Practicing Situational Licensing in Adult Care Settings

Situational Licensing is the practice of evaluating the specific circumstances of an event

to determine whether the event does not conform to regulatory requirements, and, if it

does not, whether a corrective action plan is required to be produced in response to the

event. “Event” as used in this document means “a situation or occurrence that may not

conform to regulatory requirements.” Situational Licensing fits within the overall field of

regulatory compliance with a particular emphasis on measurement considerations. This

paper will provide the general measurement parameters of situational licensing.

Situational Licensing requires determining whether an event that does not conform to

regulatory requirements is “technically noncompliant” or “in violation.” An event that is

“technically noncompliant” does not conform to regulatory requirements but does not

require a corrective action plan1. An event that is “in violation” does not conform to

regulatory requirements and does require a corrective action plan.

Before examining how Situational Licensing can be applied in regulatory administration,

it is necessary to address the two different types of regulations.

Some regulations have a precise, quantifiable division point between a state of

compliance and a state of noncompliance: water is above the maximum allowable

temperature, or it is not; a form requiring signature was signed, or it was not; a medical

examination was completed within 10 days of admission, or it was not. We will call

1 Although a plan is not required, the licensee would be expected to correct the specific technical noncompliance identified.

1 | P a g e

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

12

these “bivalent regulations.” When I think about these types of regulations, I think in

terms of hard vs soft data as defined by legal staff or the difference between nominal

and ordinal measurement scaling. Do you think we should provide the different

contexts or say something along the lines of “in the past “bivalent regulations” could be

viewed as “hard” data or “nominal scaling”?

Other regulations have no precise division point and require some degree of qualitative

analysis to determine states of compliance or noncompliance: when is a floor

“unclean”? When isn’t an activities program “structured”? When has someone’s right to

privacy been violated? We will call these “multivalent regulations.” Again continuing my

thinking in the above paragraph, “multivalent regulations “in the past could be viewed as

“soft” data or “ordinal scaling”.

Measuring compliance with both types of regulations can be difficult because each lacks

the defining characteristic of the other. Bivalent regulations tend to be easier to

measure because of their precise division point, but it can be difficult for regulators to

allow for contextual circumstances that may be mitigating factors, e.g. water was

excessively hot, but only for a short time and due to circumstances completely outside

of the licensee’s control. It is much easier to consider context when measuring

compliance with multivalent regulations, but the absence of precise division points can

and does lead to subjectivity in measurement - what is “unclean” to the point of

noncompliance to one regulator may not be “unclean” to another. This is where ordinal

scaling via a Likert scale comes in handy where each of the levels can be specified

more clearly.

2 | P a g e

24

25

26

27

28

29

30

31

32

33

34

35

36

37

38

39

40

41

42

43

44

45

46

47

Distinguishing between bivalent and multivalent regulations is necessary because the

methodology for determining whether an event is “technically noncompliant” or “in

violation” – and by extension, whether a corrective action plan is required - is different

for each type of regulation. Extending this thinking to nominal and ordinal scaling, it also impacts

the types of analyses we can do because of this scaling, such as phi coefficients vs point-biserial

correlations.

Situational Licensing and Bivalent Regulations

Situational licensing of bivalent regulations means considering nonregulatory factors to

determine whether a given event is technically noncompliant or in violation even if it

falls on the “noncompliant” side of the regulation’s compliance-noncompliance division

point, e.g. there is a valid reason why a form wasn’t signed, but, in the end, it wasn’t

signed. Determining whether a noncompliance of a bivalent regulation is technically

noncompliant or in violation is based mostly2 based on an event’s frequency, severity,

and causality. Do you want to introduce risk assessment analysis here because the

issues of frequency, severity lead us in that direction?!

Frequency means the number of times the same noncompliance is identified.

Reviewing 10 records and finding one unsigned standardized form demonstrates low

frequency. Reviewing 10 reviewed records and finding 9 instances of the same

unsigned form demonstrates high frequency. The former is technically noncompliant.

The latter is in violation.

2 The word “mostly” is used to account for extraordinarily unusual situations not limited to regulatory administration.

3 | P a g e

48

49

50

51

52

53

54

55

56

57

58

59

60

61

62

63

64

65

66

67

68

69

70

71

34

Severity means the degree of harm to the person(s) in care that may result from an

event. Water that is excessively hot is more severe than an unsigned form because of

its immediate potential for significant physical harm.

Causality means the reason why an event occurred. If there is a functional system for

form completion and a demonstrable reason for why the system did not perform as

expected, e.g. one form was unsigned but all others reviewed were signed, the event is

technically noncompliant, not in violation. If there is no formal system in place for form

completion such that there is a good chance that future forms will also be unsigned, the

event is in violation.

It is very important to understand that neither frequency, severity, nor causality by itself

can determine technically noncompliant or in violation status. The determination must

be made by examining the totality of circumstances, which means evaluating the

relationship between the three factors in addition to evaluating each factor in on its own

merits. Unsigned forms do not pose an immediate health and safety risk (low severity),

but 10 unsigned forms resulting from an inefficient system is evidence of a violation,

whereas one unsigned form due to a failure to apply an otherwise-efficient system is

evidence of a technical noncompliance (causality and frequency). One sink with a hot

water temperature of 150o Fahrenheit due to the recent installation of a new water

heater demonstrates low frequency and explainable causality, but water temperature

that high will cause a third-degree burn after two seconds of exposure (severity). The

danger posed by the latter significantly outweighs the former two elements. On the

other hand, if water is not significantly higher that the allowable maximum when

4 | P a g e

72

73

74

75

76

77

78

79

80

81

82

83

84

85

86

87

88

89

90

91

92

93

94

95

measured during an inspection, and the provider performs weekly checks of water

temperature as a matter of policy, but a newly-installed water heater is set to heat water

to 200o Fahrenheit, the event may be technically noncompliant but is not a violation.

This is interesting but could be problematic. I would think that severity would be more

heavily weighted in any risk assessment. Frequency and causality impact the severity

but severity really does stand alone if there is a chance for morbidity or mortality. Let’s

talk this this through because it is a really difficult issue.

Situational Licensing and Multivalent Regulations

Situational licensing of multivalent regulations means evaluating the relationship

between the individuals’ environments, normative group dynamics in the licensed

setting, and the individual’s right to self-determination to determine whether an event is

technically noncompliant or in violation.

Environment means the circumstances or conditions by which an individual is

surrounded when in the licensed setting. For purposes of regulatory administration,

environmental factors include the type of licensed setting (e.g. a large facility or a one-

person home), the number of people served in the setting, the degree of control the

licensee has over the setting’s day-to-day operations, and similar factors.

Normative group dynamics are the patterns, traits, behaviors, and expectations involved

when people interact with one another in the licensed setting. This includes interaction

between individuals being served, the people serving the individuals, visitors, or anyone

5 | P a g e

96

97

98

99

100

101

102

103

104

105

106

107

108

109

110

111

112

113

114

115

116

117

118

119

else who has formal or informal involvement with the setting such that they are part

group interactions.

An individual’s right to self-determination refers to the concept that an individual has the

same right to control his own life through the freedom and authority to make choices

and decisions as that of someone who does not receive services in and of a licensed

setting. This will probably look very different in a child care setting, especially with

infants. I know this paper is for adult care, but let’s keep this in mind because I am sure

we will get questions about the applicability to other settings with much younger clients

where parents are the guardians and are the decision makers.

Totality of circumstance evaluation is critical when determining an event’s compliance

status related to a multivalent regulation. Environment, normative group dynamics, and

the right to self-determination are qualitative concepts that consist of many divergent

variables. However, there is a relatively simple means to connect the concepts for

totality of circumstance evaluations: comparing the atmosphere of the licensed setting

created by synergizing the three factors to the atmosphere of an unlicensed setting

where no formal services of any kind are provided, i.e. a “private residence.” For

purposes of this document, this comparison will be referred to as an “Analysis of

Everyday Life.” This is really important and needs additional explanation. A lot going

on here for the reader to grasp.

Here is a theoretical example of an Analysis of Everyday Life:

6 | P a g e

120

121

122

123

124

125

126

127

128

129

130

131

132

133

134

135

136

137

138

139

140

141

142

143

Setting A is a licensed “group home” for people with intellectual disabilities where three

people reside. Setting B is the private residence of two adult brothers with intellectual

disabilities and their parents. Setting C is a licensed “host home” where one person

with intellectual disabilities lives in the private home of a family of three.

In Setting A, the licensee has a great deal of control over the setting’s operation – how

the residence is kept clean and in good repair, what foods are served at meals, what

staff work at the setting and when they will work, etc. Normative group dynamics largely

evolved from the interaction of the three residents with each other and with staff. Two

of the residents lived at the home for 3 months while the third moved in last week.

There is regular direct support staff turnover although some have worked at the home

for several years. One of the residents is diagnosed with Prader-Willi syndrome and

cannot make independent decisions about eating without significantly compromising his

health; staff must store food items in a locked area and provide total supervision during

meals to regulate his food consumption. The other residents can make independent

decisions about when and how much to eat.

In Setting B, the home’s “operation,” i.e. the family’s manner of living, is such that

collective decisions are made about meals, major and minor household chores are

completed by shared division of labor, the brothers’ personal care needs are provided

by their parents and extended family, etc. The home’s normative group dynamics have

evolved into an interconnected tapestry after years of individual and shared life

experience, shared social values, respect for one another’s wishes, and so on. One of

the brothers is diagnosed with Prader-Willi syndrome and cannot make independent

7 | P a g e

144

145

146

147

148

149

150

151

152

153

154

155

156

157

158

159

160

161

162

163

164

165

166

167

decisions about eating without significantly compromising his health. His brother can

make independent decisions about when and how much to eat and enjoys helping his

brother remember that eating too much is dangerous. Additionally, the person with

Prader-Willi syndrome is always with a family member unless he is in his bedroom or

using the bathroom. I don’t understand why this home would be licensed since the

parents are present and making all the decisions?!

Setting C shares characteristics of both Setting A and Setting B. The licensee has

control over the setting’s “operation” such that it is responsible to ensure that the home

follows regulatory requirements, but decisions about meals, chores, etc. are made

collectively by the host family and the individual. The licensee’s staff do not live in the

home or help support the individual in daily life; the staffs’ roles are to support the

integration of the individual with the host family, arrange respite services to support the

host family, identify a new host home when necessary, and so on. The individual has

lived in the host home for two years; normative group dynamics have developed and

strengthened over time and the individual and host family’s lives are integrating

successfully. The individual is diagnosed with Prader-Willi syndrome and can’t make

independent decisions about eating without significantly compromising his health. The

host family stores food in a locked area and provides total supervision during meals to

regulate his food consumption.

During a recent inspection of Setting A, the regulator finds a small amount of dried urine

behind a commode used by residents and staff. Additionally, the individuals who do not

8 | P a g e

168

169

170

171

172

173

174

175

176

177

178

179

180

181

182

183

184

185

186

187

188

189

190

have Prader-Willi syndrome tell the regulator that they can’t access their food without

asking a staff person to unlock the food storage area.

The same regulator happens to be cousin to one of the people who does not have an

intellectual disability and lives in Setting B. He visits the home to eat dinner with the

family. While there, he uses the bathroom and happens to see a small amount of dried

urine behind a commode that is used by the entire family but mostly by the regulator’s

cousin who does not have an intellectual disability and whose bedroom is adjacent to

the bathroom in question. Later, during dinner, the regulator observes the individual

who is not diagnosed with Prader-Willi syndrome reminding his brother not to eat too

much.

The next day the regulator conducts an inspection at Setting C. He finds a small

amount of dried urine behind a commode that is used by the entire family but mostly by

the individual who shares his life with the host family, whose bedroom is adjacent to the

bathroom in question. When checking food storage practices at the home, he finds that

the family stores most of the food in a locked area. They also keep a small amount of

the individual’s preferred snack food in an unlocked area, so the individual may choose

when to eat and access the snack independently. The family replaces the snack food at

reasonable intervals throughout the day.

9 | P a g e

191

192

193

194

195

196

197

198

199

200

201

202

203

204

205

206

207

208

209

210

211

The same two questions must be answered for each setting: is the presence of urine

“unsanitary” such that is constitutes a violation, and do food storage practices violate

the individuals’ right to own and access private possessions3?

In Setting A, the licensee is responsible for keeping the setting clean. Cleaning is

performed by provider staff who also use the commode where the urine was found.

Normative dynamics are such that the relationship of each individual to his housemates

is more formal than people who are very familiar with one another, and the relationship

between individuals and staff is founded on the fact that staff are present primarily to

receive payment for their work. No one in the setting necessarily chose to be a member

of the “household.” The individual with Prader-Willi has been entirely stripped of his

right to possess and choose when to eat his food (albeit for a legitimate reason), and

the other individuals’ right to access their possessions, i.e. food, is compromised by the

licensee’s storing all food in a locked area.

In Setting B, the person or person responsible for cleaning is determined by the

household’s norms and preferences, as is the decision about when and how often the

area behind the commode is cleaned. The commode itself is mostly used by a single

household member who does not have a disability. The right of the individual with

Prader-Willi to access his own food and consume it as desired is not protected, but this

too has been a household norm for many years, as has his brother’s assistance with

supervising the individual.

3 Regulatory standards are applied to the private home in this scenario for comparison purposes only. OK, ignore my earlier comment!!

10 | P a g e

212

213

214

215

216

217

218

219

220

221

222

223

224

225

226

227

228

229

230

231

232

233

234

56

In Setting C, the person or person responsible for cleaning is determined by the

household’s norms and preferences, but how often the commode must be cleaned and

how clean the commode must be is determined by the licensee. Although most of the

individual with Prader-Willi’s food is not accessible to him, arrangements have been

made to offer maximum independence and choice when choosing what and when to

eat.

Comparison of everyday life determines that the urine in Setting A is unsanitary to the

point of violation. The licensee has failed to meet the obligation to keep the home clean

and has contributed to the individuals’ exposure to urine by allowing staff to use the

same bathroom. The formal relationships between the individuals and between the

individuals and staff raises the standard of expected cleanliness4. The multivalent

regulation requiring sanitary conditions in group homes has been violated, and a

corrective action plan is required.

Meanwhile, the urine in Setting B is an expected household norm; the regulator’s cousin

is a teenager who will only clean his toilet when his parents demand it, and neither

individual is regularly exposed to the teenager’s commode. The area may be

considered “unsanitary” by objective standards such that it should be cleaned, but the

household has collectively determined that the urine’s presence and when to clean it is

acceptable by individual choice. No hypothetical “corrective action plan” is “required.”

4 This could be compared to a person’s expectation of how clean a public restroom should be versus their personal accepted standards of cleanliness for his own restroom at home.

11 | P a g e

235

236

237

238

239

240

241

242

243

244

245

246

247

248

249

250

251

252

253

254

255

256

78

In Setting C, the household may agree that the urine is “undesirable” but does not think

that a small amount of dried urine to be a matter of consequence, i.e. “it’s no big deal.”

The presence of the urine in this case is technically noncompliant with the multivalent

regulation requiring sanitary conditions and must be cleaned, but does not require a

corrective action plan.

The right to possess and access private possessions is compromised for each

individual served in Setting A. The person with Prader-Willi has no access to food

unless the individual asks staff to provide it, and how promptly staff are able to respond

to the request is at least partially dependent on whether they are attending to other

duties when the request is made. The rights of the people who can have full and free

access to food are not protected, since all food is locked, and they too must ask staff to

provide it when it is desired. The multivalent regulation protecting the right to have

personal possessions and access them in private has been violated, and a corrective

action plan is required.

Although the individual in Setting B does not have full and free access to food and

cannot control when he eats, this practice is a long-standing and accepted household

norm such that no one feels that his rights have been violation. While the individual

who does not have Prader-Willi is also unable to independently access food when

desired because of his brother’s condition, he has accepted it as part of everyday life.

No hypothetical “corrective action plan” is “required.”

12 | P a g e

257

258

259

260

261

262

263

264

265

266

267

268

269

270

271

272

273

274

275

276

277

278

279

The individual in Setting C is also limited in his ability to independently access food, but

the host family has developed practices such that the individual is offered the maximum

degree of choice that can be made without seriously compromising his health. The

individual has no objection to this practice and does not feel that his rights have been

violated. The host home is technically noncompliant with the multivalent regulation

protecting the right to have personal possessions and access them in private but does

not require a corrective action plan.

The hypothetical scenario above does not mean to suggest that private homes are

always more “compliant” than host homes, or that host homes are always more

compliant than group homes. Making slight adjustments to the environments, normative

group dynamics, or the individuals’ abilities to make informed choices to any of the

above scenarios could significantly alter whether an event is requires formal corrective

action. My take-away from the above scenarios is that the more “formal” arrangement,

the higher the expectations for meeting “rules”.

Conclusion

Situational licensing is extremely different from how regulatory administration is typically

applied. Regulatory oversight agencies and regulators would require extensive training

in its application and may have to “unlearn” much of their existing formal and

experiential education. Multiple layers of administrative review would be required when

the practice is first implemented to ensure proper application and interrater reliability in

method. There may be legal concerns about defending adverse actions absent a

13 | P a g e

280

281

282

283

284

285

286

287

288

289

290

291

292

293

294

295

296

297

298

299

300

301

302

303

dichotomous “compliant-noncompliant” standard – agreed, this is where legal staff talk

about hard vs soft data issues and why hard data rules are more easily defended in a

court of law. However, the above barriers notwithstanding, situational licensing is a

more balanced and equitable approach to regulatory administration that respects

contemporary thinking about an individual’s right to choose and dignity of risk – need to

explain this!!. It should at the very least be an optional approach for regulatory

oversight agencies. A study looking at both approaches would help to answer

questions about how this either provides additional safeguards or not.

14 | P a g e

304

305

306

307

308

309

310

311