Wednesday, February 29, 2012

The Administrator and Nursing Home Liability issues

What Exactly is the the Standard of Care in nursing homes? 
When a licensed skilled nursing facility’s actions come under review, defining the standard of care becomes the threshold to evaluate the actions of the provider.  The Nursing Home Reform Act of 1987, where the federal regulations are contained, represent the national community practice standards
Along with the federal regulations, there exists federal interpretive guidelines which offer clarification about a federal regulation.  These clarifications both crystallize and articulate the standard.  
Finally, all nursing homes are required to be state licensed and comply with regulations as set forth by their respective state government.  Therefore the standard of care leaves for little ambiguity; it is composed of the federal regulations, the federal interpretive guidelines, and the state regulations.  
What happens if there is a inconsistency between the federal and state regulation?
Typically, there are not "conflicts" between federal and state regulations. The minimum standards of care require that the most rigorous standard apply  when considering between the federal regulations, the state licensure standards or the facility's own policy.   

Generally, the federal regulations will generally provide a minimum standard of care for a certified nursing facility and states may choose to provide greater specificity. For example, the federal regulations regarding staffing requirements are located under Chapter 42 CFR §483.30 and are broadly defined as requiring the skilled nursing facility to offer “sufficient nursing staff to provide nursing and related services”.    Yet, an individual state will often  require a minimum staffing requirement and speak to how it is calculated and whether resident acuity is considered.

What are the obligations of a facility accepting Medicare and Medicaid funds?
In state's that have less intensive regulations, there may appear to be a expectation to provide "reasonable" or "adequate" care.  The inference from Federal regulations offers each resident a much higher guarantee about expectations--regardless of what state the nursing home is located.     Under title 42, CFR §483.25, the expectation is unambiguous in terms of the care that should be afforded to all residents in every nursing home:
"Each resident shall receive , and the facility shall provide, care and services to enable the resident to attain or maintain his or her highest practicable, physical, mental and psychosocial well-being, in accordance with the individuals assessment and comprehensive plan of care."