Overview: This lesson provides a basic understanding of the rights of residents and the role of long-term care ombudsmen in helping residents exercise those rights. As an Ombudsman, you not only have an obligation to provide information about residents' rights, but also a further obligation to assist residents in exercising those rights. This lesson helps prepare you for these tasks.
Learning Objectives: At the conclusion of this lesson, participants will be able to:
- Inform long-term care residents in Florida of their rights.
- Recognize signs of resident abuse and neglect.
- Identify residents' rights violations
Duration: 1 hour (approximate)
Introduction to Residents' Rights and the Role of the Ombudsman Program
Understanding residents’ rights is essential as the Ombudsman program is responsible for sharing information about residents’ rights and supporting residents in exercising their rights. This section provides an overview of residents’ rights and the role of the LTCOP.
Ombudsman Program Role
The role of the Ombudsman program is to educate individuals on residents’ rights and to advocate that those rights are honored and respected. The Ombudsman program can play an important role in helping people restore their sense of self and regain their personal power and voice. For example, if a resident:
- Is comfortable speaking up to address concerns, a representative can provide information and reassure them of their rights
- Wants more support, a representative can be present as the resident expresses their needs and preferences or speak on the resident’s behalf
- Is unable to communicate their needs and preferences, a representative may work with the resident representative to address a concern
The first step is to get to know residents as individuals. It is important to relate honestly and authentically to the resident and their situation. After establishing a meaningful connection with a resident, they may share their experiences and concerns with you. How you respond and work with these concerns can go a long way in empowering residents and restoring their sense of self.
It is important for representatives to understand residents’ rights, laws, and regulations to use them as advocacy tools. However, it is the role of the state survey agency (surveyors - Agency for Health Care Administration (AHCA)) to enforce regulations, not the Ombudsman program.
Residents' Rights
The resident has a right to a dignified existence, self-determination, and communication with and access to persons and services inside and outside the facility. A facility must:
- Treat each resident with dignity and respect
- Care for each resident in a manner that promotes quality of life
- Recognize each resident’s individuality
- Protect and promote the rights of the resident
- Provide equal access to care
Exercise of rights
The resident has a right to exercise their rights as a resident and as a citizen of the United States. A facility must:
- Ensure the resident can exercise rights without interference, coercion, discrimination, or reprisal
- Support the resident in exercising their rights
These initial regulations are the foundation for residents’ rights requirements. Each resident has the right to be treated with dignity and respect. To do so, staff must focus on assisting the resident in maintaining and enhancing their self-esteem and self-worth and including the resident’s goals, preferences, and choices. When providing care and services, staff must respect each resident’s individuality, as well as honor and value their input.
Planning and implementing care
The resident has the right to be informed of, and participate in, their treatment, including the right to:
- Be fully informed of their health status and medical condition in a language they can understand
- Participate in the development and implementation of their person-centered plan of care
This regulation is intended to ensure that residents and resident representatives are included in all areas of person-centered and person-directed care planning and that the planning supports the resident’s goals, choices, and preferences related to daily routines, care, and treatment.
Choice of attending physician
The resident has the right to choose their attending physician. While the resident has a right to choose a personal physician, this does not mean that a resident is required to do so. It also does not mean the physician chosen by the resident is obligated to provide services to the resident.
Facility staff may not interfere with the resident’s choice of a physician(s) (e.g., primary care or specialist). If a resident does not have a physician, or if the resident’s physician becomes unable or unwilling to continue providing care to the resident, facility staff must assist the resident or the resident’s representative in finding a replacement.
Residents' Rights
- When admitted to a long-term care facility, an individual maintains his or her rights as a citizen and also gains a special set of resident's rights, which are mandated by federal and state law. These rights are outlined based on the type of facility (nursing homes, assisted living facilities and adult facility care homes).
Nursing Home Reform Law of 1987 (OBRA '87)
- Key Provisions:
- Quality of Care: Each resident must receive, and the facility must provide, the necessary care and services to attain or maintain the highest level of physical, mental, and social well-being as listed in the resident's care plan.
- Quality of Life: Facilities must care for resident in a manner and in an environment that maintains or enhances each resident's quality of life.
According to Section 400.022, Florida Statutes: "Nursing home facilities shall adopt and make public a statement of the rights and responsibilities of the residents and shall treat such residents in accordance with the provisions of that statement."
Assisted Living Facilities
- An assisted living facility (ALF) is a building, section of a building, private home, boarding home, or other residential facility, which provides housing meals, and personal service(s) for more than 24 hours to adults who are not related to the owner or administrator.
Adult Family Care Homes
- An adult family-care home (AFCH) is a full-time, family-type living arrangement, in a private home, where a person who owns or rents the home provides room, board, and personal care, for five or fewer disabled adults or frail elders.
Acute Care vs. Chronic Care vs. Long-Term Care
- The health system in the United States is based on acute, chronic, and long-term care. The type of care you receive depends on the medical problem or problems for which you're being treated. In some cases, you may transition from one level of care to another over the course of an illness.
Acute Care
- Acute care encompasses treatment of illnesses and disorders in a relatively short amount of time. Activities typically include seeking treatment for a short-term illness or injury and possible rehabilitation after injury. Common examples of acute care include receiving treatment for a cold, sprain or appendicitis or recovering from an injury or surgery. Hospitals typically provide primarily acute care.
Chronic Care
- Chronic care describes the long-term monitoring and treatment of ongoing diseases or disorders, such as cerebral palsy, sickle cell anemia, diabetes, high blood pressure, Alzheimer's disease, rheumatoid arthritis and heart disease. The primary care provider or family physician typically spearheads chronic care management. Although there is no known cure for chronic conditions, the goal of management is to slow or halt disease.
Long-Term Care
- Long-term care typically refers to extended medical and social services required by people with chronic conditions to help them live as independently as possible despite significant challenges, Medical, social, housing, transportation and other services may be required. Long-term care may be delivered in community settings, such as adult day cares; institutional settings, such as nursing homes; or informal settings, such as in the homes of --or with the support of --friends and family.
For Residents of Assisted Living Facilities and Adult Family Care Homes
According to Section 429.28 and 429.85, Florida Statutes: "Every assisted living facility resident shall have the right to at least 45 days' notice of relocation or termination of residency from the facility unless, for medical reasons, the resident is certified by a physician to require an emergency relocation to a facility providing a more skilled level of care, or the resident engages in a pattern of conduct that is harmful or offensive to other residents."
"Every adult family care home resident shall have the right to at least 30 days' notice of relocation or termination of residency from the home unless, for medical reasons, the resident is certified by a physician to require an emergency relocation to a facility providing a more skilled level of care, or the resident engages in a pattern of conduct that is harmful or offensive to other residents."
Continuing Care Retirement Community
Continuing Care Retirement Communities, also known as CCRC's, offer mature adults the ability to 'age in place' without every having to move for health reasons. Whereas most traditional retirement communities offer only independent living and assisted living, CCRCs provide a continuum of care that includes everything from independent and assisted living to memory care and skilled nursing. Continuing care offers the convenience of having healthcare and support services in one primary location where seniors can easily transition from one residential care setting to another.
Dignity, Respect, and Freedom
All residents have a right to be treated with dignity and respect. In addition, all residents’ possessions, regardless of their value, must be treated with respect. Providing for resident needs and preferences is essential to creating an individualized home environment. Residents have the right to share a room with whomever they wish if both residents agree. These arrangements could include opposite-sex and same-sex married couples or domestic partners, siblings, or friends
A resident has the right to:
- Be treated with consideration, dignity and respect;
- Be free from mental and physical abuse, corporal punishment, involuntary seclusion, and physical and chemical restraints;
- Exercise self-determination; and
- Secure their personal possessions.
Self-determination
The resident has the right to, and the facility must promote and facilitate, resident self-determination through support of resident choice including, but not limited to, the right to:
- Choose activities, schedules (including sleeping and waking times), health care and providers of health care services consistent with their interests, assessments, and plan of care
- Make choices about important aspects of their life in the facility
- Interact with members of the community and participate in community activities
- both inside and outside the facility
- Receive visitors of their choosing at the time of their choosing
- Deny visitors
- Immediate access to the Ombudsman program
- Organize and participate in resident and family groups
- Participate in other activities, including social, religious, and community activities
- Choose to or refuse to perform services for the facility
- Manage their financial affairs
The facility must support and accommodate each resident to exercise their autonomy regarding those things that are important in their life, including interests and preferences. Residents have the right to make choices about their schedules that are consistent with their interests, assessments, and care plans. Facilities must not develop a schedule for care, such as waking or bathing schedules, for staff convenience and without the input of the residents.
Freedom from Restraints
Physical restraints may only be used:
- To ensure your physical safety; and,
- Only with a doctor's order that specifies the duration and circumstances under which the restraints are to be used.
Common Physical Restraints
Common physical restraints include:
- Leg restraints
- Arm restraints
- Hand mitts
- Soft ties or a vest
- Lap cushions or lap trays that the resident can't remove
Restraints also include facility practices such as:
- Tucking in a sheet so tightly that a bound resident cannot move
- Using bed rails
- Confining residents to chairs that prevent rising
- Placing a resident who is wheelchair-bound so close to a wall that the wall prevents the resident from rising
Remember: Your right to refuse treatment includes your right to refuse restraints.
Abuse and Neglect
The resident has the right to be free from abuse, neglect, misuse of resident property, and exploitation. This includes, but is not limited, to freedom from physical punishment, involuntary seclusion, and any physical or chemical restraint not required to treat the resident's medical symptoms.
Each resident has the right to be free from abuse, neglect, and physical punishment of any type by anyone. When a nursing facility accepts a resident, the facility assumes the responsibility of ensuring the safety and well-being of the resident. It is the facility’s responsibility to ensure staff know how to support residents and respond appropriately by providing training on how to prevent, identify, and report abuse, neglect, and exploitation.
Examples of Neglect
- Lack of assistance with walking - which leads to lack of mobility.
- Lack of assistance with eating and drinking - which leads to malnutrition and dehydration.
- Incorrect body position - which leads to limb contractures and skin breakdown.
- Lack of toileting or changing of disposable briefs - which results in residents sitting in urine and feces, increased falls and agitation, indignity and skin breakdown.
- Lack of bathing - which leads to poor hygiene.
- Lack of assistance in participating in activities of interest - which leads to withdrawal and isolation.
- Ignoring calls bells or cries for help.
Examples of Abuse
- Sexual abuse - including improper touching or coercion to perform sexual acts.
- Physical abuse - including hitting, pinching, shoving, force-feeding, scratching, slapping and spitting.
- Psychological or emotional abuse - include berating, ignoring, ridiculing, cursing or threatening.
- Substandard care which often results in one or more of the following conditions: immobilization, incontinence, dehydration, pressure sores, and/or depression.
- Rough handling or berating during care-giving, medicine administration, or moving resident.
Independent Decision Making
A resident has the right to:
- Make personal decisions that meets their needs and preferences, such as what to wear, when to go to bed, and how to spend free time;
- Choose a physician;
- Participate in community activities, both inside and outside the facility;
- Organize and participate in a Resident Council; and
- Manage their own financial affairs.
Information
A resident has the right to:
- Be informed of their rights and all facility rules and regulations in a language they understand;
- Be informed of all available services and charges;
- Receive advance notice of a room change or change of roommate; and
- Receive contact information for the Ombudsman program and the Agency for Health Care Administration (AHCA).
Privacy and Confidentiality
A resident has the right to:
- Private and unrestricted communication with whomever they choose;
- Privacy during treatment and care;
- Privacy regarding medical, personal, and financial affairs; and
- Meetings of family council and resident council.
This regulation confirms that each resident has the right to privacy and confidentiality for all aspects of care and services. Residents have the right to personal privacy of their body, personal space, and personal care.
During the delivery of personal care and services, staff must remove residents from public view, pull privacy curtains or close doors, and provide clothing or draping to prevent exposure of body parts.
Raising Grievances
A resident has the right to:
- Present complaints to staff without discrimination AND receive prompt efforts by staff to resolve them;
- Complain to the Ombudsman Program; and
- File a complaint with AHCA or other agencies.
The resident has the right to voice grievances to the facility or other agency or entity that hears grievances without discrimination or reprisal and without fear of discrimination or reprisal.
Residents have a right to complain about treatment, care, management of funds, lost clothing, or violation of rights, etc. This regulation also ensures that the facility has a policy to address all grievances. Facility staff are responsible for making prompt efforts to resolve a grievance and to keep the resident up to date about any progress toward resolution.
Visitation
A resident has the right to:
- Visit with friends, relatives, and others of their choice;
- Meet with their personal physician or other individuals providing health, social, or legal services;
- Meet with representatives from AHCA and the Ombudsman Program;
- Participate in social or religious gatherings; and
- Refuse unwanted visitors.
Participation in Care
A resident has the right to:
- Receive adequate and appropriate care;
- Be informed of changes in their medical condition;
- Participate in their assessment, care planning, treatment and discharge,
- Refuse medication, treatment, and chemical or physical restraints;
- Review their own medical record; and
- Not be charged for services covered by Medicaid or Medicare.
Admission, transfer, and discharge
The facility must permit each resident to remain in the facility, and not transfer or discharge the resident from the facility unless:
- The transfer or discharge is necessary for the resident's welfare and the resident's needs cannot be met in the facility
- The transfer or discharge is appropriate because the resident's health has improved sufficiently so the resident no longer needs the services provided by the facility
- The safety of individuals in the facility is endangered due to the clinical or behavioral status of the resident status of the resident
- The health of individuals in the facility would otherwise be endangered
- The resident has failed, after reasonable and appropriate notice, to pay for (or to have paid under Medicare or Medicaid) a stay at the facility
- The facility ceases to operate
Once the resident enters the facility, it becomes the resident’s home. Facilities are required to determine their capacity and capability to care for the residents they admit. Therefore, facilities should not admit residents whose needs they cannot meet based on the facility assessment. The regulation also explains the limited conditions under which a nursing facility can discharge or transfer a resident. Improper transfers and discharges are complicated.
Rights regarding transfer and discharge
- Facilities must follow specific procedures when transferring, relocating, or terminating a resident's residency.
When a nursing home discharges or transfers a resident...
The resident has the right to remain in the nursing home unless:
- Their welfare cannot be met at the facility;
- Their health has improved sufficiently so they no longer need the services provided by the facility;
- The health or safety of another is endangered; or
- The facility closes.
They must receive 30 days' written notice before discharge or transfer. If they wish to appeal the nursing home's decision to transfer or discharge, they may request a hearing in writing within 90 days. * Requesting a hearing within 10 days permits them to remain in the facility until the hearing process is completed.
Discharge/Transfer Definitions Pertaining to Nursing Facilities
Discharge – The movement of a resident from a bed in one certified facility to a bed in another certified facility or other location in the community, when return to the original facility is not expected.
Transfer – The movement of a resident from a bed in one certified facility to a bed in another certified facility when the resident expects to return to the original facility.
Facility-initiated transfer or discharge – A transfer or discharge to which the resident objects, did not originate through a resident’s verbal or written request, and/or is not in alignment with the resident’s stated goals for care and preferences.
Resident-initiated transfer or discharge – Means the resident or, if appropriate, the resident representative has provided verbal or written notice of intent to leave the facility. Leaving the facility does not include the general expression of a desire to return home or the elopement of residents with cognitive impairment.
When an assisted living facility relocates or terminates a resident's residency...
The Resident has the right to:
- Receive at least 45 days' notice of relocation or termination of residency from the facility;
- Receive written notice of the reason they have been asked to leave;
- If it is an emergency relocation, their physician must certify that they require an emergency relocation to a facility providing a more skilled level of care or that they have engaged in a pattern of conduct that is harmful or offensive to other residents; and
- If no notice is provided, the facility must show good cause in court for the relocation.
Learning Summary
- An ombudsman's primary role is to advocate on behalf of the resident. For assistance, the resident will call 1-888-831-0404.
- When a resident enters a long-term care facility, they keep their rights as citizens and gain a especial set of resident's right listed in state and federal law.
- Facilities are required to follow specific procedures for transfers and discharges.
- All residents are entitled to receive quality care and to be free from abuse and neglect.
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