6 Colo. Code Regs. § 1011-1-5-15

Current through Register Vol. 47, No. 11, June 10, 2024

Section 6 CCR 1011-1-5-15 - RESIDENT RIGHTS

15.1 STATEMENT OF RIGHTS

The facility shall adopt and make public a statement regarding of the rights and responsibilities of its residents and provide a copy to each resident and resident representative at or before admission. The facility and staff shall observe these rights in the care, treatment and supervision of the residents. The statement of rights shall include at a minimum, the following items:

A) The right to receive adequate and appropriate health care consistent with established and recognized practice standards within the community and this chapter.

1) For residents with limited English proficiency, the facility shall arrange for persons speaking the resident's language to facilitate daily communications and to attend assessment and care planning conferences in order to allow the resident to participate in those activities. This section does not require a translator to be present daily as long as the resident is able to engage in necessary daily communication within the facility.

2) For residents with sensory impairments that inhibit daily communication, the facility shall provide assistance so that they may participate in care and activities of daily living.

B) The right to civil and religious liberties, including:

1) Knowledge of available choices and the right to independent personal decisions, which will not be infringed upon;

2) The right to encouragement and assistance from the staff of the facility in the fullest possible exercise of these rights;

3) The right to vote; and

4) The right to participate in activities of the community both inside and outside the facility.

C) The right to present grievances on behalf of him/herself or others to the facility's staff or administrator; to governmental officials or to any other person without fear of reprisal and to join with other patients or individuals within or outside of the facility to work for improvements in resident care, including:

1) The right to participate in the resident council; and

2) The right to be informed of the address and phone number for the state and local Long-Term Care Ombudsman and the Colorado Department of Public Health and Environment, Health Facilities and Emergency Medical Services Division. The facility shall post these numbers in a conspicuous manner.

D) The right to manage his or her own financial affairs or to have a quarterly accounting of any financial transactions made in his or her behalf, should the resident delegate such responsibility to the facility for any period of time.

E) The right to be fully informed, in writing, prior to or at the time of admission and during his or her stay, of services available in the facility and of related charges, including charges for services not covered under Medicare or Medicaid or not covered by the basic per diem rate.

F) The right to be fully informed of his or her medical condition and proposed treatment, unless otherwise indicated by his or her practitioner, along with the right to make informed decisions and participate in the planning of all medical treatment, including:

1) The right to refuse medication and treatment, unless otherwise indicated by his or her practitioner, and to know the consequences of such actions;

2) The right to participate in discharge planning; and

3) The right to review and obtain copies of his or her medical records in accordance with 6 CCR 1011-1, Chapter 2, Part 6.

G) The right to have private and unrestricted communications with any person of his or her choice; including

1) The right to privacy for telephone calls or use of electronic communication devices;

2) The right to receive mail unopened; and

3) The right to private consensual sexual activity.

H) The right to be free from mental and physical abuse and from physical and chemical restraints, except those restraints initiated through the judgment of professional staff for a specified and limited period of time or on the written authorization of a practitioner.

I) The right to freedom of choice in selecting a health care facility.

J) The right to copies of the facility's rules and regulations, including a copy of these rights, and an explanation of his or her rights and responsibility to obey all reasonable rules and regulations of the facility and to respect the personal rights and private property of the other patients.

1) If the resident has limited English proficiency, the right to an explanation of rights and responsibilities in a language the resident can understand; and

2) The right to see facility policies, upon request, and state survey reports on the facility.

K) The right to be transferred or discharged only for medical reasons, his or her welfare or that of other residents, or for nonpayment for his or her stay; and the right to be given reasonable advance notice of any transfer or discharge, except in the case of an emergency as determined by professional staff, consistent with section 15.6.

L) The right not to be transferred or discharged for raising concerns or complaints.

M) The right to have privacy in treatment and in caring for personal needs, confidentiality in the treatment of personal and medical records, and security in storing and using personal possessions.

N) The right to be treated courteously, fairly and with the fullest measure of dignity and to receive a written statement of the services provided by the facility, including those required to be offered on an as-needed basis.

O) The right of any person eligible to receive Medicaid to select any nursing care facility certified for participation in Medicaid where a certified bed is available and the facility can meet the resident's needs.

P) Visitation Rights and Limitations on Visitation Rights

1) Each resident of a skilled nursing facility may have at least one visitor of the resident's choosing during their stay at the facility, unless restrictions or limitations under federal law or regulation, other state statute, or state or local public health order apply. This visitation right shall be exercised in accordance with the following:

a) A visitor to provide a compassionate care visit to alleviate the resident's physical or mental distress.

b) For a resident with a disability:

i) A visitor or support person, designated by the resident, orally or in writing, to support the resident during the course of their residency. The support person may visit the resident and may exercise the resident's visitation rights even when the resident is incapacitated or otherwise unable to communicate.

ii) When the resident has not otherwise designated a support person and the resident is incapacitated or otherwise unable to communicate their wishes, an individual may provide an advance medical directive designating the individual as the resident's support person or another term indicating that the individual is authorized to exercise visitation rights on behalf of the resident.

Pursuant to Section 15-18.7-102 (2) C.R.S., "(2) 'Advance medical directive' means a written instruction concerning medical treatment decisions to be made on behalf of the adult who provided the instruction in the event that he or she becomes incapacitated. An advance medical directive includes, but need not be limited to:

(a) A medical durable power of attorney executed pursuant to section 15-14-506;

(b) A declaration executed pursuant to the "Colorado Medical Treatment Decision Act", article 18 of this title;

(c) A power of attorney granting medical treatment authority executed prior to July 1, 1992, pursuant to section 15-14-501, as it existed prior to that date; or

(d) A CPR directive or declaration executed pursuant to article 18.6 of this title."

c) For a resident who is under eighteen years of age, the parent, legal guardian, or person standing in loco parentis to the resident is allowed to exercise these visitation rights pursuant to any limitations described in Section 15.1(P)(2), (3), and (4) Limitations on Visitation Rights.

2) Limitations on Visitation Rights: During a period when the risk of transmission of a communicable disease is heightened, a skilled nursing facility may:

a) Require visitors to enter the facility through a single, designated entrance;

b) Deny entrance to a visitor who has known symptoms of the communicable disease;

c) Require visitors to use medical masks, face-coverings, or other personal protective equipment while on the skilled nursing facility premises or in specific areas of the facility;

d) Require visitors to sign a document acknowledging:

i) The risks of entering the facility while the risk of transmission of a communicable disease is heightened; and

ii) That menacing and physical assaults on health-care workers and other employees of the facility will not be tolerated;

e) Require all visitors, before entering the facility, to be screened for symptoms of the communicable disease and deny entrance to any visitor who has symptoms of the communicable disease;

f) Require all visitors to the facility to be tested for the communicable disease and deny entry for those who have a positive test result; and

g) Restrict the movement of visitors within the facility, including restricting access to where immunocompromised or otherwise vulnerable populations are at greater risk of being harmed by a communicable disease.

h) If a skilled nursing facility requires that a visitor use a medical mask, face covering, or other personal protective equipment or to take a test for a communicable disease in order to visit a resident at the health-care facility, nothing in these regulations:

i) Requires the facility allow a visitor to enter, if the required equipment or test is not available due to lack of supply;

ii) Requires the facility to supply the required equipment or test to the visitor, or bear the cost of the equipment for the visitor; or

iii) Precludes the health-care facility from supplying the required equipment or test to the visitor.

3) Additional limitations for the visitors of a resident with a communicable disease who is isolated: the facility may impose additional restrictions including:

a) Limiting visitation to essential caregivers who are helping to provide care to the resident;

b) Limiting visitation to one caregiver at a time per resident with a communicable disease;

c) Scheduling visitors to allow for adequate time for screening, education, and training of visitors and to comply with any limits on the number of visitors permitted in the isolated area at the time; and

d) Prohibiting the presence of visitors during aerosol-generating procedures or during collection of respiratory specimens.

4) Any limitations imposed shall be consistent with applicable federal law and regulation and other state statute.

15.2 TRANSFER OF RIGHTS

A resident's rights shall transfer to the resident representative if the resident lacks decisional capacity.

15.3 STAFF TRAINING IN RESIDENTS' RIGHTS

The facility shall train all staff in the observation and protection of residents' rights and ensure that a copy of the facility's statement of residents' rights is available to all new and current employees.

15.4 GRIEVANCE PROCEDURE

The facility shall develop a grievance procedure, which it shall post conspicuously in a public place, for presentation of grievances by residents, resident representatives or the resident advisory council regarding any alleged conditions, treatment or violations of rights of any resident by the facility or staff (regardless of the consent of the victim of the alleged improper conduct).

A) The facility shall designate a full-time staff member ("staff designee") to receive all grievances.

B) The facility shall establish a grievance committee consisting of the administrator or his or her designee, a resident selected by the facility's residents and a third person agreed upon by the administrator and the facility's resident representative.

C) Any resident, resident representative or resident advisory council that wishes to complain about treatment, conditions or violations of rights, shall present such grievance to the facility staff designee orally or in writing within 14 calendar days of the alleged incident giving rise to the grievance.

D) The staff designee shall confer with persons involved in the alleged incident and other relevant persons and, within three calendar days of receiving the grievance, shall provide a written explanation of findings and proposed remedies to the complainant and the aggrieved party, if other than the complainant, and resident representative, if any. Where appropriate due to the mental or physical condition of the complainant or aggrieved party, an oral explanation shall accompany the written one.

E) If the complainant, aggrieved party or resident representative is dissatisfied with the findings and remedies of the staff designee or their implementation, within ten calendar days of receiving the designee's explanation, said individual may file the grievance orally or in writing along with any additional information it wishes to the grievance committee.

F) The committee shall confer with persons involved in the alleged incident and other relevant persons, including the complainant, and within ten calendar days of the date of the appeal shall provide a written explanation of its findings and proposed remedies to the complainant and the aggrieved party, if other than the complainant, and to the resident representative, if any. Where appropriate due to the mental or physical condition of the complainant or aggrieved party, an oral explanation shall accompany the written one.

G) The complainant or aggrieved party, if dissatisfied with the findings and remedies of the grievance committee or their implementation (except for grievances regarding practitioner or practitioner-prescribed treatment), may file the grievance in writing with the Executive Director of the Department within ten calendar days of receipt of the written findings of the grievance committee. The Department shall then investigate the facts and circumstances of the grievance and make written findings of fact, conclusions, and recommendations and provide them to the complainant, aggrieved party, resident representative, if any, and the facility administrator.

H) If the complainant or facility administrator is aggrieved by the Department's findings and recommendations, he or she may request, within 30 calendar days of receipt of the findings and recommendations, that the Department set the matter for hearing pursuant to Section 24-4-105, C.R.S. Such hearing may be conducted by the Department, an administrative law judge from the Office of Administrative Courts or a hearing officer appointed by the Department.

15.5 RESIDENT ADVISORY COUNCIL

Each facility shall establish a resident advisory council consisting of no less than five members selected from the facility's residents.

A) The council shall be conducted by residents. It shall have the opportunity to meet without staff present and shall meet at least monthly with the administrator and a staff representative to make recommendations concerning facility policies. Staff shall respond to these suggestions in writing by the next meeting. Minutes of council meetings shall be maintained and posted or otherwise available to residents.

B) The council may present grievances to the grievance committee on behalf of residents.

C) The council shall elect its officers and establish a process for obtaining views of facility residents.

15.6 RESIDENT TRANSFER, DISCHARGE OR ROOM CHANGE

A) The following definitions apply to this section 15.6:

1) "Discharge" means movement of a resident from a nursing care facility to a non-institutional setting when the discharging facility ceases to be legally responsible for the care of the resident.

2) "Transfer" means movement of a resident from a nursing care facility to another institutional setting when the legal responsibility for the care of the resident changes from the transferring facility to the receiving facility.

3) "Room change" refers to the movement of a resident from one room to another.

B) A resident shall not be transferred or discharged unless:

1) The transfer or discharge is necessary for the resident's welfare. Facilities that are certified to participate in the Medicaid and/or Medicare reimbursement program must also demonstrate that the resident's needs cannot be met in the facility,

2) The transfer or discharge is only for medical reasons. Facilities that are certified to participate in the Medicaid and/or Medicare reimbursement program must also demonstrate that the resident's needs cannot be met in the facility,

3) The transfer or discharge is necessary to preserve the welfare of other residents, or

4) The resident has failed to pay for (or to have paid under Medicaid or Medicare) a stay at the facility.

a) Facilities that are certified to participate in the Medicaid and/or Medicare reimbursement program must also provide the resident with reasonable and appropriate notice regarding non-payment and its consequences at least 30 calendar days before initiating a transfer or discharge for nonpayment.

C) When a resident is transferred or discharged under any of the circumstances specified in 15.6(B), the facility shall ensure that the resident's health information record contains documentation from:

1) The resident's practitioner when the transfer or discharge is for the reasons described in sections 15.6 ; and

2) The nursing home administrator when transfer or discharge is for the reason described in section 15.6(B)(4).

D) Whenever a resident is transferred or discharged for the reasons described in sections 15.6(B)(1), (2) or (3), the facility shall provide assessment and reasonable intervention prior to determining the need for the transfer or discharge. The assessment, attempted intervention and reason for the discharge or transfer shall be documented in the resident's health information record.

E) The facility shall provide reasonable advance notice to the resident and resident representative of its intent to transfer or discharge the resident. Reasonable advance notice means notice in writing at least 30 days before the transfer or discharge except in the following circumstances in which the professional staff determines there is an emergency, in which case the notice must be made as soon as practicable before the transfer or discharge:

1) The safety of residents in the facility is endangered,

2) The health of residents in the facility is endangered, and/or

3) An immediate transfer or discharge is required by the resident's urgent medical needs.

F) The written notice shall be in a language and manner understandable to the resident and the resident representative, if applicable, and shall include:

1) The reason for the transfer or discharge,

2) The effective date of the transfer or discharge,

3) The location to which the resident is transferred or discharged,

4) The grievance procedure, and

5) The following text:

"You have a right to appeal the nursing care facility's decision to transfer or discharge you. If you think you should not be transferred or discharged, you must appeal to _________ (staff designee) within 14 calendar days. If you do not wish to handle the appeal yourself, you may use an attorney, relative, or friend. If your appeal is not resolved to your satisfaction by the staff designee, you may appeal to the nursing care facility's grievance committee within 10 calendar days of receipt of the decision of the staff designee. If your appeal is not resolved to your satisfaction by the nursing care facility's grievance committee, you may appeal to the Executive Director of the Colorado Department of Public Health and Environment within 10 calendar days of receipt of the grievance committee decision. If you are not satisfied with the Executive Director's decision, you have 30 calendar days to request that the Department of Public Health and Environment set the matter for an administrative hearing. You may direct questions regarding this notice to the Department of Public Health and Environment at ____________________ (division name, address and phone number)."

a) Nursing care facilities that are certified for Medicaid and/or Medicare reimbursement, must also add the following statement:

"In addition, if you have questions or complaints about the transfer or discharge or would like help to appeal, call or write the state or local Long-Term Care Ombudsman at ___________ (phone numbers/addresses)."

b) If the resident who is being involuntarily transferred is a person with a developmental disability for whom an agency has been authorized by law as the agency responsible for advocacy and protection of the rights of persons with developmental disabilities, the nursing care facility must also furnish to resident and the resident representative, the following statement:

"In addition, if you have questions or complaints about the transfer or discharge or would like help to appeal, call or write the _____________ , (name, phone number and address of the agency.)"

c) If the resident who is being transferred is a person with mental illness for whom an agency has been authorized by law as the agency responsible for the advocacy and protection of persons with mental illness, the nursing care facility must also furnish to the resident and the resident representative the following statement:

"In addition, if you have questions or complaints about the transfer or discharge or would like help to appeal, call or write the _____ . ________ , (name, phone number and address of the agency.)"

G) In cases where a resident is being involuntarily transferred or discharged from a nursing care facility that is certified to participate in the Medicaid and/or Medicare reimbursement program, a copy of the written notice (including the grievance and appeal rights, and current contact information for the state and local Long-Term Care Ombudsman) shall also be sent to the state and local Long-Term Care Ombudsman at the same time it is sent to the resident or as soon as the determination is made that the transfer or discharge is involuntary.

H) A facility must provide sufficient preparation and orientation to residents to ensure safe and orderly transfer or discharge from the facility.

I) When the facility intends to move a resident to another room in the facility without the resident's consent, the facility shall provide the resident and resident representative with written notice of such intent to be received at least five calendar days before such move, including an explanation of their right to appeal.

J) A resident shall not be involuntarily transferred, discharged, or moved to another room within the facility until:

1) The expiration of the facility notice period, and

2) The time for filing a grievance or appeal has expired, or

3) The grievance or appeal has been resolved.

15.7 RESIDENT RELOCATION

If a facility intends to close or change bed classification, it shall notify the Department of Public Health and Environment and the Colorado Department of Health Care Policy and Financing, if it has Medicaid residents, at least 60 days before it expects to cease or change operations and at least seven calendar days before it notifies residents and families.

A) The facility shall appoint one staff person to coordinate resident relocation activities.

B) If the facility has Medicaid residents, it shall review its relocation plan with the Department of Health Care Policy and Financing.

C) Any facility certified for participation in Medicaid shall follow the relocation procedures required by the Department of Health Care Policy and Financing. Other facilities shall provide for an orderly relocation of residents, designed to minimize risks and ensure optimal placement of all residents, in coordination with the Department of Public Health and Environment, the state and/or local Long-Term Care Ombudsman and local public and private social services agencies.

6 CCR 1011-1-5-15

46 CR 24, December 25, 2023, effective 1/14/2024