- Report: Transfer and Discharge Deficiencies Cited Since 2017: Surveyors Focus On paperwork, Not Residents’ Rights
- Study Finds Link Between Registered Nurse Hours and Antipsychotic Drug Use
- Webinar: Skilled Nursing Facilities Update
The involuntary transfer and discharge of nursing home residents is the top complaint received by nursing home ombudsman programs nationwide. In December 2017, the Centers for Medicare & Medicaid Services (CMS) announced an initiative “to examine and mitigate facility-initiated discharges that violate federal regulations.” While recognizing the seriousness of involuntary transfer and discharge for residents (and calling some of them “unsafe and/or traumatic for residents and their families”), CMS limits the initiative to reviewing only transfer and discharge deficiencies that are cited following complaint investigations or annual surveys. CMS’s Regional Offices are not reviewing either administrative decisions by hearing officers in residents’ transfer and discharge appeals or complaints made to the ombudsman program.
In August 2018, the Center for Medicare Advocacy reviewed the transfer and discharge deficiencies (F622) that have been cited since the new uniform nursing home survey process went into effect in November 2017. The Center’s study finds that as of July 20, 2018, nationwide, 137 deficiencies for transfer/discharge have been cited nationwide. Only four of these 137 deficiencies were cited as either “harm” or “immediate jeopardy;” the remaining 133 deficiencies were cited as “no-harm” or substantial compliance.
The reason for this coding is that most survey reports cited transfer and discharge solely as a paperwork problem. Surveyors did not typically investigate or document what happened after residents received notices that were in violation of federal requirements. Missing or inadequate paperwork was cited as the sole issue of noncompliance. Surveyors generally did not follow up to determine whether residents were actually discharged without appropriate notice or for inappropriate reasons or without preparation and, if so, what happened to them following discharge. In the few instances when surveyors investigated the circumstances of the discharge, they appeared to treat the discharge far more seriously.
For example, the single immediate jeopardy deficiency was cited at Brookhaven Manor, a Special Focus Facility in Tennessee, following in an annual survey completed March 21, 2018. The deficiency was based on the discharge of a resident to a hotel while his appeal of his discharge for alleged noncompliance with the facility’s smoking policy was pending before a state Administrative Law Judge (ALJ).
On December 21, 2017, a resident was given a Notice of Involuntary Discharge for allegedly violating the facility’s smoking policy. The resident filed an appeal. In a February 2, 2018 conference call, the state ALJ hearing his appeal issued a continuance of the appeal until February 21 so that the resident could get an attorney. When the resident was found smoking on Friday, February 9, the interim administrator (who had begun working at the facility on January 29) asked the resident for his matches or lighter. When the resident refused, he was immediately discharged to a hotel, driven in the facility’s van. The facility paid for three nights at the hotel, which served breakfast, but facility staff did not know if the man had any money to pay for additional meals. The facility also failed to send all of the resident’s prescribed medications with him to the hotel. The former resident told surveyors he had one meal on Friday and, as described in the survey report, “2 boxes of peanut butter crackers and some candy to eat for the following 3 days.” Neither the resident’s physician nor the facility’s Medical Director had been consulted prior to the resident’s discharge.
The state agency cited a total of six immediate jeopardy deficiencies related to the involuntary discharge, including, in addition to F622, deficiencies at F623 (failure to provide timely notification of discharge), F624 (failure to prepare resident for safe discharge), F745 (failure to provide medically-related social services), F835 (administration), F837 (governing body), and F867 (quality assurance and performance improvement). Nursing Home Compare does not report any Civil Money Penalties for these deficiencies and it is unknown whether any penalty for these deficiencies has been imposed and is under appeal.
- The Center’s full report and recommendations are available at: https://www.medicareadvocacy.org/wp-content/uploads/2018/09/Nursing-Homes-Report-Transfer-and-Discharge-Deficiencies.pdf
 CMS, “An Initiative to Address Facility Initiated Discharges that Violate Federal Regulations,” S&C: 18-08-NH (Dec. 22, 2017), https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-18-08.pdf.
 The survey report is available at https://www.medicare.gov/nursinghomecompare/InspectionReportDetail.aspx?ID=445174&SURVEYDATE=03/21/2018&INSPTYPE=STD&profTab=1&state=TN&lat=0&lng=0&name=BROOKHAVEN%2520MANOR&Distn=0.0.
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Human Rights Watch (HRW) published a devastating report in February 2018, which found that over 179,000 nursing home residents were being administered off-label antipsychotic drugs every week. Antipsychotic drugs are indicated to treat specific clinical conditions, such as schizophrenia, and not the behavioral symptoms of dementia. Nevertheless, the HRW report noted that most of the residents on antipsychotic drugs have Alzheimer’s disease or other forms of dementia. According to the Food and Drug Administration’s “black box” warning, the use of antipsychotic drugs on elderly patients is associated with a significantly increased risk of death.
As many reports have indicated, including those written by the Center for Medicare Advocacy, one factor in the inappropriate use of antipsychotic drugs in nursing homes has been inadequate nurse staffing. A recently-published study in the Journal of Psychiatric and Mental Health Nursing (JPMHN), entitled “An observational study of antipsychotic medication use among long-stay nursing home residents without qualifying diagnoses,” has found further correlation between registered nurse hours and antipsychotic drug use.
The authors of the Study found that “[o]ne additional registered nurse hour per resident per day could reduce the odds of antipsychotic use by 52% and 56% for residents with and without a dementia diagnosis respectively.” Looking at nursing facilities in the state of Missouri, the authors found that just meeting the national average for registered nurse hours (.8 hours) would result in a 22% reduction in the odds of inappropriate antipsychotic drug use in residents with dementia; the reduction increases to 25% for residents without dementia.
The federal Nursing Home Reform Law states that every nursing home resident is entitled to services that attain or maintain his or her “highest practicable physical, mental, and psychosocial well-being.” As the JPMHN Study shows, sufficient registered nurse hours are essential to improving residents’ quality of care and quality of life and meeting the requirements of federal law.
NOTE: Nursing home residents have rights and protections under federal law. Nursing homes must not administer an antipsychotic drug unless it is medically necessary to “treat a specific condition as diagnosed and documented in the clinical record.” When residents are already on antipsychotic drugs, nursing homes must undertake gradual dose reductions and behavioral interventions, unless clinically contraindicated, to discontinue the drug.”
- To learn more about the registered nurse hours of a particular nursing home, please see the Long Term Care Community Coalition’s “Nursing Home Staffing 2018 Q1” data, available at https://nursinghome411.org/nursing-home-staffing-2018-q1/.
- To access “An observational study of antipsychotic medication use among long-stay nursing home residents without qualifying diagnoses,” please visit: https://onlinelibrary.wiley.com/doi/abs/10.1111/jpm.12488.
 See Hannah Flamm et al., “They Want Docile”: How Nursing Homes in the United States Overmedicate People with Dementia, Human Rights Watch (Feb. 2018), https://www.hrw.org/report/2018/02/05/they-want-docile/how-nursing-homes-united-states-overmedicate-people-dementia (noting that “[t]he drugs are often given without free and informed consent . . . .”).
 Atypical Antipsychotic Medications: Use in Adults, CMS, https://www.cms.gov/Medicare-Medicaid-Coordination/Fraud-Prevention/Medicaid-Integrity-Education/Pharmacy-Education-Materials/Downloads/atyp-antipsych-adult-factsheet11-14.pdf (last visited 9/19/2018) (“Elderly patients with dementia-related psychosis treated with antipsychotic drugs are at an increased risk of death.”).
 See e.g., Toby Edelman, Elder Abuse in Nursing Facilities: The Over-Administration of Antipsychotic Drugs to Nursing Home Residents, Center for Medicare Advocacy (Jun. 15, 2016), https://www.medicareadvocacy.org/elder-abuse-in-nursing-facilities-the-over-administration-of-antipsychotic-drugs-to-nursing-home-residents/ (“There is a solution to this form of elder abuse! Improve staffing levels in nursing facilities. Long-standing evidence confirms that nursing facilities employ too few nurses to meet residents’ needs.”).
 Lorraine J. Phillips et al., An observational study of antipsychotic medication use among long-stay nursing home residents without qualifying diagnoses, Journal of Psychiatric and Mental Health Nursing (Jun. 17, 2018), https://onlinelibrary.wiley.com/doi/10.1111/jpm.12488 (looking at 2015 long-stay residents in Missouri who lacked a qualifying or potentially qualifying diagnosis for antipsychotic drugs).
 42 C.F.R. § 483.45(e)(1).
 42 C.F.R. § 483.45(e)(2).
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The webinar will provide an overview of Nursing Home Quality of Care & Quality of Life Standards from a consumer perspective.
Presenters: Center for Medicare Advocacy Senior Policy Attorney Toby Edelman and Policy Attorney Dara Valanejad, with special guest attorney Richard J. Mollot, Executive Director of the Long Term Care Community Coalition.
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