State laws for nursing home care usually mirror federal counterparts because the traditional standard of care for the nursing home industry is based on federal law. A violation of a state nursing home code should also be a violation of federal laws. If a nursing home is qualified under Medicare, the applicable governing statutes should be federal statutes.

Generally, a violation of a state or federal nursing home code which leads to an injury to the resident, is actionable under a negligence theory if the injury is serious and damages significant. It is sometimes difficult, however, to determine the extent of the negligent act or which section of the state or federal code was violated. For an explanation of negligence please see the NEGLIGENCE section.

For your convenience, the federal and state Bills of Rights are listed below at subsections I and II respectively.

I. FEDERAL NURSING HOME RESIDENTS' BILL OF RIGHTS

Under federal regulations, all nursing homes are required by law to have written policies called the Nursing Home residents' Bill of Rights. These policies describe the rights of the residents. Nursing homes are required by law to make these policies available to any resident who requests them.

The Nursing Home Resident's Bill of Rights should include and define (but not be limited to) the following rights:

THE RIGHT TO BE INFORMED OF YOUR RIGHTS
AND THE POLICIES OF THE HOME

The nursing home must have written policies about your rights and responsibilities as a resident. You must a statement saying that you have received and understood these rights and the rules of the home when you are admitted. As a resident, you have the right to be fully informed before or at admission of your rights and responsibilities as a resident and to be notified of any changes or amendments to those rights and responsibilities.

THE RIGHT TO BE INFORMED ABOUT
THE FACILITY'S SERVICES AND CHARGES

Every resident has the right to be fully informed to the services available in the facility and of the charges related to those services. These charges include services not covered under Medicare or Medicaid and charges that are not covered in the facility's basic rate.

THE RIGHT TO BE INFORMED ABOUT YOUR
MEDICAL CONDITION AND TREATMENT

Every resident has the right to receive medical are, nursing care, rehabilitative and restorative therapies, and personal hygiene in a safe, clean environment. Also, every resident has the right to be fully informed of his/her medical condition unless physician indicates in the medical records that it is not the best interest of the patient to be told. Residents have the right to be advised by a physician or appropriate professional staff of alternative courses of care and treatments and their consequences.

THE RIGHT TO PARTICIPATE IN PLANNING YOUR
CARE AND MEDICAL TREATMENT

Residents must be given the opportunity to participate in the planning of their medical treatment. Residents have the right to refuse treatment and to refuse to participate in experimental research.

THE RIGHT TO CHOOSE YOUR OWN PHYSICIAN

Every resident has the right to choose his/her own physician and pharmacy. Residents do not have to use the nursing home's physician or pharmacy.

THE RIGHT TO MANAGE PERSONAL FINANCES

Residents have the option to manage their funds or to authorize someone else to manage them. If someone else is authorized to handle a resident's funds, the resident has the right to:

Know where the funds are and the account number(s)
Receive a written accounting statement every 3 months
Receive a receipt for any funds spent
Have access to his/her funds within 7 business day

THE RIGHT TO PRIVACY, DIGNITY, AND RESPECT

Every resident has the right to be treated with consideration, respect, and dignity in full recognition of his/her individuality. This includes privacy during medical treatment and care of personal needs. People not involved in the care of the resident should not be present during examinations and treatment without consent from the resident.

THE RIGHT TO PERSONAL POSSESSIONS

Every residency has the right to retain and use his/her personal clothing and possessions as space permits, unless doing so infringes upon the rights of others residents or constitutes a safety hazard.

THE RIGHT TO BE FREE FROM ABUSE RESTRAINTS

Residents have the rights to be free from mental (humiliation, harassment, and threats of punishments or deprivation) and physical (corporal punishment and the use of restraints as punishment) abuse. Residents also have the right to be free from chemical and physical restraints unless authorized in writing by a physician for a specified and limited time period or when necessary to protect the patient from injury to him/herself or to others.

THE RIGHT TO VOICE GRIEVANCE WITHOUT RETALIATION

Every resident should be encouraged and assisted to exercise his/her right to voice grievances and recommended changes in policies and services to facility staff and/or outside representatives of his/her choice without fear of coercion, discrimination, or reprisal.

THE RIGHT TO BE DISCHARGED OR TRANSFERRED
ONLY FOR MEDICAL REASONS

A resident may only be discharged or transferred for medical reasons or for his/her welfare or that of other residents. Residents must be provided with a written notice 30 days prior to transfer or discharge. The law provides residents the right to appeal discharge or transfer.

RIGHTS OF ACCESS

Residents may receive any visitor of their choice and may refuse visitors to enter their room or may end a visit at any time. Residents have the right to immediate access by family and reasonable access to others. Visiting hours must be a t least hours per day and be posted in a public place. Members of community organizations and legal services may enter any nursing home visiting hours. Communication between the resident and visitors are confidential. Visitors may talk to all residents and offer them personal, social, and legal services. Visitors may help residents claim their rights and benefits through individual assistance, counseling, organizational activity, legal action, or other forms of representation.

II. OKLAHOMA NURSING HOME RESIDENTS' BILL OF RIGHTS

A. All principles enumerated in this section shall be posted in a conspicuous, easily accessible location in each facility. Each resident and personally appointed representative of the resident, if any, shall be verbally advised and provided a written copy of such principles prior to or upon admission to the facility. The facility shall ensure that its staff is familiar with and observes the rights and responsibilities enumerated in this section. The facility shall make available to each resident, upon reasonable request, a current written statement of such rights and responsibilities.

B. A statement of rights and responsibilities shall include, but not be limited to, the following:

1. Every resident's civil and religious liberties, including the right to independent personal decisions and knowledge of available choices, shall not be infringed upon and the facility shall encourage and assist in the exercise of these rights;

2. Every resident shall have the right to have private communications, including telephonic communications and visits and consultations with a physician or an attorney, and meetings of family and resident groups or any other person or persons of the resident's choice, and may send and promptly receive, unopened, the resident's personal mail;

3. a. Every resident shall have the right, without fear of reprisal or discrimination, to:

(1) present grievances with respect to treatment or care that is or fails to be furnished on behalf of the resident or others to:

(a) the facility's staff,
(b) the facility's administrator,
(c) the facility's attending physician,
(d) the resident's personal physician, if any,
(e) governmental officials, or
(f) any other person, and

(2) organize or to join with other residents or individuals within or outside of the facility to work for improvements in resident care.

b. The family of a resident shall have the right to meet in the facility with other residents' families;

c. Every resident shall have the right to prompt efforts by the facility to resolve grievances the resident may have, including those with respect to the behavior of other residents;

4. Every resident shall have the right to manage such resident's own financial affairs, unless the resident delegates the responsibility, in writing, to the facility. The resident shall have at least a quarterly accounting of any personal financial transactions undertaken in the resident's behalf by the facility during any period of time the resident has delegated such responsibilities to the facility;

5. Every resident shall have the right to receive adequate and appropriate medical care consistent with established and recognized medical practice standards within the community. Every resident, unless adjudged to be mentally incapacitated, shall be fully informed by the resident's attending physician of the resident's medical condition and advised in advance of proposed treatment or changes in treatment in terms and language that the resident can understand, unless medically contraindicated, and to participate in the planning of care and treatment or changes in care and treatment. Every resident shall have the right to refuse medication and treatment after being fully informed of and understanding the consequences of such actions unless adjudged to be mentally incapacitated;

6. Every resident shall receive respect and privacy in the medical care program of the resident. Case discussion, consultation, examination and treatment shall remain confidential and shall be conducted discreetly. Personal and medical records shall be confidential, and shall include such documentation or information so as to alert a health care provider or an emergency medical care facility of the existence of a directive to physicians or a living will;

7. Every resident shall have the right to reside and to receive services with reasonable accommodation of individual needs and preferences, except where the health or safety of the individual or other residents would be endangered;

8. a. Every resident shall be informed by the facility, at the time of admission, of the facility's policy regarding the provision of hospice services. The facility's policy shall:

(1) specify whether the facility provides hospice services, either directly or through contractual arrangements with other hospice providers,

(2) specify whether the facility permits hospice services to be provided in the facility by any other hospice services or only by hospice services contracted by the facility,

(3) provide that each resident shall receive a list of hospice services with which the facility contracts, and

(4) provide for complete disclosure to the resident of the facility's relationship with any hospice service that is the result of ownership or an ownership interest of five percent (5%) or more.

b. A facility shall, at the point that a resident requires hospice services, again inform the resident or the personally appointed representative of the resident, if any, verbally and in writing of the resident's right to hospice services pursuant to the facility's policy at the time of the resident's admission;

9. Every resident shall have the right to receive notice before the room or roommate of the resident in the facility is changed and if the resident has a telephone in his or her room, the resident must be informed of any charges to be incurred when moving;

10. Every resident shall have the right to retain and use personal clothing and possessions, unless medically contraindicated, and shall have the right to security in the storage and use of such clothing and possessions;

11. Every resident shall have the right to receive courteous and respectful care and treatment and a written statement of the services provided by the facility, including those required to be offered on an as-needed basis, and a statement of related charges, including any costs for services not covered under Medicare or Medicaid, or not covered by the facility's basic per diem rate;

12. Every resident shall be free from mental and physical abuse and neglect, as such terms are defined in Section 10-103 of Title 43A of the Oklahoma Statutes, corporal punishment, involuntary seclusion, and from any physical and chemical restraints imposed for purposes of discipline or convenience and not required to treat the resident's medical symptoms, except those restraints authorized in writing by a physician for a specified period of time or as are necessitated by an emergency where the restraint may only be applied by a physician, qualified licensed nurse or other personnel under the supervision of the physician who shall set forth in writing the circumstances requiring the use of restraint. Use of a chemical or physical restraint shall require the consultation of a physician within twenty-four (24) hours of such emergency;

13. Every resident shall receive a statement of the facility's regulations and an explanation of the resident's responsibility to obey all reasonable regulations of the facility and to respect the personal rights and private property of the other residents;

14. Every resident shall receive a statement that, should they be adjudicated incompetent and have no ability to be restored to legal capacity, the above rights and responsibilities shall be exercised by a court-appointed representative;

15. No resident shall be required to perform services for a facility;

16. Every resident shall have privacy for spousal visits. Every resident may share a room with the resident's spouse, if the spouse is residing in the same facility;

17. When a physician indicates it is appropriate, a facility shall immediately notify the resident's next of kin, or representative of the resident's death or when the resident's death appears to be imminent;

18. Every resident shall have the right to participate in social, religious, and community activities that do not interfere with the rights of other residents in the facility; and

19. Every resident shall have the right to examine, upon reasonable request, the results of the most recent survey of the facility conducted by the State Department of Health with respect to the facility and any plan of correction in effect with respect to the facility.

C. No licensed facility shall deny appropriate care on the basis of the resident's source of payment as defined in the regulations. Appropriate care shall not include duplication of services by a nursing home, hospice, or any combination of care providers.

D. Each facility shall prepare a written plan and provide appropriate staff training to implement each resident's rights as stated in this section.

E. Any person convicted of violating any provisions of this section shall be guilty of a misdemeanor, punishable by a fine of not less than One Hundred Dollars ($100.00), nor more than Three Hundred Dollars ($300.00), or imprisonment in the county jail for not more than thirty (30) days, or by both such fine and imprisonment.

F. In addition to the penalties provided in this section, an action may be brought against an individual by any resident who is injured by any violation of this section, or who shall suffer injury from any person whose threats would cause a violation of this section if carried through, may maintain an action to prevent, restrain or enjoin a violation or threatened violation. If a violation or threatened violation of this section shall be established in any action, the court shall enjoin and restrain or otherwise prohibit the violation or threatened violation and assess in favor of the plaintiff and against the defendant the cost of the suit. If damages are alleged and proved in the action, the plaintiff shall be entitled to recover from the defendant the actual damages sustained by the plaintiff. If it is proved in an action that the defendant's conduct was willful or in reckless disregard of the rights provided by this section, punitive damages may be assessed.

G. Any employee of a state agency that inspects any nursing facility or special facility shall report any flagrant violations of this act or any other statute to the administrative head of the state agency, who shall immediately take whatever steps are necessary to correct the situation including, when appropriate, reporting the violation to the district attorney of the county in which the violation occurred.

H. Upon the death of a resident who has no sources of payment for funeral services, the facility shall immediately notify appropriate county officials who shall be responsible for funeral and burial procedures of the deceased in the same manner as with any indigent resident of the county.

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