Carrying the Torch of LeadershipFADONA March 2020

HOT LEGAL ISSUES FOR SNF’S

Presented by: Karen L. Goldsmith, J.D.

Goldsmith & Grout, P.A.

P.O. Box 2011

Winter Park, Fl 32790

Direct: 407 312 4938

klgoldsmith@ggfllawfirm.com

I. IJ CITATIONS

Many citations at IJ level

Surveyors more conscious of not stacking deficiencies

Most establish separate basis for each tag even though underlying facts may be the same Example: Administration should not automatically be cited for accident citation

However, if accident was caused in part by understaffing administration may have responsibility

Thus, you would have a tag for the lack of supervision which led to the fall as well as a tag for inadequate staffing which contributed to the lack of supervision

Recent changes to IJ:

Defined Immediate Jeopardy as a situation in which the provider’s noncompliance with one of more requirements…has caused or is likely to cause serious injury, harm, impairment or death to a resident

Likelihood replaced potential

So what is the likelihood of noncompliance being an incident rising to IJ: Likelihood means the nature or extent of the identified noncompliance creates a

reasonable expectation that an adverse outcome resulting in serious injury, harm, impairment or death will occur if not corrected

The concept of culpability has been removed (responsibility or blame)

The nexus of the noncompliance must relate to a reasonable expectation

There are no automatic citations that are IJ’s – in other words the facts support the scope and severity not an automatic scope and severity

Surveyors must utilize a template to determine IJ

Template must be used for each tag

Template available to the provider

The template requires findings for all 3 components to IJ:

Noncompliance – failure to meet one or more regulations – surveyors use the provisions of the SOM applicable to each tag to make this finding and

There must have been a serios outcome or the likelihood of a serious adverse outcome with a nexus to the noncompliance

This means that if surveyors can’t find a tag that has been violated there can be no immediate jeopardy regardless of the outcome

AND there must be a need for immediate action to prevent serious consequences for occurring or recurring.

This is an important component as oftentimes the problem has been corrected so there is no immediate action required, but wait!

If that were literally true (for example, the person who committed a criminal act was fired) you would not be found in current IJ

That would be past noncompliance

But that is not always the case: Just terminating the criminal may not be enough

Oftentimes surveyors find that monitoring was not done or not documented so cannot be proved

If you have an incident in your center that COULD meet the definition of an immediate jeopardy citation act quickly:

Prepare a removal plan

Make sure it includes monitoring and recording of monitoring and facts to show the effectiveness of the monitoring: Through observation?

Through continuous training?

Through mock surveys?

If education is a component ensure that you have: Identified all who are trained and for those who are not why not

Given a quiz or a practical observation to be sure education was effective

Go back after a period of time to ensure it “stuck”

Ensure that staff know the proper nomenclature and can answer surveyors’ questions

You do not have to entirely correct the deficiency to have the IJ and the penalties that flow from it reduced

Surveyors must do on-site inspection to remove IJ

If more than one tag, they will look for evidence of each one

Involve your QA and QAPI programs and perhaps even Corporate Compliance and Ethics

If you have a potential IJ consult your lawyer: May be a reason to invoke attorney client privilege or work product

You may want to put some of your information under your QA/QAPI program to protect it from third parties

Remember that some things you will have to give the surveyors you may be able to protect from other prying eyes

II. ADVANCE DIRECTIVES

Advance directive citations are often IJ’s

We are seeing way too many of these

The question is WHY? We train

We have a well-developed system for interpreting advance directives

Concept of Informed Consent To understand informed consent in the nursing home you have to understand

how it is used

Informed Consent is discussed 4 times in the SOM – once, in relation to state regulations, once in relation to siderails and twice in relation to experimental procedures

The implication is that state law defines informed consent

Interestingly, informed consent is discussed most predominantly in our medical malpractice statute

It includes: The patient understanding what their condition is

What the recommended treatment, procedure, etc is

How it will be administered

What alternatives are available

The benefits and side effects of the procedure, treatment or medication

Allowing the patient to make a decision

Sometimes it is a substitute decisionmaker

Attorneys often write the consents and include every possible consequence

How does this relate to Advance Directives: Even a living will should be prepared for a patient who has been given some

understanding of what the procedure he or she wants or does not want is

What it includes

The benefits and consequences

Provider magazine recently brought this concept to the attention of its readers

Many people need only to know the basics

But many of our residents need more information. For example, a very frail resident who thinks they would want cpr probably does not know the statistics about the success rate of cpr and the potential deadly consequences for a person in their condition – they need to know

Substitute decisionmakers: Know the scope of the right of that person to make medical decisions for that

resident

Does the resident have a living will? If so, what does it say?

Even if someone else is making the decision listen to the resident and hear what they want and discuss this with the substitute decisionmaker

Has that person been given adequate information to give or withhold informed consent

Guardians have special responsibilities

The yellow form is not strictly an advance directive Just because it is written in advance of need doesn’t make it an advance

directive

it is a doctor’s order

The yellow form is just one form of cpr order – Chapter 400 says specifically that a valid doctor’s order can be used in a nursing home as well as the yellow form

It requires informed consent

Health care surrogate designation and living will are advance directives under Florida law. (Chapter 765) The yellow form is under chapter 401.

POLST is on its way and a push is expected in our next legislative session.

POLST is not an advance directive but a doctor’s order

This is noted in the SOM under F 578

Admission All nursing centers are required to give information on advance directives upon

admission

A more meaningful conversation should occur at a more leisurely time when the definitions of the various documents and their purposes are explained more fully to the resident

For example, a resident should know the extent of the authority that they are giving to their surrogate and limit it if they so choose

A resident should know that if they say “no cpr” that is what they are going to get

A resident or their substitute decision maker should know that if they have an incident that requires hospitalization that they will have to go (such as a broken leg)

Other reasons for citations: Lack of knowledge of who can override an advance directive

Hesitancy in starting cpr on full code resident

Not recognizing the limited scope of the advance directive The time to do this is not at the dying person’s bedside but during care planning

Not offering options to the resident on a regular basis (care planning/change in condition)

Documentation

III. DISCHARGE TRANSFER

A rising area of concern is the resident’s right not to be transferred or discharged

This is as much if not more a clinical problem as an administrative one

Documentation is the key to a successful defense of an appeal to a transfer discharge

Ombudsman, AARP, Plaintiff’s lawyers including class action lawyers are looking over your shoulder

DOJ is looking at patterns or trends in specific nursing homes to wrongly discharge or transfer

Transfer is from one certified bed to another (licensed) bed with an expectation of return

Discharge is when there is no expectation of return regardless of the place

Requires one of 6 specific reasons: Resident no longer needs the care

The resident is detrimental to the health of others (including staff)

The resident is a danger to others (including staff)

The facility cannot provide the care the resident needs

Failure to pay

Facility closure

Clinical documentation is necessary for the first four but not the last two

All appropriate steps to try to solve the problem with the resident must be taken before transfer or discharge

If resident makes the choice by him herself or through a legal representative the notice/hearing requirements don’t apply – this is rare

Must be more than a general comment that resident doesn’t want to stay in facility

Start documenting early even before the issue arises - but when it does document even more

Talk about the issue in the care planning process and document

What interventions have been tried-why haven’t they worked?

Involve the attending physician, medical director, specialist, psych

Explore whether bad behavior is just bad communication: Example: resident kept pulling fire alarm

Cognitively impaired

Fire department kept coming and creating significant problem for center

Even with one on one if she got near a fire alarm she would pull it

After spending a good deal of time trying to find out what was happening that

caused her to pull the fire alarm, staff figured out that she knew what “pull” meant and every time she passed a fire alarm she did what she was told

The facility developed signage that showed her she didn’t need to pull the alarm

Problem solved without discharge or transfer

Some specific concerns: Discharging to a homeless shelter – is that a safe and appropriate placement – it

can be

Dropping the resident off at their daughter’s front door – probably not ok

Calling the police for suspicion of a crime – they take the resident – is this a subject for notice? Do you have to take them back? Can you support with intervention attempts?

Have you documented how the new place can meet the needs if you cannot

Must support if discharging without 30 days notice

Must make preparation for a non-emergency transfer or discharge: Care planning

Securing services such as home health

Trial visit?

Orient both resident and family

Make sure necessary services are nearby (e.g. chemo)

Give all necessary information to receiving facility (e.g. meds, lab values, care plan)

Remember that if you transfer to the hospital with the intention of resident returning and then he doesn’t return because you won’t take him you must send discharge notice with same requirements as if it is the first step not the second

Must have appropriate documentation as to why he can’t come back and why somewhere else is appropriate

IV. DEALING WITH THE LGBT RESIDENT

Baby boomers are the first generation to have widespread acknowledgement of sexual orientation

Facility should be proactive not reactive

Cultural assessment of facility requires inclusion of LGBT residents’ needs

Does your compliance program address potential issues such as discrimination

Gender identity is important – not so much biological info from birth

HIPAA issues

All residents have right to person-centered care

How to deal with staff issues: Staff cannot discriminate in providing care

Staff must recognize that gender is a personal fact of the resident’s and if resident does not want their biological identity known must respect privacy

The core values of social workers and nurses address non-discrimination

Staff should be trained on non-discrimination before the fact not after you have a resident in this grouping

Families can be problematic But should not even know unless told by the LGBT resident

It is roommate’s choice to be with resident if competent not family’s

Other residents’ Should have no bullying policy long before the need arises

Bullying of any person should not be tolerated

Resident has right to choose roommate as much as practical so that right should be respected

Can you put LGBT resident in private room or is this isolation?

Does this single out that person and make them feel less a part of the population

Finally when a resident who fits in one of these categories comes in there needs to be an assessment to determine if this resident is in need of trauma informed care

History shows that there has been discrimination of this group over a period of time and your resident may have been a victim of this or may have hidden their identity to avoid the discrimination which itself could be traumatic

By all means don’t let being a resident of your community or a staff member add to the trauma