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Don't let your Plan of Correction plead guilty: facilities get themselves in trouble in the way they respond to alleged survey deficiencies. (Feature Article).

We have seen recent legal judgments of $300 million against a Texas nursing home, $95 million against a California nursing home and $78 million against an Arkansas nursing home. One of the reasons legal awards are soaring so astronomically is the Plan of Correction (POC), CMS-2567, which can be the most damaging evidence presented against providers in lawsuits. It's time that long-term care providers changed their perception of the CMS-2567; rather than a formality, it should be considered to be a legal document in anticipation of litigation.

Deficiencies noted and comments written on the CMS 2567, whether by surveyors or by nursing home employees, are words that can come back to haunt and hurt a facility. Attorneys strengthen their cases against nursing homes by submitting poorly drafted POCs as evidence of negligence or malpractice.

Since time immemorial, administrators, motivated by fear of upsetting survey authorities, have allowed the POC to be written and submitted as nothing more than a passive response to alleged deficiencies, devoid of any statements correcting surveyor misinterpretations and/ or clarifying ambiguous language, and full of inaccuracies. The following example illustrates a poorly written POC regarding a feeding tube deficiency, in response to a surveyor's observation that the feeding tube appeared to be obstructed and not working properly:

* Licensed nurse on shift was counseled regarding proper use of feeding tubes.

* Responsible person who will be in charge of correction will be the nurse.

* Staff were undertrained on feeding tubes, but the issue was discussed with them on (date).

* The RN supervisor will monitor this on a shift basis and will report to the nursing office any incident that is observed.

* This will be accomplished by (date).

The first mistake here is that the POC starts off by stating that an employee was disciplined--you can't get any more "guilty" than that. Other mistakes include the absence of language supporting and defending the facility's approach and an insufficient response to the basic federal requirement of a POC: A description of the complete corrective action. No mention is made of how other residents who might be at risk were identified, or of specific measures or systemic changes implemented to prevent recurrence, or of effective monitoring procedures.

While a state department of health might accept such a poorly written POC, in cases involving litigation, the document would be scrutinized happily by a plaintiff's attorney and interpreted as expressing indifference to regulatory compliance. This can be further translated for a jury to indicate a facility's halfhearted approach to caring for frail, elderly residents.

The time has come to write POCs in a manner that protects the facility against backlash, or even frontal assault, in future lawsuits. Start protecting the facility in the POC by writing a disclaimer on the front page of the CMS-2567, as follows:

This Plan of Correction constitutes my written allegation of compliance for the deficiencies cited. However, submission of this Plan of Correction is not an admission that a deficiency exists or that one was cited correctly. This Plan of correction is submitted to meet requirements established by state and federal law.

Disclaimers remind readers that there are two sides to every story. Then consider a POC addressing the same alleged deficiency mentioned above--obstructed feeding tube--in this way:

[Tag 3221 It is the policy of (facility name) to provide residents with appropriate treatment and services to prevent aspiration pneumonia, diarrhea, vomiting, dehydration, metabolic abnormalities and nasopharyngeal ulcers, and to restore, if possible, normal eating skills.

Please note that it is common for the flow of a feeding tube to become temporarily obstructed for several reasons: a resident's handling of the tube; a manufacturing imperfection revealed after use; drug-nutrient interaction causing formation of slow-dissolving compounds in tube lumen; or incompletely dissolved formula secondary to mixing technique of manufacturer. In this case, resident number five's gastrostomy tubing was immediately replaced on (date) after surveyor reported to nurse. The director of nurses visually inspected the new tubing to ensure the absence of defects. The replaced tubing worked properly.

To enhance currently compliant operations and under the direction of the director of nurses, on (date) all nursing staff will receive in-service training regarding state and federal requirements for feeding tube appropriateness and the facility's feeding tube use policy and procedure. The training will emphasize the importance of inspecting tubing and maintaining open passage, as well as reporting defects to a licensed nurse or supervisor immediately.

Because all residents receiving tube feedings are potentially affected by the cited. deficiency, on (date), the director of nurses compiled a list of all residents receiving tube feedings. The director of nurses then checked all residents with feeding tubes to ensure proper working order of all equipment. The director of nurses then checked feeding tube supplies. The director of nurses observed that all resident feeding tubes were working properly and all feeding tube supplies appeared in good condition. No ether residents were affected.

Effective (date), a quality-assurance program was implemented under the supervision of the director of nurses to monitor feeding tubes to ensure proper operation. The director of nurses or designated quality assurance representative will perform the following systemic changes: randomly checking, weekly, three residents who are receiving tube feeding to ensure that the feedings and equipment are working properly. Any deficiencies will be corrected on the spot, and the findings of the quality-assurance checks will be documented and submitted at the monthly quality-assurance committee meeting for further review or corrective action.

This sample POC format can be used to respond to any deficiency. Make sure to include the facility policy statement in reference to the cited deficiency, and use language that supports and defends the facility actions and reactions. Thoroughly outline any corrective action: how other residents potentially affected were identified, systemic changes and quality assurance monitoring plans.

The recommended frequency of quality-assurance monitoring--whether it's daily, weekly, bimonthly, or monthly--would depend upon the severity of the cited deficiency. The quality-assurance committee has the authority to discontinue quality-assurance monitors once they are confident that the deficiency is resolved. Remember, though, that in any case, it is simply smart protocol to do follow-up monitoring both three months and six months after discontinuing the original monitor.

Another tip: When writing the POC, avoid using industry abbreviations such as DON, DSD, DSS, AD, etc., because a department of health might reject the POC and require that it be rewritten with unabbreviated titles.

Unfortunately, the survey process has become increasingly hostile since the Clinton administration announced new initiatives in the late 1990s intended to punish nursing homes. The old days of collegial conversation and quasi-partnerships with state authorities, if they ever existed in your state, are over. Comments made to and by surveyors on the CMS-2567 can and will be used against you. Even casual comments attempting to explain facility policy and procedure can be interpreted as revealing, damaging admissions or self-criticisms. The best way to avoid being misquoted is to not be quoted at all!

Even though a state survey occurs only once a year, administrators should conduct monthly training to prepare staff. The training should include information on what to expect during a survey; the areas typically focused on in survey inspections, as described in the Standard Operations Manual; and what should or shouldn't be said to surveyors. The goal is to make staff aware and confident regarding how to conduct themselves during annual inspections, thus reducing the likelihood of their making inadvertent remarks that attorneys can magnify in future lawsuit proceedings.

A well-written POC supports and defends the hard work facility staff perform daily. Most long-term care workers are compassionate people who enjoy caring for the frail elderly--providing quality care is usually the only thing of which they are "guilty." Don't permit a carelessly prepared POC to indict them, or your facility in general, for providing anything less.

Jaime Todd is a long-term care turnaround consultant based in Claremont, California. He has worked as a social worker and administrator in the field for 12 years. For further information, phone (909) 624-7324. To comment on this article, please send e-mail to
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Author:Todd, Jaime
Publication:Nursing Homes
Date:Oct 1, 2002
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