November 3, 2002
To: Michigan Department of Consumer and Industry Services
Bureau of Family Services
From: Marsha Harrison, MSN, RN
Administrator
Rose Garden Homes (a licensed Home for the Aged)
3391 Prairie SW
Grandville, MI 49418
and
Owner and Chief Consultant
Elder Care Management Consultants, PC
marsha@elderconsultants.com
RE: Testimony regarding Draft Rules-Homes for the Aged (HFA)
Good Morning-
My name is Marsha Harrison. I am a registered nurse with a Master
of Science degree in gerontological/mental health nursing and nursing
administration. I have been an advocate, designer and proponent
of quality services and programs for older adults for over 30 years.
For the past 6 1/2 years I have been involved in HFAs and other
types of assisted living homes in Michigan on a daily basis as an
administrator and risk management consultant. I am here today to
speak from my experience on behalf of the needs of the more than
7,000 residents who live in HFAs currently, and the thousands more
who will choose such homes in the future. On behalf of the current
and future needs of these older adults, I am speaking in opposition
to the proposed rules regarding Homes for the Aged.
The average resident in an HFA today is about 84 years old and
that age is expected to rise. Older adults and their families put
off considering a move to an assisted living home such as an HFA
until the later stages of their lives, partially because our society
encourages us to live in our own homes, and partially out of fear
they may outlive their financial resources since most assisted living
care is not covered by insurance.
It is well documented that the older a person gets, the more physical
and cognitive health concerns that person is likely to experience.
People who live in HFAs have multiple chronic diseases including
diabetes, heart and respiratory diseases, bowel and bladder incontinence,
and arthritis, to name a few. At the same time the incidence of
dementia, clinical depression and anxiety are increasing. As they
age, people require more and more assistance with not only functional
needs such as assistance with personal care, toileting, meal preparation
and housekeeping; they also often require an average of 8 medications
per person per day, guidance in how much mobility and exercise to
try, close observation and early intervention or referral for condition
changes, and on-going teaching and support in accepting their deteriorating
physical and perhaps mental health while learning to grow spiritually.
Older adults are more prone to urinary tract infections, falls,
and wandering. With hearing, speech and vision losses, many also
often require consistent, caring and knowledgeable people around
them in order to communicate their needs, desires, and preferences
in a meaningful way. Families, too, need a lot of education and
support in interacting with their aging parents appropriately and
realistically in today's complex health care systems.
Potential residents and their families will continue to seek assisted
living not solely for social stimulation, but because of the need
for assistance in dealing with the natural health consequences of
advanced age. Some families are unable or unwilling to assume an
active day-to-day role in assisting their loved one with their personal
care or health needs. They assume that such assistance is the responsibility
of the Home - that's what they're paying for. This trend of having
our "oldest-old" i.e., people over 85 years old with increasingly
complex health issues living in our HFAs and depending on us as
providers for good, safe care will continue. It is our mandate,
then, to design and reach consensus on minimum regulations that
can meet their needs.
HFAs are providing health care and need to be regulated as health
care facilities.
HFAs are a unique housing-healthcare hybrid. Yet there are minimal
references to health in the proposed regulations. It seems only
fitting in this day and age to officially identify an HFA as a health
facility and a bona fide member of the long term care continuum.
Many types of health care are being or could appropriately be provided
in HFAs, from health promotion, to prevention, to treatment, to
care management, to palliative or comfort care. Certainly residents
of HFAs can take advantage of physician office visits, out-patient
services and in-patient hospital care while they are living in an
HFA. Intermittent home health or hospice services can supplement
what an HFA has to offer. However, the complex health maintenance
needs of the older adults who live in these communities require
HFAs to at least partner with other health providers in enhancing
the health and well-being of the older adults who live there.
The proposed rules do not clarify the level of care an older adult
may need, nor how those needs can be "adequately and appropriately"
(R 325.1922 Rule22 (2) (b) met.
The language in R 325.1922 Admission and Retention of Residents
is too vague.
The national Assisted Living Workgroup has recommended that states
establish at least two assisted living levels of care, based on
the types and severity of the physical and mental conditions of
residents, in order to determine licensure requirements such as
staffing levels and qualifications, special care or services, participation
by health care professionals and fire safety. 1 One of these levels
might be the provision of personal and supportive services such
as assistance with activities of daily living, while the other might
be the provision of health related services such as medication administration.
In practice, many homes have already developed their own simple
systems of defining the levels of care available in their homes.
For instance, residents may receive an "Independent" level
of service if their only needs are for room, board and opportunities
for socialization; an "Independent Plus" level of service
if they need some assistance with personal care, medication administration,
and/or special diets, "Supportive Care" if they need a
significant amount of help and health monitoring every day, and
" Specialized" care if they need a locked dementia or
mental health unit and specially trained staff for safety. These
levels are useful to residents, families and administrators alike
in order to better assure that the need is consistent with the service
provided. Without a standardized framework of level of care definitions
included in the regulations for all HFAs to look to, how can "adequate
and appropriate " care be determined? Who will make the determination?
And aren't more structured definitions in the best interest of the
residents and their families?
The proposed regulations do not establish adequate minimal standards
for an administrator of an HFA.
R 325.1921(2) requires an administrator to "(a) be at least
18 years old; (b) have education, training and/or experience related
to the population served; and (c) be capable of assuring program
planning, development and implementation of services . . . "
These qualifications are so vague as to appear almost meaningless.
Since our business is in orchestrating housing, meals and services
for older adults, and since there is an approved curriculum for
assisted living administrators, shouldn't we expect that all administrators
achieve that training or its equivalent as a minimum standard?
Professional nursing has been left out of the proposed rules.
The only references to nursing care in the proposed regulations
are "continuous nursing care" in R 325.1922 (9) and (10).
In this context, "continuous nursing care" is meant to
describe what is not available in an HFA. Yet there is no definition
of continuous nursing care, and no other reference to what role,
if any, a registered nurse should have in an HFA.
The practice of professional nursing by registered nurses is the
foundation of several different types of health care settings, including
public health, home health, hospice, rehabilitation, mental heath,
hospitals and nursing homes. The profession of nursing is much more
than the technical skills that nurses or nurse aides perform. Professional
nursing is based on research and uses critical thinking skills we
call the nursing process to assess, diagnose, plan, implement and
evaluate the health care of an individual or a community. I submit
to you that the services provided in an HFA (i.e., "protection",
"supervision", "assistance with activities of daily
living", "medication management", "supervised
personal care", "assuring emergency medical care"
and developing a "service plan") which appear throughout
the proposed rules are "nursing" services, and need to
be performed, taught, and/or supervised or delegated by a registered
nurse, depending on the residents' needs.
The following rule in the Public Health Code seems to support the
concept that due to the nature of the care that is being provided
in HFA, it does need to include some degree of professional nursing:
Pursuant to 333.20141 (3) of the Public Health Code (Act 368 of
1978, as amended)
"A health facility or agency shall have the physician; professional
nursing; health professional, technical and supportive personnel;
the
technical diagnostics; and treatment services and equipment necessary
to
assure the safe performance of the health care undertaken by or
in the facility
or agency."
At a minimum, I would suggest the insertion of a new "(c)"
to R 325.1921 Governing bodies, administrators and supervisors as
follows: "Assure that service plans, supervised personal care,
and supervision are provided to residents under the supervision/delegation
of a Registered Nurse (in an employment or consultative position)
as specified by MCL 333.17201 for all residents who have intermittent
acute episodes of illness, an advanced stage of chronic disease
that requires medical intervention and/or a cognitive impairment".
Simply stated, it takes the involvement of registered nurses for
owners, operators or Boards of HFAs to even begin to implement and
maintain systems to achieve optimal physical, emotional and spiritual
well-being of their residents - which is exactly what residents
and families expect and are paying for.
A better description is needed for the role of the LPN.
In addition, "licensed practical nurse" must be deleted
from R 325.1801(12): Definitions of a Licensed Health Care Professional.
PA 368 of 1978 MCL 333.17201 (b) clearly defines LPNs as a sub-field
of nursing and requires that LPNs practice only under the supervision
of a registered professional nurse, physician, or dentist. The Michigan
Public Health Code prohibits LPNs from supervising or delegating
nursing acts, tasks, or functions.
The proposed regulations are unclear and do not address minimum
safety issues.
The cost of general liability insurance in the long term care industry,
which includes HFAs, has risen dramatically in the past year. Recent
verdicts against assisted living or residential care facilities
have ranged from $150,000 - $1,000,000 for personal injury/negligence
cases, patient discrimination, medical malpractice and/or failure
of duty to monitor2. Small 45 bed HFAs have experienced general
liability insurance premium increases of $15,000 or more last year
alone.
HFAs can no longer afford to ignore their responsibility to keep
residents safe. Revised regulations which clarify levels of care,
staffing levels and qualifications, special care or service availability,
and participation by health care professionals in the planning and
oversight of services would help immensely.
As we have seen, many clauses in the proposed regulations are vague
and undefined. Without clearer safety standards for providers, surveyors,
residents and families alike to use when disputes arise, there will
be increased incidents of resident injury and more lawsuits against
HFAs.
R 325.1924 Reporting incidents, accidents and elopement does not
encourage HFAs to utilize internal Incident/Accident reports as
the "cornerstone " of their own risk management program.
When only "reportable" events are required, a home may
miss the opportunity to collect and analyze even minor events, such
as falls or medication errors that do not result in injury, to prevent
recurrence and make system improvements.3 Revised regulations need
to be more clear i.e., revise
R 325.1901 (17) Definition: Reportable Incident/accident as to what
constitutes an incident or an accident in a HFA, and then differentiate
between "reportable" events and events that can and should
be documented for internal purposes only.
As Americans, we all cherish the right to exercise control over
ourselves and our affairs. My intention is not for us to over-regulate
HFAs. However, as health, financial resources and decision-making
skills wane, older adults become more vulnerable and need protection
from adverse consequences of their potentially unwise decisions
and actions. The need to protect the vulnerable and at the same
time protect their right to autonomy does present a regulatory dilemma.
One mechanism accepted in about a dozen states as a way of balancing
these competing interests is the concept of negotiated or shared
risk.4 The goal of a negotiated risk agreement is to have a resident
or their designated representative and the facility reach consensus,
so that facilities support and respect individual autonomy without
abandoning their responsibility to safeguard residents from undue
risk of harm. Adding regulatory language that includes parameters
for negotiated risk agreements would definitely help reduce the
trauma and expense of lawsuits.
Conclusion
On behalf of older adults in Michigan, I urge you not to adopt
these proposed regulations. We need to look through the eyes of
consumers who are trying to match an older adult's current and anticipated
needs with the services provided or offered in all types of assisted
living environments. We need to analyze existing regulations in
both HFA and Adult Foster Care Homes and come up with some new definitions
and standards that make sense to everyone for this housing-health
care hybrid that is evolving. We need to incorporate the research
we have, including the recommendations from the national Assisted
Living Workgroup and lay a more solid framework for the future.
We need to take the time to go back to the drawing boards and do
what is right to help assure safety and quality of life for our
older adults in Michigan.
References
1 The Assisted Living Workgroup. (2003). Guidelines for federal
and state policy, state regulations, and operations: A report to
the US Senate Special Committee on Aging.
2 Assisted Living: A legal and Regulatory Snapshot. (November,
1997). ECRI Continuing Care Risk Management, Legal and Regulatory
8.
3 Event Reporting. (July, 2003). ECRI Continuing Care Risk Management,
Quality Assurance and Risk Management 7.
4 Assisted Living: Liability and Regulatory Issues. (March, 2002).
ECRI Continuing Care Risk Management, Quality Assurance and Risk
Management 10.1.
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