Know your rights! Avoid Nursing Home Abuse

Know your rights! Avoid Nursing Home Abuse

What are the Rights of Nursing Home Residents in California?

California provides several laws to prevent nursing home abuse. That is because millions of elder abuse cases go unreported every year according to the National Council on Aging.

In fact, one in 10 Americans aged 60+ have experienced some form of elder abuse and only one in 24 cases of abuse are reported. And yet according to Nursing Home Abuse Justice, 14,000 complaints of nursing home abuse or neglect were filed with the ombudsman in 2014.

Everyone should learn the rights and protections provided by the state of California to our senior citizens and do whatever we can to stop elder abuse and to ensure that violators are properly penalized.

Here is a list of 45 Basic California Laws and Regulations that guarantee the protection, care and well being of residents living in a nursing facility.

Admissions Contracts

1. Every nursing home must use the Standard Admission Agreement developed by the California Department of Public Health (DPH). 

2. Contract must provide that if the resident is transferred to an acute care hospital, his/her bed will be held for seven days

Right to Refuse Arbitration Agreements

  1. Nursing homes cannot require applicants or residents to sign an Arbitration Agreement as a condition of admission or medical treatment.

Notice of Rights

4. Nursing home must inform the resident both orally and in writing in a language that the resident understands of his or her rights

Right to Return of Security Deposit

5. No later than 14 days after the resident’s death, to the heir, legatee or personal representative

Right Not to be Transferred or Discharged from Facility Unless

6. Transfer or discharge is necessary to meet resident’s welfare; and the resident’s needs cannot be met in the facility; or The safety of individuals in the facility is endangered; or The health of individuals in the facility would be endangered; or The resident has failed to pay or have payment made on his/her behalf (after reasonable and appropriate notice is given.

Right to Notice Prior to Transfer or Discharge from Facility

7. Nursing home must give the resident, family member and legal representative advance notice of the transfer or discharge as soon as practicable

Right to Readmission After Hospitalization

8. Right to receive a written bed-hold notice when transferred to the hospital; nursing home must offer its next available bed to resident upon hospital discharge if it doesn’t comply

9. Right to pay to hold bed for up to 7 days during hospitalization and immediate readmission upon discharge

10. Medi-Cal will pay to hold bed for up to 7 days for beneficiary who is hospitalized

Right to Readmission After Leave of Absence/Therapeutic Leave

11. Medi-Cal will pay to hold bed for 18 days (or more) per year for beneficiaries during leaves that are in accordance with their care plan

Rights Relating to Dignity, Quality of Care, Quality of Life

12. Right to receive the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being

13. Nursing home shall employ an adequate number of qualified personnel

14. Right to be treated with dignity

15. Right to be free from verbal, sexual, physical, and mental abuse, exploitation, involuntary seclusion and corporal punishment

16. Right to activity program that meets residents’ needs and interests

Right to Homelike Environment and Use of Personal Belongings

17. Right to retain and use personal possessions, including some furnishings, and appropriate clothing, as space permits

Right to Make Health Care Decisions, Choose Health Care Providers, Medical Records

18. Right to purchase drugs, or rent or purchase medical supplies or equipment, from pharmacy or medical supplier of choice

 19. Right to informed consent

 20. Right to be fully informed in advance of medical care and treatment in language resident can understand

 21. Right to refuse treatment

 22. Right to store non-prescription medications at bedside unless contraindicated by physician or facility

Right to Be Free from Restraint

23. Right to be free from involuntary seclusion

 24. Right to be free from chemical or physical restraints imposed for purposes of discipline or convenience and not required to treat the resident’s medical symptoms

Right to Autonomy

25. Right to self-determination and communication with and access to persons and services inside and outside the facility

 26. Right to exercise rights as a resident and as a citizen

 27. Right to share a room with spouse

 28. Right to refuse to perform services for the facility

 29. Right to examine the results of most recent survey of facility and any plan of correction

Right To Privacy/Confidentiality/Communications/Access/Visitors

30. Right to personal privacy in accommodations, medical treatment, written and telephonic communications, personal care, visits, and meetings with family and resident groups

 31. Right to reasonable access to telephones and to make and receive confidential calls, including the right to retain and use a cellular phone at the resident’s expense

 32. Right to send and promptly receive mail that is unopened and to have access to stationery, postage and writing implements

 33. Right to confidential treatment of financial and medical records and to approve or refuse their release

 34. Right to have visits from persons of the resident’s choosing at any time if the resident is critically ill

 35. Right to privacy for visits by the resident’s spouse, and if the spouse is also a resident, to be permitted to share a room

 36. Nursing home shall provide interpreters or other mechanisms to ensure adequate communications between residents and staff if language or communication barriers exist

Payment Rights

37. Nursing home must inform resident of available services and related charges, including any charges for services not covered by its basic rate or not covered by Medi-Cal or Medicare

 38. Nursing home must return any advance payments no later than 14 days after the resident’s discharge or death to the heir, legatee or personal representative

Rights on Protection of Funds and Property

39. Right to manage own financial affairs; facility may not require residents to deposit their personal funds with the facility

 40. Nursing home must safeguard and account for residents funds deposited with the facility

 41. Nursing home must convey resident’s funds and final accounting to the legal representative of a deceased resident within 30 days of death

Exercise Of Rights by Surrogates

42. A resident’s representative may exercise rights on behalf of the resident

43. Persons who may act as a resident’s representative are a conservator, a person appointed by the resident through a durable power of attorney for healthcare or advance health care directive, a resident’s next-of-kin, or other persons lawfully appointed by the resident or a court

Right to Exercise Rights and Voice Grievances

44. Right to be free of interference, coercion, discrimination, and reprisal from the facility in exercising rights

45. Right to voice grievances and recommend changes in policies and services to facility staff, to contact outside representatives, to file complaints, and to cooperate in inspections and investigations free from restraint, interference, coercion, discrimination, or reprisal

(Source: California Advocates For Nursing Home Reform / canhr.org)

What’s Next?

In case you witness any violation of resident rights outlined here, report the offending caregiver or nursing home to the police. They will conduct an inquiry and refer the report to the justice system if an offense has been committed.

This resource is not legal advice. To work with lawyers who have expertise in working with these types of elder neglect and abuse cases, schedule a free consultation with our team at Crider Law.

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Protecting Elders From Abuse and Neglect in California

Protecting Elders From Abuse and Neglect in California

Protecting Elders from Abuse and Neglect in California

Elder Abuse and Neglect is a widespread but hidden problem with many cases going unreported, much less brought to justice. It occurs for many reasons but mainly for financial exploitation. It is alarming to discover that most elder abuse incidents happen in nursing homes and recovery facilities – institutions trusted with their health and well-being.

So what can you do to prevent cases of elder abuse from happening?

First, you must stay vigilant with the condition of your elderly relatives, whether they’re confined in a facility or living at home with a caregiver. Second, learn how to recognize their suffering and take action to stop it.

Use this guide to learn the protections afforded by California law to our elderly so you can, if necessary, take legal steps to shield them from being abused and neglected.

What is Elder Abuse Law?

Under California law, elder abuse can be both civil and criminal.

California Civil Law defines elder abuse as physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment resulting in harm, pain or mental suffering to an elder. It is any intentional or negligent act carried out by a professional caregiver or any other person, including family, that inevitably causes harm to an elderly adult.

California Criminal Law under Penal Code § 368, defines elder abuse when a person knows that the victim is an elder then inflicts unjustifiable physical pain or mental suffering on the elder or willfully causes or permits that elder to suffer. It also covers situations where a person willfully causes or permits an elder to be placed in a situation in which their health is endangered.

What Are The Forms of Elder Abuse?

  • Abandonment: The desertion of an elder by someone who is a caregiver.
  • Abduction: The removal, without the consent of the elder to another state.
  • Financial Abuse: The wrongful taking or use of an elder’s funds, property, or other assets.
  • Isolation: The intentional prevention of an elder from receiving mail, telephone
    calls or visitors.
  • Mental Suffering: The infliction of fear, agitation, or confusion through threats,
    harassment or other forms of intimidating behavior.
  • Neglect: A caregiver’s failure to assist in an elder’s personal hygiene, failure to
    provide food, clothing or shelter, or protect an elder from health and safety hazards.
  • Physical Abuse: The infliction of physical pain or injury, sexual assault or
    molestation, or the use of physical or chemical restraints for punishment.
  • Undue Influence: When a person uses excessive persuasion on an elder that
    overcomes an elder’s free will and causes an elder to act or refrain from acting in an appropriate manner.

How To Recognize Elder Abuse and Neglect?

1. Look for signs of possible physical abuse or neglect

  • Malnutrition and/or dehydration
  • Bedsores
  • Unexplained weight loss
  • Bruises, skin tears or broken bones or teeth
  • Painful reactions when touched
  • Deterioration in their hygiene

2. Possible Financial Abuse Indicators:

  • Suspicious banking or financial transactions
  • Money missing from accounts
  • Unusable ATM or Credit Card transactions
  • Unexpected changes to estate planning documents or property deeds
  • Missing possessions

3. Behavioral Indicators

  • Agitation
  • Anger
  • Confusion or disorientation
  • Defensiveness
  • Depressed or withdrawn
  • Fearful or hesitant to talk openly
  • Non-responsive or implausible excuses

4. Caregiver or Family Member Abuse Indicators

  • The elder is not allowed to speak for him/herself.
  • Caregiver’s indifference or anger toward the elder.
  • Socially isolated or unnecessary restrictions of the elder’s activities.
  • Conflicting explanations of incidents by the family or caregivers.
  • Family members or caregivers having gambling or substance abuse problems.

What’s Next?

In case you witness these types of abuse on your elderly loved one and you suspect that they are in urgent physical danger or compromised health, report the violation by a caregiver or nursing home to the police. They will conduct an inquiry and refer the report to the justice system if an offense has been committed.

This resource is not legal advice. To work with lawyers who have expertise in working with these types of elder neglect and abuse cases, schedule a free consultation with our team at Crider Law.

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