California Skilled Nursing Home F-Tags (Citation and Deficiencies)
Nursing homes in California are highly regulated. They receive routine and random visits from the Department of Public Health, Ombudsman, Department of Justice, Operation Guardian, police department and visitors and family members. The Department of Public Health issues numerous deficiencies and citations that may trigger a criminal investigation or civil lawsuits. Uncontested deficiencies or citations may provide a road map to a civil lawsuit for elder abuse and neglect. Most common deficiencies and citations that trigger a collateral criminal investigation by the Department of Justice or a civil lawsuit by a plaintiff’s attorney are as follows:
F221 – 42 CFR 483.13(a) PHYSICAL RESTRAINTS
“The resident has the right to be free from any physical restraints imposed for purposes of discipline or convenience, and not required to treat the resident’s medical symptoms.”
Defenses:
(1) The alleged deficient conduct is not a violation of the regulation.
(2) Restraint was order by the physician for the safety of the patient
(3) Restraints were not used for the purpose of discipline or convenience
(4) The interdisciplinary team used the least restrictive measure.
F223 – 42 CFR 483,13(b), 483,13(b)(1)(i) FREE FROM ABUSE/INVOLUNTARY SECLUSION
“The resident has the right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion. The facility must not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion.”
Defenses:
(1) Allegation is false
(2) Patient made the allegation suffering from Dementia
(3) Mischaracterization of Facts
F224 – 42 CFR 483.13(c) – STAFF TREATMENT OF RESIDENTS
“The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property.”
F225 -42 CFR 483.13(c)(1)(ii)-(iii), (c)(2) – (4) INVESTIGATE/REPORT ALLEGATIONS/ INDIVIDUALS
“The facility must ensure that all alleged violations involving mistreatment, neglect, or abuse, including injuries of unknown source and misappropriation of resident property are reported immediately to the administrator of the facility and to other officials in accordance with State law, through established procedures (including to the State survey and certification agency). The facility must have evidence that all alleged violations are thoroughly investigated, and must prevent further potential abuse while the investigation is in progress. The results of all investigations must be reported to the administrator or his designated representative and to other officials in accordance with State law (including to the State survey and certification agency) within 5 working days of the incident, and if the alleged violation is verified appropriate corrective action must be taken.”
F226 – 42 CFR 483.13(c) STAFF TREATMENT OF RESIDENTS
“The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property.”
F240 – 42 CFR 483.15 QUALITY OF LIFE
“A facility must care for its residents in a manner and in an environment that promotes maintenance or enhancement of each residents=s quality of life.”
F309 – 42 CFR 483.25 QUALITY OF CARE
“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. “
F314 – 42 CFR 483.25(c) PRESSURE SORES
“The facility must ensure that a resident who enters the facility without pressure sores does not develop pressure sores, unless the individual’s clinical condition demonstrates that they were unavoidable; and a resident having pressure sores receives necessary treatment and services to promote healing, prevent infection, and prevent new sores from developing.
Defenses:
(1) The pressure sore was unavoidable (end of life)
(2) Kennedy Ulcer
(3) The pressure sore was not the cause of death
(4) Resident did receive the necessary treatment and services for the pressure sore
(5) Need Experts to Testify or Present Report prior to Criminal Filing
(6) Pressure Sore was not a result of Neglect.
F 315 – 42 CFR 483.25(d) URINARY INCONTINENCE
“Based on resident=s comprehensive assessment, the facility must ensure that a resident who enters the facility without an indwelling catheter is not catheterized unless the resident=s clinical condition demonstrates that catheterization was necessary; and a resident who is incontinent of bladder receives appropriate treatment and services to prevent urinary tract infections and to restore as much normal bladder function as possible.”
F325 – 42 CFR 483.25(i) NUTRITION
“Based on a resident’s comprehensive assessment, the facility must ensure that a resident (1) Maintains acceptable parameters of nutritional status, such as body weight and protein levels, unless the resident’s clinical condition demonstrates that this is not possible; and (2) Receives a therapeutic diet when there is a nutritional problem.”
F327 – 42 CFR 483.25(j) HYDRATION
“The facility must provide each resident with sufficient fluid intake to maintain proper hydration and health.”
Intent: The intent of this regulation is to assure that the resident receives sufficient amount of fluids based on individual needs to prevent dehydration. Department of Justice and/or Department of Public Health will look at these factors:
(1) Water by bedside (Is the patient able to reach for the water)
(2) Did the facility identify any factors that put the resident at risk for dehydration?
(3) Did the Facility try alternative treatment approaches to increase fluid intake – popsicles, gelatin, and other similar non-liquid food.
Defenses:
(1) Focus Charting v. General Charting (optional boxes on forms)
(2) (Holistic Approach) Continuously assessing the patient as oppose to if it is not documented it is not done
(3) Assessment of Patient – pinching skin tugor, mucus membrane, warm, dry, urine color, cracked lips, sunken eye balls, diet.
(4) Witness statements of CNAs and registered nurses regarding communication of intervention
(5) The facility followed the doctor’s orders
(6) Patient condition unable to sustain fluid intake
F353 – 42 CFR 483.30(a) NURSING SERVICES – SUFFICIENT STAFF
“The facility must have sufficient nursing staff to provide nursing and related services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by resident assessments and individual plans of care.
The facility must provide services by sufficient numbers of each of the following types of personnel on a 24-hour basis to provide nursing care to all residents in accordance with resident care plans:
Except when waived under paragraph (c) of this section, licensed nurses and other nursing personnel.
Except when waived under paragraph (c) of this section, the facility must designate a licensed nurse to serve as a charge nurse on each tour of duty. “
F360 – 42 CFR 483.35 DIETARY SERVICES
“The facility must provide each resident with a nourishing, palatable, well balanced diet that meets the daily nutritional and special dietary needs of each resident.”
If your facility has been issued a “G” level deficiency or a citation arising from one or many of the following federal regulations, call Attorney Arthur Khachatourians for a defense consultation.