SURVEY AND REGULATORY UPDATE
ASSISTED LIVING: INVESTIGATING INCIDENTS IN ASSISTED LIVING
Incident investigations can be time consuming. Getting to the root cause of an accident or incident, to implement workable prevention measures, can take much concentration and plenty of super-sleuthing.

WAC 388-78A-2371 states that the facility is responsible to investigate and document investigative actions and findings for any alleged abuse, neglect, or financial exploitation of a resident. Because all alleged abuse, neglect, and exploitation cases must also be reported to the DSHS hotline, it is likely that the facility’s investigation documentation may be reviewed by DSHS complaint investigators or licensors upon request and will likely be scrutinized for thoroughness.

The WAC also requires the facility investigate all accidents or incidents that jeopardize or affect a resident’s health or life. While all accidents and incidents must be investigated by the facility, not all of them will require reporting to the DSHS hotline.

The Assisted Living Guidebook defines the term “incident” as “an occurrence involving a resident in which mistreatment, neglect, abuse, misappropriation of resident property or financial exploitation are alleged or suspected, or a substantial injury of unknown source, or cause, or circumstance.” Examples of incidents include but are not limited to:
  • Any occurrence that is not consistent with standards of care or practice
  • Substantial injury of unknown source
  • Any allegation of mistreatment, neglect, or abuse
  • Any misappropriation of resident property or financially exploiting a resident

The Assisted Living Guidebook defines the term “accident” as ". . . an unexpected, unintended event that can cause a resident bodily injury.” Accidents are not foreseeable and might include:
  • A self-propelling resident catching a finger in her wheelchair spoke and fracturing the finger
  • A resident with no known history of dizziness becoming dizzy and falling while getting out of bed
  • Resident pinches her hand on the door jamb and sustains a skin tear
  • Resident hits arm on the head of the bed and gets a bruise on his forearm

Regardless of whether a resident has experienced an incident or an accident, the facility’s obligation involves investigating the event to determine its circumstances and identify possible prevention measures.

There are no regulations outlining who in the facility should or must investigate alleged resident abuse, neglect, exploitation, incidents, or accidents. The facility leadership ideally identifies and trains more than one staff person to fulfill this role; this allows the facility to start and complete investigations timely and minimize overwhelming one person.

It is imperative that investigations start immediately. Most assisted living providers expect staff to complete an incident report form; staff’s depiction of events as documented on this form, including any injuries, staff’s interventions, and who was notified of the event, all count towards the start of an investigation.

A thorough investigation is paramount to determining the cause and identifying and implementing successful prevention measures. Investigations that include the following methods are more likely to be considered thorough and complete:
  1. INTERVIEWS. The most important interview of any investigation is that of the resident. Even if the resident has cognitive loss, be sure to interview him/her anyway. When staff are interviewed, particularly in an alleged abuse/neglect case, the facility investigator will ideally consider certain questions to ask, and ask all staff the same questions in the same way; this limits bias. Interview anyone who might have insight into what happened.
  2. OBSERVATIONS. Look around. Consider the situation and what observations must be made to better paint a picture of what happened. Depending on the circumstances, the facility investigator might ask staff to “act out” what happened to get a better picture. If, for example, a resident fell during a one-person transfer, ask the caregiver to demonstrate how s/he transferred the resident; this will give the facility investigator a clear indication of any unsafe practices.
  3. RECORD REVIEWS. Look at resident assessments, negotiated service agreements, progress notes, recent hospital/doctor notes, and/or staff files. Depending on what happened, these documents could shed some light on potential causes of the event.

Document the entire investigation. Make copies of the documents reviewed as part of the investigation. Analyze the data to determine the circumstances of the event and identify prevention measures to minimize the likelihood of it happening again. Prevention measures should be listed in the resident’s negotiated service agreement, and staff made aware of these updates.

Some other hints for successful investigations include:
  • Ensure the person conducting the investigation is not biased. For example, if the alleged perpetrator is the facility investigator’s best friend, it’s best to have an unbiased person conduct the investigation.
  • If it’s likely the investigation will result in a complaint investigation, make a complete copy of the investigation report, including all documents reviewed and analysis of the event, for the complaint investigator.
  • If the complaint resolution unit (CRU) was contacted at the outset of the incident, follow up by calling (1-800-562-6078) or filing a report online to “close the loop” and let DSHS know the outcome of the investigation. It is essential that the facility investigator indicate the safety of the resident(s) in question.
  • If an alleged perpetrator is a staff member, the facility must not allow that person onsite until the conclusion of the investigation; this protects the alleged victim and all other residents during the investigation.
  • Prioritize investigations – those that will likely result in a DSHS complaint investigation should be put at the top of the list and completed promptly. 

If you have questions about incident investigations or other issues pertaining to assisted living, please contact Vicki McNealley via email, or call her at (800) 562-6170 extension 107.
SKILLED NURSING: WHAT'S UP WITH PHASE 3 RoP AND WHAT ARE SURVEYORS LOOKING AT?
For those of you in skilled nursing that can remember what it was like before the COVID pandemic and public health emergency, you will recall that one of the biggest issues skilled nursing facilities were dealing with was the implementation of the CMS Requirements of Participation-Phase 3. The Requirements of Participation (RoP) Phase 3 regulations became effective on November 28, 2019. However, providers were in a confusing and challenging situation given that the Centers for Medicare & Medicaid Services (CMS) had not released the Phase 3 interpretive guidance (IG). We were expecting these guidelines the second quarter of 2020. Well, you all know what happened and here we are sitting two and a half years later still waiting for IGs to assist in the implementation of requirements that went into effect in 2019. Also remember there was the added variable at that time regarding proposed changes to some Phase 3 regulations.

In the absence of IGs, survey forms, and training, it has been difficult for state agencies to survey and enforce the Phase 3 regulations, just as it is challenging for providers to fully implement them. However, facilities need to continue to make a good faith effort to implement the current Phase 3 regulations as written. For example, all of you know that facilities should ensure they have an appropriately trained IP overseeing their infection prevention and control program (IPCP), but also facilities should have incorporated trauma-informed care principles into their care planning processes, and have taken steps to implement functional training, QAPI, and C&E programs that address the core requirements outlined in the regulations. 
As noted above, all of the current Phase 3 regulations went into effect November 28, 2019. The Phase 3 regulations address the following areas: 
  • Infection Preventionist (IP)
  • Compliance and Ethics Program (C&E)
  • Quality Assurance and Performance Improvement (QAPI) Program
  • Trauma-informed Care 
  • Bedside Call System 
  • Comprehensive Training Program 
 
Current communication with CMS has revealed that we can expect the Phase 3 RoP IG to be released, “sooner rather than later.” While this timeframe is vague, educated knowledge believes this to be anywhere from now to 6 months. CMS acknowledged that once the guidance is released, it will be necessary to allow a period for surveyors and providers to effectively understand and implement the guidance. The American Health Care Association (AHCA) has resources to help members in all these areas. For more information, members should visit the dedicated RoP page on ahcancalED. 

Another important communication from CMS for facilities to heed is their repeated and direct concern for quality of care and abuse and neglect issues. CMS has directed state agencies and surveyors to continue to focus on infection control and prevention, but also directs them to focus on the following:
  • Abuse or neglect;
  • Violations of transfer or discharge requirements;
  • Insufficient staffing or competency;
  • Special Focus Facilities (SFFs) and SFF candidates; and/or
  • Other quality-of-care issues including,
  • Falls, Accidents, Safety
  • Pressure Injuries
  • Weight Loss
  • Decline in ADLs
  • Inappropriate Use of Anti-psychotics
  • Depression

The most frequently cited F-tags in the last quarter for skilled nursing facilities can be found here. As you can see, F880 (Infection Prevention & Control), F684 (Quality of Care), F689 (Free of Accident Hazards), F658 (Services Provided Meet Professional Standards), and F758 (Free from Unnecessary Psychotropic Meds/PRN Use) remain in the top ten citations. This is in direct alignment with CMS’s verbalized focus and priorities. 

As soon as more information is known about the release of the CMS RoP IGs, WHCA will keep you informed. If you have questions, please email Elena Madrid or call her at (800) 562-6170, extension 105.
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