CMS Memo Emphasizes Voting Rights for Nursing Home Residents

The Centers for Medicare & Medicaid Services (CMS) issued a memo on September 26, reinforcing the regulatory expectation that nursing home residents can exercise their right to vote as citizens of the United States. This memo highlights the importance of ensuring that residents can exercise their Constitutional right to vote without interference, coercion, discrimination, or reprisal from the facility.

Nursing homes must have a plan to ensure residents can exercise their right to vote, whether in-person, by mail, absentee ballot, or other authorized processes. If a state has specific programs to enable nursing home residents to vote, the facility should coordinate and engage with those programs, as appropriate. This may include:

• • Mobile Polling in residential facilities performed by a bipartisan team of workers.
  • Assistance in registering to vote, requesting an absentee ballot, or completing a ballot from an agent of the resident’s choosing, including a family representative, LTC Ombudsmen, or nursing home staff (or other personnel permitted to perform these functions, per state law).

Whether or not external assistance is available to come into the facility, nursing homes are required to support residents in the exercise of their right to vote. This includes assisting with absentee or mail-in voting or transporting residents to polling locations or ballot drop-boxes in a safe manner. For residents who are otherwise unable to cast their ballots in-person, nursing homes must ensure residents have the right to receive and send their ballots via the US Postal Service or other authorized mechanisms allowed by the State or locality.

CMS regulations specific to the use of mail, which also apply to voting, include:

• • The facility must protect and facilitate the resident’s right to communicate with individuals and entities within and external to the facility, including reasonable access to:
    • A telephone, including TTY and TDD services;
    • The internet, to the extent available to the facility;
    • Stationery, postage, writing implements, and the ability to send mail.
  • The facility must respect the resident’s right to personal privacy, including the right to privacy in his or her oral (spoken), written, and electronic communications, including the right to send and promptly receive unopened mail and other letters, packages, and materials delivered to the facility for the resident, including those delivered through a means other than a postal service.
  • “Promptly” means delivery of mail or other materials to the resident within 24 hours of delivery by the postal service (including a post office box) and delivery of outgoing mail to the postal service within 24 hours, except when there is no regularly scheduled postal delivery and pick-up service.

You can access the memo here.

Compliance Perspective

Issue

Ensuring that nursing home residents can exercise their Constitutional right to vote is crucial. Facilities may be allowed by state laws to assist residents in completing mail-in absentee ballots, if requested. This would ensure that each resident who is a registered voter and competent to vote is afforded that right. It is essential to maintain a neutral environment where residents can vote without undue influence or coercion from staff or other residents. Compliance with state-specific voting laws and CMS regulations is necessary to protect residents’ rights and avoid legal repercussions. Failure to uphold these standards may result in violations of residents’ rights and potential exploitation.

Discussion Points

• • Review and update policies to ensure they clearly outline the protocols for assisting residents with voting. This includes specifying who is authorized to help (e.g., ombudsmen, designated staff), the types of assistance allowed, and procedures for handling requests for support. Ensure policies emphasize the importance of neutrality and prohibit staff from influencing residents’ voting choices.
  • Provide comprehensive training for staff about residents’ voting rights and the importance of neutrality in the voting process. Provide resources and guidelines on how to assist residents with different needs, such as mobility or health issues.
  • Implement a system for regularly auditing the voting assistance process. This can include spot checks, resident interviews, and reviewing documentation to ensure compliance with policies. Establish a feedback mechanism for residents to report any concerns or issues they encounter during the voting process.

*This news alert has been prepared by Med-Net Concepts, LLC for informational purposes only and is not intended to provide legal advice.*