These guidelines are for DMHP’s to use during ITA investigations of nursing facility residents. The nursing facilities have separate regulations and guidelines which articulate their responsibilities and the rights of residents.
The Involuntary Treatment Act (ITA) is in effect throughout the State and ITA Investigations are appropriate in nursing facilities. The initial detention decision is made by County Designated Mental Health Professionals (DMHP'S). Other mental health professionals, who are not specifically MHP'S, do not have the authority to involuntarily detain someone; nor does a guardian, family member or holder of a durable power of attorney. RCW 11.92.043(5); RCW 11.94.010(3). DMHP'S are bound by state law, which requires the exhaustion of less restrictive alternatives prior to invoking the power of initial detention.
ITA investigations in nursing facilities should be comprehensive and take appropriate State and Federal legislation into account. Evaluations of nursing facility residents should, whenever possible, occur in the nursing facility. The staff at the nursing facility should be consulted both during information gathering and in making recommendations. Nursing facilities are responsible to protect all residents in their facility, both from other residents and from themselves. Under very limited circumstances, “a restraint may be used in a bona fide emergency situation when necessary to prevent a person from inflicting injury upon self or other.” 388-97-075(2)(b). The nursing facility “shall ensure sufficient numbers of appropriately qualified and trained staff are available to provide necessary care and services safely under routine conditions, as well as fire, emergency, and disaster situation.” 388-97-165(1)(a).
The Background Information section of the Guidelines is intended only as a brief overview of very complex rules and regulations concerning mental health services in nursing facilities. For a complete understanding of the various rules and regulations, see the original text. The District Manager of Residential Care Services or the local Ombudsmen can also be called for clarification of Washington Association of Designated Mental Health Professionals 388-97, OBRA, or other State and Federal legislation pertaining to nursing facilities.
The primary federal legislation concerning nursing facilities is the Omnibus Reconciliation Act of 1987 and is generally referred to as “OBRA”. The agency which enforces OBRA is the Health Care Financing Administration (HCFA). Within Washington, the agency which enforces nursing facility laws and regulations is the Department of Social and Health Services (DSHS). The overall focus of OBRA is for nursing facilities to provide resident centered, dignified care that maximizes the potential of each resident.
The primary Washington State Laws dealing with nursing facilities are RCW 18.51 which addresses Licensing, RCW 74.42 which is the state’s Operating Standards for resident care, and WAC 388-97, the state’s Regulations. State law requires nursing facilities to develop written policies governing all services provided by the facility, including: use of physical and chemical restraints; when to recommend initiation of guardianship proceedings under Chapter 11.88 RCW; admission, transfer, or discharge; procedures for residents to refuse treatment; and emergencies. RCW 74.42.430. Under WAC 388-97-055, the responsibility of a nursing facility for obtaining informed consent for health care decisions for residents is addressed and includes the use of a Guardian, a Durable Power of Attorney, or relatives as per RCW 7.70.065.
The Americans with Disabilities Act (ADA), 42 USC 12101-12213, prohibits discrimination based on physical or mental disability and includes residents in nursing facilities. Nursing facilities may not discriminate in the admission, transfer or discharge of a prospective resident or resident based on his or her disability. 42 USC 12182(a). Under the ADA, and other federal anti-discrimination laws, dementia is a mental disability. Nursing facilities are expected to provide training for their staff about care for residents with cognitive impairments and how to accommodate resident needs. 42 USC 1396r(b)(5)(E). Under the ADA, a Nursing Facility does not have to reasonably accommodate an individual who poses a “Direct Threat” to the health or safety of others.
RCW 71.05, the state’s Involuntary Treatment Act (ITA), authorizes the involuntary civil commitment of individuals who, as a result of a mental disorder, are gravely disabled, present a likelihood of serious harm to self, others or other’s property, or present an imminent danger because of being gravely disabled. RCW 71.05.020, .150. Persons committed as “gravely disabled” must be gravely disabled as a result of a mental disorder and not because of other factors. In re Labelle, 107 Wn.2d 196, 205 (1986). Persons who are suffering a severe deterioration in routine functioning cannot be detained unless it is shown “to be essential to an individual’s health or safety.” In re Labelle, id. at 208. A nursing home resident is not “gravely disabled” if his or her unmet needs are ones the nursing home is legally obligated to meet. Involuntary commitment is appropriate if an emergency exists that cannot, in a reasonable period of time, be adequately resolved through appropriate less restrictive interventions. DMHP’s are bound by state law, which requires the exhaustion of less restrictive alternatives prior to invoking the power of involuntary commitment. RCW 71.05.010, .150(1), .240; In re Harris, 98 Wn. 2d 276, 288(1982).
OBRA requires nursing facilities to assess each resident, prepare a comprehensive plan of care, and provide or arrange for the services and activities necessary to meet each resident’s physical, mental, and psychosocial needs. WAC 388-97-085 and -090. This includes the provision of services and treatment for residents who display mental or psychosocial adjustment difficulties and the provision of rehabilitative services for mental illness. 42 CFR 483.25(f). HCFA says “Appropriate treatment for mental adjustment difficulties may include crisis intervention services, individual, group or family psychotherapy, drug therapy and training in monitoring of drug therapy and other rehabilitative services.” HCFA Interpretive Guidelines.
The long-term care Ombudsman Program was established by Congress in the Older Americans Act, with the relevant provisions found at 42 USC 3058. The Ombudsmen are independent resident advocates, authorized by federal and state law, and are excellent resources and problem solvers for nursing facilities and DMHP’s conducting ITA investigations of nursing facility residents. They have access to considerable materials concerning restraints, dementia, and resident rights. Unfortunately, not all nursing facilities have an ombudsman assigned to them. To find out if a particular nursing facility has an Ombudsman and who it is, call the State’s Long-Term Care Ombudsman Program at 1-800-562-6028.
Nursing facilities are required to meet resident’s needs which are less intensive than hospitalization. HCFA has said facilities “must provide services according to the provisions of OBRA.” 56 Federal Register 48839 (Sept. 26, 1991). Residents who allegedly pose a safety threat should not be transferred if the basis for the threat can be eliminated or acceptably minimized through reasonable accommodations or by compliance with OBRA. Such efforts are required by the ADA and the Fair Housing Amendments Act, as well as by OBRA. Before a transfer or discharge, the facility must give the resident and a family member or legal representative a written notice, specifying the reason for the transfer/discharge, the resident’s fair hearing rights, the address of the ombudsman, and other information specified in the federal law. 42 CFR 483.12(a)(4), (6). All residents have a right to appeal the transfer or discharge in a fair hearing. 42 CFR 483.204. An appeal will stop the discharge, pending the outcome of the fair hearing. WAC 388-97-270.
RCW 70.124.030(1) states “when any practitioner, social worker, psychologist, pharmacist, employee of a nursing home, employee of a state hospital, or employee of the department has reasonable cause to believe that a nursing home or state hospital resident has suffered abuse or neglect, the person shall report such incident, or cause a report to be made, to either a law enforcement agency or to the department as provided in RCW 70.124.040.” If, during the course of an ITA Investigation in a nursing facility, a DMHP has cause to believe any resident has suffered abuse or neglect, the incident shall be reported by calling 1-800-562-6078. When making a report, you will be asked to leave a message giving details of the possible abuse or neglect.
NOTE: These Guidelines started with a discussion on October 27, 1990, at a WADMHP conference and developed into the present document with the help and input of many individuals and organizations from across the state. On September 7, 1996, the WADMHP Executive Board recommended adoption of the Guidelines by the WADMHP membership. The Guidelines were adopted by the members at the WADMHP Fall Conference, October 25, 1996.