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Nursing Home Law Outline

By David L. McGuffey, Certified Elder Law Attorney


Table of Contents
Addressing Problems in Nursing Homes
Admission Agreements
Arbitration Issues
Cases
Company Websites
Financing Nursing Home Care
Government Reports (Selected)
Guidelines (Medical)
Law Review Articles
Liability Insurance
Links to Other Websites
MDS
Miscellaneous Issues
News Stories
OBRA Nursing Home Statute and Regulations
Other Laws and Regulations Affecting Seniors
Resident Rights
Resources
Signs and Symptoms of Abuse
State Nursing Home Statutes and Regulations
Georgia Law Relating to Nursing Homes
Tennessee Law Relating to Nursing Homes

As you will notice, there are many links on this page. Off-site links are subject to change. If you notice that a link has changed and is no longer working, please contact us at david@mcguffey.net so we can update this page. If you are aware of a page we should link to we would appreciate those comments as well.

Addressing Problems in Nursing Homes:

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Admission Agreements:

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Arbitration Issues:

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Cases:

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Company Websites:

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Financing Nursing Home Care:

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Government Reports (Selected):

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Guidelines (Medical):

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Law Review and Internet Articles:

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Liability Insurance:

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Links to Other Websites:

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MDS:

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Miscellaneous Issues:

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News Stories:

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OBRA Nursing Home Statute and Regulations:

  • 42 USC section 1395i-3: Medicare: Requirements for nursing facilities.Click here to download "Word" version of 42 USC, Chapter 7
  • 42 USC section 1396r: Medicaid: Requirements for nursing facilities.Click here to download "Word" version of 42 USC, Chapter 7
  • Search U.S. Code at uscode.house.gov/usc.htm
  • Office of Law Revision Counsel (U.S. House)
  • CFR from Government Printing Office
  • 42 CFR Part 483 (cite list)
    • TEXT PDF483.1 Basis and scope.
    TEXT PDF483.5 Definitions.
    TEXT PDF483.10 Resident rights.
    TEXT PDF483.12 Admission, transfer and discharge rights.
    TEXT PDF483.13 Resident behavior and facility practices.
    TEXT PDF483.15 Quality of life.
    TEXT PDF483.20 Resident assessment.
    TEXT PDF483.25 Quality of care.
    TEXT PDF483.30 Nursing services.
    TEXT PDF483.35 Dietary services.
    TEXT PDF483.35 Dietary services.
    TEXT PDF483.40 Physician services.
    TEXT PDF483.45 Specialized rehabilitative services.
    TEXT PDF483.55 Dental services.
    TEXT PDF483.60 Pharmacy services.
    TEXT PDF483.65 Infection control.
    TEXT PDF483.70 Physical environment.
    TEXT PDF483.75 Administration.
    TEXT PDF483.75 Administration.
    TEXT PDF483.100 Basis.
    TEXT PDF483.102 Applicability and definitions.
    TEXT PDF483.104 State plan requirement.
    TEXT PDF483.106 Basic rule.
    TEXT PDF483.108 Relationship of PASARR to other Medicaid processes.
    TEXT PDF483.110 Out-of-State arrangements.
    TEXT PDF483.112 Preadmission screening of applicants for admission to NFs.
    TEXT PDF483.114 Annual review of NF residents.
    TEXT PDF483.116 Residents and applicants determined to require NF level of services.
    TEXT PDF483.118 Residents and applicants determined not to require NF level of services.
    TEXT PDF483.120 Specialized services.
    TEXT PDF483.122 FFP for NF services.
    TEXT PDF483.124 FFP for specialized services.
    TEXT PDF483.126 Appropriate placement.
    TEXT PDF483.128 PASARR evaluation criteria.
    TEXT PDF483.130 PASARR determination criteria.
    TEXT PDF483.132 Evaluating the need for NF services and NF level of care (PASARR/NF).
    TEXT PDF483.134 Evaluating whether an individual with mental illness requires specialized services (PASARR/MI).
    TEXT PDF483.136 Evaluating whether an individual with mental retardation requires specialized services (PASARR/MR).
    TEXT PDF483.138 Maintenance of services and availability of FFP.
    TEXT PDF483.150 Statutory basis; Deemed meeting or waiver of requirements.
    TEXT PDF483.151 State review and approval of nurse aide training and competency evaluation programs and competency evaluation programs.
    TEXT PDF483.152 Requirements for approval of a nurse aide training and competency evaluation program.
    TEXT PDF483.154 Nurse aide competency evaluation.
    TEXT PDF483.156 Registry of nurse aides.
    TEXT PDF483.158 FFP for nurse aide training and competency evaluation.
    TEXT PDF483.160 Requirements for training of paid feeding assistants.
    TEXT PDF483.200 Statutory basis.
    TEXT PDF483.202 Definitions.
    TEXT PDF483.204 Provision of a hearing and appeal system.
    TEXT PDF483.206 Transfers, discharges and relocations subject to appeal.
    TEXT PDF483.315 Specification of resident assessment instrument.
    TEXT PDF483.350 Basis and scope.
    TEXT PDF483.352 Definitions.
    TEXT PDF483.354 General requirements for psychiatric residential treatment facilities.
    TEXT PDF483.356 Protection of residents.
    TEXT PDF483.358 Orders for the use of restraint or seclusion.
    TEXT PDF483.360 Consultation with treatment team physician.
    TEXT PDF483.362 Monitoring of the resident in and immediately after restraint.
    TEXT PDF483.364 Monitoring of the resident in and immediately after seclusion.
    TEXT PDF483.366 Notification of parent(s) or legal guardian(s).
    TEXT PDF483.368 Application of time out.
    TEXT PDF483.370 Postintervention debriefings.
    TEXT PDF483.372 Medical treatment for injuries resulting from an emergency safety intervention.
    TEXT PDF483.374 Facility reporting.
    TEXT PDF483.376 Education and training.
    TEXT PDF483.400 Basis and purpose.
    TEXT PDF483.405 Relationship to other HHS regulations.
    TEXT PDF483.410 Condition of participation: Governing body and management.
    TEXT PDF483.420 Condition of participation: Client protections.
    TEXT PDF483.430 Condition of participation: Facility staffing.
    TEXT PDF483.440 Condition of participation: Active treatment services.
    TEXT PDF483.450 Condition of participation: Client behavior and facility practices.
    TEXT PDF483.460 Condition of participation: Health care services.
    TEXT PDF483.470 Condition of participation: Physical environment.
    TEXT PDF483.480 Condition of participation: Dietetic services.

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Other Laws and Regulations Affecting Seniors

  • Age Discrimination in Employment Act of 1967 (ADEA)
  • ERISA Related Regulations, Interpretations, Opinions, that affect Pension Plans
  • Medicare Modernization Act of 2003
  • Older Americans Act of 1965, As Amended (OAA)
  • Senate Bills of Interest to Senior Citizens
  • Social Security Act
  • U.S. Senate Special Committee on Aging

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    Resident Rights:

    • 42 CFR § 483.10(a) provides:
      The resident has a right to a dignified existence, self- determination, and communication with and access to persons and services inside and outside the facility. A facility must protect and promote the rights of each resident, including each of the following rights:
      (a) Exercise of rights. (1) 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.
      (2) The resident has the right to be free of interference, coercion, discrimination, and reprisal from the facility in exercising his or her rights.
      (3) In the case of a resident adjudged incompetent under the laws of a State by a court of competent jurisdiction, the rights of the resident are exercised by the person appointed under State law to act on the resident's behalf.
      (4) In the case of a resident who has not been adjudged incompetent by the State court, any legal-surrogate designated in accordance with State law may exercise the resident's rights to the extent provided by State law.
    • G. Edson, Nursing Home Resident Rights (KELN)
    • CANHR: Resident's Rights Fact Sheet
    • See 42 CFR Section 483.10, 483.12 and 483.25.
    • The Right to be Informed about Your Medical Condition and Treatment: Every resident has the right to receive medical care, nursing care, rehabilitative and restorative therapies, and personal hygiene in a safe, clean environment. Also, residents have the right to be fully informed of his/her medical condition unless the physician indicates in the medical records that it is not in the best interest of the patient to be told. Residents have the right to be advised by a physician or appropriate professional staff of alternative courses of care and treatments and their consequences. (42 CFR § 483.10)
    • The Right to Participate in Planning Your Care and Medical Treatment: Residents must be given the opportunity to participate In the planning of their medical treatment. Residents have the right to refuse treatment and to refuse to participate in experimental research. (42 CFR § 483.10)
    • The Right to Choose Your Own Physician: Every resident has the right to choose his/her own physician and pharmacy. Residents do not have to use the nursing home's physician or pharmacy. (42 CFR § 483.10)
    • The Right to Manage Personal Finances: Residents have the option to manage their funds or to authorize someone else to manage them. If someone else is authorized to handle a resident's funds, the resident has the right to: Know where the funds are and the account number(s); Receive a written accounting statement every 3 months; Receive a receipt for any funds spent; Have access to his/her funds within 7 banking days. (42 CFR § 483.10)
    • The Right to Privacy, Dignity, and Respect: Every resident has the right to be treated with consideration, respect, and dignity in full recognition of his/her individuality. This includes privacy during medical treatment and care of personal needs. People not involved in the care of the resident should not be present during examinations and treatment without consent from the resident. (42 CFR § 483.10)
    • The Right to Share Room With Spouse: The resident has the right to share a room with his or her spouse when married residents live in the same facility and both spouses consent to the arrangement. (42 CFR § 483.10)
    • The Right to Personal Possessions: Every resident has the right to retain and use his/her personal clothing and possessions as space permits, unless doing so infringes upon the rights of other residents or constitutes a safety hazard. (42 CFR § 483.10)
    • The Right to be Free from Abuse and Restraints: Residents have the rights to be free from mental (humiliation, harassment, and threats of punishment or deprivation) and physical (corporal punishment and the use of restraints as punishment) abuse. Residents also have the right to be free from chemical and physical restraints unless authorized in writing by a physician for a specified and limited time period or when necessary to protect the patient from injury to him/herself or to others. (42 CFR § 483.13)
    • The Right to Voice Grievance without Retaliation: Every resident should be encouraged and assisted to exercise his/her right to voice grievances and recommend changes in policies and services to facility staff and/or outside representatives of his/her choice without fear of coercion, discrimination, or reprisal. (42 CFR § 483.10)
    • The Right to be Discharged or Transferred Only for Medical Reasons: Residents may only be discharged or transferred for medical reasons or for his/her welfare or that of other residents. Residents must be provided with a written notice 30 days prior to transfer or discharge. The law provides residents the right to appeal discharge or transfer.(42 CFR § 483.12)
    • Rights of Access: Residents may receive any visitor of their choice and may refuse visitors to enter their room or may end a visit at any time. Residents have the right to immediate access by family and reasonable access to others. Visiting hours must be at least 8 hours and be posted in a public place. Members of community organizations and legal services may enter any nursing home during visiting hours. Communication between the resident and visitors are confidential. Visitors may talk to all residents and offer them personal, social, and legal services. Visitors may help residents claim their rights and benefits through individual assistance, counseling, organizational activity, legal action, or other forms of representation. (42 CFR § 483.10)
    • Have sufficient nursing staff to provide nursing and related services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by resident assessments and individual plans of care (42 CFR § 483.30).
    • Conduct initially (no later than 14 days after admission) and periodically (after a significant change in the resident's physical or mental condition and, in no case, less often than once every 12 months) a comprehensive, accurate, standardized, reproducible assessment of each resident's functional capacity (42 CFR § 483.20).
    • Develop a comprehensive care plan for each resident that includes measurable objectives and timetables to meet a resident's medical, nursing, and mental and psychosocial needs that are identified in the comprehensive assessment. The care plan must be developed within 7 days after completion of the comprehensive assessment and describe the services that are to be furnished. Also, the care plan must be periodically reviewed and revised by a team of qualified persons after each assessment (42 CFR § 483.20).
    • Prevent the deterioration of a resident's ability to bathe, dress, groom, transfer and ambulate, toilet, eat, and to use speech, language or other functional communication systems (42 CFR § 483.25)
    • Provide, if a resident is unable to carry out activities of daily living, the necessary services to maintain good nutrition, grooming, and personal and oral hygiene (42 CFR § 483.25).
    • Ensure that residents receive proper treatment and assistive devices to maintain vision and hearing abilities (42 CFR § 483.25).
    • Ensure that residents do not develop pressure sores and, if a resident has pressure sores, must provide the necessary treatment and services to promote healing, prevent infection and prevent new sores from developing (42 CFR § 483.25).
    • Provide appropriate treatment and services to incontinent residents to restore as much normal bladder functioning as possible and prevent urinary tract infections and to restore as much normal bladder function as possible (42 CFR § 483.25).
    • Ensure that the resident receives adequate supervision and assistive devices to prevent accidents (42 CFR § 483.25).
    • Ensure that a resident maintains acceptable parameters of nutritional status, such as body weight and protein levels (42 CFR § 483.25).
    • Provide each resident with sufficient fluid intake to maintain proper hydration and health (42 CFR § 483.25).
    • Ensure that residents are free of any significant medication errors (42 CFR § 483.25).
    • Care for its residents in a manner and in an environment that promotes maintenance or enhancement of each resident's quality of life (42 CFR § 483.15).
    • Promote care for residents in a manner and in an environment that maintains or enhances each resident's dignity and respect in full recognition of his or her individuality (42 CFR § 483.15).
    • Ensure that the resident has the right to choose activities, schedules, and health care consistent with his or her interests, assessments and plan of care (42 CFR § 483.15).
    • Ensure that the medical care of each resident is supervised by a physician and must provide or arrange for the provision of physician services 24 hours a day, in case of an emergency (42 CFR § 483.40).
    • Provide pharmaceutical services (including procedures that assure the accurate acquiring, receiving, dispensing, and administering of all drugs and biologicals) to meet the needs of each resident (42 CFR § 483.60).
    • Be administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident (42 CFR § 483.75).
    • Maintain clinical records on each resident in accordance with accepted professional standards and practices that are complete, accurately documented, readily accessible, and systematically organized (42 CFR § 483.75).

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    Resources:

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    Signs and Symptoms of Abuse:

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    State Nursing Home Statutes and Regulations:

    States

    NH Statutes

    NH Regulations

    Alabama

    Ala.Code 1975 § 34-20-1 et seq. (administrators)

    Ala. Admin Code 420-5-10

    Alaska

    AS 08.70.080 et seq. (Administrators); AS 18.20.010 (Hospitals and nursing facilities); AS 18.20.300 (nursing facilities)

    Alaska Admin Code tit. 7, § 12.258 to 12.290

    Arizona

    A.R.S. Sections 46-451 – 456

    Ariz. Admin. Code 9-10-901 et seq.

    Arkansas

    A.C.A. § 20-10-1401 et seq. (staffing)

     

    California

    Health & Safety Code section 1250, et seq.; 1417, et seq.

    22 Cal. Code Regs 72001, et seq.

    Colorado

    C.R.S.A. § 12-39-101 (administrators)

     

    Connecticut

    Title 19A, Chapter 368V

     

    Delaware

     

     

    Florida

    FS 400.011--400.332

    FAC 59A-4

    Georgia

    O.C.G.A. § 31-8-100 et seq.

    GAC § 290-5-39-.01 et seq.

    Hawaii

     

     

    Idaho

    Idaho Code 67-5001 et seq. (Commission on Aging); Idaho Code 39-3501 et seq. (Residential Care for the Elderly); Idaho Code 39-5301 et seq. (Adult Abuse, Neglect and Exploitation Act); Idaho Code 54-1601 et seq. (Nursing Home Administrators); and Idaho Code 6-2301 et seq. (Claims Against Nursing Home Facilities).

    Idaho Administrative Code 16.03.02.000 et seq

    Illinois

    210 ILCS 45/1-101 et seq

     77 Ill. Adm. Code 300

    Indiana

    I.C. 16-28, et seq

     410 I.A.C. 16.2 - 3.1, et seq

    Iowa

     

     

    Kansas

    K.S.A. 39-923, et seq

    K.A.R. 28-39-144, et seq.; Interpretive Guideline Number 93-1 et.seq

    Kentucky

    KRS § 216.510 et seq. See generally, Chapters 216, 216A and 216B

     KAR Titles 900, 901, 906, 907 and 910

    Louisiana

     

     

    Maine

     

     

    Maryland

    19-1801 to 1806 (ass’t living); 19-1901 to 1912 (adult care care); 19-343 to 19-352 (nursing homes)

    COMR 10.07.14 (assisted living)

    COMR 10.07.09 (nursing homes)

    Massachusetts

     

    105 CMR 150.000 - 159.000

    940 CMR 4.00 – 4.11

    245 CMR 1.00 – 2.18

    Michigan

     

     

    Minnesota

     

     

    Mississippi

    MS Code § 43-11-1, et seq

    Minimum Standards for Institutions for the Aged or Infirm § 101.1, et seq.

    Missouri

     RSMo. 198.003 - 198.186

     

    Montana

     

     

    Nebraska

     

     

    Nevada

     

     

    New Hampshire

     

     

    New Jersey

    NJSA26:2H- et seq.

    NJAC (administrative code) Title 8, Chapt. 43 E; 42C (hospice); 43H (rehabilitation hosp.); Title 10, ch. 35 (county psych facilities).

    New Mexico

    7.9.2 NMAC, § 7.9.2.1-7.9.2.88, et seq

     

    New York

    Public Health Law (PHL) 2801-d

    10 NYCRR 415.12

    North Carolina

    N.C.G.S. 131E-100 through -134

    10 NCAC subchapter 3H

    North Dakota

     

     

    Ohio

    Ohio Revised Code Chapter 3721

    Ohio Administrative Code Chapters 3701-17, 18, 20, and 61

    Oklahoma

    63 O.S. § 1-1901 et seq

    OAC 310:675-1-1 et seq.

    Oregon

     

     

    Pennsylvania

    Health Care Facilities Act, 35 P.S. Sect. 448.101 et seq.

    28 Pa.Code Sub-part C, Chapters 201 et seq. (Long-term Care Facilities)

    Rhode Island

    Chapter 23-17

     

    South Carolina

     

    Code of Regs. 61-17

    South Dakota

     

     

    Tennessee

    T.C.A. § 68-11-901 (rights); § 68-11-803 (Type B violations); §  68-11-804 (Type C violations)

     TCRR § 1200-8-6-.01 et seq.

    Texas

     

    40 TAC sec. 18.1 et seq

    40 TAC sec. 19.1 et seq

    40 TAC sec. 19.401 et seq.

    Utah

     

     

    Vermont

     

     

    Virginia

     

     

    Washington

     

     

    West Virginia

    W. Va. Code 16-5C-1 et seq. (NH)

    30-25-1 (Administrators); 16-5L-1 (Ombudsmen); 55-7B-1 (Medical Professional Liability Act)

    64 CSR 13 Nursing Home Licensure Rule; 21 CSR 1 Nursing Home Administrators Lic. Bd.; 12 CSR 1 Licensing Advisory Council Proc. Rules

    Wisconsin

     

     

    Wyoming

     

     

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    Georgia Law Relating to Nursing Homes

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    Tennessee Law Relating to Nursing Homes

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