Rules & Regs 101
Introduction to Nursing Home Regulationsfor Long-Term-Care Ombudsmen and Others
Charles Gourgey, Ph.D.
Revised May 2017
The following is a historical outline of Federal and New York State regulations regarding nursing homes. All of this information is available on the internet; however, it is scattered in many different places that are difficult to piece together. The intention of this summary is to provide the essentials of Federal and NY State nursing home legislation in one convenient location, so that those who need it, particularly long-term-care Ombudsmen, can have ready access to it and can search easily for regulations on topics of particular interest.
For practical purposes, the three most important collections of nursing home regulations, with useful links for accessing them, are:
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The Federal Nursing Home Reform Act, whose rules of application are incorporated into Title 42 Part 483 of the Code of Federal Regulations (CFR):
http://www.ecfr.gov/cgi-bin/retrieveECFR?gp=&SID=371b56d5eda767bbbbc9625cce48c146&mc=true&n=pt42.5.483&r=PART&ty=HTML#sp42.5.483.b. -
The Centers for Medicare and Medicaid Services (CMS) State Operations Manual, specifically Appendix PP (guidelines for state surveyors):
http://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/som107ap_pp_guidelines_ltcf.pdf -
(For NY residents:) The New York State nursing home regulations, codified in Title 10 Parts 410-415 of the New York Compilation of Rules and Regulations (NYCRR):
https://govt.westlaw.com/nycrr/Browse/Home/NewYork/NewYorkCodesRulesandRegulations?guid=I1684af60b65611ddb903a4af59fec65a&originationContext=documenttoc&transitionType=Default&contextData=(sc.Default)
These are the most relevant collections containing the rules that Ombudsmen use every day and that they should keep at their fingertips. (All links are written out in full so that they remain visible if this web page is printed.)
Historial note: In 1991 the Centers for Medicare and Medicaid Services completed the first set of Federal nursing home regulations implementing the Federal Nursing Home Reform Law and currently contained in 42 CFR Part 483. For the first time since then these regulations were rewritten; the new version was announced, with comments, in September 2016:
https://s3.amazonaws.com/public-inspection.federalregister.gov/2016-23503.pdf.
The old regulations may still be found at this link:
http://law.justia.com/cfr/title42/42-3.0.1.5.22.html
The new regulations will be implemented in phases over the next three years; the first phase became effective in November. They will maintain all existing protections while adding additional provisions (such as a prohibition of pre-dispute arbitration requirements, which the industry is now contesting). A side-by-side comparison of the old and new regulations may be found here.
Federal Regulations
1. Establishment of Ombudsman Program: The Older Americans Act
The Older Americans Act of 1965 (OAA) was part of President Johnson’s Great Society Program. It was the first federal legislation to provide comprehensive services for senior citizens. It established the Administration on Aging and authorized services for older adults on the state and local level.
The Long-Term-Care Ombudsman Program was initiated in 1972 as a public health service demonstration project in five states. In 1978 it was made national and incorporated into an updated version of the OAA. Every state now became required to have a Long-Term-Care Ombudsman Program. The Administration on Aging was assigned the responsibility of administering this program. The program was significantly expanded and strengthened by further amendments to the OAA during the following years (e.g. Title VII §712 added to OAA in 1992, corresponding to USC 42 §3058g, “State Long-Term Care Ombudsman Program”).
The OAA has been incorporated into the United States Code as Title 42, Chapter 35. It may be found here: http://www.law.cornell.edu/uscode/html/uscode42/usc_sup_01_42_10_35.html
Specific provisions regarding the Long-Term-Care Ombudsman Program are contained in Section 3058g and may be found here:
http://www.law.cornell.edu/uscode/html/uscode42/usc_sec_42_00003058---g000-.html
Do not confuse the United States Code (USC) with the Code of Federal Regulations (CFR). The USC contains the orignal statutes, while the CFR contains the corresponding regulations implementing those statutes. Thus USC Title 42 contains both the Older Americans Act and the Federal Nursing Home Reform Act, and CFR Title 42 contains the regulations applying the law in practice. The regulations in CFR Title 42 were written by the Centers for Medicare and Medicaid Services. The New York State nursing home regulations (contained in 10 NYCRR) were written by the New York State Department of Health.
The Administration on Aging web site contains further information on the OAA including a link to the act itself:
http://www.aoa.gov/AoA_programs/OAA/
2. The Federal Nursing Home Reform Act
This is the next landmark federal legislation regarding nursing homes, passed during the Reagan Administration. It is actually Title IV, Subtitle C of a much larger piece of legislation, the Omnibus Budget Reconciliation Act of 1987 (known affectionately as “OBRA 87”). It provides minimum standards for nursing homes.
The Federal Nursing Home Reform Act (FNRA) constitutes the most important and comprehensive federal legislation governing nursing homes. It also defined the role of the Ombudsman more clearly. The FNRA was incoporated into the United States Code as 42 USC §1395i-3 and §1396 r:
https://www.law.cornell.edu/uscode/text/42/1395i-3
https://www.law.cornell.edu/uscode/text/42/1396r
Most important for the Ombudsman are the regluations implementing the FNRA, to which we have already referred.
3. The CMS State Operations Manual
According to the CMS web site, “The Centers for Medicare & Medicaid Services (CMS) is a branch of the U.S. Department of Health and Human Services. CMS is the federal agency which administers Medicare, Medicaid, and the Children’s Health Insurance Program. Provides information for health professionals, regional governments, and consumers. Additional information regarding CMS and its programs is available at http://www.cms.hhs.gov/.”
The State Operations Manual (SOM) contains regulations for hospitals, hospices, and nursing homes regarding Medicare and Medicaid compliance. It describes in detail the role of state health agencies (such as the New York State Department of Health) in determining and monitoring compliance with federal standards. The full SOM can be found here:
http://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Internet-Only-Manuals-IOMs-Items/CMS1201984.html
For the Ombudsman, the most important part of the SOM is Appendix PP, which contains the guidelines for state surveyors. This Appendix is structured as a commentary on the CMS regulations as codified in CFR Title 42 Part 483 described above, and it offers guidance on how these regulations should be interpreted. It also lists all of the F-tags, which are the codes that state surveyors use to report infractions. (The “F” stands for “Federal”; these are tags to specific provisions in federal law.) Nursing home administrations know about these because they are part of the annual survey process.
You can search for F-tags and find a complete list of them here:
http://www.careplans.com/pages/master_ftag/default.aspx
Additional useful references to the Older Americans Act, the Federal Nursing Home Reform Act, and the Code of Federal Rebulations may be found at these links:
http://ltcombudsman.org/library/fed_laws
https://www.gpo.gov/fdsys/pkg/CFR-2002-title42-vol1/content-detail.html
New York State Regulations
Title 10 of the New York Compilation of Rules and Regulations (NYCRR) covers everything concerning the Department of Health. Parts 410-415 in Title 10 contain the New York State regulations pertaining to nursing homes:
https://regs.health.ny.gov/volume-c-title-10/869966194/article-3-residential-care-facilities
For the Ombudsman, the most important sections are Part 411, Duty of the Operator:
https://regs.health.ny.gov/content/section-4111-duty-operator
and Part 415, Minimum Standards:
https://regs.health.ny.gov/volume-c-title-10/1994584135/part-415-nursing-homes-minimum-standards
In addition to the actual codified New York State law, the NYS Department of Health has a useful brochure, “Your Rights as a Nursing Home Resident in New York State,” that you can download here:
http://www.health.ny.gov/facilities/nursing/rights/docs/your_rights_as_a_nursing_home_resident.pdf
This brochure is a very clear summary of New York State law that every nursing home resident and/or family member should have.
Finally, there is another valuable body of information in the “Dear Administrator Letters” available at http://www.health.ny.gov/professionals/nursing_home_administrator/letters.htm#dal. The New York State Department of Health issues these directives periodically to clarify and/or update selected regulatory issues. Two in particular that I find myself using very frequently are DAL-04-06 on family councils, and DAL-04-02 on discharge policy.
Some Specific Applications
Following are references in the regulations to a few common issues that Ombudsmen are likely to encounter. Using the tools provided in this article, the Ombudsman can easily retrieve the text of any of these regulations if needed.
Here is a list of the major acronyms for purposes of review:
| CFR | = Code of Federal Regulations | |
| CMS | = Center for Medicare and Medicaid Services | |
| FNRA | = Federal Nursing Home Reform Act (1987) | |
| HIPAA | = Health Insurance Portability and Accountability Act (1996) | |
| NYCRR | = New York Compilation of Rules and Regulations | |
| OAA | = Older Americans Act (1965/2006) | |
| SOM | = State Operations Manual | |
| USC | = United States Code |
1. Ombudsman Access to Nursing Facility
The Long Term Care Ombudsman must be granted access to the nursing home.
Federal Regulations:
USC Title 42 Section 3058g Paragraph (b)(1)(A) (Procedures for Access).
CFR Title 42 Part 483 Section 10 Paragraph (f)(4)(i)(C) (Residents’ Rights).
NY State Regulations:
NYCRR Title 10 Part 411 Section 1 Paragraph (a) (Duty of the Operator).
2. Noninterference
The facility cannot interfere in any way with the performance of the Ombudsman’s prescribed duties.
Federal Regulations:
USC Title 42 Section 3058g Paragraph (j)(1) (Procedures for Access).
NY State Regulations:
NYCRR Title 10 Part 411 Section 1 Paragraph (a) (Duty of the Operator).
3. Public Posting of Ombudsman Information
Contact information for the State Ombudsman Program must be publicly displayed.
Federal Regulations:
CFR Title 42 Part 483 Section 10 Paragraphs (g)(5)(i) [see also (g)(4)(i)(C) and (g)(4)(ii)] (Residents’ Rights).
4. Ombudsmen and HIPAA
The Ombudsman’s Office is designated as a Health Oversight Agency and thus exempt from the restrictions of HIPAA. With the resident’s permission, the Ombudsman must be given access to the resident’s medical record and information about the resident’s case.
Federal Regulations:
USC Title 42 Section 3058g Paragraph (b)(1)(B) (Procedures for Access).
CFR Title 42 Part 483 Section 10 Paragraph (h)(3)(ii).
Information Memorandum, Administration on Aging, 2/4/2003:
This memorandum issued by the Administration on Aging contains a detailed summary of federal regulations regarding HIPAA and the work of the long-term-care Ombudsman. It can be found here:
https://aoa.acl.gov/AoA_Programs/OAA/Aging_Network/IM/docs/Info_Memoradum_%20HIPAA.pdf
NY State Regulations:
NYCRR Title 10 Part 411 Section 1 Paragraph (c) (Duty of the Operator).
5. Resident and Family Councils
Federal law provides certain safeguards for resident and family councils in the facility. In New York State every nursing home is required to establish a residents’ council.
Federal Regulations:
CFR Title 42 Part 483 Section 10 Paragraph (f)(5) (Residents’ Rights).
NY State Regulations:
NYCRR Title 10 Part 415 Section 3 Paragraphs (d)(1)(i) and (f)(4) (Residents’ Rights).
NYCRR Title 10 Part 415 Section 5 Paragraph (g)(1)(xii) (Quality of Life).
NYCRR Title 10 Part 415 Section 26 Paragraphs (a)(1)(ii), (a)(4)(iii), (b)(8), and (b)(15) (Organization and Administration).
Summary of New York State Family Council Legislation:
http://www.health.ny.gov/professionals/nursing_home_administrator/docs/dal_04-06_family_council.pdf
Appendix:
New York State Adult Home Regulations
There are no federal regulations governing adult homes. All relevant regulations regarding adult care facilities are to be found at the state level. For New York State these regulations are contained in Title 18 SubChapter D of the New York Code of Rules and Regulations (NYCRR):
https://regs.health.ny.gov/volume-b-1-title-18/1413515569/subchapter-d-adult-care-facilities
Here are the major headings:
Part 485: Adult Care Facilities, General Provisions (Note: Section 485.13 covers the role of the Ombudsman)
https://regs.health.ny.gov/volume-b-1-title-18/2004847564/part-485-general-provisions
Part 486: Inspection and Enforcement
https://regs.health.ny.gov/content/part-486-inspection-and-enforcement
Part 487: Standards for Adult Homes
https://regs.health.ny.gov/volume-b-1-title-18/1963261299/part-487-standards-adult-homes
Part 488: Standards for Enriched Housing
https://regs.health.ny.gov/volume-b-1-title-18/886358382/part-488-adult-care-facilities-standards-enriched-housing
Part 490: Adult Residences
https://regs.health.ny.gov/content/part-490-standards-residences-adults
Part 491: Adult Shelters
https://regs.health.ny.gov/content/part-491-shelters-adults-otda
Part 494: Assisted Living Programs
https://regs.health.ny.gov/content/part-494-assisted-living-program
(See also Title 18 Part 505.35:
https://regs.health.ny.gov/content/section-50535-assisted-living-programs )
Additional resources for adult care facilities may be found here:
https://www.health.ny.gov/facilities/adult_care/
In particular, see Article 7 Title 2 of the New York State Social Services Law: “Residential Programs for Adults” (contains regulations for the rights of residents in adult care facilities - scroll down to “SOS - Social Services” for the link):
http://public.leginfo.state.ny.us/lawssrch.cgi?NVLWO:
Further information on rules governing Assisted Living Programs (which accept Medicaid and SSI) and Assisted Living Residences (which do not) may be found here:
http://wnylc.com/health/entry/150/