This week, I completed my study of the 605 page advanced copy of the Consensus Study Report of The National Academies of Sciences Engineering Medicine (NASEM) - The National Imperative to Improve Nursing Home Quality: Honoring Our Commitment to Residents, Families, and Staff. For those unfamiliar with NASEM, they were independently established between 1863 and 1970 and work together to provide independent, objective analysis and advice to the nation and conduct other activities to solve complex problems and inform public policy decisions. The National Academies also encourage education and research, recognize outstanding contributions to knowledge, and increase public understanding in matters of science, engineering, and medicine. www.nationalacademies.org. The Committee on the Quality of Care in Nursing Homes began their work in the fall of 2020 at a pivotal time when the focus was on nursing homes because of the COVID-19 pandemic. The committee reflected on the 1986 Institute of Medicine report Improving the Quality of Care in Nursing Homes, which has been a cornerstone for Adelman Law Firm’s litigation and risk mitigation strategies and dozens of education initiatives used in collaboration with our nursing home clients and industry wide.
I will be sharing information about the NASEM comprehensive report in the coming months here in this article and in a series of education offerings. For purposes of this edition of Adelman Advantage, I’m focusing on Goal #1: DELIVER COMPREHENSIVE, PERSON-CENTERED, EQUITABLE CARE THAT ENSURES THE HEALTH, QUALITY OF LIFE, AND SAFETY OF NURSING HOME RESIDENTS; PROMOTES RESIDENT AUTONOMY; AND MANAGES RISKS.
Adelman Advantage Comment: The gaps and shortcomings that the report points to in the quality of services in areas ranging from the development of a comprehensive care plan for each resident to behavioral health, psychosocial care, oral health, and end-of-life care are the claims/litigation drivers and intersect with the endless narratives of Plaintiff’s attorneys about substandard nursing home care.
As to Goal #1, the report discusses several key areas and includes recommendations.
Care Planning
The resident care planning process has a central role in the full realization of person-centered, comprehensive, high-quality, and equitable care in the nursing home setting. This process encompasses four critical components: (1) creating the care plan, (2) reviewing it, (3) implementing it and evaluating its effectiveness, and (4) regularly revisiting it. Ideally, all components of the process are implemented, and should be a reality for all nursing homes. As a foundation to operationalizing person-centered care, NASEM’s recommendation calls for immediate and consistent compliance with existing regulations, including the following:
• Identification of care preferences of residents and their chosen families using structured, shared decision-making approaches
• Documentation, review, and evaluation of the resident’s care plan and its implementation
Adelman Advantage Comments: Plaintiff’s attorneys use the care plan as the road map for care deficiencies. Allegations that the initial care plan, updates and implementation of the care plans and interventions fail to comply with the standard of care and federal regulations are included by Plaintiffs in the Complaint filed against the facility.
Models of Care
Per the report, nursing homes provide an array of services to both short-stay (post-acute) and long-stay residents of all ages with a wide range of health conditions. Research on best practices related to clinical, behavioral, and psychosocial care delivery in nursing homes needs to be more prolific. Moreover, nursing homes are often not well integrated into the communities in which they are located nor with the broader health care system. Finally, little is known about how specific factors (e.g., staffing, environment, financing, technology, leadership) affect innovative models of care or how to ensure the sustainability of these approaches. To address these gaps, NASEM proposes a series of actions including:
• Translational research and demonstration projects for the most effective care delivery models in nursing home settings
• Prioritization of models that reduce disparities and strengthen connections to the community and broader health care systems
• Evaluation of innovations in all aspects of care
Adelman Advantage Comments: In nursing home lawsuits, we regularly defend claims that the facility was aware of the complex co-morbid conditions of the resident and failed to provide “clinical, behavioral, and psychosocial” care to meet the residents’ needs. Included in all lawsuits are theories of understaffing, finance focus by the facility (profits over people/heads in beds) as well as poor leadership. Thus, the report provides support for these theories without addressing many of the underlying historic and present constraints that the nursing home industry is facing along with the many challenges.
Emergency Preparedness and Response
The report states that prior to the COVID-19 pandemic, there were numerous examples of nursing homes being unprepared to respond to emergencies and natural disasters. For example, in 2016, the top deficiency cited in nursing homes was infection control (45.4 percent of citations). The COVID-19 pandemic provided evidence of the impact of this lack of planning and preparedness. To be better positioned to respond to emergencies of all types, nursing homes need to be included as integral partners in emergency management planning, preparedness, and response on the national, state, and local levels. Moreover, as demonstrated by the prohibition against friends and family members visiting during the COVID-19 pandemic and the resultant harm of loneliness and social isolation, it is imperative to strike a careful balance between residents’ safety and their behavioral and psychosocial health needs. To safeguard nursing home residents and staff against a broad range of potential public health emergencies and natural disasters, NASEM recommends the following:
• Reinforcement and clarification of the emergency support functions of the National Response Framework
• Formal relationships between nursing homes and local, county, and state-level public health and emergency management departments
• The representation of nursing homes in emergency and disaster planning and management sessions and drills
• Ready access to personal protective equipment (PPE)
• Enforcement of existing regulations
• Inclusion of measures related to emergency planning in Care Compare
Adelman Advantage Comments: Two years after the pandemic and spurred by the repeal of liability protections and statutory limitations periods expiring, we are defending more lawsuits accusing nursing homes of failing to properly plan for and protect residents from infection. Recall Life Care Center – Kirkland, and the 2020 survey focused on LCCK’s infection control practices, especially since LCCK reported an unusual outbreak of a respiratory illness the week before the survey began. CMS imposed a civil money penalty (CMP) of $611,325 and also imposed a Denial of Payment for New Admissions (DPNA). Separately, Washington State imposed a “Stop Admissions” order and also imposed “conditions” on LCCK’s license. On appeal, the Administrative Law Judge determined, after a full evidentiary hearing, that the State had abused its discretion in imposing the “Stop Admissions” order. That favorable decision for LCCK was upheld on further appeal. The ALJ noted that there was nothing more that LCCK could have done to prevent infections. As we continue to defend the claims (despite positive administrative and court rulings favorable to nursing homes), a reminder that to ensure implementation of COVID-19 protocol, the facility should continue to have structure in place that supports emergency response, infection prevention, healthcare personnel (HCP) training, and key internal stakeholder roles. DOCUMENT. DOCUMENT. DOCUMENT.
Takeaways For Now – While mentioned only in the Goal #1 description, the NASEM goal demonstrates the need for an impact of comprehensive risk management and process improvement. Proactivity continues to be key to risk mitigation and quality and process improvement. Stay tuned for initiatives that address the issues identified in the NASEM report and provide innovative solutions to the claims and litigation risks we encounter.
Please reach out for further discussion and any information regarding the NASEM Report, in-service and risk mitigation for your communities.
