SURVEY AND REGULATORY UPDATE
ASSISTED LIVING: NEGOTIATED SERVICE AGREEMENTS
Each assisted living resident must have an accurate and current “map” of what care and services are offered; this map is called the negotiated service agreement, or NSA.
The first plan developed upon a resident’s moving in is called an initial resident service plan. This plan is “bare bones;” it is based on the facility’s preadmission assessment and, if the resident’s care is funded by Medicaid, the DSHS case manager’s CARE assessment. This initial service plan identifies the resident’s immediate needs and provides direction to staff and caregivers regarding the resident’s immediate needs, capabilities, and preferences. There are no additional details in WAC outlining specifics that must be included in this initial resident service plan.

Within 30 days of the resident moving in, and after the 14-day full assessment has been completed, the facility must complete the NSA. This NSA is based on the contents in the resident’s preadmission assessment, initial resident service plan, and full assessment data.

WAC 388-78A-2140 outlines the required contents of each NSA. While included topics are clear, perhaps the most important part of this WAC section emphasizes the resident’s preferences on how each service will be provided and clearly-identified roles and responsibilities of the person(s) who will be providing these services, including facility staff, the resident’s family/significant persons, and the resident.

This is the entry into the art of negotiation. Not only must the NSA include what services will be offered, when, and by whom, it also must infuse the resident’s habits and preferences into the development and revision of this tool.

Each resident’s NSA must be updated at least annually (semi-annually for residents receiving services on the Specialized Dementia Care Medicaid contract) and whenever the NSA no longer matches the resident’s needs and preferences. The most common citation associated with NSAs involves times when residents experience changes in physical, emotional, and/or mental functioning that warrants update to the NSA to reflect current care and service needs, and these updates are not made or not made timely.

The resident, the resident’s representative (if able and if the resident has one), other individuals the resident wants included in the process, the DSHS case manager (if the resident is on the Medicaid program), and designated staff must be involved in the development of and updates to the NSA. WAC 388-78A-2130 states that the facility must ensure that these individuals discuss the resident’s assessed needs, capabilities, and preferences, and negotiate and agree to the care and services provided to support the resident.

To take staff involvement a step further, WAC 388-78A-2450(2)(i)(i – iii) states that caregivers must acquire the necessary information from the assessment and NSA to provide services for residents, are informed of changes in resident NSAs, and are given an opportunity to provide specific resident information to responsible staff whenever an assessment and NSA are being updated. Caregivers must have access to the assessments and NSAs for those residents to whom they provide care.

The fact that the resident and involved parties must negotiate and agree to care and services discreetly emphasizes the notion that person-centered and person-directed care are the core of services offered and provided in assisted living facilities in Washington State. In fact, WAC 388-78A-2160 highlights that the facility must provide the care and service as agreed upon in the NSA, unless a deviation from the NSA is mutually agreed upon between the facility and the resident (or the resident’s representative) at the time the care and service are scheduled.

According to WAC 388-78A-2150, the facility must ensure that the NSA is agreed to and signed at least annually by the resident or the resident’s representative (if the resident is unable or chooses not to sign), a representative of the assisted living, and any public or private case manager. The signatures indicate an agreement to the services and care listed within the document, ultimately capturing the essence of the negotiation process.

No doubt the development and revision of a resident’s NSA is a lengthy endeavor, given the expectations surrounding negotiation of each service. The time, however, is well spent when the results demonstrate staff’s support of the resident, in the way and time the resident prefers.

If you have questions about assisted living regulations, please email Vicki McNealley, or call her at (800) 562-6170, extension 107.
SKILLED NURSING: PSYCHOSOCIAL SEVERITY GUIDE - EFFECTIVE OCTOBER 2022
On June 29, 2022, the Centers of Medicare and Medicaid Services dropped an enormous number of materials and guidance for skilled nursing facilities and surveyors. In doing so, CMS issued QSO-22-19-NH, which includes the Psychosocial Outcome Severity Guide. In this guide, CMS set out to clarify the “reasonable person concept” and provide examples across the different severity levels for surveyors to utilize in determination of psychosocial harm. 

An advanced copy of the Psychosocial Outcome Severity Guide is available and surveyors will begin using this guidance on October 24, 2022. The purpose of the Psychosocial Outcome Severity Guide is to help surveyors determine the severity of psychosocial outcomes resulting from identified noncompliance at a specific F-tag, including how to determine the severity of the outcome when the impact on the resident may not be apparent or documented by the facility. It will be especially important for facilities to clearly document the analysis and outcome of investigations, including whether there is evidence of physical and/or psychological harm.

CMS directs the surveyors to select the level of severity for a deficiency based on the highest level of physical or psychosocial outcome. They go on to state that psychosocial and physical outcomes are equally important in determining the severity of noncompliance, and both need to be considered before assigning a severity level. For surveyors to determine the severity of the psychosocial outcome, they are to obtain evidence through observation, interview, and record review. For example, the surveyor is directed to interview the resident, and collect information regarding the resident’s verbal and non-verbal responses. It is imperative that facilities do the same when conducting their investigations. This needs to be thoroughly documented to demonstrate a thorough investigation was conducted and to support any discrepancies between the facility investigation and the information obtained by surveyors.

Surveyors are further directed that if a psychosocial outcome is identified, they should compare the resident’s behavior (e.g., their routine, activity, and responses to staff or to everyday situations) and mood before and after the incident, and any identified history of similar incidents. When a surveyor cannot conduct an interview with the resident for any reason, or there are no apparent or documented changes to behavior, the surveyor should attempt to interview other individuals who are familiar with the resident’s routine or lifestyle, such as the resident’s representative, the resident’s family, Ombudsman, the resident’s direct care staff, and/or medical professionals, to assess the psychosocial impact on the resident. If no such changes are apparent or documented, the surveyor should consider the response as a “reasonable person” in the resident’s position would exhibit considering the triggering event or incident.

In applying the “the reasonable person concept” to facility non-compliance, the surveyor or survey team is to determine the severity of the psychosocial outcome or potential outcome the deficiency may have had on a reasonable person in the resident’s position (i.e., what degree of actual or potential harm would one expect a reasonable person in a similar situation to suffer as a result of the noncompliance). CMS directs the surveyors to consider the following regarding the resident’s position, which may include, but is not limited to:
  • The resident may consider the facility to be his/her “home,” where there is an expectation that he/she is safe, has privacy, and will be treated with respect and dignity.
  • The resident trusts and relies on facility staff to meet his/her needs.
  • The resident may be frail and vulnerable.

The surveyor must document the resident’s actual response and the perspectives of someone familiar with the resident. In addition to the evidence gathered by the surveyor, the use of the reasonable person concept should be applied and according to CMS, may reveal that the resident is likely to, or may potentially, suffer a greater psychosocial outcome. CMS gives an example where in the case of a sexual assault, the resident did not exhibit a change in behavior because of the incident. During the surveyor’s interviews, the resident’s relative presumed that the resident would be upset by the situation. The determination of severity would be based on how the reasonable person would experience serious psychosocial harm (immediate jeopardy) because of a sexual assault.

Facility leadership and investigative staff need to educate themselves related to the psychosocial severity guide and ensure that proper documentation related to incidents occurs. If you have questions, please email Elena Madrid or call her at (800) 562-6170, extension 105.
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