The 1987 Nursing Home Reform Law was instrumental in transforming the mindset of long-term care providers and creating the modern senior living realm as we know it today. The law places a strong emphasis on individual dignity and independence guaranteeing them a quality of life that is similar to living in a community at large. Many states, such as West Virginia, have adapted their own set of regulations regarding resident rights in the assisted living facility as seen below:
- 64-14-5. Resident Rights.
5.1. General Rights.
5.1.1. The licensee shall post in a conspicuous place the assisted living residence’s license, a copy of the residents’ rights, the house rules including visiting hours, and the phone numbers of the abuse hotline, the Office of Health Facility Licensure and Certification, and the state ombudsman. (Class III)
5.1.2. The licensee shall also post the name, address, and telephone number of the designated long-term care ombudsman program serving the region in which the residence is located, with a brief description of the services provided by the long-term care ombudsman program, and a statement of the penalties for willful interference and retaliation. (Class III)
5.1.3. The licensee shall provide one or as many copies as needed of the residents’ rights to the resident. (Class III)
5.1.4. The licensee shall promptly notify the resident and the resident’s legal representative or designated family member when there is a change in residents’ rights. (Class III)
5.1.5. The licensee shall notify the resident and his or her representative or designated family member at least 72 hours prior to a change in room or roommate assignment unless an emergency situation occurs. (Class III)
5.1.6. The resident has the right to have a representative exercise one or more of the resident’s rights, to the extent provided by federal and state law.
5.1.6.a. The licensee must treat the decisions of the legal representative as the decisions of the resident to the extent required by a court or delegated by the resident, in accordance with federal and state law.
5.1.6.b. The resident retains the right to exercise those rights not delegated to the legal
representative, including the right to revoke a delegation of rights, except as limited by state law.
5.1.6.c. The licensee shall not extend to the legal 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 federal and state law.
5.1.7. Nothing in this rule shall in any way be construed to diminish or deprive any individual of his or her rights under federal and state laws. (Class III)
5.1.8. A resident shall be encouraged and assisted to exercise his or her rights as a resident and as a citizen, including voting in governmental elections. (Class III)
5.1.9. A resident has the right to be free from restraint, interference, coercion, discrimination, or reprisal from the licensee in exercising his or her rights. (Class II)
5.1.10. A resident has the right to be free from discriminatory practices related to admission or services on the grounds of race, religion, national origin, age, gender, sexual orientation, or disability. (Class II)
5.1.11. A resident has the right to manage his or her financial affairs and shall not be required to deposit his or her personal funds with the residence. (Class III)
5.1.12. A resident has the right to inspect all of his or her records, to obtain one free copy of the records, and to purchase additional copies at a reasonable cost. (Class III)
5.1.13. A resident has the right to view the results of inspections and complaint investigations conducted by the licensing agency. The licensee shall make available, in a place accessible to residents, the deficiencies cited during the most recent survey, any complaint investigation conducted within the preceding 12 months, and the residence’s plan of correction. (Class III)
5.1.14. A resident has the right to retain and use personal possessions including furnishings and clothing as space permits, unless to do so would infringe upon the rights, health, or safety of other residents. (Class III)
5.2. Treatment.
5.2.1. A resident has the right to participate in planning his or her overall care, to use the physician and pharmacist of his or her choice, to be fully informed in advance about care and treatment that may affect him or her, to make advanced directives about his or her medical care, and to refuse treatment. (Class II)
5.2.2. The licensee shall ensure that no resident is abused, exploited, neglected, mistreated, or restrained by physical or chemical means. Staff shall only use physical restraints in an emergency under physician’s order and for the safety of the resident or others in the assisted living residence until professional help arrives on the premises. Restraint use shall not exceed a 24-hour period. Restraints used during emergencies are limited to a cloth vest or soft belt restraints, and only trained staff shall apply a restraint. Staff shall release the restraint every two hours for at least 10 minutes. Staff shall document in the resident record the reason for restraint use and all procedures followed. Only half-length bed side rails are permissible. (Class I)
5.2.3. The licensee or staff shall report neglect, abuse, or emergency situations immediately, in accordance with W. Va. Code §9-6-9, by contacting the adult protective services at the centralized reporting center utilizing the hotline number. In all situations of suspected abuse or neglect, the Department of Health and Human Resources adult protective services reporting form must be completed within 48 hours and sent to the appropriate parties as written follow-up to the immediate report. In addition, the licensee or staff shall contact the assisted living residence’s licensing agency as provided in subdivision 5.2.6. of this rule. The Secretary may report alleged failures by a licensed health care professional to report alleged incidents of neglect, abuse, or emergency situations to the individual’s licensing board. (Class I)
5.2.4. The licensee shall ensure that all allegations involving abuse, exploitation, or neglect are immediately and thoroughly documented and investigated by the licensee, or his or her designee, on receipt of the allegation. While the investigation is in progress, the licensee shall take measures to ensure that further abuse does not occur. (Class I)
5.2.5. If the allegation is substantiated, the licensee shall assure that appropriate sanctions are invoked, or actions are taken to prevent a reoccurrence of alleged abuse, exploitation, or neglect. (Class I)
5.2.6. The licensee shall notify the licensing agency within 72 hours of the date of an allegation of abuse, exploitation, or neglect. The licensee shall concurrently forward to the licensing agency documentation of the investigation, the results of the investigation and the response to the investigation. (Class III)
5.2.7. A resident has the right to refuse to participate in experimental research. A resident may participate in experimental research only when he or she has given prior written informed consent that conforms with applicable federal and state laws. (Class II)
5.2.8. A resident has the right to make choices regarding the activities of his or her daily life, such as including but not limited to when to retire at night or arise in the morning. (Class III)
5.2.9. A resident has the right to be free to leave the residence and grounds according to his or her needs and capabilities as documented in the service plan. (Class II)
5.2.10. A resident has the right to personal privacy and confidentiality, including accommodations, medical treatment, records, written and telephone, computer and other electronic communications, personal assistance, and visits and meetings of family and resident groups. (Class II)
5.2.11. The use of visual and auditory devices to monitor areas of the assisted living residence is restricted to common areas only. The licensee shall provide written notice to the resident or his or her legal representative of the use of these devices at the time of admission and also post a notice about their use in a prominent place in the residence. (Class III)
5.2.12. No person shall enter a resident’s room without identifying himself or herself to the resident and receiving the resident’s permission to enter. (Class III)
5.2.13. A resident has the right to voice grievances with respect to treatment or care provided without discrimination or reprisal for voicing the grievance. (Class II)
5.2.14. A resident has the right to prompt action by the licensee to resolve any complaints the resident has, including those with respect to the behavior of other residents. The licensee shall respond to the complainant in writing no later than four days after the complaint is filed. (Class III)
5.2.15. A resident has the right to be employed inside or outside the residence if the resident enters into the agreement voluntarily and the agreement to work in the residence is not a condition for admission or continued stay in the residence. A resident who performs staff duties shall meet the personnel and health requirements for that position and shall not perform work that creates conditions potentially hazardous for himself, herself, or others. (Class II)
5.2.16. A resident has the right to refuse to perform services for the residence. (Class III)
5.3. Access, Visitation, and Communication.
5.3.1. A resident has the right to participate in social, religious, and community activities of his or her choice. (Class III)
5.3.2. A resident has the right to meet and communicate privately with persons of his or her choice. (Class III)
5.3.3. A resident has the right to assemble and organize with other residents to solicit and recommend improvements in the assisted living residence’s services and to resolve problems that arise between the residents and the licensee. (Class III)
5.3.4. A resident has the right to send and promptly receive unopened mail. A staff member shall only open and read correspondence when requested by a resident. (Class III)
5.3.5. A resident shall have access to stationery, postage, and writing tools. (Class III)
5.3.6. A resident shall have access to a telephone and privacy during its use. (Class III)
5.3.7. A resident has the right to receive visitors during established and mutually agreed upon visiting hours, but relatives, members of the clergy, and other individuals of the resident’s choosing may visit at any time, subject to the resident’s right to withdraw consent. No visitor’s presence may infringe upon the rights of other residents. (Class II)
5.3.8. A resident has the right to receive information from agencies acting as client advocates, such as the state’s long-term care ombudsman program, and to contact these agencies. (Class II)
5.3.9. All of the following shall have immediate access to any resident and the premises of the assisted living residence; any representative of the state acting in an official capacity related to assisted living residences; the resident’s individual physician; the state and local long-term care ombudsmen; and agencies responsible for the protection and advocacy system for mentally retarded or developmentally disabled individuals and the mentally ill. (Class I)
Top Takeaways:
- 3.9. All of the following shall have immediate access to any resident and the premises of the assisted living residence; any representative of the state acting in an official capacity related to assisted living residences; the resident’s individual physician; the state and local long-term care ombudsmen; and agencies responsible for the protection and advocacy system for mentally retarded or developmentally disabled individuals and the mentally ill. (Class I)
Many facilities dread the call from their local ombudsman, but I am here to tell you they are nothing to be afraid of! In fact, if you develop a solid relationship with the ombudsman, they can help bridge a gap between your residents and your facility leadership by acting as a mediator for difficult situations, believe me, I have seen it firsthand. These special individuals are typically volunteering and are there solely to protect resident rights and help ensure you and your facility are doing the same.
- 2.2. The licensee shall ensure that no resident is abused, exploited, neglected, mistreated, or restrained by physical or chemical means. Staff shall only use physical restraints in an emergency under physician’s order and for the safety of the resident or others in the assisted living residence until professional help arrives on the premises. Restraint use shall not exceed a 24-hour period. Restraints used during emergencies are limited to a cloth vest or soft belt restraints, and only trained staff shall apply a restraint. Staff shall release the restraint every two hours for at least 10 minutes. Staff shall document in the resident record the reason for restraint use and all procedures followed. Only half-length bed side rails are permissible. (Class I)
If a resident has reported an abuse allegation you must take it seriously! Immediately contact the staff member in question of abuse and interview them regarding their side of the situation. I also highly suggest suspending this employee pending investigation in order to remove them from the situation while you gather facts and continue the reporting process.
Pro Tip:
- Develop a committee of residents, such as a resident council, to assist with the upholding of resident’s rights. Use this council to get a pulse of the community and stay in touch with what your residents are going through.
- Work with the OHFLAC and the local ombudsman closely to promote the standards of resident rights within your community.