Long-term care facility and your rights, what you need to know!

In this episode, Lisa Shoalmire and John Ross discuss issues revolving around long-term care facilities, dispelling some of the myths and explaining payment implications on placement.

Episode Transcript
John
Welcome to another episode of Aging Insight. I'm your host John Ross and I'm here with Lisa Shoalmire, my partner, and we are here to talk about things that relate to people as they get older, people with disabilities. Basically, here to provide you the kind of information you need in order to avoid institutionalized care if you can, avoid becoming a burden on your friends, your family, loved ones, and avoid going broke and losing that life savings that you protected. That's the whole purpose of Aging Insight. That's why we're here and that's why we're here to bring this kind of information to you because we know that accomplishing those goals is possible. But it's only possible if you have the information to know how to do it and not to make mistakes along the way. Now, Lisa we talked about a lot of times that we do... Nobody that we talk to ever says, "Hey, I wanna go to a nursing home."
Lisa
Sure. From that standpoint, a long-term care facility, a rest home, a nursing home is never on the top of someone's list for retirement living options. But the bottom line is, we have some wonderful caring facilities in our area and they exist because for some families and some individuals, their health circumstances are such that they just don't have the resources to care for someone with those kind of medical needs in a typical home environment and they need 24-hour access to nursing care. These facilities are here in our community to provide that resource and for many families, it can be a life saver so that the caregivers can continue to manage the care of a spouse or a loved one, but they're not doing the lifting and some of those activities that some nursing home personnel can provide.
John
That's right. And even in a situation where you're not there for a long term, maybe it's not a permanent stay, what people don't realize is that if you lived to 80 years old, you have a 90% chance of at least spending a little bit of time in some sort of long-term care facility. Now oftentimes, this comes in the form of, let's say you've had a stroke. You go to the hospital for that stroke and then while you're at the hospital, they treat you there, but then they transfer you over to a rehabilitation hospital and you get some rehabilitation there. And then they say, "You know what? You still need some rehab." And at that point, then they send you to a nursing home. In this context, they call it a skilled nursing facility or a rehab facility where you are in fact in a nursing home, but you're receiving rehab services. Now, this is the type of thing that's typically covered under Medicare for the first 20 days of your stay and if you have Medicare supplemental insurance, then between Medicare and that supplement, they might pay for up to another 80 days. And so a lot of people, while they may not live permanently in a nursing home, they still spend some time there as part of rehab and getting that little bit of care so that they can go back home.
Lisa
That's right. A lot of times, you just gotta get that strength up, you've just got to continue practicing, maybe the use of that new knee or that new hip joint or recovering from that stroke. John, if you think about it, up to a hundred days in a facility, that's about a third of the year.
John
Yeah, it's still three months, a little more.
Lisa
So that's a little long time. So, what we really wanted to talk about today is, if you yourself or your spouse or a dear friend or family member is a person who is residing in that nursing home facility, whether it's a temporary stay for rehab or it's a more permanent resident stay, what kind of rights do you have as a patient in that facility? So, John?
John
So, a lot of times I kind of think of it, one of the things I think about is when I'm at home, I have my home set up the way I like it. I have my own comforter that I like, and I have my own pillows that I like, and I have decorations on my walls that I like. I might have art work, I might have pictures, bed frame pictures, I might have all kinds of stuff. Maybe I have jewelry that's important to me. There's all kinds of things that in my home I have because they're there to make me feel comfortable and they make me feel happy. And so the question becomes, do I get to keep my personal property and things like that at the nursing home? We have heard people tell us and they've said, "Well, you know, when my mom went to the nursing home they told her she couldn't have any jewelry and that they had to take all the jewelry and keep it locked into the safe."
Lisa
And you know John, that's a circumstance particularly when we're in the topsy turvy world of having some health crisis where we're having to get that rehab or long-term stay at a facility. "And now, you're gonna tell me that mom can't have her wedding set that dad, who's been dead 10 years gave to her when they got married in 1943, when he was home on leave?" That's just torture for this little lady, who's needing to try to get better.
John
Right. And not only is it an emotional deal for them, but it's also a violation of the law. And that's probably the big thing there. Just because you're at the nursing home, think of it like your home, and what rights do you have in your own home? Well, you have the rights to your own property. And if you wanna hang a painting in the wall, and maybe it's a really expensive painting. If you want your jewelry, you can have your jewelry, and maybe it's expensive jewelry, and you can have it if you want it. So you can have your own property. Now, am I saying that keeping a really expensive piece of property there in your nursing home where you've got staff coming in and out all the time and different people and maybe visitors who are walking into your room thinking that it's their family member's room and they're lost, it may not necessarily be a good idea to keep all of those things there but the fact is, it's your place, it's your little home. And even though you're only staying there temporarily or even though it's part of a nursing home, you can have your property. And they can't tell you, "Well, no. You can't have that." So yeah, again, it's your stuff.
Lisa
Right. They can't tell you that you can't have it. Now, the facility may say, "We understand. You've told us this is very valuable piece of jewelry or a very valuable antique." The facility may say, "Hey, we're not responsible if it turns up stolen or broken in some way, we're not gonna pay for it." And that's certainly a reasonable position but this home, this temporary home or this new permanent home at a facility, is your castle. So, you can have your property there and enjoy it, and that is your decision to make.
John
That's right. Now, if you're gonna keep some of that property and you are worried about it getting lost, you might wanna check with your insurance agent and make sure that if it does come up missing in that nursing home that your insurance will still cover it. So, we're gonna take a quick break, and when we come back, we're gonna keep talking about what rights you have if you're ever in a nursing home.
Lisa
Welcome back to Aging Insight. I'm Lisa Shoalmire, and I'm here today with my co-host, John Ross. In today's topic, we're talking about your individual rights should you need to move into a long-term care facility either for a short-term stay, for rehabilitation purposes, or for maybe a more permanent stay due to your own chronic health conditions. We're also bringing this information to you so as you go to facilities and visit friends and family members, you can keep an eye out and you can make sure that the people that you care about, that their rights are protected, even if they're too ill and maybe to assert their own, and that's an important part too. So, we talked about in the first segment that you can have your own property at a facility. If that property makes you happy, the family portrait, a painting, your jewelry from your late husband, you can have that property. There's also some other individual rights we wanted to talk about today and one of those rights has to do with visitors. Now, a lot of facilities would prefer that visitors come during certain normal daily times.
Lisa
Yeah. The law certainly talks about obviously, if your visitor was disruptive to other residents or maybe is driving up on his Harley at 11 o'clock at night waking everyone up, that's an issue that can be addressed. But they cannot prohibit you from seeing your close family at any time of day.
John
That's right. And of course, they might even make the argument that, "Well, you're in a two-person room, and that might disturb that other person." Well, one of the other rights you have is to meet in a private place. They have to provide you a certain level of privacy. And if you wanna meet with a family member, if you wanna meet with a lawyer, if you wanna meet with your pastor, whoever, they have to provide you a private place to meet with those individuals. And so, if they say, "Well, you can't have your son over because your suite mate, the person in your room there is gonna be bothered by it." Well, they're forgetting that they also have to provide you a private place. And of course if it's private, you're not gonna bother anybody. So, you can see who you want, when you want, and they need to provide you a place to meet with those people privately if that's what you want.
Lisa
Okay. Well, John, another example is something that we've seen come up is some of us are morning people and some of us are night owls and those characteristics may not necessarily change as we get older. And we may still as we get older prefer to sleep in in the morning and piddle in the evening and into the night. And the facilities, if you live there, this is your home, and you're permitted to maintain that top schedule. And so one example of this is, what happens if you're a bit of a night owl and you prefer to take your showers or your bath in the early afternoon? And the facility says, "Hey, I'm sorry. We cannot accommodate you, that you need a little assistance with that shower or bath. And we only have bath aides in the morning hour, so you're just gonna have to take your shower in the morning." And John, is that accurate?
Lisa
Well, that's right. A lot of times as families are often kind of beat down at the point they're coming into a facility because their family member has had a medical crisis. We're already at the point where we're having to continue with rehab or maybe it's a long-term move. And facilities a lot of times present their preferred rules as absolutely mandatory. And the bottom line is the federal law does provide that these rules perhaps are as far as things like privacy, and bathing, and things like that, they have to make reasonable accommodation for you. And so, it's always good to have those family members there that can make sure and look over that paperwork, and make sure and assert that that recovering person's preferences with those facilities. So, we're gonna take another break, and then when we come back, we're gonna continue to talk about rights you have in a facility. We're also gonna talk about paying for that facility and what the access to medical records and also discussing discharge from those facilities. So, we'll be right back.
John
Welcome back to Aging Insight, everybody. I'm John Ross, this is Lisa Shoalmire, and we're talking about nursing home patients' rights. So basically, what are your rights if you're ever in a nursing home? And we've talked about that you have the right to take your property and have your property with you in that facility. You have the right to see visitors at the time and place that you wanna see those visitors. You have the right to discuss how you're treated, when you take your showers, when you go to bed. They may have some suggestions about how you do those things, but again, remember, this is your home. And even though it's not your main home, it's still your temporary home. And as your home, you have the same rights that you would have in your own home and you don't wanna get pushed around as far as all of that goes. And so, you do need to stand up for yourself and say, "Hey, you know what? I don't wanna shower right now," or, "I don't wanna participate in that game," or whatever, "I don't want to take a shower right now." That's okay, you get to make some of those decisions yourself. And those are rights that you have, even though you're in the nursing home, they don't take those away from you.
Lisa
Yeah, that's right. One of the big questions we get from families, when they have a family member in a facility, is access to records of their family member. Now, of course, I believe we've talked on this program about having a HIPAA release, where you as the patient designate persons that you would permit to have access to your records. And I'm not exactly talking about that type of situation, but what I am talking about here is, for instance, I had a lady come in the other day to visit with me and her mom was receiving rehabilitation services in a long-term care facility. And she was very concerned, she went to visit her mom and she did not feel like that her mom had gotten that bath assistance, and she had not bathed in several days. And this daughter, who was permitted by her mother to review her medical records, made a request to the facility to review her mom's records to determine when the last bath was given to her mom. And John, the response that the daughter got was, "Make a written request for records, and it'll take us up to seven days, and then you can review the file."
Lisa
Dumb, no.
John
Definitely not right. Definitely not right. You have an absolute right to your records and to see your records essentially on demand.
Lisa
Now, they do require that upon an oral or written request, that the facility is permitted 24 hours to gather up those records and make them available to you, but seven days? John, gosh, I just wondered if the records would look a little different after seven days. [chuckle]
John
Yeah, and that's part of the reason behind this is that those records relate to you, your care, or maybe that loved one that you're there taking care of. And if you wanna see what's going on, you need to be able to see and you need to be able to see quickly before... That way, you can identify if there are things about the treatment or about the level of care that you don't like, you can address those quickly. And so, yes, you have a right either on an oral request or a written request to see those records, and they're supposed to provide 'em within 24 hours.
Lisa
Yeah. Most of the facilities that provide this care, they want to provide the highest and best care and... But just like all situations, sometimes things slip through the cracks or sometimes there's maybe an employee who's not performing up to the required standards. And so, we are collaborating with these facilities to take care of our family members so...
John
Right. Now, you know what I bet? Lisa, I bet there're some folks that are sitting there at home and their saying, "Well, you know, this all sounds fine and dandy, but if I complain about these sort of things, they're gonna kick me out".
Lisa
Well, that would be illegal, [chuckle] if they did. And they would have big trouble. The bottom line is, a facility cannot discharge you for making a complaint to the facility itself or for even calling a licensing or monitoring agency or an ombudsman, to complain about issues at a facility. So, that is illegal to be discharged for that reason and that is so that the patients and their families can feel free to make those complaints and bring any problems to the attention of those who could address them.
John
Well, what if I'm not complaining to a big government agency about mistreatment, maybe I'm just a complainer.
Lisa
Well...
John
They can kick me out for that, right? Just 'cause I'm hard to deal with.
Lisa
No, they cannot kick you out. If you're just cranky, in a bad mood individual, the facility cannot kick you out for that, so long as they can meet your medical needs and you are not a danger to their staff or other patients. Just because you're a complainer or annoying or nothing's ever right in your world, the facility cannot discharge you for that reason.
John
That's right. And of course, there are reasons why they can kick you out, again, if you're a danger to others and things like that, but one of those last ones, one of the reasons that they can discharge you, failure to pay. And so, looking down the road, you wanna make sure that you are gonna have the resources, whether it'd be private resources, paying for that care out of your own pocket, having long-term care insurance, or whether you're gonna qualify for Medicaid, they don't get to give any preference one way or the other, but they are entitled to be paid for their services and they can discharge you for non-payment.
Lisa
Well, that's right. So, a facility can't discriminate between the different types of payments. So, whether you're gonna private pay out of your pocket, or you're going to access Medicaid, which is the state program for long-term care, the facility can't first ask you how you're gonna pay for the services and then say, "Hmm, we'll take the private pay patient but we don't want the Medicaid patient." If there is a payment source for you, then they cannot discriminate on the source of that payment.
John
That's right. Well, once again everybody, you've reached the end of another episode of Aging Insight and we're certainly glad you came. Feel free to follow us on Facebook at facebook.com/aginginsight. You can follow me on twitter @TXKElderLaw, and of course you can catch up with us every Saturday at noon on 107.1, which is our live call in radio show.
Lisa
So, I hope today what you've learned is that the individual still has their own rights and still needs to have the highest quality of life they can regardless of where their home is, even if it's in a facility for rehab or long-term care.

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