A patient in a North Carolina nursing home was allowed to fall by a nurse aide. The aide and her friends/coworkers covered it up and for two weeks the patient was untreated for a hip fracture. She was eventually taken to a hospital and there it was found she had a broken hip. Shocked by the news, the family eventually was able to find out what happened. The resident’s family learned what happened only by reviewing follow-up reports from state inspectors.

As we know, rules and regulations get through “channels” and many times they do so without anyone noticing. That has happened again. A recent change in federal rules on nursing home inspections makes it nearly impossible for families to get the information they need to protect their loved ones.

According to the associated press, the changes were put into effect in October 2008 with little notice and without a public comment period. The change is getting sharp criticism for closing off critically important information. Under the new rules, the state inspector follow-up reports can’t be released without specific approval from the chief of CMS.

“It’s an extremely troubling development – it puts a lot of information related to nursing-home inspections off-limits,” said Eric Carlson, director of the Long-Term Care Project of the National Senior Citizens Law Center, a California-based nonprofit group funded in part by the federal Administration on Aging. “I think it’s certainly bad for consumers and the folks who represent them.”

The change bars nursing home surveyors from releasing privileged information to the public without approval from the Director of the Centers for Medicare and Medicaid Services. State employees (the nursing home and hospital surveyors) who perform inspections for the federal government have been reclassified as federal employees as part of the revision. This reclassification is only for this purpose, and not for wages/benefits or other purposes. The surveyors are still state employees. They contract to the Federal government to perform the surey and certification work and as such are required to follow federal standards and procedures, and in this case, are required to follow the federal procedures for the release or non-release of privileged resident/patient information.

Officials at the Department of Health and Human Services said employees have been too burdened by requests for information. Under the rule change, state employees who inspect nursing homes for the federal government are reclassified as federal employees who aren’t allowed to provide “privileged” information or documents to the public without approval from the head of the Centers for Medicare and Medicaid Services.

Requests were diverting employees from certification responsibilities, Michael Leavitt, secretary of the Department of Health and Human Services, said in announcing the change.

Lawyers are now finding out that the new rule has already slowed efforts to represent their clients. It is slowing down the process to get the information they need.

How does this affect you, the consumer? – You can see, it is putting a wall in your path to ensuring your loved ones are getting safe care.

What about those of you who are administrators and staff of nursing homes – now is it affecting you? You might think at first, that it is a good thing, but really, getting information out to the public about both GOOD and BAD state inspections is beneficial to the facility and to those who are wanting to look at where to place their loved ones.  I would think even those who administer nursing homes find the change in rules, without a public comment period, to be a poor decision.

Then look at who has to give the permission – the head of CMS – the head of a federal agency is going to review and provide permission for the hundreds of requests in every state? That sounds like an impossible task, the permission is either going to be given or withheld willy-nilly. What determines who gets permission to see the documents and who doesn’t? Will there be criteria? Who is developing that criteria? What patient rights are being stepped on here?



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In the previous article I listed for you the actual regulations that surveyors use regarding restraints in Hospitals and Nursing Homes. Lets look at what these regulations mean, i.e. – the guidance the Nursing Home and Hospital Surveyors use when doing a survey in a nursing home or hospital.

As you may realize as you read the regulations, the ones for the hospital cover the use of restraints in medical and post-surgical care and the emergency use of restraints in behavior management. The requirements are to be applied to a situation, not a treatment setting. In other words, you as a consumer who wants to learn about this, and surveyors who are surveying this issue should not look at the fact that the person is in a hospital. Instead you and/or the surveyor (and also the hospital staff) should look at the specific situation that is happening to determine if a patient really needs a restraint. Restraints aren’t the answers to every situation and, in fact, they can exacerbate issues instead of solve problems. Restraint use decisions are correctly done by doing a comprehensive physical & individual assessment.

This assessment should address at least the following questions: Are there safety interventions or precautions that can be taken to reduce the risk of the patient slipping, tripping, or falling if the patient gets out of bed? Is there a way to enable the patient to safely ambulate? Is there some assistive device that will improve his or her ability to self ambulate? Is a medication or a reversible condition causing this unsteady gait? Would the patient be content to walk with a staff person? Could the patient be brought closer to the nurse’s station where he or she could be supervised?

In order to properly use a restraint, the results of the assessment would need to conclude that for this patient at this time, the use of less intrusive measures poses a greater risk than the risk of using a restraint or seclusion. Doing this assessment would identify any medical problems that can cause behavioral changes in a patient. Restraints are not used for “diagnoses”. Instead, addressing medical issues can sometimes eliminate or minimize the need for the use of restraints.

If the assessment reveals there is a real medical symptom or condition that indicates a need for a restraint to protect the patient from harm, the regulation at 482.13(e)(3) requires that the hospital first determine that less restrictive interventions are ineffective. Only after making this determination, can the hospital consider the use of a restraint. However, that consideration should weigh the risks of using a restraint against the risks presented by the patient’s behavior. There is a great deal research that shows that restraints actually can increase risks rather than abate risks.

But, you say, the patient might fall and hurt him or herself – therefore he or she needs that restraint for his/her own safety. Or maybe you are thinking: But so and so gets up at night and wanders in the hall or walks to the bathroom. There is nothing inherently dangerous about a patient in a hospital being able to walk or wander, even at night. CMS and accepted restraint guidelines explain that for the purposes of the CMS regulations the rationale that the patient should be restrained because he/she “might” fall is an inadequate basis for using a restraint.

Instead, the hospital must ensure that when assessing and care planning for the patient the staff should consider whether the patient has a medical condition or symptom that truly indicates there is a current need for a protective intervention (i.e. a restraint) to prevent the patient from walking or getting out of bed. Even a history of falling is inadequate to demonstrate the need for restraint when there is no current clinical basis for a restraint. It is important to note that regulations specifically state that convenience is not an acceptable reason to restrain a patient. A restraint must not serve as a substitute for adequate staffing to monitor patients. A hospital surveyor will also look to see that restraints must never act as a barrier to the provision of safe and appropriate care, treatments, and other interventions to meet the needs of the hospital patient.

As we have been showing you, patients have the right to be free from a restraint or seclusion that is not medically necessary. Hospitals must ensure that this right is implemented. The hospital must take actions to comply with the requirements and must monitor its compliance through Quality Assurance and Performance Improvement activities. Hospital leadership should be assessing and monitoring the use of restraint/seclusion, and they should be implementing actions to ensure that only medically necessary restraints are used. When restraints are used the hospital must ensure it complies with the regulations/requirements and that the restraints are removed as soon as possible.

Be safe and be informed!


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