A Primer on Nursing Home Residents Rights under Medicaid Law

by: Brian E. Barreira, Esq.

Approximately 20% of all persons who die every year are residents of nursing homes.  Since a nursing home is the last place of residence for such a large percentage of our population, it is very important that all of the rights of nursing home residents be upheld.

A person who lives is a nursing home is known as a “resident,” not a patient, and it is important to note that the resident is in a nursing “home,” not a nursing “institution.”  Federal law requires that a nursing facility provide “services and activities to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident.”  Federal law also requires that a facility must ensure that a resident’s “abilities in activities of daily living do not diminish unless circumstances of the individual’s clinical condition demonstrate that diminution was unavoidable.”  Thus, maintaining a condition, or moderating the rate of decline, should always be a goal of therapy services, even if the resident is not making progress.

Federal Medicaid law requires that a nursing facility “must establish and maintain identical policies and practices regarding transfer, discharge, and the provision of services required under the state plan for all individuals regardless of source of payment.”  Thus, a resident should never be denied the continuation of physical therapy based on the excuse that Medicare will no longer cover it.

Nursing facility residents often are susceptible to transfer trauma in being moved from place to place.  Federal law gives every resident the right to veto any intra-facility transfer.  Medicare certification of a room does not prevent that room from being used for the care of a resident who pays privately or has payment through the MassHealth (i.e., Medicaid) program.

Immediate family or other relatives are not subject to visiting hour limitations or other restrictions unless imposed by the resident.  Federal law requires that a resident’s “immediate family or other relatives” have the right to visit at any time if the resident consents to the visit.  Under federal law, non-family visitors must also be granted “immediate access” to the resident.

Federal law requires that a nursing facility must care for its residents in such a manner and in such an environment as will promote maintenance or enhancement of the quality of life of each resident.”  Federal law also requires that a resident has the right “to reside and receive services with reasonable accommodation of individual needs and preferences, except where the health or safety of the individual or other residents would be endangered.”  A resident has the right to choose activities, schedules, and health care consistent with his or her interests, assessments, and plans of care.

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Comments

  • Sue  On May 7, 2011 at 11:41 am

    Is there any right to video surveillance in a private room in Massachusetts? Mom has Alzheimer’s and has reported a couple of nasty incidents but the nursing home won’t allow me to install a video camera. How can we know what is the truth if there is no uninvolved “third party” to back up someone suffering from dementia?

    • Brian E. Barreira  On September 12, 2011 at 9:12 pm

      I’d consider talking to the nursing home ombudsman about mediating this problem.

  • Barbara Farrington  On January 26, 2012 at 3:16 pm

    can a nursing home refuse to admit the wife of a resident (also his legal guardian) because she has complained and “yelled” at caregivers about substandard care? (continuing to give a medicine on an empty stomach when it is known that this causes the resident to vomit) Where does she stand when the DON has told her and staff that because they feel intimidated by the wife because she tells them what is needed, that they can call they police any time and have her arrested and ban her from the nursing home? Can they do that?

  • http://www.homesalesboston.net/  On March 31, 2014 at 10:10 am

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