In May 2016, the U.S. Department of Health and Human Services ("HHS"), Office for Civil Rights ("OCR"), issued new guidance to long term care facilities to help them comply with their Civil Rights obligations, which can be found at http://www.hhs.gov/sites/default/files/mds-guidance-2016.pdf. This guidance applies to any long term care facility that receives any Medicare or Medicaid funds. The guidance specifically focuses on how to administer the Minimum Data Set ("MDS") standardized assessment tool that facilities are required to use under Centers for Medicare and Medicaid Services ("CMS") regulations. This guidance was issued after sampling data from a large number of facilities revealed that many long term care facilities improperly administer the MDS or misunderstand its requirements in connection with civil rights obligations to assess residents for their ability to live in a more integrated community setting.
This is a potential issue for facilities because improperly administering the MDS places a facility's Medicaid and Medicare reimbursements in jeopardy.1 The specific problem the OCR found with the MDS's administration was that facilities are not referring residents who are interested in living in the community to appropriate federal sources. Since unnecessarily segregating residents can constitute discrimination under the American with Disabilities Act and Section 504 of the Rehabilitation Act, a facility's federal funding may be affected if the OCR's guidance is not followed.
Here are some suggested practices for long term care facilities to ensure compliance with Section 504 and seek to avoid discrimination related allegations in survey findings.
- Know and have a good working relationship with your local contact and social services agencies.
A local contact agency is a local community organization responsible for providing counseling to nursing facility residents on community support options. More information for the contact agency in your area can be found at http://www.medicaid.gov/medicaid-chip-program-information/by-topics/long-term-services-and-supports/community-living/downloads/state-by-state-poc-list.pdf
- Whenever a resident or prospective resident wants more information about community or alternative living, the facility must make a referral to the appropriate local agency or other community agencies.
Such agencies can include the department of social services for the county in which the resident resides or wishes to reside, non-profit organizations that provide referral or resource information to seniors, adult day care programs, and home health and home care agencies. The facility should develop a list of appropriate agencies, organizations, and sources of referral information and a process to document that the list and information were provided to residents and their responsible party or family. The facility should also maintain and document any referral communications and follow up if no response is received.
- Consideration of whether and how the resident could transition into the community should be incorporated into the resident's discharge and active care plans.
Even if the resident does not appear to be a likely candidate or does not desire to transition into more of a community setting, the facility should be sure to raise this question and re-evaluate the resident's desire and ability to transition in connection with each care plan rather than assume that the resident is not capable or not interested.
- Do not presume that any prospective resident who requests and qualifies for admission to your facility should be admitted.
Always provide information about less restrictive alternatives available in the community such as living at home with home health or home care or some level of assisted housing arrangement. Information regarding competing skilled nursing facilities need not be provided unless they may provide a less restrictive program than offered by your facility. For example, if your facility offers a locked dementia unit and other facilities offer a dementia program that is not locked, inform the prospective resident about that option.
- Be aware of how to properly administer the MDS.
The OCR has identified significant issues with the way facilities administer the MDS's Section Q. The OCR believes Questions Q0400, Q0500, and Q0600 are troublesome at times and can potentially prevent residents from returning to a more integrated setting. Do not assume a resident cannot be placed in or is not interested in a less restrictive setting. Always ask the resident if he or she is interested in any other options.
- Have an active discharge plan.
The OCR found that many facilities do not understand Question Q0400 which asks, "Is active discharge planning already occurring for the resident to return to the community?"2 This does not mean that facilities get to avoid asking follow-up questions as long as there is a discharge plan for the resident in place. The plan has to be active. An active plan is one where there are goals for discharge, steps are being actively taken to achieve discharge, and there is a nearby discharge target date. Without an active discharge plan, residents need to be asked if they want to talk about community living and be referred to local agencies if they do. Ultimately, Q0400 should probably be answered as "no" unless there has been a local agency referral or the local agency has met with the resident.
- Talk to the resident about alternative living situations.
If there is no active discharge plan, residents have to be asked Q0500 which asks, "Do you want to talk to someone about the possibility of leaving this facility and returning to live and receive services in the community?"3 The confusion about this question is due to the fact that all residents have discharge plans, so facilities do not think they need to ask Q0500. But again, only active discharge plans exempt Q0500 from being asked. If the answer is "yes" to Q0500 then the facility is required to refer the resident to local agencies. Furthermore, when asking the question the facility needs to encourage the resident to learn about alternatives.
- Has there been a referral?
Q0600 asks whether a resident has been referred to local agencies.4 Residents do not have to expressly answer "yes" to Q0500 for Q0600 to come into play. The resident needs only to express an interest in learning about living outside the facility for the facility to be required to make a referral to local agencies. As best practice, this referral should come within 10 days. The only reason not to make a referral to local agencies when requested is because the resident has an active discharge plan.
- On a regular basis, facilities should allow local agencies to present information to residents about its services and opportunities and maintain documentation that this has occurred.
- Keep your policies and procedures up to date.
The OCR has three areas of focus for revising policies and procedures: (1) discharge planning; (2) MDS administration; and (3) local agency referral process.
- Provide appropriate training.
The OCR wants facilities to train staff on how to properly take and use the MDS assessments, specifically Section Q. The OCR recommends that facilities train their staff and employees on the following:
- The local agencies serving the facility's area;
- Services provided and roles played by the local agencies;
- How and when to contact local agencies;
- How to effectively work with local agencies; and
- Home- and community-based services provided by state agencies.
Surveyors will consider facilities duly informed and warned now that the OCR has issued this guidance. Do not get caught unprepared and risk survey violations or civil rights citations related to these requirements.
If you have questions or concerns, contact Ellis Martin or Maureen Demarest Murray.
1 42 CFR 483.1(b); 42 C.F.R. 483.20(b)(1)(xvi); and 42 C.F.R. 483.20(g).
2 Resident Assessment Instrument (RAI) Manual at Q-14.
3 RAI Manual at Q-10.
4 RAI Manual at Q-20.