Know Your Nursing Home Rights

Know Your Nursing Home Rights

We’ve compiled a list of rights that are found in California and Federal Regulations. The Federal Regulations apply to every nursing home in the country that receives Medicare & Medicaid funding.

Nursing Home Resident Rights

Your Basic Rights

You have the right to be treated with respect and dignity in recognition of your individuality and preferences. (22 CCR §72527(a)(2); 42CFR 483.10(b)(5).)

You have the right to quality care and treatment that is fair and free from discrimination. (H & S Code §1599.1(a); 42CFR 483.10.)

Relatives or a legal representative may act on your behalf to exercise these rights when you are unable to do so yourself. (22 CCR §72527(c); H & S Code §1599.3; 42 CFR 483.10(a)(3).)

Rights Regarding Admissions Contracts

• The nursing home must use the Standard Admission Agreement developed by the California Department of Public Health. (H & S Code §1599.61.)
• The facility must inform you of all your rights in a language or manner which you understand. (22 CCR §72527(a)(1); H & S Code §1599.1; 42 CFR §483.10(b)(1); 42 CFR §483.10(b)(7).)
• The facility must inform you of all the facility’s rules and regulations, including those regarding transfer and discharge policies. (22 CCR §72527(a)(1),(2); 42 CFR §483.10(b)(1).)
• You have the right to carefully review all contracts and agreements prior to signing the California Standard Admission Agreement
• The nursing home cannot require a cosigner for payment, buy may require a relative or a legal representative to ensure payment from your income or resources. (California Standard Admission Agreement, 42 CFR §483.12(d)(2).)
• You have the right to apply for Medicare and Medi-Cal and the right to information and assistance in applying for those programs. (42 CFR §483.10(b)(5)(i); 42 CFR §483.10(b)(7)(i); 42 CFR §483.10(b)(10).)
• You cannot be asked to give up or delay your rights to receive Medicare or Medi-Cal. (42 CFR §483.12(d)(1)(i),(ii).)
• You cannot be asked to give the facility a security deposit if you are a Medicare or Medi-Cal beneficiary. (42 CFR §483.12(d)(3).)

Arbitration Agreements

DO NOT SIGN ARBITRATION AGREEMENTS!!! Almost uniformly nursing homes present a document to the resident at the time of admission that is buried within a stack of other documents, including the admissions agreement, asking the resident to agree to binding arbitration.

What is Binding Arbitration?

Binding Arbitration is having the resident agree to waive his or her constitutional right to a jury trial if he or she is abused or neglected.

It takes the matter of abuse & neglect out of the hands of 12 jurors and places it in the hands of a dispassionate neutral person, typically a retired judge. Binding Arbitration benefits the companies that run nursing homes. It does not benefit the resident.

12 angry jurors present uncertainty to a nursing home operator. Uncertainty equals risk in the form of potentially huge damages awards, including punitive damages. That’s why the nursing homes want the case in front of a retired judge, someone less likely to get angry at the nursing home and less likely to award punitive damages.

Arbitration is Expensive.

You have to pay an arbitrator (called a Neutral) to hear and rule on your arbitration. It is usually a retired judge who may require $15,000 to $25,000 of your money. By keeping the matter in court, the judge is paid by taxpayer dollars. The nursing home probably does not care about the cost because their legal fees and costs are typically paid by an insurance company.

Elderly victims of abuse & neglect are far better served in the court system with the ultimate fact finder being a jury of their peers.

Arbitrators are Inherently Bias Toward Nursing Home Operators

The ″neutral″ arbitrator makes his or her living handling private arbitration. It is therefore important for the arbitrator to get repeat business. In elder abuse & neglect cases the victim is a one-time customer. On the other hand, the nursing home and the insurance company paying for its legal defense, is a repeat customer so the judge whose services $500 to $1,000 an hour or more is less inclined to award large damages, including punitive damages, against the nursing home because he or she will lose business. In other words, he or she would get a reputation as “pro plaintiff” and consequently black listed by the defense attorneys who are selecting them case after case.

It is Against the Law to Force a Resident to Sign an Arbitration Agreement.

California law makes it illegal to force a resident to sign an arbitration agreement as a condition for admission. (H&S Code §1599.81(a).)

The reality however is that most residents or the family member helping them transition into the nursing home are more concerned about the health and well-being of the resident, and examining the fine print. They want to be helpful and don’t want to appear distrustful or difficult to the nursing home because they want it to care for the loved one. They fear by not signing the document the facility will be upset and maybe take it out on their love one in the form of lower quality care.

If You Have Signed an Arbitration Agreement, Rescind it.

You have the right to rescind the arbitration agreement with written notice of rescission within 30 days. This is known as the 30-Day Cooling Off period. A brief letter explaining that you are exercising your right to rescind all arbitration agreements will suffice. (CCP §1295(c).)

Notice of Rights

• Nursing home must inform the resident both orally and in writing in a language that the resident understands of his or her rights. (42 CFR §483.10(b)(1); 22 CCR §72527(a)(1).)
• Nursing home must give the resident written information about advance directives explaining: (1) the right to make health care decisions; (2) the right to accept or refuse medical treatment; (3) the right to prepare an advance health care directive; and (4) the facility’s policies governing use of advance directives (42 USC §1395cc(f); 1396a(w); 42 USC 1396r(c)(2)(E); 42 CFR §489.102; 42 CFR §483.10(b)(8).)

Reimbursement Rights Under Medicare and Medicaid

• • Medi-Cal and/or Medicare certified nursing homes cannot require you to waive your right to Medicare or Medicaid benefits as part of the admission. (42 USC §1395i-3(c)(5)(A)(i)(I); 42 USC §1396r(c)(5)(A)(i)(I); 42 CFR §483.12(d)(1)(i).)

• If a nursing home withdraws from Medi-Cal, all residents admitted prior to the notification date have the right to remain in the facility and receive Medi-Cal payment for their care if they are eligible for Medi-Cal or become eligible (W&I Code §14022.4; 42 USC §1396r(c)(2)(F).)

Transfer & Discharge Rights

• You have the right to be notified in writing before your transfer or discharge from the nursing home. (22 CCR §72527(a)(6); 42 CFR §483.10(b)(11); 42 CFR §483.12(a)(4),(5),(6).)
• You have the right to appeal any transfer or discharge decision to the Licensing and Certification Office. (H&S Code §1599.1(h)(2),(3),(4); 42 CFR §483.10(o); 42C FR §483.12(a)(6)(iv).)
• You have the right to return to the nursing home after a short-term transfer to a hospital or after a therapeutic leave from the facility. (The nursing home must explain to you their policy about bed holds and your rights to return to the facility. (H&S Code §1599.1(h)(1); 42CFR 483.12(b).)

Prohibition against Transfer or Eviction

• Medi-Cal certified nursing home shall not transfer or seek to evict resident due to resident changing from private pay or Medicare to Medi-Cal. (42 CFR §483.12(c)(1); W&I Code §14124.7(a)
• You have the right not to be kicked out of nursing home in retaliation for filing a complaint. Any attempt to kick a resident out with 180 days of filing a complaint is presumed to be retaliatory. (H&S Code §1432 (a), (b).)
• You have the right to remain at the nursing home if you made a timely application for Medi-Cal and are waiting for an eligibility determination to be made. (W&I Code §14124.7.)

Converting to Medi–Cal

• Facilities are prohibited from transferring or discharging residents who have made a timely application for Medi–Cal and for whom an eligibility determination has not been made. In addition, facilities are prohibited from transferring the resident to a different room because of that payment change, except that the resident may be transferred from a private room to a semi–private room (Cal. Welfare & Institutions Code §14124.7).

Readmission to a Nursing Home After a Hospital Stay

• Nursing home residents have the right to be readmitted after a hospital stay. Whenever a resident is transferred to a hospital, the nursing home must allow the resident or family member to hold the resident’s bed for up to seven days (22 Cal. Code of Regulations §72520). This is called a bed hold. If the resident is on Medi–Cal, the Medi–Cal program will pay for the bed hold for up to seven days (22 Cal. Code of Regulations §51535.1).Nursing homes must offer a written bed–hold notice to the resident and a family member when a resident is transferred to the hospital (22 Cal. Code of Regulations §72520(b) & 42 C.F.R. §483.12(b)(2)). If the nursing home doesn’t comply, the nursing home must offer its next available bed at the conclusion of the hospital stay (22 Cal. Code of Regulations §72520(c)).

  Furthermore, any resident on Medi–Cal has a right to be readmitted to a nursing home even if the resident’s hospital stay exceeds seven days. If the resident still needs nursing home care, the nursing home must readmit him or her to the first available bed in a semi–private room (42 C.F.R. §483.12(b)(3)).

  The facility’s refusal to honor a bed hold or readmit a resident following a hospital stay will be treated as an involuntary transfer, allowing the resident the right to appeal the transfer (Cal. Health & Safety Code §1599.1(h)). To request an appeal, call the Transfer/Discharge and Refusal to Readmit Unit of the Department of Health Care Services at (916) 445-9775 or (916) 322-5603 and ask for a readmission appeal. If the resident is Medi–Cal eligible or has another source of payment, he/she can remain in the hospital until the final determination of the hearing officer. If the resident is not on Medi–Cal or has no other source of payment, the hearing and final determination must be made within 48 hours (Cal. Health & Safety Code §1599.1(h)). See the “Appealing a Transfer or Discharge” section for more information regarding appeals.

Rights Relating to Quality of Life

• You have the right to choose and participate in activities, which you like, and which are part of your plan of care. (H&S Code §1599.1(d); 42 CFR §483.15(b)(1).)
• You have the right to participate in social, religious, and community activities. (22 CCR §72527(a)(14); 42 CFR §483.10(b)(2),(d).)
• You have the right to register and vote in local, state and national elections. (22 CCR §72527(a)(7); 42 CFR §483.10(a)(1).)
• You have the right to voice complaints or grievances without fear of retaliation. The nursing home must give you information about how to file a complaint with the facility, the Ombudsman, and with the Department of Health Services’ Licensing and Certification Office. (22 CCR §72527(a)(7); H&S Code §1599.2(c); 42 CFR §483.10(b)(7)(iv); 42 CFR §483.10(f)(1).)
• You have the right to organize and participate in residents groups; and your family has the right to organize and participate in family groups in the nursing home. (22 CCR §72527(a)(13),(14); 42 CFR §483.15(c)(1).)

Right to Living Accommodations, Homelike Environment & Care

• You have the right to express preferences with respect to your room and roommate and be advised before any changes are made. (42 CFR §483.10(b)(11)(ii)(A); 42 CFR §483.15(e)(2).)
• You have the right to a safe, clean, and comfortable home-like environment. (H&S Code §1599.1(e); 42 CFR 483.15.)
• You have the right to housekeeping and maintenance services necessary to maintain a sanitary, orderly and comfortable environment. (42 CFR §483.15(h)(2).)
• You have the right to a clean bed and bath linens that are in good condition. (42 CFR §483.15(h)(3).)
• You have the right to private closet space. (42 CFR §483.15(h)(4).)
• You have the right to adequate and comfortable lighting levels in all areas. (42 CFR §483.15(h)(5).)
• You have the right to comfortable and safe temperature levels. (42 CFR §483.15(h)(6).)
• You have the right to comfortable sound levels. (42 CFR §483.15(h)(7).)
• You have the right to receive care in a manner which promotes and enhances your quality of life. This includes food of the quantity and quality to meet your needs and preferences. (H&S Code §1599.1(c); 42 CFR §483.10(i)(L); 42 CFR §483.15; 42 CFR §483.15(e)(1).)
• You have the right to services necessary to attain or maintain your highest practicable level of functioning. (H&S Code §1599.1(a),(d); 42 CFR §483.15(e)(1).)

Right to Make Healthcare Decisions, Choose Health Care Providers, Inspect Records

• You have the right to participate in designing your plan of care/ treatment. (22 CCR §72527(a)(3); 42 CFR §483.10(d)(3))
• You have the right to choose your personal doctor. (22 CCR §72527(a)(3); 42 CFR §483.10(b)(9); 42 CFR §483.10(d)(3).)
• You have the right to refuse any plan of care, treatment, or procedure. (22 CCR §72527(a)(4); 42 CFR §483.10(b)(4); 42 CFR 483.10(b)(8).)
• You have the right to make advance directives for treatment such as a power of attorney for health care or other instructions about important health care decisions such as unwanted, life-sustaining treatment. (Standard Admission Agreement; 42 CFR §483.10(b)(4); 42 CFR §483.10(b)(8).)

Right to be Free from Restraints (physical and chemical)

You have the right to refuse any bonds which limit your mobility or drugs that affect your mind, except in an emergency situation. Any use of such restraints must be used to treat medical symptoms and not for the purpose of discipline or staff convenience. (22 CCR §72527(a)(5); 22 CCR §72527(a)(23); 42 CFR §483.13(a).)

Right to Privacy/Confidentiality/Access to Visitors

• You have the right to visits with family and friends. (22 CCR §72527(a)(20); 42 CFR §483.10(e)(1).)
• You have the right to contact and meet with certain agency representatives or individuals who provide health, legal, social, or other services. (22 CCR §72527(a)(18),(19); 42 CFR §483.10(j)(1), (2).)
• You have the right to privacy during your visits or meetings, in making telephone calls, and with your mail. (22 CCR §72527(a)(21); 42 CFR §483.10(e)(1).)
• You have the right to privacy in your room and during bathing, medical treatment, and personal care. (22 CCR §72527(a)(11); 42 CFR §483.10(e)(1).)
• You have the right to keep your personal and health records confidential. (22 CCR §72527(a)(10); 42 CFR §483.10(e)(1).)

Payment Rights

• You have the right not to be discriminated against based on source of payment. (42 U.S.C. 1395i-3(c)(4); 42 U.S.C. 1396r(c)(4); W&I Code §14124.10.)
• You have the right to return of payment for services later paid by Medi-Cal (W&I Code §14019.3.)
• Nursing home must inform resident of available services and related charges, including any charges for services not covered by its basic rate or not covered by Medi-Cal or Medicare (22 CCR §72527(a)(2); 42 U.S.C. 1395i-3(c)(1)(B)(iii); 42 U.S.C. 1396r(c)(1)(B)(iii); 42 C.F.R. 483.10(b)(5), (6).)
• Nursing home must give 30 days written notice of any rate increase in the facility (H&S Code §1288(a).)
• Nursing home must provide monthly statements itemizing all charges incurred by residents (H&S Code §1599.67(a).)
• Nursing home cannot impose a charge for any item or service for which payment is made under Medicaid or Medicare, except for applicable deductible and coinsurance amounts (42 CFR §483.10(c)(8).)
• Nursing home must not charge a resident or representative for any item or services not requested by the resident (42 CFR §483.10(c)(8)(iii).)
• Nursing home must inform the resident or representative requesting an item or service for which a charge will be made that there will be a charge for the item or service and what the charge will be (42 CFR §483.10(c)(8)(iii).)
• Nursing home must return any advance payments no later than 14 days after the resident’s discharge or death to the heir, legatee or personal representative (22 CCR §72531; H&S Code §1599.71.)

Rights on Protecting Your Money and Property

• You have the right to manage your own financial affairs, or you may have the nursing home manage your personal money in accordance with specific requirements, which include periodic accounting reports. (22 CCR §72527(a)(8); 42 CFR §483.10(c))
• You have the right to reasonable security of clothing and personal property. The nursing home must have a program to reduce theft and loss and maintain an inventory of your clothing and other personal property. (Standard Admission Agreement; 22 CCR §72527(a)(15);42 CFR §483.10(l).)

Family Member Rights

• You have the right to visit at any time (H&S Code §1418.3; 42 USC §1395i-3(c)(3); 42 USC §1396r(c)(3); 42 CFR §483.10(j).)
• You have the right to participate in planning the resident’s care (42 USC §1395i-3(b)(2); 42 USC §1396r(b)(2); 42 CFR §483.20(k)(2).)
• You have the right to be informed of residents’ rights (H&S Code §1599.1.)
• Right to immediate notification of an accident resulting in injury, a significant change in the resident’s condition, a need to alter treatment significantly, or a decision to transfer the resident (42 CFR §483.10(b)(11)(i).)
• With the resident’s consent, the right to be notified if a physician orders or increases an order for an antipsychotic medication (H&S Code §1418.9.)
• You have the right to be notified promptly if the resident is going to be moved to another room or if there is a change of roommates (42 CFR §483.10(b)(11)(ii).)
• You have the right to organize and participate in a family council (H&S Code §1418.4; 42 CFR §483.15(c).)

Right to Exercise Rights and Voice Complaints

• You have the right to be free of interference, coercion, discrimination, and reprisal from the facility in exercising rights (42 USC §1395i-3(c)(1)(A)(vi); 42 USC §1396r(c)(1)(A)(vi); 42 CFR §483.10(a); 22 CCR §72527(a)(7).)
• You have the right to complain and recommend changes in policies and services, to contact outside representatives, to file complaints, and to cooperate in inspections and investigations, to be free from coercion, discrimination or reprisal (H&S Code §1432, 22 CCR §72527(a)(7); 42 USC §1395i-3(c)(1)(A)(vi); 42 USC §1396r(c)(1)(A)(vi); 42 CFR §483.10(f).)
• You have the right to resolve grievances, including those involving the behavior of other residents (42 CFR §483.10(f)(2).)
• You have the right to contact and receive information from agencies acting as client advocates (42 CFR §483.10(g)(2))

Right to File Complaint

Any person has the right to file a complaint by phone, in writing, or in person with the Department of Public Health (DPH) against a nursing home (H&S Code §1419(d).)

Department of Public Health shall make an onsite inspection or investigation within 24 hours of the receipt of the complaint if there is a serious threat of imminent danger of death or serious bodily harm; onsite investigations of all other complaints must begin within 10 working days of receipt of the complaint (H&S Code §1420(a)(1).)