Negligent Retention Part I: Exposing the Problem
Nursing Home Example Administrators dread the suspense of waiting for a State Surveyor to finish their complaint investigation, and Gayle was no exception. Minutes seemed like hours as she waited for a knock on her office door. Finally, they sat down with the DON for the exit conference. As you know, Ms. Smith died from a Subdural Hematoma after falling in your Memory Care Unit last Sunday morning, the Surveyor explained. Let me ask a couple of brief questions: I reviewed physician orders, falls care plan, and nurses notes and saw the usual interventions i.e., low bed, fall mat, alarms, nonslip socks, uncluttered room, and redirection, but can you show me where she received more face-to-face supervision from one fall to the next? She was placed in our locked memory care unit, the DON replied. I noticed a physician s order justifying the placement based on her severe Dementia and high elopement risk, but can you show me evidence that she received more supervision during this escalating pattern of falls other than casual statements in nurse s notes such as: will closely monitor?, the Surveyor asked. Well, she was very noncompliant and impossible to supervise at times! the DON replied in a raised-frustrated voice. We didn t have the resources to constantly follow her around all day, and using physical and chemical restraints would violate her rights to unrestricted freedom of movement. I m sure you noticed countless nurse s notes that constantly reminded her to ask for assistance, or instructed her to not ambulate without staff. Yes, the Surveyor responded, I saw those entries, but what about developing a care plan based on the timing of these falls? Did you know that 80% occurred in/near the bathroom during weekends? the Surveyor asked. No, I was not aware, but like I previously explained, she required far more supervision than my budget allows and besides, she has a right to fall, the DON concluded. The Surveyor turned to the Administrator and stated: let me read a sentence from the letter we received from her POA/Daughter which she copied you on I would have taken my mother to another facility if I knew they could not closely watch her. One final question the Surveyor continued: Can you provide evidence that you or your staff candidly informed the Complainant that her mother required more supervision than your facility is designed for? No Gayle replied, but we can t provide 1:1 supervision, and statistics prove we can t prevent all falls, so why confront this problem and stir things up, especially if the daughter can t find another facility? The Surveyor frowned at her response and informed Gayle that she was recommending a violation for avoidable accidents. Defining Moments Nursing Homes and Assisted Living Facilities face a critical decision when their residents exhibit a pattern of challenging behavior or experience a spiraling decline in health status; either deliver the necessary supervision and care to protect them from avoidable harm, OR promptly notify the resident and/or their family when critical aspects of bedside care and supervision must be left to chance due to operational limitations i.e., budget/staff expertise, AND locate a facility with their support/involvement that is designed to meet those needs. The failure of facility officials to take either course of action in a timely and responsible fashion constitutes a negligent retention. Facility officials/staff have no right to make value judgments that residents should remain in their care despite unnecessary exposure to harm. This decision rests solely with the resident/family based on a full disclosure by the facility of its limitations, and the risks imposed by the resident s behavior and/or health condition(s). Relying on liability disclaimers and admission handouts that quote national fall risk statistics does not constitute adequate and responsible notice.
Dear Health Department Official: Assisted Living Example I was relieved when the Admissions Director explained the Aging in Place Program to me. Mom can live in her own assisted living apartment and receive 24/7 personalized attention based on her level of care assessments, which will promote/maintain her independence, dignity, quality of life, and eliminate a nursing home placement if and when the need arises. Aging in Place was probably conceived with noble intensions, but most family members like me heavily rely on assisted living management/staff to preserve a resident s quality of life by providing or arranging for care and services that are equal to a Skilled Nursing Facility. Tragically, this program exposes residents like my mom to unnecessary harm by placing their perceived need for independence above her demonstrated need for 24 hour nursing care. My family feels betrayed by the broken promises and trust we placed in this facility and staff. In particular, my mother had a series of falls until she fractured her ankle in the bathroom. We brought her back to the assisted living facility assuming they would provide the care she needed, but they referred us to a home care agency for physical therapy and nursing staff. She lost a significant amount of weight and developed a large bedsore on her heel which required more home care services, but an Agency RN informed us that assisted living staff is responsible for ADL s, incontinence care, supervision, repositioning, and feeding assistance. However, she did not receive this care in a timely and consistent manner which triggered a hospital transfer last Monday morning for Sepsis, Dehydration, Malnutrition, and Gangrene. My mother has Dementia and is very confused, so it s hard to convince me that her lifestyle and independence was more important than experiencing these awful medical conditions. Most importantly, I was not given the opportunity to place her in a more appropriate facility. I m sure many assisted residents benefit from Aging in Place, but I found this program to be a patchwork approach that delivered her care in a very unreliable and unsafe manner. We wondered why assisted living staff never recommended a nursing home placement to us until we discovered their apartment vacancy problem. Thank you for investigating this matter. Sally Jones, Ph.D. Right to Say No Resident Rights are frequently cited by facility officials/staff to defend negligent retention. Unfortunately, while this doctrine was designed to protect residents from relinquishing certain fundamental freedoms they enjoy at home, some misguided staff misinterprets the right to refuse necessary care/treatment to mean that they are powerless to prevent them from making unsafe and irresponsible decisions regardless of their cognition or safety awareness. Of course, they dismiss how interpreting certain resident rights in the extreme violates overarching rights such as: to be free from abuse and neglect. Using this doctrine to shield staff from negligent care usually results when facility officials are unwilling/unable to devote the necessary supervision to address behaviorally challenged residents, or provide bedside staffing levels that address a spiraling decline in health status. Unfortunately, some facility officials allow and/or promote a dysfunctional culture where caregivers routinely deflect accountability by using well-rehearsed statements such as: they have a right to say no, you can t force them to, you can t restrain them, they have a right to ambulate, resident rights trump negative outcomes, it s their life, they have a right to die, etc.
Being Noncompliant Noncompliance is frequently cited by facility officials/staff to defend negligent retention. Unfortunately, some staff conveniently dismiss a diagnosis of Dementia/Alzheimer s disease, cognitive impairment, anxiety, delusions, forgetfulness, compromised insight/judgment, impulsivity, poor/no safety awareness, etc., despite a pervasive pattern of accidents and/or spiraling decline in health status. The underlying motive for this deflective conduct is simple; once caregivers acknowledge that residents no longer possess rational or safe judgment, and are therefore not capable and/or competent to represent themselves, then, the facility assumes FULL responsibility for their care, safety, and wellbeing. Tragically, some officials and Nurses embrace deflective conduct like reminding educating, or encouraging cognitively impaired residents to act properly because this meaningless exercise portrays them as responsible and rational. The term non-compliant implies that residents possess the cognition/awareness to recognize the consequences of refusing their care/treatment, and can adequately retain those expectations in order to assume personal responsibility. Noncompliant would be seldom heard if caregivers abandoned this irresponsible conduct. Negligent Retention Part II: No Substitute for Staffing Preconceived Notions v. Reality Negligent Retention Test Preventing Negligent Retention A Resident s Destiny Belongs to Them ABOUT THE AUTHOR: Lance Youles has consulted in over (45) states regarding abuse and neglect. He can be reached at (517) 548-1228 or at lancenpat@aol.com
Negligent Retention Part II: Staffing, Preconceived Notions, and Prevention
No Substitute for Staffing No operational factor has a greater impact on negligent retention than staffing levels, whether measured by moments in time i.e., accidents and acute condition changes, or periods of time i.e., cognitive and/or physical declines. Staffing problems range from low one-size-fits-all models, to inconsistent deployment, untimely lapses in caregiver coverage, unstable workforce, and unproductive nursing staff. The following understaffing scenario illustrates how insufficient staffing levels can set-the-stage for negligent retention: Understaffing Scenario HANDS-ON STAFFING: FACILITY 1: FACILITY 2: STATE AVERAGE: Day Shift CNA Ratios: 1:6 Residents 1:11 Residents 1:7 Residents Day Shift Nurse Ratios: 1:15 Residents 1:35 Residents 1:18 Residents Day Shift RN s: 40% of Floor Staff 5 % of Floor Staff 35% of Floor Staff VARIABLES: * Resident acuity is exactly the same including (1) HEAVY CARE RESIDENT at Facility (1) AND (2) with the following risk factors, dependency issues, and staffing/supervision demands: > Diagnosis of Dementia with severe confusion > Diagnosis of Anxiety Disorder with frequent periods of aggression/combativeness > High FALL RISK with a pervasive pattern of unsafe ambulation especially at night > High ELOPEMENT RISK with a pattern of exit-seeking behavior > High PRESSURE ULCER RISK with Stage II and III wounds on coccyx and right buttocks > High DEHYDRATION RISK with a pattern of Urinary Tract Infections > High MALNUTRITION RISK with pattern of significant weight loss > Receiving psychoactive medication > Totally dependent on staff for all ADL s * Both facilities are well-managed * Clinical skills/leadership of RN s and LPN s are exactly the same * Nursing staff at both facilities are well trained, very productive, and extremely dedicated * Both facilities experience the same personnel issues and staff turnover * Both facilities have the same quality/quantity of supplies and equipment * Both facilities have the exact same floor plan/physical plant * All other operational factors are exactly the same The previous scenario illustrates how a negligent retention can occur at a nursing facility, although assisted living staff faces the same delicate balance between acuity and staffing. In particular, the likelihood that the heavy care resident at Facility #2 will experience a negligent retention is much higher than Facility #1 due to higher caregiver-to-resident ratios, and a lower percentage of Floor RN s which are critical for high risk Skilled Care Residents. The variables in this scenario are exactly the same in order to remove excuses that are made by some Administrators/Management Companies in defense of low/marginal staffing levels. In reality, no two facilities are the same. However, staffing levels are a very reliable index of facility resources and resolve, and no eldercare facility can deliver care in a consistent/safe manner when there is a dangerous shortfall between resident acuity and caregiver staffing.
Preconceived Notions vs. Reality Preconceived Notions: Reality: Most negligent retention is not foreseeable Most facilities are afforded many opportunities or avoidable. to prevent negligent retention before harm occurs. - Most Attending Physicians exercise Most Attending Physicians HEAVILY RELY on the necessary leadership to prevent facility management/staff to define resident negligent retention. care boundaries and operate within them. - Comorbidities and challenging resident This defense is NOT CREDIBLE if residents/families behavior automatically dismiss claims did not receive a full disclosure of such risks of negligent retention. BEFORE harm/declines occur in order to decide whether residents should remain at the facility. -------------------------------------------------------------------------------------------------------------------------------- --------------------------------- Nurses are in the best position to prevent Although Nurses play a vital role in the care of negligent retention and/or determine if residents, most negligent retention results from negative outcomes were avoidable. FACILITY POLICIES, not clinical practice issues. ----------------------------------------------------------------------------------------------------------------------------------------------------------------- Attending Physicians and Floor Nurses are in Unlike most resident care issues, bedside staffing the best position to determine if high risk is managed by Administrators and Management residents receive sufficient supervision to Companies due to their specialized expertise i.e., prevent negligent retention. staffing laws, standards, practices, and economics. Although Physicians and Nurses are the instruments of resident care, their roles are confined to staffing models they do not design, manage, or control. Administrators possess the autonomy to Administrators who report to Management control the boundaries of resident care Companies usually possess some discretion, which prevents most negligent retention. but most resident admission/retention criteria is designed and closely controlled by corporate officials and staff. Most eldercare residents receive care Although resident acuity defines the level and in proportion to their physical/cognitive frequency of care necessary, some facilities rely risk factors (acuity). on one-size-fits-all caregiver staffing models that force staff to ration face-to-face time. ---------------------------------------------------------------------------------------------------------------------------------------------------------------- Level of Care (LOC) is a well-defined LOC is very confusing to most residents/families concept in most eldercare facilities. and is often defined by facility budgets and not individual resident needs/welfare. Most residents/families understand and Although many residents/families are aware of accept the risks of living in an eldercare these risks, they seldom recognize what MARGIN facility. of resident care, treatment, and supervision has been consciously left to chance by the facility. The facility is not responsible for negligent The dynamics of challenging resident behavior retention if a casual discussion took place and spiraling declines dictates that facility officials between the parties regarding a transfer should frequently/formally/candidly recommend before the critical period in question. another facility when they are unable or unwilling to provide the necessary supervision and care. Residents who rely on the Medicaid Program Using a resident s payment source to rationalize to pay for their nursing home stay are limited in negligent retention is NOT CREDIBLE and reveals their choice of facilities, and are therefore not a troubling facility/corporate mindset. subject to negligent retention.
Negligent Retention Test Most negligent retention is characterized by a lack of face-to-face caregiver supervision during a pattern of resident incidents/accidents or a spiraling decline in their health status. Consequently, there are usually many opportunities during the progression of these trends where a greater level of bedside staffing, especially by RN s and CNA s, could be invested. A negligent retention occurs when there is no graduated increase in direct supervision. The excuse(s) offered by the facility after-the-fact is not relevant if this need was apparent, and the resident/family was not informed about leaving aspects of supervision to chance. When confronted with similar situations during weekly risk meetings, I recall a DON using the phrase: What additional attention should he/she receive and how will we provide it? Preventing Negligent Retention The following advice is offered to eldercare facilities in general and nursing home executives and assisted living executives in particular: Never make residents/families choose between independence and quality of care. Don t claim that the standard of care is the same for all residents including high risk. Don t let operating budgets get in the way of creative resident-centered solutions. Communicate with high risk residents/families at least once a week in a very candid manner summarizing the progress of efforts to confront challenging care/treatment, including care plan strategies, and the form/frequency of greater bedside supervision. There is no substitute for creating these fluid/candid resident care partnerships. Recognize that responsible eldercare executives find a way to prevent negligent retention. Remember: What one facility can do, another can do! Confront negligent retention with the same determination and resolve that you would if the resident in question was the subject of survey violations. Develop written admission/retention criteria with your clinical team that clearly defines the limits of your resident care/treatment, and only operate within them. Don t force caregivers to ration their face-to-face time with high risk residents. Don t treat staffing as a rigid choice between routine assignments or 1:1 (line-of-sight). Create specialized assignments (lower staff-to-resident ratios) for high risk residents who require greater CNA attention and more assessment face time from Floor RN s, The greatest barrier to creating special assignments is usually staff resistance not cost. Use care/service plans as measurable road maps, not esoteric statements of intent. Don t try to take credit for providing greater bedside supervision by using nurse s notes, medication records, treatment records, ADL flow sheets, etc., as so-called evidence of specialized caregiver assignments, or claim that documenting critical issues such as repositioning, spoon feeding, intake/output, and range-of-motion for high risk residents is not necessary because these duties fall within the standard of care. Don t allow caregivers, especially Nurses, to use deflective/dismissive conduct when they are supervising cognitively impaired residents i.e., encouraging, reminding, educating, etc., them to act in a safe and responsible manner. Recognize how dysfunctional facility policies/practices cause negligent retention. Measure the effectiveness of staffing levels based on resident accidents/outcomes. Don t confront negligent retention based on the availability of alternant facilities. Don t use risk agreements to sanction negligent retention. Never allow negligent retention to result from low census and/or the pursuit of profit. Recognize that some negligent retention actually begins as negligent admissions.
A Resident s Destiny Belongs to Them Residents/families have a right to know when a facility can no longer keep a resident safe, and they deserve this information in a timely/candid fashion in order to control their destiny. Every seasoned eldercare executive knows when a resident is exposed to unnecessary harm because their facility is unwilling and/or unable to provide essential care and supervision. Consequently, those who claim after-the-fact that resident trauma/harm from a negative retention was beyond their influence control are usually defending a misguided mission. As a young Administrator, I served under a Mentor who would frequently use the phrase: The question isn t whether excuses are available, but why you are using them? ABOUT THE AUTHOR: Lance Youles has consulted in over (45) states regarding abuse and neglect. He can be reached at (517) 548-1228 or at lancenpat@aol.com