The "Residents' Bill of Rights" is NOT the Residents'-- Federal Nursing Home Act Creates NO Private Causes of Action

A Federal District Court has ruled that the Federal Nursing Home Reform Act, which among other things requires the provision of certain services to each resident, does not create a private cause of action.  The Act is most widely known for creating the Residents' Bill of Rights, but apparently, the right to seek redress for injury or loss resulting from the failure of a nursing home to enforce these rights is not among them.

The Plaintiff, Joanne Fiers' filed a claim after the death of her brother, Richard Bendel, while he was a resident at Lakeview Health Center in West Salem, Wisconsin. Bendel, suffered from severe dementia and was a known elopement risk; he therefore required increased supervision.  Bendell left the facility unattended, fell and suffered injuries that led to his death in February 2014.  A certified nursing assistant watched Bendel walking toward one of the facilities exits, but failed to do anything to prevent his leaving.  Two other certified nursing assistants allegedly ignored an audible door alarm as Bendel exited the facility. After he exited, Bendel walked across a roadway, tripped on a curb, and fell, sustaining critical injuries from which he would succumb four days later.  

Several days later, the Wisconsin Department of Health and Human Services investigated the "elopement incident."  The facility was cited with an "Immediate Jeapardy Violation."  

In addition to seeking compensatory and punitive damages for pain and suffering as a result of the nursing home's negligence, Fiers also alleged that Lakeview violated Bendel's resident rights under Section 1983, rights set forth in the  Federal Nursing Home Reform Act (which includes but is not limited to the Residents' Bill of Rights).

The U.S. District Court for the Western District of Wisconsin ruled Section 1983 does not create a right of redress because FNHRA does not create private, enforceable rights for residents, and further that Fiers' complaint failed to identify specifically the rights that Lakeview violated. In order to allege a deprivation of rights under the FNHRA, the court ruled that Fiers was required to show that FNHRA was meant to benefit residents in a way that was not  “vague and amorphous."  No penumbra of a right to adequate health care, or a logical extension of rights and remedies, is countenanced by the court's opinion.

The Act, the court explained, was written to describe what a nursing home has to do to receive government funding, not what rights it is required to provide residents. Apparently the "Residents' Bill of Rights," would have more aptly been called, the "Nursing Homes' Obligations For Federal Funding Without Regard to Residents' Rights, Privileges, or Redress."  Yes, that is much clearer.  

The court granted Lakeview's motion to dismiss Fiers'  Section 1983 complaint.

The Plaintiff will, of course, continue to pursue her claims for negligence against the facility, but will have to do so in state, rather than federal court. In some states, citations against a nursing home for violating standards of care are not admissible in court.        

To read the court's opinion, go here.

To read the McKnight's article about the case, go here.