Practice Areas

Ohio State Courts Agree that the Federal Nursing Home Regulations Do Not Create a Private Cause of Action for Nursing Home Residents

Plaintiffs have recently alleged that a violation of the Federal Nursing Home Regulations constitutes a private cause of action of negligence per se. Plaintiffs have attempted to manufacture this claim despite the clear and concise language set forth in Ohio.

Specifically, any assertion that the Federal Nursing Home Regulations, as found in 42 C.F.R. §483, et seq., pertain to more than compliance procedures for the administration of Medicare/Medicaid funding is unsupported by relevant case law and contrary to the doctrine of interpretation. Harmon v. St. Augustine Manor, Case No. 1:06CV2845 , 4-5 (N.D. Ohio 2007). "It is a general doctrine of statutory construction adopted by the United States Supreme Court that the rulemaking power granted to an administrative agency charged with the administration of a federal statute is not the power to make law. Rather, it is the power to adopt regulations to carry into effect the will of Congress expressed by the statute." Id. (Internal quotations omit-ted). The federal regulations do not have any probative value, because the federal regulations contained in 42 C.F.R. §483, et seq. contemplate administrative rather than judicial enforcement. Harmon, supra.

Even if Plaintiff's Complaint alleges a violation of the Medicaid/Medicare regulations, particularly 42 C.F.R. §483, et seq., concerning patient's rights, no private remedy is implied on behalf of a recipient under the Medicaid/Medicare Acts and the regulations promulgated under it. Harmon, citing Fuzie v. Manor Care, Inc., 461 F. Supp. 689 (N.D. Ohio 1977). "The Medicaid Act and the regulations contemplate administrative rather than judicial enforcement." Harmon, at 5. (Emphasis added).

"A private right of action, utilized to enforce specific, limited portions of federal regulations on an ad hoc basis would circumvent the responsibility of the state to administer its plan in an organized manner 'consistent with simplicity of administration and the best interests of the recipients,' *** transferring the primary obligation in such cases from the administrative personnel intended to bear it to the federal courts." Fuzie, at 697. "A provision for a private right of action is absent from the Medicaid Act." Harmon, at 7.

Other jurisdictions have also determined that 42 C.F.R. §483, et seq. does not contemplate a private right of action or create a standard of care. Brown v. Sun Healthcare Group, 476 F. Supp. 2d 848 (E.D. Tenn. 2007) (Federal Nursing Home Bill of Rights, 42 C.F.R. 483.10 et seq., does not provide for an independent cause of action and an alleged violation of the federal regulations does not provide evidence of a breach of the standard of care required in a nursing/malpractice action. The federal regulations are too vague and general to constitute a standard of care by which a jury or court can judge the acts or omissions of a healthcare provider and do not form the basis for a negligence per se claim); Brogdon v. National Healthcare, 103 F. Supp. 2d 1322 (N.D. Ga. 2000) (Medicare and Medicaid Acts do not explicitly or impliedly create a private cause of action for nursing home patients to sue nursing homes); Wheat v. Mass, 994 F.2d 273 (5th Cir. 1993) (The Medicaid Act does not furnish substantive rights enforceable in civil suits between private parties, and the court's power to enforce the statute is limited to adjudication of whether a state properly administers federal Medicaid funds).

Recently, two Ohio state trial court judges con-firmed the same. Specifically, in Summit County, Judge Teodosio held that 42 C.F.R. §483, et seq. may not be used to establish negligence per se or to create a separate cause of action. 1 Further, in Stark County, Judge Farmer held that 42 C.F.R. §483, et seq. and the Medicaid/Medicare acts do not create a private cause of action or standard of care for nursing home residents. 2 These Ohio state courts have recognized that the Federal Nursing Home Regulations merely contemplate administrative rather than judicial enforcement.

In addition, the probative value of allowing testimony at trial related to the Federal Nursing Home Regulations would be substantially outweighed by the danger of unfair prejudice, confusion of the issues and/or of misleading the jury, and therefore, must not be permitted pursuant to Evid. R. 403(A). As such, plaintiff's cannot bring a separate cause of action under the Federal Nursing Home Regulations, as found in 42 C.F.R. §483, et seq. and the Medicaid/Medicare acts, because the regulations do not create a private cause of action or standard of care for nursing home residents

1 Kimberly Hull, Administratrix of the Estate of Barbara Hull, De-ceased vs. Cuyahoga Falls Country Place, et al. , Summit County Common Pleas Court Case No. CV-2011-09-5067 (April 2013).

2 Diana Turnbull, Administratrix of the Estate of Virginia Sawyer, De-ceased vs. Altercare of Alliance Center for Rehab & Nursing Care, Inc., et al. , Stark County Common Pleas Court Case No. 2013CV00548 (August 2013).