Like most people, you would probably prefer to remain in your own home, taking care of yourself, until you eventually die a natural death. However, the unfortunate reality is that up to 70% of adults over 65 will need long-term services and supports (LTSS), according to the Health and Human Services Office of the Assistant Secretary for Planning and Evaluation (ASPE). LTSS includes paid care, such as assisted living and nursing home care. Whether you are planning for your own future needs or considering assisted care facilities for your parents, siblings, or adult children, understanding the rights of adult patients in such facilities is vital to choosing the right facility and protecting yourself or your loved one. An elder neglect attorney at Erin Marshall Law may be able to assist you in understanding those rights, determining whether those rights have been violated, and what your next steps should be if they have been. Call (505) 218-9949 to schedule an appointment in our Albuquerque, New Mexico office.
Difference Between Assisted Care Facilities and Nursing Homes
When people are considering their options for assisted living or long-term care, they often view in-home care, assisted care facilities, and nursing homes as all being the same care provided in different settings. This is not the case, however.
In-home care is appropriate for individuals who require some assistance with activities of daily living (ADL) such as bathing, cooking, eating, dressing, cleaning, and other activities, but who are mostly independent or have another caregiver who is available to assist the individual when the paid caregiver is not there. While assisted living and nursing home facilities are both for individuals who need more assistance than those receiving in-home care, they are different tiers of care.
Assisted Care Facility
An assisted care facility provides support with ADLs, medication management, and social activities. Assisted care focuses on personal care and independence and is for adult patients who need assistance with daily tasks but want to interact socially with others and maintain their independence. This kind of LTSS is also less expensive than a nursing home.
Nursing Home
A nursing home offers 24/7 medical supervision and skilled nursing care for adult patients who have complex health needs. Nursing homes provide medical care and rehabilitation and are intended for those with complex medical needs that require frequent assistance from a caregiver to manage. This kind of LTSS tends to be more expensive due to the more intense nature of the necessary assistance.
Reasons Adult Patients May Choose Assisted Care Facilities
While the most obvious reason that many people choose to move into an assisted care facility is aging, there are many other reasons that adult patients may need or want to reside in such facilities. These reasons can include:
- Significant illness, including chronic conditions such as advanced arthritis or sudden ones such as heart attacks or strokes
- Severe injury
- Requiring specialized care that cannot be provided at home, such as surgical rehabilitation or physical therapy
- Lack of family support
- Feelings of isolation
- Inability to manage daily tasks for any reason
- Cognitive decline or impairment, such as dementia or traumatic brain injury (TBI)
In some cases, individuals who may otherwise be able to benefit from in-home assistance opt for an assisted living facility as a matter of personal preference. They may enjoy the social opportunities, the convenience of having meals prepared, or the peace of mind knowing that support is available if or when needed.
Key Rights of Adult Patients in Assisted Care Facilities
Whatever an individual’s reasons for residing in an assisted care facility, adult patients have many rights. These facilities also often have many rules, and when a patient is new to the facility and it does not yet feel like home, the patient may feel as though they are obligated to follow the rules and do not have many, if any, rights.
While it is important to comply with facility rules, it is also crucial to know and understand the rights adult patients have so that they do not allow the facility to violate those rights. According to the New Mexico Department of Health, some of the key rights these patients have in assisted care facilities include:
- Equal Treatment and Nondiscrimination: Each patient has the right to be treated equally with other patients and not to be discriminated against based on religion, sex, race, etc.
- Informed Consent: Patients must be allowed to give or deny informed consent. This includes the facility’s transparency regarding staffing, including that licensed nurses may not always be on staff, and medication assistance might be provided by unlicensed staff. Patients should be informed of the purpose, potential risks and benefits, and any alternatives or choices regarding medications, treatments, or procedures being offered. Lack of informed consent could be considered medical malpractice.
- Privacy: Adult patients in assisted care facilities have the right to privacy. This includes privacy regarding their medical records, examinations, consultations and treatments, personal hygiene, rooms, and phone calls and visits.
- Safe Environment: Patients have the right to a safe environment. This includes safety from abuse, neglect, exploitation, and other inhumane or inappropriate treatment by staff and by other patients. A safe environment also includes ensuring the facility provides a safe and sanitary physical space in patient rooms and shared or public spaces.
- Participation in Care Planning: Patients are entitled to participate in care planning, including choosing their own medical providers, participating in medical treatment decisions, and creating advance directives such as powers of attorney or living wills. They can also participate in developing their individual service plan (ISP), which details which services the facility will provide, when and how those services will be provided, and who will provide them.
- Right to Refuse Treatment: Adult patients can refuse any treatments offered. Facilities must ensure this refusal complies with informed consent by providing all the required information before the patient refuses treatment. Treatments forced on the patient may be considered elder neglect or medical malpractice, based on whether the treatments were provided by facility staff or a medical professional.
- Freedom From Restraints: Patients have the right to be free of any chemical or physical restraints. If the patient’s health becomes unmanageable for the facility, they are prohibited from using restraints and must instead provide notice of discharge and refer the patient to a facility more suited to their needs. Restraining a patient is likely to be considered elder abuse and may also qualify as elder neglect if the patient suffers bruises, bedsores or pressure sores because the restraints are too tight or the patient’s position is not shifted.
- Voice Grievances and Have Them Addressed: Patients have the right to voice grievances about the care they are receiving and have them addressed within fourteen calendar days.
- Know Their Rights: Perhaps one of the most important rights adult patients in assisted care facilities have is the right to know their rights. Without this right, fraudulent facilities could take advantage of patients who do not research and make themselves aware of their rights on their own.
If you or a loved one has experienced a violation of any of these rights, a skilled New Mexico elder neglect attorney with Erin Marshall Law may be able to assist you in understanding your legal options and what steps to take next.
Additional Rights Adult Patients Have in Assisted Care Facilities
In addition to the rights previously noted, adult patients have additional rights that New Mexico assisted care facilities must respect. These rights include:
- Financial Freedom: The right to manage and control their own finances, and not to be a victim of financial abuse.
- Freedom to Participate: Patients have the right to freely participate in religious, community, social, and other activities, and to freely associate with people both in and out of the facility.
- Unrestricted Community Access: The freedom to leave the facility and return to the facility without unreasonable restrictions.
- Access to Personal Possessions: Patients have the right to keep and use their personal possessions in the facility without loss or damage from staff or other adult patients.
- Freedom to Organize: Patients can freely organize and participate in resident associations that may recommend facility changes.
- Protection Against Forced Work: Patients cannot be required to work for the facility.
- Protection Against Unjustified Transfers or Discharges: Patients are protected against unjustified room transfers or discharges from the assisted care facility. Additionally, they have the right to be given fifteen calendar days’ notice in writing before a room transfer or discharge from the facility unless there is immediate danger.
How to Report Abuse, Neglect, or Exploitation of Adult Patients in Assisted Care Facilities
Sometimes the violation of adult patients’ rights in assisted care facilities goes beyond a mistake or misunderstanding and becomes the abuse, neglect, or exploitation of that patient. When this happens, the patient or someone on their behalf may wish to report what happened to prevent it from happening again. Reporting the violation to the facility itself is an important first step. If they do not address it, do not address it satisfactorily, or the violation is severe enough, individuals may want to report it to the state licensing authority as well. The New Mexico Health Care Authority provides a phone number to call and report and also has a form that can be completed and submitted. They do note that in cases where the alleged incident occurred more than twelve months ago, there may not be an on-site investigation into it, but the complaint may still be filed. Therefore, it is recommended that complaints regarding abuse, neglect, or exploitation be filed as soon as possible after the incident to ensure a thorough investigation. Individuals may also want to file a complaint with Adult Protective Services.
Proving Violations of Adult Patients’ Rights in Assisted Care Facilities
Violations of an adult patient’s rights in an assisted living facility can result in severe harm to the patient, depending on which rights have been violated and how. When the violation can be proven, the patient or their loved ones may be able to take legal action, including filing a lawsuit against the facility. However, proving the violation requires more than simply stating that it occurred. Patients or their families should take steps to collect evidence that can be used to proceed with filing a complaint or taking other legal action.
Document The Violation
When violations of the rights of adult patients occur, documenting any evidence of the violations is critical. Begin by identifying the specific violation or violations that occurred, and include details such as dates and times, the names of the offending parties, and details of exactly what was done or not done. Information detailing the impact the violation had on the patient is also useful.
This should also include taking photos of physical evidence, such as photos of broken personal items, dangerous environments, or visible injuries. Other evidence may include bank statements and other financial records if the patient was subjected to financial abuse, or video or statements from witnesses if the patient was verbally or physically mistreated. An attorney may also be able to provide additional types of documentation to prove violations of other rights.
Seek Medical Attention If Needed
If the patient was injured as a result of the violation of their rights, seeking immediate medical attention can be critical to proving the violation. This includes physical abuse by the facility staff or other patients, but also may include circumstances such as the patient being denied the right to participate in their own care or being forced to take medications or undergo treatments. Even if the patient does not seem to be injured by the violation, a thorough examination by a healthcare professional not associated with the facility may still be beneficial to the case.
Get Names and Personal Contact Information of Any Witnesses
Other adult patients or staff may have observed the violation. If so, their testimony may be incredibly valuable. However, patients may be moved to another facility and staff may quit or be terminated. If there are witnesses, get their names and any personal contact information, such as a cell phone number or email address, so that they can be reached later. If the witness is a patient, getting contact information for a relative may also be helpful.
Search Records for Previous Violations
Depending on the violation that occurred, individuals will want to search the patient’s medical records and/or the facility’s resident or other records to see if previous similar violations have occurred. While the patient has the right to view their own medical records, individuals may need the assistance of an attorney to gain access to the facility’s resident or other records. This may be particularly true in cases where the violation that occurred was the patient’s privacy, as the facility will want to ensure that they do not commit another alleged privacy violation by providing access to confidential records.
Seek Expert Opinions
Elder abuse, assisted care or nursing home abuse, and other relevant experts may be helpful in proving violations occurred. Forensic accountants may be able to assist in proving financial abuse. An attorney may be able to recommend other useful experts for the specific violation that occurred.
How a New Mexico Elder Neglect Attorney May Assist You
Giving up the independence and freedom of living in your own home does not mean giving up all of your rights. Adult patients in assisted care facilities have many rights and violations of those rights can result in significant harm to the patient. A New Mexico elder neglect attorney may be able to explain your legal rights and options, assist you in gathering evidence and finding expert witnesses, or file a complaint or lawsuit. Call Erin Marshall Law at (505) 218-9949 to arrange a consultation in our Albuquerque office.
