Schilling & Esposito April 21, 2020

Nursing homes are regulated by the federal government under the Omnibus Reconciliation Act of 1987 (OBRA). State governments are also involved in the regulation of nursing homes. Under OBRA, state governments are responsible for licensing and certifying nursing homes in their states. In order for nursing homes to receive Medicare or Medicaid, facilities must comply with OBRA provisions.

The primary goal of OBRA is to establish uniform standards for nursing homes and ensure the protection and safety of patients. For example, under OBRA, nursing homes must be inspected annually. Nursing homes are also required to create individualized care plans, reduce the use of chemical and physical restraints, and ensure that staff members are properly trained for special need situations.

Although OBRA seeks to protect residents in nursing homes, OBRA does not allow nursing home residents to file a lawsuit in order to enforce OBRA regulations. State and federal agencies, however, are able to impose penalties or seek legal action for OBRA violations.

State Legislation

Because states are responsible for licensing and certification of nursing homes, most states have adopted similar provisions found in OBRA. One provision that states have widely adopted is a "Resident Bill of Rights." A resident bill of rights requires a nursing home to provide certain rights to residents. The rights generally grant residents in nursing homes a right to a dignified existence, self-determination, and access to other persons and services inside and outside the facility. Residents also have a right to be free from coercion, discrimination, interference, and reprisal from the facility. If a nursing home fails to uphold these rights, it may be penalized, or have its license revoked.

Some states also have statutes that provide patients various remedies for nursing home malpractice. In Virginia, persons who violate a position of trust or confidence of an incapacitated or vulnerable resident may be liable for actual or consequential damages. Huffman v. Beverly Cal. Corp., 42 Va. Cir. 205 (1997). Persons may also be held criminally liable. Va. Code § 32.1-27.