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Description of Federal
Requirements [TOP]
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.
Comparison of State Requirements
[TOP]
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Using the sections on Comparisons of State
Regulations
a
Each narrative highlights how States
differ from Federal regulations on a specific topic.
a
Italics are used for signed NHRegsPlus
comments on the relevance of these variations for resident
autonomy, quality
of life, or culture change.
a
Examples are illustrative not
comprehensive; always check specific State language.
a
See a
table with links to each State’s
regulatory language at the bottom of the page.
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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. Pennsylvania
requires 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.
Additional Rights
[TOP]
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.” [NHRegsComments:
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 recommends
otherwise 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.
[NHRegsPlus
Comments. 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:
o
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.
o
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.
o
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.
o
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.
o
In
Utah facility smoking
policies must comply with the Utah Indoor Clean Air Act and related
regulations.
o
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.
[NHRegsComments. 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.
Mail and
Telephone
[TOP]
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.
.
[NHRegsComments.
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).
[NHRegsComments.
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.]
Room or Roommate
Changes
[TOP]
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.
Colorado,
Iowa,
Louisiana,
Missouri, and
New Jersey
regulations
require facilities to make reasonable
efforts to accommodate roommate preference.
Indiana and
Minnesota have developed
procedures for complaining about roommates and requesting changes.
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
Visits
[TOP]
Visiting hours vary
widely in specificity and duration. Some States just specify
“adequate” visiting hours.
Texas
specifies 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.
[NHRegsPlus
comments. 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.
Privacy
[TOP]
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.
[NHRegsComments. 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.
[NHRegsComments. 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.]
Conjugal and
Sexual Relationships
[TOP]
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.”
[NHRegsPlus Comments. 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. [NHRegsComments. 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.]
NHRegsComments.
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. [NHRegsComments.
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.
[NHRegsComments.
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.]
Resident Funds,
Property, and Billing
[TOP]
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.
[NHRegsComment. 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.]
South Carolina
and
Georgia recognize the
right of the resident to contract for
sitter services.
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.
[NHRegsComments. 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.
Exercise of
Rights
[TOP]
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
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