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What Legal Rights Do Persons Living in Nursing Homes Have?

Unless a court has determined that a person is sufficiently incapacitated to require guardianship, a resident of a long term care facility has all the rights of any person living anywhere in the United States.

Additionally, the rights of a person residing in a long term care facility are specially protected by both federal law (42 CFR 483), if the facility accepts Medicare or Medicaid funds in payment for the care provided, and by Washington state statutes (RCW 70.129) for all Washington facilities, regardless of the source of funds paying the resident’s costs of care.

Under federal law, a resident in a long term care facility has the right to:

Exercise her civil rights without reprisal, obstruction, or coercion from the facility in which the resident resides (42 CFR 483.10),

Be notified in writing of the resident’s rights, and the rules and obligations of living in the facility (42 CFR 483.10) (RCW 70.129.030),

Access all records pertaining to the resident herself within twenty-four hours and receive market-rate copies (42 CFR 483.10) (RCW 70.129.030),

Be informed in a language the resident can understand of her total health status (42 CFR 483.10),

Refuse medical treatment (42 CFR 483.10),

Be informed of the resident’s eligibility for Medicaid and of financial arrangements related to Medicaid (42 CFR 483.10) (RCW 70.129.180),

Receive a written description of Medicaid eligibility requirements, state elder advocacy groups, including the state long term care ombudsman, and Medicaid fraud control unit (42 CFR 483.10),

A written statement explaining how to file a complaint with the state certification agency concerning resident neglect, abuse, misappropriation of resident property, or noncompliance with the resident’s medical care advance directive (42 CFR 483.10) (RCW 70.129.030),

The name, specialty, and means of contacting the resident’s physician (42 CFR 483.10),

Receive notice about how to apply for Medicare and Medicaid (42 CFR 483.10),

Have notice delivered to the resident, her legal representative, or interested family member of accidents injuring the resident, significant changes in the resident’s physical or mental or psycho-social status, the need to alter treatment significantly, the decision to transfer or discharge the resident, a change in room or roommate, or a change in the resident’s rights under federal or state law (42 CFR 483.10) (RCW 70.129.030),

Have the facility keep on record contact information for the resident’s family or legal representative (42 CFR 483.10),

Manage her personal funds, and not be required to deposit them with the facility (42 CFR 483.10) (RCW 70.129.040, with some differences from federal law concerning the trigger sums for differential treatment of funds),

Receive an accounting of the resident’s funds held by the facility (42 CFR 483.10),
Receive notice when the amount held by the facility for a resident reaches $200 less than the Medicaid resource limit (42 CFR 483.10),

Have funds on deposit with the facility delivered to the resident’s legal representative within thirty days of the resident’s death (42 CFR 483.10) (RCW 70.129.040, except the delivery period under Washington law is forty-five days),

Choose an attending physician, and be fully informed in advance about care and treatment (42 CFR 483.10),

Personal privacy and confidentiality of her personal and clinical records, including medical treatment, telephone communications, visits by family and friends (42 CFR 483.10) (RCW 70.129.050, 70.129.080),

Voice grievances without reprisal or discrimination, and to receive prompt efforts by the facility to resolve those grievances, including the behavior of other residents (42 CFR 483.10) (RCW 70.129.030, 70.129.060),

Review results of recent surveys of the facility by government inspectors (42 CFR 483.10) (RCW 70.129.070),

Work or decline to work for the facility (42 CFR 483.10) (RCW 70.129.140),
Send or receive unopened mail (42 CFR 483.10) (RCW 70.129.080),

Have immediate access to government compliance agents and visiting friends and family (42 CFR 483.10) (RCW 70.129.090),

Make and receive private telephone communications (42 CFR 483.10) (RCW 70.129.080),

Keep and use personal property (42 CFR 483.10) (RCW 70.129.100),

Share a room with her spouse (42 CFR 483.10) (RCW 70.129.140, including Washington registered domestic partner),

Self-administer drugs (42 CFR 483.10),

Refuse transfer to another room, under certain conditions (42 CFR 483.10).

 

Under Washington law, a resident in a long term care facility has the additional right to:

All rights granted under federal law (RCW 70.129.007),

Assessment of the resident’s needs before admission to the facility (RCW 70.129.030),

A dignified existence, self-determination, and community with and access to persons and services inside and outside the facility (RCW 70.129.020),

Have a lockable locker, unless the resident’s room itself can be locked (RCW 70.129.100),

Sign no waivers of the facility’s liability or the resident’s rights (RCW 70.129.105),
Be transferred or discharged only when necessary for the resident’s welfare and to be fully apprised of the capabilities of the facility proposed for the transfer (RCW 70.129.110),

Require the facility to attempt reasonable accommodations of the resident, to notify the resident and her representative of the reasons for transfer or discharge in writing upon thirty days notice.  Where these rules are violated, the resident has a right to prompt readmission to the facility (RCW 70.129.110),

Be free from physical or chemical restraint (RCW 70.129.120),

Be free from verbal, sexual, physical, or mental abuse, corporal punishment, and involuntary seclusion (RCW 70.129.130),

 
Care that promotes the resident’s dignity and respect for her individuality, including choosing activities and health care, interacting with others from inside and outside the facility, making choices about matters significant to the resident, wearing her own clothing, hair style, or personal effects, participating in care planning and treatment, to direct her own service plan, participate in and organize resident groups, to meet with family and to have the resident’s family meet with other residents’ families in the facility, to use meeting rooms, and to participate in religious, social, and community activities (RCW 70.129.140),

Receive notice before the resident’s room or roommate in the facility are changed (RCW 70.129.140),

Receive written notice, prior to admission, of fees and costs associated with admission to the facility and residence in the facility (RCW 70.129.140).

 

The legislature prefers that all parties in facility disputes use the least formal means possible to resolve disputes (RCW 70.129.170).  Washington long term care facility rights are the minimum required of facilities, and can be enforced in addition to other state or federal rights (RCW 70.129.005).


   
Brad Lancaster works as a Seattle divorce attorney, and Seattle probate attorney, and Seattle elder law attorney, serving King County and Snohomish County, including Seattle, Shoreline, Lake Forest Park, Edmonds, Woodway, Lynnwood, Mountlake Terrace, Alderwood, Brier, Kenmore, Woodinville, Mukilteo, Mill Creek, and Everett.  Brad provides collaborative solutions to human conflict.

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