The Nursing Home Federal Regulations

The First thing you must do before handling a Nursing Home Neglect claim is to obtain and read the Federal Regulations as well as the State Nursing Home Statute and Regulations. The Federal Regulations are laid out at 42 CFR 483.1 et seq, however can be obtained by either the American Healthcare Association or on Med Pass. Both copies will include all the regulations, FTAGS as well as a pdf copy for the computer.

Why are these regulations so important? Not only does the Nursing Home Administrator own the same book and rely on them, but it can be argued the Federal and State Regulations lay out the Standard of Care regarding admission and residency at the facility. For anyone handling Medical Malpractice cases, they know how difficult it can be to show the standard of care, if done correctly this difficulty evaporates in the Nursing Home Case.

These Requirements shed light on all care and prevention rendered at the facility. The “Nursing Home Lens” of Assessment, Care Plan with Interventions, Monitor and start over again, is detailed within these Regulations. Falls, Pressure Injuries, Nutrition, Hydrations, Contractures are just a few of the Regulations and FTAGS regarding care. Staffing, Administration, training, and competency are also detailed. The idea of whether an injury by a resident was avoidable or unavoidable is detailed within these regulations and control to a large extent how the Nursing Home must act. Without them, you are at a disadvantage.

This does not mean you can ignore discovery and show up to Trial with the regulations thinking you can establish the Standard of Care. Due to several Federal Court decisions as well as the concept that the regulations represent fee reimbursement, most Courts will not accept them sua sponte as the Standard of Care. As such you must utilize them in all depositions and obtain testimony that the nursing home must follow them and does follow them. Further, you will elicit testimony that during the state surveys, annual inspections, the care and actions of the Nursing home are compared to these regulations and if they are violated the Facility must prepare a Plan of Correction and may be fined. It is also recommended that during the administrator and Director of Nursing’s deposition you go through the above questioning and end with “Do you agree that part of the Standard of Care in running a Nursing Home is to comply with the Federal (and state) Regulations?”

The word regulation can cause some people to react negatively, thus early in discovery begin calling them requirements. If you start with your first few depositions and confirm with all witnesses, they are REQUIRED to follow them, you can then subtly shift regulation to requirement and have the witness not only agree but also shift wording. Once the defense witnesses use this word in depositions, it makes any motion in limine by the defense difficult.

When purchasing the Federal Regulations, make sure they are the ones sold by AHCA as they are “watermelon”color in nature and normally the book that the Nursing Home and their Administrators own and rely upon. You can then bring the printed copy with you to depositions and ask the witness if they own this book and begin giving the book and regulations credibility.

Once you are going to trial, make sure you have multiple copies of the book to anchor testimony in the Courtroom.  Have a copy at counsel table, by the jury, on the witness stand, and even with the Judge. Every time anyone mentions the regulations you lift the closest copy of the book.  There are many times the regulations will be discussed, it can be for a care plan, assessment, staffing, MDS, wounds, falls, whatever it is, make sure you are holding the book in your hand, that will anchor regulations to that book. By the time you reach the end of the plaintiff’s case, the jury will instinctually understand when you lift the book a rule that must be followed is being discussed. When defense experts come in at the end of the case and start suggesting to the jury the regulations are just “recommendations” or “for billing”, the jury will react negatively because you have anchored them.

These types of suggestions can help lead to your next 7 figure verdict. For similar suggestions head over to our Nursing Home Minutes and let us know what you think.