Focus on Long Term Care: CMS Issues Multiple Skilled Nursing Facility/Nursing Facility Guidance Documents

by Baker Donelson
Contact

[author: Howard L. Sollins]

On September 27, 2012, the Centers for Medicare and Medicaid Services (CMS) issued advance copies of four significant survey guidance documents amending the State Operations Manual (SOM) governing the Medicare skilled nursing facility (SNF) and Medicaid nursing facility (NF) survey and certification process. They are being implemented as of November 30, 2012.

The SOM amendments were issued in multiple Survey and Certification (S&C) guidance documents, each of which was accompanied by CMS slides and training materials:

  • 12-45-NH: Revisions to Survey Protocol for Long Term Care Facilities and related forms and exhibits;
  • 12-46-NH: Feeding Tubes: F-Tag 322
  • 12-47-NH: Advance Directives: F-Tag 155; and
  • 12-48-NH: Quality of Care: F-Tag 309.

While the documents merit detailed review, following are highlights for particular focus.

Revisions to Survey Protocol (S&C 12-45-NH)

  • Surveyors are instructed to devote as much time as possible to observations and conducting formal and informal interviews, while reviews of records and policies and procedures should be performed to obtain specific information or verify or corroborate potential concerns.
  • In reviewing facility characteristics and demographic information about the resident population, both statewide and national comparisons will be made.
  • The CASPER report will be used to determine if the facility has patterns of deficiencies in particular tags or related tags.
  • Complaints should not be reinvestigated, but the issues may point to residents or concerns to be addressed on the current survey.
  • The “best” residents to select are often those who have multiple care areas that have been selected as potential concerns.
  • As for waivers of staffing or room issues, final approval of any waiver or variance is to be made by the state or CMS regional office and not by the surveyor at the time of the survey. Specific questions about room size, occupancy windows and access will be asked.
  • The use of the QM report is highlighted, for example distinguishing between short-stay and long-stay residents for certain purposes, based on whether the resident has been in the facility for 101 or more days.
  • Visitors have been added to the list of individuals who may be interviewed, which also includes residents, family, etc.
  • The admission packet and contract is added to the items that will be requested within an hour or as soon as possible after the entrance conference, as well as a list of all residents who are receiving or have received antipsychotic medications over the past 30 days; a list of residents age 55 and under and residents who communicate with non-oral devices or sign language, or who speak a language other than the facility’s dominant language; and a copy of the current actual daily work schedules for licensed and registered nursing staff for all shifts during the survey period.
  • In documenting observations, interviews and “conversations” with staff, residents, family or other individuals, the date, time and names of involved persons must be recorded, along with a description of the information used to survey findings, decisions and deficiencies.
  • Surveyors are advised that it is up to them to allow or refuse to allow facility personnel to accompany them during a survey, including not tolerating facility staff who hinder the surveyor, argue about observed problems or otherwise make the survey more difficult.
  • Residents receiving dialysis or hospice services are highlighted for consideration in developing samples, among other factors.
  • In determining whether a resident is “interviewable” the surveyor is to consider the results of the MDS-Brief Interview for Mental Status. If the result of the BIMS is a score of 8-15, the resident may be identified as interviewable, but at 0-7 or 99 the resident may be identified as a “Family Interview Candidate.”
  • In the revised guidance, CMS advises that survey teams should be providing a “daily exit conference” with negative findings since some require observation over time or further investigation.
  • Residents, members of their family or guardians have the right to refuse to be interviewed by surveyors. Facility staff are not permitted to participate in such interviews unless requested by the resident, family or guardian. However, residents may only be handled by facility staff. Where a deficiency is disputed and/or appealed the identity of the person providing the information may need to be revealed.
     

Feeding Tubes: F-Tag 322 (S&C 12-46-NH)

  • F-Tag 321 is deleted and its concepts incorporated into F-Tag 322.
  • Use of a feeding tube should be based on whether it is unavoidable, i.e., if no other viable alternative to maintaining adequate nutrition and hydration is possible and the use of the feeding tube is consistent with the clinical objective of trying to maintain or improve nutrition and hydration parameters.
  • Duration may vary based on the clinical situation.
  • CMS outlines what is included in a clinically pertinent rationale for using a feeding tube, along with possible benefits and adverse effects.
  • Clinically pertinent documentation for feeding tubes longer than 30 days is expected. CMS notes, in part, that “The extended us of enteral feeding tubes in individuals with advanced dementia remains controversial. The literature regarding enteral feeding of these individual suggests that there is little evidence that enteral feeding improved clinical outcomes (e.g., prevents aspiration or reduces mortality).”
  • Guidance is provided on facility obligations when a feeding tube was placed prior to admission or in another setting.
  • Technical guidance is offered, as well as a feeding tube investigative protocol.
  • Note that there is an expectation that, prior to inserting a feeding tube, “the prescriber” reviews the resident’s choices/instructions and goals, as well as advance directive. Contact with the attending physician or facility medical director may occur.
  • Scope and severity guidance relating to tube feeding use is included, for the scoring of deficiencies.
     

Advance Directives: F-Tag 155 (S&C 12-47-NH)

  • There is a detailed discussion about expectations for facility policies and procedures to promote and implement resident rights to make health care decisions and advance directives.
  • The guidance confirms that residents may not be required to make an advance directive.
  • The guidance includes an extensive discussion of advanced care planning with residents, family and others.
  • Refusal of treatment may be a ground for discharge only if the regulatory grounds are met. Refusal of treatment may still require other medical care. The example is given that a resident who is refusing food and fluids and who is expected to die is to receive appropriate measures for pressure ulcer prevention.
  • Scope and severity guidance relating to advance directives and advanced care planning is included, for the scoring of deficiencies.

Quality of Care: F-Tag 309 (S&C 12-48-NH)

The information in the Quality of Care guidance is relevant, not only to SNFs and NFs, but also to hospices providing services at those locations, whether for terminally ill residents or those needing palliative care.

  • The survey guidance anticipates facilities identifying residents who are “approaching the end of life,” leading to interdisciplinary advance care planning, advice about palliative care and hospice care and a period review of the plan of care. The guidance does recognize that it is “difficult to predict exactly when someone will die” but anticipates assessment and reassessment to identify remediable symptoms and identify ways to optimize comfort and relieve suffering. Note that there is a recognition that some interventions may cause discomfort that outweighs benefits, for example, when the risk of skin breakdown and related prevention and treatment measures are infeasible or cause discomfort greater than the benefit.
  • The survey guidance includes a helpful discussion of medical treatment in this context, such as when the frequency of monitoring and tests should be greatly reduced or discontinued or less intrusive measures used. Other examples include when palliative use of medications to address terminal restlessness is not considered a form of chemical restraint, or when weight loss and fluid imbalance/dehydration at the end of life are a consequence and not a cause of the dying process and when routine weight measurements should be discontinued.
  • The survey guidance addresses how SNFs and NFs make hospice services available either in that facility or by transferring the resident to a facility that has the hospice service that the resident desires.
  • The SOM provides guidance on how the facility and the hospice meet their respective obligations under applicable law, and addresses the facility’s care obligations after the hospice benefit is elected.
  • Investigative protocols are provided, as well as criteria for scoring the scope and severity of deficiencies.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Baker Donelson | Attorney Advertising

Written by:

Baker Donelson
Contact
more
less

Baker Donelson on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.