Geriatric Nursing 36 (2015) 144e145
Contents lists available at ScienceDirect
Geriatric Nursing journal homepage: www.gnjournal.com
Legal Column
Howard L. Sollins
Donna J. Senft
Susan A. Turner
Behavior management: Key regulatory issues Howard L. Sollins, JD OberjKaler, Attorneys at Law, 100 Light Street, Baltimore, MD 21202, USA
Skilled nursing facility (SNF) residents sometimes exhibit behaviors that are difficult to manage themselves or with the assistance of others. Such behaviors may be verbal, or sometimes physical. Sometimes they may be directed at themselves or staff and sometimes against other residents. Some believe that the SNF’s preferred responses to difficult behaviors are either immediate discharge or medicating the resident for the convenience of staff. The reality is often contrary to such negative stereotypes. Instead, SNFs recognize that residents exhibiting such behavior are experiencing suffering or are incapable of self-insight. This is not a clinical article. It is not an article that warns facilities and staff that they are subject to lawsuits for negligent responses to actual or threatened harm. Facilities know they have such exposure. They typically exercise due diligence in developing their responses to protect residents and others. Not all residents can be readily relocated. A key relevant consideration is what regulatory parameters govern and focus SNF responses as they seek to manage resident behavior. Psychosocial adjustment This is the starting point in any resident stay. Under State Operations Manual (SOM) Appendix PP, F319, CMS implements Requirements of Participation, 42 CFR x483.25(f)(1) “A resident who displays mental or psychosocial adjustment difficulty, receives appropriate treatment and services to correct the assessed problem.” CMS explains the intent of this regulation is that the resident receives care and services to assist him or her to reach and maintain the highest level of mental and psychosocial functioning. Sometimes an adjustment is unsuccessful during a particular period. The
E-mail address: [email protected]. 0197-4572/$ e see front matter Ó 2015 Elsevier Inc. All rights reserved. http://dx.doi.org/10.1016/j.gerinurse.2015.02.009
intention is to highlight Centers for Medicare and Medicaid Services (CMS) areas of concern and expectation, as facilities explore approaches to manage problematic behavior. Even under these strictures, SNFs are not without tools. These provisions sometimes help to identify boundaries that cause a tool to become a punishment. Restraints Facilities, of course, should not use drugs or devices to restrain residents for punishment or facility convenience. Under CMS Requirements of Participation at 42 CFR x483.13(a) “The resident has the right to be free from any physical or chemical restraints imposed for purposes of discipline or convenience, and not required to treat the resident’s medical symptoms.” The CMS SOM addresses chemical or physical restraints under F 221 and 222. The CMS State Operations Manual (SOM) defines “Convenience” as “any action taken by the facility to control a resident’s behavior or manage a resident’s behavior with a lesser amount of effort by the facility and not in the resident’s best interest.” In turn, “Discipline” means any action taken by the facility for the purpose of punishing or penalizing residents.” In a care emergency, according to CMS, “restraints may be used for brief periods to permit medical treatment to proceed unless the facility has a notice indicating that the resident has previously made a valid refusal of the treatment in question. If a resident’s unanticipated violent or aggressive behavior places him/her or others in imminent danger, the resident does not have the right to refuse the use of restraints. In this situation, the use of restraints is a measure of last resort to protect the safety of the resident or others and must not extend beyond the immediate episode. The facility may not use restraints in violation of the regulation solely based on a legal surrogate or representative’s request or approval.”
H.L. Sollins / Geriatric Nursing 36 (2015) 144e145
Seclusion Sometimes, separation of a resident is an effective response. Under the CMS Requirements of Participation, at 42 CFR x483.13(b) “The resident has the right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion.” The CMS SOM, at F223 states “Involuntary seclusion” is defined as separation of a resident from other residents or from the resident’s room or confinement to the resident’s room (with or without roommates) against the resident’s will, or the will of the resident’s legal representative. CMS asserts that “Emergency or short-term monitored separation from other residents is not involuntary seclusion. It 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.” Sometimes the resident may live in a secure, locked unit. Some facilities do not have such designated units or a resident may not be suited to such a setting. If there is a designated, secure unit that restricts from free movement throughout the facility so as to provide specialized care to cognitively impaired residents, this is not considered involuntary seclusion, so long as “care and services are provided in accordance with each resident’s individual needs and preferences rather than for staff convenience, and as long as the resident, surrogate, or representative (if any) participates in the placement decision, and is involved in continuing care planning to assure placement continues to meet resident needs and preferences.” However, “if a resident is receiving 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 is not 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.” If a resident is being temporarily separated from other residents, surveyors are instructed to ask: Is the separation for less than 24 h, as an emergency short-term intervention 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 not, 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? If staff does react inappropriately to extreme resident behavior, the SNF is at risk for a deficiency for the staff member for striking a resident, even when that staff reaction has followed training and is completely unanticipated. There are appellate rulings from survey decisions on the subject of such “strict liability” survey citations. The CMS survey team may cite the SOM provision stating: “Properly
145
trained staff should be able to respond appropriately to resident behavior. The CMS does not consider striking a combative resident an appropriate response in any situation. Retaliation by staff is abuse and should be cited as such.”
Resident-to-resident altercations These too can lead to survey violations and SNFs are advised take steps to address them. CMS considers whether the injury is “willful” and, if so, can hold the facility accountable. “‘Willful’ means that the individual intended the action itself that he/she knew or should have known could cause physical harm, pain, or mental anguish. Even though a resident may have a cognitive impairment, he/she could still commit a willful act.” Facilities must take reasonable precautions, including providing adequate supervision, when the risk of resident-to-resident altercation is identified, or should have been identified. According to the SOM, certain situations or conditions may increase the potential for such altercations, including, but not limited to: A history of aggressive behaviors including striking out, verbal outbursts, or negative interactions with other resident(s); and/ or Behavior that tends to disrupt or annoy others such as constant verbalization (e.g., crying, yelling, calling out for help), making negative remarks, restlessness, repetitive behaviors, taking items that do not belong to them, going into others’ rooms, drawers, or closets, and undressing in inappropriate areas. Although these behaviors may not be aggressive in nature, they may precipitate a negative response from others, resulting in verbal, physical, and/or emotional harm. SNFs are expected to identify residents who have a history of disruptive or intrusive interactions, or who exhibit other behaviors that make them more likely to be involved in an altercation. This includes identifying factors that increase the risks associated with individual residents, including those that could trigger an altercation. The care planning team reviews the assessment along with the resident and/or the resident’s representative, in order to identify interventions to try to prevent altercations. CMS recommends the following interventions listed below: Providing safe supervised areas for unrestricted movement; Eliminating or reducing underlying causes of distressed behavior such as boredom and pain; Monitoring environmental influences such as temperatures, lighting, and noise levels; Evaluating staffing assignments to ensure consistent staff who are more familiar with the resident and who thus may be able to identify changes in a resident’s condition and behavior; Evaluating staffing levels to ensure adequate supervision (if it is adequate, it is meeting the resident’s needs); and Ongoing staff training and supervision, including how to approach a resident who may be agitated, combative, verbally or physically aggressive, or anxious, and how and when to obtain assistance in managing a resident with behavior symptoms. In summary, as in all other areas of care, CMS0 expectation is that facilities are aware of resident needs, plan for them, and implement interventions and limitations that implement effective care planning. Punishment, convenience, or as a response to frustration are not justifications for improper restrictions on residents.
Contents lists available at ScienceDirect
Geriatric Nursing journal homepage: www.gnjournal.com
Legal Column
Howard L. Sollins
Donna J. Senft
Susan A. Turner
Behavior management: Key regulatory issues Howard L. Sollins, JD OberjKaler, Attorneys at Law, 100 Light Street, Baltimore, MD 21202, USA
Skilled nursing facility (SNF) residents sometimes exhibit behaviors that are difficult to manage themselves or with the assistance of others. Such behaviors may be verbal, or sometimes physical. Sometimes they may be directed at themselves or staff and sometimes against other residents. Some believe that the SNF’s preferred responses to difficult behaviors are either immediate discharge or medicating the resident for the convenience of staff. The reality is often contrary to such negative stereotypes. Instead, SNFs recognize that residents exhibiting such behavior are experiencing suffering or are incapable of self-insight. This is not a clinical article. It is not an article that warns facilities and staff that they are subject to lawsuits for negligent responses to actual or threatened harm. Facilities know they have such exposure. They typically exercise due diligence in developing their responses to protect residents and others. Not all residents can be readily relocated. A key relevant consideration is what regulatory parameters govern and focus SNF responses as they seek to manage resident behavior. Psychosocial adjustment This is the starting point in any resident stay. Under State Operations Manual (SOM) Appendix PP, F319, CMS implements Requirements of Participation, 42 CFR x483.25(f)(1) “A resident who displays mental or psychosocial adjustment difficulty, receives appropriate treatment and services to correct the assessed problem.” CMS explains the intent of this regulation is that the resident receives care and services to assist him or her to reach and maintain the highest level of mental and psychosocial functioning. Sometimes an adjustment is unsuccessful during a particular period. The
E-mail address: [email protected]. 0197-4572/$ e see front matter Ó 2015 Elsevier Inc. All rights reserved. http://dx.doi.org/10.1016/j.gerinurse.2015.02.009
intention is to highlight Centers for Medicare and Medicaid Services (CMS) areas of concern and expectation, as facilities explore approaches to manage problematic behavior. Even under these strictures, SNFs are not without tools. These provisions sometimes help to identify boundaries that cause a tool to become a punishment. Restraints Facilities, of course, should not use drugs or devices to restrain residents for punishment or facility convenience. Under CMS Requirements of Participation at 42 CFR x483.13(a) “The resident has the right to be free from any physical or chemical restraints imposed for purposes of discipline or convenience, and not required to treat the resident’s medical symptoms.” The CMS SOM addresses chemical or physical restraints under F 221 and 222. The CMS State Operations Manual (SOM) defines “Convenience” as “any action taken by the facility to control a resident’s behavior or manage a resident’s behavior with a lesser amount of effort by the facility and not in the resident’s best interest.” In turn, “Discipline” means any action taken by the facility for the purpose of punishing or penalizing residents.” In a care emergency, according to CMS, “restraints may be used for brief periods to permit medical treatment to proceed unless the facility has a notice indicating that the resident has previously made a valid refusal of the treatment in question. If a resident’s unanticipated violent or aggressive behavior places him/her or others in imminent danger, the resident does not have the right to refuse the use of restraints. In this situation, the use of restraints is a measure of last resort to protect the safety of the resident or others and must not extend beyond the immediate episode. The facility may not use restraints in violation of the regulation solely based on a legal surrogate or representative’s request or approval.”
H.L. Sollins / Geriatric Nursing 36 (2015) 144e145
Seclusion Sometimes, separation of a resident is an effective response. Under the CMS Requirements of Participation, at 42 CFR x483.13(b) “The resident has the right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion.” The CMS SOM, at F223 states “Involuntary seclusion” is defined as separation of a resident from other residents or from the resident’s room or confinement to the resident’s room (with or without roommates) against the resident’s will, or the will of the resident’s legal representative. CMS asserts that “Emergency or short-term monitored separation from other residents is not involuntary seclusion. It 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.” Sometimes the resident may live in a secure, locked unit. Some facilities do not have such designated units or a resident may not be suited to such a setting. If there is a designated, secure unit that restricts from free movement throughout the facility so as to provide specialized care to cognitively impaired residents, this is not considered involuntary seclusion, so long as “care and services are provided in accordance with each resident’s individual needs and preferences rather than for staff convenience, and as long as the resident, surrogate, or representative (if any) participates in the placement decision, and is involved in continuing care planning to assure placement continues to meet resident needs and preferences.” However, “if a resident is receiving 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 is not 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.” If a resident is being temporarily separated from other residents, surveyors are instructed to ask: Is the separation for less than 24 h, as an emergency short-term intervention 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 not, 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? If staff does react inappropriately to extreme resident behavior, the SNF is at risk for a deficiency for the staff member for striking a resident, even when that staff reaction has followed training and is completely unanticipated. There are appellate rulings from survey decisions on the subject of such “strict liability” survey citations. The CMS survey team may cite the SOM provision stating: “Properly
145
trained staff should be able to respond appropriately to resident behavior. The CMS does not consider striking a combative resident an appropriate response in any situation. Retaliation by staff is abuse and should be cited as such.”
Resident-to-resident altercations These too can lead to survey violations and SNFs are advised take steps to address them. CMS considers whether the injury is “willful” and, if so, can hold the facility accountable. “‘Willful’ means that the individual intended the action itself that he/she knew or should have known could cause physical harm, pain, or mental anguish. Even though a resident may have a cognitive impairment, he/she could still commit a willful act.” Facilities must take reasonable precautions, including providing adequate supervision, when the risk of resident-to-resident altercation is identified, or should have been identified. According to the SOM, certain situations or conditions may increase the potential for such altercations, including, but not limited to: A history of aggressive behaviors including striking out, verbal outbursts, or negative interactions with other resident(s); and/ or Behavior that tends to disrupt or annoy others such as constant verbalization (e.g., crying, yelling, calling out for help), making negative remarks, restlessness, repetitive behaviors, taking items that do not belong to them, going into others’ rooms, drawers, or closets, and undressing in inappropriate areas. Although these behaviors may not be aggressive in nature, they may precipitate a negative response from others, resulting in verbal, physical, and/or emotional harm. SNFs are expected to identify residents who have a history of disruptive or intrusive interactions, or who exhibit other behaviors that make them more likely to be involved in an altercation. This includes identifying factors that increase the risks associated with individual residents, including those that could trigger an altercation. The care planning team reviews the assessment along with the resident and/or the resident’s representative, in order to identify interventions to try to prevent altercations. CMS recommends the following interventions listed below: Providing safe supervised areas for unrestricted movement; Eliminating or reducing underlying causes of distressed behavior such as boredom and pain; Monitoring environmental influences such as temperatures, lighting, and noise levels; Evaluating staffing assignments to ensure consistent staff who are more familiar with the resident and who thus may be able to identify changes in a resident’s condition and behavior; Evaluating staffing levels to ensure adequate supervision (if it is adequate, it is meeting the resident’s needs); and Ongoing staff training and supervision, including how to approach a resident who may be agitated, combative, verbally or physically aggressive, or anxious, and how and when to obtain assistance in managing a resident with behavior symptoms. In summary, as in all other areas of care, CMS0 expectation is that facilities are aware of resident needs, plan for them, and implement interventions and limitations that implement effective care planning. Punishment, convenience, or as a response to frustration are not justifications for improper restrictions on residents.
