Continuation of the Review of OBRA Regulations: The National Community Practice Standards

§483.30 is always associated with nursing services and often used along with another sections of OBRA in the course of litigation.  This regulations specifically is used to assert that there were insufficient nursing resources that lead to an adverse outcomes.  These types of outcomes can be:

• failure to properly complete a clinical assessment after a unwitnessed fall,
• failure to properly assess or monitor changes in a resident's condition,
• inadequate staffing or staff supervision.
• failure to advocate for the resident in demanding and assuring prompt access to needed medical and hospital care.

§483.35  - This OBRA section addresses food service in a nursing facility and would be used in allegations concerning:

• failure to provide snacks or nutritional supplements when associated with weight loss,
• failure to provide substitute foods of similar nutritional value for residents who have refused the initial food choice,
• failure to provide foods of the correct consistency (usually associated with a clinical recommendation that was not followed and an allegation that a resident chocked to death on pieces of solid food),
• failure to provide adequate food proportions.

§483.40 - This OBRA section has to do with physician services. The following allegations appear most frequently:

• Physician orders must be followed,
• Physician must medically assess the resident according to established timetable,
• The facility must arrange for the provision of physician services on a 24 hour a day basis.

§483.65 - The facility must establish and maintain a infection control program that creates a safe, sanitary, and comfortable environment.  Examples of this section would include:

• Development of MRSA, an antibiotic bacteria
• Development of a infected pressure ulcer infections caused through substandard application of universal precautions

§483.70 - A facility must be designed and maintained to protect the health and safety of the residents.  Allegations under this physical environment section could include:
a failure to maintain or or properly use a piece of equipment. Examples could include:

•  a resident lift machine (Hoyer lift) that fails because the safety lock is disengaged or eroded over time. 
• The hot water heater is set too high and a resident suffers skin burns.

Continuation of Common Alleged Deviations in the Standard of Care

As we continue to review the most common allegations in deviations to the standard of care, we come across §483.25 which address nursing home quality of care.  Under this regulation, the expert witness is asked to review adherence or deviation to the following sections:

§ 483.25(a)- This section would be commonly alleged in cases where a plaintiff attorney perceived that residents were not adequately kept clean, brought to the toilet, ambulated or provided assistance with activities of daily living.  These deviations would naturally compromise a resident's ability to attain or maintain their “highest practicable well being".

§ 483.25(c) - This regulation is used with any allegations regarding pressure ulcers. Central to correctly ascertaining if a facility deviated from the standard of care in the prevention and treatment of pressure ulcers, one must determine whether a resident's pressure sore was clinically unavoidable. To deem an ulcer unavoidable, a facility must demonstrate preventative interventions were applied.  Licensed Administrators are governed by the understanding that pressure ulcers cannot be deemed clinically unavoidable without routine preventative care, such as,

• Frequent turning and repositioning;
• Promptly providing incontinent care;
• The provision of adequate nutrition and hydration;
• Providing adequate pressure reduction or pressure relief supplies;
• Assuring staff are trained in techniques to avoid friction and shear; 
• Assuring staff follow the resident’s care plan and timely revise it as the resident’s needs dictate;
• Assuring staff notify the resident’s physician immediately after significant changes in a resident’s skin condition.

§ 483.25(c) - This section would typically be used if efforts were not made to restore or maintain continence control through a bowel and bladder maintenance program.

§ 483.25(h) - A nursing facility " must ensure that the resident environment remains as free of accident hazards as possible, and each receives adequate supervision and assistive devices to prevent accidents." This section commonly applies with a resident care practice that results in allegations of:

• Falls with injuries;
• Patient care equipment not adequately maintained or functioning;
• Inadequate supervision of a resident whose actions represent a danger to themselves or to others;
• Residents who aspirate based on a failure to provide food consistent with their swallowing ability. 
• Resident elopements;
• Physical restraints that were applied inconsistent with physician orders or inconsistent with prevailing nursing home practices.

§ 483.25(i) - This section would be cited for deviations to the standard of care regarding weight loss that is clinically avoidable.  The federal interpretive guidelines identify associated risk factors and the amount of weight with respective time periods that constitutes  "significant" weight loss.    Meal consumption sheets and their consistency with nursing staff entries into the medical chart are critical factors in the support of adherence or deviation to avoidable weight loss claims.  

§ 483.25(l) - This section is used for medications that are deemed to be unnecessary or be of an excessive dose.     Working under the resident’s physicians, the facility is required to show systematic efforts to minimize chemical restraints and have practices that demonstrate appropriate dose reduction efforts with the goal that a chemical restraint are minimized or possibly eliminated. 

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" 

 

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."

Welcome to my Blog!

Welcome to Nursing Home Expert Witness Services – Blog

“I offer clients fact-based and insightful case reviews and analysis, typically for cases associated with abuse/neglect in nursing homes, assisted living and retirement housing. My ongoing consultative work enables me to stay current on prevailing industry practices and speak with confidence on reasonable expectations of care”.

Profile

• Recent hands-on experience managing nationally recognized nursing homes and/or multi-level senior care campuses. Administrator of facility to earn the Governor’s Gold Seal for Excellence.

• Cornell University, Masters in Health Care Administration.

• Court appointed Patient-Care Ombudsman. Participated in and/or managed several “compliance” initiatives, including back to Federal re-certifications, Special Facility Focus, as well as two initial facility certifications.