38 CFR 51.300 – Resident rights and behavior; State home practices; quality of life
The State home must protect and promote the rights and quality of life of each resident receiving domiciliary care, and otherwise comply with the requirements in § 51.70, except § 51.70(b)(9), (h)(1), and (m); § 51.80, except § 51.80(a)(2) and (4) and (b); § 51.90; and § 51.100, except § 51.100(g)(2), (h), and (i)(5) through (7). The State Home must have a written procedure for admissions, discharges, and transfers. For purposes of this section, the terms “nursing home” and “nursing facility” or “facility” in the applicable provisions of the cited sections apply to a domiciliary.
Terms Used In 38 CFR 51.300
- Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
(a) Notice of rights and services—notification of changes. (1) Facility management must immediately inform the resident and consult with the primary care physician when there is
(i) An accident involving the resident that results in injury and has the potential for requiring physician intervention;
(ii) A significant change in the resident’s physical, mental, or psychosocial status (i.e., a deterioration in health, mental, or psychosocial status in either life-threatening conditions or clinical complications);
(iii) A need to alter treatment significantly (i.e., a need to discontinue an existing form of treatment due to adverse consequences, or to commence a new form of treatment); or
(iv) A decision to transfer or discharge the resident from the facility as specified in paragraph (d) of this section.
(2) The facility management must also promptly notify the resident when there is
(i) A change in room or roommate assignment as specified in § 51.100(f)(2); or
(ii) A change in resident rights under Federal or State law or regulations as specified in § 51.70(b)(1).
(3) The facility management must record and periodically update the address and phone number of the resident’s legal representative or interested family member, but the resident has the right to decide whether to have the State home notify his or her legal representative or interested family member of changes.
(b) Work. The resident must participate, based on his or her ability, in some measure, however slight, in work assignments that support the maintenance and operation of the State home. The State Home management must create a written policy to implement the work requirement. The resident is encouraged to participate in vocational and employment services, which are essential to meeting the psychosocial needs of the resident. The resident must perform work for the facility after the State home has accomplished the following:
(1) The facility has documented the resident’s need or desire to work in the comprehensive care plan;
(2) The comprehensive care plan described in § 51.310 specifies the nature of the work performed and whether the work is unpaid or paid;
(3) Compensation for work for which the facility would pay a prevailing wage if done by non-residents is paid at or above prevailing wages for similar work in the area where the facility is located; and
(4) The facility consulted with and the resident agrees to the work arrangement described in the comprehensive care plan.
(c) Married couples. The resident has the right, if space is available within the existing facility, to share a room with his or her spouse when married residents live in the same facility and both spouses consent to the arrangement. If the State home determines existing space is not available to allow married residents to share rooms, the State home will make accommodations for the privacy of married residents.
(d) Transfer and discharge—(1) Definition: Transfer and discharge includes movement of a resident to a bed outside of the facility whether that bed is in the same physical plant or not. Transfer and discharge does not refer to movement of a resident to a bed within the same facility.
(2) Transfer and discharge requirements. The facility management must permit each resident to remain in the facility, and not transfer or discharge the resident from the facility unless
(i) The transfer or discharge is necessary for the resident’s welfare, including because the domiciliary resident’s health has improved sufficiently so the resident no longer needs the services provided by the domiciliary;
(ii) The resident is in need of a higher level of long term or acute care;
(iii) The safety of individuals in the facility is endangered;
(iv) The health of individuals in the facility would otherwise be endangered;
(v) The resident has failed, after reasonable and appropriate notice, to pay for a stay at the facility;
(vi) The domiciliary ceases to operate; or
(vii) The resident ceases to meet any of the eligibility criteria of § 51.51.
(3) Documentation. When the facility transfers or discharges a resident under any of the circumstances specified in paragraphs (d)(2)(i) through (vii) of this section, the primary care physician must document the transfer and circumstances in the resident’s clinical record.
(4) Notice before transfer. Before a facility transfers or discharges a resident, the facility must
(i) Notify the resident of the transfer or discharge and the reasons for the move in writing and in a language and manner he or she understands. The resident has the right to decide whether to have the State home notify his or her legal representative or interested family member of changes.
(ii) Record the reasons in the resident’s clinical record; and
(iii) Include in the notice the items described in paragraph (d)(6) of this section.
(5) Timing of the notice. (i) The notice of transfer or discharge required by paragraph (d)(4) of this section must be made by the facility at least 30 calendar days before the resident is transferred or discharged, except when specified in paragraph (d)(5)(ii) of this section,
(ii) Notice may be made as soon as practicable before transfer or discharge when
(A) The safety of individuals in the facility would be endangered;
(B) The health of individuals in the facility would be otherwise endangered;
(C) The resident’s health improves sufficiently so the resident no longer needs the services provided by the domiciliary; or
(D) The resident’s needs cannot be met in the domiciliary.
(6) Contents of the notice. The written notice specified in paragraph (d)(4) of this section must include the following:
(i) The reason for transfer or discharge;
(ii) The effective date of transfer or discharge;
(iii) The location to which the resident is transferred or discharged;
(iv) A statement that the resident has the right to appeal the action to the State official designated by the State; and
(v) The name, address and telephone number of the State long term care ombudsman.
(7) Orientation for transfer or discharge. The facility management must provide sufficient preparation and orientation to residents to ensure safe and orderly transfer or discharge from the facility.
(e) Notice of bed-hold policy and readmission—notice before transfer. The State home must have a written bed-hold policy, including criteria for return to the facility. The facility management must provide written information to the resident about the State home bed-hold policy upon enrollment, annually thereafter, and before a State home transfers a resident to a hospital. A Resident has the right to decide whether to have the State home notify his or her legal representative or interested family member of transfers.
(f) Resident activities. (1) The facility management must provide for an ongoing program of activities designed to meet, in accordance with the comprehensive assessment, the interests and the physical, mental, and psychosocial well-being of each resident.
(2) The activities program must be directed by a qualified coordinator.
(g) Social services. (1) The State home must provide social work services to meet the social and emotional needs of residents to attain or maintain the highest practicable mental and psychosocial well-being of each resident.
(2) The State home must have a sufficient number of social workers to meet residents’ needs.
(3) The State home must have a written policy on how it determines qualifications of social workers. It is highly recommended, but not required, that a qualified social worker is an individual with
(i) A bachelor’s degree in social work from a school accredited by the Council of Social Work Education (Note: A master’s degree social worker with experience in long-term care is preferred), and
(ii) A social work license from the State in which the State home is located, if offered by the State, and
(iii) A minimum of one year of supervised social work experience in a health care setting working directly with individuals.
(4) The facility management must have sufficient support staff to meet patients’ social services needs.
(5) Facilities for social services must ensure privacy for interviews.
(h) Environment. The facility management must provide
(1) A safe, clean, comfortable, and homelike environment, allowing the resident to use his or her personal belongings to the extent possible;
(2) Housekeeping and maintenance services necessary to maintain a sanitary, orderly, and comfortable interior;
(3) Clean bed and bath linens that are in good condition; and
(4) Private closet space in each resident’s room, as specified in § 51.200(d)(2)(iv).