We hope you’re not tired of hearing the term “Behavioral Health” yet, because we’re back with another post on the CMSCG Blog “Ftag of the Week” series for F740 Behavioral Health Services. This week we are wrapping up our series on a key regulatory requirement that will be getting extra attention come October 24, 2022 when the updated guidance to surveyors become effective. The final part of this regulation that we will look at relates to the use of behavioral contracts. The use of these contracts is not necessarily new, but the Centers for Medicare and Medicaid Services (CMS) has added additional guidance around this topic.
Behavioral Contracts
The updated Interpretive Guidance (IG) points out that in some cases, behavioral contracts are implemented as part of a resident’s individualized plan of care to address behaviors that could impact the resident, facility staff or other residents. These contracts are only permitted to be used for residents who can understand what they are agreeing to, so this is not an appropriate intervention for all residents. The contracts cannot infringe on existing resident rights and are meant to protect the resident and everyone else in the facility. That means that these contracts could be considered for identified concerns such as where a resident with a substance use disorder (SUD) may be bringing illicit substances in the facility and the facility is concerned that the resident may be providing drugs to other residents. This type of contract could also be considered for a resident with behavioral health needs where suicidal ideations or actual attempts have been identified. The intent of these contracts is to get a resident to follow his/her plan of care.
The updated guidance provides a list of issues that could be addressed as part of a behavioral contract. Let’s look at a couple of items in the guidance.
Behavioral Contracts for Residents Who May Leave the Facility
Addressing a resident’s right to have a Leave of Absence (LOA) while explaining the risks of leaving the facility without anyone knowing or leaving against medical advice (AMA) could be addressed in a behavioral contract. This is due to the increased likelihood that a resident with a SUD or a serious mental illness may be more likely to leave the facility without alerting the facility. In these cases, CMS reminds providers that the facility is not allowed to restrict the resident’s right to leave the facility, but by implementing a behavioral contact, the terms of a LOA, elopement or leaving AMA could be set out. Remember, the updated IG for F689 Accidents/ Supervision indicates that if a resident leaves a safe area without facility knowledge, this is considered an elopement, so it is a provider’s responsibility to keep residents safe.
Behavioral Contracts for Residents Who May Use Illegal Substances
The provider could also include the steps that the facility could take if it suspects a resident is using illegal substances. For instance, while the facility cannot outright restrict all of a resident’s visitation, if it is suspected that he/she is getting drugs from visitors, the facility could implement supervised visitation. The facility could also restrict a particular individual from visiting if it has cause to believe the visitor has been providing illegal substances to a resident. The IG also suggests that providers could include voluntary inspections and/or voluntary drug testing – areas nursing home providers are likely to not have much experience with. That’s why the final recommendation, to engage local law enforcement if it is suspected that a resident possesses illegal substances, paraphernalia or even weapons, is a good option that could be included.
Throughout the new guidance, CMS reminds providers that they are not an extension of law enforcement and should engage their local agencies as needed. Don’t forget though, if you plan to include voluntary room searches or voluntary drug testing, you need to have policies and procedures in place and evidence that staff has been educated regarding your expectations and what is allowed or prohibited.
Where to Pay Attention
Multiple citations related to F740 Behavioral Health have included the provider’s failure to implement the recommendations of behavioral health services providers. This could be assisting a resident with individualized therapy or ensuring the resident can attend an AA or NA meeting, but in other cases, psychology or psychiatry may recommend the use of a behavioral contract. Facilities have been cited for failure to implement these contracts, so if a recommendation for this intervention is made, it is your responsibility to pay attention and follow it, or otherwise identify comparable interventions to try.
Behavioral health care plans, like any other care plan, need to be reviewed and revised when interventions have not been effective, or a resident has had a change in condition. Interventions must be individualized and related to a resident’s diagnosed conditions, so it is your responsibility to provide or arrange for needed services to help maximize the resident’s highest level of functioning. There are a lot of suggestions/recommendations in the updated IG for providing quality care and services to meet the very specific needs of those residents identified with behavioral health concerns. You admitted these residents and now the expectation is clear as to what CMS expects to see happening as well as being reflected in the medical record during an inspection or investigation.
Need Help with the Behavioral Health RoPs?
CMS Compliance Group’s interdisciplinary team of compliance and quality improvement consultants are working with clients to help them prepare for the upcoming regulatory changes. If your organization needs help with implementing this new guidance, please contact CMSCG to discuss our services:
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