SUMMARY OF KEY FINDINGS FROM THE FAWN RIDGE ADULT HOME ENFORCEMENT DECISION 1 CHARGE #3

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1 SUMMARY OF KEY FINDINGS FROM THE FAWN RIDGE ADULT HOME ENFORCEMENT DECISION 1 CHARGE #3 REGULATION: 18 NYCRR 487.7(d)(1) - Resident Services Supervision services shall include, but are not limited to: (iv) monitoring and guidance to assist residents in performing basic activities of daily living, including: (a) attendance at meals and maintenance of appropriate intake; (b) performance of personal hygiene and grooming activities. SPECIFICATION #2: Based on observations made on one day and during one meal, the Department alleged that the Home: was "not supervising the residents' meal intake or offering meal alternates" and that the staff was "not assuring that residents had an appropriate nutritional intake" three residents were "observed to have inadequate supervision" with personal hygiene and grooming, including one resident with dirty hair, dandruff, and long, dirty nails, another resident wearing dirty clothes and unkempt hair and a third resident without shoes, dirty socks and hair that was greasy and uncombed failed to make an entry on the "Dining Room Census" form for a single resident, for a one evening meal, and that the form was not completed for 10 other residents between July 1 and 3, 2008 JUDGE S FINDINGS AND CONCLUSIONS: There is no basis in the regulation for the allegation that the Home was required to verbally offer an alternate whenever a resident doesn't eat their whole meal. The regulations require an operator to provide monitoring and guidance with regard to attendance at meals and maintenance of nutritional intake. The Department has disingenuously attempted to restate this requirement as monitor and assist. The Department then took matters one step further and accused the Respondent of failing to assure that the residents had an appropriate nutritional intake. There is nothing in the regulations which can authorize this charge, nor is there evidence to support it. The surveyor merely observed five residents (out of 150) that didn't complete their lunch on one day. Even if the regulations did require the operator to assure appropriate nutritional intake, one observation of one meal on one day would be insufficient to establish a violation. 1 The Fawn Ridge Enforcement Decision is not final yet and is subject to approval, and possible modification, by the Commission of Health of the State of New York, Nirav Shah. 1

2 The evidence showed that the Home prepares menus created by a registered dietitian, and that a variety of alternate meals are created and posted daily and that residents have the option of having alternate meals. The Department cannot on one hand, argue that the Respondent must act so as to maximize the independence of its residents, and on the other hand, claim that the residents cannot be allowed to choose what they eat and what they leave. The regulations require the Home to provide monitoring and guidance to assist residents in performing personal hygiene and grooming functions. The surveyors made no effort to determine whether the Home provided any monitoring and assistance regarding the hygiene of the residents involved. Mere observation of an unkempt individual does not equate to a violation of the regulations. There is no requirement under the regulations that adult homes use a dining room census so the Department cannot fine an operator for failing to maintain a record not required by the regulations CHARGE #4 REGULATION: 18 NYCRR (d)(1) - Resident Services (1) Supervision services shall include, but are not limited to: (v) surveillance of grounds, facility, and activities of residents and staff to protect residents from harm to person and property. SPECIFICATION #1: The Department alleged that the Home: failed to clarify the mental health evaluation regarding the need for increased supervision, and that increased monitoring of the resident did not occur upon a schizophrenic resident s return the Home with a mental health evaluation describing a history of wandering and thoughts of harming himself failed to supervise this resident on a night when the resident was returned to the Home by police who reported finding him in a nearby swamp. Facility staff reported not hearing a door alarm and did not see the resident leave the Home. JUDGE S FINDINGS AND CONCLUSIONS: The cited regulation does not require adult homes to "clarify" evaluations performed by licensed professionals, nor is there any authority for an adult home to compel a licensed health professional to clarify or modify any evaluation, report or analysis. A surveyor s admission that there would have been no violation if the resident had simply returned on his own mandates dismissal of the allegation. The Department s belief that adult homes must provide increased supervision to a resident because they might cause dangerous behavior while out in the community would drastically change the scope of responsibility for the Home, or any adult home 2

3 operator. There is no legal authority for the Department s belief that adult home operators must supervise their residents while out in the community, nor is there any regulation which would allow an operator to stop a resident from going out into the community. If the Department wishes to impose such a duty upon an adult home, it must be through lawfully promulgated regulations. SPECIFICATION #2: The Department alleged that the Home: did not provide a resident with supervision to safely travel in the community, and that facility staff did not promptly respond to this resident s reported need for assistance and were not monitoring the resident s departures from the Home allowed the resident to leave the facility without any identification or contact information did not ensure that staff knew when and where this resident was going every time he left the facility and when he was expected to return failed to remind residents who were leaving the Home that they should sign out and inform the staff if they will miss a meal, and that some entries on the resident sign-out log were incomplete JUDGE S FINDINGS AND CONCLUSIONS: This regulation addresses surveillance of the building and grounds of the facility, and resident activities while in the facility. The regulation does not require supervision or monitoring of resident travel or behavior once they leave the facility. There is no regulation, cited or otherwise, that requires the Home to make sure residents do not leave the facility without identification or contact information, or that they have knowledge of residents travel plans or expected return. The evidence showed that the Home has procedures in place to monitor the residents' departures from the facility and that residents are told upon admission of the sign in/out log at the front door and that a reminder notice is posted. This allegation is dismissed since residents are free to come and go as they please. CHARGE #5 REGULATION: 18 NYCRR 487.7(f)(5) - Resident Services For residents in need of supervision and assistance, the operator shall establish a system for staff to: (i) provide the resident with the proper dosage of medication at the designated time; and (ii) observe and record that the resident takes the medication. 3

4 JUDGE S FINDINGS AND CONCLUSIONS: The Department argues that the Home failed to establish a medication system for residents in need of supervision and assistance based on alleged errors in the administration of medications for various residents. 18 NYCRR 487.7(f)(5) requires the operator to establish a system for the administration of medications and documentation thereof. The regulations do also imply some level of effectiveness. Respondent's system met regulatory standards at all times relevant to these proceedings. The question of medication assistance in the adult home setting is complicated by the fact that the Department's regulations allow medications to be managed by mere aides. In any other facility licensed by the Department, there are strict restrictions on who may lawfully administer medication. (See, 10 NYCRR 405.5; 10 NYCRR ). No such restrictions are found in the adult home regulations. (See, 18 NYCRR 490.9). Adult homes operate on the premise that residents self-administer their own medications. 18 NYCRR (f) (1) provides that each resident capable of selfadministration of medication shall be permitted to retain and self-administer those medications. The operator essentially has no responsibility with regard to monitoring and recording this self-administration. For those residents not capable of selfadministration, the regulations require the operator to provide "assistance" to the residents. This concept of merely providing assistance with self-administration is at best a legal fiction. In reality, what happens is that the facility maintains custody and control of the medications. The aide on duty is then expected to review each residents' medication orders, select and dispense the proper drugs, administer them to the resident, and document said administration. These are functions: which in any other licensed facility would be considered the province of a registered professional nurse. Each of the residents whose care is at issue in this case was on a complex medication regime, including antidepressants, anti-psychotic agents, seizure medications, cardiac medications, narcotics, and many others. These are not trivial drugs. The timing and consistency of doses is critical to their efficacy. Moreover, even such relatively benign medications such as ibuprofen and multi-vitamins can be toxic if not appropriately managed. Entrusting the administration of these drugs to unlicensed, minimally trained aides is a recipe for disaster. No medication system is 100% error free. Medication errors result from human error, or the acts or omissions of third parties. The evidence shows that approximately 1.2 million medication passes occur at Fawn Ridge per year. SPECIFICATIONS: The Department alleged that the Home s staff: made medication errors and did not properly train residents how to use their Spiriva inhalers and that residents used them incorrectly as a result failed to insure that two residents received inhaled medications as prescribed and that the Home was responsible for the incorrect use of the inhaler by the resident failed to provide the proper dosage at the designated time when they provided 8:00 a.m. medications at 9:50 a.m. on one day and at 10:10 a.m. on another 4

5 JUDGE S FINDINGS AND CONCLUSIONS: It is not the responsibility of the facility's unlicensed medication aides to know how all inhalers are supposed to be used, nor is it the Home s responsibility for unlicensed staff to train residents on their use. The incorrect use of inhalers is an error on the part of the resident, not the adult home. The facility provided in-service training for staff on the proper technique for using inhalers, but they are not trained health professionals and cannot be required to instruct residents as though they were. There is no regulatory standard requiring when medication passes must begin, or how long they may take to complete. As admitted by the surveyor, the Department s standard of allowing 1.5 hours to complete a medication pass has no basis. The Department could not show violations based merely on the circumstantial evidence of comparing a MAR with other medication records because residents may not receive medications through no fault of the adult home, including a resident s decision to decline a PRN medication. The Department made no attempt to find out the precise details of why the medication was not taken and whether the resident refused treatment. The Department cannot use medication dosage information from a resident s medical evaluation prepared by the resident's physician as the basis for a citation because it is not a prescription. The Home cannot be responsible for a violation caused by medication transcription errors by a physician's office. Judge Storch explicitly reject[ed] the Department argument that the Home s alleged failures in the area of medication administration (and in other areas) could be traced to insufficient numbers of staff. The regulations regarding personnel requirements (see 18 NYCRR NYCRR 487.9(a) (1)) create minimum levels of staffing for administration, case management, resident supervision, personal care, housekeeping and food service. Since the Department did not even charge the Home with violations of Section based on staffing levels, it cannot make this argument here. Moreover, the Department never articulated any standards to determine how much staff is sufficient for Fawn Ridge, or any other adult home. It is not surprising that errors occurred in the administration of medications to the residents at Fawn Ridge. The medication aides have minimal education and training. However, this has occurred with the explicit permission of the Department. The Department cannot on the one hand, condone the de facto unlicensed practice of nursing by mere aides, and on the other hand, claim outrage when the inevitable errors occur. The small number of errors actually observed by the Department's surveyors all involved errors committed by residents, either in using inhalers or giving themselves insulin injections. The overwhelming majority of errors cited were found through retrospective reviews of records. In each instance the physician was contacted and directions for follow-up action were obtained and documented. This is how the system should work. I therefore conclude that each and every one of the factual allegations brought under Charge #5 is dismissed. 5

6 CHARGE #6 REGULATION: 18 NYCRR 487.7(g) - Resident Services (1) Case management services shall include: (i) initial and periodic evaluation, at least once every 12 months, of the needs of a resident and of the capability of the facility program to meet those needs (vi) establishing linkages with and arranging for services from public and private sources for income, health, mental health, and social services; (viii) assisting the resident in obtaining and maintaining a primary physician or source of medical care of choice, who is responsible for the overall management of the individual's health and mental health needs; (ix) assisting the resident in making arrangements to obtain services, examinations and reports needed to maintain or document the maintenance of the residents' health or mental health, including: (a) health and mental health services; (b) dental services; and (c) medications; (x) providing information and referral; (xi) coordinating the work of' other case management and service providers within the facility; and (xii) assisting residents in need of alternative living arrangement to make and execute sound discharge or transfer plans: SPECIFICATION #1: The Department alleged the following: under Charge #6, the Department repeatedly alleged that the Home committed a violation of the cited regulation by failing to contact various physicians to clarify statements on medical and mental health evaluations which did not match statements on earlier evaluations the Home violated 18 NYCRR (g)(1) by failing to obtain a complete medical evaluation following a brief hospitalization by a resident (3 pages were missing) a resident was not assisted in obtaining a physical/occupational therapy evaluation, as ordered by her physician, where there was testimony that the evaluation was ordered but that the resident refused to be evaluated the Home failed to contact its dietary consultant for recommendations to prevent further weight loss by a resident whose weight decreased from 130 to 115 pounds during the period of October through November 2008 the facility should have notify a resident s physician that the resident lost 19 pounds and was noncompliant with her prescribed no concentrated sweets (NCS) diet in that she was 6

7 observed refusing diet pudding and eating regular pudding, and entries were missing for this resident in the dining room census the Home violated the cited regulation when it failed to inform a resident s physician that the resident could no longer perform a finger stick and where the case manager had to instruct a staff member not to perform a finger stick for a resident who could not do so herself JUDGE S FINDINGS AND CONCLUSIONS: The Department is seeking to impose an obligation on the Home which is not found in the regulations by citing adult homes for failing to contact physicians to clarify statements on medical and mental health evaluations that are inconsistent with earlier evaluations. It is the physician's responsibility, in the exercise of his or her professional judgment, to determine what should or should not be included on any given medical evaluation form. I have reviewed the applicable regulations (18 NYCRR 487.7(g) carefully, and find no language imposing an affirmative duty upon adult home operators to decide what information on a medical report requires clarification, and that further empowers them to direct a licensed professional who is not an employee, to re-do said medical evaluation form. It may well be a desirable practice, but absent a regulatory mandate, adult home operators may not be penalized for a lack of follow-up. The cited regulation (18 NYCRR 487.7(g)(1)(ix)) does not require adult homes to ensure possession of complete evaluation forms. The resident received appropriate services due to the supposed lack of a complete report -- a point the Department did not disagree with and the regulation obligates adult home operators to assist residents in obtaining these services and reports. Without evidence that the resident never received the complete report, this allegation cannot be sustained. The Judge dismissed the allegation that a resident was not assisted in obtaining a physical/occupational therapy evaluation when there was testimony that one was ordered but that the resident refused to participate. In doing so, the Judge noted that the failure to document the refusal may be a violation of a different regulation but that it could not sustain a violation of the one cited here. The Judge found it significant in considering the Home s failure to contact its dietary consultant about a resident s loss of 15 pounds that the resident was admitted to Fawn Ridge with an anxiety diagnosis and the weight loss occurred during his first month at the facility. The allegation was dismissed on the ground that there is no regulatory requirement that adult homes notify dietary consultants about individual weight changes, unless ordered by physician As admitted by the surveyor, residents are free to reject their prescribed diets and to receive food that conflicts with their prescribed diets. Requiring adult home operators to contact a physician every time a resident decides not to follow a prescribed diet would represent an unworkable and cumbersome burden on both the operators and the treating physicians. If the Department wishes, to impose such a requirement, it must be done through explicit regulation, rather than by ad hoc interpretations by individual 7

8 surveyors. The Home contacted the resident's physician, so it is then up to the physician, in the exercise of his or her professional judgment, to decide whether a dietary consultation is warranted. The facility's obligation is to facilitate that consultation by making the necessary arrangements. An adult home is not a medical facility. It doesn't provide medical care. It merely is required to act on behalf of the residents to facilitate and coordinate the services prescribed by the licensed professionals treating them. There is no requirement that adult homes maintain a dining room census. The Department has repeatedly argued-that the [Home] has sought to shift responsibility in an attempt to delegate case management responsibilities to others. In fact, the converse is true. The Department has repeatedly sought to manipulate the regulations to impose obligations on the [Home] which are actually the responsibility of the licensed professionals who are providing services to the residents. The Home can only act on the information it has so it cannot be held responsible for problems such as a resident s loss of the ability to perform a finger stick, before it has knowledge of this fact. The Department claims that it should not have taken the case manager s intervention for the facility to act. The Home s administration notified the physician and new orders were given once it became aware of the problem so this allegation was not sustained. G:\DATA\Health Department\KEB\NYSCAL\Summary - Fawn Ridge Decision (ver. 4) - Jan. NYSCAL Conf.doc 8