Statistics presented by the CDC reveal that about 1.2 million people are currently living in licensed nursing homes in the USA. According to the U.S. Department of Health and Human Services, an estimated 70% of Americans who are over the age of 65 may require long-term care services at some stage in their lives.
The mere act of moving to an institutional nursing home does not necessarily erase the fundamental legal rights of an individual. As a matter of public policy, there must be safeguards to prevent violations and abuse of nursing home residents.
According to Baton rouge nursing home abuse lawyer Andre P. Gauthier, if a caregiver puts your loved one at risk and that risk results in bodily injury, you have grounds to file a case against the liable party. Depending on how the harm occurred, the assisted living facility or its employees may be liable for the damages.
Let’s examine the legal rights federal law guarantees to nursing home residents, how those rights are protected, and what steps can be taken if a facility fails to meet its obligations.
The Federal Mandate: Highest Practicable Well-Being
One of the most fundamental conditions for nursing home providers stated in the Federal Nursing Home Reform Act is to guarantee that the residents can achieve and maintain their physical, mental, and subsocial well-being to the maximum extent possible.
The Center for Medicare and Medicaid Services is dedicated to enforcing these laws through randomly scheduled checks and issuing fines where the rules have been breached. The CMS can even set prohibitions on new admissions and rescind a non-compliant facility’s Medicaid and Medicare certification.
The legislation shifted the focus away from compliance to institutional objectives. Before 1987, facilities were wildly different in staffing, conditions, and the way residents were treated, and federal oversight was mostly absent or at least pretty thin.
The Resident Bill of Rights: Specific Guarantees
The Federal Nursing Home Reform Act set up a Resident Bill of Rights, and it goes over a few categories that are each enforceable via regulatory action.
- Freedom from unnecessary restraints. Facilities are not allowed to use physical or chemical restraints, including psychotropic medications, as a disciplinary tool or just to make things easier for staff. Restraints may be used only when they’re truly needed to treat a medical symptom, and only after the resident or their legal representative has clearly understood the situation and consented. This right was one of the two particular rights that the Supreme Court treated as individually enforceable in the Talevski case, in which the facility had heavily sedated a man with dementia and disregarded the objections of the patient’s family. In the end, the patient became unable to feed himself or speak.
- Protection from involuntary transfer or discharge. A facility cannot transfer or discharge a resident unless it fits within certain legally allowed reasons. Valid reasons include a resident needing healthcare that the facility cannot provide, when the resident’s presence creates a safety threat to other residents or staff, when the resident hasn’t paid after notice, when the facility is shutting down, or when the resident’s condition has improved enough.
- Residents have the right to information and also to take part in their care planning. Residents must be told their diagnosis, medications, and treatment options. They also have the right to join in building and updating their care plan and they may refuse a particular treatment. Residents cannot have their care plan imposed on them, unless the resident has consented to it or their legal representative has so consented for them
- Entitlement to privacy, dignity, and respect. According to the law, facility workers are bound to maintain a high sense of responsibility while dealing with the residents. Nursing home staff must keep all personal, medical, and financial information of the residents confidential. Any resident may have visitors, make personal phone calls, get the mail even if it is unopened, etc.
- The right to file grievances without retaliation. Residents and their families are allowed to report worries or complaints to the facility administration, to state licensing agencies, or to the Long-Term Care Ombudsman program. These actions should not subject the resident and their families to retaliatory actions.
The Long-Term Care Ombudsman: A Federally Mandated Advocate
Every state is compelled through the Older Americans Act to create and maintain a Long-Term Care Ombudsman program. The ombudsmen are advocates who are certified and coordinated through a state office. These people can go into nursing facilities, look into issues raised by residents or their families, and then partner with the facility and the regulators to sort out the trouble.
This ombudsman program is separate from the licensing and certification complaint stream and runs independently. The Administration for Community Living maintains the contact details for every state’s Long-Term Care Ombudsman program.
Filing a complaint with the ombudsman does not require you to keep an attorney, nor does it stop any regulatory or legal action later.
When Rights Are Violated: Regulatory and Legal Remedies
According to nursing home abuse lawyer, nursing home abuse is often subtle and not readily noticeable. Unfortunately, preventing and stopping nursing home abuse and neglect falls to the families and visitors of those in nursing homes. These people must be vigilant for any warning signs of abuse.
When a nursing facility violates the Federal Nursing Home Reform Act, several parallel remedies can be used. They’re not always mutually exclusive, and in serious situations they may be pursued at the same time.
For example, you can file a regulatory complaint with the state health department, or more specifically, with the state survey agency that does inspections and then investigates complaints on behalf of CMS. Those state survey agencies can issue immediate jeopardy citations, which are quick fixes for conditions that pose serious risk to residents.
Private civil rights lawsuits got more realistically available after the Supreme Court’s 2023 decision in the Talevski case. The Court ruled 7-2 that the FNHRA provisions on preventing unnecessary restraints and the predischarge notice requirement create rights that individuals can enforce.
Those rights can be enforced through a lawsuit under 42 U.S.C. § 1983. So a resident, or their estate, can bring a federal civil rights case straight against the facility for these kinds of violations, without having to stick only to the regulatory complaint route.
Tort claims for negligence, abuse, or neglect are often available alongside any federal regulatory or civil rights action. Many states have also passed dedicated elder abuse and nursing home liability statutes. These laws can add further remedies, especially when the conduct is willful or reckless.
Documentation and Reporting: Where Enforcement Begins
The practical starting point for any nursing home rights concern is documentation. One must keep a historical record of events, places, and staff involved. These records will be used to prove certain claims in the future.
Medical records, care plans, incident reports and the facility protocols and practices are typically available when requested directly from the facility.
When you report a concern to the Long-Term Care Ombudsman program, the state survey agency, or sometimes both, you end up with an official record of the complaint. That record also kicks off a more formal investigative process.
These regulatory reports often become useful to attorneys who are reviewing whether a potential legal claim might exist. Nursing home rights violations rarely occur in isolation.
Abuse towards nursing home residents often points to deeper issues that detailed documentation can uncover. It is important to keep records of nursing home violations so steps for relief can be determined.