Illinois residents also enjoy rights under the federal Nursing Home Reform Act of 1987. The Act also is aimed at ensuring that nursing home residents’ rights are protected and that their living environment is one that allows them to achieve and maintain “their highest practicable physical, mental and psychosocial well-being.” It applies to facilities that participate in Medicare or Medicaid.
If your elderly loved one is living in an Illinois nursing home, you should be aware of the rights that he or she is guaranteed through this combination of state and federal laws. You should pay close attention to whether the following 25 rights, in particular, are being respected by those who own and operate the facility.
- The rights of a U.S. citizen. A nursing home cannot deprive any resident of any rights, benefits or privileges that are guaranteed by the state and federal constitutions or as otherwise provided by law. For example, a nursing home cannot deprive a resident of his or her right to free speech, religious freedom and voting.
- The right to be free from abuse or neglect. This includes the right to be free from physical, mental or sexual abuse by a nursing home’s staff or by fellow residents, and the right to receive proper care and treatment within the facility.
- The right to be informed about the rules concerning “spousal impoverishment.” Under special Medicaid provisions, a certain percentage of a couple’s combined resources may be protected for the spouse who is still living in the community.
- The right to manage his or her own financial affairs. However, the resident and his or her guardian may give written authorization for the facility administrator to manage the resident’s financial affairs. If this occurs, the resident (or guardian) has the right to receive quarterly financial statements.
- The right to retain, use and wear his or her personal property. In some cases, a nursing home may deem it to be “medically inappropriate” for a resident to wear his or her own clothing. If so, the facility must provide properly fitting attire.
- The right to have personal property adequately protected. The nursing home must provide an adequate storage area for personal property and take reasonable steps to prevent loss and theft.
- The right to retain his or her own personal physician. The resident may use his or her own doctor as long as the resident pays for the medical care and treatment through personal assets, private health insurance or public assistance.
- The right to obtain complete and current medical information. Regardless of whether the physician is a personal doctor or one provided by the nursing home, the resident has the right to be informed about his or her diagnosis, treatment and prognosis. The information must be conveyed in terms and language that a resident “can reasonably be expected to understand.”
- The right to participate in the planning of his or her total care and medical treatment. A comprehensive plan should be developed that meets the resident’s needs and allows him or her to “attain or maintain the highest practicable level of independent functioning.” The resident shall not be assessed any charges that were not authorized in writing at the time of admission.
- The right to refuse medical treatment (unless it would harm others). This includes a resident’s right to have his or her living will honored (such as a “do not resuscitate” provision).
- The right to name one or more “potential health surrogates.” The surrogate can act on the resident’s behalf if the resident loses decision-making capacity.
- The right to respect and privacy in medical and personal care. In other words, the nursing home cannot release any confidential information about the resident without his or her consent.
- The right to be free from unwarranted, unauthorized use of restraints or confinement. This includes the use of physical restraints and chemical restraints. A resident can never be restrained or confined for the sake of punishment or for the convenience of the facility’s staff. A restraint can only be used when a doctor orders and documents the need for it.
- The right to not be given “unnecessary drugs.” A resident cannot be given drugs in excessive doses or for an excessive duration. Any administration of drugs must be adequately monitored. A drug cannot be administered for an improper use or where it would dangerously interact with other medications.
- The right to not be given a psychotropic medication without consent. A powerful, mood-altering drug cannot be given to a nursing home resident unless there is informed consent by the resident or his or her guardian.
- The right to private, unimpeded and uncensored communication by mail, public phone or visitation. A nursing home must make it convenient for a resident to mail or receive letters and provide reasonable access to a phone. Additionally, a resident is entitled to private visits at “any reasonable hour,” or between 10 a.m. and 8 p.m. If a private visit is taking place, staff must knock before entering a room. This right can be restricted by a nursing home only if necessary to protect the resident or others from “harm, harassment or intimidation.”
- If both spouses reside in the nursing home, they have the right to share a room. Only if there is no room available to accommodate both spouses, or if sharing a room is deemed to be “medically inadvisable,” can this right be restricted by a facility.
- The right to be free from performing labor for the facility. As a condition of living at the nursing home, a resident cannot be required to perform cleaning, cooking, maintenance, landscaping or other services for the facility.
- The right to speak and meet with a social worker, local ombudsman or attorney in private during the nursing home’s business hours. This right extends to visits that are for the purpose of discussing a resident’s legal rights or the availability of personal, social and legal services. The right does not extend to visits that are solely for commercial purposes.
- The right to be discharged or transferred from the home. The resident or his or her guardian must given written notice to the facility.
- The right to present grievances on behalf of the resident or others “without threat of discharge or reprisal in any form whatsoever.” The nursing home administrator must provide contact information for the proper government office where a complaint may be lodged such as the local Ombudsman or Illinois Department of Public Health.
- The right to be free from discrimination. This includes discrimination based on a resident’s Medicaid eligibility. Regardless of a resident’s financial status, he or she should receive the same services as any other resident.
- The right to organize a resident’s advisory council. The council shall be allowed to hold meetings and serve its purpose of disseminating information to residents, identifying problems within the facility and proposing improvements within the facility.
- The right to be free from an improper involuntary discharge or transfer. No resident can be removed from the home unless notified at least 21 days in advance of the discharge or transfer. The resident’s right to appeal the discharge or transfer must also be honored.
- The right to bring an action against the nursing home’s owner or licensee. Illinois law specifically states that an owner or licensee is liable for any intentional or negligent act or omission that injures a resident. Bringing legal action can result in the recovery of damages as well as lead to an injunction. Any waiver of this legal right by a resident or guardian is treated as “null and void, and without legal force or effect.”
If you believe that your elderly loved one’s rights under these state and federal laws have been violated, and your loved one has suffered harm as a result, you should report it without delay and seek legal representation immediately. Please see our section on “Reporting Nursing Home Abuse and Neglect in Illinois” for more information.