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Regulatory Criteria THE ISSUES Government regulation of nursing homes for quality assurance purposes has three components: (1) the criteria used to determine whether a nursing home is providing care of acceptable quality in a safe and clean environment, (2) the procedures used to determine the extent to which nursing homes comply with the criteria, and (3) the procedures used to enforce compliance. The three components are like the legs of a three-legged stool: All are equally important. This chapter deals only with quality criteria. Chapters 4 and 5 discuss the other components. Two sets of federal certification criteria for nursing homes currently exist: one for skilled nursing facilities (SNFs) and one for intermediate care facilities (ICFs). SNFs and ICFs are defined as being capable of providing different "levels" of care. SNFs are required to be staffed and equipped to provide more skilled nursing and rehabilitation services than are ICFs. The SNF criteria consist of 18 "conditions of participation" each of which contains one or more standards that must be met to comply with the condition. There are 90 SNF standards contained in the 18 conditions. The regulations containing these 69
70 / NURSING HOME CARE criteria were issued in final form in 1974 and have remained in effect, essentially unchanged, since then. The ICF criteria cio not have conditions of participation. Originally issued in 1974, they contained 15 standards comprising numerous elements. Later that year, the ICF standards--with three additional standards added, bringing the total to 18--were incorporated in a survey form. In 1978 the HCFA published a new set of ICF regulations containing 46 standards. The 1978 version was intended to be substantively the same as the 1974 standards, but better organized and worded more clearly. Most of the new standards were not new; they were elements in the 1974 version. However, the HCFA did not publish a new survey form based on the 1978 regulations. Surveyors continue to use the 1974 form that contains the 1974 version of the regulations. (Both the SNF and ICF criteria are contained in Appendix B.) Dissatisfaction with both sets of criteria was expressed publicly and repeatedly almost from the time they were issued. In general, providers, consumer advocates, and many state and federal regulators agreed that 1. the regulations do not require assessment of the quality of care being delivered; rather, they require assessment of the facility's structural capacity to . provlc e care; 2. the survey process emphasizes paper compliance rather than observation and interviews with nursing home residents; 3. many of the standards are vague and depend too much on unguided judgments by surveyors, many of whom are untrained. Surveyor judgments are frequently inconsistent: what is deemed acceptable by one surveyor may be unacceptable to another. These views were publicly voiced on numerous occasions by many people--most recently at the public meetings held by the committee in September 1984. The committee is convinced that it is not sound policy to maintain two levels of care subject to two sets of quality assurance criteria. This is the first of the issues discussed below.
REGULATORY CRITERIA / 7 1 The second issue is the conceptual basis of the criteria. They rest on the implicit assumption that the presence of the potential capability and written intent on the part of the facility to provide appropriate care is sufficient to ensure--for regulatory purposes--that care of adequate quality is being provided. A major reorientation of the conditions and standards is necessary so that they require, whenever possible, assessment of the quality and appropriateness of care and the quality of life--a consideration not covered in current standards--being provided to residents, and the effects on residents' well-being. A third issue is the excessive reliance the current standards place on unguided professional judgments by surveyors in three areas: (1) what constitutes good care for residents with differing service needs, (2) how to interpret survey findings, and (3) how to weight or score facility performance on individual standards, and how to aggregate performance on individual standards to determine whether a facility is in compliance with a condition of participation. Elimination of professional judgment--and the inconsistencies that are inescapably associated with it--will never be possible, but some steps to introduce more objectivity and reliability into the regulatory system are possible. CONSOLIDATING THE TWO SETS OF CRITERIA The two classes of nursing homes--SNFs and ICFs--are supposed to serve residents with different "levels" of nursing and rehabilitative care needs. The regulations differentiate between the two groups in their capacity to provide services (for example, in the professional staff required) and in the eligibility criteria (services needed by the residents) set by the states. Despite these regulatory distinctions, the actual distinctions between SNFs and ICFs--in the variety of services provided, and in the mix of residents they admit with different distributions of disability and nursing care needs--is blurred. Both types of facilities are nursing homes providing a range of services to residents with widely
72 / NURSING HOME CARE varying service needs. (The history of the development of federal regulation of nursing homes, including the establishment of the two classes of nursing homes, is contained in Appendix A.) SNFs are considered more medically oriented, as implied, for example, by the use of the term"patients" throughout the SNF regulations. The ICF regulations refer to "residents." SNFs are required to provide more nurse staffing--SNFs must have a nurse on duty 24 hours a day, whereas ICFs must have a nurse on duty only during each day-shift. In addition, SNF standards for other staff and for services provided are also more detailed and stricter than ICF requirements. The minimal requirements for each type of facility describe a broad range of facilities and range of intensity of service in both levels of care that overlap. Most nursing homes provide both nursing care and assistance with activities of daily living. Furthermore, the definitions of each, and especially of the ICF, leave a large amount of discretion to the states as to which facilities they will call SNFs and which ICFs, and which residents they will consider eligible for SNF or ICF care. The number of SNFs in a jurisdiction ranges from as few as 3 in the District of Columbia to as many as 1,148 in California, and the proportion of facilities that are classified SNF from 2 percent in Oklahoma to 100 percent in Arizona. The number of ICFs ranges from none in Arizona to 770 in Texas, and accounts for 98 percent of Oklahoma's facilities." The Medicaid reimbursement rates for SNFs must, by law, be higher than for ICFs. If the rate difference is large, there is an incentive for states to control costs by licensing more ICF beds than SNF beds, irrespective of the distribution of residents' needs. States have different licensing criteria for nursing homes. They are allowed, under the Medicaid law, to set their own eligibility criteria for admission of residents to SNFs and ICFs. States can have more stringent requirements for licensure and eligibility for admission than the federal regulations require. Examples of different licensing requirements can be found in Connecticut and Iowa. The homes in each state serve residents with a wide range of service needs. In .
REGULA TOR Y CRI TERIA / 7 3 Connecticut, about 90 percent of nursing homes are certified as SNFs. In Iowa, nearly all of the nursing homes are certified as ICFs. It is highly improbable that the reason there are mostly SNFs in Connecticut and mostly ICFs in Iowa is that the residents' requirements for services differ that much--that is, that they require, on the average, more skilled nursing care in Connecticut than they do in Iowa. The differences are more likely to be due to other factors such as the availability of chronic hospitals, state judgments on appropriate nurse staffing for nursing homes, and state attitudes about Medicaid funding. It is hardly appropriate to apply different quality assurance criteria to SNFs and ICFs that are, or should be, providing similar services to similar residents. This will become even more important as the rapid population growth of those over age 75 increases the number of seriously disabled residents requiring "heavy care." The main difference between the SNF and ICE standards is the requirement for minimum numbers of licensed practical nurses and RNs. To raise the ICF nursing standards to the SNF level will require an increase in nurses in many homes. Since most of the care in nursing homes is provided by nurse's aides who have had relatively little training, and who tend, on the average, not to remain in the same job very long, it is essential that all nursing homes employ a sufficient number of licensed practical and registered nurses to properly supervise the aides at all times. In addition, professional nurses are needed to supervise resident assessments and to monitor delivery of resident health care and treatment. In sum, the administrative distinctions between SNFs and ICFs do not in practice display clear differences in the residents they serve. Both kinds of facilities are nursing homes that admit and care for residents with wide ranges of disabilities and service needs. They therefore should be subject to the same quality assurance criteria and procedures. Since most of the care in nursing homes is provided by unlicensed nurse's aides who require careful supervision by licensed nurses, the SNF minimum staffing standards should be applied to all nursing homes.
74 / NURSING HO3lE CARE Recommendation 3-1: The regulatory distinction between SNFs and ICFs should be abolished. A single set of conditions of participation and standards shouic' be used to certify all nursing homes. The current SNF conditions and standards, with the mollifications and ad`litions recommended below, should become the bases for new certifying criteria. This is a recommendation that requires a change in the law. It may lead to increases in Medicaid budgets in several states because it will require increased RN and LPN staffing in many nursing homes in those states. (This is discussed more fully in the last section of this chapter.) Some time will be needed to implement this change in states with many ICFs. But whatever the transition problems, applying one set of regulatory standards to all nursing homes is essential if the goal is to achieve overall improvement in the quality of care being provided to nursing home residents. The nursing home industry has matured in the past 15 years. The shortage of nurses--advanced as one of the important reasons for creating ICFs--that may have existed some years ago has eased, in part as a result of sharp drops in hospital bed occupancy rates, and the consequent reductions in hospital employment. Moreover, a better understanding of what is required to provide high-quality care in nursing homes exists today than existed 15 years ago. RESIDENT ASSESSMENT Providing high-quality care requires careful assessment of each resident's functional, medical, mental, and psychosocial status upon admission, and reassessment periodically thereafter, with the changes in status noted. Current regulations do not require a standardized assessment of any kind, although the development of individual plans of care clearly depend on resident assessments. The outcomes of care are defined by changes in functional, medical, mental, and psychosocial status. As discussed in Chapter 2, much research over many years
REGULATORY CRITERIA / 75 has developed successful techniques and instruments that can produce valid, reliable assessment data that can be used for these purposes. Moreover, it has been demonstrated that these instruments can be used reliably by LPNs who have been trained to use them, as well as RNs. The resident assessment data have several very important uses both for facility management and for government regulatory agencies. For the facility, standard resident assessment data, obtained on admission and periodically thereafter, are an essential tool for quality-of-care purposes and for other management uses. A careful assessment of every resident is needed to formulate a care plan for that resident. Typically, the resident care plan contains information on physical and mental function, health risk factors, diagnoses, prognoses, short- and long-term goals, as well as key social history items. Periodic reassessment--for example, every month for the first 2 months after admission, and quarterly thereafter--is essential for two reasons: (1) to check on the resident's status changes, and (2) to see what, if any, modifications in the care plan should be made. The data can be used by management for two other purposes: (1) to provide very precise information on case mix in the nursing home, how it is changing, and how appropriately residents, staff, and other resources are--or should be--distributed in the home; and (2) to conduct longitudinal studies on quality of care, controlled for case mix. For example, problems in particular bed sections--possibly attributable to inadequate nursing care--could be identified promptly and steps taken to remedy them. One nursing home chain has been using similar data for over 10 years for monitoring the case mix, staffing, and the quality-of-care performance in its 50 nursing homes from its central office.4 Standard, longitudinal assessment data are also essential for four state regulatory functions: (1) for obtaining case-mix information in each nursing home for use in sampling for survey purposes (see Chapter 4), (2) for obtaining outcome information by examining longitudinal assessment data in resident records, (3) for utilization review to assure that residents meet the eligibility requirements of Medicaid or Medicare, and (4)
76 / NURSING HO3lE CARE for case-mix information needed for Medicaid payment (reimbursement) calculations (in states where case mix is used as a factor in Medicaid payment policy). The standards for this condition should specify the items to be used in making the assessment, the qualifications of the staff authorized to do the assessing (for example, licensed nurses), the training they should receive before being authorized to do the assessments, how often assessments of each resident are required--for example, on admission, once a month for the first 2 months, once every 3 months thereafter, and at discharge. The standards should specify that these assessment records should be retained in the resident's medical record. Auditing by the state regulatory agency also should be covered in a standard, and acceptable error rates specified Once the system has been in operation for some time, unacceptably high error rates by facilities should be viewed as indicators of inferior performance and subject to sanctions by the survey agency. Introducing and phasing in this new set of requirements will take time. Several major steps are necessary. The assessment items will have to be selected. The assessment data should include (but not be limited to) medical problem identification (diagnoses), measures of physical function such as activities of daily living and mobility, and measures of mental and psychosocial functioning such as appropriate behavior, cognitive ability and depression. An operations manual will have to be written for the ultimate users--licensed nurses. Training programs and training materials will have to be developed. A major training effort will have to be initiated by the HCFA and continued by the states, possibly with the help of the state provider associations. All state nurse surveyors will need to be trained in collecting this standard data in a consistent manner since they will be responsible for auditing the facilities. Federal regional office surveyors also will have to be trained in addition to the thousands of facility staff. Auditing procedures and standards for the kinds and amounts of acceptable discrepancies between auditor's findings and facility data should be based on the findings of careful empirical studies.
REGULATORY CRITERIA / 77 The requirement for nursing homes to do standard assessments of all residents should not be immediately coupled to a requirement that the data be entered into a computer file. Eventually, computer access will be essential to be able to use the data for some of the important purposes noted above. But it will take at least 2-3 years to get the manual system installed and used with acceptable accuracy by most nursing homes. During the period that this system is being developed and installed, there will be an opportunity to undertake simultaneously a careful study of the policy and technical problems involved in computerizing resident assessment data, and to agree on the use of such data by state and federal governments. The product of such a study should be a specific plan for doing so. This is discussed in Chapter 7. Recommendation 3-2: A new condition of participation on resident assessment should be added[. It should require that in every certified facility a registered nurse who has received" appropriate training for the purpose shall be responsible for seeing that accurate assessments of each resident are clone upon admission, periodically, anc! whenever there is a change in resident status. The results should be recorded and retained in a standard format in the resident's medical record. REVISING AND STRENGTHENING THE CONDITIONS AND STANDARDS The conditions of participation were introduced by the Medicare law in 1965. SNFs must comply with them to be eligible for certification under Medicaid or Medicare. There are 18 SNF conditions governing the following areas: state licensing, governing body, medical direction, physician care, nursing, dietary, specialized rehabilitation, pharmacy, lab and x-ray, dental, social services, patient activities, medical records, transfer agreement, physical environment, infection control, disaster preparedness, and utilization review. If a
78/NURSING HOME CARE skilled nursing facility is found to be out of compliance with one or more conditions, it is subject to Recertification. This means the SNF is not eligible to receive payment for care provided to Medicaid- or Medicare-eligible residents. The current SNF conditions and standards--which would, under our recommendation, become applicable to all nursing homes--need to be rewritten in accordance with the following principles: 1. Whenever appropriate, the criteria should address residents' needs and the effects of care on residents, and the performance of a facility in providing care rather than its capability to perform. 2. The criteria should be based on the best professional standards for providing high quality of care and quality of life to nursing home residents. 3. The criteria should be drafted clearly and with as much specificity as possible so that they can be understood by facilities, applied consistently by trained surveyors, and be legally enforceable. 4. The criteria should be internally consistent. logical, and comprehensive. 5. They should include physical, mental, and social functioning; nursing care; nutritional status; social services; physician care; psychological care; pharmacy; dental care; environment; residents' rights; emotional well-being; personal choice; satisfaction; and community interaction. 6. The criteria should be sensitive to each facility's case mix, that is, to the variations in the services required and outcome expectations for residents with different needs found in one facility. 7. The criteria should not be unnecessarily burdensome on facilities. An examination of the conditions of participation using the above principles reveals the areas where improvements are needed. First, the current conditions and standards focus on the facility's capacity to provide services rather than on the quality of services received by the residents and their
REGULATORY CRITERIA / 79 effects on the residents. Most conditions and standards begin by stating "facilities will provide . . . or facilities have policies to ...." The conditions and standards need to be rewritten to state, "residents will receive . . Appropriate to their needs (as documented in the resident's care plan)." The facility will still be held accountable for providing the services, but the surveyor should be concerned with how adequately the services were provided to the residents in accordance with their needs. That is, the emphasis should shift from facility capability to facility performance. Second, the conditions do not consistently reflect current professional standards for long-term care in at least two respects: (1) they do not explicitly recognize the importance of quality of life, and (2) they do not require facilities to apply the state of the art in assessment and care planning. This is remediable by adding a new condition on quality of life and one requiring regular assessment of all residents. By use of longitudinal resident assessment data to develop statistics on outcomes of care controlled for case mix, objective outcome standards for assessing the quality of long-term care can be developed. Third, a consistent criticism of the conditions is the vagueness of their language and lack of specificity compared to the licensing regulations in some states. The concept of the conditions--statements of broad requirements supported by detailed standards--is appropriate. The standards must be as precise and detailed as possible to be understandable to facilities, consistently applied, and enforceable by survey agencies. Terms such as "adequate" or "sufficient" are not precise, but they may not be entirely avoidable when there are no quantitative guidelines available. For example, the nursing condition requires "an organized nursing service with a sufficient number of qualified personnel to meet the total nursing needs" of the residents. Such a standard can be met through the exercise of professional judgment by facility staff. The facility's judgment may not be congruent with a surveyor's judgment, but the latter's judgment should rest in part on outcome assessments as well as observation of the workload of
80 / NURSING HOME CARE available staff. Until such time as quantitative standards become available--for example, a standard that relates residents' service needs to nurse staffing by mathematical algorithm--professional judgment will have to remain. Vague, unmodified terms should be eliminated from the regulations, but professional judgment, guided by general standards, must remain where quantification is not currently feasible. The results of these modifications should allow surveyors to apply the criteria with greater consistency. Fourth, the criteria should be sensitive to all major domains of resident care as well as to differences in residents' characteristics and service needs (case mix). For example, among residents who are bed-bound, the extent to which decubitus ulcers are found is a strong indicator of quality of care. Bed-bound residents have other important service needs that should be checked by surveyors, for example, bedside activities programs. Bedside activities would be inappropriate for ambulatory residents who require different services. Standards that require facilities to use large amounts of staff time for purposes that do not contribute significantly to resident safety or the quality of care or quality of life should be minimized. Requirements that may disrupt resident care services also should be limited or avoided. Providers have reported during public meetings that the survey process requires such extensive maintenance, review, and abstracting of medical records and other documents that they are sometimes forced to assign resident care staff to these clerical tasks even though it interferes with the facility's ability to provide provision of necessary care to residents. Recon'n~enclation 3-3: The existing SNF conditions and standards should be rewritten in accordance with the above principles and matte applicable to all nursing homes. In addition to rewriting the current criteria in accordance with the above principles, some new conditions and standards are needed and some of the current conditions and standards should be restructured. Specifically,
REGULATORY CRITERIA / 81 1. Two new conditions of participation should be added that deal with quality of life and quality of care. 2. Residents' rights should be raised from a standard to a condition of participation and some new residents' rights standards added. 3. Seven existing conditions of participation-- governing body and management, utilization review, transfer agreement, disaster preparedness, medical direction, laboratory and radiological services, and medical records--should become standards in a new condition to be called "administration." 4. Five new standards should be added to the administration condition: one on training for nurse's aides and one banning discrimination on admission or retention of residents on the basis of source of payment, access, notification, and consumer participation. 5. Standards in the social service and physical environment conditions should be strengthened. These recommendations are summarized in Table 3-1 and discussed separately below. Other existing criteria that address structural components remain as conditions of participation. Quality of Life A major weakness of the current regulations is that they do not address quality of life, despite its importance to the majority of nursing home residents (as discussed in Chapter 2~. Certain key aspects of quality of life can be specified as regulatory standards, although there are difficult measurement problems. The importance of quality of life merits its being incorporated into the regulations as a condition of participation. Recommendation 3-4: A new condition of participation concerning quality of life should be added to the certification regulations. The condition should state that residents shall be cared for in such a manner and in such an environment as will promote maintenance or enhancement of their quality of life without abridging the safety and rights of other residents.
82 / NURSING HOME CARE TABLE 3-1 Recommended Changes in Conditions of Participation 1. Resident Assessment (new) 2. Quality of Care (new) 3. Quality of Life (new) 4. Residents' Rights (new) 5. Administration (new). This would involve reducing the following conditions to standards and adding five new standards: - - Governing body and management (II) Utilization review (XVIII) Transfer agreement (XIV) Disaster preparedness (XVII) Medical direction (III) Laboratory and radiological services (IX) Medical records (XIII) Nurse's aide training (new) Access (new) Medicaid discrimination (new) Notification (new) Consumer participation (new) The following would remain as conditions but require modif ication: 6. Nursing services (V) 7. Dietetic services (VI) 8. Physician services (IV) 9. Specialized rehabilitative services (VII) 10. Resident activities (XII) 11. Social services (XI) (strengthen) 12. Dental services (X) 13. Pharmaceutical services (VIII) 14. Infection control (XVI) 15. Physical environment (XV) (strengthen) 16. Compliance with federal, state, and local laws (I) Roman numerals refer to the number of the condition of participation in the current federal regulations.
REGULATORY CRITERIA / 83 Some standards that should be included under this condition are- 1. Residents should have a supportive, comfortable, homelike environment. 2. Residents should have choice over their surroundings, schedules, health care, and activities. 3. Residents should be treated with dignity and respect. 4. Residents should have opportunities to interact with members of the community inside and outside the nursing home. Quality of Care At present, the conditions of participation relating to care are disciplinary: there is a nursing condition, a social service condition, dietary condition, and so on. But much of the care actually provided has multidisciplinary involvement. Thus, in reorienting the approach of regulation to give more emphasis to the care being provided and its effects on the residents, a new quality-of-care condition is needed that has both process and outcome standards. The standards for the quality-of-care condition should identify desirable resident outcomes of care processes in functional status, physical well-being and safety, emotional well-being, social involvement and participation, cognitive functioning, and resident satisfaction. Examples of outcome standards are: each resident is clean, dressed, has well-trimmed nails, and is well-groomed; each resident maintains physical functioning. Examples of process standards are: each resident is protected from accidents, injury, and infection; each resident has daily activities and exercise; each resident has social interactions throughout each day with staff members and other residents; each resident has mental stimulation, reality orientation, emotional support, and other psychological supports. Specifying desired processes and outcomes is important because it focuses on the purpose of nursing home care.
84 / NURSING HOME CARE Assessing the relationship between the quality of care provided and a particular outcome is not always easy in the absence of case-mix-controlled outcome data. Until such data become available, continued reliance on professional judgment will be necessary. Introduction of the resident assessment data system recommended below will make it possible to produce, in a few years, the data required for defining the ranges of outcomes. As quantitative outcome data become available, the standards in this condition should be updated. Outcomes can be negative or positive. Negative outcomes are those that should not occur except in circumstances where a resident's medical and physical condition makes the outcome difficult or impossible to avoid. Negative outcomes include cognitive impairment or other side effects from overmedication; decubitus ulcers; upper respiratory, urinary tract, or other infections; urinary incontinence; dehydration; malnutrition; contractures; unnecessary physical restraints and immobility; social isolation; and physical inactivity. The standards should specify the negative outcomes to be avoided. For example: "Each resident should receive skin care that promotes health and prevents decubitus ulcers and skin breakdown due to pressure and/or friction." This standard is based upon the principle that good skin care can prevent skin--breakdown except in unusual circumstances where a preexisting medical condition such as diabetes causes circulatory problems that make skin breakdowns a common occurrence. Decubitus ulcers (bedsores) are generally considered an indicator of poor-quality care.2~3 Protocols have been developed for identifying and measuring the severity of such skin breakdowns, and it can be determined whether care by the facility is improving the problem, maintaining an existing condition, or allowing the resident's condition to deteriorate. Positive outcomes are, for the most part, the obverse of the negative outcomes--for example, no decubitus ulcers among bed-bound residents, resident satisfaction with food and care, and so on. The importance of resident outcomes and process of care merits their inclusion in a new condition of participation.
REGULATORY CRITERIA / 85 Recommendation 3-5: A new condition of participation on quality of care should be ac/~dec! to the certification regulations. It should state that each resident is to receive high-quality care to meet individual physical, mental, and psychosocial needs. The care shouic! be designed to maintain or improve the residents' physical, mental, and emotional well-being. Residents' Rights As discussed in Chapter 2, residents who receive good personalized care and opportunities for choice have higher morale, greater life satisfaction, and better adjustment. Research has shown that morale and activity are linked to physical health, and perception of social isolation is associated with premature death. Residents who have the information necessary to solve problems are better able to cooperate with both nursing home staff and state surveyors.5 These factors underly the importance of ensuring every resident's right to receive necessary information, to be given reasonable choices, and to be treated with dignity. Although residents' rights are incorporated in a standard in the current regulations, at the committee's public meetings and at its special workshop on consumer issues (December 1984), the testimony of consumers, consumer advocates, and regulators cited numerous instances and patterns of serious rights violations. Many agreed that the ambiguity of elements in the current residents' rights standard is such that both residents' entitlements and facilities' obligations are unclear. The ambiguity hampers enforcement. The likelihood of improving facility performance and also of improving enforcement by the state regulatory agencies will be increased by (1) raising residents' rights to a condition of participation from its current status as 1 of 13 standards under the "governing body and management" condition of participation, and (2) clarifying the language of several enumerated rights and adding some that experience has demonstrated to be necessary.
86 / NURSING HO3lE CARE Testimony at the public meetings and consumer issues workshop identified the particular topic areas where clarified, expanded, or additional standards are warranted. These are the rights to information (about community services, about one's medical condition, and about one's medical records), rights to notice and assistance in transfer or discharge, and rights of association. The enumerated rights set forth below are reasonable to expect all facilities to honor. They have been observed in many high-quality facilities for some time. Recommend ation 3-6: The existing stand ard on resid ents' rights should be made into a condition of participation. The condition should state that every resident has certain civil and personal legal rights that must be honored by the staff of the facility. Rights specified in this condition, as they pertain to a resident who has been adjudicated incompetent in accordance with state law, shall devolve to the resident's guardian, or, if required by the state, a responsible party. In cases where the attending physician determines that a legally competent resident is incapable of exercising a right, the conditions and circumstances shall be fully documented in the medical record and shall devolve to a responsible party. The following standards should be added to the residents rights' condition: a. All residents admitted to the facility shall be told that there are legal rights for their protection during their stay at the facility and that these are described in an accompanying written statement. Reasonable arrangements shall be macle for those who speak a language other than English. At such time as the rights set forth in this condition are revised, residents shall be given the tic pd. ated in f ormation. Further ex planation o f the written statement of rights shall be available to residents and their visitors upon reasonable request to the administrator or other designated staff person. b. Each resident has the right to know the name, address, and phone number of the state survey office, state or local nursing home ombudsman office, and state or
REGULATORY CRITERIA / 87 local legal service office. The facility shall post such information in a location accessible to residents and visitors. c. Each relic/tent has a right to see written facility policies. Facilities shall make policies available on request. Facilities shall post state survey reports and plans of correction in a location accessible to residents. d. Each resident may inspect his/her medical and social records upon request to the facility. The resident may request and receive copies of the records at a photocopying cost not exceeding the amount customarily charged in the facility's community for similar services. (This overrides state law and/or regulations if they are in conflict.) e. Each resident must receive prior notice of transfer, d ischarge, and la pse o f bed -hoic' period s. The f acility must notify the resident, resident's representative, and attending physician in writing (1) at least 3 days prior to the lapse of bed-hold period s, (2J at least 3 days prior to intrafacility transfer, ¢3J at least 4 days prior to discharge from the facility except as specified in documented emergencies. The notice must contain the reason for the proposed transfer, the effective date, the location to which the facility proposes to transfer the resident, a statement that the resident may contest the proposed action, and the address and telephone number of the state or local nursing home ombudsman. f. Each resident, along with his/her family has the right to organize, maintain, and participate in resident advisory and family councils. Each facility shall provicle assistance and space for meetings. Council meetings shall be afforded! privacy, with staff or visitors attending only upon the council's invitation. A staff person shall be designated responsible for providing this assistance and for responding to written requests that result from council meetings. Resident anc! family councils shall be encouraged to make recommendations regarding facility policies.
88 / NURSING HOME CARE g. Each resident has the right to meet with visitors and participate in social, religious, and political activities at their discretion so long as the activities do not infringe on the rights of other residents. This includes the right to join others within and outside the facility to work for improvement in long-term care. The facility must permit each relic/tent to receive visitors anc! associate freely inside or outside of the facility with persons anal groups on the resic/ent's own initiative. Visitors must be granted access to residents. The residents, however, have the right to refuse or terminate · ~ any visit. Administration According to the HCFA, the following seven conditions of participation are rarely cited as the reason for a nursing home being out of compliance: Governing body and management Utilization review Transfer agreements Disaster preparedness Medical direction Laboratory and radiological services Medical records . Determining whether a facility is in compliance with these conditions involves review of documents such as organization charts, contracts, disaster plans, and medical records. To simplify the survey process, these seven conditions should be grouped together under a new condition of participation entitled, "Administration." Recommendation 3-7: A new condition of participation entitled "Administration" should be established. The following current conditions of participation should be reclassifies! as stanclarcls under this new condition: governing bocly and management, utilization review, transfer agreements, disaster preparedness, medical
REGULATORY CRITERIA / 89 direction, laboratory and radiological services, and medical records. Consolidating seven existing conditions into one administration condition will give more relative emphasis to resident quality-of-life and quality-of-care issues. In the process of rewriting the seven conditions as standards, two items should be eliminated because they are examples of paperwork requirements that do not seem to serve any regulatory function: the standard on institutional planning and the requirement for routine submission of quarterly staffing reports. Staffing records may be examined if resident care problems suggest insufficient numbers of staff, but submission every 3 months to survey agencies is unnecessarily burdensome to facilities, and the reports are almost never used by the regulatory agencies. Recommendation 3-7A: The current requirements for institutional planning anc! submission of quarterly staffing reports should be eliminated in drafting the new act ministration concl ition. Several new standards should be added to the administration condition to strengthen it. These specify requirements for training nurse's aides, discrimination, legal access to facilities by ombudsmen, and resident participation in facility decision-making. In addition, the current standard (notification of changes in patient status) under the governing body and management condition should be modified to deal more clearly with the problem of the incompetent resident who has not been legally adjudicated as being incompetent. Training of Nurse's Aides There are now no federal requirements concerning qualifications of nurse's aides. In most states, nurse's aides occupy entry-level positions that have no experience or formal educational or training requirements. Over 70
90 / NURSING HOME CARE percent of the nursing personnel in long-term care facilities are nurse's aides6 and as much as 90 percent of the resident care in nursing homes is delivered by them. Current federal regulations allow nurse's aides to deliver all resident care in ICFs without the supervision of a registered, licensed, or vocational nurse from 3 p.m. to 7 a.m. every day. Nurse's aides usually are not experienced or adequately trained for their jobs, in some places many speak English poorly, and they often are new to the job as well. A Minnesota study found that 45 percent of the nurse's aides left their jobs within the first 3 months of employment and another 30 percent left within the first year. Another study found that 70 percent left within the first 6 months.6 Studies of the causes of the high attrition rate of nurse's aides have mentioned lack of respect from management, lack of autonomy, lack of job mobility, and low pay.6~~t Seventeen states have mandated training programs for nurse's aides. Other training models have been developed by consultants to the federal government, by universities, and by facilities.6 States' training requirements range from as much as 50 classroom hours and 100 clinical hours of training for aides in California, to as few as 20 total hours in Nebraska. A majority of the states have no specific training requirements. Existing state programs follow no consistent educational model in content, goal, or organization. In many, the essential relationship between perceived training needs and on-the-job experience is not present. Given the number of nurse's aides, and the importance of their role, training of nurse's aides prior to employment in the long-term facility should be federally mandated. Nursing homes or other potential employers could arrange and pay for the training program for a newly hired aide. This would not put undue financial burden on the potential aide and may in fact screen out potentially unsatisfactory aides prior to their being given resident care responsibilities. There is no clear evidence at present of the amount of time and the content of the most effective nurse's aide training programs. This an important issue on which the HCFA should sponsor study r ~
REGULATORY CRITERIA / 91 In addition to preservice training, continuing on-the- job training by qualified supervisors is essential. A nurse-supervisor should be in all facilities on all shifts. Nurse's aides should be able to consult with a professional nurse while on the job. Considering the current trend of increasing numbers of residents who require substantial amounts of nursing care, aides must be trained and supervised. Improvements in aide training and job responsibility will help to improve nursing aide skills, elevate their self-esteem, improve resident care and, perhaps, decrease nurse's aide attrition rates as well. Recommendation 3-7B: A new standard, nurse's aide training, should be added to the administration condition. The standard should require that all nurse's aides complete a preservice state-approved training program in a state-accredited institution such as a community college. Discrimination There is widespread evidence that nursing homes actively discriminate against certain types of individuals. The two groups most at risk appear to be those individuals with "heavy care" needs and those whose primary source of payment is Medicaid. The evidence of this discrimination is very strong. As the U.S. Senate Special Committee on Agingi2 reported, Findings of a recent committee investigation show that in some areas of this country, up to 80 percent of what are called federally certified nursing homes (that is, those that voluntarily participate in the Medicare and/or Medicaid programs) are reported to actively discriminate against Medicaid beneficiaries in their admission practices. In addition, several other studies demonstrate that discrimination and limited access to nursing home services are particularly acute problems for Medicaid patients and
92 / NURSING HOME CARE those individuals with heavy-care needs.~3~~9 The National Summary of State Nursing Home Ombudsman Reports for the United States (FY 1982) stated that discrimination against Medicaid recipients or potential Medicaid recipients was identified as a major problem in 21 states and was the fourth most frequently mentioned problem out of 74 problems cited by the ombudsmen programs. The General Accounting Office20 summarized 1 1 studies conducted since 1979 and concluded that severe access problems and discrimination were occurring on the basis of resident "handicap." Individuals who required especially heavy care or substantial hands-on care, such as those suffering from Alzheimer's disease and other related disorders, experienced access problems and were often in hospitals awaiting nursing home placement even when there were empty nursing home beds in the community. The nursing homes simply refused to admit these residents. The U.S. Senate Special Committee on Aging reports similar problems--as well as a variety of illegal discriminatory practices--by nursing homes. The committee also heard about such practices in testimony at the public meetings it held around the country in 1984. State reports and empirical studies substantiate this finding of discrimination against Medicaid beneficiaries and against those with heavy-care needs. Nearly all observers agree that in almost every state there are more people seeking admission to nursing homes than there are beds available. This circumstance allows a nursing home administrator to select those applicants in the queue he or she prefers to admit. Nursing homes prefer to admit private-pay residents over public-pay residents because the Medicaid reimbursement rates are lower than charges to private-pay residents. Further, except in states that have case-mix reimbursement systems, homes have an incentive to select residents with relatively low levels of need over the heavy-care residents because those requiring less service are less costly to care for. This is of particular concern because of the expected growth in heavy-care residents and because
REGULATORY CRITERIA / 93 the vast majority of individuals needing long-term care will rely on Medicaid for assistance in paying for that care. Currently, two-thirds of all middle-income residents in nursing homes spend their life savings within 2 years of admission and become Medicaid-eligible. It is recognized that there are many complex and interrelated factors at work in the nursing home market that may contribute to discrimination. The committee's concern is to identify policies that may reduce or eliminate discrimination that strikes at those most vul- nerable--the poorest and most disabled. Congress intended that the disabled should be protected from discrimination in admission practices. The 1974 amendments to section 504 of the Rehabilitation Act makes such discrimination illegal. It is also recognized that a nursing home administrator cannot responsibly admit more heavy-care residents than can be cared for properly. The incentive to discriminate against heavy-care residents is strengthened by reimbursement systems that set Medicaid rates without taking into account the differences in amounts of services required by individual residents to meet their care needs. In some cases, the Medicaid rate may be too low for nursing homes to provide adequate care for certain individuals, but in all cases a rate that is the same for light-care residents as for heavy-care residents provides nursing homes with a strong incentive to discriminate. Discrimination against individuals who receive assistance from Medicaid in paying for care poses complex questions. Such discrimination appears in several forms. Some nursing homes maintain separate waiting lists--one for private-pay residents and another for Medicaid residents--and give preference in admission to those individuals on the private-pay list. Another discriminatory practice is to require residents to remain in private-pay status for a specified period of time before the home will allow them to apply for Medicaid support. Still another practice followed by some nursing homes is to evict residents once they have exhausted their private funds and become eligible for Medicaid. Some residents have successfully challenged transfers out of facilities, but this is a time-consuming and inefficient
94 / NURSING HOME CARE way to enforce such rights, and it has not led to wide- spread changes in facility practices.~5 The problem of discrimination against Medicaid recipients is further complicated by the phenomenon of residents spending down to Medicaid eligibility. Most nursing home residents whose care is covered by Medicaid will have originally entered the facility as private-pay residents. Conversely, most private-pay residents can be expected to spend down to Medicaid eligibility. There is no simple solution to this problem. Because a seller's market exists in most states, increasing the Medicaid rate probably also would increase the private-pay rate. Increasing Medicaid rates also increases the speed with which private-pay residents spend down to Medicaid eligibility. Nor would increasing the bed supply necessarily eliminate the problem of Medicaid discrimination in its various forms. Increased bed supply would make more nursing home beds available to Medicaid residents, but it would not ensure their ability to enter the facility of their choice on an equal basis with private-pay residents. Separate waiting lists, forced discharges, and contracts stipulating a fixed period of private-pay status could still occur. Such discrimination should not occur in facilities that have chosen to participate in government programs. Discrimination against Medicaid recipients should not be permitted in certified facilities. A few states have adopted laws to reduce or eliminate discrimination on the basis of source of payment. These states include Minnesota, Ohio, Washington, and New York. New Jersey requires a certified nursing home to allow up to a specified percent of its beds to be occupied by Medicaid residents. There is no known evidence of the effectiveness of these laws. The HCFA should analyze the experience in these states and develop federal criteria based on one or more of these state laws. In developing antidiscrimination legislation, care should be taken to ensure that facilities are not permitted to avoid compliance by certifying different segments of the same institutions in different ways ("distinct part" certification).
REGULATORY CRITERIA / 95 Recommendation 3-7C: A new standard should be written under the administration condition that prohibits facilities that have signed a Medicaid Provider Agreement from having different standards of admissions transfer, discharge, and service for individuals on the basis of sources of payment. Notification Many nursing home residents have strong feelings of personal isolation despite the group-living situation.5 These feelings are reinforced by the failure of facilities to notify residents' families about significant changes in a resident's status, failure to provide residents with a way to express opinions about aspects of the home's operation, and obstacles to community access. These problems should be addressed in specific standards in the administration condition. Notification of those who might assist the resident when changes occur is now required by standard (j) under the governing body and management condition. It reads as follows: (j) Standard: Notification of changes in patient status. The facility has appropriate written policies and procedures relating to notification of the patient's attending physician and other responsible persons in the event of an accident involving the patient, or other significant change in the patient's physical, mental, or emotional status, or patient charges, billings, and related administrative matters. Except in a medical emergency, a patient is not transferred or discharged, nor is treatment altered radically, without consultation with the patient or, if he is incompetent, without prior notification of next of kin or sponsor. Recommendation 3-7D: When the governing body and management condition is rewritten and incorporated! in the
96 / NURSING HOME CARE new administration condition, the current standard "j" should be changed to require the facility to record at ad mission and periocl ically con f irm or u pd ate the id entity of a guardian, conservator, or resident's representative to be notified in the event of (1) care conferences; (2) changes in the resident's physical, mental, or emotional status; (3J an accident involving the resident; (4J change in billing; (5) change of room; (6) discharge from the facility; or (7J changes in federal or state residents' rights. Notif ication should be timely. Participation Residents' rights to associate and express concerns should have an analog in the administration condition, one that obligates the nursing home to be receptive to regular, reasonable expression of views. The recommendation below recognizes the diversity of resident capabilities and administrative styles while fostering communication. It reflects current policy and practice in many facilities and is encouraged by the national nursing home trade associations and consumer organizations. Recon~r''end ation 3-7E: A new stand ard should be ad d ed to the administration condition that would require every facility to develop and implement a plan for regular resident participation in decision-making in the facility's operations and policies and for presentation of resident concerns. Forms of resident participation can include, but are not limited to, resident councils, regularly scheduler! resident forums, resident issue or program committees, and grievance committees. Facilities should include existing resident councils and/or other resident representatives in developing this plan. Access Local area ombudsmen and other community volunteers are denied access to some nursing homes in some areas despite
REGULA TORY CRITERIA / 97 the demonstrated benefits of community presence in nursing homes. Some local nursing home ombudsmen have been hampered in their response to residents' requests for assistance because they have been refused entry to the facility and/or access to the residents' records that are germane to the problem.23 Given the long-term-care ombudsman's statutory role in handling complaints and serving as an advocate on behalf of residents (see Chapter 6), and in the process complementing the work of the state survey agency, it is essential that local ombudsmen have legal access to nursing homes. This authority should be clear both in the Older Americans Act (see Chapter 6) and in the HCFA's certification standards. It also is unrea- sonable to permit some facilities to isolate residents from contacts with community volunteers who can provide legal or social services to them. Recommendation 3-7F: Two new elements should! be added to the governing body and management standard as follows: a. Certified nursing homes should be required to permit access to the homes by an ombudsman (whether volunteer or paidJ who has been certified by the state. With permission of a resident or legal gunrcJ{ian, a certified or''budsn~an should be allowed to examine the resident's record s r''ni''tainec/ by the nursing hone. b. Ally authorized employee or age''t of a public agency, or any authorized representative of a community legal services organizatio'', or any authorized r''en~ber of a nonprofit con~n~unity support agency that provides health or social services to nursing home residents should be permitted access at reasonable hours to any indiviclual resident of any nursing home. Physical Environment Older individuals are much more sensitive to changes in temperature. They have a lower tolerance for cold and heat and easily suffer from hypothermia and hyperthermia. Thus, nursing home temperatures should be carefully monitored. The comfort of staff also is important because
98 / NURSING HO3lE CARE it affects quality of care. The current standards are too vague to assure that the temperatures are carefully con- trolled; they should be strengthened. But since retro- fitting changes in the heating, ventilation, and air-conditioning systems in a nursing home can be very expensive, the recommended standard could be waived for older facilities if it would result in undue hardship. Recommendation 3-8: Standard 5, "Other Environmental Consiclerations" in the Physical Environment Conalition currently reacts ". . . provision is mad e for adequate and comfortable lighting levels in all areas, limitation of sounds at comfort levels, maintaining a comfortable room temperature ...." It should be amencled to add, at this point, "that is within acceptable ranges of operative temperature ant! humidity for persons clothed in typical summer or winter clothing at light, mainly sedentary activities, as specified in the ANSI-ASHRAE Standard 55-1981." This is the standard prescribed by the nationally recognized American National Stanclards Institute. Waivers may be grantee! for existing facilities until such tinge as substantial renovation takes place. NOTE ON STAFFING STANDARDS General Many types of professional services are required to formulate care plans and to provide high-quality care to meet the needs of the nursing home population. Physicians, dentists, podiatrists, speech therapists, physical therapists, occupational therapists, dietitians, and activities directors are needed in addition to nurses, social workers, and administrators. The heterogeneity of the residents and their service needs makes it inappropriate to prescribe detailed staffing standards for each of these disciplines. The major recommendations earlier in this chapter to shift the regulatory emphasis from structural to outcome orientation has an implication for staffing, namely, that every nursing home should be obligated to provide its residents with the full range of
REGULATORY CRITERIA / 99 services they need to meet the standards in the new quality-of-care and quality-of-life conditions. This will require sufficient staff--both numbers and types of professionals--to meet the needs of the residents in each home. All professionals should be trained in geriatrics and gerontology. Special efforts are needed to ensure that adequate physician services are provided to residents even though physicians--except for a part-time medical director--are not on the staff of nursing homes. The committee did not examine the staffing standards pertaining to all types of staff and for most does not recommend any changes. However, it did look at social · ~ services and nursing. Social Services i The current social services condition of participation ~s weak. It requires a designated person to be responsible for social services in each nursing home, and consultation from a social worker with an MSW degree when the designee is not so qualified. Reliance on this weak requirement has produced uneven results at best. Studies in various parts of the country show that many facilities have a bare minimum of social services--that is, they hire an MSW for 4 hours per month of consultation and appoint designees who are less than full-time and have little professional or even general education. Studies of the consultant role have shown how difficult it is for a nursing home consultant to design a social work program, develop procedures for a socially and psychologically sensitive environment, train and supervise social service designees, and design and conduct in-service training for all nursing home staff, given the minimal time alloted to their role and their negligible authority as a consultant.24~26 A full-time social worker with at least minimum professional credentials will be needed to help implement several of the recommendations contained earlier in this chapter, especially the new quality-of-life condition and the emphasis on resident outcomes. The latter implies that facilities will be held responsible for residents'
100 / NURSING HOME CARE well-being, including social and emotional aspects as well as physical. Social services in nursing homes can be effective in promoting a satisfactory quality of life and in improving social and psychological outcomes.27~30 Such programs develop interventions directed at the well-being of individual residents or subgroups of residents (for example, individual counseling to alleviate depression, counseling with the terminally ill, individual or group life review projects, orientation programs for new residents and their families). A social service program should be designed in collaboration with an activities program so that the social worker's knowledge of community resources can help residents take advantage of agencies and programs in the community that offer social, mental health, legal, educational, recreational, and spiritual affiliations. The social worker's function in a nursing home also should include training and assisting staff to positively influence residents' psychological and social states. One model program in a number of nursing homes also encouraged social workers to assist nursing staff in dealing with their own stress-induced family and personal problems, which in turn allowed those staff to be more comforting and supportive of residents.29 Recommendation 3-9: The present social services condition should be changes! to require that each facility with 100 beds or more be required to employ at least one full-time social worker. Qualifications for this position should be a bachelor's clegree in social work, a master's degree in social work, or some equivalent degree in an applied human service field at the bachelor's level or higher as approved by the state. Facilities with fewer than 100 beets or those in rural areas that have made a good-faith effort and have been unable to recruit a qualified social worker with the required credentials may substitute a contractual arrangement with a community agency or with an independent social work consultant. However, the HCFA shout/ establish a minimum level of effort for social services in exempted! facilities--for example, one day of consultation per week.
REGULATORY CRITERIA / 101 Licensed and Registered Nurses One of the major factors affecting quality of care and quality of life in nursing homes is the number and quality of nursing staff in relation to the facility's require- ments.~ Greater numbers of nurses have been associated with improved resident outcomes in research studies. But many nursing homes still rely largely on untrained and unlicensed nursing personnel to provide most of the care, with very few professional or licensed practical nurses to supervise them.3~~33 Moreover, most professional nurses in nursing homes have had little or no formal training in gerontology and long-term care. Staffing patterns vary across facilities, regions, and states, but for the most part there are inadequate numbers of nurses to provide the minimum care needed. Further, the wages for nurses and nurse's aides are substantially below wages for comparable positions in hospitals. Poor working conditions combined with heavy resident workloads and inadequate training are all factors that contribute to poor quality of care and high turnover rates in some facilities. Although there has not been extensive research on staffing patterns, there is little doubt that qualified nursing personnel are one of the most important factors affecting high quality of care. Federal SNF certification regulations require registered nurses to act as directors of nursing. Licensed practical or registered nurses may act as charge nurses. Nursing homes currently have roughly equal numbers of registered nurses and licensed practical or vocational nurses working in long-term care facilities. About 15 percent of the nursing personnel in the nation's nursing homes are registered nurses, 14 percent are licensed practical nurses, and 71 percent are nurse's aides. "Aides . . . provide six times as much care in nursing homes as do registered nurses, and five times as much care as do licensed practical nurses."6 On the assumption that adequate staffing improves quality of care, many states have adopted stricter nursing requirements, in the form of nurse~to-resident ratios, to supplement the federal regulations. These ratios range
102 / NURSING HOME CARE from as little as 0.4 nursing hour per resident-day to as many as 4.0 hours. There is a 4-fold variation in beds per licensed nurse, from 4.5 in Alaska to 18.S in Oklahoma. The variation in RN/LPN ratio among the states is 9-fold, from 0.2 in Texas to 1.9 in New Hampshire. Some states also set more specific duties for the director of nursing, such as planning staff development setting nurse practice standards and resident care policies, assessing resident needs, and recommending staff ratios. Facilities in each of these states must meet the state's staffing requirements to be licensed. And homes must be licensed in order to be certified. Most state standards do not distinguish between professional and nonprofessional nursing. However, they do set a measurable standard for the amount of nursing care required in homes according to the number of residents. There is evidence that many homes staff above minimal state requirements where requirements are low.34 Some individual homes and chains of nursing homes have also adopted methods for determining necessary nurse staffing that exceed state standards.4335 Because of the complexities of case mix--that is, the widely differing needs of individual residents in the same facility--prescribing simple staffing ratios clearly is inappropriate. Although algorithms have been developed to estimate amounts of nursing time needed by residents that are based on functional assessment scores and requirements for special care needs, insufficient evidence of the validity and reliability of the algorithms is available. Until standardized resident assessment data become generally available, and some careful empirical studies have been completed, prescribing sophisticated staffing standards in the regulations will not be possible. However, the committee is convinced that minimums for professional supervision of the nurse's aides who provide most of the care are too low, not only in ICFs, but also in SNFs. Most good nursing homes now exceed these minimums, often by a considerable margin. If the case mix in a given nursing home, or a given bed section in a nursing home, is such that more licensed nurses are required to provide proper care to the residents, the
REGULA TORY CRITERIA / 1 0 3 nursing home should be required to provide it. Further, the committee believes that as the case mix moves toward a larger proportion of heavy-care residents, the minimum requirements should be raised to increasingly higher levels. Increasing staffing may cause some problems initially, but the committee believes that the benefits to the residents of increasing the ratio of better-trained staff far outweigh the costs of increased staffing. To this extent, nursing homes should place their highest priority on the recruitment, retention, and support of adequate numbers of professional nurses who are trained in gerontology and geriatrics to ensure an adequate number and appropriate mix of professional and nonprofessional nursing personnel to meet the needs of all types of resid ents in each facility.
