68-11-803 - Type B civil monetary penalties Violation of enumerated patients' rights and nursing home standards. - Tennessee Statutes

68-11-803. Type B civil monetary penalties Violation of enumerated patients' rights and nursing home standards.

(a)  Type B violations directly impact the care of the patients in the nursing home and are of such clarity and specificity as to provide ample notice to all nursing homes and to the public of the acts prohibited and the conduct required.

(b)  A type B civil monetary penalty may be imposed whenever any of the following standards are violated and the violation need neither be repeated, nor found in multiple cases, before the penalty is assessed:

     (1)  No residents shall be willfully abused or neglected, as these terms are defined by § 71-6-102;

     (2)  No patient shall be transferred without a written order from the patient's physician, or through other legal processes, and without notification of next of kin, or authorized representative, if any;

     (3)  No patient shall be involuntarily transferred or discharged, except for the following reasons:

          (A)  Medical reasons;

          (B)  The patient's welfare or the welfare of the other patients; or

          (C)  Nonpayment, except as prohibited by the medicaid program;

     (4)  No involuntary transfer or discharge shall be made, until the nursing home has first informed the department and the area long-term care ombudsman;

     (5)  Facilities for isolating a patient shall be provided in every nursing home. The medical procedures and isolation techniques ordered by a physician shall be used in the care of those patients determined to be contagious. Provisions shall be made to care for any patient exposed to a contagious patient. An infection control procedure shall be developed and implemented;

     (6)  The nursing home shall have a full-time administrator, who is licensed in this state and who shall not function as the director of nursing. Any change of administrators shall be reported to the department within fifteen (15) working days. Any agreement to manage a nursing home must be reported to the department within fifteen (15) days of its implementation. However, no civil penalty shall be assessed under this section when the board for licensing health care facilities has granted, in a specific case, a temporary waiver of this requirement due to the unexpected absence of a full-time administrator when suitable interim arrangements have been made, or when the procedures of § 68-11-225 regarding unexpected loss of an administrator have been followed;

     (7)  The nursing service shall be under the direction of a full-time, licensed nurse;

     (8)  There shall be at least one (1) licensed nurse on duty at all times;

     (9)  There shall be at least two (2) nursing personnel on duty on each shift; and

     (10)  Each nursing home shall retain by written agreement a physician, licensed to practice in this state, to serve as a medical consultant.

(c)  A type B civil monetary penalty shall be imposed for violations of the following standards, only when the violation directly impacts the care of multiple patients, with such scope and magnitude as to clearly show consistent and willful neglect of the requirements, fundamental flaws in the facility's operation, knowing refusal to comply with the minimum standards, or willful inattention to the patient's basic needs:

     (1)  Body position of bed patients and chair-bound patients shall be changed at least every two (2) hours, day and night, and good body alignment maintained. Bony prominences and weight-bearing parts shall be bathed, dried and massaged, when needed and when not contradicted by a physician's orders;

     (2)  Patients who are incontinent shall have partial baths each time the bed or bed clothing has been wet or soiled. The wet or soiled linen and bed clothing shall be promptly replaced with clean, dry linen and clothing after being soiled. Rubber or plastic sheets shall be cleaned not less than once a week;

     (3)  Patients under restraint shall be checked every thirty (30) minutes and, every two (2) hours, shall have the restraints released, their position changed, and be exercised. They shall be offered toilet privileges at least every two (2) hours, or more frequently when requested by the patient;

     (4)  Restraints may be applied or administered to patients only on the signed order of a physician. The order must be for a specified and limited period of time and must document the necessity of the restraint. There shall be no standing orders for restraints. Locked restraints are prohibited. Where an emergency exists in which the failure to use restraints is likely to endanger the health or safety of the patient or others, the nurse in charge may use such nurse's judgment to use physical restraints when a physician cannot be immediately consulted, but a consultation and written order must be obtained as soon as possible;

     (5)  Restraints must be applied in a manner by which they can be speedily removed in case of fire or other emergency;

     (6)  Whenever a chemical restraint is administered, the patient shall be observed for adverse reaction and, if found, the drug shall be discontinued immediately and the physician notified;

     (7)  Each patient has the right to privacy during treatment and personal care;

     (8)  Patients who are ambulatory shall have baths or showers at least two (2) times each week;

     (9)  Patients who are bedfast shall have a sponge bath each day;

     (10)  Patients shall be weighed and their weight recorded at least monthly;

     (11)  Each patient shall be given regular personal attention and care of skin, hair, feet, nails and oral hygiene;

     (12)  Patients shall have clean clothing whenever needed and shall be kept free from odor;

     (13)  Medication shall be administered only by licensed medical or licensed nursing personnel;

     (14)  Medications administered shall be ordered by a duly-licensed physician or dentist;

     (15)  Medications, treatments and diet shall be carried out as prescribed;

     (16)  Assistance shall be provided to the patient in eating, whenever the patient is unable to eat without assistance;

     (17)  Whenever patients have medically-prescribed special diets, the menus for those patients must be planned by a registered dietitian;

     (18)  Special diets shall be prepared and served to comply with the physician's orders. Food intake shall be observed and recorded as a part of the patient's care;

     (19)  Three (3) meals shall be served to the patients daily, at recognized mealtimes. No more than fourteen (14) hours shall elapse between the supper and breakfast meals. Food shall be available for snacks and as ordered by the physician;

     (20)  Supplementary food and special diets shall be furnished as ordered in writing by the patient's physician;

     (21)  The water temperature in patient showers and bathing facilities shall not exceed one hundred twenty degrees Fahrenheit (120°F);

     (22)  No person shall be employed as a nurse assistant in a nursing home unless the person has either satisfactorily completed a training course approved by the board for licensing health care facilities or satisfactorily completes the training within four (4) months of initial employment by passing a practical examination and a written examination; and

     (23)  Nursing homes shall provide a minimum of two (2.0) hours of direct care to each patient every day, including four-tenths (0.4) hours of licensed nursing personnel time.

(d)  (1)  Whenever a type B civil monetary penalty is based upon a violation's direct impact upon multiple patients, as authorized in subsection (c), there shall be a rebuttable presumption that a violation exists whenever an error rate of twenty percent (20%) or more is shown for a three-month period.

     (2)  For the purpose of subdivision (d)(1), the error rate may be calculated according to pertinent standards, commonly accepted by the health care industry, or, when no standard has such acceptance, by dividing the number of errors found by the potential number of occurrences among all patients affected by the requirement, such as the number of restraints not released every two (2) hours divided by the product of the number of patients restrained multiplied by the number of restraint releases required during the period of the observation.

[Acts 1987, ch. 312, § 1; 1991, ch. 476, § 1; 1994, ch. 813, § 3.]