This week’s Ftag of the Week is F551 Rights Exercised by Representative, which is part of the Resident Rights regulatory group. This regulation addresses the resident’s right to designate a representative and this depends on the resident’s competency to consent or not.
Residents with Competency to Designate a Representative
Residents who have not been legally adjudged incompetent in a state court in accordance with state laws have the right to designate a representative to exercise the resident’s rights for him/her. The resident has the right to choose the extent that the representative may exercise those rights. Facilities are expected to ensure that the resident representative does not make decisions on behalf of the resident that exceed the rights set out by the resident. Since the facility must treat the resident representative’s decisions as though they are decisions of the resident, it is important to ensure that there is a sound system in place to know who the designated representative is and the scope of his/her decision making authority. Per the Interpretive Guidance at F551, facilities must ensure that there is documentation in place that shows that the representative has the necessary authority to make decisions.
In addition to not allowing the resident representative to overstep the limits on his/her decision-making capabilities, the facility also needs to ensure the resident remains involved in the decision-making process. The resident retains the right to exercise rights that were not delegated, including the right to revoke the representative’s right, unless state law does not permit this. Facilities should not “go around” competent residents to speak with their representatives in lieu of allowing the resident to retain decision-making rights as long as he or she is able to competently do so. Additionally, in cases where the facility believes that the representative may be making decisions that are not in the best interests of the resident, the facility needs to report the identified concerns as required under State law.
Residents without Competency to Designate a Representative
Residents who are not competent to designate a representative have a resident representative appointed for them in accordance with state laws. Court-appointed representatives exercise the resident’s rights to the extent that has been judged necessary. In these cases, the resident retains rights that are outside of the court-appointed representative’s decision-making authority. Facilities are expected to ensure that the resident is provided opportunities to participate in the care planning process (to the extent possible), and that the resident’s wishes and preferences are considered when the resident representative is exercising the resident’s rights. Per the IG, if a resident understands the risks, benefits and alternatives of a treatment and expresses a preference, then this should be considered to the extent possible.
The resident representative for residents who have been adjudged incompetent to designate a representative may be appointed several different types of representative. These include a person who has been authorized by state or federal law to act on behalf of a resident to assist with decision-making, provide financial management assistance, receive notifications or access medical/social/personal resident information. The representative may be a legal representative or a court-appointed guardian or conservator, depending on the circumstances and state laws. Facilities are responsible for verifying that court-appointed representatives have the necessary authority to make decisions based on the court’s decision.
Thinking About Survey
F551 has not been cited that frequently on survey in 2019, but surveyors have been provided with significant guidance in Appendix PP to help them identify problematic situations regarding the resident representative. Surveyors are expected to confirm that a resident’s rights have been delegated, and if so, if staff have been appropriately following the resident’s delegation of rights. This includes reviewing the resident record to verify that appropriate documentation is in place, which in many cases, is not. In reviewing what has been cited on survey, there are many instances where a resident who has been deemed incompetent has been the person who signed paperwork, or the paperwork that has been signed does not give authority to an individual who has been making decisions on behalf of the resident.
Here are some actual citations from this year:
- A resident deemed incompetent signed consent forms upon admission to the facility, and his court-appointed guardian signed the MOLST form. The facility was not sure if the guardian, who had been appointed five years prior, had the authority to make advance directives decisions (S/S: D)
- Review of a resident’s medical record identified that there was no Health Care Proxy form in place or documentation, including physician determination, that a resident was unable to make his/her own decisions, but all the paperwork was signed by people other than the resident. The resident was severely cognitively impaired and spoke a language other than English but had no designated representative in place (S/S: D)
- During interview, a resident told the surveyor that she had not seen her family in a long time, and said she would like to receive calls from the family and see them. The surveyor interviewed a staff member who stated that the resident’s Power of Attorney decided that the resident should not receive calls or visits from the family. The resident’s POA told staff he saw a pattern of the resident becoming agitated after communication with the family. The POA was not the resident’s guardian and the resident should have retained all of her rights since they had not been delegated by a court (S/S: D)
- F551 was even cited at an Actual Harm level (S/S: G) on a survey this year. The facility failed to ensure that the resident’s representative was notified of a deteriorating pressure ulcer and did not obtain consent for debridement of the wound. The wound care physician had requested consent be obtained over four visits, but the representative was not notified until the resident was sent to the hospital, more than two months after the wound had been identified.
As you can see from these examples, the resident representative is an important part of the resident’s life, and the facility had many responsibilities for ensuring that the appropriate person is making decisions that they have been authorized to do.