Guidelines for Involuntary Detention Investigations in Nursing Facilities

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.

General Guideline

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).

Specific Guidelines

  1. When possible, ITA investigations of nursing facility residents should occur at the nursing facility so environmental factors can be observed. A voluntary admission is preferred to an involuntary admission. Initial recommendations need to address safety issues for all residents.
  2. It may be appropriate for the investigating DMHP to request staff of the nursing facility to provide a medical examination, including lab work, to rule-out health problems which can lead to behavior problems. The medical assessment information should rule out behavioral problems produced by conditions such as infections, electrolyte imbalances, respiratory disorders, constipation, dehydration, hearing or visual impairments, and medication toxicity. Nursing facilities can also be requested by the DMHP to obtain a mental health evaluation by a psychiatrist or a geriatric mental health specialist prior to commitment, if the request is appropriate and does not cause imminent danger.
  3. When conducting an ITA investigation in a nursing facility, the resident’s legal representative, as well as the resident, should be involved as early as possible to explore lesser restrictive options and to protect the rights of the resident.
  4. When possible, investigate potential situational causes for the dangerous behaviors and attempt to determine what precipitated the problem. Explore all areas of reasonable accommodation before a detention occurs. Under OBRA, the reasonable accommodation includes “those adaptations of the facility’s physical environment and staff behaviors to assist residents in maintaining independent functioning, dignity, well-being, and self determination.” (HCFA Interpretive Guidelines). The DMHP may call the District Manager of Residential Care Services or the Ombudsman for clarification of this regulation, if necessary. The District Manager of Residential Care Services represents the licensing agency for nursing facilities and the telephone number is available through the nursing facility.
  5. Under extraordinary circumstances, a nursing facility may request an ITA investigation based on danger to self. The DMHP will need information regarding the resident, including the history of behavior and the resident’s comprehensive care plan. The DMHP should also review what reasonable methods have been considered by the facility to protect the resident from self harm.
  6. A detention may occur based on danger to others or others’ property when a resident poses a “Direct Threat” to the safety of others or their property. The term “Direct Threat” means significant risk that cannot be eliminated by a modification of policies, practices, or procedures or by the provision of auxiliary aides or services.” 42 USC 12182(b)(3).
  7. When detentions are based on grave disability, the DMHP must determine if the disability is caused by a mental disorder and ensure all appropriate lesser restrictive options have been attempted. After the DMHP determines the problem behavior is caused by a mental disorder and detention is essential to the resident’s health or safety, a detention may occur.
  8. As part of an ITA Investigation, the resident’s records at the nursing facility need to be reviewed. The investigating DMHP should review the following:
    1. A comprehensive care plan “for each resident that includes measurable objectives and timetables to meet a resident’s medical, nursing, mental, and psychosocial needs that are identified in the comprehensive assessment.” Washington Association of Designated Mental Health Professionals 388-97-090(2).
    2. Documentation of strategies to deal with problem behaviors as indicated by chart notes and updates of the resident’s comprehensive care plan.
    3. Information about the resident’s advanced directives, including their choice to accept or refuse treatment. WAC 388-97-065.
  9. Following all investigations in nursing facility residents, the DMHP should discuss recommendations and/or lesser restrictive options with the facility staff. Once a plan is developed, the DMHP must leave a progress note in the resident’s chart at the nursing facility. The progress note should include specific recommendations for consideration by the nursing facility. The DMHP could also use this opportunity to provide nursing facility staff with information on how best to approach the resident and implement the recommended care or treatment plan.
  10. At some point during an ITA investigation of a Medicaid eligible nursing facility resident, the DMHP should discuss the right of that resident to be readmitted to the first available, semi-private, sex-appropriate bed in the nursing facility. 42 USC 1396r(c)(2)(d). This right also exists when the resident is transferred because of an acute episode of mental illness, such as after an involuntary detention, but no longer needs hospitalization. 56 Federal Register 48,840 (9/26/91). The DMHP may call the District Manager of Residential Care Services or the Ombudsman for clarification of this regulation, if necessary.

Background Information

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.