Standard of care in residential care facilities for the elderly

Don’t confuse the non-medical RCFE facilities with skilled nursing facilities

2014 November

The standard of care in residential care facilities for the elderly (RCFEs) can be somewhat confusing and is often thought to be the same as the standard of care in skilled nursing facilities (SNFs). This concept is incorrect.

SNFs are medical facilities. According to the California Department of Public Health’s Website (http://www.cdph.ca.gov/programs/LnC/Pages/LnC.aspx):

Health care facilities in California are licensed, regulated, inspected, and/or certified by a number of public and private agencies at the state and federal levels, including the California Department of Public Health (CDPH) Licensing and Certification Program (L&C) and the U.S. Department of Health and Human Services’ Centers for Medicare and Medicaid Services (CMS). These agencies have separate – yet sometimes overlapping – jurisdictions. L&C is responsible for ensuring health-care facilities comply with state laws and regulations.

RCFEs are non-medical facilities. They are regulated by only one entity: The State of California Department of Social Services (CDSS). As payment for services rendered at RCFEs is typically made by private payers, such as the resident or the resident’s family, and not by Medicare or Medicaid, there are no federal regulations that apply.

CDSS is the agency that approves and regulates the licensing of an RCFE. It also approves and regulates all of the individuals who apply to hold an RCFE Administrator’s Certificate. RCFEs must abide by the Manual of Policies and Procedures, which is contained within Title 22 of the California Code of Regulations, Division 6, Chapter 8. (All further references to “sections” are to Sections of Title 22 of the California Code of Regulations; hereafter, Title 22.”) The entire set of regulations can be found on the California state government Website, at http://www.dss.cahwnet.gov/ord/entres/getinfo/pdf/rcfeman1.pdf.

Variety of guidelines

Because RCFEs are non-medical facilities, Title 22 provides a variety of guidelines for admitting and retaining residents with restricted and prohibited health conditions. It is expected that those who oversee RCFEs will be knowledgeable in these restricted and prohibited health conditions in order to assure the facilities are in compliance with the regulations. Those who oversee RCFEs and are held to the standard of care are the Licensee and the Administrator, also known as the Executive Director. The Licensee may be a sole proprietor, a limited liability company (LLC), or a corporation. The Licensee may or may not be the same person as the Administrator.

RCFEs come in many shapes and sizes. There are six-bed facilities, which are single-family homes in any given neighborhood. These are often owned and operated by the Licensee, who is also the Administrator. They may have a small staff of one to three employees, the majority of whom live in the facility and provide 24-hour care. There are medium sized facilities, ranging from eight to fifty beds, which will have a larger staff pool. There are not typically live-in caregivers in the medium-to-large RCFEs. The large facilities will range from fifty-one to hundreds of beds, and these often appear to be operated like SNFs, which often gives a resident or family member a sense that the facility is medically-based. These facilities often employ one or two licensed staff (LVN or RN), who also provide the residents and their families with a sense of confidence that a higher level of care is assured. It is important to understand that even if a facility has LVNs or RNs on staff, the same Title 22 regulations apply in regard to the restricted and prohibited medical conditions.

Restricted health conditions

In addition to the varying sizes and shapes of the RCFEs, there are also varying allowances for the types of residents who can be admitted and retained. For example, a facility must have a specific plan of operation for residents with dementia if it chooses to care for those individuals with Alzheimer’s or other dementia-related diagnoses. The facility must apply for a waiver if it desires to care for residents who are terminal and receiving hospice services. Based on the layout of the facility, a building may or may not have a fire clearance, allowing for some, or all, of their residents to be non-ambulatory or bedridden.

The restricted health conditions are found in Section 87612. The first restricted health condition is the administration of oxygen. If a resident requires oxygen, whether 24-hours a day or on an as-needed basis, the resident must be mentally and physically capable of operating the equipment and be able to determine her own need for the use of the oxygen. Another option is to have an appropriately skilled professional (LVN or RN) available to administer the oxygen when it is needed. This is an unrealistic option, as even the facilities who hire LVNs or RNs do not typically have them on staff 24 hours per day. Home-health agencies can provide appropriately skilled professionals to provide care in an RCFE environment, but are limited to the Medicare guidelines. These Medicare guidelines would not allow a home-health agency to open a case for the purpose of applying oxygen to a resident on an intermittent basis. Section 87618 contains other requirements for facilities that admit or retain residents who require oxygen.

The second restricted health condition is the need for Intermittent Positive Pressure Breathing (IPPB) Machines. The same type of rule applies: the resident must be mentally and physically capable of operating her own equipment and able to self-determine her own need for use of the equipment. Absent that, an appropriate skilled professional must be available to operate the device. As IPPB machines are typically required at night during sleep, it would be unusual to have an LVN or RN on staff at night to monitor the use of this equipment, and home-health agencies would not be able to seek reimbursement to provide this service in the RCFE environment. Additional information is found in Section 87619.

The third restricted health condition is related to residents who require a colostomy or an ileostomy (an artificial opening from the colon through the abdominal wall, thus bypassing a diseased portion of the intestine and permitting the passage of intestinal contents into an external bag). There is a similar pattern in the restricted health conditions: if a resident has a colostomy or ileostomy, then the resident must be mentally and physically capable of providing the daily routine care on his own or to have the assistance of an appropriately skilled professional. Additional information is found in Section 87621.

The restricted use of enemas and/or suppositories is again related to the resident’s own ability to perform the procedure or having an appropriately skilled professional to do so for him. Additional information is found in Section 87622.

The fifth restriction is related to residents who require an indwelling urinary catheter. The resident must be mentally and physically capable of providing the daily catheter care, which includes good perineum hygiene, emptying the bag whenever it is full, and the ability to recognize the signs and symptoms of a catheter-related complication, such as an infection. The monthly insertion of a new catheter or irrigation of the catheter must be performed by an appropriately skilled professional. This can be done onsite by a home-health agency LVN or RN or in a physician’s outpatient clinic, but cannot be performed by the caregivers at the RCFE. If a resident has a urostomy (an artificial excretory opening from the urinary tract to the abdomen wall, allowing urine to collect in a drainage bag) – though Title 22 does not specify this – the same restrictions apply. Additional information is found in Section 87623.

Managed incontinence is also a restricted health condition. The condition can be managed with any of the following: (1) self-care by the resident;

(2) a structured bowel or bladder retraining program to assist the resident in restoring a normal pattern of continence; (3) a program of scheduled toileting at regular intervals; or (4) the use of incontinent-care products. The Licensee will be responsible for ensuring that:

• residents who can benefit from scheduled toileting are assisted or reminded to go to the bathroom at regular intervals, rather than being diapered;

• incontinent residents are checked during those periods of time when they are known to be incontinent, including during the night;

• incontinent residents are kept clean and dry, and the facility remains free of odors from incontinence;

• bowel or bladder programs are designed by an appropriately skilled professional with training and experience in care of elderly persons with bowel or bladder dysfunction and development of retraining programs for restoration of normal patterns of continence;

• the appropriately skilled professional developing the bowel or bladder program provides training to facility staff responsible for implementation of the program;

• re-assessment of the resident’s condition and evaluation of the effectiveness of the bowel or bladder program is performed by an appropriately skilled professional;

• the condition of the skin exposed to urine and stool is evaluated regularly to ensure that skin breakdown is not occurring;

• privacy shall be afforded when care is provided;

• fluids are not withheld to control incontinence; and

• an icontinent resident is not catheterized to control incontinence for the convenience of the Licensee.

(§ 87625.)

Contractures (a shortening or distortion of muscular or connective tissue due to spasm, scar, or paralysis) are a restricted condition. This is typically seen in the knee joints, hip joints, shoulder joints, elbow joints and hands or fingers. The Licensee shall be permitted to accept or retain a resident who has contractures under the following circumstances:

(1) the contractures do not severely affect functional ability and the resident is able to care for the contractures by himself, or (2) either the contractures do not severely affect functional ability and care, or supervision is provided by an appropriately skilled professional. This restriction and specific requirements are found in Section 87626.

If a resident is diabetic and requires blood glucose testing or insulin injections, then certain restrictions apply. The resident must be able to perform his/her own glucose testing and must be able to administer her own injections, or these procedures must be performed by an appropriately skilled professional. If there are LVNs or RNs on staff at the RCFE to perform the testing and injections, that is acceptable; however, they must be available seven days per week and during any timeframe that the resident may require the procedures. This would obviously include the day shift, but could also include dinner and bedtime hours. Additional information is found in Section 87628.

Section 87629 defines the restrictions related to other types of injections and is similar to the diabetes restriction above.

Restrictions related to wounds

The most common area of problems occurring in RCFEs is related to the restrictions applying to wounds. Section 87631 addresses healing wounds. Types of healing wounds include, but are not limited to, surgical incisions; toenail removals; and abrasions from falls or injuries. The Licensee shall be permitted to accept or retain a resident who has a healing wound under the following circumstances: (1) where care is performed by or under the supervision of an appropriately skilled professional, or (2) where the wound is the result of surgical intervention and care is performed as directed by the surgeon.

This section also provides the restrictions related to dermal ulcers, also known as pressure sores and decubitus ulcers. Residents with a stage-one or -two pressure sore must have the condition diagnosed and treated by an appropriately skilled professional. All aspects of care performed by the medical professional and facility staff shall be documented in the resident’s file. Stage-one pressure ulcers can be problematic, in that home health agencies often won’t open a case for any pressure ulcers staged at less than two; however, for the resident to stay in an RCFE, an appropriately skilled professional must be involved to deliver the care. This again falls back to the issue of Medicare reimbursement for the home-health agencies. It has been suggested that the RCFE pay privately for skilled nursing visits to address stage one-ulcers, as it would be more cost effective and less stressful on the resident than relocating the resident to a higher level of care.

The list of prohibited health conditions is found in Section 87615. Residents with these medical diagnoses or needs are not allowed to be admitted or retained in the RCFE environment:

• Stage-three or -four pressure sores;

• Gastrostomy tubes;

• Naso-gastric tubes;

• Staph infection or other serious infection;

• Residents who depend on others to perform all activities of daily living for them; and

• Tracheostomies

Progressive dementia

The most common prohibited health condition that RCFEs are cited for by CDSS is related to residents who depend on others to perform all activities of daily living for them. It more often than not applies to residents with progressive dementia. Typically, when a resident is admitted to an RCFE, he requires assistance with some or most of the activities of daily living – as this is what prompts a person to move from an independent environment to an assistive living environment. Upon admission these residents can usually feed themselves, and, therefore, do not require assistance with all activities of daily living.

But once residents lose the ability to feed themselves they slip into this category of prohibited health conditions. The administration either does not realize the staff is feeding these residents, or they choose to allow it, hoping not to lose the monthly income of an otherwise medically stable resident. There has been a trend for facilities to request the physicians and families to enroll these totally dependent elders into a hospice program, as hospice residents are allowed to be “total care.” This is often not appropriate, as hospice patients should be certified, by a hospice physician, to have less than six months to live. These totally dependent elders usually outlive the six-month hospice enrollment because they are obtaining adequate food and fluid intake with the staff feeding them. At the end of the six months, the facility is again faced with an inappropriate resident retainment, due to the resident needing care with all activities of daily living.

Section 87616 does provide the Licensee with a process to obtain an exception for prohibited health conditions. This section states that the Licensee may submit a written exception request if it agrees that the resident has a prohibited or restrictive health condition, but believes that the intent of the law can be met through alternative means. CDSS evaluates these requests on an as-needed basis, and there is no standard approval or denial of such requests. Section 87616 provides all of the details as to what is required in writing when such an exception is desired.

While the restricted and prohibited health conditions outlined in Title 22, Division 6, Chapter 8 of the California Code of Regulations are fairly inclusive, there are issues not addressed that occasionally come up. One of the more recent conditions being seen is related to wound VACs. According to the Website of KCI, the primary vendor for wound VACs (http://www.kci1.com/KCI1/vactherapy), V.A.C.® Therapy promotes negative-pressure wound-healing through a patented dressing that helps to draw wound edges together, remove infectious materials and actively promotes granulation of tissue. CDSS reviews each exception request related to wound VACs and bases its decision on the facts provided by the Licensee.

The standard of care in RCFEs is primarily based upon the regulations outlined in Title 22, Division 6, Chapter 8; however, the community standard of care can be applied as well. The common definition of the standard of care is the degree of prudence and caution required of an individual who is under a duty of care. The requirements of the standard are closely dependent on circumstances.

Breaching the standard of care

Whether the standard of care has been breached is determined by whether the individual proceeded with such reasonable caution as another prudent person with the same background, education and training would have exercised under such circumstances. In the RCFE environment, one has to consider what another Licensee or Administrator would have done if the same circumstances would have occurred. This comes into play when an incident occurs that is not clearly defined in the regulations. For example, if a resident moves into a facility and sustains four falls in one month, and the fourth fall results in a hip fracture, does the standard of care require the Licensee or Administrator to have taken some action after falls one through three that may have prevented the fourth fall?

One must then determine if another Licensee or Administrator would have taken such action, and, if so, at what point in time. The action may have included an investigation into the pattern of falls to try and determine the cause, and therefore, solution; a provision of one-to-one care for this resident during the time of day the resident tended to sustain falls; a consultation with the resident’s family or physician about how to keep the resident safe; or even assistance to the family to relocate the resident if the facility determined that it could not meet the resident’s needs.

Another standard-of-care consideration is the RCFE’s own written Policies and Procedures or Plan of Operation. Often these documents call for a higher degree of care and supervision than the Title 22 requires. If a facility has these documents, then it must follow its own standard of care in the provision of services to its residents.

In conclusion, RCFE standards of care are based on services being provided in a non-medical facility and are regulated by CDSS through Title 22. Other standards of care that apply are based on what other similar facilities in the community would do and on the RCFE’s own published Policies and Procedures or Plan of Operation. While Title 22 provides the regulatory standards in a general sense, each health condition, whether restricted or prohibited, may be considered on its own specific details and situation. When in doubt whether a resident can be cared for in any given RCFE, it is most appropriate for the Licensee or Administrator to contact CDSS and take the proactive approach of asking for permission, rather than waiting to be cited, and then asking for forgiveness. Once cited, that citation becomes part of the facility’s permanent record; plans of correction must be performed and, at times, civil (financial) penalties will apply. Most importantly, a resident may be injured or die as a result of a facility not following the standard of care.