Nursing Home Bill of Rights - Law Offices of Jeff Rasansky

Under Texas law, citizens over 55 years old have special rights in addition to those rights afforded to every Texan. An elderly citizen has these rights even if they live in a nursing home. At the Law Offices of Jeff Rasansky, we fight to defend the rights of every Texas nursing home resident.

Often, the very people who violate the rights of nursing home residents are responsible for caring for the victim's day-to-day needs. Elderly citizens in nursing homes are extremely vulnerable to violations of their rights because they are medically frail and often have mental impairments, making them powerless against abusive behavior.

Nursing home residents do not have to tolerate violations of their rights. The Texas Department of Human Services regulates nursing homes and is required by law to assure that nursing homes receiving Medicaid funds "implement and enforce" the Rights of the Elderly.

The Rights of the Elderly include the following:

1. An elderly individual may not be physically or mentally abused or exploited. This type of abuse includes involuntary seclusion, intimidation, humiliation, harassment, hitting, slapping, and verbal abuse that includes disparaging or derogatory terms.

2. An elderly individual may not be physically or chemically restrained unless the restraint is

(1) necessary in an emergency to protect the elderly individual or others from injury after the individual harms or threatens to harm himself or another; or
(2) is authorized in writing by a physician for a limited and specific period of time.

Tying a nursing home resident to a bed or chair to prevent them from moving freely is a violation of an elder person's rights.
Convenience, irritation and anger are not legal excuses for restraining a person.

3. An elderly individual should be treated with respect, consideration and recognition of their dignity and individuality. An individual should receive personal care and private treatment.

A nursing home resident should, at all times, be dressed, well groomed and clean. They should be allowed to express preferences about food, sleeping, and waking times. All treatment and personal care should be given in private. A nursing home must treat its residents with dignity.

4. An elderly individual may not be denied appropriate care on the basis of race, religion, color, national origin, sex, age, handicap, marital status, or source of payment.

Nursing homes cannot provide better care for private-pay or Medicare residents than they do for Medicaid recipients, who are generally less profitable for the nursing home.

5. An elderly individual may voice grievances or recommend changes in policy or service without restraint, interference, coercion, discrimination or reprisal. The service provider must develop procedures for submitting complaints and recommendations by elderly individuals and for assuring a response by service provider.

It is a violation of Texas law for nursing homes to intimidate or retaliate in any way against a resident or a family if a person complains about poor care or poor facility conditions.

6. An elderly individual may associate, communicate, and meet privately with others unless to do so would infringe on the rights of others. An elderly individual's mail may not be opened unless authorized in writing by a physician.

A nursing home cannot restrict visits to an elderly person. Sometimes, nursing homes or other residential providers attempt to exclude visitors who advocate on behalf of elderly residents or who might otherwise challenge the facility's control.

7. An elderly individual may participate in activities sponsored by social, religious, or community groups unless a physician determines that participation would harm the individual. The physician must record the determination in the elder individual's record.

8. An elderly individual may manage his personal financial affairs. If an elderly individual authorizes in writing a party to assist in managing his or her finances, that person must deposit those funds in a separate trust fund and provide the individual with a written receipt. However, if federal regulations prescribe a different procedure, those regulations prevail.

An elderly person has the same rights as anyone to receive, spend, invest, save, or give away his or her money. If a family member or "friend" takes control of an elderly person's money without permission (often for his or her "own good"), this may be a violation of the elderly person's rights, and should prompt a call to Adult Protective Services.

9. An elderly individual's records are confidential and may not be released without written permission. An elderly individual may inspect his or her personal records as maintained by the service provider.

Any resident may look at all of his or her records in a nursing home or any other facility. This includes, and is not limited to, medical, nursing, financial, social, contractual and legal records.

10. A service provider shall answer an elderly individual's questions concerning their health, treatment and condition unless a physician determines that that knowledge would harm the individual. A physician must record the determination in the elderly individual's record.

Under the law, unless a physician has made a written notation in an elderly person's record stating that answering tough questions concerning a resident's health would harm the patient, the elderly person has a right to know his or her medical condition to the extent that it is known by the physician.

11. An elderly individual may choose a personal physician.

Oftentimes, a nursing home provides a doctor to provide medical service to a nursing home resident. A nursing home resident has an absolute right to choose another physician to tend to their medical needs.

12. An elderly individual may participate in planning his or her own care and medical treatment.

A nursing home's staff regularly follows "care-plans" to track and care for an elderly person's medical needs. Family members and nursing home residents have the right to participate in care-planning meetings in order to insure proper medical planning.

13. An elderly individual shall be given the opportunity to refuse treatment after the possible consequences of refusing treatment are fully explained.

14. Elderly individuals have the right to a private area to accommodate visitors, if such an area is available. If a resident is married and their spouse is receiving similar services, the couple may share a room.

15. An elderly individual may keep personal clothing and possessions as space permits. The number of personal possessions may be limited for health and safety reasons, which should be documented in the resident's medical record. The number of personal possessions may be limited for the health and safety of other residents, as well.

16. Service providers must inform residents in writing of available services and applicable charges in instances where services are not covered by Medicare, Medicaid, or another form of health insurance.

17. Service providers cannot transfer or discharge an elderly individual unless:

(a) The elderly individual's medical needs require transfer.
(b) The elderly individual's health and safety or the health and safety of another individual requires transfer or discharge.
(c) The elderly individual fails to pay for services, except as prohibited by federal law.

An involuntary discharge may occur only under one or more of the three reasons listed above. Complaining about poor care is not grounds for a nursing home to evict a resident, nor is having a family that is outspoken regarding problems. If a resident needs to move for medical or safety reasons, if a resident is putting others at risk, or if the resident is not paying for services, then and only then may a nursing home discharge a resident involuntarily.

18. Except in an emergency situation, if a service provider intends to transfer or discharge an elderly individual, the service provider shall notify the individual, the responsible party for the individual, and the attending physician no later than five (5) days before the date of transfer or discharge.

For example, in an emergency situation where the health or safety of other residents is jeopardized by another resident's continued presence, that resident can be transferred to a hospital or another appropriate place for treatment without notice. Absent an emergency situation, however, all facilities must give five (5) days notice before discharge.

In addition to these rights, which are afforded to every Texas citizen over the age of 55, nursing home residents are also afforded certain "Quality of Care" rights. Specifically, each nursing home resident is entitled to receive - and the facility must provide - the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being. In order to do this, a nursing home must insure that a resident's abilities in activities of daily living do not diminish unless the resident's clinical condition shows that the situation is unavoidable.

This includes the resident's abilities to bathe, dress and groom; transfer and ambulate; use the restroom; eat; and use speech language, or other functional communication systems. If a resident is unable to carry out activities of daily living, the nursing home must provide the necessary services for the resident to maintain good nutrition, grooming, and personal hygiene.

Further, a nursing home resident must undergo a comprehensive assessment. This assessment must be completed (1) no later than 14 days after admission, (2) promptly after any significant change in condition, and (3) at least once per year. The nursing home facility must develop a comprehensive care plan for the resident to meet the resident's medical, nursing, mental and psychosocial needs. In order to provide appropriate care, a nursing home must have sufficient staff to attain or maintain the highest practicable physical, mental and psychosocial well being of each resident, as determined by resident assessments and individual plans of care.

Commitment to Personal Injury Clients

Personal Injury lawyer Jeffrey H. Rasansky has one mission: to fight for the rights of personal injury victims, people just like you. Jeff has successfully represented victims of: personal injury, nursing home abuse, nursing home neglect, nursing home negligence, medical malpractice, car wrecks and product liability.