What You Should Know
By Councilman Rev. Ruben Diaz
A Grim Milestone: April 27, 2020 over 1,000 nursing home resident’s dead in New York State from COVID-19.
You should know that The Wall Street Journal reported on April 27, 2020 that New York State has reached a grim milestone. As of today, there have been more than one thousand New York State nursing home residents, who have perished from COVID-19.
It is important for you to know that in 2009 as the Chair of the New York State Senate Aging Committee (and earlier in the New York City Council in 2001) I became well aware of the unique issues involving nursing homes.
Nursing homes are one of the most regulated industries according to the AARP. They are regulated by all levels of government, Federal, State and local laws. Among them the principle regulating agency is the Federal government. This is due to a law passed in 1987 by congress and signed into law by the President.
This law is known as the Nursing Home Reform Act which includes a section known as the 1987 Nursing Home Bill of Rights. Included in this bill of rights are the right to be free of restraints, abuse, neglect and the right to report and file grievances. The Nursing Home Reform Act established Bill of Rights for the nursing home residents are as follows:
• The right to freedom from abuse, mistreatment, and neglect;
• The right to freedom from physical restraints;
• The right to privacy;
• The right to accommodation of medical, physical, psychological, and social needs;
• The right to participate in resident and family groups;
• The right to be treated with dignity;
• The right to exercise self-determination;
• The right to communicate freely;
• The right to participate in the review of one’s care plan, and to be fully informed in advance about any changes in care, treatment, or change of status in the facility; and
• The right to voice grievances without discrimination or reprisal.
Aware of these rights we must ask the following: What are the penalties for the violations of these rights? Who can actually assert these Bill of Rights? When these rights have been violated the law allows the Federal Government to revoke the nursing homes credentials, deny them the right to accept Medicare patients, and actually levy fines against the nursing institution. National Public Radio (NPR) reported on April 2, 2020 that one nursing facility was fined $611,325.00 for violations relating to COVID-19. I want you to know that the Federal statute 42 US Code section 1395i-3 “Assuring quality of care in skilled nursing facilities” is missing.
This means that any private resident cannot exercise their rights to file grievances against any of these said violations. In other words right now the resident/patient, of the nursing facility is not the one who can hold any one responsible or bring them into court, rather the Federal Government is the entity that can bring a civil proceeding against the facility and levies fines, etc.
So, my dear reader as you can see the residents of the nursing home have no recourse but to rely on others to enforce their rights. In my opinion this has allowed abuse and neglect to occur. We have given the nursing home residents a Bill of Rights, but not the right to directly take action against the entity that has violated them. I strongly believe that residents should be given the right to go into Federal Court to protect their rights making the nursing homes more accountable, to the most vulnerable.
What good is giving someone a right if they cannot enforce it? In my opinion this Federal Statute must be amended in Congress to allow any resident as defined by this statute, with the right to take any action in Federal or State Court, against any entity that has violated their rights.
I am Councilman Rev. Ruben Diaz and this what you should know.