La. Admin. Code tit. 50 § II-10161

Current through Register Vol. 50, No. 11, November 20, 2024

Section II-10161 - General Provisions

A. The resident has a right to a dignified existence, self-determination, and communication with and access to persons and services inside and outside the facility. A facility must protect and promote the rights of each resident.

B. Exercise of Rights

1. The resident has the right to exercise his or her rights as a resident of the facility and as a citizen or resident of the United States.

2. The resident has the right to be free of interference, coercion, discrimination, and reprisal from the facility in exercising his or her rights.

3. In the case of a resident adjudged incompetent under the laws of a state by a court of competent jurisdiction, the rights of the resident are exercised by the person appointed under state law to act on the resident's behalf.

C. Civil Rights Act Of 1964 (Title VI)

1. Title VI of the Civil Rights Act of 1964 states No person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or subjected to discrimination under any program or activity receiving federal financial assistance.

2. Nursing facilities shall meet the following criteria in regard to the above-mentioned Act.

a. Compliance. Facilities shall be in compliance with Title VI of the Civil Rights Act of 1964 and shall not discriminate, separate, or make any distinction in housing, services, or activities based on race, color, or national origin.

b. Written Policies. Facilities shall has written policies and procedures that notify the community that admission to the facility, resident care services, and other activities are provided without regard to race, color, or national origin.

c. Community Notification. Facilities shall notify the community that admission to the facility, resident care services, and other activities are provided without regard to race, color, or national origin. Notice to the community may be given by letters to and meeting with physicians, local health and welfare agencies, paramedical personnel, and public and private organizations having interest in equal opportunity. Notices published in newspapers and signs posted in the facility may also be used to inform the public.

D.Section 504 Of The Rehabilitation Act Of 1973. Facilities shall comply with Section 504 of the Rehabilitation Act of 1973 which states the following: No qualified handicapped person shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity which receives or benefits from federal financial assistance.

E. Age Discrimination Act of 1975. This Act prohibits discrimination on the basis of age in programs or activities receiving federal financial assistance. All facilities must be in compliance with this Act.

F. Notice Of Rights and Services. All residents or legal representative shall sign a statement that they have been fully informed verbally and in writing in a language that the resident understands of the following information prior to or at the time of admission and when changes occur during their stay in the facility:

1. the facility's rules and regulations;

2. their rights;

3. their responsibilities to obey all reasonable rules and regulations and respect the personal rights and private property of other residents;

4. rules for conduct at the time of their admission and subsequent changes during their stay in the facility;

a. changes in resident rights policies shall be conveyed both verbally and in writing to each resident at the time of or prior to the change, and acknowledged in writing.

b. the resident or his/her legal representative has the right:

i. upon an oral or written request to access all records pertaining to himself or herself including clinical records within 24 hours; and

ii. after receipt of his/her records for inspection to purchase, at a cost as set forth in LA R.S. 40:1299.96, photocopies of the records or any portions of them upon request and two working days advance notice to the facility;

5. the resident has the right to be fully informed in a language that he/she can understand of his/her total health status including but not limited to his/her medical condition;

6. the resident has the right to:

a. refuse medication and medical treatment including a physician visit, other than to discover and prevent the spread of infection of contagious disease to protect environmental health and hygiene or otherwise indicated by the attending physician and to be informed of the consequences of such actions; and

b. refuse to participate in experimental research;

c. refuse to formulate an advance directive;

7. exercise of this resident's right does not include the refusal to perform reasonable hygiene measures (i.e., bathing, shampooing, oral care);

a. the facility must:

i. inform each resident who is entitled to Medicaid benefits in writing at the time of admission to the nursing facility of when the resident becomes eligible for Medicaid; of

(a). the items and services that are included in nursing facility services under the State Plan and for which the resident may not be charged by providing a copy of the Department of Health and Hospitals Blue Book;

(b). those other items and services that the facility offers and for which the resident may be charged, and the amount of charges for those services;

ii. inform each resident when changes are made to these items and services;

iii. inform each resident before or at the time of admission and periodically during the resident's stay, of services available in the facility and of charges for those services, including any charges for services not covered under Medicare/Medicaid or by the facility's per diem rate;

iv. furnish a written description of legal rights which includes:

(a). a description of the manner of protecting personal funds as outlined in this document on pages 216 through 220;

(b). a description of the requirements and procedures for establishing eligibility for Medicaid, including the right to request an assessment which determines the extent of a couple's non-exempt resources at the time of institutionalization and attributes to the community spouse an equitable share of resources which cannot be considered available for payment toward the cost of the institutionalized spouse's medical care in his/her process of spending down to Medicaid eligibility levels;

(c) a posting of names, addresses, and telephone numbers of all pertinent state client advocacy groups such as the Bureau of Health Services Financing-Health Standards Section, the State Ombudsman Program, the Protection and Advocacy Network, and the Medicaid Fraud Control Unit;

(d) a statement that the resident may file a complaint with the Bureau of Health Services Financing-Health Standards Section concerning resident abuse, neglect, and misappropriation of resident property in the facility;

v. inform each resident of the name, specialty, and way of contacting the physician responsible for his/her care;

vi. prominently display in the facility written information and provide to residents and applicants on admission oral and written information about how to apply for and use Medicare and Medicaid benefits and how to receive refunds for previous payments covered by such benefits.

G. Notification of Changes. A facility must inform or make a reasonable attempt to notify the resident's legal representative or interested family member when there is:

1. an accident involving the resident which results in injury and has the potential for requiring physician intervention;

2. a significiant change in the resident's physical, mental, or psychosocial status (i.e., a deterioration in health, mental, or psychosocial status in either life-threatening conditions or clinical complications);

3. a need to alter treatment significantly (i.e., a need to discontinue an existing form of treatment due to adverse consequences or to commence a new form of treatment;

4. a decision to transfer or discharge the resident from the facility;

5. documentation of the notification or attempts in notification shall be entered in the medical record.

a. The facility must also notify the resident and the resident's legal representative or sponsor when there is:

i. a change in room or roommate assignment. Notification must be given at least 24 hours before the change and a reason for the move shall be given to all parties. Documentation of this shall be entered in the medical record;

ii. a change in resident rights under state law or regulations.

H. Involuntary Admittance. Residents shall not be forced to enter or remain in a nursing facility against their will unless they have been judicially interdicted.

I. Delegation Of Rights

1. Resident rights and responsibilities are passed on to a guardian, next of kin, sponsor, responsible party, or sponsoring agency in the following instances:

a. when a competent individual chooses to allow another to act for him/her. (Example: Power of Attorney);

b. when the resident is adjudicated incompetent in accordance with state law.

2. The physician and the facility must be aware of, address, and document specific information concerning the incapability of the resident to understand and exercise their rights even if the resident has been adjudicated incompetent.

3. The following documentation is required:

a. administrative documentation;

i. the relation of the resident to the person assuming his rights and responsibilities;

ii. that the responsible person can act for the resident; and

iii. the extent of a guardianship or Durable Power of Attorney;

b. physician documentation;

i. a statement that the resident is not capable of understanding and exercising his rights;

ii. specific causative and/or contributing medical diagnosis(es); and

iii. medical observations and tests which support the diagnosis(es).

EXAMPLES: Alzheimer's Disease and/or Organic Brain Syndrome

J. Management Of Resident Finances. Residents shall have the right to the following options regarding their personal financial affairs.

1. They shall be allowed to manage their personal financial affairs or to designate someone to assume this responsibility for them. They shall be permitted to spend their personal funds as they desire unless interdicted and/or under a curatorship. There shall be no limitations on the use of personal funds so long as the funds are not used to pay for anything covered by the Medicaid program.

2. There is no obligation for a resident to deposit funds with the facility. However, the facility is obliged to hold, safeguard, and account for personal funds upon written request by the resident or his or her representative. This delegation may be only to the extent of the funds held in trust by the facility. The facility does not have the option of refusing to hold, safeguard, or manage resident funds. The facility must comply with the wishes of the resident once written authorization is received.

3. The resident, his or her legal representative shall have access through quarterly statements and on request financial records if the facility has been delegated the responsibility for handling their financial affairs. Upon request the facility shall provide a list or statement regarding personal funds to the parish/regional office of Bureau of Health Services Financing with the resident's written consent. A copy shall be retained in the resident's record.

a. The nursing facility may not require the resident to deposit his/her personal funds with the facility.

b. Once the facility receives the written authorization from the resident, it must safeguard and account for such personal funds under a system established and maintained by the facility. The facility shall have written policies and procedures to protect resident funds. Current facility records shall reflect if residents handle their own funds or the names of parties designated to handle their personal funds.

c. The facility may make arrangements with a federal or state insured banking institution to provide banking services, but the responsibility for the disbursements, quality, and accuracy of required records remains with the facility.

NOTE: Any charge for this service is included in the facility's basic rate.

d. Upon receipt of written authorization of a resident, the facility must manage and account for the personal funds of the resident deposited with the facility as follows.

i. Deposit. The facility must deposit any amount of personal funds in excess of $50 with respect to a resident in an interest bearing account (or accounts) that is separate from any of the facility's operating accounts and credit all interest earned on such separate account to such account. The facility may maintain resident's personal funds that do not exceed $50 in a non-interest bearing account, interest bearing account, or petty cash fund.

ii. Accounting and Records. The facility shall assure a full and complete separate accounting of each such resident's personal funds, maintain a written record of all financial transactions involving the personal funds of a resident deposited with the facility and afford the resident (or legal representative of the resident) reasonable access to such record.

iii. Notice of Certain Balances. The facility must notify each resident receiving medical assistance under Medicaid Program State Plan when the amount in the resident's account reaches $200 less than the dollar amount of resources allowed under SSI policy and the fact that if the amount in the account (in addition to the value of the resident's other non-exempt resources) exceeds the SSI resource limit the resident may lose eligibility for such medical assistance or for benefits under Title XVI (SSI) and Medicaid.

K. Collective Bank Account(s). Collective bank account(s) shall:

1. be for the resident's money;

2. be separate and distinct from all nursing facility accounts;

3. consist of resident's money and shall not be commingled with the facility's operating account; and

4. be regular checking account(s) or interest-bearing account(s). Interest shall be computed to each resident on the basis of actual earnings or end-of-quarter balance.

a. There shall be a monthly reconciliation between the collective or individual bank accounts and the individual resident account(s).

b. The individual financial record must be available through quarterly statements and on request to the resident or his/her legal representative.

L. Resident Fund Accounting System. The facility shall maintain current written individual records of all financial transactions involving the personal funds which the facility is holding, safeguarding, and accounting. The facility shall keep these records in accordance with requirements of law for a trustee in a fiduciary relationship which exists for these financial transactions. The facility shall ensure the soundness and accuracy of the resident fund account system.

1. The facility shall develop the following procedures to ensure a sound and workable fund accounting system.

2. A file shall exist for each participating resident. Each file or record shall contain all transactions pertinent to the account, including the following information:

a. money received:

i. source;

ii. amount; and

iii. date;

b. money expended:

i. purpose;

ii. amount; and

iii. date of all disbursements to or in behalf of the resident.

3. All monies, either spent on behalf of the resident or withdrawn by the resident or shall be supported by a receipt and cancelled check or signed voucher on file.

NOTE: It is recommended that the functions of actual cash receipt disbursements and recording of cash disbursements be separate.

4. Receipt for disbursements shall include the following information:

a. the date of the disbursement;

b. the amount of the disbursement;

c. the signature of the resident or responsible party; and

d. purpose and payee of disbursement.

NOTE: A running list of disbursements and receipts may be kept for posting on ledger sheets or individual vouchers. The resident's individual ledger sheet shall constitute the necessary receipt in situations where no check has been drawn if the ledger sheet is dated, shows the amount, resident's signature, and has the person's signature responsible for the resident's funds. Cancelled checks are sufficient receipt for disbursements if coupled with information regarding the purpose of the expenditure. When a resident is unable to sign the ledger, it should be signed by the custodian of the fund and two witnesses.

5. The file shall be available to the resident or his or her legal representative upon request during the normal administrative work day.

6. Cash on Hand. The facility shall have a minimum of cash on hand to meet residents' spending needs. Cash on hand shall be maintained on the imprest petty cash system.

7. Ownership of Accounts. The account shall be in a form which clearly indicates that a facility does not have an ownership interest in the funds.

8. Insured Accounts. The account shall be insured under federal and state law.

9. Distribution of Interest. The interest earned in any pooled interest-bearing account shall be distributed in one of the following manners:

a. prorated to each resident on an actual interest-earned basis;

b. prorated to each resident on the basis of his end-of-quarter balance.

10. Surety Bond. The facility shall purchase a surety bond or otherwise provide assurance satisfactory to the Secretary to assure the security of all personal funds of residents deposited with the facility.

11. Closing a Discharged Resident's Fund Account. Nursing facilities shall refund the balance of the resident's personal funds when a resident is discharged. The amount shall be refunded by the end of the month following the month of discharge. Date, check number, and "to close account" should be noted on the ledger sheet.

12. Conveyance Upon Death. Legally the funds should be turned over to the executor of the estate. Within three months the legal representative or sponsor should notify the facility as to whom the executor is. The executor must then open succession. The facility must convey within 30 days the balance of the resident's personal funds account and the unused portion of any advance room and board payment, and a final accounting of those funds to the individual or person administering the resident's estate. In lieu of a lengthy legal process, a facility can obtain an "Affidavit of Small Succession" from the Unclaimed Property Section at the Louisiana Department of Revenue and Taxation for estates involving less than $50,000 and where no real estate is involved. This will allow for transfer of assets to the heirs without a waiting period.

a. The following shall apply in regard to a deceased resident's unclaimed personal funds.

i. If the facility fails to receive notification of the appointment or other designation of a responsible party (legal guardian, administrator or the estate, or person placed in possession by court judgement) within three months after the date of death, the facility shall retain the funds and notify the Public Administrator or Curator of Vacant Successions in the parish where the facility is located. The notice shall provide detailed information about the decedent, his next of kin, and the amount of funds.

ii. The facility shall continue to retain the funds until a court order specifies that the funds are to be turned over to the Public Administrator or Curator of Vacant Successions.

iii. If neither order nor judgement is forthcoming, the facility shall retain the funds for five years after date of death.

iv. Thereafter, the facility is responsible for delivering the unclaimed funds to the Secretary of Revenue and Taxation.

v. A termination date of the account and the reason for termination shall be recorded on the resident's participation file. A notation shall read, "to close account". The endorsed cancelled check with check number noted on the ledger sheet shall serve as sufficient receipt and documentation.

b. Nursing Facility Residents' Burial Insurance Policy. "With the resident's permission, the nursing facility administrator or designee may assist the resident in acquiring a burial policy, provided that the administrator, designee, or affiliated persons derive no financial or other benefit from the resident's acquisition of the policy."

M. Specific Rights

1. Free Choice. The resident has the right to:

a. choose a personal attending physician;

b. obtain pharmaceutical supplies and services from a pharmacy of choice at their own expense or through Medicaid, provided the drugs are delivered timely to the facility and packaged compatibly with a facility's medication administration system;

c. be fully informed in advance about care and treatment and of any changes in that care or treatment that may affect the resident's well-being;

d. unless adjudged incompetent or otherwise found to be incapacitated under the laws of the state participate in planning care and treatment or changes in care and treatment; and

e. withhold payment for a physician's visit if the physician did not perform an examination;

f. to be returned to the nursing facility upon discharge from an acute hospital bed.

2. Privacy and Confidentiality

a. The resident has the right to personal privacy and confidentiality of his or her personal and clinical records.

b. Personal privacy includes accommodations, medical treatment, written and telephone communications, personal care, visits, and meetings of family and resident groups. This does not require the facility to provide a private room for each resident.

i. Privacy shall include:

(a). having closed room doors;

(b). having facility personnel knock on a closed door before entering their room except in an emergency situation or unless medically contraindicated;

(c). having privacy during toileting, bathing, and other activities of personal hygiene except as needed for safety reasons or assistance; and

(d). having privacy screens or curtains in use during treatment, bathing, toileting, or other activities of personal hygiene.

c. Except as provided in the next paragraph, the resident may approve or refuse the release of personal and clinical records to any individual outside the facility.

d. The resident's right to refuse release of personal and clinical records does not apply when:

i. the resident is transferred to another health care institution;

ii. record release is required by law; and

iii. requested by staff from the Department of Health and Hospitals.

e. Grievances. A resident has the right to:

i. voice grievances without discrimination or reprisal. Such grievances include those with respect to treatment which has been furnished as well as that which has not been furnished;

ii. prompt efforts by the facility to resolve grievances the resident may have, including those with respect to the behavior of other residents.

f. Examination of Survey Results. A resident has the right to:

i. examine the results of the most recent survey of the facility conducted by federal or state surveyors and any plan of correction in effect with respect to the facility. The results must be made available for examination by the facility in a place readily accessible;

ii. receive information from agencies acting as recipient advocates and be afforded the opportunity to contact these agencies.

g. Work. The resident has the right to:

i. refuse to perform services for the facility; and

ii. perform services for the facility if he/she chooses when:

(a). the facility has documented the need or desire for work in the plan of care;

(b). the plan specifies the nature of the services performed and whether the services are voluntary or paid;

(c). compensation for paid services is at or above the prevailing rates; and

(d). the resident agrees to the work arrangement described in the plan of care.

h. Mail. The resident has the right to privacy in written communications including the right to:

i. send and promptly receive mail that is unopened; and

ii. have access to stationary, postage, and writing implements at the resident's own expense.

i. Access and Visitation Rights. The resident has the right and the facility must provide immediate access by any resident to the following:

i. any representative of the Secretary of HHS;

ii. any representative of the state;

iii. the resident's individual physician;

iv. the State Long Term Care Ombudsman (established under section 307(a)(12) of the Older Americans Act of 1965);

v. the agency responsible for the protection and advocacy system for developmentally disabled individuals (established under part C of the Developmental Disabilities Assistance and Bill of Rights Act);

vi. the agency responsible for the protection and advocacy system for mentally ill individuals (established under the Protection and Advocacy for Mentally Ill Individuals Act);

vii. subject to the resident's right to deny or withdraw consent at any time, immediate family or other relatives of the resident;

viii. subject to reasonable restrictions and the resident's right to deny or withdraw consent at any time, others who are visiting with the consent of the resident; and

ix. visiting overnight outside the facility with family and friends in accordance with the facility policies, physician's orders, and Title XVIII (Medicare) and Title XIX (Medicaid) regulations without the loss of their bed. Home visit policies and procedures for arranging home visits shall be fully explained.

(a). The facility must provide reasonable access to any resident by any entity or individual that provides health, social, legal, or other services to the resident subject to the resident's right to deny or withdraw consent at any time.

(b). The facility must allow trained compensated representatives of the State Ombudsman to examine a resident's clinical records with the permission of the resident or the resident's legal representative and consistent with state law.

(c). Visiting hours shall be flexible taking into consideration special circumstances such as out-of-town visitors and working relatives and friends. Additionally, the facility shall arrange for critically ill residents to receive visitors other than during normal business hours.

j. Telephone. The resident has the right to have reasonable access to the use of a telephone where calls can be made without being overheard.

k. Personal Property. The resident has the right to retain and use personal possessions including some furnishings and appropriate clothing, as space permits, unless to do so would infringe upon the rights or health and safety of other residents.

l. Married Couples. The resident has the right to share a room with his or her spouse when married residents live in the same facility and both spouses consent to the arrangement.

m. Self-Administration of Drugs. An individual resident may self-administer drugs if the interdisciplinary team has determined that this practice is safe.

n. Choice of Roommate. Residents shall have the right to have their wish respected regarding choice(s) of roommate(s), insofar as possible and/or reasonable.

o. Smoking. Residents shall have the right to use tobacco at their own expense under the facility's safety rules and the state's applicable laws and rules unless the use of tobacco is medically contraindicated as documented in the medical record by the attending physician.

p. Alcoholic Beverages. Residents shall have the right to consume a reasonably amount of alcoholic beverages at their own expense unless the following conditions are present.

i. It is medically contraindicated as documented in the medical record by the attending physician.

ii. It is expressly prohibited by published rules and regulations of a facility owned and operated by a religious denomination which has abstinence from the consumption of alcoholic beverages as part of its religious beliefs.

iii. There is no disruption to other facility residents or staff.

q. Retiring and Rising. Residents shall have the right to retire and rise in accordance with reasonable requests if the following conditions are met:

i. they do not disturb others.

ii. they do not disrupt the posted meal schedule;

iii. upon the facility's request, they remain in a supervised area; and

iv. retiring and rising in accordance with their request is not medically contraindicated as documented in the medical record by the attending physician.

r. Participation in Resident and Family Groups

i. A resident has the right to organize and participate in resident groups in the facility.

ii. A resident's family has the right to meet in the facility with the families of other residents in the facility.

iii. The facility must provide a resident or family group, if one exists, with private space.

iv. Staff or visitors may attend meetings at the group's invitation.

v. The facility must provide a designated staff person responsible for providing assistance and responding to written requests that result from group meetings.

vi. When a resident or family group exists, the facility must listen to the views and act upon the grievances and recommendations of residents and families concerning proposed policy and operational decisions affecting resident care and lift in the facility.

s. Representative Payee

i. Residents receiving Social Security benefits shall have the right to make an application with the Social Security Administration to designate a representative payee.

ii. If residents receiving Social Security benefits are incapable of managing their personal funds and have no legal representative, the facility may notify the Social Security Administration and request that a representative payee be appointed.

N. Violation of Rights. Any person who submits or reports a complaint concerning a suspected violation of residents' rights or concerning services or conditions in a facility or who testifies in any administrative or judicial proceeding arising from such complaint, shall have immunity from any criminal or civil liability therefor unless that person has acted in bad faith with malicious purpose or if the court finds that there was an absence of a justifiable issue of either law or fact raised by the complaining party.

O. Bill of Rights. Resident Bill of Rights shall be prominently displayed in accessible areas at a proper height and in a size print which is appropriate to elderly individuals having impaired vision. The Bill of Rights shall include the following assurances in addition to the above mentioned rights. All facilities shall adopt and make public a statement of the rights and responsibilities of residents residing in the facility and shall treat all individuals in accordance with the provisions of the statement.

1. Each nursing facility shall provide a copy of the statement required by R.S. 40:20108(A) to each resident, sponsor, and/or the resident's legal representative upon or before admission to the facility and to each staff member. The statement shall also advise the resident, sponsor, and/or responsible party that the nursing facility is not responsible for the actions or inactions of other persons or entities not employed by the facility, such as the treating physician, pharmacist, sitter, or other such persons or entities employed or selected by the resident, sponsor, and/or responsible party. Each facility shall prepare a written plan and provide appropriate staff training to implement the provisions of R.S. 40:2010.6 et seq., but not limited to explanation of the following:

a. the resident rights and the staff's responsibilities in the implementation of those rights;

b. the staff's obligation to provide all residents who have similar needs with comparable services as required by state licensure standards.

2. Any violation of the residents' rights in R.S. 40:2010.6 et seq. shall constitute grounds for appropriate action by the Department of Health and Hospitals. Residents shall have a private right of action to enforce these rights as set forth in T.S. 40:2010.9. The state courts shall have jurisdiction to enjoin a violation of residents' rights and assess fines for violations not to exceed $100 per individual violation.

P. Civil and Religious Liberties. Residents shall have the right to civil and religious liberties including but not limited to the following:

1. knowledge of available choices;

2. the right to independent personal decisions;

3. the right to encouragement and assistance from facility staff in exercising these rights to the fullest extent possible;

4. the right to participate in social, religious, and community activities that do not interfere with the rights of other residents in the facility; and

5. the resident has the right to exercise his or her rights as a resident of the facility and as a citizen or resident of the United States.

Q. Freedom from Restraints and Abuse. Residents shall have the right to be free from verbal, sexual, physical or mental abuse, corporal punishment, involuntary seclusion, and any physical and chemical restraints imposed for the purpose of discipline or convenience and not required to treat the resident's medical symptoms. Bed-rails used during sleeping hours at the request of the resident's legal representative or responsible party are not restraints. Restraints may only be imposed:

1. to insure the physical safety of the resident;

2. only upon written order of a physician that specifies the duration, type of restraint, and circumstances under which the restraints are to be used except in emergency circumstances;

3. in case of an emergency, physical restraint may only be applied by a qualified licensed nurse who shall document in the medical record the circumstances requiring the necessity for use of the restraint;

4. in case of emergency, a chemical restraint may be used by a qualified licensed nurse if authorized by the attending physician. The necessity for the use of the chemical restraint shall be documented in the medical record as well a monitoring of vital signs after the drug has been administered. In this case, the attending physician shall be consulted immediately thereafter;

a. as needed or PRN antipsychotic drugs should only be used when the resident has a "specific condition" for which antipsychotic drugs are indicated and one of the following circumstances exists:

i. the as needed or PRN does is being used to titrate the resident's total daily dose up or down or is being used to manage unexpected harmful behaviors that cannot be managed without antipsychotic drugs. Under this circumstance, a PRN antipsychotic drug may be used no more than twice in any 7 days period without an assessment or the cause for the resident's behavioral symptoms and the development of a plan of care designed to attempt to reduce or eliminate the cause(s) for the harmful behavior;

5. psychopharmacologic drugs may be administered only on the orders of a physician and only as part of a plan (included in the written Plan of Care) designed to eliminate or modify the symptoms for which the drugs are prescribed (Applicable only to Medicaid residents.);

6. bedrails and geri-chairs, if used for the purpose of restricting free movement, are considered restraints. Before using such methods, the facility should first attempt to use less restrictive alternatives. If these alternatives are found to be ineffective in the context of treating the resident's medical symptoms, the facility may apply them within the context of individualized care planning. The facility should also monitor in a way that promotes the highest practicable physical, mental and psychosocial well-being of the resident. If the use is associated with a decline in the resident's functional ability, such as increased agitation, the interdisciplinary team should reassess the resident's needs;

7. if the restraint is used to enable the resident to attain or maintain his or her highest practicable level of functioning, a facility must have evidence of consultation with appropriate health professionals, such as occupational or physical therapists. The consultation should consider the use of less restrictive therapeutic intervention prior to using restraints for such purposes.

R. Housing

1. All residents shall be housed without regard to race, color, or national origin. Bi-racial occupancy of rooms and wards on a non-discriminatory basis shall be required.

2. Residents shall not be asked if they are willing to share a room with a person of another race, color, or national origin.

3. Resident transfers shall not be used to evade compliance with Title VI of the Civil Rights Act of 1964.

a. Open Admission Policy. An open admission policy and desegregation of facilities shall be required, particularly when the facility previously excluded or primarily served residents of a particular race, color, or national origin. Facilities which exclusively serve residents of one race have the responsibility for taking corrective action, unless documentation is provided that this pattern has not resulted from discriminatory practices.

b. Restricted Occupancy. A facility owned or operated by a private organization may restrict occupancy to members of the organization without violating Civil Rights compliance, provided membership in the organization and admission to the facility is not denied on the basis of race, color, or national origin.

S. Resident Services. All residents shall be provided medical, non-medical, and volunteer services without regard to race, color, or national origin. All administrative, medical, and non-medical services are covered by this requirement.

T. Facility Personnel

1. Attending physicians shall be permitted to provide resident services without regard to race, color, or national origin.

2. Other medical, paramedical, or non-medical persons, whether engaged in contractual or consultative capacities, shall be selected and employed in a non-discriminatory manner. Opportunity shall not be denied to qualified persons on the basis of race, color, or national origin.

3. Dismissal from employment shall not be based upon race, color, or national origin.

U. Advance Directives. Each resident shall be:

a. afforded the opportunity to participate in the planning of his medical treatment;

b. encouraged and assisted throughout his/her period of stay to exercise his/her rights as a patient and as a citizen; and

c. treated with consideration, respect,and full recognition of his/her dignity and individuality.

2. Nursing facilities must:

a. provide all adult individuals with written information about their rights under state law to make health care decisions including the right to accept or refuse treatment and the right to execute advance directives;

b. document in the resident's medical record whether or not he/she has signed an advance directive;

c. not discriminate against an individual based on whether he/she has executed an advanced directive; and

d. provide facility and community with education on advance directives.

NOTE: If an advance directive has been executed, a copy shall be kept in the medical record.

3. Definitions

a.Attending Physician-the physician who has primary responsibility for the treatment and care of the resident.

b.Declaration-a witnessed document, statement, or expression voluntarily made by the declarant, authorizing the withholding or withdrawal of life-sustaining procedures, in accordance with requirements of Louisiana Law. A declaration may be made in writing, orally, or by other means of nonverbal communication.

c.Life-sustaining Procedure-any medical procedure or intervention which within reasonable medical judgement, would serve only to prolong the dying process for a person diagnosed as having a terminal and irreversible condition. A "life-sustaining procedure" shall not include any measure deemed necessary to provide comfort care.

d.Physician-a physician or surgeon licensed by the Louisiana State Board of Medical Examiners.

e.Qualified Resident-a resident diagnosed and certified in writing as having a terminal and irreversible condition by two physicians, one of whom shall be the attending physician, who have personally examined the resident.

f.Terminal and Irreversible Condition-a condition caused by injury, disease, or illness which within reasonable medical judgement, would produce death and for which the application of life-sustaining procedures would serve only to postpone the moment of death.

4. Written Policy

a. All facilities shall have an appropriate written policy and procedure regarding the decision to have life-sustaining procedures withheld or withdrawn in instances where such residents are diagnosed as having a terminal and irreversible condition.

b. If the policies of a nursing facility preclude compliance with the declaration of a resident or preclude compliance with provisions pertaining to a representative acting on behalf of a qualified resident, the nursing facility shall take all reasonable steps to effect the transfer of the resident to a facility in which the provisions of his/her declaration can be carried out.

5. Facility Responsibility

a. Physician orders shall:

i. be based on the medical examination of the resident's immediate and long-term needs;

ii. document that the condition is terminal and irreversible;

NOTE: Two physicians must document that the resident has a terminal and irreversible condition ("Qualified Resident");

iii. prescribe a planned regimen of total care for the resident which shall include special exceptions to the treatment regimen.

b. Plan of care shall:

i. Include a statement indicating that a valid declaration has been made; and

ii. Include measures to ensure the comfort care of the resident during the dying process.

e. Nursing Notes. Charting shall be done as often as necessary but at least every eight hours during the time that life-sustaining procedures are withheld or withdrawn.

6. Declaration. The declaration may be executed at any time by the individual or legal representative. The declaration is not activated until two physicians determine that the resident has a terminal or irreversible condition. For purposes of clarity in the event the document must be executed, the resident should be advised that it should be specific as to what measures the resident does and does not want.

7. Do Not Resuscitate - DNR Order. If the responsible physician finds that resuscitation would be medically inappropriate, a Do Not Resuscitate (DNR) order becomes effective only upon the informed choice of a competent resident or by agreement of the family members as a class if the resident is incompetent. A signed DNR order must be witnessed by two persons not related by blood or marriage and who would not be entitled to any portion of the estate. The DNR is not a decision that can be made by a physician or facility committee acting alone.

La. Admin. Code tit. 50, § II-10161

Promulgated by the Department of Health and Hospitals, Office of the Secretary, Bureau of Health Services Financing, LR 22:34 (January 1996).

AUTHORITY NOTE: Promulgated in accordance with R.S. 46:153.