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[Pages:26]Chapter 5

Regulations And Guidelines For Special Care Units

Contents

Page INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 THE EXISTING REGULATORY STRUCTURE FOR NURSING HOMES . . . . . . . . . 134

Federal Regulations for Medicare and Medicaid Certification of Nursing Homes . . . 134 State Licensing Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138 State Certificate of Need Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138 Other State and Local Government Regulations That Apply to Nursing Homes . . . . . 138 Survey and Certification Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139 State Long-Term Care Ombudsman Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139 S ummary and Implications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140 STATE REGULATIONS AND OTHER STATE POLICIES FOR SPECIAL CARE UNITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140 Six States' Regulations for Special Care Units . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141 States That Are Developing or Considering Developing Regulations for

Special Care Units . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . 146 States That Have Developed or Are Developing Guidelines for Special Care

Units or for the Care of People With Dementia in All Nursing Homes . . . . . . . . . . . 147 States That Have Certificate of Need Exceptions for Special Care Units . . . . . . . . . . . 148 Other State Policies for Special Care Units . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 s ummary and Implications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 SPECIAL CARE UNIT GUIDELINES DEVELOPED BY OTHER PUBLIC AND PRIVATE ORGANIZATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151 The American Association of Homes for the Aging-' `Best Practices for Special

Care Programs for Persons With Alzheimer's Disease or a Related Disorder" . . . 151 The Massachusetts Alzheimer's Disease Research Center--' Blueprint for a

Specialized Alzheimer's Disease Nursing Home" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152 The Alzheimer's Disease Education and Referral Center--' `Standards for

Care for Dementia Patients in Special Care Units" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152 The University of South Florida's Suncoast Gerontology Center--"Draft Guidelines

for Dementia Specific Care Units (DSCUs) for Memory Impaired Older Adults" . 152 The University of Wisconsin-Milwaukee's Center for Architecture and Urban

Planning Research-' Environments for People With Dementia: Design Guide" . 153 The Alzheimer's Association Legislative Principles and Guidelines for

Special Care Units . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 The Alzheimer's Society of Canada-Forthcoming Guidelines . . . . . . . . . . . . . . . . . . . . 153 The Alzheimer's Coalition of Connecticut-Forthcoming Guidelines . . . . . . . . . . . . . . 153 U.S. Department of Veterans Affairs-Forthcoming Guidelines . . . . . . . . . . . . . . . . . . . 154 Multi-Facility Nursing Home Corporations-Special Care Unit Guidelines . . . . . . . . 154 The Joint Commission on Accreditation of Healthcare Organizations-Draft

Surveyor Guidelines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154 Summary and Implications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155

Figure

Figure

Page

5-1. Minimum Data Set for Nursing Home Resident Assessment and

Care Screening (MDS) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137

Chapter 5

Regulations And Guidelines For Special Care Units

INTRODUCTION

In response to concerns about the diversity of existing special care units, the lack of standards to assist families, nursing home surveyors, and others in evaluating the units, and widespread allegations that some special care units provide nothing special for their residents, six States have developed regulations for special care units, and other States are in the process of doing so. The Alzheimer's Association has developed legislative principles for special care units to assist States in formulating regulations. In addition, the Alzheimer's Association and many other public and private organizations have developed or are in the process of developing guidelines for special care units.

These regulations and guidelines are or would be superimposed on the existing regulatory structure for nursing homes--a complex, multi-layered structure that includes six major components:

q Federal regulations for Medicare and Medicaid certification of nursing homes,

q State licensing regulations for nursing homes,

q State certificate of need regulations for nursing homes,

q other State and local government regulations that apply to nursing homes,

q the survey and certification procedures associated with each of these types of regulations, and

q the oversight and advocacy procedures of each State's Long-Term Care Ombudsman Program.

In addition to these six components, Federal, State, and local government regulations for nursing homes incorporate standards established by private organizations, such as the National Fire Protection Association's Life Safety Codes. Because these standards are incorporated into government regulations, they become part of the regulatory structure. Lastly, about 5 percent of nursing homes in the United States choose to be accredited by a private organization, the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) (214). These nursing homes are surveyed by JCAHO and must meet JCAHO standards, as well as Federal, State, and local government requirements.

The regulatory structure for nursing homes is currently undergoing massive changes due to the implementation of the nursing home reform provisions of the 1987 Omnibus Budget Reconciliation Act (OBRA-87). The provisions of OBRA-87 pertain to the Federal regulations for Medicare and Medicaid certification of nursing homes and the survey and certification procedures associated with those regulations, but the changes mandated by OBRA-87 are so extensive they affect other components of the regulatory structure as well.

This chapter describes the existing regulatory structure for nursing homes, including the changes mandated by OBRA-87. It discusses State regulations and other State policies for special care units. It also describes the guidelines for special care units that have been developed or are being developed by various public and private organizations.

The policy question addressed by the chapter is whether there should be special regulations for special care units. On the one hand, the rapid proliferation of special care units, the lack of standards to help families, nursing home surveyors, and others evaluate the units, and the pervasive allegations that some special care units provide nothing special for their residents argue for the development of regulations. On the other hand, the current lack of agreement about the particular features that are necessary in a special care unit and the lack of research-based evidence of the effectiveness of any particular features make it difficult to determin e what the regulations should say beyond general statements about goals and principles and a listing of the issues that require special consideration in the care of nursing home residents with dementia (e.g., physical design, staff training, security, activity programs, family involvement, and resident rights).

As this chapter points out, many of the Federal Medicare and Medicaid regulations mandated by OBRA-87 are directly relevant to the complaints and concerns expressed by families and others about the care provided by most nursing homes for individuals with dementia. The OBRA regulations rarely mention cognitive impairment or dementia, but the resident assessment system developed to implement

?133?

134 . Special Care Units for People With Alzheimer's and Other Dementias

OBRA-87 focuses on the assessment of a resident's cognitive status and the identification of problems and care needs that are common among nursing home residents with dementia. OBRA regulations require that residents' needs be assessed, using this or a similar assessment system, and that once their needs are identified, appropriate services be provided to meet those needs.

The regulations for special care units now in effect in six States were not developed in the context of the new OBRA regulations. The six States' regulations address some common areas, but their requirements in each of these areas vary, and each State's regulations include requirements for features not included in the other States' special regulations. Moreover, some of the requirements are very specific. The inclusion of requirements for particular features in special care unit regulations implies that these features are important in the care of nursing home residents with dementia; that other features which are not required by the regulations are not important in the care of these residents; and that the limited resources of nursing homes should be expended for the required features rather than other features. As yet, however, there is no consensus about the particular features that are necessary in a special care unit and no evidence from research to support requirements for any particular features.

OTA concludes from the analysis in this and the preceding chapters that from a Federal perspective, the objective of improving nursing home care for individuals with dementia will be better served at present by initiatives to develop greater knowledge and agreement about the particular features that are important in the care of nursing home residents with dementia, to determine how those features fit into the regulatory framework created by OBRA-87, and to support and monitor the implementation of OBRA-87 than by the establishment of new Federal regulations for special care units. Many of the same considerations that lead to this conclusion would seem to apply equally to the development of State regulations for special care units.

THE EXISTING REGULATORY STRUCTURE FOR NURSING HOMES

Nursing homes are said to be among the most highly regulated entities in this country (201). Federal State, and local government regulations apply to virtually all facets of nursing homes'

physical design and operation. Nursing homes are inspected at least annually by surveyors or teams of surveyors who evaluate the facilities' compliance with one or more of these types of regulations. Staff members or volunteers representing the State's Long-Term Care Ombudsman Program also visit nursing homes to investigate and resolve complaints about resident care. This section describes each of the components of the regulatory structure.

Federal Regulations for Medicare and Medicaid Certification of Nursing Homes

The legislation that created the Medicare and

Medicaid programs gave the Federal Government the authority to establish requirements for nursing homes that choose to participate in the programs. Nursing homes must be certified as meeting these requirements in order to receive Medicare or Medicaid payment for any of their residents. As of 1985, 75 percent of the nursing homes in this country were certified for Medicare, Medicaid, or both, and these facilities accounted for 89 percent of all nursing home beds (467).

The requirements for Medicare and Medicaid certification of nursing homes have been changed several times in the past two decades, most recently as a result of OBRA-87 and amendments to OBRA87 enacted since 1987. Prior to the implementation of OBRA-87, there were separate certification requirements for skilled nursing facilities (SNFs) participating in the Medicare and Medicaid programs and intermediate care facilities (ICFs) participating in the Medicaid program. Effective in 1990, OBRA-87 eliminated the distinction between SNFs and ICFs for Medicaid purposes. A single set of requirements for Medicaid certification of nursing facilities (NFs) is now in effect. Separate but very similar requirements for Medicare certification of SNFs are also in effect (456,225).

The current requirements for Medicare and Medicaid certification of nursing homes were first published by the Health Care Financing Administration (HCFA) in February 1989 (462). The final version of these requirements was published by HCFA in September 1991 (463). The requirements address residents' rights, residents' quality of life, resident assessment, care planning, staff credentials, staff training, use of physical restraints, use of psychotropic and other medications, quality of care, nursing, physician, dietary, social work, dental, and

Chapter 5--Regulatiom And Guidelines For Special Care Units q 135

rehabilitative services, activities, handling of residents' funds, record-keeping, physical plant, preadmission screening, and other areas.

Many of the requirements are directly relevant to the complaints and concerns of families and others about the care provided by most nursing homes for individuals with dementia. (See table 1-1 inch. 1 for a list of these complaints and concerns.) The most relevant of the requirements are quoted here from the September 1991 version of the "Requirements for Long-Term Care Facilities" (463).

q "The facility must care for its residents in a manner and in an environment that promotes maintenance or enhancement of each residents quality of life."

q ``The facility must promote care for residents in a manner and in an environment that maintains or enhances each resident's dignity and respect in full recognition of his or her individuality. '

q "The facility must conduct initially and periodically a comprehensive, accurate, standardized, reproducible assessment of each resident's functional capacity.'

q "The facility must develop a comprehensive care plan for each resident that includes measurable objectives and timetables to meet aresident's medical, nursing, mental, and psychosocial needs that are identified in the comprehensive assessment. '

q "A comprehensive care plan must be prepared by an interdisciplinary team, that includes the attending physician, a registered nurse with responsibility for the resident, and other appropriate staff in disciplines as determined by the resident's needs, and to the extent practicable, the participation of the resident, the resident's family or the resident's legal representative. '

q "Each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care. '

q "Based on the comprehensive assessment of a resident, the facility must ensure that a resident's abilities in activities of daily living do not diminish unless circumstances of the individual's clinical condition demonstrate that diminution was unavoidable.'

q "Based on the comprehensive assessment of a resident, the facility must ensure that a resident

whose assessment did not reveal a mental or psychosocial adjustment difficulty does not display a pattern of decreased social interaction and/or increased withdrawn, angry, or depressive behaviors, unless the resident's clinical condition demonstrates that such a pattern was unavoidable. q "The facility must provide for an ongoing program of activities designed to meet, in accordance with the comprehensive assessment, the interests and the physical, mental, and psychosocial well-being of each resident." q "If specialized rehabilitative services, such as but not limited to physical therapy, speechlanguage pathology, occupational therapy, and health rehabilitative services for mental illness and mental retardation, are required in the resident's comprehensive plan of care, the facility must:

1. provide the required services, or 2. obtain the required services from an

outside...provider of specialized rehabilitative services. '

q ``The resident has the right to be flee from any physical or chemical restraints imposed for purposes of discipline or convenience, and not required to treat the resident's medical symptoms.'

q "Each resident's drug regimen must be free from unnecessary drugs. An unnecessary drug is any drug when used:

1. in excessive dose (including duplicate drug therapy); or

2. for excessive duration; or 3. without adequate monitoring; or 4. without adequate indications for its use;

or

5. in the presence of adverse consequences

which indicate the dose should be reduced or discontinued; or 6. any combinations of the reasons above. "

. "Based on a comprehensive assessment of a resident, the facility must ensure that:

1. residents who have not used antipsychotic drugs are not given these drugs unless antipsychotic drug therapy is necessary to treat a specific condition and documented in the clinical record, and

136 q Special Care Units for People With Alzheimer's and Other Dementias

2. residents who use antipsychotic drugs receive gradual dose reductions and behavioral interventions, unless clinically contraindicated in an effort to discontinue these drugs."

q "The facility must provide: a safe, clean, comfortable, and home-like environment, allowing the resident to use his or her personal belongings to the extent possible...(and including) adequate and comfortable lighting levels in all areas; comfortable and safe temperature levels; ..(and) comfortable sound levels. '

q "The resident has the right to retain and use personal possessions, including some furnishings, and appropriate clothing, as space permits, unless to do so would infringe upon the rights or health and safety of other residents. '

q "A facility must not use any individual working in the facility as a nurse aide for more than 4 months, on a full-time, temporary, per diem, or other basis, unless:

1. that individual has completed a training and competency evaluation program, or a competency evaluation program approved by the State, and

2. that individual is competent to provide nursing and nursing-related services. '

q "The facility must provide regular performance review and regular in-service education to ensure that individuals used as nurse aides are competent to perform services as nurse aides. In-service education must include training for individuals providing nursing and nursing-related services to residents with cognitive impairments" (463) (emphasis added).

With the exception of the last requirement, none of these requirements mentions cognitive impairment or dementia. Many of the requirements refer, however, to residents' needs as identified by the required comprehensive assessment. If the comprehensive assessment identifies the needs of residents with dementia, the regulations require that these needs be met.

OBRA-87 mandated the development of a set of core items to be addressed in the required comprehensive assessment. In 1988, HCFA contracted with a consortium of researchers at Research Triangle Institute, Hebrew Rehabilitation Center for Aged, Brown University, and the University of Michigan to develop a resident assessment system that would

include these core items (308). The resulting assessment system consists of two parts: 1) the Minimum Data Set, a 5-page resident assessment instrument, and 2) 18 Resident Assessment Protocols that provide additional information to assist nursing home staff members in assessing and developing care plans for residents with certain problems (309). States may use this assessment system or develop one of their own, provided the system they develop incorporates the core items (308).

The Minimum Data Set emphasizes the assessment of a resident's cognitive status. Six questions about cognitive status appear on the first page of the assessment instrument, immediately after the basic identifying information about the resident (309). (Fig. 5-1 shows the first page of the Minimum Data Set.) Other sections of the assessment instrument include questions about problems and care needs that pertain particularly to residents with dementia. One section asks, for example, whether the resident needs `supervision, including oversight, encouragement, or cueing `` in order to perform activities of daily living (309). Another section asks about mood problems (e.g., agitation and withdrawal) and behavioral symptoms (e.g., wandering, verbal and physical abusiveness, and socially inappropriate or disruptive behavior). That section also asks whether the "behavior problem has been addressed by a clinically developed behavior management program. . .(not including) only physical restraints or psychotropic medications" (309). Other sections ask about the resident's customary routine, the resident's involvement and preferences in activities, the number of medications he or she is taking, the number of days in the preceding week he or she has received antipsychotic, antianxiety, or antidepressant medications, and the frequency of use of physical restraints.

A one-page form to be used for quarterly review of a resident's comprehensive assessment also emphasizes cognitive status and certain problems and care needs that pertain particularly to residents with dementia (309). The form includes questions about memory, cognitive skills for daily decisionmaking, behavioral symptoms, the number of days in the preceding week the resident has received antipsychotic, antianxiety, or antidepressant medications, and the frequency of use of physical restraints. It also repeats the question about the resident's need for ``supervision, including over-

Chapter 5-Regulations And Guidelines For Special Care Units . 137

MINIMUM DATA SET FOR NURSING HOME RESIDENT ASSESSMENT AND CARE SCREENING (MDS) (Status in last 7 days, unless other time frame indicated)

I m-m-mm SECTION A. IDENTIFICATION AND BACKGROUND INFORMATION

I Assessment

DATE

Mend'I

Day

Year

(FIrsQ

(Mddb Irmnal)

(Last)

I

NO m-m-mm

ri-MEND-OIC[Aff-ID appkibie)

i MEDICAL RECORD No

; REASON

t U-J

FOR

Assess-

ment

CURRENT PAYMENT SOURCE(S) FOR N H

STAY

VA

%1

2.

i

I'd

L

Ii:. 5.

I II

138 q Special Care Units for People With Alzheimer's and Other Dementias

sight, encouragement, or cueing" in order to perform activities of daily living.

One of the 18 Resident Assessment Protocols is on dementia. The protocol provides additional information about dementia to help nursing home staff members assess the resident accurately and develop an appropriate care plan (309). Several other Resident Assessment Protocols address problems and care needs that are relevant for nursing home residents with dementia, including delirium, psychosocial problems, behavioral symptoms, activities, psychotropic drug use, and physical restraints.

Compared with other assessment instruments used in nursing homes in the past, the resident assessment system developed by the consortium, including the Minimum Data Set and the Resident Assessment Protocols, places much greater emphasis on assessment of residents' cognitive status and the problems and care needs that are common among nursing home residents with dementia. Although the existence of this resident assessment system does not guarantee that a resident's needs will be accurately identified or, once identified, that the needs will be met, the existence of the system certainly makes both outcomes more likely.

As of January 1992, all States were using the resident assessment system developed by the consortium (329). Eleven States had added some items to the Minimum Data Set.

State Licensing Regulations

Each State licenses nursing homes on the basis of State standards. Although nursing homes that choose not to participate in the Medicare and Medicaid programs are not subject to Federal Medicare and Medicaid regulations, all nursing homes are subject to State licensing regulations, including nursing homes that serve only private-pay residents (225,320).

State licensing regulations vary greatly. Some States have very complex, stringent, licensing regulations, whereas other States have simpler, less stringent regulations (94,225,318). In 1984, onefourth of the States were using the Federal Medicaid regulations for State licensing purposes (318).

Administrative rulings and interpretations of State licensing regulations are common. These administrative rulings and interpretations become part of a

State's licensing regulations and generally add to their complexity.

Five States have changed their licensing regulations to add requirements for special care units, and one State has established requirements for special care units as an interpretation of the State's licensing requirements. These State regulations and requirements are discussed later in this chapter.

Federal Medicare and Medicaid regulations require that nursing homes have a State license (463). In effect, therefore, for a given State, the Federal regulations incorporate that State's licensing regulations. In the case of States whose requirements are more stringent or just different than the Federal requirements in some other way, these different and more stringent State requirements effectively become part of the Federal requirements.

State Certificate of Need Regulations

State certificate of need laws require explicit State approval before a nursing home can be built or expanded. As of 1988, 38 States had such laws (333). Certificate of need laws are intended to limit the supply of nursing home beds in a State. It is generally believed that any additional nursing home beds will eventually be filled with Medicaid-eligible residents and ultimately increase State expenditures for nursing home care (318). By controlling the bed supply, certificate of need laws are expected to limit these expenditures.

The process of obtainin g a certificate of need is lengthy and complex in many States. Tables 6-2 and 6-3 in chapter 6 list the steps involved in obtaining a certificate of need in Massachusetts and New York. As discussed later in this chapter, at least six States have altered the process for obtaining a certificate of need so that applicants who propose to create special care units receive special consideration.

Other State and Local Government Regulations That Apply to Nursing Homes

Many State and local government regulations apply to nursing homes as well as other buildings, businesses, and health care facilities. These regulations include fire safety codes, zoning codes, building codes, and sanitation codes. Some of these regulations are incorporated into the requirements for obtaining a State license or a certificate of need.

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