At Accora, we’re always trying to give those in senior care communities a helping hand, including the clinical staff and management as well as the residents. With that in mind, we asked our compliance expert, Rebecca DeRousse about her insight into what the phase three guidance to surveyors means for care communities, so you don’t have to guess when your survey window comes around, you’ll know that you’re not in for any costly surprises.
Phase 3 was supposed to have come into effect in November 2019 but due to the covid-19 pandemic, enforcement of this guidance was delayed until October 2022. According to Rebecca, “We’ve had these regulations for three years now. We’ve known what the regulations are, but we didn’t know what the guidance to surveyors was going to be.” Now we do, and it’s time to act upon them or risk accusations of non-compliance.
You might be wondering what is now understood as resident rights in care communities under phase three guidance and what surveyors might be looking for in terms of non-compliance. Well, here’s your crash course in identifying, reporting, and preventing abuse through understanding what your residents are entitled to under the care of your facility.
We know that residents have the right to be free from abuse, but what does that mean in practical terms? What constitutes abuse and how should it be reported?
“Residents have the right to be free from mental, verbal, physical, sexual abuse, deprivation of goods or services (which we know is neglect), misappropriation of property, and exploitation.” - Rebecca DeRousse
One of the biggest changes in the guidance is the emphasis on correct reporting around abuse and ensuring reactive amendments to that person’s care plan in light of suffering abuse. It’s also vital to be able to demonstrate how your team took preventative steps to guard against the continuation of abuse. This also touches upon trauma-informed care and as such, you must ensure you have adequate written policies and procedures to report alleged abuse and reporting must now be carried out within specific time frames. Suspicions and allegations of abuse should be reported to your state agency but also one (or more) law enforcement entity.
Section F557 in the guidance to surveyors indicates that it’s acceptable for care staff to confiscate risks if they are in “plain view” but that searching property or carrying out a bodily search without explicit consent of the resident or their representative is a violation of their rights.You cannot act as an arm of law enforcement, and this is especially applicable if you have a suspicion of a resident carrying or using illegal substances. You can ask a resident if they have used illegal substances, but you are not entitled to search them, or their possessions based on suspicion.
To protect the rights of both residents and staff who report abuse, there is now a procedure to follow that guards against retaliation. Every facility must educate staff and family members of residents about how they can report a complaint of retaliation to their state survey body. Each facility must also display adequate signage detailing how they can report retaliation.This is to prevent staff or residents from being fearful of reporting abuse in case the way they are treated changes in light of these disclosures.
“Unfortunately so many elders feel like if they tell something, there’s going to be retaliation against them and they’re not going to receive the care that they have a right to receive.” - Rebecca DeRousse
It's also vital that this reporting process is tracked through your QAPI committee so that trends can be easily identified, and corrective actions implemented accordingly.
Residents have the right to remain in the facility once admitted unless the choice to discharge or transfer that patient meets one of the specified exceptions. These exceptions are:
· If the resident requires a different level of care to that which can be accommodated by your facility, or their health has improved enough to de-escalate their care level
· If the resident does not keep up to date with payments
· If the facility ceases to operate
· Or if the resident’s presence could endanger themselves or others in the facility
Once admitted a resident has the right to remain unless one or more of these special criteria is met. Therefore, it’s vital that all admission decisions are considered thoroughly.
Rebecca advises that the key to compliance in this area is proper documentation so that you can demonstrate the reasons behind transfer or discharge decisions by your facility and prove that the criteria were met in each instance. You also need to be aware that residents have the right to return after emergency transfers to acute care unless doing so would endanger the health and/or safety of the resident or others.
Some of the key takeaways from our recent readiness for phase 3 enforcement webinar were the definition and reporting of abuse and the tightened rights of residents to remain in and return to care facilities unless specific criteria are met. Some other key areas of note were culturally competent care, trauma-informed care, and staffing requirements. In terms of survey preparation, it is more important than ever to ensure your clinical and care team is fully aware of the guidance and trained on the correct protocols for implementing them. Following this guidance doesn’t just keep you on the right side of your state agency and prevent hefty fines from eating into your margins, but it also allows you to deliver excellence in senior care, and after all, that is the end goal.
For a more in-depth analysis of these areas of the phase three guidance to surveyors and enforcement, you can watch our readiness for phase three enforcement webinar with Rebecca DeRousse on-demand on the Accora website.
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Rebecca D. DeRousse, MBA, MHA, CNHA, has vast experience in the senior living industry. She has been an active licensed nursing home administrator for almost four decades and is therefore well-versed in regulatory compliance. Over half of her experience has been spent in CCRCs,where she has also served as administrator of the assisted living and memory care units in addition to the nursing home. She has spent much of her time leading accreditation efforts with The Joint Commission and CARF and has been instrumental in developing new programs and services, including the opening of two new skilled nursing facilities within hospitals. Now Rebecca is the owner of DeRousse Healthcare Consulting, LLC, and aids nursing facilities in implementing best-practice, compliant procedures.
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