Abuse Prohibition Review

Abuse Prohibition Review Gregg Brandush RN, JD Jean Parr RN, JD January 23. 2013

The F-tags Conditions of Participation for long term care facilities are found under 42 CFR 483. Regulations are broken down into specific F- tags. Abuse F-tags are found under Resident Behavior and Facility Practices. (42 CFR 483.13)

The Abuse F-Tags F221 The right to be free from physical restraints F222 The rights to be free from chemical restraints F223 The right to be free from abuse and seclusion F224 The right to be free from mistreatment, neglect and misappropriation of property. F225 Requires all allegations to be reported and investigated F226 Requires the development and implementation of policies.

F223 (42 CFR 483.13(b)) F223 483.13(b) Abuse The resident has the right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion.

The Interpretive Guidance We review compliance with the regulation, not the guidance. Elgin Nursing and Rehabilitation Center, DAB No. CR2376 (2011)

The Intent for F223 Intent 483.13(b) Each resident has the right to be free from abuse, corporal punishment, and involuntary seclusion. Residents must not be subjected to abuse by anyone, including, but not limited to, facility staff, other residents, consultants or volunteers, staff of other agencies serving the resident, family members or legal guardians, friends, or other individuals.

Key terms from the guidance Abuse means the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish. (42 CFR 488.301) This also includes the deprivation by an individual, including a caretaker, of goods or services that are necessary to attain or maintain physical, mental, and psychosocial well-being. This presumes that instances of abuse of all residents, even those in a coma, cause physical harm, or pain or mental anguish.

Key terms from the guidance Verbal abuse is defined as the use of oral, written or gestured language that willfully includes disparaging and derogatory terms to residents or their families, or within their hearing distance, regardless of their age, ability to comprehend, or disability. Examples of verbal abuse include, but are not limited to: threats of harm; saying things to frighten a resident, such as telling a resident that he/she will never be able to see his/her family again. Sexual abuse includes, but is not limited to, sexual harassment, sexual coercion, or sexual assault. Physical abuse includes hitting, slapping, pinching and kicking. It also includes controlling behavior through corporal punishment. Mental abuse includes, but is not limited to, humiliation, harassment, threats of punishment or deprivation.

A word about seclusion 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.

How to evaluate seclusion Two types of seclusion: Locked units (like a dementia unit) Behavioral seclusion

Investigative steps for Seclusion If a resident is being temporarily separated from other residents, i.e., for less than 24 hours, as an emergency short-term intervention, answer these questions: 1. What are the symptoms that led to the consideration of the separation? 2. Are these symptoms caused by failure to: a. Meet individual needs? b. Provide meaningful activities? c. Manipulate the resident s environment? 3. Can the cause(s) be removed? 4. If the cause(s) cannot be removed, has the facility attempted to use alternatives short of separation? 5. If these alternatives have been tried and found ineffective, does the facility use separation for the least amount of time? 6. To what extent has the resident, surrogate or representative (if any) participated in care planning and made an informed choice about separation? 7. Does the facility monitor and adjust care to reduce negative outcomes, while continually trying to find and use less restrictive alternatives?

F224 F224 * * Intent 483.13(c) (F224) Each resident has the right to be free from mistreatment, neglect and misappropriation of property.

Key terms from the guidance Neglect means failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness. (42 CFR 488.301) Misappropriation of resident property means the deliberate misplacement, exploitation, or wrongful, temporary or permanent use of a resident s belongings or money without the resident s consent. (42 CFR 488.301)

F225 The facility must 483.13(c)(1)(ii) Not employ individuals who have been-- (A) Found guilty of abusing, neglecting, or mistreating residents by a court of law; or (B) Have had a finding entered into the State nurse aide registry concerning abuse, neglect, mistreatment of residents or misappropriation of their property; and (iii) Report any knowledge it has of actions by a court of law against an employee, which would indicate unfitness for service as a nurse aide or other facility staff to the State nurse aide registry or licensing authorities 483.13(c)(2) The facility must ensure that all alleged violations involving mistreatment, neglect, or abuse, including injuries of unknown source and misappropriation of resident property are reported immediately to the administrator of the facility and to other officials in accordance with State law through established procedures (including to the State survey and certification agency). 483.13(c)(3) The facility must have evidence that all alleged violations are thoroughly investigated, and must prevent further potential abuse while the investigation is in progress. 483.13(c)(4) The results of all investigations must be reported to the administrator or his designated representative and to other officials in accordance with State law (including to the State survey and certification agency) within 5 working days of the incident, and if the alleged violation is verified appropriate corrective action must be taken.

Key terms from the guidance Intent 483.13(c)(1)(ii) and (iii) The facility must not hire a potential employee with a history of abuse, if that information is known to the facility. The facility must report knowledge of actions by a court of law against an employee that indicates the employee is unfit for duty. The facility must report alleged violations, conduct an investigation of all alleged violations, report the results to proper authorities, and take necessary corrective actions.

Key terms from the guidance Injuries of unknown source: Injuries of unknown source An injury should be classified as an injury of unknown source when both of the following conditions are met: The source of the injury was not observed by any person or the source of the injury could not be explained by the resident; and The injury is suspicious because of the extent of the injury or the location of the injury (e.g., the injury is located in an area not generally vulnerable to trauma) or the number of injuries observed at one particular point in time or the incidence of injuries over time.

Key terms from the guidance Immediately means as soon as possible, but ought not exceed 24 hours after discovery of the incident, in the absence of a shorter State time frame requirement. Conformance with this definition requires that each State has a means to collect reports, even on off-duty hours (e.g., answering machine, voice mail, fax).

F226 F226 483.13(c) Staff Treatment of Residents The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property.

Key terms from the guidance ** Intent 483.13(c), F226 The facility must develop and operationalize policies and procedures for screening and training employees, protection of residents and for the prevention, identification, investigation, and reporting of abuse, neglect, mistreatment, and misappropriation of property. The purpose is to assure that the facility is doing all that is within its control to prevent occurrences.

The Scope and Severity Grid

Potential CMPs CMP: Civil Monetary Penalty Two ranges: Upper range 3050 to 10,000 penalty per day Lower range 50 to 3000 per day Per instance CMP 1000 to 10,000

How CMPs are used The law provides that collected CMP funds may be used to support activities that benefit residents, including: Assistance to support and protect residents of a facility that closes (voluntarily or involuntarily) or is decertified (including offsetting costs of relocating residents to home and community-based settings or another facility); Projects that support resident and family councils and other consumer involvement in assuring quality care in facilities; Facility improvement initiatives approved by the Secretary (including joint training of facility staff and surveyors, technical assistance for facilities implementing quality assurance programs; The appointment of temporary management firms, and other activities approved by the Secretary).

CMS Abuse Prohibition Protocol Review abuse prohibition policies & procedures Review alleged violations Review pre-employment screening Elder Justice Act requirements Interview residents & families Interview direct care staff & front-line supervisors Interview abuse coordinator

Review Facility Abuse Prohibition Policies & Procedures 1. Screening 2. Training 3. Prevention 4. Identification 5. Investigation 6. Protection 7. Reporting

CMS Abuse Prohibition Protocol Review Alleged Violations 2-3 showing written evidence of how facility handled the alleged violations Did facility implement adequate procedures: Reporting (to Administrator, SA initial & SA 5- day) Thorough investigating Protecting the resident(s) during investigation Providing corrective action(s)

CMS Abuse Prohibition Protocol Pre-Employment Screening Employees hired in previous 4 months Review 5 for facility s pre-screening Based on facility procedures to screen for: Licenses Registries Information from previous/current employers

CMS Abuse Prohibition Protocol Elder Justice Act Training annually notify covered individuals/employees of individual reporting obligations Posting conspicuous notice specifying employee rights No retaliation against individuals for reporting reasonable suspicions of crime

CMS Abuse Prohibition Protocol Interview Residents & Families Individual resident & family member interviews Group interview

CMS Abuse Prohibition Protocol Interview Residents & Families Individual resident & family member interviews Group interview

Staff Interviews 5 Direct Care Staff Representing all shifts Including Activity staff and CNAs Knowledge & training to deal with residents with aggressive or catastrophic reactions Knowledge of reporting according to facility policies (what, when & to whom)

Staff Interviews 3 Front-Line Supervisors Of staff who interact with residents (Nursing, Dietary, Housekeeping, Activities, Social Services) How monitor care/services provided, staff/resident interactions & potential for staff burnout that could lead to resident abuse

CMS Abuse Prohibition Protocol Abuse Coordinator Interview How monitor staff to assure care & services delivered without neglect occurring? How determine which injuries of unknown origin investigated as allegations of abuse? How ensure residents, families & staff feel free to report concerns without fear of reprisal?

Example Investigation Facility addressing issue of staff burnout.