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The Complete Guide to Nursing Home Bill of Rights in NY

Monday, September 14, 2020
*** If you want to learn more about removing your loved one from a nursing home and getting paid to take care of them click here.


 If you’ve got loved ones who are living in a nursing home, you might be wondering what their rights are when it comes to privacy, the standard of care, social interactions, freedom of expression, and other things that might be important.

 

The good news is that the Nursing Home Reform Act clearly states what rights someone has as a nursing home resident.

 

The nursing home Resident’s Bill of Rights requires that your loved one receives high-quality care to ensure both physical and psychological well-being.

 

In this article, we will cover the resident’s bill of rights in detail, as well as list attorneys in the NYC area who can help you if you feel like your family member isn’t being treated fairly.

 

We will also discuss potential alternatives to nursing home care that will give you, and your loved one, more control over the standard of care, privacy, and other vital issues regarding their quality of life.

 

What is the Resident’s Bill of Rights?

 

The nursing home residents’ bill of rights was established when Congress passed the Nursing Home Reform Act in 1987.

 

The law specifies the standard of care a nursing home must provide its residents, including the following necessary services.

 

●       Residents must get a periodic assessment

●       A comprehensive care plan

●       Nursing services

●       Social services

●       Rehabilitation services, where necessary

●       Pharmaceutical services for nursing home residents

●       A full-time social worker if the nursing home has more than 120 beds

 

Along with the list of the core services a nursing home must provide, the Nursing Home Reform Act also lists the rights you, or your family member, have as a resident.

 

The list of resident rights as stated in the nursing home bill of rights

 

Here are all the rights you’re entitled to as a nursing home resident.

 

●       The right to live in a comfortable environment free from neglect, abuse, and mistreatment.

●       The right to live freely without worry or fear of any sort of physical restraint

●       The right to a reasonable level of privacy

●       The right to get the proper care that meets physical, medical, social, and psychological needs

●       The right to take part in group activities with family and other residents

●       The right to be treated in a dignified way

●       The right to determine what’s best for yourself (self-determination)

●       The right to freedom of communication and speech

●       The right to be fully informed and be able to review about ones care plan in advance (including being notified in advance about any changes to the care plan)

●       The right to express grievances without the fear of reprisal or discrimination

 

Below, we’ll delve into more specific details about what the law covers in various areas of nursing home living.

 

But first let’s take a closer look at the law, and how it ensures that nursing homes stick to the proper standards of treatment and care of residents.

The 1987 Nursing Home Reform Law

 

The law originated because of a 1986 study by the Institute of Medicine, at the request of Congress, that looked into the standard of care being provided in nursing homes around the country.

 

The study found that there was widespread abuse, neglect, and inadequate care in many nursing homes.

 

The findings prompted Congress to pass sweeping reforms to regulate nursing home care, and it resulted in the Nursing Home Reform Act, as a part of the Omnibus Budget Reconciliation Act of 1987.

 

The purpose of the Nursing Home Reform Act

 

The main purpose of the bill was to make sure that each and every resident living in a nursing home, or another long-term care facility, received high-quality care.

 

It also helped the nursing home administrators by providing clarity on their responsibilities to the residents.

 

The Nursing Home Reform Act requires the care facilities to provide service in a way that promotes achieving or maintaining the "highest practicable" well-being, including physical, mental, and psychosocial aspects.

 

Enforcing the Nursing Home Reform Act

 

We’ve discussed how the Nursing Home Reform Act established a bill of rights to ensure that residents get quality care in a living facility.

 

But how is the law enforced? In other words, how do you know that the nursing home will stick to these guidelines and provide the right care for your loved one?

 

The answer lies in Medicaid and Medicare funding.

 

Many nursing homes receive Medicaid and Medicare payments for residents who qualify for those programs.

 

So, if your loved one qualifies for Medicaid, then you might already know that Medicaid covers all or part of the nursing home costs.

 

But to actually receive the payments from the programs, nursing homes have to be certified by the state to be in proper compliance with all the requirements of the Nursing Home Reform Act.

 

So it is in the nursing home’s best interest to stick to the right standards so they can get compensated. This also gives you leverage to demand fair treatment and care from the care facility.

 

If they don’t stick to the bill of rights, then you can contact an attorney in the area to help you with your claims (NYC list below).

 

If you’re not a New York resident, check with your local authorities about how they enforce the nursing home bill of rights in your area. Some states include residents' rights in the law or in the regulations concerning long-term care facilities.

 

Regardless of how it is enforced, the spirit of the Nursing Home Reform Act is that a person living in a care facility has the same rights as someone residing in the larger community.

 

The full list of resident’s rights in NY

 

We listed the resident’s bill of rights above according to the Nursing Home Reform Act. But let’s take a look at some specific areas of the law, and how it affects your rights as a resident living in a care facility in New York.

 

These are not separate from the rights we listed above. The rights listed here are delving deeper into more specific explanations of what falls under some of the things listed in the bill of rights.

 

You have the right to complain

 

●       If you have an issue, you can bring it to the attention of the staff without the fear of any kind of reprisal

●       The staff will make prompt efforts to resolve your issue

●       You can complain to the ombudsman program

●       If you feel like you’re being mistreated, you can complain to the state survey and certification agency

 

You have the right to be fully informed about your care plan

 

●       The facility must communicate all the available services and any corresponding charges

●       They must provide you with a written copy of the resident’s rights, and all the facility rules and regulations

●       You have to be informed in advance if there is a plan to change rooms or roommates

●       If you have a sensory impairment, then you have the right to receive special assistance to accommodate your needs

●       You have a right to receive all necessary communication in a language you understand

●       You must also receive a copy of the state’s survey reports

●       The facility must provide any plans of correction according to the report, if any

●       The contact information of the State Ombudsman

 

You have the right to participate in your own care

 

●       You have the right to refuse certain medications and treatments (always consult with your doctor before making such decisions)

●       You can refuse physical and chemical restraints (you will receive adequate information to make an educated decision)

●       You always have the right to review your medical record

●       You have the right to privacy and confidentiality when it comes to your care

●       You’ll never be charged for services (or part of services) that are compensated by Medicaid and/or Medicare

●       You must be timely informed about all changes in your medical conditions

●       You have the right to take part in your own assessment, care-planning, and discharge plans

●       Needless to say, you must receive proper and adequate care for any disability or ailments

 

You have the right to privacy and confidentiality

 

●       You must be allowed to communicate with any person you want without any restrictions (as per the bill of rights’ provision on the freedom of communication)

●       You have the right to confidentiality when you receive treatment or care for personal needs

●       You have the complete right to privacy when it comes to medical, personal, or your financial affairs (just like anyone living outside a nursing home)

 

You have the right to dignity, respect, and freedom

 

●       You have the right to be treated with respect, professionalism, and dignity at all times

●       Under no circumstances are you allowed to be subject to mental or physical abuse

●       You are never to be subject to corporal punishment or involuntary seclusion

●       You have to freedom to choose what is best for you (self-determination)

●       You have the right to secure your possessions

 

Your rights during transfer and discharges

 

●       You have the right to stay at the nursing facility unless a transfer or discharge is necessary because

○       Of your physical or mental well-being

○       Your health has improved and a care facility is no longer necessary

○       It is to protect the health and safety of staff/other residents

○       You have failed to pay the appropriate charges after adequate notice

●       You must receive a thirty-day notice before a transfer or discharge including the following information

○       The reason for transfer or discharge

○       The effective date of transfer/discharge

○       The location where you are being transferred or discharged to

○       Explanation of the procedure and your right to appeal the transfer/discharge

○       Contact information for the state long-term care ombudsman

●       Your transfer must be done safely with proper preparation by the nursing home

 

Your rights to visitations

 

●       You have the right to visit

○       Your doctor

○       Representatives from the state survey agency

○       Representatives from the state ombudsman

●       You can have visitors who are

○       Your friends

○       Relatives

○       Any other person you choose to see for personal reasons

●       You can visit people from groups organizing the following services

○       Health

○       Social

○       Legal

○       Other necessary services for your well-being

●       Of course, you also have the right to refuse visitors

 

Your right to make independent choices

 

●       You have the freedom to express yourself. For example

○       What you want to wear

○       Your daily routine

○       The content you read/watch

●       The nursing home has to make accommodations to your needs and wants to a reasonable level

●       You have the freedom to take part in activities in and out of the nursing home

●       Take part in the resident’s council

●       You can remain in control of your finances if you want

 

Options available to nursing home residents if their rights are not being respected

 

If you feel like your rights are not being respected at a nursing home, the best thing to do is to bring it up to them at first.

 

It might be an oversight or misunderstanding, and in the best-case scenario, it can get resolved through a conversation between the two parties.

 

But unfortunately, sometimes things are more complicated, and you might find that your rights are repeatedly being violated despite you bringing it to their attention.

 

In that case, your best option is to speak to an attorney.

 

List of NYC lawyers who handle nursing home cases

 

Here are five highly rated nursing home lawyers in NYC. If you’re having issues, feel free to give them a call to see if they are able to assist you with your case.

 

1. Devon Reiff P.C.

 

114 East 42nd Street, Suite 1508

New York, NY 10017

 

Tel: 212-988-9000

 

2. Raphaelson & Levine Law Firm, PC

 

14 Penn Plaza, Suite 1718

New York, NY 10122

 

Tel: 646-835-2527

 

3. The Carlson Law Firm, PC

 

100 E Central Texas Expy

Killeen, TX 76541

 

Tel: 254-526-5688

 

4. Avanzino & Moreno, P.C.

 

26 Court Street, Suite 2015

Brooklyn, NY 11242

 

Tel: 347-943-8462

 

5. Enea, Scanlan & Sirignano, LLP

 

245 Main Street, Suite 500

White Plains, NY 10601

 

Tel: 914-948-1500

Home care vs. nursing home care

 

Regardless of whether you or your loved one are living at home or at a care facility, you are entitled to the rights as we have mentioned here.

 

You have the right to privacy, independence, respect, adequate medical care, and more. But there are a few things to consider when living at a nursing home, or any other care facility.

 

Even if the facility is abiding by the highest standards and all the rules, you are still sharing space with other residents in the nursing home. And your needs and preferences can only be met to the extent that they don’t interfere with the well-being or needs of other residents.

 

And you can never truly live in a nursing home the way you can in your own home.

 

Of course, the benefit of living in a nursing home is access to a higher level of medical care.

 

But if you don’t need a nursing home level of medical attention, and it is possible for you to live at home with a personal care attendant, then home care might be an option for you.

 

Here are some of the benefits of living at home over a nursing home.

 

●       You get to continue living in your own home

●       You get to continue to be a part of the community that you know and love

●       You have greater autonomy and independence since you’re not sharing space with other residents

●       You may be able to live with another family member or friend

●       You’ll always greater privacy at home over a care facility

 

But what if you need medical attention?

 

The good news is that it is possible to get medical attention at home through a personal care attendant, as we will discuss below.

 

Be sure to consult with your doctor and family member to discuss what type of care (nursing home vs. home care) is right for you.

 

If you mostly require assistance with daily living activities, with the occasional visit to the doctor, then CDPAP might be an option for you for home care.

 

Consumer-Directed Personal Assistance Program (CDPAP)

 

CDPAP is a program through Medicaid in the state of New York that allows you to hire friends and family members to provide personal care.

 

You hire your friend/relative to help you with daily living activities like cleaning, cooking, personal hygiene, grooming, etc., and they get compensated through the New York State Medicaid program.

 

Here are the requirements to qualify for CDPAP in NY.

 

●       You must have Medicaid.

●       You must have an ongoing medical condition, and require assistance with activities of daily living.

●       You must be self-directing, and be able to hire, train, and direct your caregiver.

 

Unlike regular home health aides, CDPAP personal caregivers can provide skilled medical tasks usually performed by nurses, but it is up to you to make sure they are qualified to do so.

 

When you hire a caregiver through CDPAP, they can provide help with the following tasks, among others.

 

Activities of daily living:

 

●       Bathing

●       Grooming

●       Cleaning

●       Household chores

●       Meal prep

●       Dressing

●       Mobility

●       Transportation for shopping, doctor’s visits

●       Administrative tasks

 

Skilled medical tasks include the following:

 

●       Wound care

●       Insulin administration

●       Shots

●       Suctioning tracheostomies

●       Help with taking medications

 

The only exceptions when it comes to who you can’t hire as a caregiver are the following.

 

●       Legal spouse

●       A parent caring for a child under 21

●       A designated representative

 

CDPAP is a win-win for both you and the caregiver.

 

You get to receive care from someone you trust. The caregiver gets compensated through Medicaid, and they get to care for someone they also care about.

 

To learn more, including how to apply and the details about the care you can receive, check out our CDPAP guide.

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