The Importance of Screening Prospective Residents
Most care facilities have measures in place to prevent resident abuse by staff. But what happens when another resident causes the abuse? Residents with behavioral issues can pose a serious risk of injury to other residents, staff and visitors. To assist facilities, Kendall Watkins, JD of the Davis Brown Law Firm, of Des Moines, Iowa offers the following advice.
All residents in long-term care facilities have protections provided by statute or regulation that limit a facility's ability to discharge a resident relating to behavioral issues. Because of the limitations associated with discharge, as well as both regulatory hurdle and practical concerns in finding alternative placements, the best advice that can be provided is to carefully screen prospective residents relating to past behaviors, including the use of medications that may be indicative of behavioral issues.
While all facilities feel the pressure to maintain census, taking a resident with significant behavioral issues may result in significant costs to a facility in the long run; financially, in staff morale, as well as in damaged reputation and public relations issues. Beware of prospective residents who have had multiple placements or who a hospital discharge planner has described as already contacting numerous facilities.
Regulatory Requirements and Guidelines
A facility with a resident with significant behavioral issues will be held to a high standard in properly caring for the resident, as well as protecting other residents from physical harm or negative impact on resident welfare.
The regulations cited under F323 provides that a facility must ensure that:
- The resident environment remains as free from accident hazards as is possible; and
- Each person receives adequate supervision and assistive devices to prevent accidents.
Supervision/adequate supervision refers to an intervention and means of mitigating the risk of an accident. Facilities are obligated to provide adequate supervision to prevent accidents. Adequate supervision is defined by the type and frequency of supervision, based on the individual resident's assessed needs and identified hazards in the resident environment. Adequate supervision may vary from resident to resident and from time to time for the same resident.
In addition, the definition of abuse under the federal certification regulations F223 is broad: "The resident has the right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion." The interpretative guidelines for this rule provide that "each resident has the right to be free from abuse, corporal punishment, and involuntary seclusions. Residents must not be subjected to abuse by anyone, including, but not limited to, facility staff [and] other residents."
If a resident exhibits behavioral issues involved in striking out at other peer residents, close staff supervision will be required to protect those residents from harm. State agencies have indicated in past situations that one-on-one staff supervision may be required if that is what is necessary to protect the safety of other residents.
While there are other assistive devices, such as alarms, that can be utilized to alert staff of a resident's movement, any intervention that prohibits a resident from free movement in the common areas of a facility or separates a resident from other peer residents may be considered a violation of the resident's right, abuse or an impermissible restraint.
The guidelines under F223 provide that involuntary seclusion is 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. Emergency or short-term monitored separation from other residents will not be considered involuntary seclusion and may be permitted if used for a limited period of time as a therapeutic intervention to reduce agitation until professional staff can develop a plan of care to meet the resident's needs.
While the guidelines provide that a resident may receive emergency short-term monitored separation due to temporary behavioral symptoms (such as brief catastrophic reactions or combative or aggressive behaviors which pose a threat to the resident, other residents, staff or others in the facility), this temporary separation will be considered involuntary seclusion as long as this is the least restrictive approach for the minimum amount of time, and is being done according to resident needs and not for staff convenience.
- What are the symptoms that led to the consideration of the separation?
- Are these symptoms caused by failure to:
- Meet individual needs?
- Provide meaningful activities?
- Manipulate the resident's environment?
- Can the cause(s) be removed?
- If the cause(s) cannot be removed, has the facility attempted to use alternatives short of separation?
- If these alternatives have been tried and found ineffective, does the facility use separation for the least amount of time?
- To what extent has the resident, surrogate or representative (if any) participated in care planning and made an informed choice about separation?
- Does the facility monitor and adjust care to reduce negative outcomes, while continually trying to find and use less restrictive alternatives?
Physicians must be consulted to determine if there are pharmacological interventions that may minimize behaviors. Additional interventions may include moving residents closer to the nurses' stations, documented 15-minute checks, additional involvement in personalized activities to assist in redirection, physical placement and monitoring during meals and activities.
The difficulty in attempting to coordinate appropriate supervision is that, oftentimes, a resident's behaviors are unpredictable and occur without warning. In addition, once a resident has exhibited those behaviors, the facility is on notice of the resident's propensities and effective interventions must be implemented to prevent future behaviors from affecting other residents.
State agencies have cited deficiencies at an "immediate jeopardy" level for resident behaviors that have resulted in physical harm or evidence of sexual assault on peer residents. In addition, nursing home administrators and nurses have been investigated by their respective licensing boards relating to allegations of ineffective resident supervision resulting in resident harm or outcome.
In situations where clinical attempts to moderate behaviors are unsuccessful, involuntary discharge may be the only option remaining. Once a resident has been admitted to your facility, the allowed bases for discharge are narrowly prescribed by federal and state regulation:
A resident's negative behaviors will likely fall under the category of "…for the resident's welfare or that of other residents," which refers to their social, emotional, or physical well-being. A resident might be transferred or discharged because the resident's behavior poses a continuing threat to the resident (e.g. suicidal) or to the well-being of other residents or staff (e.g. the resident's behavior is incompatible with the resident's needs and rights). Source: §58.40(1)(b); §57.36(1)(b)
Behaviors impacting other residents, such as yelling, verbally abusing, striking out, and sexual assault of peer residents suffice as reasons for discharge. These behaviors need to be well-documented in the clinical record, including any identified impact on the other residents.
A resident who is non-compliant with care needs (e.g. refusing medications), or care directives (e.g. repositioning, bathing) usually does not provide sufficient basis for discharge, unless that refusal has an impact on other residents in the facility (e.g. odor considerations).
Discharges based on "welfare" considerations – the regulations require "evidence that the resident's continued presence in the facility would adversely affect the resident's own welfare or that of other residents shall be made by the administrator or designee and shall be in writing and shall include specific information to support this determination." Source: §58.40(1)(b)
Careful compliance in providing the required discharge notices is necessary to minimize liability on behalf of the facility. State rules may provide for both a traditional 30-day discharge notice, as well as an emergency notice, in circumstances to protect the health, safety, or well-being of other residents and staff from the resident being transferred.
Determining Where to Discharge the Resident
One of the most significant issues that a facility may face in seeking discharge is locating a health care provider that is willing to assume the admission of the resident. If discharge is based on significant behavioral problems, it may be difficult, if not impossible, to locate a different provider who agrees to accept the resident. State agencies will watch a discharge action closely, and will not hesitate to cite a facility, if there is evidence to suggest that a resident has been "dumped" back on a family member without following the involuntary discharge procedures, if there is inadequate evidence of careful discharge planning including securing proper care resources.
Any attempt to transfer a resident to a hospital and then failing to take the resident back (without following the emergency involuntary discharge procedure) will likely result in findings of noncompliance and fines from the state regulatory agency, as well as the potential litigation by the hospital or a resident for "patient dumping."
Potential options may include discharge to different level of care providers (e.g. hospital, mental health institution, psychiatric facility, or home with home health services arranged). If a discharge is based on a resident's violent behavior, some facilities have called law enforcement, seeking arrest of the resident. However, law enforcement may refuse involvement out of concern that they will be stuck with placement considerations.
Best Defense is Prevention
Protect your residents and staff by making proactive and effective risk management changes in your facility by:
Identify the resident acuity level for which your facility can safely provide care and services. Set admission criteria and policies that enable staff to address behaviors.
If possible, have a nurse and social worker each personally assess all potential residents in their existing home environments. Each professional will see things uniquely, but both should assess for odors, safety interventions by the family, the potential resident's anxiety level and orientation within a familiar setting (it will be much worse in a new setting), etc. They should ask for any history and physical information for facility staff to review prior to admission.
Difficult resident behavior can dramatically impact the quality of life and safety of both residents and staff. It is crucial that your facility be able to manage these behaviors and not accept residents for whom this might be problematic.