The Nursing Home Residents’ Bill of Rights (La. R. S. 40:2010.8) was amended effective June 8, 2010 to provide more freedom and more choice to residents and to remove some reasonable restrictions imposed by nursing homes.
Nursing homes must now provide the right to “immediate access” to certain state and federal government workers, the resident’s individual physician, immediate family members or other relatives of the resident, the resident’s clergy, and other visitors. The prior version of the statute required nursing homes to have flexible visiting hours and to allow for visitation. The new version of the statute allowing for immediate access does not take into consideration visiting hours. However, the nursing home may impose “reasonable restrictions” to protect the security of all residents and may change the location of visits to assist in care giving or to protect the privacy of other residents. The nursing home must also provide “reasonable access” to any resident by any entity or individual that provides health, social, legal or other services to the resident.
The new version of the Bill of Rights provides residents the right to be adequately informed of their medical conditions and proposed treatments and removes the qualification that the physician can prevent or restrict the information provided. The new version also removes the qualification that the resident’s physician can override or prevent the resident from participation in the planning of all medical treatment, including the resident’s right to refuse medication and treatment.
The new version of the Bill of Rights states the resident has the right to be free from physical or chemical restraints imposed for discipline or convenience and not required to treat the resident’s medical symptoms. The new version deleted the reference to physical and chemical restraints authorized by a physician or necessitated by emergency. The new version also removed the requirement that the physician be consulted immediately if physical or chemical restraints are used and also removed the requirement that a qualified licensed nurse must apply the restraints and document the circumstances for the use of restraints. Under the new version, there is no explicit prohibition from using physical or chemical restraints for the resident’s protection or safety or for treatment of medical symptoms.
The new version of the Bill of Rights removes the qualification that a resident may be excluded from participation in community-based activities if medically contraindicated, as documented by the resident’s physician. The only restriction to the resident’s participation in community-based activities now appears to be if the participation would violate infection control or quarantine laws or regulations. What remains unanswered is what liability the nursing home may face, if a resident is injured while participating in a community-based activity in a situation where participation was otherwise medically contraindicated.
The resident has the right to retire and rise in accordance with his personal preference. The new version of the Bill of Rights removes the qualifications that the resident’s schedule may not disturb other residents or disturb the posted meal schedules. The new version also removes the provision that the nursing home staff may request that the resident must remain in a supervised area, unless retiring and rising. The new version removes the consideration that the patient’s schedule for rising and retiring may be based on medical considerations as documented by the resident’s physician.
The new version presents several unanswered questions, such as whether the nursing home must provide meals outside the regularly scheduled times, if the resident has retired during the scheduled meal time; what should be done if the resident’s medications are scheduled to be given during a time when the patient has chosen to retire; and what happens if the resident disturbs other residents, as a result of his personal choice to be awake and active when most other residents are sleeping.
The newly revised Bill of Rights provides the nursing home residents with more freedom and more choice in personal and medical decision making, but the new provisions leave unanswered what ramifications the residents’ decisions may have on the nursing homes’ schedules of operation and potential liability.