Under the law, nursing homes cannot leave residents in the dark. Upon reasonable request, facilities must provide a number of essential documents to the resident or the resident’s representative. On this week’s episode, we discuss nursing home documents that residents have a right to see.
Schenk: Hello out there. Welcome back to the podcast. My name is Rob. I’m going to be your host for this episode. We’re going to be talking about different categories of documents that nursing home residents have a right to see of review.
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Now under federal law, under federal and Georgia law, there are specific types of documents that nursing home residents are allowed to look at, so we want to parse some of the more important documents that you have a right to request or the nursing home is obligated to show you, so you shouldn’t even have to request – the nursing home should provide them for you.
With regard to who can actually do the requesting, obviously residents have the right to request these documents. However, oftentimes our loved ones are not in a position due to various clinical, medical conditions, due to cognitive impairments, have the ability to request documents, let alone review them and take action based on them. Those types of decisions usually fall to a family member.
Now at least in the state of Georgia, just for the fact that you are a family member does not necessarily give you the right to look or request any documents related to your loved one. That doesn’t mean that the nursing home won’t let you because sometimes they do, sometimes they don’t care about HIPAA or privacy rights – they allow people that are not necessarily authorized to look at records. The safest course of action and the action that is required under the laws of the state of Georgia is that the documents that we’re going to be talking about today are typically only going to be allowed to be requested and reviewed by someone that has some type of statutory authority, that means either a power of attorney or a guardianship or some iteration of either of those, some written document that allows you to what’s called a personal representative of the resident. Again, simply for the fact that you are the spouse, that you are the son or daughter or grandson or daughter of a resident doesn’t alone allow you to, for example, look at medical records. You must qualify, as the law refers, personal representative – you must be a personal representative of that resident to view many of the documents we’re going to be talking about today.
We have talked about powers of attorney, guardianship in previous episodes. Off the top of my head, I know we have talked about some of these topics with Scott Fields, the attorney, fantastic Georgia probate attorney or estate planning attorney, I should say. We talked at length about how to acquire guardianship and how to get powers of attorney so that you could review, for example, medical records of your loved one.
So if you get pushback from the nursing home and you don’t have those documents, that’s why. If you get pushback from the nursing home and you do have those documents, then that nursing home has a problem and we can talk about enforcement of your rights later on in the episode.
So what’s the first category of documents that you have the right to see as a resident or the resident’s personal representative? The first category is that you have the right to see your medical records. You have a right to see your medical records and this right, as is most of these rights in this episode, come to us under federal regulations, that is OBRA 42-CFR-483.10, otherwise known as the Long-Term Care Bill of Rights. Most of the documents in this episode come to us from the Long-Term Care Bill of Rights.
But medical records, under the regulations, the resident has the right to access personal and medical records pertaining to him or herself. The facility must provide the resident access to personal medical records pertaining to him or herself upon an oral or written request in the form or format requested by the individual if it is readily producible in such a format. And all that means is if you want to get it on a CD-ROM and they have the ability to put it on a CD-ROM, you got to put it on a CD-ROM. If you want it on paper, you want the medical records on paper, they’re going to get it to you on paper.
There are episodes in the past of this podcast where we talk about how to formally request medical records and the process by which we can do that and do that the cheapest, but this episode, I just want you to know that you or the personal representative of the resident, if you are the resident, have the right to get all of your medical records. That actually includes the administrative file too, so not just the chart that has the vitals, medication, administration records, physician’s orders, these types of things, but you also have the right, as it says, the personal records, meaning the contract that was signed upon admission, the face sheet, the disclaimers and declarations that were all initialed upon admission, the business record. You have access to that. So you have the right to see your medical records. You have the right to see your business records, again coming to us from the Long-Term Care Bill of Rights.
You have a right to see the nursing home’s rules of conduct. The resident has a right to be informed of his or her rights and all rules and regulations governing resident conduct and responsibilities during the resident’s stay at the facility. This comes into play and sometimes we have residents that are being discharged for some trumped up violation of the rules when they were never provided the rules to begin with.
So ask and request for the rules of conduct for your nursing home. Maybe they don’t allow smoking at a particular spot, maybe lights out at a particular time. You want to make sure your family member, your loved one is in accordance, is acting in accordance with the rules because you want to avoid obviously violating the rules but you also want to avoid the, I guess you would say the appearance of violating the rules, which would allow them, if they wanted to get rid of your loved one, to throw them out for trumped up charges. So you have a right to request the nursing home’s rules of conduct for the residents.
Next, you have a right to see the resident’s care plan. We’ve talked at length about what the care plan is in other episodes, the care plan being the blueprint for care. The care plan will have objectives, goals that need to be met, timeframes to meet those goals, the different interventions required for treatment and the like. Care plan is an extremely, extremely important document. We would recommend that all family be a part of the care plan process, but at the end of the day, that care plan gets put onto a piece of paper just like this so that the nursing home staff can assess it, can review it, can implement it.
And so therefore, you have a right, if you’re the personal representative of your loved one, to request and review that care plan. And again, super critical that you do so because that’s how you know whether or not the nursing home is doing what they’re supposed to do, because if it’s in the care plan, you better see them doing it. You better see them doing it, because at some point, that was determined to be optimal for the health of your loved one. You have the right to see the care plan, including the right to sign after significant changes to the care plan. So even to the extent they’ve changed the care plan, you have the right to request it and sign off on it.
You have a right to see the nursing home’s visitation policies. According to the regulations, the facility must have written policies and procedures regarding the visitation rights of residents including those setting forth any clinically necessary or reasonable restriction or limitation or safety restriction limitation when such limitations may apply consistent with the requirements of this regulation that the facility may need to place on such rights and the reasons for the clinical or safety restrictions.
So you have a right to request a written document that tells you when you are allowed or in many instances not allowed to receive visitors. During COVID, as we all know, visitation was prohibited by federal regulation, so many of our clients were unable to visit their loved ones at least in person. It had to be through glass or through Zoom, literally through the window. So visitation rights, visitation limitations are important in today’s age. So request that. Make sure that if they are telling you that you can’t meet with your loved one or that your loved one cannot go out to see a particular medical provider, you hold up that visitation right and say, “Hey, what’s going on here? You’re not upholding your end of the bargain with regard to visitation.” So request the visitation policies and procedures. Make sure that they are adhering to those policies and procedures. Make sure that you’re adhering to the policies and procedures.
Next, you have a right to be informed about state agencies that may possibly advocate on your behalf. So again, going to the regulations, you are entitled to a list of names and addresses and telephone numbers of all pertinent state regulatory and informational agencies, resident advocacy groups such as the state survey agencies, the state licensure office and the state long-term care ombudsman program, Adult Protective Services and information regarding the Medicaid fraud control unit.
The facility must provide a statement that the resident may file a complaint with any state survey agency concerning any suspected violation. So there should be some document that you can request from the nursing home. The nursing home must provide it that has a list of all the agencies that you can complain to that may advocate on your behalf. We have talked at length in previous episodes about the Georgia Long-Term Care Ombudsman programs as well as just generally the long-term care ombudsman programs, which they’re in every state. We’ve talked about how the survey process works and filing complaints with the Department of Community Health, at least as it is in Georgia.
Sometimes the resident is without access to the Internet, is without access to a phone, maybe you’re the one that has to do the research. This makes the research that much easier. They’re required to give you the contact phone number, contact email and name of the agencies that could potentially right the wrongs of the nursing home.
So next you have a right to see the nursing home’s grievance policy. Every nursing home under the federal regulations is required to have a process by which they receive and investigate grievances. They also are required to have someone that sits in charge of that process. But what you’re wanting to request is the information on how that particular facility accepts grievances and complaints. The facility must establish a grievance policy to ensure the proper resolution of all grievances.
Upon request, the facility must give a copy of the grievance policy to the residents, and what this means is you don’t want a written grievance that you have at the facility to get lost in the cracks. If the facility says, “This is how we accept complaints, it goes into this drop box and from the drop box, it goes to the administrator’s office and from the administrator’s office, it goes to human resources,” or whatever the case may be, you want to make sure, kind of like the contests, international contests, like rules, follow the rules or your application gets tossed out. You want to make sure that your grievance goes to the appropriate channel according to the facility. So don’t just go in there and go, “Well I complained one time.” Well they forgot your complaint. But if you ask for the policy and you follow their own policy and then they say they lost your complaint, then there’s a problem. Then there is a serious problem because you followed their procedure to file their grievance, and they should have investigated that grievance and come to some resolution with regard to your grievance.
You have a right to see complaints and inspection results of that facility, so again, the regulations say you have a right, the resident has a right to examine the results of the most recent survey at the facility conducted by federal or state surveyors and any plan of correction in effect with respect to that facility and receive information from agencies acting as advocates. The facility must have reports with respect to any surveys, certifications and complaint investigations made respecting that facility in the previous three years available upon request.
So you have the right to look at the citations, any violations, any plans of correction in the previous three years at that facility if you ask them for it because you want to know if your loved one has gotten a pressure ulcer or has fallen. Ask to see that because maybe they have a track record of those particular injuries, and you say, “Hey listen, you’ve had notification that your people are not doing a good job with regard to falls and pressure injuries. What’s going on here?” So that’s something that you can definitely request.
And sometimes those documents can be a little overwhelming, kind of the same with medical records. They can be overwhelming. But the important part is to look for is it won’t just be code. It won’t just be like 496 and 81B subsection Part C. It will literally say, “Facility cited for failing to adhere to a care plan.” It can be in layman’s terms, but you’ve just got to find it within the document.
Finally you have a right to see information regarding the attending physician of the facility. The facility, again, it’s from the Long-Term Care Bill of Rights, the facility must ensure that each resident remains informed of the name, specialty and way of contacting the physician and other primary care professionals responsible for the resident’s care. So they cannot hide the ball with regard to who the attending physician or who any other medical professional who comes in there that provides services for your loved one. They have to give you the name and number.
And we’ve had previous episodes talking about the role of the attending physician. I would recommend to you that you know who the attending physician is. Once you request that information and get it, know who they are, have their phone number in your pocket. Find out from the nursing home when that attending physician is next making their rounds. It’s important that you are as involved in the care planning and treatment process as possible. So that attending physician has to come and see your loved one periodically depending on how long they’ve been at that nursing home, at least once every 60 days if not more if they’ve recently been admitted to the nursing home.
So that is going to do it for this particular episode. That is a lot of document categories you are allowed to request and view on behalf of your loved one depending on if you have the appropriate authority as the personal representative.
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