Nursing Home Abuse Newsletter

The Law that Governs Nursing Homes

In recent years, nursing home abuse has been on the rise. There may be many reasons for the increase. For example, some credit a shortage of skilled nursing home workers combined with the fact that nursing home populations are increasing. Others feel that state and federal funding does not provide adequate financial support for the facilities, leading to budget problems and degradation in care. In any case, the elderly, and those who care about them, must be aware of the laws regulating nursing homes. Awareness of the law can provide a resident the confidence to demand compliance.

An Overview of Important State and Federal Law

Generally, state and federal law heavily regulate nursing homes. The type of state and federal regulation will greatly depend on the type of care facility that one is concerned with. All states license and regulate nursing homes. The states establish permissible business practices and set the standards for quality and types of services provided. One should check with local legal counsel, or review relevant state statutes for additional state law coverage.

Federal law defines a nursing home as a facility that provides skilled nursing care and related services for residents who require medical or nursing care; rehabilitation services for injured, disabled, or sick persons; and health-related care and services, above the level of room and board that can be made available only through institutional facilities. Please see 42 U.S.C. § 1396r(a) for this federal statutory definition.

Federal Nursing Homes

It is important to note that some nursing homes, such as those specifically for veterans, are directly operated by U.S. governmental agencies. Government-operated nursing homes are directly governed by the relevant federal agency regulations.

Nursing Home Reform Act

Federal nursing home regulation began in the early 1970s when the U.S. Congress enacted the Nursing Home Reform Act ("NHRA"). Over the years, the law has been updated and amended. For example, in 1987, the legislature created the Omnibus Budget Reconciliation Act. This Act states that all nursing homes receiving federal funding must comply with federal regulations. In most cases, federal funding is received through Medicare and/or Medicaid, and most nursing homes receive Medicare and/or Medicaid funding.

The NHRA includes a section which has been termed the Resident's Bill of Rights. It is located at 42 U.S.C. § 1395(i)-3c. This section sets out the basic federal rights of all nursing home residents. The rights are outlined to assure that nursing homes give "care for residents in such a manner and in such an environment as will promote maintenance or enhancement of the quality of life of each resident." Under the Resident's Bill Rights, nursing homes must "provide services to attain or maintain the highest practicable, physical, mental, and psychosocial well being of each resident, in accordance with a written plan of care."

Relevant Federal Agencies: Centers for Medicare and Medicaid Services

The Centers for Medicare and Medicaid Services ("CMS") is the federal agency responsible for administering several federal health-related programs. Medicare and Medicaid are among these programs.

Medicare

Medicare was enacted in 1965. It is the principal health care insurance program for individuals who are over 65 years old, have permanent kidney failure, or are less than 65 years old but qualify for benefits as the result of a disability. The CMS administers the Medicare program. Statutes related to this program are located at U.S.C. § 1395-1395ccc. The agency regulations are located at 42 C.F.R. Pt. 400.

Medicaid

Medicaid was also enacted in 1965. The federal government matches state spending to provide medical and health-related services in a jointly funded program. It provides payments for necessary medical expenses, including nursing home care for the poor. Statutes related to this program are located at 42 U.S.C. § 1396. The agency regulations are located at 42 C.F.R. 430.

CMS regulations which clarify the NHRA

The CMS has attempted to clarify the requirements of the NHRA through use of its agency regulations. For example, the CMS has its own federal regulatory section called "Resident's Rights" at 42 C.F.R. § 483.10. This section attempts to clarify the NHRA "Resident's Bill of Rights" discussed above. Under the regulation, residents should be able to:

• Access their own records
• Be informed, or have another informed, about their changes in physical, mental, or psychosocial status, and
• Have a free choice in choosing medical care providers

In addition, the CMS regulations further clarify the NHRA by requiring quality of care safeguards involving:

• Activities of daily living
• Pressure ulcer prevention and treatment
• Mental and psychosocial functioning
• Hydration
• Nutrition
• Medications

Conclusion

The best way to reduce abuse of nursing home patients is to learn about and share information regarding residents' rights. The above information can form a basis for further research, and allow you to speak confidently with care providers. If you have specific legal concerns, consult an experienced elder law attorney in your area.

Form: The Law that Governs Nursing Homes

To read and print out a copy of the form please link below.

The Law that Governs Nursing Homes

You can download a free copy of Adobe Acrobat Reader here.

Copyright © 1994-2006 FindLaw, a Thomson business

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

View Previous Months' Selections