Nursing homes in the United States operate under one of the most detailed regulatory regimes in American health care. Federal law sets standards of care, state agencies inspect for compliance, and residents hold a statutory set of rights. The design assumes that written duties, backed by periodic inspection, will protect people who cannot easily protect themselves.
Government audits spanning decades, a recent round of deregulation, and new research on ownership show where that assumption fails. The failures follow a pattern, and the pattern explains why residents and their families so often end up carrying the burden of enforcement.
A Duty Written Into Federal Law
The Federal Nursing Home Reform Act, enacted in 1987, conditions Medicare and Medicaid payment on facilities protecting residents’ health, safety, and dignity. In 2023 the Supreme Court gave its rights new force. In Health and Hospital Corporation of Marion County v. Talevski, the Court held that two provisions, one barring unnecessary chemical restraints and one requiring notice before discharge, create rights residents can enforce in court.
The ruling has limits. The facility in that case was owned by a county government, and the civil rights statute used to sue it, Section 1983, reaches only government actors. Roughly 70 percent of nursing homes are for-profit and only about 7 percent are government-owned, according to the California Health Care Foundation. For most residents, the practical remedies lie elsewhere.
Political philosophy explains why the stakes are high. Robert Goodin’s Protecting the Vulnerable grounds special responsibilities in vulnerability itself: people who depend on our actions and choices have claims on us even without a promise. Nursing home residents depend on staff for food, medication, and mobility every day.
Critics of vulnerability language warn that it can present weakness as an inherent trait and distract from the conditions that produce it. In a nursing home, those conditions include staffing levels, ownership, and the quality of inspection. Where institutions produce vulnerability, responsibility for reducing it falls on institutions too.
Inspections That Miss Harm
The main enforcement tool is the state survey. The stakes are public: according to a 2010 update from the Government Accountability Office (GAO), combined Medicare and Medicaid payments for nursing home services were about $82 billion in 2008, and every home that takes that money must be inspected at least once every 15 months.
The pattern of failure is old. GAO reports going back to 1998 show that state surveyors, who inspect on behalf of the federal government, sometimes understate the seriousness of care problems because they miss deficiencies. The weakness has persisted across more than a decade of audits.
In its 2008 report, GAO found that 17.8 percent of homes were cited for actual harm or immediate jeopardy in fiscal year 2007. Federal resurveys from 2002 through 2007 found that state inspectors had missed at least one serious deficiency in 14.5 percent of surveys, and in nine states the share reached 25 percent or more.
Why Inspectors Miss Harm
A 2009 GAO study identified the causes. Nearly three-quarters of state survey directors said they always or frequently faced workforce shortages, and surveyors with under two years of experience sometimes contributed to understatement. Directors from seven states also said pressure from the industry or legislators may have compromised the process, although GAO described those cases as isolated.
The same study found weaknesses in how deficiencies are handled once inspectors find them. Some states had an official or unofficial practice of not citing certain deficiencies, a practice reported by 40 percent of surveyors in five states. More than 40 percent of surveyors in four states said informal dispute resolution favored operators’ interests over resident welfare.
Michael Lipsky’s Street-Level Bureaucracy explains why such gaps recur. Frontline public workers labor under heavy caseloads, ambiguous goals, and inadequate resources, and they cope by rationing attention and routinizing their work. Survey agencies face the same logic when they must judge the quality of care in many homes with finite staff and time. What residents experience as policy is what inspectors have the capacity to see.
Abuse That Never Reaches an Inspector
Inspection depends on information, and information depends on facilities reporting what happens inside them. In 2019 the Office of Inspector General of the Department of Health and Human Services reviewed 37,607 emergency room claims for nursing home residents in 2016 that carried diagnosis codes flagged as high risk for abuse or neglect. It estimated that about one in five resulted from potential abuse or neglect, including injuries of unknown source.
The inspector general also found that facilities failed to report many of these incidents as federal rules require. The Centers for Medicare & Medicaid Services (CMS), which runs the program, did not require all incidents of potential abuse or neglect, or the related referrals to law enforcement, to be recorded in its tracking system. Several state agencies also failed to pass some substantiated abuse findings to local police.
The finding repeated an earlier warning. A 2017 audit by the same office found no evidence that 28 percent of the incidents it identified had been reported to the authorities, and it concluded that CMS lacked adequate procedures to identify and report such incidents.
How Common Is Abuse Inside Homes?
Rigorous data on abuse inside care facilities are limited. The World Health Organization reports that a review of recent studies found 64.2 percent of staff saying they had committed some form of abuse in the past year, including 32.5 percent for psychological abuse and 9.3 percent for physical abuse. Because the figures rest on staff self-reports, they signal scale and do not count substantiated cases.
Fear of retaliation compounds the problem. The review’s authors cite estimates that under-reporting of institutional abuse may reach 80 percent, because victims may be unable to communicate what happened or may fear repercussions. A resident who depends on the same staff for every meal has little room to complain, a dynamic that research on the hidden abuse of older women in domestic settings describes in similar terms.
Staffing Rules Come and Go
Staffing is the most direct lever over the quality of care, and it has been the most contested. A 2024 federal rule required 3.48 nursing hours per resident per day, including 0.55 from registered nurses and 2.45 from nurse aides, plus a registered nurse on site around the clock. A federal court in Texas struck down its core provisions in 2025.
Congress then intervened. A statute signed on July 4, 2025, Public Law 119-21, bars CMS from implementing or enforcing the staffing standards until September 30, 2034. In December 2025 the agency repealed them through an interim final rule, effective February 2, 2026.
The repeal restored the earlier, general requirement that facilities have enough nursing staff, and it left in place a facility assessment that obliges each home to plan staffing around its residents’ needs. The agency cited workforce shortages and the risk of closures in rural and tribal communities. Advocates for residents called the reversal the most significant setback for nursing home reform in decades.
The facility assessment now carries more weight. Without a numerical floor, the test for sufficient staffing is the home’s own assessment of its residents’ needs, which makes enforcement depend on documentation and on inspectors with the time to examine it.
Both sides of the dispute treat the nursing workforce as the binding constraint. Industry groups point to shortages, and resident advocates point to turnover and job quality. Scholarship on the devaluation of care work argues that societies reward technological innovation while underinvesting in the caregivers who sustain vulnerable people. A staffing floor addressed one symptom of that problem. Its removal leaves the incentive to economize on nursing time where it was.
Ownership and Incentives
Who owns a nursing home shapes what residents receive. In a study published in the Review of Financial Studies, economists Atul Gupta, Sabrina Howell, Constantine Yannelis, and Abhinav Gupta used patient-level Medicare data to examine private equity acquisitions of nursing homes. They found that private equity ownership increased mortality among Medicare patients by 11 percent, with declines in nurse staffing and compliance with care standards helping to explain the result.
The authors compared the same facilities before and after acquisition and used an instrumental variables strategy to separate the effect of ownership from the selection of facilities and patients. They describe nuanced effects, with adverse outcomes concentrated in a subset of patients, and their working paper documents a shift in operating costs toward non-patient items such as monitoring fees, interest, and lease payments.
The setting matters. The average nursing home draws roughly three-quarters of its revenue from government, the authors note, so the money at stake is largely public. The staffing result also connects the two debates. Private equity ownership was associated with fewer nursing staff, and the federal staffing floor that would have constrained that choice is gone.
When Civil Courts Become the Check
When administrative oversight falls short, the practical check on a private nursing home is civil litigation under state law. A lawsuit can reach what an inspection report cannot, including internal records, staff testimony, and damages large enough to change an owner’s calculations.
For families, the decision about pursuing a claim after a preventable death in a nursing home involves evidence, deadlines, and the identification of every party that may bear responsibility, from facility owners and management companies to staffing agencies. Filing deadlines vary by state, and records such as medical charts and incident reports become harder to obtain as time passes.
State law also decides who may sue and for what. It commonly distinguishes between a wrongful death action, brought for the losses of designated relatives, and a survival action, brought on behalf of the estate for the resident’s own suffering before death. The distinction affects who may file and which damages are available.
Arbitration clauses complicate this route. In 2019 CMS lifted a 2016 ban on pre-dispute binding arbitration agreements in nursing homes, in a final rule effective September 16, 2019. Facilities may not require residents to sign such an agreement as a condition of admission, and residents have 30 days to rescind it. A signed clause can still move a dispute from a public courtroom to a private forum.
Litigation also operates after the harm has occurred, and it reaches only the cases that families have the evidence, resources, and standing to bring. As a deterrent it complements inspection and cannot replace it. That limit is why the quality of public oversight still matters for every resident, including those whose families never file a claim.
What Accountability in Elder Care Requires
Political science offers a test for whether a system of oversight deserves the name. In Mark Bovens’s widely cited framework, accountability is a relationship in which an actor must explain and justify its conduct to a forum, the forum can question and pass judgment, and the actor may face consequences. In nursing homes, the facility is the actor, and inspectors, courts, and ombudsmen are the forums.
Measured against that standard, the weak points are visible. Inspectors cannot judge incidents that are never reported. The staffing rule, which would have given regulators a measurable standard to enforce, is gone. Courts remain open, but arbitration agreements can redirect disputes to a private forum.
The remedies follow from those weak points. The inspector general recommended that survey agencies record and track every incident of potential abuse or neglect, along with every referral to law enforcement. Such tracking would give inspectors the information that audits show they lack, and it would make unreported incidents harder to conceal.
Independent advocates add another layer. Congress created the state long-term care ombudsman program in 1978, and it remains the only federal program mandated to advocate with and for residents, according to Consumer Voice. In 2023 it investigated and resolved 202,894 complaints.
Public oversight of nursing homes works as one layer among several: inspectors able to see harm, reporting duties that are tracked and enforced, transparency about ownership, independent advocates, and courts open to residents and families. Each layer is weaker in practice than in law. When one thins, as the staffing standards did, the others carry more weight than they were built to bear.
