|Description of Federal Requirements|
|Comparison of State Requirements|
|Table Comparing States|
|Complete Transcript of State Requirements on Resident Rights (PDF)|
|Federal Regulations & Related F-tags for 483.10||Applicable Federal Regulation|
The Federal Residents Rights regulation, 483.10, in its broadest expression, states that a resident has a right to a dignified existence, self-determination, and communication with persons inside and outside the nursing home, and that the facility must protect and promote the rights of each residents, as enumerated in the regulation.
The first section (a), the exercise of rights, states that the resident has full rights of any citizen; that he or she has the right to be free of interference, coercion, discrimination, and reprisal while exercising these rights; and, if adjudged incompetent, the rights of the resident are exercised by the person appointed under State law to act on the resident’s behalf. Otherwise, even for competent residents, their rights may be exercised by legal surrogates to the extent permitted by State law.
Section (b) notice of rights and services, is a long section that requires that the resident or his or her surrogate be notified orally and in writing upon admission and during the stay of all rights that he or she holds, and that the notification must be in clear language. Residents must acknowledge this notice in writing. Further rights are enumerated: the right for access to all one’s records within 24 hours (excluding weekends); to purchase photocopies of the records for a reasonable community prices within 2 days; to be informed in understandable language about his or her health status and medical condition; to refuse treatment, refuse participation in research, and to develop an advance directive; if the resident is on Medicaid or when becoming eligible for Medicaid, to be informed of Medicaid covered services, and other services for which he or she will be charged, and to be informed generally of charges if applicable for all services; and to receive a description of legal rights, including the process of becoming eligible for Medicaid. This section also requires that certain information be posted, including the names and addresses of pertinent resident advocacy groups, including the State ombudsman, the State licensure office, the protection and advocacy (P&A) network, and the Medicare fraud control unit, and a statement that the resident may file a complaint with the State survey and certification office regarding resident abuse, neglect, or misappropriation of funds or noncompliance with the resident’s advance directive. The facility needs to inform each resident of the name, specialty, and way of contacting the physician responsible for his or her care. Also, the facility must notify the resident, consult with the resident’s physician, and notify the resident’s legal representative or an interested family member about any major changes such as: an accident with injury; a significant deterioration in the resident’s physical, mental or psychological status; the need to alter the treatment plan significantly; a decision to transfer the resident to another facility; a change in room or roommate within the facility; and any changes in resident’s rights under Federal or State law. The resident must record and periodically update the contact information of legal representatives or interested family.
Section (c) protection of resident funds, enunciates the resident’s right to manage his or her financial funds without depositing funds with the facility. If the resident chooses to do the later, funds in excess of $50 are placed in an interest bearing account, all funds are kept separate from commingling with any other residents’ funds, and the facility keeps a clear account of their use. When funds for resident’s receiving Medicaid benefits approach the maximum allowable without losing Medicaid benefits, the facility must notify the resident. The remainder of this section enumerates in detail which services must be considered part of the resident’s regular daily rate, and which services may result in an extra charge, as long as that charge is not made to Medicare or Medicaid and the resident has been informed of the extra charges. The resident or his or her agent may not be charged extra for any item or service that has not been requested by the resident or the agent.
Under (d), free choice, the resident has the right to choose a personal physician and be fully informed about care and treatment and charges, and participate in planning care and treatment. Under (e), privacy and confidentiality,the resident has the right to privacy and confidentiality in accommodation, personal and clinical records (except when legally required or on transfer to other facilities), privacy in medical treatment, written and telephone communications, personal care, visits, and meetings of family and resident groups. Despite privacy in accommodation, the regulation explicitly states that the nursing home is not required to provide a private room for each resident. Under (f),grievances, the resident may voice grievances without discrimination or reprisal, and the facility will make a prompt effort to resolve the grievances, including those resulting from the behavior of other residents. Under (g), survey results, residents have the right to view the results of the inspections of the nursing home, and these results must be placed in a visible location that is announced to the resident. The resident also has the right to receive information from agencies acting as client advocates and to contact such agencies. Under (h), work, the resident has a right to refuse to perform services for the facility, and the right to perform services for the facility if he or she chooses with clear information about whether these are to be paid or unpaid services and the details of compensation. Under (i),mail, the resident has the right to send and promptly receive unopened mail, and have access to writing supplies and stamps at his or her own expense; and under (j), visitation rights, the resident has the right to receive visits from a large list of official agencies and professionals, subject to the resident’s consent. The resident also has the right to visits from immediate family and from friends, subject to their consent. The resident can withdraw consent to such visitors at any time. Under (k) telephone, the resident has a right to reasonable access to a telephone where calls can be made without being overheard. Under (l), the resident has a right to retain and use personal possessions including “some furniture and appropriate clothing” as space permits and as long as retaining them does not infringe on the rights of other residents. Under (m) the resident has the right to share a room with a spouse living in the facility if both spouses consent. Under (n), the resident has the right to self-administration of drugs if the care team has judged this to be safe. For review of State rules on self-administration of medications, go to Regulations by Topic/Pharmacy Services/Self-Administration of Medications.
Other regulations related to resident’s rights, include 483.12, which enunciate specific rights around admission, transfer, and discharge. Also related is much of the regulation 483.15 on quality of life, which includes a section (a) on dignity, (b) self-determination and participation, including the right to choose activities and schedules, and make choices about one’s life in the facility, and (c) the right to participate in resident and family groups, for which the facility must provide space, privacy, and a designated staff member to assist and follow up; and (d), the right to participate in social, religious, and community activities that do not interfere with the rights of other residents. Under (d) (2), the resident has the right to receive notice before his or her room or roommate is changed, which duplicated language in the Resident’s Rights regulation.
NOTE: The examples below may not list all States with similar language; always check your state for specifics
The section of the Federal regulations that addresses Resident Rights is comprehensive in scope and encompasses a highly diversified range of topics. At the State level, we find that most States amplify one or more of these Resident Rights provisions. Only a few States (e.g., Alabama, Maine, Nevada, New Hampshire, and South Dakota) have regulations on Resident Rights that simply mirror all or part of the Federal regulations. In many instances, the State amplifications expand rights by identifying rights not mentioned explicitly in the Federal rules or by adding specificity. In some instances, however, additional State language limits rights by introducing language such as “unless medically contraindicated” or cushioning the right to telephone access or visitors with words like “reasonable.”
One of the most common additional State provisions is for mandatory staff orientation, in-service training, or both on Resident Rights. Twenty-six states (Arkansas, Colorado, Connecticut, District of Columbia, Florida, Hawaii, Idaho,Illinois, Indiana, Kentucky, Louisiana, Ohio, Oklahoma,
Pennsylvania, Maryland, Massachusetts, Mississippi, Montana,Nebraska, New Jersey, New York, North Dakota, Rhode Island, South Carolina, Virginia, and West Virginia) have such provisions. Usually the in-service provision is for annual training and the orientation provision is for all staff. Illinois also requires volunteers to also receive training on resident’s rights and states that nurses, nurses’ aides, social work personnel and activity personnel who work at least half time must attend annual training. Pennsylvaniarequires that information on Resident Rights be made available to the “general public” as well as to facility Staff.
Some States pay particular attention to education about Advance Directives for Health Care. In Indiana the facility is required to provide education for staff as well as community education on issues related to advance directives and must distribute the state developed written description of the law on advance directives to residents. In New Jersey, the regulations include detailed information about the rights of residents regarding Advance Directives.
A large number of general rights are enumerated in the federal regulations; yet individual States mention rights that are not included in the Federal regulation. Some States (for example, Arkansas, Delaware, and Georgia, to name a few) cross-reference their own State bill or rights for nursing home residents.
- Florida recognizes a right to regular exercise several times a week and to be outdoors at regular and frequent intervals, weather permitting.
- Tennessee recognizes the right “(t)o be different in order to promote social, religious, and psychological well being. [NH Regs Plus Comment: This is an interesting addition, but Tennessee does not define “different.].
- In Mississippi residents have a right that they “not have their personal lives regulated or controlled beyond reasonable adherence to meals schedules and other written policies which may be necessary for the orderly management of the facility and the personal safety of the residents.”
- Colorado requires facilities to make reasonable efforts to allow flexible timing of daily routines such as eating, bathing, rising and retiring, and at least one alternative menu choices.
- In Kentucky residents have the right to go outdoors and leave the premises as they wish unless a legitimate reason can be shown and documented for refusing such activity. Similarly, in Indiana, residents have the right to leave the facility at reasonable times unless reasons are justified in writing by a physician, developmental disability professional, or the facility administrator.
- Residents in Kentucky have the right to be suitably dressed at all times and to be provided assistance as needed for maintaining physical hygiene and grooming. In Illinois, Montana, and New Jersey, if the facility provides clothing for residents, the clothing must fit.
- In Illinois resident’s rooms are not allowed to be used as walkways to reach another area of the building, and children under age 16 who are related to facility owners or employees are restricted to areas of the facility reserved for employee or family use except during planned programming of a group visiting the facility.
- In Indiana, schedules of daily activities shall allow maximum flexibility for residents to exercise choice about what they will do and when they will do it. This includes menu selection, eating times, and sleeping times.
- In New Jersey, residents have a right to stay out of bed as long as the resident desires and to be awakened for routine daily care no more than two hours before breakfast is served, unless a physician recommendsotherwise and specifies the reasons in the resident's medical record. They also have the right to receive assistance in awakening, getting dressed, and participating in the facility's activities, unless a physician or advanced practice nurse specifies reasons in the resident's medical record.
- In Michigan, residents have a right to management of pain and symptoms.
- In Rhode Island, facilities without air conditioning in every resident room are required to provide an air-conditioned room or rooms in a residential section of the facility to provide relief to patients when the outdoor temperature exceeds 80 degrees Fahrenheit. [NH Regs Plus Comment: This rule could also be related to Quality of Care and prevention of Dehydration.]
- In New York, resident’s are entitles to be told the results of their assessment for case mix classification.
- Most States are silent on the subject of smoking by residents or resident use of alcoholic beverages. Some exceptions:
- Louisiana recognizes the resident’s right to use tobacco, at his own expense, under the home's safety rules and under applicable laws and rules of the state, unless the facility's written policies preclude. In Louisiana, residents also have the right to consume a reasonable amount of alcoholic beverages at their own expense as long as it is not medically contraindicated, does not interact with any medications, and the facility does not have a religious policy against alcohol use.
- In Georgia, subject to applicable state law and the written policies of the facility given and explained to the resident, guardian and/or representative at the time of admission, all residents must be permitted to use tobacco and to consume alcoholic beverages, as long as the resident does not interfere with the rights of others. Residents shall be notified 30 days in advance of any change in the facility's policies affecting the use of tobacco or consumption of alcoholic beverages.
- In Minnesota smoking is permitted only in accordance with cross-referenced Minnesota statutes (which prohibit smoking in public places). Also residents in Minnesota are not allowed to smoke in bed unless they are confined to bed and unless a staff member monitors their safety.
- In Ohio, the right to use tobacco at the resident's own expense under the home's safety rules and under applicable laws and rules of the state, unless not medically advisable as documented in the resident's medical record by the attending physician or unless contradictory to written admission policies.
- In Utah facility smoking policies must comply with the Utah Indoor Clean Air Act and related regulations.
- In Pennsylvania, smoking is allowed in designated areas but facilities must develop policies regarding smoking which include provisions for protecting the rights of nonsmoking residents. [NH Regs Plus Comment: The right to smoke is a complex issue, given the effects of second-hand smoke on others, and the diminishment of that right in all of society. The right to consume alcoholic beverages seems more straightforward but only Louisiana and Georgia address the topic. Although both States reasonably allow for medical contraindications, the default position seems to be that drinking in moderation is permissible. No mention is made about issues regarding keeping alcohol in one’s room and consuming it according to the resident’s timetable. Reports from the field suggest that most often individually owned alcohol is held by the nurses and doled out like a prescription, thereby detracting from the ambiance of the glass of wine or sherry or cocktail. Some nursing homes do have organized happy hours and events where beer and alcoholic beverages are served. With alcohol issues the struggle is also to respect the views of sectarian facilities opposed to alcohol and who may attract residents similarly opposed. So far, the rules we have seen allow for an over-riding prohibition by the facility as long as residents or their representatives are informed at admission. The nuances of a good alcohol regulation still need work.]
- In New York, facilities must provide kosher food or food products prepared in accordance with the Hebrew orthodox religious requirements when requested by the resident.
- The Federal regulations state that residents have “the right to choose a personal attending physician.” Twelve states (Arizona, Arkansas, Iowa, Kansas, Louisiana, Oregon, Maryland, Missouri, New Mexico, North Dakota, and Texas) include provisions for choosing a pharmacy, though the right to choose a pharmacy is sometimes qualified in various ways. In Arizona the choice is allowed so long as it complies with the policies of the nursing facility and poses no risk to the resident; In Arkansas, they may choose a pharmacy unless the facility uses a true unit dose system. Similar caveats are present in all the States that permit choice of pharmacy. New Jersey extends the right of physician choice to choice of nurse practitioners. Indiana adds the language “or other providers” to the statement about choice of physician.
The federal regulation simply states the resident’s right to send and promptly receive u unopened mail in privacy and have available, at their own expense, stationery, stamps, and writing supplies. Several States amplify this right, usually by providing further specification, sometimes by asserting that the residents have a right to assistance with their mail if they wish, and occasionally introducing a “medical contraindication to receiving or sending mail. For example:
- In Arkansas, residents may associate or communicate privately with persons of their choice, and may send or receive personal mail unopened, unless medically contraindicated and documented by the physician in the medical record.Idaho, Mississippi, and Virginia similarly allow a medical restriction of the right to private mail.
- In Georgia the administrator shall provide that mail is received and mailed on regular postal days.
- Indiana and Maryland make an exception for private unopened receipt and sending of mail when the resident requests assistance. In Minnesota, a resident must receive mail unopened unless the resident or the resident's legal guardian, conservator, representative payee, or other person designated in writing by the resident has requested in writing that the mail be reviewed. In Missouri, if the resident cannot open mail, written consent by the resident or legal guardian shall be obtained to have all mail opened and read to the resident. In New Mexico and in Wisconsin, no resident's incoming or outgoing correspondence may be opened, delayed, held, or censored, except that a resident or guardian may direct in writing that specified incoming correspondence be opened, delayed, or held. In North Carolina residents promptly receive unopened mail unless they are unable to open or read their mail.
- In Iowa arrangements shall be made to provide assistance to residents who require helping reading or sending mail. In New Jersey, the resident has the right to receive and send mail in unopened envelopes, unless the resident requests otherwise. The resident also has a right to request and receive assistance in reading and writing correspondence unless it is medically contraindicated, and documented in the record by a physician or advanced practice nurse. In Tennessee, residents have the right to receive unopened mail and to receive assistance in reading or writing correspondence; In Texas request facility staff to help open and read incoming mail and help address and post outgoing mail. [NH Regs Plus Comment: The right to receive and send unopened mail can be met simply by not abridging that right. However, as with many rights, a positive stance can be taken to helping ensure that people are aware of and use that right. In the particular case of mail, the underlying intent is that residents have private access to mail as would any citizen, and some of the State language recognizes that some residents would not have the ability to write or read mail. In that sense, the States in the last bullet point (Iowa, New Jersey, Tennessee, and Texas) all merit credit for developing a duty of staff to offer assistance to residents in sending and receiving mail. In-service education could emphasize that staff should indicate who the letter appears to be from by the envelope or the signature and offer them the opportunity to wait to have it read by a family member. Training should also emphasize that anything staff learns in assisting with the sending and receiving of mail should be held as confidential; it is up to the resident to mention that he has sent or received a greeting card or any correspondence not the staff.]
The federal rule about telephones requires that the resident has reasonable access to the use of a telephone where he or she will not be overheard. Most States just reiterate that rule, sometimes adding that the phones should be “at a convenient location (Kentucky) or in “a quiet place” (Vermont) or available at reasonable hours. Some States go beyond this to require telephones that are adapted to disability and meet other requirements of privacy. One States requires the access to be 24 hours a day.
- In Georgia public telephones must be available and accessible to residents, including those in wheelchairs, and must permit and be conducive to private conversation. Residents shall have the right to refuse any telephone call or correspondence. Such refusal shall be documented in the resident's file.
- In Utah residents shall have confidential access to telephones for both free local calls and for accommodation of long distance calls according to facility policy.
- In Iowa telephones consistent with ANSI standards (405.1134(c)) shall be available and accessible for residents to make and receive calls with privacy. Residents who need help shall be assisted in using the telephone.
- In Maine, the resident has a right to “regular” access to the private use of a telephone,” and amplification shall be provided for the hearing impaired. In Missouri “telephones appropriate to the resident’s needs shall be accessible at all times. In New York, residents have a right to regular access to the private use of a telephone that is wheelchair accessible and usable by hearing impaired and visually impaired residents.
- In Minnesota nursing homes must provide at least one non-coin-operated telephone which is accessible to residents at all times in case of emergency. A resident must have access to a telephone at a convenient location within the building for personal use. A nursing home may charge the resident for actual long distance charges that the resident incurs.
- In Texas, the resident has the right to have reasonable access to the use of a telephone (other than a pay phone), where calls can be made without being overheard, and which can also be used for making calls to summon help in case of emergency. Also, the facility must permit residents to contract for private telephones at their own expense. The facility must not require private telephones to be connected to a central switchboard.
- In Nebraska, residents shall have access to the use of a telephone with auxiliary aides where calls can be made in private.
- In New Jersey, the resident has a right to have unaccompanied access to a telephone at a reasonable hour to conduct private conversations, and, if technically feasible, to have a private telephone in his or her living quarters at the resident's own expense.
- In Washington, the resident has the right to have twenty-four hour access to a telephone which: (1) Provides auditory privacy ;(2) Is accessible to an individual with a disability and accommodates an individual with sensory impairment; and (3) Does not include the use of telephones in staff offices and at the nurses station(s). [NH Regs Plus Comment: In our experience studying physical environments in typical traditional nursing homes, public telephone access is very inadequate both for residents in wheelchairs and those who are ambulatory. Sometimes, staff bring wireless phones to residents, but these too are often not adaptable to hearing or other impairments. With the improvement of telephone technology in the last decade or so, it may be timely to consider best practices in facilitating the use of the telephone for residents.]
Some states require a minimal notice for room changes; Utah (24 hours), Indiana (2 days), Washington (3 days).Vermont (72 hours), Oklahoma (48 hours), Texas (5 days) and Oregon (14 days). Oregon has somewhat elaborate requirements for room changes. In Oregon, residents have the right to not be reassigned to a new room within the facility without cause and without adequate preparation for the move in order to avoid harmful effects. Involuntary room changes can only be made after no less than 14 days notice. The move cannot be based on source of payment. An involuntary move within the facility must not occur when the effects will have a significant adverse impact on the resident’s medical or psychological status.
In Mississippi, residents must not be transferred to a different room in the facility when the move would result in detriment to the resident’s physical, mental, and emotional condition
Visiting hours vary widely in specificity and duration. Some States just specify “adequate” visiting hours. Texasspecifies visiting “at any reasonable hours. In Wyoming the visiting hours should be organized to permit and encourage residents to receive visits from relatives and friends. .Other states are more precise, for example:
- In Idaho, the facility shall allow daily visiting between l0:00 A.M. and 8:00 P.M. and these visiting hours shall be posted in plain view of visitors.
- In New Jersey, visiting hours shall be from 8 a.m. to 8 p.m.
- In Florida visiting hours are from 9 a.m. to 9. pm.
- In Michigan, reasonable regular visiting hours shall be not less than 8 hours per day, and which shall take into consideration the special circumstances of each visitor, shall be established for patients to receive visitors.
- In Georgia, there shall be 12 continuous hours in any 24-hour period, seven days a week.
Regardless of visiting hours, many States have exceptions for seriously or terminally ill residents that permit family to be present continuously, including overnight (e.g. Texas, and New Jersey). Florida and Louisiana call for taking into account working hours of visitors and out-of-town visitors as well.
Rhode Island requires that posted reasonable visiting hours must be maintained in each home, with a minimum of four hours daily. But Rhode Island has a unique requirement to construct a broadened list of “family” for each resident who may receive extended visiting privileges. The State requires that all resident records the names of individuals not legally related by blood or marriage who the resident wishes to be considered as immediate family member(s), for the purpose of granting extended visitation rights to said individual(s), so said individual(s) may visit the resident while he or she is receiving inpatient health care services in a health care facility. This list may be added to or modified by the resident at any time. If a visitor arrives who is not on the list and who the resident wants to see, an elaborate procedure is provided for a resident’s handwritten signature and two witnesses so that an exception can be made. [NH Regs Plus Comment: It is not clear from the rules what the extended visiting privileges are. It seems a step in the right direction for the resident to indicate his or her preferred visitor list. Many of the rules around visitors seem to be designed, in part, so that facilities will know who comes in and out of the facility and perhaps control it for safety reasons while assuring residents the visitors of their choice.]
States also have rules that limit visitors or restrict their movements. For example:
- In Nebraska the facility administrator may refuse visitors whose presence would be injurious to the health and safety of a resident especially when documented by the physician, behavior is documented by the facility to be unreasonably disruptive, threatens the security of resident or facility property or the visit is only for commercial purposes. Any person refused access to a facility may request a hearing with the state within 30 days of the refusal.
- In Arkansas, visits may be restricted via a physician order that a visit is harmful to the health of a resident or a visitor’s behavior is unreasonably disruptive to the facility. These visitor restrictions must be evaluated each time the plan of care is reviewed or by resident request.
- Georgia requires that visitors must be granted access to residents during normal visiting hours provided that each visitor entering a facility promptly discloses his presence and identifies himself to the person in charge and enters the immediate living quarters of a resident only after identifying himself and receiving permission to enter. Place of visitation shall be any place of the resident's choice so long as it does not disrupt the normal operation of the facility or disturb the other residents. The administrator may terminate visits for various reasons.
The Federal regulations address the right to privacy for visits by various persons and parties. Several states expand on this right with discuss of private visits by spouses or for sexual activity (see a later section). Georgia rules bluntly state that “each resident shall enjoy the right of freedom from eavesdropping.”
The right to privacy also involves privacy for medical care and confidentiality of medical information. Several States elaborate on this latter medical privacy, sometimes in contradictory ways. For example:
- Illinois holds that all residents shall be permitted respect and privacy in their medical and personal care program. Every resident's case discussion, consultation, examination and treatment shall be confidential and shall be conducted discreetly, and those persons not directly involved in the resident's care must have the resident's permission to be present.
- In New Mexico, case discussion, consultation, examination, and treatment are confidential and shall be conducted discreetly. Persons not directly involved in the resident's care shall require the resident's permission to authorize their presence.
- In Delaware, each patient and resident's medical care program shall be conducted discreetly and in accordance with the patient's need for privacy. Persons not directly involved in patient care shall not be present during medical examinations, treatment and case discussion. [NH Regs Plus Comment: This explicit prohibition of anyone other than patient care personnel without allowance for resident preference seems to be poor regulatory wording.]
North Carolina regulations allow for sharing of personal and medical records with a family member without the resident’s written consent. Case discussion, consultation, examination, and treatment shall remain confidential and shall l be confidential and the written consent of the patient shall be obtained for their release to any individual, “other than family members, except as needed in case of the patient's transfer to another health care institution or as required by law or third party payment contract.” Perhaps unintended, the wording here appears to allow family members access to records without resident consent.
Texas statutes include provisions for electronic monitoring devices in a resident’s room. This is an elaborate and long section that is structured in a Question and Answer format. A resident or his or her guardian is “entitled to authorized electronic monitoring (AEM). The facility has a supply of AEM forms for the request. The resident must make the request unless he/she has been adjudicated incompetent or lacks the capacity to request AEM. The physician determines the lack of capacity, For a person not adjudicated incompetent who is determined to lack the capacity, the State provides a list in order of priority on who may act as the resident’s representative to request AEM. If a roommate shares the room, he or she must also consent to the AEM. A resident may not be discharged or refused admission for requesting AEM. The device is expected to be visible. Covert electronic monitoring is not permitted. If it is discovered, it is no longer covert and must meet all the requirements of AEM before it can continue.
Anyone conducting AEM must post and maintain a conspicuous notice at the entrance to the resident's room. The resident or the resident's guardian or legal representative must pay for all costs associated with conducting AEM, including installation in compliance with life safety and electrical codes, maintenance, removal of the equipment, posting and removal of the notice, or repair following removal of the equipment and notice, other than the cost of electricity. A facility may require an electronic monitoring device to be installed in a manner that is safe for residents, employees, or visitors who may be moving about the room. A facility may also require that AEM be conducted in plain view. The facility must make reasonable physical accommodation for AEM, which includes providing: 1) a reasonably secure place to mount the video surveillance camera or other electronic monitoring device; and 2) access to power sources for the video surveillance camera or other electronic monitoring device. If the facility refuses to permit AEM or fails to make reasonable physical accommodations for AEM, you should report the facility's refusal to the local office of Long Term Care-Regulatory, Texas Department of Human Services. Facilities are subject to administrative penalties of $500 for each violation of the AEM rules. Further elaborate rules pertain to the process for those listening to or viewing the tapes and making allegations of abuse. The rules do not appear to clarify who is allowed to listen to the tapes, though the language refers to “the person who is conducting electronic monitoring on behalf of a resident.” Presumably staff would not be able to look at the tapes though that is unclear. [NH Regs Plus Comment: This is an extremely controversial area. It is clear that Texas has thought carefully about these rules. Some critics consider AEM to be a severe violation of privacy. It seems incongruous that facilities can have policies to prohibit alcohol on principled grounds and yet cannot on principle decide and inform residents that they do not permit AEM on the premises. It would be useful to have some discussion among advocates and providers about the proper use of AEM in nursing homes, not only for monitoring residents but also for monitoring staff. Texas has provided a starting point to look at this.]
Eighteen States (Alaska, Colorado, Delaware, Idaho, Illinois, Iowa, Kentucky, Maryland, Michigan,
Mississippi,Missouri, New Jersey, New Mexico, North Dakota, Rhode Island, South Carolina, Virginia, and Wisconsin) address the issue of married couples sharing rooms or having conjugal visits. Except for Colorado, which explicitly recognizes a right of nursing home residents to “private consensual sexual activity” without any statements about marital status and a few States that recognize other kinds of partnerships, most States discuss the issue in terms of marital relationships and place some restrictions on the right of married couples to share rooms or have private visits. The typical limitations concern availability of the room to share or medical contraindications or both. For example:
- In Alaska, the opportunity for private visits with resident’s spouse must be allowed unless medically unwarranted or space prohibits.
- In Iowa, the rule simply States that married couples shall be permitted to share a room “if a room is available. “
- In Delaware, if married, every patient and resident shall enjoy privacy in visits by his spouse and, if both reside in the facility, they shall be allowed to share a room, unless medically contraindicated. South Carolina, New Mexico, and Wisconsin have similar language about private visits for spouses and the right of spouses to share rooms if they wish and if there are no medical contraindications.
- In Idaho, married residents who both agree must be able to share rooms unless medically contraindicated (as documented by the attending physician in the medical record. Similarly in Illinois agreeing married residents must be able to share rooms “unless there is no room available in the facility,” or “it is deemed medically inadvisable by the residents' attending physician and so documented in the residents' medical records.”
- In Kentucky, privacy shall be assured for spousal visits and if both spouses are residents they may share a room unless they are “in a different level of care” or if medically contraindicated and noted in the physician’s records.
- In Missouri, “each married resident shall be assured privacy for visits by his or her spouse.” In Michigan, a married nursing home resident “is entitled to meet privately with his or her spouse in a room that ensures privacy. [NH Regs Plus Comment: It would be interesting to know whether residents may ensure privacy by locking the door from the inside.] Similarly to other States, if both spouses are married they may share a room unless medically contraindicated, but Michigan allows a note from either a physician or a nurse practitioner to document the contraindication. Mississippi, Virginia, and New Jersey also include nurse practitioners among those who can provide a note on medical contraindications for a married couple to share a room.
- In Iowa, the facility shall provide needed privacy for spousal visits, and shall permit spouses who are both residents to share rooms, if such a room is available, and “unless one of their attending physicians documents in the medical record those specific reasons why an arrangement would have an adverse effect on the health of the resident.” Iowa rules go on to say that family members may share rooms if requested and a room is available with the same proviso that an attending physician would need to document why such sharing would have an adverse affect on one of the residents. [NH Regs Plus Comment: The Iowa language seems preferable to some other states because it creates a stronger duty on the facility to come up with specific reasons to deny a resident request for room-sharing with a relative. This Iowa rule makes us wonder why any two residents who suggest room sharing would not have the same right as related individuals to have such sharing occur if a room was available and no medical reasons were given against it.]
[NH Regs Plus Comment: In the Federal Regulation 483.10 (j), access and visitation rights, (1), “the resident has the right and the facility must provide immediate access to “immediate family or other relatives of the resident; and “(viii) others who are visiting with the consent of the resident.” This would seem to include providing “immediate access” to spouses or intimate friends. Further, under 483.10 (m) the federal regulations state that “the resident has the right to share a room with his or her spouse when married residents live in the same facility and both spouses consent to the arrangement. However, under 483.10 (e,) privacy and confidentiality, the Federal regulations include privacy rights for multiple purposes, including visits, but add “this does not require the facility to provide a private room for each resident.” With explicit recognition that private rooms are not required for residents, the right to conjugal and sexual relationships is difficult to fulfill, as is even the right for “immediate access” to visitors of the resident’s choice. Additional State regulatory language in this area could clarify and expand these rights but often seems to contract them by inserting clauses about possible medical contraindications or other “reasonable” limits to consensual sexual activity. Medical contraindications for room sharing would seem highly subjective.]
Four States have language that suggests the possibility of intimate relationships with someone other than a spouse.
- New Jersey refers to resident’s rights for “reasonable opportunities for private and intimate physical and social interaction with other people, including arrangements for privacy when the resident's spouse visits,” suggesting that there may be others besides spouses with whom the resident is intimate.
- Rhode Island states that residents shall be assured privacy for visits by “the spouse or other partner” and that if both individuals are residents they may share a room if they wish and if it is not medically contraindicated.
- Vermont uses the concept of “reciprocal beneficiaries,” stating that if residents are married or in a reciprocal beneficiaries relationship, they are assured privacy for visits by the resident's spouse or reciprocal beneficiary,and if both are residents of the facility, they are permitted to share a room. We found no language limiting this room-sharing right with medical contraindications. [NH Regs Plus Comment: Vermont seems to have extended its recognition of civil unions to its nursing home regulations. Perhaps other States that recognize gay marriage or civil unions will provide similar updating of the concept of spouse. It is also noteworthy that none of the Statutes clarify whether residents with a common law spouse can exercise spousal right for private visits, or room sharing if both are residents.]
- Colorado is the only State where we found a clearly explicit right to “consensual sexual activity.” Again no language was found about medical contraindications. [NH Regs Plus Comment: The four States highlighted above allow room for sexual relationships between persons of the same gender, as well as persons of the opposite gender who are not married. Such recognition would seem to be important to assure that nursing home residents had the same rights as other citizens in this regard.]
Although the Federal regulations are detailed regarding facility management of resident funds, some states expand on this by mandating how facilities are to demonstrate financial security on behalf of their residents (e.g. Illinois), by expanding the basic right of residents to be secure in their personal funds to include some personal property ( e.g., Iowa and Maryland), by defining accounting procedures (e.g., Missouri). Three states (Arkansas, New Mexico, and Texas) delineate specific procedures for managing resident’s trust funds.
Illinois, Minnesota, and Utah require funds of $100 or more to be in an interest bearing account. This contradicts the federal regulation, which requires funds any funds over $50 to be in an interest bearing account. [NH Regs Plus Comment: In this instance, we judge that the State is not adhering to the prohibition of having a rule less stringent than the federal, because the intent of this rule is to allow residents to collect interest. However, this interpretation could be challenged by a view that the sum allowed to be retained in non-interest bearing accounts is greater in the States that have the higher sum. Further, it is possible that the federal rule is out of date, and that sums over $100 would be a more reasonable amount to keep in an interest-bearing account.]
New Jersey requires that residents have daily access during specified hours to the money and property that the resident has deposited with the nursing home. Other States require access at specific hours on week days.
Various State rules have been established for safeguarding residents’ personal effects. Many involve taking an inventory of the resident’s possessions and updating that inventory regularly. A few States call for labeling clothing. [NH Regs Plus Comment: Required labeling of clothing seems an unwarranted intrusion that could ruin fine garments.] Some States have stronger language than others about the duty to protect resident’s possessions and about needing to do so in a way that permits the resident easy access to his or her possessions. For example:
- In Indiana, facilities should exercise reasonable care for the protection of resident’s property from loss or theft. Policies and procedures for investigating reports of lost or stolen property are required as well as mechanisms for identifying resident clothing and personal effects via an inventory list made upon admission. Facilities are required in writing to remind residents and representatives of the need to update the inventory. All facility personnel are required to have in-service training and education regarding resident’s rights.
- In Maryland, regulations require the facility to take reasonable steps to ensure the safety and security of residents’ personal belongings. The facility cannot limit the amount of resident funds it maintains, but can limit the amount of property retained on behalf of the resident. Facilities are required to have written procedures for preventing and investigating the loss or damage to resident property.
- In Montana, the facility must provide means for safeguarding residents’ items of value in the room or in other parts of the facility where the resident must have reasonable access to the items. Theft of resident possession must be investigated promptly and results of the investigation must be reported to the resident.
- In Oregon, facilities must permit residents to have lockable storage space for personal property in which both[emphasis NHRegsPlus] the resident and facility management may have keys. Residents cannot be required to sign any contract that waives any resident right, including the right to collect payment for lost or stolen articles.
Georgia, has rather elaborate regulations on personal property. (1) Each resident must be permitted to retain and use his/her personal property in his/her immediate living quarters subject to space limitations and state and federal safety laws and regulations; (2) Upon request, the facility shall provide a means of securing the resident's property in his/her room or another convenient location in the facility, subject to the following: (a) The resident must have access to the secured items at least during all normal business hours and where facility policy allows, on weekends and holidays; (b) The facility shall keep an updated written record of all personal belongings which an resident has requested that the facility keep in a secure place.
(3) The facility shall have procedures for investigating complaints and allegations of thefts of residents' property. Such procedures must provide that the facility promptly investigate complaints of theft, and the facility report the results of its investigation to the complainant within two weeks.
The Federal regulations address the right of a resident to exercise the rights of a citizen or resident of the United States. Some states expand on this by mandating that facilities assist residents in exercising their right to vote (Missouri , New York ). Georgia has quite detailed rules related to the right to vote. All residents legally eligible to vote must be permitted to vote in all primary, special and general elections and in referenda. If requested by the resident, the facility must assist in obtaining voter registration forms, applications for absentee ballots and in obtaining such ballots and assist the resident in meeting all other legal requirements in order to be able to vote. The facility shall not interfere with nor attempt to influence the actual casting of the resident's vote.
Three States (California, Oregon, and Washington) do not allow residents to sign contracts that in any way waive Resident Rights. California specifies that even if residents agree to arbitration, they retain their right to sue.
In Illinois, a resident or his representative may file a verified petition to the circuit court to place the facility under the control of a receiver in the event of a threat to health, safety, or welfare of the resident that the facility is unwilling or unable to correct.
Alaska, Arkansas, Colorado, Delaware, Illinois, Indiana, Iowa, Kentucky, Louisiana,
Minnesota, Montana, Nebraska,New Mexico, West Virginia, Wisconsin, and Wyoming require facilities to develop and implement a system for addressing allegations of rights violations. Additionally, Wisconsin mandates that personnel be referred to the licensing board when a licenses staff person allegedly violates a resident’s rights.
Federal rules require that Resident Rights be presented in writing and orally in understandable form. Iowa goes beyond this to require that if the facility serves residents who are non-English speaking or deaf, steps shall be taken to translate the information into a foreign or sign language. In the case of blind residents, either Braille or a recording shall be provided. Moreover, in Iowa residents shall be encouraged to ask questions about their rights and responsibilities and these questions shall be answered.
Idaho regulations allow a physician to withhold information from a resident regarding their medical condition if medically contraindicated. California, Tennessee, and West Virginia also allow generally for limitations to resident’s rights for medical reasons.
Wisconsin indicates that residents in custody of the Department of Corrections are not entitled to the same rights as other residents, and New Mexico States that the Resident Rights do not apply to residents in the custody of the Department of Corrections.
Some Michigan rules on Residents Rights contain the caveat that they are guidelines for facilities, employees, and residents for which an individual must not be civilly or criminally liable for failure to comply.
In Washington, if any Residents Rights are being violated, a note must be included in the record stating the reason and it must be signed by the resident’s guardian or representative.
Seventeen states (Arkansas, Delaware, Indiana, Kentucky, Oklahoma, Pennsylvania, Maryland, Missouri, New Mexico, New York, Rhode Island, South Carolina, Texas, Utah, West Virginia, Wisconsin, and Wyoming) require that Resident Rights to be posted in a conspicuous place in the facility. Some regulations specify the font for such postings, and others specify places where the postings should be made—for example, in each unit or at every public telephone. In New York, residents’ rights and responsibilities must be posted in a conspicuous location using large print and at wheelchair height. Residents and their representatives have the right to know the specific assignment to a patient classification category.
Several States cross-reference additional State statutes that enunciate bills of rights for nursing home residents and indicate that these Bills of Rights must be posted—for examples, see Arkansas, Delaware, Georgia, and Maryland.
<Oregon requires that residents be fully informed of facility policy on possession of firearms and ammunition.
North Dakota and Oregon require disclosure on facility ownership. North Dakota also requires the facility to display information regarding board membership, and partners as well as any conflicts of interest in the operation of the facility. In Delaware facilities must provide information regarding any relationship the facility has with other heath care facilities as far as the resident is concerned.
The Federal regulations address the right to voice grievances without fear of reprisal or discrimination, and require the facility's prompt efforts at resolution. Many States have expanded significantly on this basic right by mandating that facilities follow specific investigation and reporting procedures with respect to grievances and offer explicit recourse for residents if they allege resident’s rights are violated. For example, Colorado requires someone in the facility be responsible for grievances, that a Grievance Committee be established, and a time frame developed. Often the Ombudsman needs to be notified (e.g., Delaware).
State variation on the right to self-administer medications is analyzed under the Topic “Pharmacy Services, Self-Administration of Medications.
Table Comparing States (TOP)
Note: If the States in this table are not hyper-linked, their provisions do not appear to address the topic, and therefore, do not alter the Federal Regulatory scope. The Table summarizes content on Resident Rights by State (with a link to each State's specific language). Link to a downloadable PDF document containing all State requirements on Resident Rights.
|State||Goes beyond Federal Regulations?||Subjects Addressed: How State Differs From or Expands On Federal Regulations|
|Alabama||Yes||Alabama regulations on Resident Rights mirror the federal regulations, with additional information.|
|Alaska||Yes||Private visits with spouse. Participation in self-care. Written receipt of safeguarded money or valuables. Acknowledgement of receipt of a grievance,|
|Arizona||Yes||Access to financial records. Choice of pharmacy. Informing residents of rate changes.|
|Arkansas||Yes||Choice of pharmacy. Informing residents of their rights. Posting of the bill of rights. Staff orientation and training on rights. Grievances. Restriction of visitors. Managing of resident trust funds and accounts.|
|California||Yes||Arbitration agreements. Right of legal action. Restriction of visitors. Definition of representatives to act on the behalf of an incapacitated resident. Informed consent. Safeguarding resident's money and valuables.|
|Colorado||Yes||Consensual sexual activity. Staff orientation and training. Accommodation of roommate preference. Flexible timing of routines. Grievance process. Bill of rights distributed to staff and posted.|
|Connecticut||Yes||Staff orientation and in-service training on residents' rights. Grievance procedures.|
|Delaware||Yes||Bill of Rights must be posted. Additional rights enunciated beyond Federal rules. Management of resident funds. Grievance procedures.|
|District of Columbia||Yes||In-service training for staff on Resident Rights.|
|Florida||Yes||In-service training for staff on Resident Rights. Visiting hours.|
|Georgia||Yes||In-service training for staff. Posting of Georgia Bill of Rights. Oral explanation of rights on admission. Visits and visiting hours. Telephone. /td>|
|Hawaii||Yes||In-service training for Staff on Resident Rights.|
|Idaho||Yes||Staff training on residents' rights policies and procedures. Married couples sharing rooms. Visiting hours.|
|Illinois||Yes||Staff and volunteers to have training on resident's rights. Resident property and funds, including protection of resident property from theft. Privacy of residents' rooms. Private right of legal action for residents. Detailed grievance procedures. The statute delineates in detail complaint procedures.td>|
|Indiana||Yes||In-service education on residents rights for all staff. Posting of resident rights. Advance directives. Residents access to their records. Room changes and room sharing. Resident funds. Grievances. Protection of resident property from theft.|
|Iowa||Yes||Grievances and complaints. Resident funds. Additional areas for resident choice. Assistance with mail. Spouses sharing rooms. Choice of pharmacy. Telephone.|
|Kansas||Yes||Choice of pharmacy; Additional information.|
|Kentucky||Yes||Staff training on Resident Rights. Residents’ funds and bills. Spouses sharing rooms. Additional rights. Right to file suit. Posting of rights. Complaints and grievances.|
|Louisiana||Yes||Staff training on Resident Rights. Additional rights, including overnight visitation outside facility, and closed bedroom doors, choice of pharmacy, right to use tobacco and alcoholic beverages at their own expense, and right to withhold payment for a physician visit if the physician did not examine the resident. Right to legal action. Grievances. Residents have the right to action if his rights are violated.|
|Maine||Yes||Maine regulations on Resident Rights mirror the federal regulations; Telephone; Additional information.|
|Maryland||Yes||Staff education on Resident Rights. Posting of a readable Residents Bill of Rights. Additional rights, including choice of pharmacy, input into roommate choice, knocking on doors before entry, and seeking advice from the "resident care advisory committee" regarding treatment for a life-altering illness. Room sharing with spouses. Complaint procedure. Resident funds. Safeguarding resident possessions.|
|Massachusetts||Yes||Staff training and orientation on Resident Rights.|
|Michigan||Yes||Additional rights, including right to appropriate pain and symptom management, and right for a relative or representative to stay at nursing home 24 hours per day for terminally ill residents. Room sharing with spouses. Resident funds and property. Corresponding responsibilities of residents. No civil or criminal liability for failure to comply with Resident Rights.|
|Minnesota||Yes||Additional rights. Smoking. Complaints and grievances. Resident funds. Residents are only allowed to smoke in bed if their condition mandates that they remain in bed and a staff person supervises. Telephone.|
|Mississippi||Yes||Staff training on implementation of resident rights policies and procedures. Security in storing resident possessions. Visits and room sharing with spouses.|
|Missouri||Yes||Posting of resident rights. Annual review of rights with each resident or his/her representative, including advance directives. Additional rights, including choice of pharmacy, not having personal lives regulated or controlled beyond what is reasonable, and informing them on admission of home and community services. . Rules for opening and reading residents their mail. Protection of personal possessions. Resident funds.|
|Montana||Yes||All staff receives training on Resident Rights. Resident billing. Grievances. Additional rights. Providing safeguarding of and access to resident property. Theft investigation|
|Nebraska||Yes||All employees oriented on resident rights. Rights to visitors and administrator right to refuse some visitors. Complaint and grievance procedures.|
|Nevada||Yes||Nevada regulations on Resident Rights mirror the federal regulations, with additional information.|
|New Hampshire||Yes||New Hampshire regulations on Resident Rights mirror the federal regulations, with additional information.|
|New Jersey||Yes||Staff education on Resident Rights. Additional rights, including detailed rights regarding advance directives, right to leave the premises, and protection of the resident's right to smoke. Resident funds. Room transfers. Spousal visits and married residents sharing. Telephone. Visiting hours.|
|New Mexico||Yes||Posting of rights. Complaint and grievance resolution. Resident funds. Spousal visits and married residents. Choice of pharmacist. Rights do not apply for residents who are in legal custody of Department of Corrections.|
|New York||Yes||Resident rights training in staff orientation. Posting of Resident's Rights. Resident responsibilities. Telephone rights. Additional rights, including, on request, right to receive Kosher food, and right to know the specific assignment to a patient case mix payment category.|
|North Carolina||Yes||Sharing resident information with family members. Resident funds. Privacy for spousal visits.|
|North Dakota||Yes||Staff education on Residents Rights must be covered annually with facility staff. Spousal visit privacy and spousal room sharing. Oral explanation of rights and facility policies to residents or their legal guardians within 30 days of admission.|
|Ohio||Yes||The statutes define a "resident rights advocate". All facility staff is required to have orientation and training on resident rights.|
|Oklahoma||Yes||Resident rights posting. Staff orientation and training on Resident Rights. Room changes. Loss of personal effects.|
|Oregon||Yes||Resident funds. Resident possessions. Room changes. Locked storage in rooms with residents having keys. Residents may not waive rights, including the right to collect payment for lost or stolen articles. Residents to be informed on firearm and ammunition policies. Choice of pharmacy.|
|Pennsylvania||Yes||In-service education on Resident Rights. Posting of Resident Rights. Policies on Resident Rights and resident responsibilities made available to general public. Smoking policies that protect rights of non-smokers.|
|Rhode Island||Yes||In-service training and orientation on Resident Rights. Posting of Resident Rights and responsibilities. Spousal visits and room sharing. Resident-defined listings of immediate family. Provisions for air conditioned space if rooms are not air-conditioned. Visiting hours and visitor rules.|
|South Carolina||Yes||In-service education and orientation on Residents Rights. Posting of Resident Rights|
|South Dakota||Yes||South Dakota regulations on Resident Rights mirror the federal regulations, with additional information.|
|Tennessee||Yes||Additional rights. Statements on when resident rights may be abridged.|
|Texas||Yes||Posting of Residents Rights and responsibilities. Transfers within facilities. Resident billing and charges. Choice of pharmacy. Detailed regulation on residents rights to use electronic monitoring devices in their rooms. Telephone. Visiting hours.|
|Utah||Yes||Posting of Resident Rights and responsibilities. Room transfers. Resident funds. Telephone.|
|Vermont||Yes||Transfers within facilities. Room sharing and spousal or mutual beneficiary visits.|
|Virginia||Yes||Facilities must provide staff training to implement resident's rights at least annually. The facility must have a plan to review resident rights with each resident or representative annually.|
|Washington||Yes||Room transfers. Exercise of rights. Telephone|
|West Virginia||Yes||Staff training on Resident Rights. Posting of resident rights. Policies for and documentation of any restriction of rights. System for reporting, reviewing, and resolving allegations of rights violations.|
|Wisconsin||Yes||Posting of resident rights. System for reporting, reviewing, and resolving rights violations. Resident funds. Room sharing. Limitation of rights of residents in custody of Department of Corrections.|
|Wyoming||Yes||System for reporting, reviewing, and resolving allegations of resident rights violations. Posting of resident rights and responsibilities.|