Resident’s Right to Exercise Rights

Nursing home residents have a right to exercise his or her rights as a resident of the facility and as a citizen or resident of the United States. Speficially, the facility must ensure that the resident can exercise his or her rights without interference, coercion, discrimination, or reprisal from the facility. The resident has the right to be free of interference, coercion, discrimination, and reprisal from the facility in exercising his or her rights and to be supported by the facility in the exercise of his or her rights as required under this subpart. In the case of a resident who has not been adjudged incompetent by the state court, the resident has the right to designate a representative, in accordance with State law and any legal surrogate so designated may exercise the resident’s rights to the extent provided by state law. The same-sex spouse of a resident must be afforded treatment equal to that afforded to an opposite-sex spouse if the marriage was valid in the jurisdiction in which it was celebrated.

The resident representative has the right to exercise the resident’s rights to the extent those rights are delegated to the resident representative. The resident retains the right to exercise those rights not delegated to a resident representative, including the right to revoke a delegation of rights, except as limited by State law.

The facility must treat the decisions of a resident representative as the decisions of the resident to the extent required by the court or delegated by the resident, in accordance with applicable law. The facility shall not extend the resident representative the right to make decisions on behalf of the resident beyond the extent required by the court or delegated by the resident, in accordance with applicable law. If the facility has reason to believe that a resident representative is making decisions or taking actions that are not in the best interests of a resident, the facility shall report such concerns in the manner required under State law.

In the case of a resident adjudged incompetent under the laws of a State by a court of competent jurisdiction, the rights of the resident devolve to and are exercised by the resident representative appointed under State law to act on the resident’s behalf. The court-appointed resident representative exercises the resident’s rights to the extent judged necessary by a court of competent jurisdiction, in accordance with State law (i) In the case of a resident representative whose decision-making authority is limited by State law or court appointment, the resident retains the right to make those decision outside the representative’s authority; (ii) The resident’s wishes and preferences must be considered in the exercise of rights by the representative; (iii) To the extent practicable, the resident must be provided with opportunities to participate in the care planning process.  See 42 C.F.R. § 483.10(b). See Additional Guidance Regarding Residents with Cognitive Impairments.

In addition to protections related to dignity, Appendix PP states that The facility must not establish policies or practices that hamper, compel, treat differently, or retaliate against a resident for exercising his or her rights.

Justice Involved Residents

“Justice involved residents” includes the following three categories:

1. 1. Residents under the care of law enforcement: Residents who have been taken into custody by law enforcement. Law enforcement includes local and state police, sheriffs, federal law enforcement agents, and other deputies charged with enforcing the law.
   2. Residents under community supervision: Residents who are on parole, on probation, or required to conditions of ongoing supervision and treatment as an alternative to criminal prosecution by a court of law.
   3. Inmates of a public institution: Residents currently in custody and held involuntarily through operation of law enforcement authorities in an institution, which is the responsibility of a governmental unit or over which a governmental unit exercises administrative control, such as state or federal prisons, local jails, detention facilities, or other penal settings (such as boot camps, wilderness camps).

Justice involved individuals are entitled to the same rights described in 42 CFR Part 483, Subpart B as all other residents residing in the facility. The facility shall not establish policies or impose conditions on the justice involved resident that result in restrictions which violate the  resident’s rights. Some Department of Corrections or law enforcement terms of release or placement may conflict with CMS requirements. If the facility accepts responsibility for enforcing restrictive law enforcement terms applied to a resident that are contrary to the Requirements for LTC Facilities, the facility would not be in compliance with federal long term care requirements. In addition, law enforcement jurisdictions may not be integrated with the operations of the facility.

While all portions of 42 CFR Part 483, Subpart B, apply to justice involved individuals, other areas where there may be concerns specific to this population are found at §483.12, F600, Abuse, Neglect, and Exploitation and §483.15(c), F622, Transfer and discharge. In such a case,
surveyors should cite under the specific tag associated with the concern identified. For example, if there is a concern about a facility restricting visitors of a justice involved individual, cite such deficiency under §483.10(f)(4)(vi), F564, Resident Right to Visitors.

See Survey & Certification Memorandum 16-21-ALL dated May 3, 2016 (Revised 12/23/16) for additional guidance on justice involved individuals.

Appendix PP instructs surveyors to look for the following deficient practices:

Deficient practices cited under Resident rights tags may also have negative psychosocial outcomes for the resident. The survey team must consider the potential for both physical and psychosocial harm when determining the scope and severity of deficiencies related to dignity. Refer to the Psychosocial Outcome Severity Guide in Appendix P.

Surveyors shall make frequent observations on different shifts, units, floors or neighborhoods to watch interactions between and among residents and staff. If there are concerns that staff or others are not treating a resident with dignity or respect or are attempting to limit a resident’s
autonomy or freedom of choice, follow-up as appropriate by interviewing the resident, family, or resident representative.

• • Observe if staff show respect for each resident and treat them as an individual.
  • Do staff respond in a timely manner to the resident’s requests for assistance?
  • Do staff explain to the resident what care is being provided or where they are taking the resident? Is the resident’s appearance consistent with his or her preferences and in a manner that maintains his or her dignity?
  • Do staff know the resident’s specific needs and preferences?
  • Do staff make efforts to understand the preferences of those residents, who are not able to verbalize them, due to cognitive or physical limitations?

Determine if staff members respond to residents with cognitive impairments in a manner that facilitates communication and allows the resident the time to respond appropriately. For example, a resident with dementia may be attempting to exit the building with the intent to meet
her/his children at the school bus. Walking with the resident without challenging or disputing the resident’s intent and conversing with the resident about the desire (tell me about your children) may reassure the resident in a manner consistent with the requirements of §483.10(a)
and (b).

Examples of noncompliance may include, but are not limited to:

• • A resident has not been treated equally as compared to others based on his or her diagnosis, severity of condition, or payment source.
  • Prohibiting a resident from participating in group activities as a form of reprisal or discrimination. This includes prohibiting a resident from group activities without clinical justification or evaluation of the impact the resident’s participation has on the group.
  • A resident’s rights, not addressed elsewhere (for example, religious expression, voting, or freedom of movement outside the facility in the absence of a legitimate clinical need) are impeded in some way by facility staff.
  • Requiring residents to seek approval to post, communicate or distribute information about the facility (for example, social media, letters to the editor of a newspaper).
  • Acting on behalf of the pertinent law enforcement or criminal justice supervisory authority by enforcing supervisory conditions or reporting violations of those conditions to officials for justice involved residents.