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The information on this website is not intended as legal advice or a comprehensive analysis of healthcare regulation. Healthcare providers, patients and advocates should seek advice from legal counsel to be certain of the laws, rules and requirements of their particular state or jurisdiction.

Patient Rights Frequently Asked Questions

Discharge Rights

Do Medicare beneficiaries have the right to appeal their hospital discharge?

Yes. Medicare patients have the right to appeal their discharge if they do not feel medically ready to leave the hospital. CMS requires hospitals to inform Medicare beneficiaries of their right to appeal their hospital discharge by providing them with the Important Message from Medicare (IM). Medicare beneficiaries have a right to request a review of their discharge by their state’s Quality Improvement Organization (QIO). Click here for a list of QIOs by state.

For those beneficiaries who request a QIO review, the hospital must deliver a Detailed Notice of Discharge as soon as possible, but no later than noon of the day after the QIO’s notification. If a hospital fails to provide the beneficiary with the required notice, the hospital (not the beneficiary) may be held financially responsible for the patient’s hospital stay.

For more information about a Medicare beneficiary’s right to appeal a discharge, click here.

Do nursing home residents have the right to challenge their discharge?

Yes. Federal and state laws protect residents of nursing facilities from being inappropriately discharged by limiting the reasons for discharge, requiring nursing facilities to give residents 30-days’ notice of discharge, and ensuring residents’ right to appeal a discharge to the State Agency.

The Centers for Medicare and Medicaid Services (CMS) prohibits facilities from discharging residents except for the following reasons:

  • The transfer or discharge is necessary for the resident’s welfare and the resident’s needs cannot be met in the facility.
  • The transfer or discharge is appropriate because the resident’s health has improved sufficiently so the resident no longer needs the services provided by the facility.
  • The safety of individuals in the facility is endangered.
  • The health of individuals in the facility would otherwise be endangered.
  • The resident has failed, after reasonable and appropriate notice, to pay for (or to have paid under Medicare or Medicaid) a stay at the facility.
  • The facility ceases to operate.

In most cases, the resident has the right to be notified 30 days in advance of being transferred or discharged from the facility. The discharge notice must include:

  • the reason for transfer or discharge;
  • the effective date of transfer or discharge;
  • the location to which the resident is to be transferred or discharged;
  • a statement that the resident has the right to appeal the action to the State;
  • the name, address and telephone number of the State Long Term Care Ombudsman;
  • (for nursing facility residents with developmental disabilities) the mailing address and telephone number of the agency responsible for the protection and advocacy of developmentally disabled individuals; and
  • (for nursing facility residents who are mentally ill) the mailing address and telephone number of the agency responsible for the protection and advocacy of mentally ill individuals.

Nursing home residents and their advocates should refer to their state law governing nursing home care, which may provide additional protection against inappropriate transfer and discharge.

The resident has the right to appeal the discharge to the State’s Survey Agency. Patients and their advocates may wish to contact their local Long Term Care Ombudsman (LTCO) or legal service agency for assistance with the appeal process. To find your state’s LTCO, click here.

Emergency Treatment

What are patients’ rights when it comes to emergency care?

In 1986, Congress enacted the Emergency Medical Treatment and Labor Act (EMTALA) in response to incidents of “patient dumping.” Because of a lack of medical insurance, patients were being denied emergency care, which sometimes resulted in patient death. Under EMTALA, a patient who comes to an emergency department seeking treatment has the right to a medical screening examination (MSE) and stabilizing treatment. The emergency department may not delay or deny the MSE or stabilizing treatment for discriminatory reasons such as the patient’s inability to pay, race, gender, religion or sexual orientation.

Patients and their advocates have the right to file a formal grievance with the hospital if they were denied appropriate emergency care. The Centers for Medicare and Medicaid Services (CMS) and the State Agency have authority to investigate EMTALA issues. For a list of State Agencies click here.

 

Informed Decision-making Rights

Do individuals have the right to make their own healthcare decisions?

Yes. Individuals have the right to make informed healthcare decisions, which include the right to:

  • receive sufficient information to weigh the risks and benefits of consenting to or refusing certain treatments and procedures;
  • be informed of their health status; and
  • be involved in their own care planning and treatment.

Healthcare providers (such as doctors and hospitals) must inform patients or their legal representative of the risks and benefits of particular treatments and the alternative to those treatments. Patients have the right to be informed of their health status and to be involved in planning their care and treatment.

How can individuals make sure that their healthcare wishes are followed if they are not able to speak for themselves?

Individuals have the right to give instructions to direct their care when they are no longer able to speak for themselves. There are several documents that allow individuals to plan in the event of their incapacity. What documents are best depends on one’s specific circumstances and the state in which they live.

What is an advance directive?

An advance directive is a written instruction such as a living will or durable power of attorney for health care, recognized under state law, relating to the provision of healthcare when the individual is incapacitated.

State law governs the procedural requirements pertaining to advance directives. Most states give an individual the right to execute advance directives to take effect if and when he or she becomes unable to make his or her own medical decisions. Types of advance directives include a durable power of attorney for health care; a living will; a Do Not Resuscitate (DNR) order; and an anatomical gift.

Durable Power of Attorney for Health Care – allows an individual (called the principal) to name someone (called the agent or attorney in fact) to make medical decisions when the principal is no longer capable. The agent’s authority springs into effect only when the principal’s physician determines that the principal does not have the capacity to make his or her own medical decisions.

Living Will – details one’s wishes regarding the degree and amount of healthcare desired if one becomes incapable of making or communicating healthcare decisions.

Do Not Resuscitate (DNR) Order – directs the care when a person’s heart or breathing stops and he or she is unable to communicate his or her wishes regarding treatment. Laws pertaining to DNR orders vary by state.

Anatomical Gift – conveys a donation of all or part of a human body to take effect after the donor’s death for the purpose of transplantation, therapy, research, or education.

The National Hospice and Palliative Care Organization offers information about advance directives specific to each state, click here to read.

Visitation Rights

May hospitals restrict patients’ visitors?

Only in limited cases, may a hospital restrict visitors. Patients have the right to choose who may and who may not visit them in the hospital. Hospitals may not restrict, limit or deny visitation privileges on the basis of race, color, national origin, religion, sex, gender identity, sexual orientation, or disability. Hospitals may restrict visitation for clinical reasons, such as infection control. Hospitals must inform patients in writing of their visitation rights, including any clinical restrictions.

May nursing homes restrict residents’ visitors?

Only in limited cases, may a nursing home restrict visitors. Under federal law, nursing home residents have the right and the facility must provide immediate access to any resident by the following:

  • any representative of the Secretary;
  • any representative of the State;
  • the resident’s individual physician;
  • the State Long Term Care Ombudsman;
  • the agency responsible for the protection and advocacy system for developmentally disabled individuals;
  • the agency responsible for the protection and advocacy system for mentally ill individuals;
  • subject to the resident’s right to deny or withdraw consent at any time, immediate family or other relatives of the resident; and
  • subject to reasonable restrictions and the resident’s right to deny or withdraw consent at any time, others who are visiting with the consent of the resident.

Patients and their advocates should also refer to their state law pertaining to nursing home residents’ visitation rights.

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