When resident rights could be wrongs

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Emily Mongan
Emily Mongan

The Centers for Medicare & Medicaid Services' new requirements for participation brought the first regulatory overhaul for the skilled nursing sector since 1991, and with it a host of person-centered updates that earned praise from consumers and providers alike.

But what happens when a resident's wishes clash with the regulations with which long-term care providers must comply?

“You've got this awful balance that you are put in the middle of,” attorney Sean Fahey told attendees of the American College of Health Care Administrator's annual convocation on Sunday. “How do I make sure you guys are OK, but I'm not clamping down on you too hard? You're in a really no-win situation — inevitably you're going to make somebody mad. The resident's going to be mad with you, or CMS or the surveyors are going to be mad with you.”

Fahey, of Hall, Render, Killian, Heath & Lyman P.C., presented cases of providers fighting the battle between pleasing residents, appeasing their families, and staying in compliance with CMS.

In one instance, a facility was cited after a surveyor spotted runny eggs being served to some residents at breakfast — the way those residents requested. The citation turned into a court battle over what took precedence: residents' food choices, or ambiguous CMS regulations.

In another case, a facility was cited for elopment after a resident was taken out by his girlfriend without being signed out — and was subsequently left on the street, blocks away from the facility, when the girlfriend spotted the resident's wife's car in the parking lot. In that instance, safety trumped resident's rights, regardless of the facility's instance that the resident's exit was voluntary.

It's a fine line to walk, fraught with unpredictable situations and conflicting opinions from residents, their families and surveyors. Further complicating the issue is when the rights in question move beyond how a resident wants his or her eggs cooked, and onto things like refusing treatment, or not following dietary guidelines prescribed by a physician.

Do residents have the capacity to understand the choices they're making? When will a provider's compliance and policies trump a resident's choice, especially now with the new requirements of participation?

“Where are you guys in all of this? These regs have only muddied the waters for you,” Fahey said. “They cause a lot more challenges for you to sit there and be the police officer, the interpreter, the family negotiator, as well as person providing care to their loved ones.”

Fahey advised providers to handle the rocky rights-related road ahead by making sure residents' decision making capacities has been assessed, and that the facility isn't just looking to family members for input. Facilities would also be wise to verify residents wishes, whether they have a surrogate decision maker designated, and whether a resident's capacity is documented in their medical record.

Facilities can also help bolster their case in the event of a rights-related ciation by alerting a resident's physician and other care team members of a resident's choices, documenting as much as possible, making sure policies are up to date, and striving for clarity when explaining the risks and benefits of the resident's choices.

“The real challenging matter is what happens when that resident's decision posts a greater risk for you,” Fahey asked. “The new regs left a lot on the table for the resident to have control over.”

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Daily Editors' Notes

McKnight's Daily Editors' Notes features commentary on the latest in long-term care news and issues. Entries are written by Editorial Director John O'Connor, Editor James M. Berklan, Senior Editor Elizabeth Newman and Staff Writer Marty Stempniak.