Nursing Home Culture Change: Legal Apprehensions and Opportunities Marshall B. Kapp, JD,MPH Florida State University Center for Innovative Collaboration

Nursing Home Culture Change: Nursing Home Culture Change: Legal Apprehensions and Legal Apprehensions and OpportunitiesOpportunities

Nursing Home Culture Change: Nursing Home Culture Change: Legal Apprehensions and Legal Apprehensions and OpportunitiesOpportunities

Marshall B. Kapp, JD,MPHMarshall B. Kapp, JD,MPHFlorida State University Center for Innovative Florida State University Center for Innovative

Collaboration in Medicine and LawCollaboration in Medicine and Law

[email protected]@med.fsu.edu

Marshall B. Kapp, JD,MPHMarshall B. Kapp, JD,MPHFlorida State University Center for Innovative Florida State University Center for Innovative

Collaboration in Medicine and LawCollaboration in Medicine and Law

[email protected]@med.fsu.edu

FSU COLLEGE OF MEDICINEFSU COLLEGE OF MEDICINE

Acknowledgment

Melissa Villalta, Undergraduate Research Opportunity Program (UROP) student


The Culture Change Movement in Nursing Homes

Persisting problems in NH quality of care and quality of life, despite extensive regulation and litigation– http://www.nursinghome411.org/articles/?cate

gory=lawgovernment


Culture Change Movement is an attempt to improve quality of life by making facilities less institutional, more homelike– Originated 1997– Pioneer Network– E.g., Eden Alternative, Wellspring Program,

Green House Project, Advancing Excellence in America’s NHs Campaign


Premises– Person-centered care– “deinstitutionalizing services and

individualizing care”– Resident dignity and freedom– Collaborative decision making– Resident and staff empowerment


Example 1: New Dietary Standards

NH must “provide each resident with a nourishing, palatable, well-balanced diet that meets the daily nutritional and special dietary needs of each resident”—42 CFR §483.35, surveyed via “Dining Area and Eating Assistance Observation” worksheet (Form CMS-523), 42 CFR §488.110


2010-11 initiative of the Pioneer Network and Food and Dining Clinical Standards Task Force published “New Dining Practice Standards” (Aug. 2011), http://pioneernetwork.net/Data/Documents/NewDiningPracticeStandards.pdf

– Emphasis: Individualized diets– Marshall B. Kapp, “Nursing Home Culture Change: Legal

Apprehensions and Opportunities,” Vol. 53, No. 5, pp. 718-726, THE GERONTOLOGIST (2013); doi: 10.1093/geront/gns131, reprinted in Chapter 10 of Judah L. Ronch & Audrey S. Weiner, CULTURE CHANGE IN ELDER CARE, Health Professions Press , Baltimore, MD (2013).


Example 2

Rothschild Person-Centered Care Planning Task Force, A Process for Care Planning for Resident Choice (Feb. 2015) (prepared by M. Calkins, K. Schoeneman, J. Brush, & R. Mayer)– Hulda B. and Maurice L. Rothschild Foundation funded – http://ideasinstitute.org/PDFs/

Process_for_Care_Planning_for_Residnet_Choice.pdf– Disclosure: MBK was Task Force member


Rothschild Person-Centered Care Planning Process

Identifying and clarifying the resident’s choice Discussing the choice and options with the

resident Determining how to honor the choice (and which

choices are not possible to honor) Communicating the choice through the care plan Monitoring and making revisions to the care plan


Legal Apprehensions as Impediment

Resident choices may be inconsistent with professional custom and/or recommendations

Health care providers have low/no tolerance for risk

Perceived RM drives out everything else


Regulatory climate– Nursing Home Quality Reform Act

(OBRA 1987), 42 U.S.C. § 1396r, implementing regs at 42 CFR chap. IV, subchap. C, Part 483, set Medicare/Medicaid Conditions of Participation.


Orientation toward medical outcomes, not quality of life: NHs “must provide services and activities to attain or maintain the highest practicable physical, mental, and social well-being of each resident…”

“Best interests” may be defined differently by the person and the professional.


Other regulatory components:– HIPAA – OSHA– State licensure requirements– Private accreditation (e.g., Joint

Commission)– False Claims Act– State abuse and neglect prosecutions


Malpractice litigation and liability– Negligence actions brought by or on

behalf (families) of residents with bad outcomes (e.g., stroke/high blood pressure/deviation from low sodium diet; choking on steak that resident requested)

– Breach of contract and fraud actions re marketing claims


Responding to Regulatory and Liability Apprehensions

Education of NH providers, attys, and courts about Autonomy and RM– Informed consent– Documentation of processes and rationales– Assumption of risk– Negotiating alternatives/Mitigating risks

Education about evidence-based Clinical Practice Guidelines, illustrated by “New Dining Practice Standards”


Ameliorating Anxiety About Regulatory Sanctions– Emphasizing consistency between person-

centered care and resident rights regulations– Amending applicable regulations and sub-

regulations, e.g., incorporating by reference New Dining Practices Standards in CMS LTC interpretive guidelines for surveyors


– Need to closely examine proposed new federal rules, https://www.federalregister.gov/articles/2015/07/16/2015-17207/medicare-and-medicaid-programs-reform-of-requirements-for-long-term-care-facilities


– Interpretation and Enforcement of RegsCurrent survey & certification process is often

inconsistent and not transparent.CMS Quality Indicator Survey (QIS) (2011), 42 CFR §

488.110, processEducation of state surveyors to be less punitive

(“gotcha”), more collaborative (e.g., R.I. Individualized Care Pilot Project, CMS video training module on New Dining Practice Standards, advocates working with Medicare Quality Improvement Organizations)


Proactive communication and collaboration with resident advocacy groups and ombudsmen


When the Resident’s Choice Should Not Be Honored

Process for determining and documenting:– Incapacity to decide/Necessity for

surrogate decision making–When the safety of others justifies not

honoring the resident’s choice


Opportunities for Interdisciplinary Research (Law and Health Services)

What resident choices and alternatives present what actual risks?– To the resident– To others

Best practices for informing and negotiating with residents and families about choices and risks?– Effectiveness– Costs

Actual legal risks associated with specific scenarios?


Opportunities for Teaching Law and Health Professions Students

Identifying specific, not free-floating, risks Putting risks into realistic and relative

perspective Connection between regulatory and c.l.

requirements and enforcement Looking at the legal environment as a whole Role as creative enabler among multiple parties,

not roadblock Reconciling good clinical and ethical care with

effective risk management