In California, residents and patients of nursing homes (Skilled Nursing Facilities or SNFs) and intermediate care facilities have rights protected by state and federal laws. Facilities are required to provide a copy of the patient or resident’s Bill of Rights at admission. Nursing homes and care facilities can be held liable for violating a patient’s rights under federal or California law.
Below is an overview of resident rights in nursing homes and what to do if you or a loved one suspects your rights have been violated.
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Basic Nursing Home Patient Rights & the California Residents’ Bill of Rights
Nursing home residents retain their basic human and civil rights while living in a nursing home. There are state and federal laws that list resident rights in a nursing home, including the right to dignity, quality of care, and quality of life.
Nursing home residents must be provided with a copy of these rights in writing when they’re admitted. These rights are known as the Nursing Home Residents’ Bill of Rights.
Right to Dignity, Quality of Care, and Quality of Life
The most basic rights of nursing home residents include the right to:
- Be treated with dignity
- Receive the services and care necessary to achieve or maintain the highest possible mental, physical, psychological, and social well-being
- Receive care in a manner and environment that maintains quality of life
- Receive care to prevent incontinence and bedsores
- Be free from mental, physical, sexual, verbal and other forms of abuse, involuntary seclusion, exploitation, and corporal punishment
- Receive reasonable accommodation of preferences and individual needs
- Receive enough quality food
- An activity program that meets each resident’s interests and needs
- Use and keep personal belongings including clothing and furnishings (as space allows)
- View the facility’s most recent survey and any plan for corrections
- Receive supervision, care, support, and health care from a facility with adequate staffing
Right to a Home-Like Living Environment
Nursing home residents are also entitled to live in a home-like setting and use their own personal belongings. This includes the right to:
- Maintenance and housekeeping to maintain a comfortable and sanitary living environment
- A clean, safe, comfortable, and home-like environment
- Adequate, safe, and comfortable temperature, lighting, and sound levels
- A private closet
- Clean bath and bed linens
- No more than four residents in a bedroom (or two residents for facilities newly certified or approved after 2016)
- Adequate living space with at least 100 square feet of space in a single room or 80 square feet of space per resident in a multi-resident room
Right to Make Health Care Decisions
The rights of the elderly in nursing homes includes the right to make health care decisions including:
- Making informed consent to treatment
- Refusing treatment
- Choosing a personal physician
- Creating an advance directive
- Receiving all the treatments, services, and items in the patient’s plan of care
- Seeing the plan of care and signing off on major changes
- Receiving the name, contact details, and specialty of any physicians providing the resident care
- Purchasing or renting medical supplies, equipment, and medication from the supplier or pharmacy the resident chooses
- Participating in planning treatment and care and any changes to care
- Advanced notice of changes to care, the type of care that will be provided, and the type of health care professional who will provide care
- Self-administering medication if the facility determines it’s safe to do so
- Keeping non-prescription medications accessible unless contraindicated
- Accessing, copying, and amending all medical records
- Reviewing and copying information on the facility’s nursing staff
- Being free from unnecessary drugs or seclusion, including any physical or chemical restraints that are not required to treat medical symptoms and used for the staff’s convenience or for disciplinary reasons
Right to Autonomy
Nursing home residents have the right to make their own choices whenever possible and reasonable. This right to autonomy covers many areas:
- Daily schedules (including choices related to sleeping, eating, bathing, and health care)
- Healthcare and healthcare providers
- Significant areas of life
- Communications and access to people inside and outside the nursing home
- Sharing a room with a spouse
- Choice in roommate when possible and safe (both residents consent and live in the same facility)
- Refusing to perform services for the nursing home
- Temporary absences from the facility
- Organizing or participating in a residents’ council
Facilities should support residents’ autonomy and make reasonable accommodations for residents to participate in their choice of activities, who they spend time with, and their schedule. For example, if participating in family gatherings is important to the resident, the facility should make reasonable accommodations to support this.
Right to Privacy, Confidentiality, Visitors, and Communications
Nursing home patient rights include the right to private, unrestricted communications and access to visitors. Federal and California law provide overlapping protection giving residents the right to:
- Immediate access to family members, visitors, a long-term care ombudsman, federal or state officials, or anyone else with the resident’s consent
- Visits at any time from anyone of the resident’s choosing if the resident is critically ill
- Personal privacy in medical care, personal care, accommodations, written and phone communications, and meetings or visits with groups of residents and family members
- Privacy in electronic, written, and oral communications
- Privacy for visits with a spouse (in addition to the right to share a room with a spouse who is also a resident)
- Reasonable access to private use of the internet, electronic communications, and video communications
- Reasonable access to a phone to make and receive confidential calls. This includes the right to keep and use a personal cell phone.
- Send and receive unopened mail and have access to postage, stationary, and writing tools
- Confidentiality of medical and financial records with the right to refuse or approve the release of these records
- Reasonable access to any person or organization that provides the resident with social, health, legal, or other services with the right to withdraw consent
- Interpreters, translations, or other services provided by the nursing home to provide adequate communication between staff and a resident if there is a communication or language barrier
LGBT Long-Term Care Facility Bill of Rights
The Lesbian, Gay, Bisexual, and Transgender Long-Term Care Facility Residents’ Bill of Rights was signed into law in 2017. This law protects LGBT seniors from mistreatment and discrimination in nursing homes and assisted living facilities.
Under the LGBT Residents’ Bill of Rights, it’s unlawful for a facility or staff to do any of the following based on a resident’s perceived or actual gender identity, gender expression, sexual orientation, or HIV status:
- Willfully, repeatedly fail to use the resident’s preferred pronouns or name after they have been clearly informed
- Deny a resident’s right to wear clothing, cosmetics, or accessories permitted for other residents
- Restrict a resident’s right to visitors or association with other residents, including the right to consensual sex, unless it is a restriction applied to all residents without discrimination
- Deny admission to a facility, transfer, refuse to transfer, discharge, or evict a resident
- Deny a request by facility residents to share a room
- Assigning, refusing to assign, or reassigning a room to a transgender resident (when room assignments are gender-based) except based on the resident’s gender identity, unless the resident has requested otherwise
- Prevent a resident from using or harass a resident using or seeking to use a restroom available to others of the same gender identity. Harassment includes requiring a resident to show identity documents to use a restroom.
- Restrict or deny medical or non-medical care appropriate for a resident’s physical or bodily needs, or provides care that a reasonable person would find unduly demeaning to the resident’s dignity or cause unnecessary discomfort
Nursing homes in California are required to follow strict federal and state laws during the admission process. The facility must use the Standard Admission Agreement created by the California Department of Public Health. The facility must also make a reasonable effort to communicate the details of the contract to the resident before they are admitted.
The admission contract MUST:
- Include a copy of the Patient’s Bill of Rights.
- State that residents shall receive monthly, itemized statements of any charges they incur.
- Clearly state the supplies and services covered by the basic rate and charges for optional supplies and services.
- State the facility must give 30 days’ written notice of any rate increases.
- Clearly state whether it participates in Medi-Cal and cannot require any notice of a resident’s intention to convert to Medi-Cal.
- Contain an attachment disclosing the facility owner’s name, the name of the facility licensee, and the name and contact information for any entity responsible for all aspects of operations and resident care.
- State that no resident will be involuntarily transferred or discharged (except in an emergency) without reasonable written notice and discharge or transfer planning as required.
- Include a provision that if a resident is transferred to an acute care facility, their bed will be held for 7 days.
The admission contract CANNOT:
- Waive liability for the patient’s health, safety, rights, or personal property or imply any responsibility for a resident’s personal property less than the law requires.
- Require residents to consent to any or all treatment ordered by a health care provider.
- Require payment beyond involuntary discharge or death.
- Require advance notice of voluntary discharge.
- List any grounds for involuntary transfer or discharge beyond those provided by state or federal law.
There are also specific limitations to arbitration agreements and waivers:
- The facility cannot require residents or applicants to sign an arbitration agreement as a condition of receiving treatment or admission.
- The facility must clearly inform the resident or their representative of their right to not sign an arbitration agreement as a condition of continued care or admission.
- The resident cannot waive their ability to sue for violations of the rights of residents.
- An arbitration agreement cannot be part of the same admission agreement form and it must require a separate signature.
- Residents and legal representatives can rescind a signed arbitration agreement within 30 days with written notice to the facility.
- The arbitration agreement must be explained to the resident or their representative in a language and manner they understand.
- The arbitration agreement cannot contain language discouraging or barring a resident or anyone else from communications with local, state, or federal officials.
Rights of Family Members
Family members of long-term care residents have many rights under state and federal law including the right to:
- Visit at any time
- Be informed of the resident’s rights
- Participate in planning care
- Receive immediate notice of any accidents involving injury to the resident, significant changes to their health, or a need for major changes to treatment
- Receive prompt notice of a decision to transfer the resident
- Receive notice if antipsychotic medication is ordered or increased, with the resident’s consent
- Receive prompt notification if the resident will be moved to a different room or there will be a change in roommates
Nursing Home Residents’ Rights During Transfer and Discharge
There are many rules facilities must follow to transfer, discharge, or evict a resident. Some of these rules depend on the facility’s certification status.
General prohibitions against resident transfers and evictions:
- The facility cannot attempt to expel or discharge a resident in retaliation for filing a complaint
- A Medi-Cal certified facility cannot transfer or attempt to evict a resident because they are changing from private pay to Medi-Cal or Medicare
- A Medi-Cal certified facility cannot transfer or evict a resident who made a timely Medi-Cal application and is awaiting an eligibility determination
When Can a Nursing Home Resident Be Transferred or Discharged?
Residents can only be discharged or transferred in very specific cases. Nursing home residents cannot be transferred or discharged from a facility unless one of the following is true:
- The transfer or discharge is required to meet the resident’s needs
- The safety of people in the facility is threatened
- The health of people in the facility would be threatened
- The resident’s health has improved to the point of no longer requiring the facility’s services
- The resident has failed to pay or have payment made on their behalf (as long as appropriate, reasonable notice is given)
- The facility is shutting down
Residents’ Right to Notice of Transfer or Discharge and Adequate Preparation
Residents have the right to receive notice before they are transferred or discharged. Generally, 30 days’ written notice must be given, but there are exceptions. This requirement does not apply if the safety or health of others would be threatened, the resident has urgent medical needs that require faster discharge or transfer, the resident’s health has improved sufficiently, or they have lived in the facility for less than 30 days.
The facility must be give the resident and their family member or legal representative advance notice as soon as possible. A copy of the notice must also be sent to the long-term care ombudsman.
The notice must include:
- The reason for discharge or transfer
- The effective date
- Where the resident will be transferred
Residents must be informed of their right to appeal, how to appeal the decision, and given the contact information for the long-term care ombudsman. Finally, the basis for the transfer or discharge must be documented by a physician in the resident’s medical record.
Before the resident is discharged or transferred, they must be given adequate orientation and preparation. A post-discharge care plan must be developed with the resident and their family.
Residents’ Rights for Transfers Within the Facility
For transfers within the nursing home, residents have the right to:
- Refuse to be transferred to or from a distinct or separate part of the facility
- Be treated the same as other residents during transfers regardless of payment source
- Receive written notification before a roommate or room change that includes the reason for the change
When a resident changes to Medi-Cal status, a certified facility cannot transfer the resident to another room because of the change except to transfer a patient from a private to semi-private room.
Right to Nursing Home Readmission After Hospitalization or Leave of Absence
If a nursing home resident is transferred to an acute care facility or hospital, they have certain rights for readmission to the facility once they’re discharged from the hospital.
The long-term care facility must give a written bed-hold notice upon transfer. Residents have the right to pay to hold their bed at the facility for up to 7 days during hospitalization and be immediately readmitted once they’re discharged. If the facility fails to provide the written bed-hold notice, the facility must offer the next available bed to the resident.
Medi-Cal pays to hold a beneficiary’s bed at the nursing home for up to 7 days while they are hospitalized. If the beneficiary’s hospitalization exceeds 7 days, they have the right to be readmitted to the first available bed in a semi-private room. Medi-Cal also pays to hold a beneficiary’s bed for 18 days or longer per year for leaves of absence based on their care plan
When a facility refuses to readmit a resident during a bed hold, it’s considered an involuntary transfer. The resident has the right to appeal the transfer and can remain in the hospital until the final determination. This hearing and final determination must be completed within 48 hours if the resident is not eligible for Medi-Cal and has no other source of payment.
The nursing home is required to readmit the resident and submit a certification of compliance within 3 days of being served a decision ordering readmission. If the facility fails to do so, they may face per-day penalties.
Residents’ Rights During a Nursing Home Closure
Federal and California law require a nursing home closure to be completed in a series of steps with sufficient notice for residents and families. Long-term care facilities are required to follow specific steps before closure or changes in operation:
- If at least 10 residents will likely be transferred, the facility must submit a proposed relocation plan to the CDPH and the long-term care ombudsman. The plan must be approved or rejected at least 30 days before written notification is given to residents.
- Provide residents, personal representatives, the long-term care ombudsman, and the California Department of Public Health (CDPH) at least 60 days’ written notice of the impending closure. This notice period can be extended if there are issues with placing residents.
- Residents and representatives must be informed that the transfer plan can be provided to them at no charge.
- Residents and representatives must be informed of alternative facilities that can meet the resident’s needs at least 60 days prior to the transfer.
- The facility cannot admit new residents on or after the written closure notice is submitted.
- No more than 30 days after the written notice, a community meeting must be held for residents and family members.
Involuntary moves of fragile residents carry a high risk of harmful effects known as “transfer trauma” or “relocation stress syndrome” (RSS). It’s defined as a state of confusion and trouble adjusting to a new environment after relocating. Nursing home residents who are involuntarily relocated are at an increased risk of isolation, loneliness, functional decline, hospitalization, falls, and death.
The facility must assist with the transfer of residents and minimize possible harm by:
- Evaluating the relocation needs of every resident (including their proximity to their personal representative) to determine the most available, appropriate type of care and services the resident will need in the future BEFORE the written transfer notice is given
- Discussing medical assessments and evaluations with residents or personal representatives and ensuring they are part of their medical records ahead of the transfer
- Conducting assessments of residents’ medical, social, functional, and social needs with recommendations to prevent or mitigate potential adverse effects of the transfer
- Taking reasonable steps to transfer residents safely and with as little transfer trauma as possible
- Arranging for appropriate future services and care for residents unless the resident or representative has made arrangements
- Providing appropriate staff to assist residents, representatives, and family members in securing alternative placement
- Maintaining adequate staffing for residents remaining in the facility
Rights Regarding Funds and Property
There are very clear laws holding nursing homes accountable for the management and protection of residents’ personal property and funds.
Nursing home residents have the right to manage their own financial affairs and have access to a locked area for personal property. The facility must provide residents with a lock for a drawer or cabinet at the resident’s (or representative’s) request and expense.
A California long-term care facility CANNOT require residents to deposit their personal money with the nursing home.
Facilities MUST do the following:
- Safeguard and account for any resident funds that are deposited with the facility
- Secure and mark a resident’s personal property
- Exercise reasonable care to prevent the loss or theft of a resident’s personal property
- Reimburse residents for the current value of any stolen or lost property it failed to safeguard through reasonable effort
- Inventory a resident’s personal property when they are admitted and when they are discharged or upon death
- The inventory must be updated upon written request if new items are removed from or brought into the facility
- Establish a theft and loss record for items valued at $25 or more
- Report theft of $100 or more to law enforcement
- Prevent misappropriation of a resident’s property
- Report suspected theft crimes to law enforcement and other entities within 24 hours
- Have a policy to identify when the damage or loss of dentures is the facility’s responsibility and may not charge residents in these cases
- Refer residents with damaged or lost dentures for appropriate dental services within three days, arrange for transportation, and help residents who wish to apply for reimbursement as a medical expense
- Transmit a resident’s funds and final itemized accounting to their personal representative within 30 days of death
- Surrender a resident’s personal property upon discharge or death
Rights Regarding Payments, Security Deposits, Pre-Conditions & Medicare and Medi-Cal
Long-term care facilities in California must abide by state and federal laws related to payments including providing certain notices and statements. Some rules apply only to Medicaid/Medi-Cal or Medicare certified facilities.
General payment-related requirements:
- The facility cannot discriminate against residents based on the source of payment for services
- At least 30 days’ written notice must be provided before any rate increases
- Monthly, itemized statements must be provided that detail charges the resident has incurred
- Residents and representatives cannot be charged for services or items they did not request
- The facility cannot require the resident or representative to request a service or item as a condition of continued treatment or admission
- When a resident requests a service or item that comes with a charge, the nursing home must inform them in writing and orally that there is a charge and the amount
- Advance payments must be returned to the resident’s personal representative or heir within 14 days of death or discharge
Rules for Medicare and/or Medi-Cal Certified Facilities
Medicare and/or Medi-Cal certified facilities CANNOT:
- Require the applicant to waive their right to Medi-Cal or Medicare benefits during the admission process
- Require assurance (written or oral) that the resident or applicant is not eligible for or will not apply for Medicare or Medi-Cal benefits
- Charge residents or representatives for items or services if payment was made under Medi-Cal or Medicare (except coinsurance and deductibles)
Medicare and/or Medi-Cal certified facilities are required to:
- Notify the resident of available services and any related charges, including charges for services that are not included in the basic rate or covered by Medicare or Medi-Cal
- Provide and prominently display information on receiving reimbursement for paid services and how to apply for Medi-Cal or Medicare
- Inform beneficiaries of services and items covered by Medi-Cal or Medicare they cannot be charged for, services and items that are not covered that they may be charged for, and the amount for these items and services
Rights and Rules Specific to Medi-Cal
Medi-Cal certified facilities have additional requirements:
- Must provide the resident, their spouse, and their personal representative with a state-mandated notice explaining the eligibility requirements for Medi-Cal
- Must submit a Medi-Cal reimbursement claim for approved beneficiaries
- Return payment for services that were later covered by Medi-Cal
- Cannot require a resident to pay privately for any period of time during which they had been approved for Medi-Cal payments
- If the facility file a notice of intent to withdraw from Medi-Cal, residents admitted before the notice date have the right to stay in the facility and receive Medi-Cal payment for care if they are eligible for the program or become eligible
Medi-Cal beneficiaries and family members have additional rights:
- Relatives of a Medi-Cal recipient may pay an additional amount to the facility for the resident to receive requested services that are not covered such as a private room or bed-hold days exceeding the Medi-Cal limit with certain requirements and restrictions
- A Medi-Cal beneficiary has the right to use their share-of-cost to cover medically necessary care that is not covered by the Medi-Cal program
Security Deposits, Guarantees, and Pre-Conditions
Nursing facilities are limited as to when they can require a financial pre-condition for admission such as a guarantee or deposit:
- The facility cannot require a third party guarantee as a condition of admission or for expedited admission
- A deposit cannot be required or accepted if the resident’s stay will be paid by Medicare or Medi-Cal
- The facility cannot charge, request, or accept any amount as a pre-condition for admission, or as a requirement for continued care, if the resident or applicant is entitled to Med-Cal
Security deposits must be returned:
- When the resident coverts to Medi-Cal payments,
- Within 14 days of closing an account, or
- No more than 14 days after the death of the resident
Right to Make Complaints and File Grievances
Facilities cannot interfere with a resident’s right to make complaints, recommend changes in services or policies, file complaints, or contact advocates or authorities.
Specific rights include the right to:
- Be free from discrimination, interference, coercion, or retaliation for exercising rights
- Voice complaints or grievances or recommend changes to facility policies or services to staff
- Contact representatives outside the facility
- Cooperate with investigations and inspections without interference, restraint, discrimination, coercion, or retaliation
- Seek resolution from the facility for grievances
- Receive a written decision regarding a complaint or grievance
- Contact any agency acting as the resident’s advocate
- File a complaint against the facility or report elder abuse with the Department of Public Health (DPH) and other agencies
If a nursing home resident or representative files a complaint with the DPH, the agency will not disclose the resident’s name. The complainant must be notified of the assigned inspector within two business days of receiving the complaint. An onsite investigation or inspection must be made within 24 hours if there is a threat of imminent danger, death, or serious bodily harm; other investigations must begin within 10 days of receiving a complaint.
The resident has the right to accompany the investigator during an inspection. The resident will be notified of the findings in writing. The complainant has the right to appeal the findings.
Facilities cannot discharge or transfer a resident in retaliation for filing the complaint. California law specifically states that attempts to evict the resident within 180 days of filing a complaint have a rebuttable presumption of retaliation.
Damages for Violations of Resident Rights in a Nursing Home
Under California Health and Safety Code §1430, nursing home residents, their legal or personal representatives, or their heirs have the right to sue a facility for violations of residents’ rights. California law provides for statutory damages for violating nursing home resident rights. Effective January 1, 2022, for every violation of a resident’s rights on or after March 1, 2021, a skilled nursing facility is liable for up to $500 per violation in addition to attorney’s fees and other costs.
This statute specifies that civil actions can be brought against facilities that violate any rights of a patient or resident under California Code of Regulations Title 22 Section 72527 (Skilled Nursing Facilities) and Section 73523 (Intermediate Care Facilities) or under federal law or other state laws or regulations.
In 2023, the Supreme Court ruled that nursing home residents also have the right to sue nursing homes run by the government for violations of civil rights under 42 USC Section 1983. This strengthens the rights of nursing home residents and their ability to hold facilities accountable.
California’s Elder Abuse and Dependent Adult Civil Protection Act (EADACPA) also provides remedies for residents and their families for elder abuse or neglect, including financial or physical abuse, neglect, and isolation.
How Berman & Riedel, LLP Can Help if Your Rights Have Been Violated
At Berman & Riedel, LLP, our nursing home abuse lawyers have a complete understanding of the laws governing residents’ rights cases and all laws and regulations involved in litigating nursing home cases. Our lawyers have represented many clients throughout California in their nursing home litigation cases, and we are proud to have aggressively advocated for each and every client, successfully obtaining the best possible results in many violations of residents’ rights cases.
If you suspect that a family member or loved one has had their long term care resident rights violated, or has suffered a lack of proper care, contact Berman & Riedel, LLP, to discuss your legal options. Our nursing home abuse attorneys have the experience and skill necessary to help protect your legal rights in this complex area of the law.