In long term care facilities, the general well-being of residents relies on the performances of facility staff and medical professionals and the documentation of important data in long term care software to ensure residents are comfortable and safe. But from a legal standpoint, seniors in long term care also have rights that entitle them to a certain standard of care.
There are several federal and state laws in place to protect resident rights. In 1987, under President Ronald Reagan, the Nursing Home Reform Act (NHRA) was passed to ensure long term care residents receive adequate care during their stay. The law aimed to set a high standard of care, protecting a resident’s physical, mental, and general well-being.
Within the NHRA, a Residents’ Bill of Rights was also included, stating the fundamental rights for every long term care resident. Some key features of the bill included:
- The right to welcome or refuse visitors
- The residents’ rights to remain in the facility until transferred or discharged
- The right to be treated with dignity, giving residents full transparency to their care plans
- The right to refuse treatment or care
- Freedom from abuse, mistreatment, and neglect
- Freedom to voice their concerns without retaliation or discrimination
However, there was little enforcement at either a federal or state level for facilities to improve their practices despite best intentions. Therefore, in 1998, the Nursing Home Initiative (NHI) was introduced to strengthen the NHRA system by instituting penalties for facilities that failed to meet the national standards. These facilities would see a reduction in their government reimbursement, giving them more incentive to comply.
In 2021, the Nursing Home Reform Modernization Act was introduced, updating the bill to require the Centers for Medicare and Medicaid Services (CMS) to present a ranking system for all long term care facilities that fall under Medicare and Medicaid’s jurisdiction. The new bill considers additional findings to include appropriate metrics, quality control, and recommendations as specified by the Advisory Council on Skilled Nursing Facility Rankings.
The CMS, then, developed a ranking system categorizing facilities according to their high or low scores. Facilities with a low ranking are given progressive actions to implement until they meet the national standards, with the steps varying depending on the severity of their ranking score.
While every industry is regulated with protocols, the long term care industry is particularly regulated. “The only other industry that’s more regulated than we are, is nuclear power,” said Bob Hurlbut, the president and CEO of Hurlbut Care Communities. “Not even hospitals are as regulated as we are.” This has been heightened by the COVID-19 pandemic, which has introduced even more regulations.
On a recent episode of LTC Heroes, a father and son duo, Bob and Robert Hurlbut, explained how additional COVID regulations will negatively impact the long term care industry, affect the quality of care, and increase the likelihood of potential lawsuits. Listen to the full podcast here:
The Difference Between Resident Rights in Assisted Living and Nursing Homes
Resident rights are what protect seniors in long term care. Further, they ensure that they are content with their living situations. As outlined in the Nursing Home Reform Law, it is a legal requirement for assisted living facilities to “promote and protect the rights of each resident” by prioritizing an individual’s dignity and self-determination.
The Nursing Home Reform Law (NHRA) highlights the importance of resident rights in assisted living facilities to ensure residents are given a high quality of life and adequate care. These rights must be displayed in a visible area within a facility and given to each resident upon admission.
Facilities that fail to comply with resident rights are punishable, either by way of a monetary fine or, in extreme cases, imprisonment. Should a resident find themselves being mistreated or abused in a facility, they or their families have the right to take legal action against the facility for violating their rights. And this is increasingly becoming a problem, as Bob Hurlbut noted that because the industry has “changed substantially, especially with the constantly changing regulations,” it is difficult for facilities to stay updated with the latest rule changes.
Resident Rights in Assisted Living
There are subtle differences between resident rights depending on the nature of the long term care facility in question, as assisted living and nursing homes are quite different. Assisted living facilities are typically more appropriate for seniors with high levels of functionality. Therefore, they can live a relatively independent life, but with some help in Activities of Daily Living (ADLs).
Due to the residents’ high level of functionality, an assisted living facility prioritizes a high quality of life with varying levels of support. Robert Hurlbut commented that it’s essential to “meet with the department heads, to see what’s going on and see what issues are arising.” That way, the facility can “help to make sure the residents [are happy],” thus improving their quality of life.
Residents in assisted living facilities are given the autonomy to come and go as they please, specify food preferences, and participate in organized social activities. Therefore, resident rights in assisted living facilities are broader and less specific than those in a nursing home.
Below are some fundamental resident rights in assisted living:
- Live in a safe and sanitary living environment, free from abuse or neglect
- Be treated with consideration, respect, and privacy
- Freedom to wear their own clothing and use personal items
- Unrestricted communication in all correspondence, including telephone access and admitting visitors
- Freedom to participate in any community services and activities
- The right to manage their own financial affairs unless a legal representative is instated
- The right to share a room with one’s spouse should both residents live in the same facility
Residents Rights in Nursing Homes
Nursing homes are more appropriate than assisted living for seniors who need around-the-clock care and supervision. Typical nursing home residents suffer from dementia-related illnesses or significant physical or medical ailments, which affect their movement and ability to perform daily activities.
It is estimated that only ten percent of nursing home residents can walk without assistance, while sixty percent of nursing home residents receive psychotropic medications. It is not surprising, then, that residents rights in nursing homes also include specific rights that protect residents from restraints, coercion, and access to advocacy groups like the state ombudsman service.
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Advocates for Residents Rights
In 1965, Congress passed the Older Americans Act (OAA) to address seniors’ lack of social services. This legislation led to many state grants and regulations targeting social services. The law also initiated the Administration on Aging (AoA), so the federal government could distribute state funds to support services for seniors over sixty years old. The AoA initiated the nationwide Ombudsman Program for Community Living (ACL). which stipulates that every state must have an ombudsman program to improve residents’ quality of care and life in long term care facilities.
When residents rights are abused, and complaints about elder abuse or mistreatment are filed, residents enlist advocate services like those of an ombudsman, a government-appointed official who advises on various topics like how to find an appropriate facility, how to get someone admitted to a nursing home, and how to protect resident rights.
Some key responsibilities of an ombudsman include:
- Investigating and resolving resident rights and complaints
- Representing the interests of residents to government agencies
- Seeking administrative and legal solutions to protect residents
- Analyzing and recommending changes to government laws and regulations to better protect residents and improve their safety and welfare
- Educating the general public about long term care issues with public announcements on rules and regulations, policies, and actions
The current ombudsman network has 5,947 certified volunteers and 1,362 paid staff who handle complaints. Despite the industry being heavily regulated to protect resident rights in assisted living, the ombudsman program investigated over 198,502 complaints in 2019 alone, while also providing information to a further 425,084 residents and their families. Needless to say, the over 800,000 seniors residing in assisted living facilities have a considerable amount of dissatisfaction with the industry.
Facilities and their staff are placed in a position of trust and expected to provide an appropriate level of care. If that trust is broken, it can have disastrous consequences on the residents and their families. Therefore, it is essential to “educate the legislators and keep it simple,” said Bob Hurlbut. “Because you’ve got to remember—they’re getting hit with all these other issues besides the nursing home industry.”
Facilities need to find a balance between protecting resident rights, meeting the expectations of everyone involved, and providing a high level of quality care. They can look to the resident’s rights handbook for further guidance in such circumstances.
Knowing and Understanding Resident Rights
It is worrying just how common abuse and neglect occurs in long term care facilities. According to a World Health Organization (WHO) study in 2020, sixty-six percent of long term care staff admitted to abusing residents, with one-in-three residents having been victims of nursing home abuse.
Some of the factors that contribute to the appearance of resident abuse are:
- Inadequate training or unqualified facility staff
- Insufficient security checks that lead to the hiring of inappropriate staff, like people with a history of violence or abuse
- Poor patient to staff ratio, leading to facility staff being overwhelmed with residents
- Reluctance from residents to report abuse out of fear of retribution
- Isolation of residents from their families, which makes the former more vulnerable to neglect, as there is no outside support to notice the abuse
In cases of abuse, facility staff members will often take their anger out on vulnerable residents. Instead of receiving appropriate care, they are met with delayed responses and other forms of harm.
The various types of long term care abuse can affect residents differently. The most common types of abuse are physical, emotional, and sexual abuse. There are signs to look out for, some being more obvious than others. Therefore, it is essential to know which type of abuse a resident is suffering from so the problem can be better addressed.
Physical abuse can be anything from pushing, kicking, or hitting. It is easier to catch these signs through injuries like bruises or broken bones. Emotional abuse is harder to spot, because it affects a resident’s mental health. Therefore, the abuse can take place for much longer because it’s harder to see. Emotional abuse can be anything from staff yelling or taunting residents and isolating them from their families. Typical signs to look out for include depression, anxiety, and a loss of confidence in the resident.
Both families and residents should know and understand the resident rights in assisted living facilities so that they can detect and prevent any abuse from taking place.
In situations where there is suspicion of abuse or neglect, families and residents should report the matter to state services like the Ombudsman Program or the Adult Protective Services (APS), who will investigate the matter.
In life-threatening emergencies, call 911 and speak with the authorities to address the problem immediately. Either way, it is of utmost importance to report any issues, even in the case of suspicion or risk the abuse continuing.
Even though there are significant federal laws to ensure every resident is treated with dignity and respect, elder abuse still exists, and the facility will be held accountable. If discovered that a facility is neglecting or abusing residents and violating their resident rights, then it is imperative to seek legal advice from an experienced attorney, holding the facility liable for any harm and distress caused.
When resident rights are abused, it typically leads to three types of legal proceedings, each with different repercussions depending on the situation. These are:
- A legal investigation by government protection services, like the Ombudsman Program, which offers immediate help to residents and prevents any further harm
- A civil lawsuit against any damages inflicted on the resident, which usually results in a monetary compensation
- A criminal prosecution to punish caregivers for any harmful conduct that can lead to imprisonment, depending on the severity of the situation
While taking legal action may not be an appealing option, it is necessary to safeguard other residents from suffering a similar fate in the future. In an industry like long term care, where the primary focus is on resident care, more needs to be done to combat elder abuse and neglect.
One of the few positives of civil lawsuits is that it forces facilities to change their internal policies and staff recruitment, hoping that the level of care will improve. “Taking care of the elderly is getting very difficult in this day and age,” said Bob Hurlbut. “You really have to love the elderly to get into this business.” Therefore, facilities need to have a better screening process for new recruits to ensure they employ appropriate staff members so keeping the residents safe.
For more on recent trends in long term care, read our blog and subscribe to the LTC Heroes podcast.