Federal Nursing Home Regulations: What the Law Requires and What It Means for Your Family

Whether Federal Rules Apply to Your Loved One's Nursing Home

Two federal statutes sit at the base of nursing home law. For Medicare, the requirements for a skilled nursing facility appear in 42 U.S.C. § 1395i-3. For Medicaid, the requirements for a nursing facility appear in 42 U.S.C. § 1396r. For a family, the practical point is that the two statutes track each other closely: many resident-rights provisions use nearly the same words, so the core protections look much the same whichever program pays.

The detailed rules that carry out those statutes are the long-term care regulations in 42 CFR Part 483, Subpart B. According to the Centers for Medicare & Medicaid Services nursing homes page, skilled nursing facilities and nursing facilities "are required to be in compliance with the requirements in 42 CFR Part 483, Subpart B, to receive payment under the Medicare or Medicaid programs."

That payment link is the heart of the system. These requirements are often called conditions of participation, meaning the rules a facility agrees to meet in exchange for taking part in Medicare or Medicaid and being paid by them. CMS describes them as "Federal participation requirements."

Two points follow. First, the rules reach facilities certified to participate in Medicare or Medicaid, so whether they apply depends on the home's certification, not on what it calls itself. Second, although the rules are federal, the inspections are carried out through the states, as explained below.

What is at stake is a baseline: these rules describe what a certified facility was legally required to do, which gives a concrete reference point when care seems to have fallen short. A natural first question for a family is whether the home participates in Medicare, Medicaid or both, since that determines which statute applies.

What a Certified Facility Was Required to Provide

The federal requirements cover a long list of subjects. This section names the main ones found in the statutes and regulations, and the list is partial.

Resident rights form a distinct category in Subpart B, set out in 42 C.F.R. § 483.10. One concrete example is 42 C.F.R. § 483.10(e), which states that "the resident has a right to be treated with respect and dignity." The rights it lists include:

• the right to be free from physical or chemical restraints imposed for discipline or convenience and not required to treat the resident's medical symptoms;
• the right to keep and use personal possessions, including furnishings and clothing, as space permits, unless that would infringe on other residents' rights, health or safety;
• the right to reasonable accommodation of needs and preferences, except when that would endanger the health or safety of the resident or others;
• the right to share a room with a spouse when both consent, and with a roommate of choice when practicable and both consent;
• the right to written notice, including the reason, before a room or roommate is changed;
• the right to refuse certain room transfers, including one made solely for the convenience of staff, without affecting Medicare or Medicaid eligibility.

The same section addresses self-determination in paragraph (f): choosing activities, schedules and health care providers, receiving visitors of the resident's choosing, taking part in resident and family groups, and managing personal finances. It states that a facility "must not require residents to deposit their personal funds with the facility," and that when a resident chooses to deposit funds, the facility must act as a fiduciary, meaning it must hold, safeguard, manage and account for that money.

The statutes add other duties. Psychopharmacologic drugs, medications that affect mood, thinking or behavior, "may be administered only on the orders of a physician and only as part of a plan" in the written care plan, with an independent, external consultant reviewing each resident's drug plan at least annually. The statutes also limit when a facility may transfer or discharge a resident, and they require notice of rights at admission.

These specifics matter because they turn a general sense that "something was wrong" into a precise question: what did the rule require, and what happened instead? A family may find it useful to compare a concern, such as an unexplained restraint, a new sedating medication or a room change without notice, against the specific rule it touches, and to note which care plan entries or notices bear on it.

How to Read a State Inspection and a Survey Citation

The inspection system runs through the states. As the CMS nursing homes page explains, "a state surveyor completes at least a Life Safety Code (LSC) survey, a Standard Health Survey, and an Emergency Preparedness Survey" to certify a skilled nursing facility or nursing facility. A survey in this setting is an inspection that checks a facility against the federal requirements.

Surveys come without warning. CMS states that "SNF/NF surveys are not announced to the facility," that standard surveys are completed on consecutive workdays whenever possible, and that they "may be conducted at any time including weekends, 24 hours a day."

The state also makes the compliance call. Per CMS, "the State is responsible for certifying a skilled nursing facility's or nursing facility's compliance or noncompliance, except in the case of State-operated facilities," and the state's certification for a skilled nursing facility "is subject to CMS' approval." When problems are found, the state does not act alone on penalties: it "recommends appropriate enforcement actions" to the State Medicaid agency for Medicaid and to the appropriate CMS Location for Medicare. Who makes the final decision varies by facility type: for a non-state-operated nursing facility in Medicaid only, CMS says "the State's certification is final," while for a state-operated facility the state surveys and the CMS Location certifies.

When a surveyor finds that a facility did not meet a requirement, the finding is commonly called a deficiency or a citation: a written record that, at the time of the survey, the facility was found out of compliance with a specific rule.

Families can see some of this work. Both statutes give residents "the right to examine, upon reasonable request, the results of the most recent survey of the facility conducted by the Secretary or a State with respect to the facility and any plan of correction in effect." CMS also publishes a list of Special Focus Facilities, which it describes as "nursing homes with a record of poor survey (inspection) performance on which CMS focuses extra attention."

For a family, a survey report can show whether regulators found problems at the home and what the facility promised to fix. Questions worth weighing include the survey date, which rule a citation concerns, and whether a plan of correction is in effect.

What a Federal Requirement Does Not Decide on Its Own

A rule on paper says what a facility must do. It does not, by itself, show that a facility failed to do it in a particular resident's case. That is a separate question of fact and law, decided by what actually happened.

A survey citation has limits too. It records a surveyor's administrative finding about a facility at a point in time. It is not a court judgment, and it does not decide what caused a particular resident's injury. A citation for one problem on one survey date may or may not connect to what happened to a specific person in a different week.

The same caution applies to the injuries families see. A bedsore, a fall, a hip fracture or unexplained bruising does not by itself prove that anyone was negligent. Some injuries happen despite proper care; others follow from missed turning schedules, unanswered call lights or other lapses. Telling them apart depends on clinical facts: the resident's condition, the care plan, what staff recorded and when, and how the injury developed.

It also helps to keep two kinds of standards apart. A regulatory violation is an administrative matter between the facility and the government. Negligence is a civil legal standard, meaning a failure to use reasonable care that causes harm, and a negligence claim generally asks whether there was a duty, whether it was breached, whether that breach caused the injury, and what harm resulted. How regulatory evidence fits into that analysis depends on the facts and on the law of the state where the facility sits.

If you are holding a survey report and a medical chart and are unsure what they add up to, that uncertainty is understandable. A conversation with our attorney can help you sort out what records like these may or may not show in a situation like yours, and you can request a case evaluation when that conversation would be useful.

The Rights Your Loved One Holds Under Federal Law

Congress wrote resident rights directly into both statutes. Under 42 U.S.C. § 1395i-3(c) for Medicare and 42 U.S.C. § 1396r(c) for Medicaid, a facility "must protect and promote the rights of each resident, including each of the following rights." The main rights include:

• free choice: choosing a personal attending physician, being fully informed in advance about care and changes in care, and (except for a resident adjudged incompetent) participating in planning care and treatment;
• freedom from abuse and restraints;
• privacy in accommodations, medical treatment, communications, visits and family and resident group meetings;
• confidentiality of personal and clinical records, with access to current clinical records;
• accommodation of needs and notice before a room or roommate change;
• voicing grievances "without discrimination or reprisal," with prompt efforts by the facility to resolve them, including grievances about other residents' behavior;
• participation in resident and family groups and in social, religious and community activities;
• examining the most recent survey results;
• refusing certain transfers within the facility, and any other right established by the Secretary.

The restraint provision protects "the right to be free from physical or mental abuse, corporal punishment, involuntary seclusion, and any physical or chemical restraints imposed for purposes of discipline or convenience and not required to treat the resident's medical symptoms." Restraints may be imposed only "to ensure the physical safety of the resident or other residents" and only on a physician's written order specifying the duration and circumstances, except in emergency circumstances specified by the Secretary until such an order could reasonably be obtained.

Both statutes also require that the written description of rights given at admission include "a statement that a resident may file a complaint with a State survey and certification agency respecting resident abuse and neglect and misappropriation of resident property in the facility." When a resident has been adjudged incompetent under state law, these rights pass to the person appointed under state law to act on the resident's behalf.

These statutory rights are the same ones the § 483.10 regulations spell out in more detail, so a family can read the two together. What is at stake is the resident's voice in care: the right to be informed, to complain without reprisal and to refuse certain changes. A family may weigh whether a concern was raised as a grievance, how the facility responded, and who holds the resident's rights if the resident cannot act alone.

What These Rules Mean When a Resident Is Harmed

Federal regulations set care standards for certified facilities, but a civil claim after a resident is harmed is generally a state-law matter. Negligence claims, and wrongful death claims brought by a family after a death caused by another's wrongful act or neglect, are governed by state law rather than directly by the federal nursing home rules.

The questions that shape a claim therefore differ from state to state. The limitation period, meaning the deadline for filing a lawsuit, varies by state, as do its starting point and exceptions. Fault rules differ. Damages rules, which govern categories such as medical expenses and pain and suffering and any limits on them, differ too. No single rule applies nationwide, and federal regulations do not set those state rules.

Federal requirements may still matter in a state civil case. A regulation or a survey finding may be relevant evidence about what a facility was expected to do, but how it can be used depends on the state's law and on the facts. A violation does not on its own prove negligence, and an injury does not on its own prove fault.

The same incident can therefore run along two tracks: a complaint to the state survey agency, which the statutes say residents may file, and a civil claim under state law. They answer different questions.

When a resident has been hurt, the records that families often find relevant include:

• the resident's clinical records and care plan, which both statutes say a resident or legal representative may access on request within 24 hours, excluding weekend and holiday hours;
• the facility's survey results and any plan of correction;
• incident reports and notes about the event;
• transfer or discharge notices, which the statutes say must state the reasons and be recorded in the clinical record.

Medical records held by health care providers are also covered by the federal privacy rule's right of access in 45 C.F.R. § 164.524, which gives an individual "a right of access to inspect and obtain a copy" of protected health information in a designated record set, with exceptions including psychotherapy notes and information compiled in reasonable anticipation of a civil, criminal or administrative proceeding.

How the federal record and state civil law fit together in a particular situation is the kind of question a conversation with our attorney can help a family think through.