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Defending the MDS-From Regulators and Litigators

November 1, 2003
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Nothing less than accuracy, completeness and timeliness will do BY BETH A. KLITCH, BA, FACHCA
Defending the MDS-From Regulators and Litigators

Poorly prepared MDSs are exposing facilities to major new risks

BY BETH A. KLITCH, BA, FACHCA It shouldn't be surprising that the Minimum Data Set (MDS) has become one of the most closely reviewed documents in a nursing home resident's clinical record. The MDS incorporates physician documentation, such as medical diagnoses; summarizes physical, occupational, and speech therapy needs; and includes assessments and care plans based upon input from dietitians, social workers, activities professionals, and nurses. The MDS is not only the most comprehensive overview of residents' conditions, it also spotlights declines in residents' conditions from one assessment period to the next. This obviously alerts regulators, auditors, and litigators to potential poor quality of care. This comprehensive overview poses threats to nursing homes that are more wide-ranging than perhaps many realize. The more well-known basics, of course, are that state and federal surveyors may cite deficiencies for failures in assessment, lack of timely assessment, failures in care planning, and failures to implement care plans in accordance with F Tags 271-287 under the Resident Assessment regulatory grouping. These deficiencies in turn may lead to assignment of scope and severity levels all the way up to J, K, and L, or Immediate Jeopardy (IJ). (Deficiencies in this regulatory grouping are never cited as Substandard Quality of Care [SqoC]. SqoC deficien-cies may only be cited for violations of F Tags 221-226 [Resident Behavior and Facility Practices], 240-258 [Quality of Life], and 309-333 [Quality of Care], and only when these deficiencies are assigned a scope and severity rating of F, H, or I.) All this leaves facilities open to serious enforcement actions, such as denial of payment for new admissions, civil monetary penalties, and termination from the Medicare and Medicaid programs.

However, I think there is a more subtle threat posed by MDS-related deficiencies: the phenomenon of regulators "cross-referencing" the facts cited in an MDS deficiency to a Quality of Care deficiency such as pressure sores, inadequate nutrition, or dehydration. Once the fact pattern describes inadequate or inaccurate assessment or care planning, it is not a huge leap for a survey or to cite the quality-of-care consequence of that practice. As a result, surveyors may use an example of inadequate assessment to write as many as six or seven additional deficiencies, potentially resulting in a citation of SqoC and major penalties.

Here's an example-an excerpt of an assessment deficiency cited at F276-483.20(b)(5)-COMPREHENSIVE ASSESSMENTS, which states that the nursing facility must examine each resident no less than once every three months (quarterly) and as appropriate, and revise the resident's assessment to ensure its continued accuracy: Based on clinical record review and interviews with administrative staff, it was determined that the facility failed to complete the Minimum Data Set (MDS) resident assessments, at least quarterly, to identify changes in residents' conditions and to update care plans to meet the residents' needs for 9 of 18 residents. The findings include:
  • Review of Resident R48's clinical record revealed diagnoses of dementia, CVA (stroke), CHF (heart failure), and hypertension (high blood pressure). This resident was due for a quarterly review in October 2002. There was no evidence to indicate that the review was conducted.
  • Review of Resident R57's clinical record revealed diagnoses of diabetes, hypertension (high blood pressure), and dementia with agitation. There was no quarterly reassessment or interdisciplinary care plan updated and signed by a registered nurse assessment coordinator until November 20, 2002 (more than four months later).
  • Clinical record review revealed that Resident R5 had diagnoses of diabetes, hypertension (high blood pressure), aphasia (difficulty with speech), and amputations to both legs. The most recent MDS annual assessment had been completed May 30, 2002. The resident's quarterly assessments for August 2002 and November 2002 were not available for review. Interview with the director of nursing on November 22, 2002, confirmed that the quarterly assessments were not completed.
  • A review of Resident R9's clinical record revealed that the resident had diagnoses of CVA (stroke), diabetes, dementia, and anemia. The MDS assessment dated August 18, 2002, was the most recent assessment completed. As confirmed during an interview with the nursing supervisor on November 21, 2002, at 3:30 p.m., there was no other evidence available that a current assessment was completed.
The above deficiency was cross-referenced to F279, F282, F309, and F328, resulting in SqoC and imposition of a civil monetary penalty of $5,500 per day for 41 days, totaling more than $200,000.

The Litigation Threat
A second threat posed by the MDS is that plaintiffs' attorneys may introduce evidence of inadequate or inaccurate assessment and care planning in civil lawsuits. Pointing out errors or inconsistencies in the MDS to a jury panel may bolster plaintiffs' claims of negligence or malpractice. Once jurors are shown examples of inaccuracy or incomplete assessment, it is all the more likely that they will believe other allegations of poor quality care.

Let's examine some claims based upon assessment deficiencies that were introduced in a recent civil case: F272 483.20 RESIDENT ASSESSMENT

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