What are the Federal Nursing Home Rules and Laws?
The United States Center for Medicare and Medicaid Services CMS upgraded the federal nursing home rules and regulations which they fund including additional changes highlighted in red. For a complete copy of the CMS bulletin on federal nursing home rules this issue click here
According the to federal nursing home rules, the facility must ensure that –
(1) The resident environment remains as free from accident hazards as is possible; and
(2) Each resident receives adequate supervision and assistance devices to prevent accidents.
The intent of this requirement is to ensure the facility provides an environment that is free from accident hazards over which the facility has control and provides supervision and assistive devices to each resident to prevent avoidable accidents. This includes:
- Identifying hazard(s) and risk(s);
- Evaluating and analyzing hazard(s) and risk(s);
- Implementing interventions to reduce hazard(s) and risk(s); and
- Monitoring for effectiveness and modifying interventions when necessary.
Definitions are provided to clarify terms related to providing supervision and other interventions to prevent accidents.
“Accident” refers to any unexpected or unintentional incident, which may result in injury or illness to a resident. This does not include adverse outcomes that are a direct consequence of treatment or care that is provided in accordance with current standards of practice (e.g., drug side effects or reaction).
“Avoidable Accident” means that an accident occurred because the facility failed to:
- Identify environmental hazards and individual resident risk of an accident, including the need for supervision; and/or
- Evaluate/analyze the hazards and risks; and/or
- Implement interventions, including adequate supervision, consistent with a resident’s needs, goals, plan of care, and current standards of practice in order to reduce the risk of an accident; and/or
- Monitor the effectiveness of the interventions and modify the interventions as necessary, in accordance with current standards of practice.
“Unavoidable Accident” means that an accident occurred despite facility efforts to:
- Identify environmental hazards and individual resident risk of an accident, including the need for supervision; and
- Evaluate/analyze the hazards and risks; and
- Implement interventions, including adequate supervision, consistent with the resident’s needs, goals, plan of care, and current standards of practice in order to reduce the risk of an accident; and
- Monitor the effectiveness of the interventions and modify the interventions as necessary, in accordance with current standards of practice.
“Assistance Device” or “Assistive Device” refers to any item (e.g., fixtures such as handrails, grab bars, and devices/equipment such as transfer lifts, canes, and wheelchairs, etc.) that is used by, or in the care of a resident to promote, supplement, or enhance the resident’s function and/or safety.
NOTE: The currently accepted nomenclature refers to “assistive devices.” Although the term “assistance devices” is used in the regulation, the Guidance provided in this document will refer to “assistive devices.”
- “Environment” refers to the resident environment. (See definition for “resident environment.”)
- “Fall” refers to unintentionally coming to rest on the ground, floor, or other lower level, but not as a result of an overwhelming external force (e.g., resident pushes another resident). An episode where a resident lost his/her balance and would have fallen, if not for staff intervention, is considered a fall. A fall without injury is still a fall. Unless there is evidence suggesting otherwise, when a resident is found on the floor, a fall is considered to have occurred.
- “Hazards” refer to elements of the resident environment that have the potential to cause injury or illness.
- “Hazards over which the facility has control” are those hazards in the resident environment where reasonable efforts by the facility could influence the risk for resulting injury or illness.
- “Free of accident hazards as is possible” refers to being free of accident hazards over which the facility has control.
- “Resident environment” includes the physical surroundings to which the resident has access (e.g., room, unit, common use areas, and facility grounds, etc.).
- “Risk” refers to any external factor or characteristic of an individual resident that influences the likelihood of an accident.
- “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.
Numerous and varied accident hazards exist in everyday life. Not all accidents are avoidable. The frailty of some residents increases their vulnerability to hazards in the resident environment and can result in life threatening injuries. It is important that all facility staff understand the facility’s responsibility, as well as their own, to ensure the safest environment possible for residents.
The facility is responsible for providing care to residents in a manner that helps promote quality of life. This includes respecting residents’ rights to privacy, dignity and self determination, and their right to make choices about significant aspects of their life in the facility.
For various reasons, residents are exposed to some potential for harm. Although hazards should not be ignored, there are varying degrees of potential for harm. It is reasonable to accept some risks as a trade off for the potential benefits, such as maintaining dignity, self-determination, and control over one’s daily life. The facility’s challenge is to balance protecting the resident’s right to make choices and the facility’s responsibility to comply with all regulations.
The responsibility to respect a resident’s choices is balanced by considering the potential impact of these choices on other individuals and on the facility’s obligation to protect the residents from harm. The facility has a responsibility to educate a resident, family, and staff regarding significant risks related to a resident’s choices. Incorporating a
resident’s choices into the plan of care can help the facility balance interventions to reduce the risk of an accident, while honoring the resident’s autonomy.
Consent by resident or responsible party alone does not relieve the provider of its responsibility to assure the health, safety, and welfare of its residents, including protecting them from avoidable accidents. While Federal regulations affirm the resident’s right to participate in care planning and to refuse treatment, the regulations do not create the right for a resident, legal surrogate, or representative to demand the facility use specific medical interventions or treatments that the facility deems inappropriate. The regulations hold the facility ultimately accountable for the resident’s care and safety. Verbal consent or signed consent forms do not eliminate a facility’s responsibility to protect a resident from an avoidable accident.
An effective way for the facility to avoid accidents is to commit to safety and implement systems that address resident risk and environmental hazards to minimize the likelihood of accidents.2, 3 A facility with a commitment to safety:
- Acknowledges the high-risk nature of its population and setting;
- Develops a reporting system that does not place blame on the staff member for reporting resident risks and environmental hazards;
- Involves all staff in helping identify solutions to ensure a safe resident environment;
- Directs resources to address safety concerns; and
- Demonstrates a commitment to safety at all levels of the organization.
A SYSTEMS APPROACH
Establishing and utilizing a systematic approach to resident safety helps facilities comply with the regulations at 42 CFR §483.25(h)(1) and (2). Processes in a facility’s system approach may include:
- Identification of hazards, including inadequate supervision, and a resident’s risks of potentially avoidable accidents in the resident environment;
- Evaluation and analysis of hazards and risks;
- Implementation of interventions, including adequate supervision and assistive devices, to reduce individual risks related to hazards in the environment; and
- Monitoring for effectiveness and modification of interventions when necessary.
A key element of a systematic approach is the consistent application of a process to consistently address identified hazards and/or risks. Risks may pertain to individual
residents, groups of residents, or the entire facility. Hazards may include, but are not limited to, aspects of the physical plant, equipment, and devices that are defective or are not used properly (per manufacturer’s specifications), are disabled/removed, or are not individually adapted or fitted to the resident’s needs. An effective system not only identifies environmental hazards and the resident’s risk for an avoidable accident, but also the resident’s need for supervision.
Identifying and addressing risks, including the potential for accidents, includes consideration of the environment, the resident’s risk factors, and the need for supervision, care, and assistive devices. This will allow the facility to communicate information about observed hazards, identify resident-specific information, develop and implement an individualized plan of care to address each resident’s needs and goals, and to monitor the results of the planned interventions. The plan of care should strive to balance the resident’s wishes with the potential impact on other residents.
A systematic approach allows the facility to adjust its responses depending on the urgency of the situation and the hazards identified. The system includes a means for communicating the observations of hazards and the recording of resident specific information. Risks identified by the facility can pertain to individual residents or groups of residents. The facility-centered approach addresses risks for groups of residents; whereas, the resident-directed approach addresses risks for the individual residents.
Identification of Hazards and Risks – Federal Nursing Home Regulations
Identification of hazards and risks is the process through which the facility becomes aware of potential hazards in the resident environment and the risk of a resident having an avoidable accident. All staff (e.g., professional, administrative, maintenance, etc.) are to be involved in observing and identifying potential hazards in the environment, while taking into consideration the unique characteristics and abilities of each resident. The facility should make a reasonable effort to identify the hazards and risk factors for each resident. Various sources provide information about hazards and risks in the resident environment. These sources may include, but are not limited to, quality assurance activities, environmental rounds, MDS/RAPs data, medical history and physical exam, and individual observation. This information is to be documented and communicated across all disciplines.
Evaluation and Analysis
Evaluation and analysis is the process of examining data to identify specific hazards and risks and to develop targeted interventions to reduce the potential for accidents. Interdisciplinary involvement is a critical component of this process. Analysis may include, for example, considering the severity of hazards, the immediacy of risk, and trends such as time of day, location, etc.
Both the facility-centered and resident-directed approaches include evaluating hazard and accident risk data, analyzing potential causes for each hazard and accident risk, and
identifying or developing interventions based on the severity of the hazards and immediacy of risk. Evaluations also look at trends such as time of day, location, etc.
Implementation of Interventions
Implementation refers to using specific interventions to try to reduce a resident’s risks from hazards in the environment. The process includes: Communicating the interventions to all relevant staff, assigning responsibility, providing training as needed, documenting interventions (e.g., plans of action developed by the Quality Assurance Committee or care plans for the individual resident), and ensuring that the interventions are put into action.
Interventions are based on the results of the evaluation and analysis of information about hazards and risks and are consistent with relevant standards, including evidence-based practice. Development of interim safety measures may be necessary if interventions cannot immediately be implemented fully.
Facility-based interventions may include, but are not limited to, educating staff, repairing the device/equipment, and developing or revising policies and procedures. Resident-directed approaches may include implementing specific interventions as part of the plan of care, supervising staff and residents, etc. Facility records document the implementation of these interventions.
Monitoring and Modification
Monitoring is the process of evaluating the effectiveness of interventions. Modification is the process of adjusting interventions as needed to make them more effective in addressing hazards and risks.
Monitoring and modification processes include:
(1) Ensuring that interventions are implemented correctly and consistently;
(2) Eevaluating the effectiveness of interventions;
(3) Modifying or replacing interventions as needed and
(4) Evaluating the effectiveness of new interventions.
An example of facility-specific modification is additional training of staff when equipment has been upgraded. An example of a resident-specific modification is revising the plan of care to reflect the resident’s current condition and risk factors that may have changed since the previous assessment.
Opinions by Minnesota Nursing Home Abuse and Neglect Attorney Kenneth L. LaBore
This website is not intended to provide legal advice as each situation is different and specific factual information must be obtained before an attorney is able to assess the legal questions relevant to your situation.
If you or a loved one has suffered an injury from neglect or abuse in a nursing home or other care facility that serves the elderly in Minnesota please contact our firm for a free consultation and information regarding the obligations of the facility and your rights as a resident or concerned family member. To contact Attorney Kenneth L. LaBore, directly please send an email to KLaBore@MNnursinghomeneglect.com or call Ken at 612-743-9048.