This is the August 27, 2007, issue of Elder Law FAX, a free newsletter published by the Elder Law Practice of Timothy L. Takacs Are the Federal Nursing Home Regulations the Standard of Care? Federal quality of care regulations purport to create a minimum standard of care for nursing homes caring for residents. Still, when sued, nursing homes contend they are not bound by the regulations, or that the regulations are not the standard of care even though nursing homes are routinely subject to monetary penalties for violating them. A Tennessee case from this year is somewhat disturbing because it ignores the nature of the federal mandate that nursing homes abide by these regulations.   In Conley v. Life Care Centers, Mrs. Stinson, a 75 year old nursing home resident, was struck by another resident. She fell and broke her hip. She died four months later. The resident who struck her, Mr. Johnson, had been approved for placement at the nursing home after he was evaluated by the State.   Genesis was under contract with Life Care to provide mental health services for residents and those services were provided to both Mrs. Stinson and Mr. Johnson. Genesis visited Mr. Johnson weekly during his 17-month stay at Life Care, at no time recommending that Mr. Johnson be discharged or separated from other residents. After Mrs. Stinson's death, the representative of her estate sued Life Care.   Prior to trial, the court granted various motions for partial summary judgment. The estate's claims under the federal nursing home rules were not allowed as they were premised on a "national standard of care." The case then went to trial against Life Care and the jury returned a verdict for the estate for $130,000. Both parties appealed.   In affirming the trial court's grant of partial summary judgment on the estate's negligence per se claims alleging a violation of the federal nursing home rules, the court found that the "federal regulations are simply too vague and general to constitute a standard of care by which a jury, or for that matter a court, can effectively judge the acts or omissions of health care providers and nursing home operators." The court went further in concluding that claims based on the federal regulations would violate Tennessee's Medical Malpractice Act by creating a national standard of care.   Was the Tennessee appeals decision correct? Unfortunately, the decision overlooked the nursing home's contract with the U. S. Centers for Medicare & Medicaid Services (CMS) and with Medicaid where the nursing home agreed to provide care consistent with federal quality of care regulations. It ignored the reality that the nursing home cannot get paid under those programs unless it meets those quality standards and, if it misrepresented itself as meeting them when it was not, the nursing home could be subject to sanctions for fraud.   Similarly, every nursing home, with the exception of 4 private-pay-only facilities, is bound by the federal regulations - meaning that the federal regulations are the standard of care in Tennessee. Any nursing home failing to meet those guidelines would be cited by surveyors.   Most telling, perhaps, the Tennessee appeals court itself relied on federal regulations to support its conclusion that an admission to a nursing home is necessarily a medical decision because that regulation requires a medical recommendation for admission.   The court's decision fails to examine how nursing homes are operated. Every nursing home that accepts Medicare and/or Medicaid must adhere to the same quality of care regulations. Is it true that those regulations are too vague or general to be enforced with monetary sanctions? The Tennessee Court of Appeals believes so.   Conley v. Life Care Centers of America, January 4, 2007.