Common Survey Citations Against Long-Term Care Facilities

Polsinelli PC. In California, Polsinelli LLP

Common Survey Citations Against Long-Term Care Facilities

Jason T. Lundy


Pressure Sores

F314

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Pressure Sores

42 CFR 483.25(c) Pressure sores. Based on the comprehensive assessment of a resident, the facility must ensure that—(1) A resident who enters the facility without pressure sores does not develop pressure sores unless the individual's clinical condition demonstrates that they were unavoidable; and(2) A resident having pressure sores receives necessary treatment and services to promote healing, prevent infection and prevent new sores from developing.


Pressure Sores

F314 – The intent of this requirement is that the resident does not develop pressure ulcers unless clinically unavoidable and that the facility provides care and services to:– Promote the prevention of pressure ulcer

development;– Promote the healing of pressure ulcers that are

present (including prevention of infection to the extent possible); and

– Prevent development of additional pressure ulcers.


Pressure Sores

Pressure sores a/k/a pressure ulcers, skin breakdown, wounds

Stage I, II, III, IV. A Stage IV is presumed to be immediate

jeopardy.


Pressure Sores

“The facility is obliged to go beyond what seems reasonable to, instead, always furnish what is necessary to prevent new sores unless clinically unavoidable, and to treat existing ones as needed.” Crestview citing Koester Pavilion.

Must show that the pressure sore was unavoidable.


Pressure Sores

“Unavoidable” means that the resident developed a pressure sore even though the facility: 1) had evaluated the resident’s clinical condition and pressure ulcer risk factors; 2) defined and implemented interventions that are consistent with resident needs, goals, and recognized standards of practice; 3) monitored and evaluated the impact of the interventions; and 4) revised the approaches as appropriate.

“Avoidable” means that the resident developed a pressure sore and that the facility did not do all 4 of those steps.


Pressure Sores

A resident at risk can develop a pressure sore within 2 to 6 hours of the onset of pressure

Assessment & Risk Factors– Co-morbid conditions, such as end stage renal disease or

diabetes – Impaired/decreased mobility and decreased functional ability– Circulation impairments– Exposure of skin to incontinence– Poor nutrition or hydration– History: a healed Stage III or IV pressure sore is more likely to

have recurrent breakdown– Resident refusal of some aspects of care and treatment


Pressure Sores

Interventions– Turning & repositioning– Pressure relief devices and surfaces– Frequent incontinence care– Attention to pressure areas: coccyx, sacral,

heels, elbows – Dietician consultation to improve nutrition &

hydration– For existing pressure sores, cleaning and

changing gauze and dressings


Pressure Sores

Monitoring– Vigilant review to prevent worsening/review

healing– Confirm provision of treatments and

interventions– Documentation is essential to maintain

defense of clinical unavoidability


Pressure Sores

Crucial documentation – Physicians notified of skin breakdown or changes– Physician orders for treatments– Documentation from physician that skin

breakdown/pressure sore was unavoidable– Turning & repositioning done timely & consistently – I/O monitored– Wound nurse/specialist consultation and

treatments– If the resident has orders for ‘comfort care only’,

make it clear


Pressure Sores

IJ Plan of Removal – Treatment plan and care plan of any identified

resident has been reviewed, revised and updated

– Staff have been in-serviced– Wound consultant has reviewed the residents

identified by the surveyor– The treatment plan and care plan of all

residents identified were reviewed and updated as necessary


Pressure Sores

In addition to survey citations, source of civil liability

Personal Injury lawyers love pressure sores – – photos horrify non-clinicians (i.e., jury

members)– emotionally supersede any consideration of

whether clinically unavoidable


Excessive Falls

F309, F323


Excessive Falls

42 CFR 483.25 Quality of CareEach 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, in accordance with the comprehensive assessment and plan of care. 42 CFR 483.25(h) AccidentsThe facility must ensure that –(1) The resident environment remains as free from accident hazards as is possible; and(2) Each resident receives adequate supervision and assistance devices to prevent accidents.


Excessive Falls

Any resident experiencing a significant number of falls will be looked at.

Could be frequency over time (one fall every other month).

Could be recent episodes of frequent falls. Focus is on the facility’s response to the

falls.


Excessive Falls

SOM for F325 “Fall” refers to unintentionally coming to rest on the

ground, floor, or other lower level, but not as a result of an overwhelming external force (e.g., resident pushes another resident). An episode where a resident lost his/her balance and would have fallen, if not for staff intervention, is considered a fall. A fall without injury is still a fall. Unless there is evidence suggesting otherwise, when a resident is found on the floor, a fall is considered to have occurred.


Excessive Falls

Key to avoiding or contesting a citation:– Documentation that you assessed risk – Documentation that you were communicating

with physician– Continually trying new Care Plan approaches

& interventions– Investigating for root cause of falls (i.e.,

change in medical condition [UTI]; timing or behavior factor)


Excessive Falls

Crucial documentation – Falls risk assessments– Care Plan showing that new approaches were

considered and/or implemented following each fall

– Documentation showing that the falls were reviewed to determine if there was a trend and to identify possible causes

– Policy and Procedure on falls prevention


Excessive Falls

IJ Plan of Removal – Update of care plan for each resident

identified– Review of care plans for all residents with falls

in the past three months to ensure that they are up to date and adequately address risk

– Review of all falls within the past two months by DON and Administrator

– In-service staff.


Abuse & Neglect

F223, F224, F225, F226


Abuse & Neglect

42 CFR 483.13(b) AbuseThe resident has the right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion.


Abuse & Neglect

42 CFR 483.13(c) Staff treatment of residents. The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property.(1)The facility must— (i) Not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion; (ii) Not employ individuals who have been—

(A) Found guilty of abusing, neglecting, or mistreating residents by a court of law; or(B) Have had a finding entered into the State nurse aide

registry concerning abuse, neglect, mistreatment of residents or misappropriation of their property; (iii) Report any knowledge it has of actions by a court of law against an employee . . . to the State nurse aide registry or licensing authorities.


Abuse & Neglect

42 CFR 483.13(c) Staff treatment of residents. (continued)(2) The facility must ensure that all alleged violations involving mistreatment, neglect, or abuse, including injuries of unknown source, and misappropriation of resident property are reported immediately to the administrator of the facility and to other officials in accordance with State law through established procedures (including to the State survey and certification agency).(3) The facility must have evidence that all alleged violations are thoroughly investigated, and must prevent further potential abuse while the investigation is in progress.(4) The results of all investigations must be reported to the administrator or his designated representative and to other officials in accordance with State law (including to the State survey and certification agency) within 5 working days of the incident, and if the alleged violation is verified appropriate corrective action must be taken.


What is “abuse”?

Federal Definition (Medicaid and/or Medicare facilities):– Abuse = willful infliction of injury,

unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish. 42 C.F.R. 488.301.


What is “abuse”?

Federal guidance—Supplements federal definition• Includes deprivation by an individual, including a caretaker, of goods or services that

are necessary to attain or maintain physical, mental, and psychosocial well-being.Abuse

• Includes hitting, slapping, pinching, kicking, and controlling behavior through corporal punishment.

Physical Abuse

• Includes, but is not limited to, sexual harassment, sexual coercion, or sexual assault.Sexual Abuse

• Defined as the use of oral, written or gestured language that willfully includes disparaging and derogatory terms to residents or their families, or within their hearing distance, regardless of their age, ability to comprehend, or disability.

Verbal Abuse

• Includes, but is not limited to, humiliation, harassment, threats of punishment or deprivation.

Mental Abuse

• Defined as separation of a resident from other residents or from her/his room or confinement to her/his room (with or without roommates) against the resident’s will, or the will of the resident’s legal representative.

Involuntary Seclusion


Why do we want to know about incidents, accidents, abuse?

Mandatory investigations and reporting under Federal/State law.

Management of potential liability. Quality assurance—identify systemic

weaknesses. Communication to ensure continuity of

care.


Mandatory Reporting Laws: Abuse

With any allegation of mistreatment, neglect, or abuse, including injuries of unknown source, and misappropriation of resident property, a nursing home must:1. Immediately Report (24 hours)

Immediately report the allegation to the facility administrator Immediately report the allegation to the resident’s representative in

writing and by telephone Immediately report the allegation to the State survey agency

2. Investigate Have evidence that all alleged violations are thoroughly investigated Prevent further potential abuse while the investigation is in progress

3. Report again Report to facility administrator and the State survey agency the

results of all investigations….within five working days of the incident4. Take appropriate corrective action, if the alleged violation is

verified.


Mandatory Reporting Laws: Other Types of Reporting

Elder Justice Act (part of the Affordable Care Act)– Owner, operator, employee, agent, and

contractors of facility must report any reasonable suspicion of a crime committed against a resident

– Timing of report—clock time, not business time: Within 2 hours if suspicion relates to incident

causing serious injury Within 24 hours if suspicion relates to incident

that did NOT cause serious injury– Report made to local law enforcement and State

survey agency


Mandatory Reporting Laws: Other Types of Reporting

Elder Justice Act (Federal)– Not required to notify facility of report– Applies to SNFs and ICF/DDs that receive at

least $10,000 in federal funds annually– Does NOT apply to ALFs, independent living,

non-nursing portions of CCRC


Top Four Errors with Abuse

1. Staff fail to identify an incident or allegation of abuse.

2. Staff fail to report an allegation of abuse.3. Once a report has been made, staff are not

suspended pending investigation.4. Failure to conduct a thorough investigation

& dig deeper.


First Steps in Reacting to An Allegation

What happens when a facility employee first hears an allegation or develops a suspicion of abuse, neglect, or unknown injury?



1.Care, treat, and protect residents Regulations are important, but the highest

duty is to your residents



2. Immediately notify the Administrator– Staff should be hypersensitive– While an employee’s direct supervisor or best

contact may be the facility’s DON or RSD, regulations require notification to the Administrator

– Best practice: Employee immediately reports to both supervisor and administrator.


First Steps in Reacting to an Allegation

3. Immediately contact local police – Check State law provisions that may require

law enforcement notification in certain circumstances



4. Isolate the perpetrator– If the investigation indicates the employee…

Immediately bar the employee from further contact with residents, pending the outcome of further investigation, prosecution, or disciplinary action.

Immediate suspension means immediate– If the investigation indicates another resident. . .

Immediately evaluate the resident’s condition to determine the most suitable therapy and placement for the resident, considering the safety of that resident as well as the safety of other residents and employees of the facility.



4. Isolate the perpetrator (cont.) If the investigation indicates a family member or

visitor…– Contact local police immediately and provide as much

information as possible about the person.– Do not allow the person any further access to

residents. – Be careful and consider safety precautions for facility

residents and employees.



5. Facility nursing staff or administrator notifies the resident’s physician. Facility administrator notifies the resident’s representative by telephone and in writing immediately.

*Steps 1-5 are done immediately*



6. Facility administrator makes an initial report to State survey agency for all reportable incidents or accidents within 24 hours.

State survey agency will have procedures to contact a Regional Office or main office by phone, fax, e-mail, etc. and after-hours


The Initial Report

The focus should be on keeping it factual. There should be no speculation or

personal opinion. It should only be kept if it is required. It shouldn’t be a summary of a review of

the incident.


The Initial Report

Most common problems:– Rampant speculation based upon

uncorroborated verbal report “Resident 1 was struck by Mr. Smith, our employee.”

– Rampant speculation “Resident eloped from the facility. Possible causes include malfunctioning door alarm, light staffing.”


The Initial Report

What we usually see:– Factual summary – R1 was found on floor of

room at 5:46 p.m.– Partial summary of investigation – “slippery

floor was noted, staff reported problems with resident disarming body alarm.”

– Conclusion – R1 was assessed. Redness noted to rt. Hip. MD contacted ordered resident to be sent to ER for X-ray.


The Initial Report

What we prefer:– Factual summary – R1 was found on floor of

room at 5:46 p.m.– “Facility is conducting a full investigation of

this [allegation, incident, accident] and will report the investigation results to State survey agency when it is completed.”

– Conclusion – R1 was assessed. Redness noted to rt. Hip. MD contacted ordered resident to be sent to ER for X-ray.


Function of the Investigation

Initial investigation is meant to gain an understanding of what happened. – Discover immediately who the perpetrator is.– The person responsible for the investigation

should initially take notes and not gather staff statements.

– Once a more complete picture has been formed, statements can be gathered if they will be helpful.

If the incident involves a resident injury or death, contact legal.


Function of the Investigation

Limit incidents and liability exposure Discovery quickly before repeat incidents occur “one bite” vs. pattern and practice

– Be careful with the “one bite” argument – you may not have foreseen the abuse or injury its first time, but State survey agency may argue that the lack of supervision which allowed the abuse or injury to happen equals neglect

Determine if there is an underlying systemic issue that may have contributed to the incident.


Form of the Investigation

Comprehensive– You are always better off with a more

thorough investigation than a cursory investigation.

– The surveyor will certainly do more than a cursory investigation and you want to be prepared.



Considerations for a thorough investigation:– Interview:

All staff on duty at the time Resident’s roommate, if possible Family members, if possible & appropriate Other residents

– Even if there was an eye witness, confirm the events with others if possible.

– Review prior notes.



Documented– Be Methodical

Do you have essentially the same protocol for investigating every allegation or incident?

– Have a template prepared before you start Helps guide the investigation Automatically creates a comprehensive,

documented investigation to show surveyors– Check boxes

Show what you did (just like surveyors) OK if some items are “N/A” Really OK to do something “useless” because it

shows you are thorough


The Investigation

There is no requirement that an investigation determine the cause of an incident or accident.– Still make a conclusion:

substantiated/unsubstantiated, credible/inconclusive, confirmed/disproved, etc.

If the cause truly is unclear, it is ok to state that the cause could not be determined.

Have legal review any report that involves a resident injury or death.


While the Investigation Is Ongoing

Presume that there will be an on-site survey by State survey agency and assume that they will cite the facility with a deficiency.

It is best to presume that they will cite the deficiency at an immediate jeopardy.

Take proactive measures to respond to the presumed immediate jeopardy:– Assess all residents with the same issues or risks

– Review relevant policy and revise if necessary

– In-service staff on relevant policy

– Audit compliance going forward


Final, Follow-Up Report

Send to State survey agency– The results of all investigations must be reported to

the administrator or designated representative or to other officials in accordance with State law within five working days of the incident and, if the alleged violation is verified, appropriate corrective action must be taken.



Contents1.Summary of facts – what we know happened.2.Summary of investigation – who we interviewed, what we considered.3.Summary of proactive measures – in servicing of staff, review of other residents with similar conditions or concerns (e.g., high risk for falls or elopement risk).4.Conclusion – remember if we were unable to determine what happened that is ok.



If the facility’s investigation concludes that no abuse, neglect or injury of unknown origin occurred, then:– Report the facility’s open-minded investigation methods,

and– Evidence that disproves the allegation

If the facility’s investigation concludes that abuse, neglect or injury of unknown origin did occur, then:– Still, “Just the facts, ma’am” – now just more of them.– Leave out blame, motivations, irrelevant or side issues,

etc.



“Move along, nothing to see here”– Show your swift, strong action taken to

address the abuse, neglect, or injury (i.e., POC steps: resident assessments, staff discipline/termination, in-service training, etc.), so there is no need for surveyors to investigate because you have already done it all!

But, be aware that it doesn’t end here.


Further Follow Up

Discipline staff as appropriate– Reprimand– Suspend– Terminate– Report to registry

Train staff– Orientation– In servicing– One-to-one training


Further Follow Up

If a systemic issue is identified, figure out how to address it and how you will monitor the issue going forward.

Prepare information to give to the surveyor, including abuse survey response file:– Original State survey agency report– Facility abuse policy– Summary of investigation– Follow-up report– In servicing documentation– Copies of updated care plans if applicable


Have Policies & Procedures In Place

The underlying incident or accident may be hard for State survey agency to prove or the facility may have a strong defense…but, violations are sustained because the facility’s follow-up reporting and investigation were inadequate.


Required Policies and Procedures

Federal Guidance (State Operations Manual)SNFs must develop and implement policies and procedures that include:

1. Screening potential employees for history of abuse or mistreatment2. Training employees on issues related to abuse3. Prevention, including resident and family education as well as

identifying, correcting, and intervening in situation where abuse is more likely to occur

4. Identification of events and trends that may constitute abuse5. Investigation of incidents6. Protection of residents during investigations7. Reporting/response, including reporting all alleged violations and

substantiated incidents to state agency, reporting to State nurse aide registry or licensing authorities unfit employees, taking corrective action as necessary, and analyzing what changes are needed to prevent further occurrences


Required Policies and Procedures

The facility shall develop and implement a policy concerning local law enforcement notification, including:

1) Ensuring the safety of residents in situations requiring local law enforcement notification; 2) Contacting local law enforcement in situations involving physical abuse of a resident by another resident; 3) Contacting police, fire, ambulance and rescue services in accordance with recommended procedure; 4) Seeking advice concerning preservation of a potential crime scene; 5) Facility investigation of the situation.


Questions??

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