SURVEY AND REGULATORY UPDATE
ASSISTED LIVING: NEGOTIATED RISK AGREEMENTS
RCW 70.129 ensures assisted living residents enjoy the same rights you and I do. Reading the entire resident rights law highlights a resident’s right to gather, visit with anyone of their choosing, dress as they choose, receive unopened mail, make private telephone calls, manage their own financial affairs, and be free of abuse, neglect, and restraints just to name a few.

Imbedded in that law, along with assisted living licensing regulations (WAC 388-78A), are the rights to choose and refuse care and service. WAC 388-78A-2230 states a resident has the right to refuse medications, for example. Under “content of resident records” WAC 388-78A-2410 prompts the provider to have a plan for “addressing a resident’s refusal of medications, treatments, and prescribed diets.”

Other areas of the WAC are more nebulous, alluding to the fact that residents may choose not to follow medical or nursing care guidance, for example. What actions a provider takes based on a resident’s choice to refuse care and service seems to be the crux of the issue, and one that raises the hackles of ombuds and residents alike.

The term “noncompliant” used to be commonplace in long term care. A resident who refused to follow a doctor’s order or a nurse’s advice was quickly labeled as noncompliant. This depiction painted a picture in one’s mind of a troublemaker; someone who chose to ignore the unwritten rules that ultimately caused frustration for the staff as well as the resident.

Today, a resident may choose or decline any service offered. This includes relatively minor issues like choosing to skip a shower, or major issues like choosing to skip dialysis. The issue is not the resident’s choosing, but rather the provider’s response to that decision.

Some providers still rely on negotiated risk agreements. This “agreement” might come in many formulations, from a written contract to a standardized form or a verbal decision. The basis of a risk agreement is some sort of acknowledgement that a resident’s decision to do something (or not do something) can rest no culpability on the facility. So, for example, a resident living with diabetes who has chosen to eat whatever he wants without regard for blood sugar readings or long-term effects signs a negotiated risk agreement that is worded in such a way to relieve the facility from responsibility or liability should they provide him with cakes, cookies, and other foods that will most certainly adversely affect his health.

Negotiated risk agreements are illegal in Washington State assisted living facilities. WAC 388-78A-2140 (8) reads, “The assisted living must not require or ask the resident or the resident’s representative to sign any negotiated service or risk agreement, that purports to waive any rights of the resident or that purports to place responsibility or liability for losses of personal property or injury on the resident.”

Rather than offering and expecting a resident/representative to sign a negotiated risk agreement, consider other legal options. First, discuss informed consent with the resident – outline what your concerns are regarding the resident’s choice, and highlight what might happen should the resident continue to make that choice. Be sure this conversation is not a threatening one (for example, “If you choose to eat that cake, we’ll have to move you out of here.”) but rather educational and informative. Document the discussion, and the outcome(s) of the discussion.

Combine the process of informed consent with the art of negotiation. A negotiated service agreement is just that: a “give and take” of services offered and received. Outline, based in the resident’s preferences and wishes, what care and services the resident needs and wants, and how and when those services will be delivered. Should a resident make a decision that places him/her at risk, have a plan in place whereby staff is monitoring the situation, reporting, and taking necessary action to keep the resident as safe as possible.

A resident’s right to choose or refuse might be difficult to accept for many staff members. This exercise in negotiation will aid in keeping the residents in the forefront of all decisions made in their care.

If you have questions about assisted living regulations, please contact Vicki McNealley via email, or call her at (800) 562-6170 extension 107.
SKILLED NURSING: BEHAVIORAL HEALTH REQUIREMENTS AND TRAUMA-INFORMED CARE
Federal Requirements
For many of us, the implementation of the Phase 3 Requirements of Participation (RoP) by the Centers for Medicare & Medicaid Services (CMS) in November of 2019 seems a lifetime ago. There are also many staff that are new to skilled nursing facility (SNF) requirements who weren’t working in a SNF in 2019 and have no idea about the large number of new requirements that went into effect right before the pandemic hit. As a result of the pandemic, a hold on full surveys for a little over a year, and the continued delay from CMS releasing the Phase 3 State Operations Manual (SOM) Guidelines, it is easy to forget that these requirements are in place and facilities will be held accountable for compliance.
 
CMS has clearly communicated to surveyors that there should be a heightened focus on the behavioral health needs of all residents, including attention to “trauma-informed care.” While Phase 2 RoP incorporated section CFR 483.40 Behavioral Health Services, Phase 3 RoP brought additional requirements regarding a facility’s responsibility to ensure trauma-informed care is provided to residents and that staff are trained and competent regarding residents’ behavioral health needs and conditions.
 
The Behavioral Health Services requirements and guidance can be found in F-tags 740-745. While a relatively small section in comparison to the entire RoP, there are numerous and important systems needed to support facility compliance. According to F742, the facility must ensure that a resident who displays or is diagnosed with a mental disorder or psycho-social adjustment difficulty, or who has a history of trauma and/or post-traumatic stress disorder (PTSD), receives appropriate treatment and services to correct the assessed problem or to attain the highest practicable mental and psychosocial well-being.
 
The interpretive guideline further states that upon admission, residents assessed or diagnosed with a mental or psychosocial adjustment difficulty or history of trauma and/or PTSD receive the appropriate treatment and services to correct the initial assessed problem or attain the highest practicable mental and psychosocial well-being. It is imperative that facilities identify these issues early and act promptly to put measures in place to address residents’ behavioral health needs. When you think about the turnaround time for Medicare admissions, that leaves no time to waste. A decline in status can quickly correlate to negative resident outcome and harm level citations. All the more reason to ensure staff have a process in place to systematically assess residents for psychosocial adjustment difficulty, a history of trauma, and/or PTSD. While CMS does not require a specific form or assessment tool, the facility needs to build this into their admission and ongoing assessment processes. Ideally, the more information obtained through pre-admission processes, the better.
 
Knowing a resident’s baseline preadmission will be vital to staff identification of changes and potential adjustment difficulties. Facility staff need to be fully prepared to care for the assessed needs of the resident demographics and diagnoses they are admitting, and that includes the complex psychiatric and psychosocial issues of today’s society as well as medical issues. It is a facility’s responsibility to ensure that staff have the necessary training and resources to meet the “whole” needs of residents.
 
Phase 3 requirements also included expansion on the behavioral health services by requiring the following:

  • F-699 Trauma-Informed Care states the facility must ensure that residents who are trauma survivors receive culturally competent, trauma-informed care in accordance with professional standards of practice and accounting for residents’ experiences and preferences in order to eliminate or mitigate triggers that may cause re-traumatization of the resident. While most of us think immediately of the trauma our veterans have endured, in the case of trauma-informed care, staff need to consider and address issues such as loss of home, spouse, children, fire, job-related, illness, domestic and sexual violence, discrimination, and countless other traumas affecting our residents.
  • F-949 Behavioral Health requires a facility to provide behavioral health training consistent with CFR 483.40 and as determined by the facility assessment.

If you have questions, please email Elena Madrid or call her at (800) 562-6170, extension 105.
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