We received an inquiry from someone whose mother resides at an assisted living facility. The facility told residents it will be giving out flu shots, and those that refuse the shot will have to stay quarantined in their room until mid-March, unable to come out for meals, activities, or any kind of socialization. Her mother refused, stating it is against her religion, and the facility ordered her to remain in quarantine unless she gets the vaccine. The New Jersey Assisted Living Bill of Rights, codified under N.J.A.C. §8:39-4.1, enumerates the rights a resident has while living at one of these facilities, which cannot be taken away. Two issues arose. First, does the mother have the right to refuse the vaccine? Second, can the facility quarantine the mother for refusing to take the vaccine?
A resident has the right to refuse medical treatment if they choose not to receive it. The bill of rights specifically allows a resident to “refuse medication and treatment after the resident has been informed, in language that the resident understands, of the possible consequences of this decision.” New Jersey long-term care facility regulation N.J.A.C. 8:39–19.4 specifically extended this right to refuse to vaccinations, namely influenza and pneumococcal disease, where the state requires a facility to document evidence of a resident’s vaccination or refusal to vaccinate. The reason for the refusal, whether it be religious or philosophical, does not matter, as long as the patient is informed of the risks.
Can the facility quarantine the mother because she never vaccinated? The bill of rights provides that a resident shall be free from chemical and physical restraints, and a facility shall not confine a resident for punishment, for the convenience of the nursing home staff, or with the use of excessive drug dosages. The exception to this rule is if a physician or advanced practice nurse authorizes restraints for a limited period to protect the resident or others from “injury.” However, the state prohibits “[l]ocked restraints, double restraints on the same body part, four-point restraints, and confinement in a locked or barricaded room.” N.J.A.C. 8:39 App. C. The issue has not been litigated, and no statute or regulation exists to deal with the issue. Nonetheless, I would recommend a complaint be filed with the Ombudsman of the Institutionalized Elderly located at https://www.nj.gov/ooie/ which ensures these rights are not violated, to investigate the facility and determine if the quarantine is unlawful.
Just because you or a loved one resides at a nursing home or rehabilitation center or an assisted living facility does not mean you lose your rights to consent to medical treatment, be free of restraints, or practice your religion, and this applies no matter the circumstances.
If you are looking for additional details on this topic or if you require advice about your situation, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com. Please ask us about our video conferencing or telephone consultations if you are unable to come to our office.
Written by Stephen W. Kornas, Esq. of Hanlon Niemann & Wright