Nursing Home Medical Records: A Primer for Litigators

In light of today’s litigation world and number of nursing facilities, there’s a rise in the potential increase of legal cases. The federal regulations that govern a skilled nursing facility is set forth by The Center for Medicare and Medicaid. Nursing Homes must comply with these regulations, and state whichever is more stringent in order to receive Medicare and Medicaid funds. Adherence to nursing home medical records guidelines is crucial in maintaining compliance and avoiding litigation.

The Federal Regulations are grouped as follows:

1. Resident Right
2. Admission, Transfer, and Discharge;
3. Resident Assessment
4. Nursing Services
5. Dietary Services
6. Physician Services
7. Specialized Rehab Services
8. Dental
9. Pharmacy Services
10. Infection Control
11. Physical Environment
12. Administration

There are 175 Federal Regulations that each of the United States’ 14,639 skilled nursing facilities must comply with on an ongoing basis in order to maintain compliance with The Center for Medicare and Medicaid. As well as to prevent a case of litigation against them. As with other medical records, the nursing home charting should be well organized and complete. This is whether it is paper paper-based or electronic record. If the record is not well maintained, then it will cause concerns when State inspectors’ survey the nursing homes on behalf of the state-based Department or Health or Federal Inspectors. Additionally, poorly organized and missing documentation will lend itself to potential litigation concerns. It is important for attorneys, paralegal’s and legal nurse consultants to understand what is expected to be in a nursing home record when deciding and/or preparing a legal action against a facility.

A nursing home record can be voluminous depending on how long a resident has been at a facility. For many residents, this is their home. They may have resided in a particular facility for years; where others reside with shorter stays as a stepping stone from a hospital stay before going to their home.

Even for a short stay in a skilled nursing facility, a medical record can be several hundred pages in length. Many nursing homes do not have a medical records department or designated person to organize records. So when a record is thinned, these records get stored “as is” and are not organized in any particular fashion. Understanding how to obtain medical records from a nursing home is crucial, as these records may arrive disorganized and incomplete. It is important for a law firm to have a para-legal that is familiar with a nursing home record; so if it doesn’t come from the nursing home organized, it can be organized at the firm before it is sent on to an expert for review.

A nursing home record is usually broken down into different sections. Some homes put the record in reverse order – meaning the most recent information on top. But for anyone reviewing the record, it would be best for the order to be with the oldest information on top as in book order. The following is a breakdown of what should be present in each section of the record.

Usually, the first section will contain administrative information. This will include an admission face sheet, leave of absence forms, consents, hospital transfer forms from the nursing home, and any advance directives. Advance directives can include durable Power of attorney, do not Resuscitate, do not intubate, do not hospitalize, and living wills.

The next section will include any prior hospital records such as emergency room records, transfer records presented by the hospital to the nursing home when the resident is admitted, and any other hospital records. Most nursing homes usually only maintain the most current hospital record information on the active chart. It is important to obtain all prior hospital records that may be in filing when requesting a record. This will be important when reviewing a record to determine when and where a certain event may have occurred. This is particularly important when trying to establish where a concern developed – especially skin issues like pressure ulcers.

Physician orders may come next in the record. The orders are usually organized with the pre-printed (monthly orders) first with all telephone orders next. Telephone orders may have up to four orders on a single page, and some homes integrate orders by date. Again, make sure all orders are present in the record going back to the original date of admission. There should be monthly orders for each month the resident resided in the home. At times there may be miscellaneous orders such as fax correspondence to a pharmacy, dietary changes, or therapy orders that may also be found in this section.

The following section after orders is usually the physician's progress notes. The resident’s initial history and physical are usually on top, with any subsequent ones behind. Following the history and physicals are any progress notes that have been written by the attending, physician assistant, extender, or nurse practitioner in chronological order. If the resident has been permanently discharged from the facility, then a discharge summary should be present in the record. All physician documentation should have a date, time, and signature with credentials. All too often this is not the case with physician documentation, making it difficult for the person reviewing the record to understand.

Next comes consultations. Sometimes this is within the physician progress note section or as a separate section near this section. The typical sort of consults present may include: podiatry, dental, ophthalmology, optometry, surgical, psychiatry, and any other consults deemed necessary by the physician. At a minimum, each record should have an admission dental within 30 days of initial admission per Federal Regulations and annually thereafter. It is suggested that a psychiatric consultation be done if a resident is admitted to a psychoactive medication.

Typically, the next section will include Minimum Data Sets (MDS) and Care Area Assessments (CAA) formerly Resident Assessment Protocols (RAP). RAP process was renamed CAA in 2010 so any records before October 2010 will have RAP’s not CAA’s. Often MDSs are missing from a record when an attorney and/or expert reviews the record. This is because in most facilities these documents are either stored in a separate binder or electronically. When the MDS’s are not included it delays the process of an expert reviewing the record.

The MDS is important to have/review when screening a case for merit as it is the document that is drafted based on a preset schedule and submitted electronically to The Centers for Medicare and Medicaid for the facility's reimbursement. The data collected on an MDS should have supportive documentation in the record (i.e.: weight) and all data should be reflective of the current status of the resident. CAAs should be present for the initial, annual and significant change MDSs present in the record. CAAs are important as they drive the decision for the care planning process.

Care Plans can either be present in the MDS section or in a section alone. This is one of the most important pieces to a nursing home record in terms of litigation. The care plans drive the care a resident receives based on data collection for the MDS and assessment decisions of the CAA progress.

At a minimum there should be a care plan present for each CAA triggered with care plans for other active diagnosis the resident may have. A basic care plan should be present in the record within 24 hours of admission with a comprehensive care plan by day 21 of the stay.

Many facilities draft a new set of care plans on each annual MDS done. This is not a federal requirement but law firms/experts should keep this in mind when requesting/reviewing a record. Each care plan should include the identification of actual potential concerns, a goal that is expected to be achieved, interventions that should be individualized to the resident and evaluation of how the resident is meeting/not meeting the goal set forth. The care plans are critical to an actual/potential case of liability when determining a breach in the standard of care.

Nursing Assessment and Nursing Notes come next. Today, many records have integrated interdisciplinary progress notes where all disciplines document their progress notes. Again, it is best that this section, when organized, should be in book order for easier review.

Nursing Assessments should include all admission assessments for each admission to the facility. Some residents who have resided at a facility for years may have several admission/re-admission assessments for each hospitalization. All progress notes should be entered with a date, time of entry, and a legible signature and credentials of the licensed staff member entering the note. Also in this section may be monthly/quarterly summaries reflecting the status of the resident for the time frame indicated. These summaries may be helpful when reviewing a record as they may fill in gaps between progress notes. Summaries are also not federally mandated – it would be based on internal facility policy to govern the same.

The next section usually contains the medication and treatment administration records, narcotic sheet records, and any records relating to monitoring for side effects of psychoactive medications. Some facilities place all the medication and treatment administration records together by month where others separate them. Either way is in month acceptable as long as they are organized in month order.

The next section is usually any information related to the resident’s skin integrity status. All new admissions / re-admissions to a facility must have a skin risk assessment done on admission, weekly for four weeks, monthly for the next two months then quarterly per federal regulation (F-314). Additionally, there should be some documentation either in this section or elsewhere in the record that the resident's skin was checked weekly for any skin integrity concerns. This is also per federal regulation.

Pressure Ulcer documentation should be included in this section with a separate report for each skin concern. The reports should include the start date of the skin concern, the origin (prior to admission or after admission) of the concern, the type of wound (pressure, vascular, surgical), the stage, measurements in centimeters, course of treatment, and progress towards healing. This information is vital in determining where liability should lie if the case involves development of skin concerns. Often facilities have poor documentation in this area to defend themselves in a case involving pressure ulcers. As a side note, there should be a care plan for each skin concern identified; rather than lumping them all on one page. It makes it easier for the facility and the person reviewing the record to follow the trail of the skin concerns at hand.

Next may be the section for all other risk assessments that are done. At a minimum, there should be risk assessments in the record for wandering/elopement, fall, pain and incontinence. Some facilities also include risk assessments for dehydration, fecal impaction, urinary tract infection, and choking/aspiration. These risk assessments are done on admission / re-admission and quarterly.

The above assessments are typically completed by a licensed nurse – preferably a registered nurse. They should be organized by assessment and then date. At times there may be other types of assessments done by other disciplines in this section such as AIM’s testing, neurological testing and cognitive assessment to determine a BIM’s score for MDS purposes at the end of this section. Vital signs, weights, and intake and output records are usually next. There should be at a minimum a listing of monthly vital signs and weight for each month of a resident's stay. At times there may be a need to have more frequent monitoring for these depending on the resident’s individual needs, medications, and weight stability.

Therapy includes physical, occupational, speech, and respiratory therapy. At a minimum, there should be a therapy screen for each discipline when a resident is admitted. Based on the screen and determination that a resident is a candidate for rehabilitation services an evaluation will be performed by a licensed therapist. For those residents receiving therapy, there should be at least bi-weekly progress notes. When a resident’s services are discontinued there should be a discharge summary drafted. Each therapy note should be organized by discipline then date in this section for easy review. Any miscellaneous information should be at the end of this section.

Dietary will have a section in the record. What is expected to be in this section are an initial assessment when the resident is first admitted. There may be briefer assessments for those residents who are readmitted. If the progress note in the facility are not integrated, then the dietary progress should be in this section.

Activities and recreational therapy may come next. This section should have an initial assessment and quarterly updates either in the format of an assessment or progress notes. Additionally, depending on the facility policy there may be a re-admission assessment or progress note for each time the resident returns from the hospital.

Social services may come next. This section will also have an initial assessment and quarterly updates either in the format of an assessment or progress notes. Again, depending on the facility policy there may be a re-admission assessment or progress note for each time the resident returns from the hospital. Also in this section will also hold information about any potential discharge plans and/or burial arrangements.

Laboratory, X-rays, and other diagnostic testing will be in one section. All lab results, x-rays and other diagnostic test results should be organized by type then date. Many times these types of results are transmitted by fax to a facility and placed in the record. These should be replaced by the official result from the original source.

There should also be a section for nursing assistant documentation. Often, because this is kept separately for certified nurse assistants to sign each shift, this is missing from a record when it is requested by a law firm. This part of the record is important when needing to validate that interventions indicated on the care plan are in fact instituted and done (i.e. heel boots and turning & positioning to prevent pressure ulcers). Often food and fluid consumption are documented by certified nurse assistants. This may be vital in determining the factors behind a weight loss concern.

There may be a section in the back of the record for any other miscellaneous documents that do not fit anywhere else in the record. In closing, one can see that a nursing home record can be quite large and take time to get through when reviewing a potential/actual concern. This demonstrates the importance of having a well-organized page stamped once organized for easier reference.

Today, many facilities are transitioning over to electronic medical records for nursing homes. This makes it easier for a facility to maintain a record all in one place. As mentioned earlier, many facilities do not have medical records staff to correlate a record when requested, which can lead to situations where a nursing home won't release medical records in a timely or complete manner. Electronic format is preferable to an expert as often handwritten documentation is difficult to decipher.