I am forwarding a paper prepared by California Advocates for Nursing Home Reform (CANHR). The paper is only 11 pages, but it is packed with point by point information. Here is the link to the paper: http://www.canhr.org/reports/2018/White_Paper/White_Paper_LTC_In_California.pdf
I have represented clients in serious injury and wrongful death cases against nursing homes, including, for example, unlawful restraints, beatings, improper staffing, and grossly negligent drops resulting in death. I must say, however, that I was surprised by the chilling information presented by CANHR. I also note that an increase in funding is requested to help remedy the situation – but as far as I am aware this is not a priority in the governor’s proposed new California budget.
CANHR’s paper covers the following topics:
California’s Broken Long Term Care System:
• Nursing Homes
• Residential Care
• Home and Community Based Services
• Elder Abuse
What’s Wrong & What Needs to Be Done
Nursing homes are heavily regulated. Below, at the bottom on this post, I have copied and pasted two federal laws regulating nursing home quality of life and quality of care requirements. For example, a nursing home is required to provide care and services to enable each resident to attain his or her highest physical, mental, and psychosocial well-being. I ask that you read through to the bottom of this blog post including the two statutes that are included.
So . . . after reading CANHR’s paper and the recommendations provided, it would be appropriate to ask what, if anything, the governor, legislature, regulators, and nursing home owners, operators, executive officers, boards of directors, and others including the nursing director and medical director, are going to do to fix the problems? I also refer you to my other blog discussing executive officer, director, audit committee, risk management, governance and other topics, http://auditcommitteeupdate.com. These types of issues involve and require (1) from a personal perspective – a feeling of personal humanity and care for people who truly are dependent on others, and (2) from the business perspective – enterprise risk management (COSO ERM 2017) and internal controls (COSO Internal Control 2013), and personal risk management for each and every resident of the nursing home.
The following are the broad components and principles in the COSO 2017 enterprise risk management framework:
And the following is an overview of a risk management process that you can use:
Best to you, David Tate, Esq. (and inactive California CPA)
Blogs: California trust, estate, and elder abuse litigation and contentious administrations http://californiaestatetrust.com; D&O, audit committee, governance and risk management http://auditcommitteeupdate.com
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The following are the two federal regulations to which I referred above:
42 CFR §483.24 Quality of life
Quality of life is a fundamental principle that applies to all care and services provided to facility residents. Each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, consistent with the resident’s comprehensive assessment and plan of care.
(a) Based on the comprehensive assessment of a resident and consistent with the resident’s needs and choices, the facility must provide the necessary care and services to ensure that a resident’s abilities in activities of daily living do not diminish unless circumstances of the individual’s clinical condition demonstrate that such diminution was unavoidable. This includes the facility ensuring that:
(1) A resident is given the appropriate treatment and services to maintain or improve his or her ability to carry out the activities of daily living, including those specified in paragraph (b) of this section,
(2) A resident who is unable to carry out activities of daily living receives the necessary services to maintain good nutrition, grooming, and personal and oral hygiene, and
(3) Personnel provide basic life support, including CPR, to a resident requiring such emergency care prior to the arrival ofemergency medical personnel and subject to related physician orders and the resident’s advance directives.
(b)Activities of daily living. The facility must provide care and services in accordance with paragraph (a) of this section for the following activities of daily living:
(1) Hygiene – bathing, dressing, grooming, and oral care,
(2) Mobility – transfer and ambulation, including walking,
(3) Elimination – toileting,
(4) Dining – eating, including meals and snacks,
(5) Communication, including
(iii) Other functional communication systems.
(1) The facility must provide, based on the comprehensive assessment and care plan and the preferences of each resident, an ongoing program to support residents in their choice of activities, both facility-sponsored group and individual activities and independent activities, designed to meet the interests of and support the physical, mental, and psychosocial well-being of each resident, encouraging both independence and interaction in the community.
(2) The activities program must be directed by a qualified professional who is a qualified therapeutic recreation specialist or an activities professional who –
(i) Is licensed or registered, if applicable, by the State in which practicing; and
(A) Eligible for certification as a therapeutic recreation specialist or as an activities professional by a recognized accrediting body on or after October 1, 1990; or
(B) Has 2 years of experience in a social or recreational program within the last 5 years, one of which was full-time in a therapeutic activities program; or
(C) Is a qualified occupational therapist or occupational therapy assistant; or
(D) Has completed a training course approved by the State.
42 CFR §483.25 Quality of care
Quality of care is a fundamental principle that applies to all treatment and care provided to facility residents. Based on the comprehensive assessment of a resident, the facility must ensure that residents receive treatment and care in accordance with professional standards of practice, the comprehensive person-centered care plan, and the resident’s choices, including but not limited to the following:
(a)Vision and hearing. To ensure that residents receive proper treatment and assistive devices to maintain vision and hearing abilities, the facility must, if necessary, assist the resident –
(1) In making appointments, and
(2) By arranging for transportation to and from the office of a practitioner specializing in the treatment of vision or hearing impairment or the office of a professional specializing in the provision of vision or hearing assistive devices.
(b)Skin integrity –
(1)Pressure ulcers. Based on the comprehensive assessment of a resident, the facility must ensure that –
(i) A resident receives care, consistent with professional standards of practice, to prevent pressure ulcers and does not develop pressure ulcers unless the individual’s clinical condition demonstrates that they were unavoidable; and
(ii) A resident with pressure ulcers receives necessary treatment and services, consistent with professional standards of practice, to promote healing, prevent infection and prevent new ulcers from developing.
(2)Foot care. To ensure that residents receive proper treatment and care to maintain mobility and good foot health, the facility must –
(i) Provide foot care and treatment, in accordance with professional standards of practice, including to prevent complications from the resident’s medical condition(s) and
(ii) If necessary, assist the resident in making appointments with a qualified person, and arranging for transportation to and from such appointments.
(1) The facility must ensure that a resident who enters the facility without limited range of motion does not experience reduction in range of motion unless the resident’s clinical condition demonstrates that a reduction in range of motion is unavoidable; and
(2) A resident with limited range of motion receives appropriate treatment and services to increase range of motion and/or to prevent further decrease in range of motion.
(3) A resident with limited mobility receives appropriate services, equipment, and assistance to maintain or improve mobility with the maximum practicable independence unless a reduction in mobility is demonstrably unavoidable.
(d)Accidents.The facility must ensure that –
(1) The resident environment remains as free of accident hazards as is possible; and
(2) Each resident receives adequate supervision and assistance devices to prevent accidents.
(1) The facility must ensure that a resident who is continent of bladder and bowel on admission receives services and assistance to maintain continence unless his or her clinical condition is or becomes such that continence is not possible to maintain.
(2) For a resident with urinary incontinence, based on the resident’s comprehensive assessment, the facility must ensure that –
(i) A resident who enters the facility without an indwelling catheter is not catheterized unless the resident’s clinical condition demonstrates that catheterization was necessary;
(ii) A resident who enters the facility with an indwelling catheter or subsequently receives one is assessed for removal of the catheter as soon as possible unless the resident’s clinical condition demonstrates that catheterization is necessary, and
(iii) A resident who is incontinent of bladder receives appropriate treatment and services to prevent urinary tract infections and to restore continence to the extent possible.
(3) For a resident with fecal incontinence, based on the resident’s comprehensive assessment, the facility must ensure that a resident who is incontinent of bowel receives appropriate treatment and services to restore as much normal bowel function as possible.
(f)Colostomy, urostomy, or ileostomy care. The facility must ensure that residents who require colostomy, urostomy, or ileostomy services, receive such care consistent with professional standards of practice, the comprehensive person-centered careplan, and the residents’ goals and preferences.
(g)Assisted nutrition and hydration. (Includes naso-gastric and gastrostomy tubes, both percutaneous endoscopic gastrostomy and percutaneous endoscopic jejunostomy, and enteral fluids). Based on a resident’s comprehensive assessment, the facility must ensure that a resident –
(1) Maintains acceptable parameters of nutritional status, such as usual body weight or desirable body weight range and electrolyte balance, unless the resident’s clinical condition demonstrates that this is not possible or resident preferences indicate otherwise;
(2) Is offered sufficient fluid intake to maintain proper hydration and health; and
(3) Is offered a therapeutic diet when there is a nutritional problem and the health care provider orders a therapeutic diet.
(4) A resident who has been able to eat enough alone or with assistance is not fed by enteral methods unless the resident’s clinical condition demonstrates that enteral feeding was clinically indicated and consented to by the resident; and
(5) A resident who is fed by enteral means receives the appropriate treatment and services to restore, if possible, oral eating skills and to prevent complications of enteral feeding including but not limited to aspiration pneumonia, diarrhea, vomiting, dehydration, metabolic abnormalities, and nasal-pharyngeal ulcers.
(h)Parenteral fluids. Parenteral fluids must be administered consistent with professional standards of practice and in accordance with physician orders, the comprehensive person-centered care plan, and the resident’s goals and preferences.
(i)Respiratory care, including tracheostomy care and tracheal suctioning. The facility must ensure that a resident who needs respiratory care, including tracheostomy care and tracheal suctioning, is provided such care, consistent with professional standards of practice, the comprehensive person-centered care plan, the residents’ goals and preferences, and § 483.65 of this subpart.
(j)Prostheses. The facility must ensure that a resident who has a prosthesis is provided care and assistance, consistent with professional standards of practice, the comprehensive person-centered care plan, and the residents’ goals and preferences, to wear and be able to use the prosthetic device.
(k)Pain management. The facility must ensure that pain management is provided to residents who require such services, consistent with professional standards of practice, the comprehensive person-centered care plan, and the residents’ goals and preferences.
(l) Dialysis. The facility must ensure that residents who require dialysis receive such services, consistent with professional standards of practice, the comprehensive person-centered care plan, and the residents’ goals and preferences.
(m)Trauma-informed care. The facility must ensure that residents who are trauma survivors receive culturally-competent, trauma-informed care in accordance with professional standards of practice and accounting for residents’ experiences and preferences in order to eliminate or mitigate triggers that may cause re-traumatization of the resident.
(n)Bed rails. The facility must attempt to use appropriate alternatives prior to installing a side or bed rail. If a bed or side rail is used, the facility must ensure correct installation, use, and maintenance of bed rails, including but not limited to the following elements.
(1) Assess the resident for risk of entrapment from bed rails prior to installation.
(2) Review the risks and benefits of bed rails with the resident or resident representative and obtain informed consent prior to installation.
(3) Ensure that the bed’s dimensions are appropriate for the resident’s size and weight.
(4) Follow the manufacturers’ recommendations and specifications for installing and maintaining bed rails.
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