Legal Rights of Nursing Home Residents in Georgia

The process of entering a nursing home facility can be somewhat confusing. Here is a list of terms that may help make the process a little clearer.

Legal guardian.

A person who, pursuant to a court-issued guardianship order, has the right and the obligation to make decisions for an incompetent person.

Under Georgia law, a person is considered competent unless a probate court judge has found him or her to be incapable of handling his or her own affairs. The scope and duration of a legal guardianship are determined by a judge.

Long-term care ombudsman.

An advocate for nursing home and assisted living residents. Though ombudsmen can help protect residents’ rights by investigating complaints and working to resolve problems facing residents in nursing homes and assisted living facilities, these advocates do not regulate the facilities. The services of an ombudsman are free of charge and matters are kept confidential, though complaints may be made anonymously.

Methods of payment.

Private pay, Medicare, and Medicaid are the most common forms of payment for nursing home care.

Private pay.

A resident’s own resources, family resources or private insurance.

Medicare.

A government insurance program that pays for skilled care for a short period of time.

Medicaid.

A government insurance program for individuals with limited income. Medicaid will pay for nursing home care for financially eligible residents.

Often when an individual enters a nursing home as a private pay resident, he or she can become eligible to receive Medicaid assistance once his or her resources have been exhausted. While many nursing homes accept Medicaid, not all of them do.

Power of attorney.

A document that grants certain specified powers from the person granting the power of attorney (called the principal) to an agent. The delegation of power can be for a specified amount of time (i.e., when the principal is undergoing a medical procedure or is out of the country), or for a longer duration. The scope and duration of the power of attorney are determined by the principal.

Advance directive for health care.

Advance directive is a legal document delegating to an agent the power to make specific health care decisions on behalf of the principal when the principal is not able to make or communicate such decisions.

Financial power of attorney.

A legal document delegating to an agent the power to make specific financial decisions for the principal. Depending on the language of this particular power of attorney, the agent may have the authority to act when the principal is also able to act.

Springing power of attorney.

The delegation of power that is triggered by some specific event or occurrence.

• requiring at admission that residents waive their rights to Medicare or Medicaid
• requiring oral or written promises that residents are not eligible for Medicare or Medicaid, or that they will not apply for those benefits
• requiring residents to pay the facility from private funds for a certain time period before applying for Medicaid

Still, nursing home facilities may transfer or discharge residents against their wishes in the following circumstances:

• the transfer or discharge is necessary for the resident’s welfare and the failure to do so will result in the injury or illness of the resident or others
• there has been non-payment of allowable charges
• the resident no longer requires the level of care that is being provided
• the facility cannot meet the resident’s needs

A resident’s change in status from private pay to Medicaid does not constitute a non-payment of allowable charges in a Medicaid-participating facility. If a resident is eligible for Medicaid, Medicaid will retroactively reimburse the nursing home for up to three months prior to the month of application. An admission agreement allowing for the involuntary discharge upon becoming Medicaid eligible is illegal and unenforceable.

As long as a resident’s displacement is not an emergency, a nursing home is required to provide a written notice to the resident, the resident’s representative and the resident’s physician 30 days prior to the proposed date of transfer or discharge, regardless of the admission contract terms.

A transfer or discharge notice must contain the following information:

• the reason for the transfer or discharge
• the effective date of the transfer or discharge
• the location to which the resident is being transferred or discharged
• a statement that the resident has the right to appeal the proposed action to the state
• the name, address and telephone number of the state long-term care ombudsman;
• for residents with developmental disabilities, the mailing address and telephone number of the agency responsible for the protection and advocacy of developmentally disabled individuals

If a resident disagrees with a notice of transfer or discharge, the resident should immediately request a hearing. This will protect the resident’s right to continue to receive services while the appeal is pending. Also, the resident should consult with one of the resources listed at the end of this pamphlet as soon as possible.

• the right to adequate and appropriate care and services without discrimination in the quality of service on the basis of age, gender, race, disability, religion, sexual orientation, national origin, marital status or source of payment for services
• the right to seek enforcement of a resident’s right without punishment, retaliation or harassment
• the right to exercise constitutional rights including, but not limited to, the right to vote
• the right to enjoy one’s own privacy (i.e., the resident can close doors and draw curtains)
• the right to respect privacy in the provision of personal services
• the right to practice religious beliefs, as well as the right to abstain from religious beliefs or practices
• the right to be free from abuse, neglect, exploitation and chemical and physical restraints
• the right to have one’s own personal property
• the right to send and receive mail unopened
• the right to access a telephone
• the right to manage one’s own financial affairs
• the right to refuse medical and dental treatment
• the right to participate in one’s own care plan
• the right to access one’s own records
• the right to voluntarily transfer or discharge oneself
• the right to access an ombudsman
• the right to form a residents’ council
• the right to interact with members of the community

Limitations on Residents’ Rights

The admissions contract may not seek to limit rights afforded to residents by federal or state laws. If you have questions or concerns about residents’ rights, please consult the resources listed at the end of this page.

Violations of Residents’ Rights

Nursing home residents’ rights are sometimes violated in connection with transfers and discharges. Complaints about inadequate medical care, food quality, neglect, and abuse also arise. To address violations, the resident may either file a grievance or request a fair hearing.

Grievance Procedure

Residents may make complaints orally or in writing to facility administrators who must then act to resolve the problem. If an administrator is unable to resolve the complaint within  three business days, he or she must respond in writing to the complaining party. If the resident is not satisfied with this response, the resident may submit an oral or written complaint to the community or state ombudsman.

Should the ombudsman be unsuccessful in resolving the complaint, an impartial referee may be mutually agreed upon to convene a hearing on the issue. This hearing is to be held at the nursing home. A written decision must be rendered within 72 hours of the hearing and must include any recommendations for corrective action. A resident also has the option of bringing a private cause of action in court and requesting an administrative hearing.

The Fair Hearing

A nursing home resident or a resident’s representative may request an administrative hearing through the Georgia Department of Human Resources, Office of Legal Services. The hearing must be held within 45 calendar days following the department’s receipt of the hearing request. Notice will be sent to the administrator and to the complainant with the date, the time and the location of the hearing. No transfer shall take place until all appeal rights are exhausted unless there is an emergency situation. The decision of the administrative law judge will state whether a violation of rights occurred, and, if so, what action should be taken. The decision must also include information about the right to appeal.