Thursday, April 26, 2012

Exploring Federal OBRA: Common Alleged Deviations in the Standard of Care

While there are a variety of possible allegations that can arise in nursing home negligence cases, there are certain nursing home administration standards that appear more frequently.  Using Federal OBRA sections, I will speak to the most common alleged breaches related to the standard of care in today's nursing home.

C.F.R § 483.10 deals with resident rights and mandates that each resident is entitled to a dignified existence and self determination.  Example:  A resident with advanced dementia experiences a significant change in condition and the physician and responsible party are not immediately contacted by the facility.

 C.F.R § 483.10(d)(3) - The resident has a right to participate in planning their care and treatment or any changes to their care or treatment.    If the resident is incapacitated, this right would typically be transferred to the resident's responsible party.   Example: The responsible party is not asked to participate in decisions regarding the facility should use a physical or chemical restraint.

C.F.R § 483.12(a) - The facility Administrator shall neither admit nor retain a resident whose needs it knows it can not meet. Example: A resident begins showing signs of dementia, including wandering.  The resident is repeatedly found outside the nursing home, confused and exposed to the elements.  The facility creates a care plan to address the wandering issue, but the care plan proves unsuccessful in defeating these behaviors.  The facility must discharge to an appropriate setting, such as a facility with a secured dementia program or provide one to one care if the administrator believes this will successfully reduce the resident's risk.

C.F.R § 483.13(a) - "The resident has a right to be free from any physical or chemical restraints imposed for purposes of discipline or convenience and not required to treat the resident's medical symptoms.  The regulations do not preclude the use of restraints, but rather require that the interdisciplinary care team, with the approval of the resident or responsible party and approved by the resident's physician, to consider less restrictive, yet equally effective alternatives.  The physician order must specify the exact type of restraint, the frequency of use, and under what circumstances it can be used (in the wheelchair, or in the bed or at all times).

C.F.R § 483.13(b)(c) - The resident has the right to be free from verbal, sexual, physical and mental abuse, corporal punishment and involuntary seclusion.  The facility administrator is statutorily required to investigate all alleged violations and report the issue with the required time frame.  The Administrator must also immediately take action to prevent the possibility of further harm to any residents who can potentially be adversely affected. 
 It is important for counsel to review the definitions of "abuse" and "neglect" within the interpretive guidelines under § 483.13.   The term abuse is more expansive based on a  caregiver's deprivation of services in which harm occurs.
C.F.R § 483.15(a)  Requires a skilled nursing facility to "provide care for residents in a manner that maintains each resident's dignity and respect in full recognition of his or her individuality". Example:  A resident has the physical capability to be continent and the staff make insufficient efforts are made to restore or support this capability.

C.F.R § 483.20(K)(1) - A facility must develop a comprehensive plan for each resident  that includes measurable objectives and timetables  to meet a resident's medical, nursing, mental and psychosocial needs.  This standard of care is the most frequently alleged as breached in nursing home negligence cases.    The Resident Assessment Instrument, both with respect to its accuracy and implementation will affect a wide range of quality of care issues, including resident falls, accident prevention, elopements, transferring, pressure ulcers, safe use of equipment, etc.

My next entry will discuss other critical standards of care and I will begin with C.F.R § 483.25, which also appears frequently in allegations in nursing home negligence cases.  It mandates that:
 "Each resident receive, and the facility provide, the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care"