Happy Holidays 2023, Now Is The Time, Wade's Words

Every patient in a Medicare/Medicaid certified long term care facility has substantive and procedural protections under state and federal law. The Delaware Patient’s Bill of Rights is found at 16 Del. Code Section 1121. The Federal Patient’s Bill of Rights is found at . The federal law is applicable to every facility in the country. State law often reflects the basic rules set out in the Federal statute but will also contain procedural and administrative rules particular to the state in question.


When you read these statutes, it is easy to become overwhelmed by the detail of the content, therefore, it helps to have a frame of reference to process the information. These statutes reflect the concepts of substantive and procedural due process that originate from the Federal Constitution. The Constitution protects our substantive rights involving life, liberty, and property from arbitrary infringement by government action. If government action impacts a substantive right, a citizen is entitled to procedural due process. Procedural due process gives all of us the right to notice, a fair hearing on the issue, and time to prepare for the hearing before a right is impacted.


The patient’s rights in these statutes all involve life, liberty, and property in some fashion. For example, a patient has the right to privacy, self-determination, access to their property, the presumption of decision-making capacity, freedom of movement and association. None of these substantive rights can be denied or limited by the facility without some level of notice, fair hearing, and time to prepare. If the patient is unable to advocate for themselves, then the right of procedural due process devolves to their representative.


Here is an example: You receive a call from the facility saying “We are discharging your mom right now. Please come and get her.” You ask what happened, and they say that mom hasn’t paid her bill and they are discharging her right now. When you arrive at the facility you see mom in a wheelchair with her belongings all packed up. You immediately feel a sense of injustice.


The important thing for families to know is that their loved one does have rights as a patient. If something doesn’t “feel right” or seems “unfair”, it is probably because some fundamental right is involved. At a minimum, the family is entitled to a 30-day notice of the issue and the opportunity to be heard by the administration. Take a look at the state and federal statutes to see if the issue is covered. Every patient is assigned an advocate in Delaware known as an “Ombudsman.” The Ombudsman functions as the patient’s representative with the facility. You can reach the Ombudsman for Delaware at 1-800-223-9074. You can always contact an Elder Law attorney for help as well.