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Jewish World Review January 28, 2008 /21 Shevat 5768 Nursing-home resident sees far too much By Jan L. Warner & Jan Collins http://www.JewishWorldReview.com | Q: My 87-year old mother has been a nursing-home resident since she fractured her hip last year. Because she was unable to benefit from rehabilitation, Medicare stopped paying for her care, and she was moved into another room, where she receives skilled care, but she now has a 77-year-old female roommate with an obvious memory disorder. Their beds are no more than 4 feet apart, and only a curtain allows them to have any type of privacy. Mom has complained that her roommate is on the phone at all hours of the day and night talking to her husband, which keeps Mom awake. We finally met her husband last Sunday during visiting hours. He appeared to be quite a bit younger than his wife and appeared to be drinking. He seemed jovial, but not 10 minutes after he arrived, he pulled the curtain around his wife's bed and they began engaging in sexual relations while my wife and I were sitting there trying to visit with my mother. The noise was unbearable, and every so often, the curtain would get kicked and the husband's bare feet would go flying in and out. There was no question what was going on over there. My mother, who is very sharp for her age, was quite embarrassed, as were my wife and I. I went first to the nurse and then to the administrator of the facility and related what had been going on and the effect on my mother and, quite frankly, anyone within earshot. I was also concerned that this man could come to the facility, get confused, and go into the wrong room and possibly rape a patient if he is intoxicated. The administrator told me that, by federal law, husbands and wives have rights to conjugal visits, and the nursing home could not stop it. I was shocked when I was told that unless and until the husband did something inappropriate, there was nothing that could be done. I have talked to the families of other residents who are also concerned. Are there any actions we can take to prevent this from happening again? I would like to move my mother, but we are told that all the other beds are full. A: Lists of residents' rights in nursing facilities are included in both state and federal laws with an eye toward protecting the residents' liberties; however, at the same time, while in a nursing-home setting, residents can't have the complete freedoms they enjoyed outside the facility. The right to privacy is most important, meaning that when care is being given, the door should be closed, the privacy curtain should be drawn, and the blinds or curtains should be closed. To avoid violating the law, the facility must avoid endangering a resident's health, safety or welfare. That is why humiliation, harassment and threats constitute mental abuse. On the one hand, the facility can't ignore a resident's request that would improve the quality of that person's life. Yet, on the other, such requests must be considered in light of practicality or potential harm to that and other residents' health and safety. Because federal law guarantees the right of residents to communicate privately and without restriction with chosen persons, the facility must make arrangements to allow private visits, especially where, as with your mother, the residents share a room. Although "reasonable hours" may be considered to be normal waking hours to most, the facility must allow a visitor to see a resident during odd hours if requested by the resident if an extraordinary situation presents itself. On the other hand, facilities can restrict visitors if, among other things, the visitor disrupts the proper function of the facility. That said, while the facility must arrange for private meetings between spouses, there should be special arrangements for those in semiprivate rooms to allow conjugal visits. Based upon our research, we believe the facility is remiss in not providing better accommodations for conjugal visits. Taking the NextStep: In that your mother's roommate appears to be ambulatory, it might be that a separate private room could be made available. Or, in some instances, a resident may be able to leave the facility for a conjugal visit. Your mother's health and welfare must be balanced against her roommate's rights. We suggest that you try again to resolve the matter and, if you can't, we suggest that you contact the long-term care ombudsman and file a grievance or, as a last resort, move your mother to another facility that "keeps a lid" on patients' rights of this nature. Every weekday JewishWorldReview.com publishes what many in in the media and Washington consider "must-reading". Sign up for the daily JWR update. It's free. Just click here. JAN L. WARNER received his A.B. and J.D. degrees from the University of South Carolina and earned a Master of Legal Letters (L.L.M.) in Taxation from the Emory University School of Law in Atlanta, Georgia. He is a frequent lecturer at legal education and public information programs throughout the United States. His articles have been published in national and state legal publications. Jan Collins began co-authoring Flying SoloŽ in 1989. She has more than 27 years of experience as a journalist, writer, and editor. To comment or ask a question, please click here. Archives © 2008, Jan Warner

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