Kentucky nursing-home residents do not surrender their legal rights when they enter a facility.
They have rights concerning dignity, abuse, restraints, privacy, communication, personal property, medical information, grievances, transfers, family notification, and other parts of everyday life.
Kentucky nursing-home residents do not surrender their legal rights when they enter a facility.
And Kentucky is unusual in one important respect:
KRS 216.515 gives residents a specific statutory cause of action when certain rights are violated.
That sounds straightforward.
It is not.
Kentucky law treats different residents’ rights claims differently. Some may survive the resident’s death. Others do not. Some may be governed by a one-year limitations period. Others may fall under a five-year period but disappear when the resident dies.
That distinction is one of the most important—and most frequently misunderstood—parts of Kentucky nursing-home litigation.
Two Different Bodies of Law Protect Kentucky Nursing Home Residents
There are two major layers of protection.
The first is federal nursing-home law.
The second is Kentucky’s Residents’ Rights Act, KRS 216.515.
They overlap, but they do not work the same way.
Understanding that difference matters.
Federal Nursing Home Rights
Congress enacted the Federal Nursing Home Reform Act as part of the Omnibus Budget Reconciliation Act of 1987.
The statute and its implementing regulations establish extensive requirements for nursing homes participating in Medicare and Medicaid.
Federal law addresses matters such as:
- freedom from abuse and neglect;
- unnecessary restraints;
- resident assessment;
- care planning;
- quality of care;
- dignity;
- transfers and discharges;
- sufficient nursing services;
- resident grievances; and
- other protections affecting daily life and medical care.
The detailed federal nursing-home regulations appear primarily in 42 C.F.R. Part 483.
These rules matter in almost every serious nursing-home case.
But there is an important distinction between a federal regulatory requirement and a private lawsuit for damages.
What Talevski Actually Means
In 2023, the United States Supreme Court decided Health & Hospital Corporation of Marion County v. Talevski.
The case involved a nursing home owned through a county government entity in Indiana.
The Supreme Court held that two particular rights created by the Federal Nursing Home Reform Act—the right to be free from certain unnecessary restraints and specified transfer/discharge protections—could be enforced through 42 U.S.C. §1983.
That was an important decision.
But it does not mean that every resident can sue every private nursing home under §1983 for violating a federal regulation.
Section 1983 is a remedy against persons acting under color of state law.
A privately owned nursing home does not ordinarily become a state actor simply because it accepts Medicare or Medicaid, is licensed by the state, or is heavily regulated.
So for an ordinary privately owned Kentucky nursing home, Talevski is not a magic federal cause of action.
Federal regulations still matter enormously.
They help define what participating nursing homes are required to do. They can provide important context in evaluating whether care was appropriate. Surveyors use them. Experts know them. Lawyers use them when reconstructing what should have occurred.
But Kentucky’s own residents’ rights statute is often the more direct source of a private statutory claim against the facility.
Kentucky’s Nursing Home Residents’ Rights Act
Kentucky enacted its own statutory protections for residents of long-term care facilities.
The heart of that law is KRS 216.515.
The statute contains 26 subsections addressing numerous rights and facility obligations.
Among them are rights concerning:
- information about available services and charges;
- transfer and discharge;
- the ability to voice grievances without retaliation;
- freedom from mental and physical abuse;
- freedom from unauthorized chemical or physical restraints;
- confidentiality of medical and personal records;
- management of personal funds;
- privacy with a spouse;
- private communication and mail;
- personal clothing;
- participation in social and religious activities;
- privacy during personal care;
- choice of physician;
- dignity and individuality;
- information concerning the resident’s medical condition;
- assistance with hygiene and grooming;
- telephone access;
- notification of family or responsible parties after accidents, illnesses, unexplained absences, or unusual events; and
- access to facility inspection reports.
Those are not suggestions.
They are rights written into Kentucky law.
KRS 216.515(26): The Enforcement Provision
Subsection 26 is where Kentucky law becomes particularly important.
It says that a resident whose statutory rights have been deprived or infringed has a cause of action against the facility responsible for the violation.
The action may seek enforcement of the right and recovery of actual and punitive damages.
A prevailing plaintiff may also be entitled to reasonable attorney’s fees and costs.
That makes KRS 216.515 different from a regulation that merely tells a licensing agency how a facility should operate.
Kentucky created an express civil remedy.
But that remedy comes with traps.
The biggest one is Overstreet.
Overstreet v. Kindred: The Kentucky Case Families Need to Understand
In 2015, the Kentucky Supreme Court decided Overstreet v. Kindred Nursing Centers Limited Partnership.
The case dealt with two questions:
How long does someone have to bring a KRS 216.515 claim?
and
What happens to that claim when the resident dies?
The Court did not treat every residents’ rights claim the same.
Instead, it divided them based on the nature of the right being enforced.
That distinction matters enormously.
Category One: A Residents’ Rights Claim That Is Really a Traditional Personal-Injury Claim
KRS 216.515(6) protects residents from mental and physical abuse.
But when the alleged violation is essentially the same injury that could have been pursued under traditional negligence or personal-injury law, the Kentucky Supreme Court held that the statute did not create a brand-new theory of liability.
The right already existed at common law.
Therefore, to the extent the claim seeks recovery for traditional personal injury, Overstreet held that the one-year limitations period applicable to personal-injury claims applies.
These types of personal-injury claims may also survive the resident’s death under Kentucky’s survivorship statute, subject to the applicable limitations rules.
That is one side of Overstreet.
The other side is more unusual.
Category Two: Rights That Exist Only Because KRS 216.515 Created Them
Some rights in KRS 216.515 are different.
There was no traditional common-law claim for failing to give someone telephone access.
There was no common-law tort specifically guaranteeing a nursing-home resident the right to receive inspection reports or to be suitably dressed.
Those are rights the Kentucky General Assembly created by statute.
For claims based on rights that exist exclusively because KRS 216.515 created them, Overstreet held that Kentucky’s five-year limitations period for liabilities created by statute may apply.
At first glance, five years sounds generous.
Then comes the problem.
Purely Statutory Residents’ Rights Claims Do Not Survive the Resident’s Death
This is the part of Overstreet that can change an entire case.
The Kentucky Supreme Court held that claims based solely on rights created by KRS 216.515 must be brought during the resident’s lifetime by the resident or the resident’s guardian.
Those purely statutory claims do not survive the resident’s death.
So a claim can theoretically have a five-year statute of limitations and still disappear tomorrow if the resident dies today.
That sounds strange.
But that is the law Overstreet produced.
The practical lesson is simple:
Five years does not necessarily mean you have five years.
Why Timing Matters So Much
A family may believe it has plenty of time.
That can be dangerous.
If the claim is really a traditional injury claim, a one-year limitations period may apply.
If the claim involves a purely statutory KRS 216.515 right, the resident’s death may extinguish that particular statutory claim even though five years have not passed.
That is why nursing-home residents’ rights cases should be evaluated early.
The question is not merely:
When did the injury happen?
It may also be:
What right was violated?
Was that right already recognized at common law?
Is the resident still living?
Is there a guardian?
What other negligence, wrongful-death, or survivorship claims exist?
Those are different questions.
A Resident’s Death Does Not Mean Every Claim Is Gone
This distinction is important.
Overstreet does not say that the death of a nursing-home resident destroys every claim.
Traditional negligence and personal-injury claims may survive.
Kentucky wrongful-death law may provide separate claims when negligence causes death.
Claims based on personal injury that fall within Kentucky’s survivorship statute may also continue through the estate.
What may disappear are claims based solely on rights that exist because KRS 216.515 created them.
That difference can determine what causes of action remain available.
Residents’ Rights Claims Are Not the Same as Negligence Claims
A KRS 216.515 claim and a negligence claim can arise from the same conduct, but they are not necessarily identical.
For example, suppose a resident is left in a soiled bed for hours.
That conduct may raise questions concerning:
- dignity;
- hygiene;
- neglect;
- staffing;
- supervision; and
- whether the resident suffered a physical injury.
Some of those issues may support traditional negligence claims.
Others may implicate specific statutory rights.
A careful nursing-home case should identify each separately rather than simply calling everything “negligence.”
Residents’ Rights Can Matter Even Without a Catastrophic Injury
Not every statutory violation results in a broken hip, pressure injury, hospitalization, or death.
Kentucky’s statute protects things that matter because residents remain human beings.
Dignity matters.
Privacy matters.
Being able to communicate with family matters.
Being told what happened matters.
Freedom from improper restraints matters.
The right to complain without retaliation matters.
The fact that an injury is difficult to measure financially does not mean the right was meaningless.
That is one reason subsection 26’s remedy—including its provision concerning attorney’s fees—matters.
What Evidence Can Prove a Residents’ Rights Violation?
The answer depends on the right involved.
Evidence may include:
- the resident’s medical chart;
- Minimum Data Set assessments;
- care plans;
- nursing notes;
- CNA records;
- staffing records;
- grievance records;
- incident reports;
- admission paperwork;
- transfer and discharge notices;
- physician orders;
- restraint documentation;
- photographs;
- family communications;
- facility policies;
- survey reports;
- witness testimony;
- corporate records; and
- testimony from the resident.
A residents’ rights case can sometimes turn on records that would receive little attention in an ordinary medical-negligence case.
Ross Mann Has Actually Tried Kentucky Residents’ Rights Claims
Ross Mann has obtained two seven-figure Kentucky jury verdicts involving KRS 216.515 residents’ rights claims.
Many Kentucky law firms advertise nursing-home cases.
Very few lawyers have actually tried KRS 216.515 residents’ rights claims to a jury.
Ross Mann has.
The Eliza Jennings Case — Madison County
In 2015, Ross served as counsel in the case of Eliza Jennings, a 94-year-old resident of a Berea long-term care facility.
The evidence at trial included severe pressure injuries and failures involving required care.
The jury returned an $18 million verdict, consisting of $8.5 million in compensatory damages and $9.5 million in punitive damages.
Then Kentucky nursing-home law changed.
While post-trial proceedings were underway, the Kentucky Supreme Court decided Overstreet.
The residents’ rights rulings affected the case and ultimately resulted in a new trial concerning those claims.
Ross was not reading about Overstreet years later in a case summary.
He was litigating a Kentucky residents’ rights case when the Kentucky Supreme Court changed the law governing those claims.
That experience matters.
The Cecil Gary Case — McCracken County
In 2017, Ross tried the Cecil Gary nursing-home case in Paducah.
The jury returned a $28.55 million verdict.
That verdict included approximately $1.05 million specifically for violations of KRS 216.515 residents’ rights.
By then, Overstreet was the controlling law.
The residents’ rights claims had to be litigated within that framework.
Those experiences are one reason Ross Mann Nursing Home and Medical Negligence Lawyers approaches statutory residents’ rights claims differently from ordinary negligence claims.
What Families Should Do If They Believe a Resident’s Rights Were Violated
Do not assume that every nursing-home case is simply a negligence claim.
And do not assume that every statutory claim can be brought after the resident dies.
Preserve what you have.
That may include:
- photographs;
- videos;
- text messages;
- emails;
- admission documents;
- grievance correspondence;
- transfer paperwork;
- care-plan documents; and
- notes of what the resident or family observed.
Then have the legal issues evaluated promptly.
The correct analysis may depend on the specific right involved and whether that right comes from common law, KRS 216.515, federal law, or more than one source.
Frequently Asked Questions About Kentucky Nursing Home Residents’ Rights
Can I sue a nursing home for violating KRS 216.515?
KRS 216.515(26) expressly provides a cause of action against a facility responsible for depriving or infringing a resident’s statutory rights. The remedies can include actual and punitive damages, and a prevailing plaintiff may be entitled to attorney’s fees and costs.
How long do I have to bring a residents’ rights claim?
There is no single answer for every KRS 216.515 claim.
Under Overstreet, claims that are essentially traditional personal-injury claims may be subject to a one-year limitations period. Claims based on liabilities created exclusively by the statute may fall within a five-year limitations period.
The correct deadline depends on the nature of the claim.
Can a residents’ rights claim be brought after the resident dies?
Some can.
Traditional personal-injury claims may survive under Kentucky law.
But Overstreet holds that claims based exclusively on rights created by KRS 216.515 must be brought during the resident’s lifetime by the resident or guardian and do not survive death.
Does Talevski allow me to sue a private nursing home under federal law?
Not merely because the nursing home participates in Medicare or Medicaid.
Talevski was a §1983 case involving a county-owned nursing home. Section 1983 requires action under color of state law. A privately owned nursing home generally does not become a state actor simply because it receives government reimbursement or is heavily regulated.
Can a guardian bring a KRS 216.515 claim?
Yes. Subsection 26 expressly provides that the action may be brought by the resident or the resident’s guardian.
Talk to a Kentucky Nursing Home Residents’ Rights Lawyer
Kentucky’s residents’ rights statute is powerful.
It is also unusually technical.
A claim may survive death—or disappear with it.
A one-year statute may apply—or a five-year statute may apply.
The answer depends on what right was violated and what kind of claim the law recognizes.
Ross Mann Nursing Home and Medical Negligence Lawyers has actually litigated KRS 216.515 residents’ rights claims before Kentucky juries.
If you believe someone you love has been abused, neglected, restrained improperly, denied dignity, denied required notice, or otherwise had their rights violated in a Kentucky long-term care facility, contact us.
Call (859) 413-3900 for a free consultation.
Past results do not guarantee future outcomes.