The Center for Medicare & Medicaid Services (CMS) is the component of the Federal Government’s Department of Health and Human Services (DHHS) that oversees the Medicare and Medicaid programs. A large portion of Medicare and Medicaid dollars is used each year to cover nursing home care and services for the elderly and disabled. State governments oversee the licensing of nursing homes. In addition, States have a contract with CMS to monitor those nursing homes that want to be eligible to provide care to Medicare and Medicaid beneficiaries. Congress established minimum requirements for nursing homes that want to provide services under Medicare and Medicaid. These requirements are broadly outlined in the Social Security Act (the Act). The Act also entrusts the Secretary of DHHS with the responsibility of monitoring and enforcing these requirements. CMS, a DHHS Agency, is also charged with the responsibility of working out the details of the law and how it will be implemented, which it does by drafting regulations and manuals.

CMS contracts with each State to conduct onsite inspections that determine whether its nursing homes meet the minimum Medicare and Medicaid quality and performance standards. Typically, the part of State government that takes care of this duty is the health department or department of human services. In West Virginia, the Department of Health and Human Services is responsible for protecting the health and safety of nursing care institutions. The State conducts inspections of each nursing home that participates in Medicare and/or Medicaid on average about once every 15 months. Nursing homes pursuant to the social security act are required to cooperate with the West Virginia Department of health in mandatory annual inspections under the Omnibus Budget Reconciliation Act. W. Va. Code § 16-5C-9. If the nursing home is performing poorly, however, the State inspectors may go in more frequently. W. Va. Code § 16-5C-8. The State also investigates complaints about nursing home care. During the nursing home inspection, the State looks at many aspects of quality. The inspection team observes resident care processes, staff/resident interaction, and environment. Using an established protocol of residential rights, the team interviews a sample of residents and family members about their life within the nursing home, and interviews caregivers and administrative staff.

The inspection team consists of trained inspectors, including at least one registered nurse. This team evaluates whether the nursing home meets individual resident needs. The regulations cover a wide range of aspects of resident life, from specifying standards for the safe storage and preparation of food to protecting residents from physical or mental abuse or inadequate care practices. There are over 150 regulatory standards that nursing homes must meet at all times. When an inspection team finds that a home does not meet a specific regulation, it issues a deficiency citation. After each inspection the Department of Health issues a quality rating based on the quality of service provided by the facility. Va. Code § 16-5C-10.

Depending on the nature of the problem, the law permits CMS to take a variety of actions; for example, CMS may fine the nursing home, deny payment to the nursing home, assign a temporary manager, or install a State monitor. CMS considers the extent of harm caused by the failure to meet requirements when it takes an enforcement action. If the nursing home does not correct its problems, CMS terminates its agreement with the nursing home. As a result, the nursing home is no longer certified to provide care to Medicare and Medicaid beneficiaries. Any beneficiaries residing in the home at the time of the termination are transferred to certified facilities.

OBRA

Nursing homes are regulated by the federal government under the Omnibus Reconciliation Act of 1987 (OBRA), 42 U.S.C. § 1395 – 1396 (1999). 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 meet these rights, it may be penalized, or have their license revoked.

Some states also have statutes that provide patients various remedies for nursing home malpractice. Persons may also be held criminally liable. In West Virginia, persons who violate a position of trust or confidence of an incapacitated or vulnerable resident may be liable for actual or consequential damages. Persons may also be held criminally liable.

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