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Admin Note: After some further discussion with MSH, I also provided her with the following information. MSH stated under duress she had to sign admission papers saying they would only use particular physicians. I provided this information in hopes that it would be of help to her, and to you if you find yourself in similar circumstances.

I shared certain portions of the federal regulations and the guidance to surveyors with MSH that applied to her situation. The regulation itself is in black, the information in purple is not the regulation, but is guidance CMS uses to interpret the regulation, and my statements are in blue

The resident has a right to a dignified existence, self-determination, and communication with and access to persons and services inside and outside the facility. A facility must protect and promote the rights of each resident, including each of the following rights

 

All residents in long term care facilities have rights guaranteed to them under Federal and State law. Requirements concerning resident rights are specified in §§483.10, 483.12, 483.13, and 483.15. Section 483.10 is intended to lay the foundation for the remaining resident’s rights requirements which cover more specific areas.

These rights include the resident’s right to:
Exercise his or her rights (§483.10(a));
Be informed about what rights and responsibilities he or she has (§483.10(b));
If he or she wishes, have the facility manage his personal funds (§483.10(c));
Choose a physician and treatment and participate in decisions and care planning (§483.10(d));  

 

§483.10(d)(1) Free Choice – The resident has the right to choose a personal attending physician

The right to choose a personal physician does not mean that the physician must or will serve the resident, or that a resident must designate a personal physician. If a physician of the resident’s choosing fails to fulfill a given requirement, such as §483.25(l)(1), Unnecessary drugs; §483.25(l)(2), Antipsychotic drugs; or §483.40, frequency of physician visits, the facility will have the right, after informing the resident, to seek alternate physician participation to assure provision of appropriate and adequate care and treatment. A facility may not place barriers in the way of residents choosing their own physicians. For example, if a resident does not have a physician, or if the resident’s physician becomes unable or unwilling to continue providing care to the resident, the facility must assist the resident in exercising his or her choice in finding another physician.

Before consulting an alternate physician, one mechanism to alleviate a possible problem could involve the facility’s utilization of a peer review process for cases which cannot be satisfactorily resolved by discussion between the medical director and the attending physician. Only after a failed attempt to work with the attending physician or mediate differences in delivery of care should the facility request an alternate physician when requested to do so by the resident or when the physician will not adhere to the regulations.

If it is a condition for admission to a continuing care retirement center (CCR), the requirement for free choice is met if a resident is allowed to choose a personal physician from among those who have practice privileges at the retirement center. (If the facility your loved one is at is not a CCR then this paragraph does not apply – and he/she should not be required to choose from a certain set of physicians)

A resident in a distinct part of a general acute care hospital can choose his/her own physician, unless the hospital requires that physicians with residents in the distinct part have hospital admitting privileges. If this is so, the resident can choose his/her own physician, but cannot have a physician who does not have hospital admitting privileges.

If you feel what they are doing is in violation of this information (they are not allowing the choice of physician), then I suggest you call in a complaint to the department of health for your state, the division that oversees the licensing and certification of nursing homes.

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Admin Note: This is in response to MSH’s question to me about a situation occuring with her loved one in a nursing home.

I so understand your frustration. As many good hearted staff as there are in nursing homes, there are still those who think they know it all in their approach to issues. You know first hand how you have to be totally on top of everything that is going on and be an advocate for your loved one who can’t be her own advocate.

 
You have medical evaluations on your side, so that is a good thing. You will have a struggle if the nursing home is giving out wrong information. Once a resident enters a nursing home – that nursing home is responsible for that resident and it is very hard to “get rid” of them, so to speak. Because of that, nursing homes get “picky” about who they will accept and if they think there is a potential for many problems they can decide not to accept that resident.
 
You want to look for a nursing home that is experienced with working with Alzheimers dementia. that is the first task. When you find one, you will need to approach them with your story.
 
 I would suggest you request all your loved ones medical records from the current nursing home, be sure you have the evaluations that show she is not psychotic. You may need to literally go to the DON and administrator of a facility you want to have her in, and gently explain the situation (but don’t “put down” the current DON, that would be a bad sign to the new facility). Show the records and the evaluations and explain that you are looking for a new home because you are looking for someone who is experienced in working with Alzheimers & their special activity needs.  The new facility will want to know why you are moving her. You will need to give an explanation so you will need to decide how much to share and in what tone. A kinder tone may get you further, meaning you don’t want to complain about the current facility but perhaps explain you find they are not understanding your loved ones needs and that is why you are looking for a facility that does understand her needs.
 
There are some things that will help you, such as do you have power of attorney for healthcare decisions? The facility can’t just put someone on psych medications without a reason and without consent. In addition, you should be talking with your loved ones personal physician (not just the medical director of the facility).  He/She can also tell the new facility that your loved one doesn’t need a locked unit, just a wander guard and activities. In fact, I don’t see in your story anything about if the Medical Director is at all involved. You do want to be sure her personal physician is one who is experienced in Alzheimers dementia.
 
I hope this helps you.

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Admin Note: Names/places have been redacted to protect privacy. MSH has given permission to share this with you. I will post, later, my answer to MSH.
MSH writes:
My loved one is currently 81-years old and has been in ___ of ___ since 2006 with vascular dementia following a lengthy hospital confinement for a stroke and subsequent reaction to medication, pneumonia and coma.
 
I was so pleased with the nursing home environment that we selected for her and watched her improve dramatically, she was up walking the full length of the dining room in short and regained a lot of cognitive ability.  We enjoyed a year of going shopping on the weekends, coming home to spend the nights, even back to climbing stairs.  In my experience we had some ups and downs but nothing that I wasn’t able to resolve until ___ was hired as the DON in 200___.  From there to now, things have gotten progressively worse!
 
This DON doesn’t work with the family members.  She dictates what will be done or not done and basically gives the family no voice in decisions.  At one point she announced that she was sending my loved on out to a psych unit in a city 50+ miles from my home.  She had decided that my loved one was now psychotic.
 
When I protested … that just wasn’t acceptable.  I won that battle with her being sent out for a full-days evaluation and ____ telling me what the MD at the hospital said would be accepted.  The MD at the hospital agreed with me that there was no evidence of Psychosis.  Two days later the DON contacted the Medical Director and had Risperdal prescribed. 
 
Fortunately the floor nurse contacted me and I was able to tell her about the reaction to the Ativan back in 2006 when she first had the stroke and that according to the FDA, Risperdal is not approved in the treatment of dementia.  There was a 3-way conversation with the floor nurse talking to me on one phone while she talked to the DON on another phone.  The end result was the DON stating that she was through talking with me and she was going to do what needed to be done.
 
I complained very loudly all the way up to the CEO of the parent company.  I also immediately began looking for a new facility for my loved one.  In the interim I learned that an in-house psych evaluation had been scheduled which I attended.  During the course of that evaluation, the facilities psychiatrist told me there was no evidence of psychosis and that they needed to provide some busy activity for her.  She has dementia and dementia is a busy disease.
 
Today I learned from two facilities that the reason the potential facilities are turning her down is that the nursing staff at ___ is telling the admissions people that she requires a locked unit.  She is currently not in a locked unit, but on Alert Guard … and I’m at a loss.
 
Do you have suggestions how I can overcome this obstacle and find placement in a facility where ___ is not employed?
 
Thank  you!
SH

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Kathy left a comment with some questions that I am going to address in my post today, instead of in the comments. She has some valid questions, and I hope this will help Kathy, as well as anyone else with the same concern, understand why a nursing home and hospital surveyor asks the questions they do and what any facility, whether nursing home or hospital, can do to help reduce restraints. You can see Kathy’s comment at the post titled “Surveying Restraint Regulations in Hospitals or Nursing Homes – Part I“.

Hi Kathy,

CMS doesn’t look for a “diagnosis”, but for the MEDICAL reasons for a restraint. The interpretive guidelines at the restraint regulations in Appendix PP of the SOM (State Operations Manual) gives a lot of guidance and additional thoughts on what you might consider. Every nursing home should have a copy of the SOM. In addition, activities will be a huge help for you. When a person is participating in activities, that keeps them busy, but, of course, activities that that person would be interested in. That is where your investigative and creative skills come in with each resident. What interests him or her?

Also ask, WHY is the resident getting up? What does he or she want to do? What is the pattern? Is it all the time or at specific times? Does he or she need to use the bathroom, or perhaps the resident is hungry, or bored. Is the chair comfortable or is the resident so uncomfortable he or she has to get up (we all know how uncomfortable some chairs can be). What did the person do as a career? Is that why he or she is getting up. Is he or she looking for something specific to do? Maybe the resident worked the night shift and is used to staying up all night and sleeping in the afternoon. These are just a few of the questions you can consider to help you figure out how to keep the resident safe while at the same time keeping the resident as free from restraints as possible. Perhaps your resident just needs someone with him or her all the time to interact, provide companionship, and stimulating conversation (whether or not the resident can respond).

I would also suggest you network with other nursing homes (I’m assuming you are working in a nursing home) and gather ideas and information about what works for them, how their activities departments help and how they keep residents with dementia safe while allowing them to walk. A resident who walks is going to be maintaining stronger muscles and better walking ability than one who is forced to sit in a chair all day.

There is no pat answer to the regulations and how to stay in compliance. Each situation requires its own determination of what will work. That is one of the great challenges and opportunities that nursing home staff have. This is also one area that nursing home and hospital surveyors will continue to review and question.

JL

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