Resident Rights Revisions

Within the resident rights section of the RoPs there are several revisions including F557 Respect, Dignity, and Right to have Personal Property, F561 Self Determination; F563 Right to Receive/Deny Visitors and F582 Medicaid/Medicare Coverage Liability Notice.

F557:

The revisions to F557 coincide with the substance use disorder information contained in the behavioral health services updates that was provided in the Communique on August 11. However, F557 talks about the nursing homes ability to search a resident’s property. 

If you suspect that a resident is under the influence of an illegal substance here is what you are and are not allowed to do.

You may:

• Ask the resident if they have taken or possess an illegal substance, including what type of illegal substance they took.
• Ask for the resident’s consent to search their belongings.
• Confiscate illegal substances or paraphernalia that is in plain sight.
• Refer the resident to law enforcement as appropriate by State law and organization policies and procedures.

You cannot:

• Search the resident’s property without informing the resident (or their representative as appropriate) of the reason for the search and obtaining consent to search their property.
• Act as an arm of law enforcement.

It is important that providers are aware of the signs and symptoms of substance use, CMS specifically notes signs such as changes in behavior, increased unexplained drowsiness, lack of coordination, slurred speech, mood changes, and/or loss of consciousness.  Providers also have an obligation to protect the health and safety of all residents, which may include providing increased monitoring and supervision to the resident that is suspected of taking illegal substances.  

Some other things to think about:

While you may not be able to clearly identify if the resident did or did not use illegal substances there are clinical aspects that providers should consider. This could include, but is not limited to:

• Notifying the resident physician of the suspicion and any potential medication interactions that may be occurring for example if the resident takes an opioid or a benzodiazepine, effects of the illegal substance may be enhanced, putting the resident at a higher risk of adverse effects.
• Discussing the resident’s medications with your consultant pharmacist to determine if there are any medication and illegal substance interactions that you should be aware of and increasing monitoring for.
• Care planning behaviors, symptoms, and interventions based on the suspicion.
• Ensuring that staff are aware of the concern and how to respond, including increasing supervision, notification of physician, and additional measures as determined by the interdisciplinary team.
• If it is determined appropriate, law enforcement should be contacted to ensure the safety of the other residents in your care.

F561:

The changes in the resident rights for self-determination reflect that nursing homes that change their policies on smoking (including electronic cigarettes) should allow current residents to continue smoking in an area that maintains the quality of life for these residents and takes into account non-smoking residents. Residents admitted after the policy changes must be informed of this policy at admission.

As a reminder, if a resident smokes (including electronic cigarettes) providers should follow standards of practice for nursing home residents that smoke including conducting a smoking assessment, care planning and determining/implementing interventions to maintain the residents safety.  Common care planning interventions include but are not limited to the use of smoking aprons, not allowing residents to keep smoking materials in their personal possessions, and direct supervision.

F563:

The residents right to receive and deny visitors regulation was revised to include visitors with signs and symptoms of a transmissible infection should defer visitation until they are no longer potentially infectious, or according to CDC guidelines and/or local health department recommendations.

CMS also included in reasonable clinical and safety restrictions for limiting visitation denying access or providing supervised visitation to individuals who have a history of bringing illegal substances into the facility which places residents’ health and safety at risk.

Infectious Disease Updates:

A section was added for visitation considerations during a communicable disease outbreak, stating that providers may need to modify their visitation practices when there are infectious outbreaks or pandemics to align with current CMS guidance and CDC guidelines that enables maximum visitation such as by:

• Offering options for outdoor or virtual visitation, or outdoor designated visitation areas.
• Providing adequate signage with instructions for infection prevention (such as hand hygiene and cough etiquette).
• Ensuring access to hand hygiene supplies.
• Taking other actions that would allow visitation to continue to occur safely in spite of the presence of a contagious infection.
• Contacting their local health authorities for guidance or direction on how to structure their visitation to reduce the risk of communicable disease transmission during an outbreak.

During an infectious disease outbreak, while not recommended, residents in transmission-based precautions can still receive visitors. In these cases, before visiting residents who are in TBP, visitors should be made aware of the potential risk of visiting and precautions necessary in order to visit the resident. Visitors should adhere to principles of infection prevention.

In all cases, resident visitation should be person-centered, considering the resident’s physical, mental, and psychosocial well-being and supporting their quality of life.

Illegal Substances Updates:

It is important that caregivers have knowledge of the signs and symptoms of illegal substance use and observe for these signs, particularly after interactions with visitors or leaves of absence.  Following such occurrences, caregivers may ask residents who are displaying signs or symptoms of potential illegal substance use, whether or not they possess or have used an illegal substance.

If the provider determines illegal substances have been brought into the building by a visitor, the provider should not act as an arm of law enforcement, rather determine if the situation warrants a referral to law enforcement based on applicable State laws and organizational policies and procedures. If determined necessary, providers may implement additional restrictions on visits with visitors who’ve been determined to bring illegal substances into the building which place residents at risk, including denying access if necessary or increasing supervision of these visits. As a reminder, residents (or their representatives) should be clearly notified of visit restrictions and restrictions should be care planned and reviewed periodically. 

F582:

The regulation under F582 refers to a provider's responsibility for providing Medicare required notices to residents or their representatives upon discontinuation of Medicare services. Revisions to this section were implemented to reflect current Medicare requirements for the Beneficiary Notices including the Notice of Medicare Non-Coverage (NOMNC or CMS-10123) and the Skilled Nursing Facility Advanced Beneficiary Notice (SNF ABN or CMS-10055).  

NOMNC form is given to the resident or their representative at least two-days before the end of a Medicare Part A covered stay or when all of Part B therapy services are ending. The NOMNC informs beneficiaries of the right to an expedited review by a Quality Improvement Organization (QIO). The NOMNC is not given if:

• The beneficiary exhausts the SNF benefits coverage (100 days), thus exhausting their Medicare Part A SNF benefit.
• The beneficiary initiates the discharge from SNF.
• The beneficiary elects the hospice benefit or decides to revoke the hospice benefit and return to standard Medicare coverage.

SNF ABN is only issued if the beneficiary intends to continue services and the SNF believes the services may not be covered under Medicare (for example continuing to stay in the nursing home vs. discharging to the community). It is the nursing homes responsibility to inform the beneficiary about potential non-coverage and the option to continue services with the beneficiary accepting financial liability for those services. SNF ABNs must be given for the following triggering events:

• Initiation – in the situation in which a SNF believes Medicare will not pay for extended care items or services that a physician has ordered, the SNF must provide the SNF ABN to the beneficiary before it furnishes those services.
• Reduction – In the situation in which a SNF proposes to reduce a beneficiary’s extended care items or services because it expects that Medicare will not pay for a subset of extended care items or services, or for any items or services at the current level and/or frequency of care that a physician has ordered, the SNF must provide the SNF ABN before it reduces the items or services to the beneficiary.
• Termination – In the situation in which a SNF proposes to stop furnishing all extended care items or services to a beneficiary because it expects that Medicare will not continue to pay for the items or services that a physician has ordered and the beneficiary would like to continue receiving the care, the SNF must provide a SNF ABN to the beneficiary before it terminates such services.

As a reminder, when the resident requests that a demand bill be submitted to Medicare, the provider cannot charge the beneficiary for Medicare covered Part A services during the process.