The Centers for Medicare & Medicaid Services (“CMS”) is reinforcing regulatory expectations regarding nursing home residents’ rights to vote. On September 26, 2024, CMS issued a QSO Memo, “Compliance with Residents’ Rights requirement related to Nursing Home Residents’ Right to Vote.” CMS reminds nursing homes of the regulatory expectations that residents of nursing homes have the right to vote without any interference from the nursing home. Nursing homes certified by Medicare or Medicaid must ensure that their residents can fully exercise their rights as United States citizens, including their right to vote. These responsibilities stem from federal regulations governing residents’ rights, and failure to comply could result in regulatory action.
Key Regulations and Responsibilities
Nursing homes must support residents’ voting rights under the following regulations:
- 42 CFR §483.10(b): The resident has the right to exercise his or her rights as a resident of the facility and as a citizen or resident of the United States.
- 42 CFR §483.10(b)(1): The facility must ensure that the resident can exercise his or her rights without interference, coercion, discrimination or reprisal from the facility.
- 42 CFR §483.10(b)(2): The resident has the right to be free of interference, coercion, discrimination and reprisal from the facility in exercising his or her rights and to be supported by the facility in the exercise of his or her rights as required under this subpart.
To support these rights, nursing homes must take active steps to allow residents to vote, either in person or by mail, including coordinating with state voting programs or providing necessary resources like transportation, mail services or assistance with completing absentee ballots.
Required Actions for Nursing Homes
Nursing homes should create a plan to ensure residents can exercise their right to vote, whether in person, by mail, absentee ballot or other authorized process.
If a state has specific programs to enable nursing home residents to vote, the nursing home should coordinate and engage with those programs, as appropriate.
This may include:
- Mobile polling in residential facilities performed by a bipartisan team of workers; and/or
- 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, long-term care 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 nursing home, nursing homes are required to support residents in the exercise of their right (42 CFR §483.10(b)(2)) to vote, such as 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 U.S. Postal Service, or other authorized mechanism allowed by the state. CMS regulations specific to the use of mail, which also apply to voting, include:
- 42 CFR §483.10(g)(7): The facility must protect and facilitate that resident’s right to communicate with individuals and entities within and external to the facility, including reasonable access to: (i) A telephone, including TTY and TDD services; (ii) The internet, to the extent available to the facility; and (iii) Stationery, postage, writing implements and the ability to send mail; and
- 42 CFR §483.10(h)(2): The facility must respect the resident’s right to personal privacy, including the right to privacy in his or her oral (that is, spoken), written and electronic communications, including the right to send and promptly receive unopened mail and other letters, packages and other materials delivered to the facility for the resident, including those delivered through a means other than a postal service.
Practical Takeaways
- Nursing homes must actively facilitate voting for residents, including assisting with absentee ballots and providing access to mail services.
- Nursing homes are required to ensure that ballots are received and sent out promptly, in line with CMS regulations, to avoid any interference with residents’ right to vote.
- Nursing homes must ensure their policies are compliant with these regulations to protect the rights of their residents and avoid legal repercussions.
If you have any questions or would like additional information about this topic, please contact:
- Sean Fahey at (317) 977-1472 or sfahey@hallrender.com;
- Brian Jent at (317) 977-1402 or bjent@hallrender.com;
- Todd Selby at (317) 977-1440 or tselby@hallrender.com; or
- Your primary Hall Render contact.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer specific questions that would be legal advice.
