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Don’t Blame Obra: The Regulations Aren’t in the Way

By Karen Schoeneman

I’ve been at quite a few conferences in the past few years, and one thing I’ve heard from someone at every conference is that the OBRA regulations are in the way of innovative care, and that the surveyors will say no to anything new.

I’m here to say that ain’t true! I work at the Centers for Medicare and Medicaid Services (CMS) Division of Nursing Homes, and provide training to surveyors in the survey process and the quality of life regulations, and answer policy questions about those regulations. And one thing I know for sure is that the regulations CMS (then HCFA) developed to implement the OBRA ’87 Nursing Home Reform Act are themselves innovative and amazing for their day. These regulations were written in 1990, along with interpretive guidelines to help the surveyors apply the things they see on surveys to these regulations.

These regulations say that residents of nursing homes have the right to choices over their schedules, activities, and anything that is important to them (F242); that the environment should accommodate their needs and preferences (F246); that they have civil rights like any citizen (F151); that they can refuse treatment (F155); and that they should be helped by the home to attain their optimal quality of life (F240) and quality of care (F309). Does that sound to you like the regulations are in the way? I don’t think so. In fact, I think, and many agree, that these regulations are so advanced that they haven’t even been implemented fully in most nursing homes.

Why do so many people who work in or run nursing homes think the regulations are in the way? What I’ve heard at the conferences I’ve been attending suggests a mixture of these things:

When Institutional Culture Is the Problem
I’d like to address this last item—the old, medical-model culture. No one is responsible for it, no one even remembers why or how it got to be the way it is, and no one really likes it. I worked in it for 17 years in social services, and I often tried to do innovative things that were shot down, not by surveyors but by facility leadership who told me “no” many times using the arguments above. I have a true story to illustrate this problem of institutionalized culture.

I once had a man in his 50s on my caseload, disabled from MS to the point of quadriplegia. He was 6-foot-5 and in an electric wheelchair which he could barely navigate. His mother died. I had to tell him. Through his tears, he asked me if we could take him to the evening viewing two days later, in a town 15 miles away, so he could be with his family, since no one in his family had a lift van to transport him.

Since I often drove our lift van, I figured I would volunteer to drive him—I did not work evenings—and I asked the aides if one would go with me to help get him in and out of the van and up the sidewalk into the building. Everyone on his unit volunteered, and said they would also make sure he was ready to go, getting him a fresh haircut and picking out a suit from our donated clothing. The unit nurses were OK with this plan and so was my boss.

The day before the viewing, our director of nursing (DON) found out, and was she ever mad! She stormed into my office to ask how dare I do this, and to tell me that she would never let her aides go off grounds to take someone to his mother’s funeral, since if you give anyone something special, they will all want it.

I was stunned by her total disregard for this resident’s grief and his great need to be with his family members to say a last goodbye to his mother. But I know she was just applying the principles she had been taught long, long ago: Everyone must be treated the same, and don’t do a favor for one, as all the rest will want some favor too.

I wasn’t going to let this man suffer the shame of being in the facility crying alone while all his relatives were there together, sharing their grief and holding each other while they said their goodbyes.

Now it was the day of the viewing. I went to the day-shift aides and said, “She won’t let any of the evening people go off grounds, will one of you help me?” All of them volunteered, and I picked one man who agreed to go home after his shift, get into a suit and tie, and come back to help this man get to the viewing.

So now I was all set again. I had booked a facility van and the aides were getting him into the shower and scrubbed up for the occasion.

And once again I had a visit from the DON. She was even madder now! Since I was using a volunteer aide who was off-duty, she could not prevent him from volunteering. She had to think of some other reason this couldn’t happen, as evidently she thought it would shake up her whole world. She told me she had called the garage—we were a big state facility with our own garage and mechanics—to forbid them to give me a van, since volunteers aren’t allowed to drive the state vehicles, so she said. I could see she wasn’t going to drop the issue, so I told her OK.

Although I can’t discuss exactly what happened next, I found a way for him to get to the viewing after all. But it was a lesson to me about how strong that old culture really is, and how much it stands in the way of innovations.

Look Inward First
For everything you don’t like and want to change, I invite you to look inward to your own policies and procedures, your own unwritten rules, your own myths, your own culture. Start by saying, “Why is it this way? Is it any good this way? If not, what is stopping us from changing it?”

Usually, the answer to these questions will be: “We don’t remember,” “No, it’s bad,” and “Probably nothing.” Take a look at the federal regulations in question to see if what you want to do is mentioned as OK or not OK. If you are still in doubt, see if there is another facility in your state that successfully made this change. If you are planning something big, you may want to contact the survey agency to discuss it before you start knocking down walls. Then go ahead and make changes!

Karen Schoeneman is a senior policy analyst for the CMS Division of Nursing Homes.

(Essay courtesy of Best Practices, November/December 2004)

Regulations and
culture change

Passing state survey

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»Essay by Karen Schoeneman


Additional resources

"The Basics of Individualized Quality Care," a consumer fact sheet by the National Citizens' Coalition For Nursing Home Reform (PDF)

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