assessment.

C. Surrogate Decision-Makers

In 1993, the Texas Legislature passed a special law that allows for surrogate decision-makers for residents of nursing homes, if the resident is (1) comatose, (2) lacks the ability to understand and appreciate the nature and consequences of a treatment decision, or (3) is otherwise mentally or physically incapable of communication. This surrogate decision-maker may consent, on behalf of the patient, to medical treatment except for voluntary inpatient mental health services, electro-convulsive treatment, or a decision to withhold or withdraw life-sustaining treatment.

Advocacy, Incorporated's goal is to make each handout understandable by and useful to the general public. If you have suggestions on how this handout can be improved, please contact Advocacy, Inc. at the address and telephone number shown on Advocacy's home page or e-mail Advocacy, Inc. at infoai@advocacyinc.org. Thank you for your assistance. This handout is available in Braille and/or on audio tape upon request. Advocacy, Inc. strives to update its materials on an annual basis, and this handout is based upon the law at the time it was written. The law changes frequently and is subject to various interpretations by different courts. Future changes in the law may make some information in this handout inaccurate. The handout is not intended to and does not replace an attorney's advice or assistance based on your particular situation.