Admission and visitation policies among top potential legal pitfalls in new rule, expert says

WASHINGTON, D.C — Long-term care providers should pay special attention to their admission, visitation and grievance policies under the new requirements of participation rule from the Centers for Medicare & Medicaid Services, a legal expert said Tuesday.

The Phase 2 compliance deadline is Nov. 28, although the overhaul of the survey system this year has pushed many in the industry to ask for more time.

As facilities examine their admission policies, incoming residents with substance abuse problems should be top of mind, warned  attorney Carol Rolf during a LeadingAge PEAK session. In one case that she recounted, a resident overdosed at a nursing home within 24 hours of being admitted.

“She had several visitors. She was a younger patient. There was no indication at the time of admission that she was an active heroin user,” Rolf said. “We are going to have to get much better at asking for social history. I know a lot of times people don't tell you the truth, but you need to be on record as having tried.”

Providers have long been asked to have a 24/7 visitation policy, but the new rule allows more flexibility, said Rolf, senior partner at Rolf Goffman Martin Lang LLP.

“There have been a number of issues that have arisen from the 24/7 policy,” she said. “If you say, ‘We are open 24/7,' I would strongly urge you to look at this issue. The truth is we have a lot of dysfunctional families that can really cause havoc, and we need to have restrictions.”

Rolf used an example of a facility where a family would visit a resident at 2 a.m., turning on the television and disturbing the roommate.

“The facility tried in every civil way it knew to work with this family,” she said. Lawyers became involved once the facility received an Immediate Jeopardy citation for the disruptive family intimidating and other residents in the facility.

“It goes to show you that CMS and state agencies are sensitive to this issue and they will respect restrictions,” she said. Another common problem is visitors endangering the resident. This can include physical abuse, adjusting tube feedings or bringing in cigarettes when the resident is on oxygen.

“The clearer we are about these things, the better off we will be,” Rolf said.

There also are new rules around grievances, she said.

“It's much more prescriptive than anything we have seen in the past,” she said. Providers need to choose who their grievance officer should be. “It has to be someone who has time and who is a people person. And they need to keep good records.”

Be wary of how complaints and written decisions are documented, she added.

“Your attorney doesn't have to look at everything, but if a certain kind of language is used, you may have documented a cause of action,” which can happen if an employee uses words such as “abuse” or “neglect,” she said.

Documentation should stick with facts, she said. “How often have I seen staff write, ‘The black jacket was stolen,'” she said. “No. The jacket is missing, and here's what we did to find it.”

Another hot-button issue is residents who want to have a sexual relationship.

“The guidance I have provided is that if the individual can articulate why they want to have the relationship and can understand risks/benefits, and that's generally between a physician and individual. Then with some sexual education that can be care planned. There's no reason to not let people have the right to have relationships,” she said. However, when the family objects to a relationship, it has to be taken on a case-by-case basis. Facilities have to balance the risk over a family member suing compared to a resident's rights being violated.

In an earlier PEAK session, Andy Edeburn, Vice President at Premier Inc. in Charlotte, NC, reminded participants that while running a nursing home is risky, there are strategies to survive. Among these is increasing an ability to manage older, sicker seniors — because they are “only going to get more complicated.”

“What these ACOs are looking for is how to manage chronic risk,” Edeburn added. “We have to change the paradigm of our strategy. We have to tear it down. Our job as aging services professionals is to create a new business model.”

PEAK concludes Wednesday with providers visiting their respective lawmakers on Capitol Hill.