**§52.70 Participant rights.**

The participant has a right to a dignified existence,
self-determination, and communication with and access to persons and
services inside and outside the facility. The program management must
protect and promote the rights of each participant, including each of
the following rights:

\(a\) *Exercise of rights*.

\(1\) The participant has the right to exercise his or her rights as a
participant of the program and as a citizen or resident of the United
States.

\(2\) The participant has the right to be free of interference,
coercion, discrimination, and reprisal from the program management in
exercising his or her rights.

\(3\) The participant has the right to freedom from chemical or physical
restraint.

\(4\) In the case of a participant determined incompetent under the laws
of a State by a court of jurisdiction, the rights of the participant are
exercised by the person appointed under State law to act on the
participant's behalf.

\(b\) *Notice of rights and services*.

\(1\) The program management must inform the participant both orally and
in writing in a language that the participant understands of his or her
rights and all rules and regulations governing participant conduct and
responsibilities during enrollment in the program. Such notification
must be made prior to or upon enrollment and periodically during the
participant's enrollment.

\(2\) Participants or their legal representatives have the right:

\(i\) Upon an oral or written request, to access all records pertaining
to them including current participant records within 24 hours (excluding
weekends and holidays); and

\(ii\) After receipt of their records for review, to purchase, at a cost
not to exceed the community standard, photocopies of the records or any
portions of them upon request and with two working days advance notice
to the facility management.

\(3\) Participants have the right to be fully informed in language that
they can understand of their total health status.

\(4\) Participants have the right to refuse treatment, to refuse to
participate in patient activities, to refuse to participate in
experimental research, and to formulate an advance directive as
specified in paragraph (a)(7) of this section.

\(5\) The program management must inform each participant before, or at
the time of enrollment, and periodically during the participant's stay,
of services available in the facility and of charges for those services
to be billed to the participant.

\(6\) The program management must furnish a written description of legal
rights which includes a statement that the participant may file a
complaint with the State (agency) concerning participant abuse and
neglect.

\(7\) The program management must have written policies and procedures
regarding advance directives (e.g., living wills). These requirements
include provisions to inform and provide written information to all
participants concerning the right to accept or refuse medical or
surgical treatment and, at the individual's option, formulate an advance
directive. This includes a written description of the facility's
policies to implement advance directives and applicable State law.

\(8\) *Notification of changes*.

\(i\) Program management must immediately inform the participant;
consult with the primary physician; and notify the participant's legal
representative or an interested family member when there is:

> \(A\) An accident involving the participant which results in injury
> and has the potential for requiring physician intervention;
>
> \(B\) A significant change in the participant's physical, mental, or
> psychosocial status (e.g., a deterioration in health, mental, or
> psychosocial status in either life-threatening conditions or clinical
> complications);
>
> \(C\) 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
>
> \(D\) A decision to transfer or discharge the participant from the
> program.

\(ii\) The program management must also promptly notify the participant
and the participant's legal representative or interested family member
when there is a change in resident rights under Federal or State law or
regulations as specified in paragraph (b)(1) of this section.

\(iii\) The program management must record and periodically update the
address and phone number of the participant's legal representative, or
interested family member, and the primary physician.

\(c\) *Free choice*.

\(1\) The participant has the right to:

\(i\) Be fully informed in advance about care and treatment and of any
changes in that care or treatment that may affect the participant's
well-being; and

\(ii\) Unless determined incompetent or otherwise determined to be
incapacitated under the laws of the State, participate in planning care
and treatment or changes in care and treatment.

\(2\) If the participant is determined incompetent or otherwise
determined to be incapacitated under the laws of the State, the
participant's legal representative or interested family member(s) has
the right to participate in planning care and treatment or changes in
care and treatment.

\(d\) *Privacy and confidentiality*. Participants have the right to
privacy and confidentiality of their personal and clinical records.

\(1\) Participants have a right to privacy in their medical treatment
and personal care.

\(2\) Except as provided in paragraph (d)(3) of this section,
participants may approve or refuse the release of personal and clinical
records to any individual outside the facility.

\(3\) The participant's right to refuse release of personal and clinical
records does not apply when:

> \(i\) The participant is transferred to another health care
> institution; or
>
> \(ii\) The release is required by law.

\(e\) *Grievances*. A participant has the right to:

\(1\) Voice grievances without discrimination or reprisal. Participants
may voice grievances with respect to treatment received and not
received; and

\(2\) Prompt efforts by facility management to resolve grievances the
participant may have, including those with respect to the behavior of
other participants.

\(f\) *Examination of survey results*. A participant has the right to:

\(1\) Examine the results of the most recent VA survey with respect to
the program. The program management must make the results available for
examination in a place readily accessible to participants, and must post
a notice of their availability; and

\(2\) Receive information from agencies acting as client advocates, and
be afforded the opportunity to contact these agencies.

\(g\) *Work*. The participant has the right to:

\(1\) Refuse to perform services for the facility;

\(2\) Perform services for the facility, if he or she chooses, when:

> \(i\) The facility has documented the need or desire for work therapy
> in the plan of care;
>
> \(ii\) The plan specifies the nature of the services performed and
> whether the services are voluntary or paid;
>
> \(iii\) Compensation for (work therapy) paid services is at or above
> prevailing rates; and
>
> \(iv\) The participant agrees to the work therapy arrangement
> described in the plan of care.

\(h\) *Access and visitation rights*.

\(1\) The program management must provide immediate access to any
participant by the following:

> \(i\) Any representative of the Under Secretary for Health;
>
> \(ii\) Any representative of the State;
>
> \(iii\) The State long-term care ombudsman;
>
> \(iv\) Immediate family or other relatives of the participant subject
> to the participant's right to deny or withdraw consent at any time;
> and
>
> \(v\) Others who are visiting subject to reasonable restrictions and
> the participant's right to deny or withdraw consent at any time.

\(2\) The program management must provide reasonable access to any
participant by any entity or individual that provides health, social,
legal, or other services to the participant, subject to the
participant's right to deny or withdraw consent at any time.

\(3\) The program management must allow representatives of the State
Ombudsman Program to examine a participant's clinical records with the
permission of the participant or the participant's legal representative,
subject to State law.

\(i\) *Telephone*. The participant has the right to reasonable access to
use a telephone where calls can be made without being overheard.

\(j\) *Personal property*. The participant has the right to have at
least one change of personal clothing.

\(k\) *Self-administration of drugs*. An individual participant may
self-administer drugs if the interdisciplinary team has determined that
this practice is safe for the individual and is a part of the care plan.
(Authority: 38 U.S.C. 101, 501, 1741-1743)

(The Office of Management and Budget has approved the information
collection requirements in this paragraph under control number
2900-0160.)