Too often residents in skilled nursing facilities (SNFs) have died or suffered serious burns as a result of a fire caused by cigarette smoking. The Centers for Medicare and Medicaid Services (CMS) clarified its position about smoking in nursing facilities in its 2011 Smoking Safety in Long Term Care Facilities memo, but cigarette smoking remains an issue at many facilities. Exploring the contours of the applicable regulations and strategies can help avoid negative outcomes.
Approximately 15,400 SNFs participate in the Medicare and/or Medicaid program. As such, they are obligated to follow the federal regulations regarding SNFs. One of those regulations states that residents have the right to “receive services in the facility with reasonable accommodation of individual needs and preferences, except when the health or safety of the individual or other residents would be endangered.” 42 C.F.R. § 483.15(e). However, a resident’s right to smoke cigarettes in a SNF is not unfettered, and facilities must ensure that residents who smoke are not at risk of harming themselves or others.
Increasingly, SNFs have decided to become smoking-free environments. It is permissible for a SNF to not allow residents to smoke on its premises as long as that restriction was made clear prior to admission. If a SNF decides to prohibit resident smoking, it may not impose that restriction on residents who were admitted while the facility permitted smoking. For SNFs transitioning into smoking-free environments, prospective residents must be informed of the policy change during the pre-admissions process.
The two case studies below are very different, yet CMS determined that “immediate jeopardy” existed and imposed substantial civil money penalties in both. Both providers challenged CMS’ findings through the appeals process. In one case, the facility lost its appeals. In the other case, the Administrative Law Judge’s (ALJ) decision is pending.
Case #1
In 2008, a 45-year-old resident was admitted to a SNF with a list of prescription medications, including Ambien, Remeron, Fentanyl, Percocet, Amitriptyline and Methadone. The side effects of these medications may impair thinking and/or cause drowsiness, fainting or dizziness.
On the day of admission, the resident underwent a smoking safety screening. The screening results showed he was able to safely light a cigarette, hold a cigarette independently, use an ashtray appropriately, keep ashes from falling on himself and extinguish a cigarette. He was cognitively intact and had good decision-making skills. The smoking screen indicated by a “no” response that the resident did not exhibit effects from medications including sedation, drowsiness or dizziness.
If “yes” was answered to all of the questions on the smoking screen, the screener could determine whether the resident could smoke alone or with assistance. Alternatively, if any question was answered with a “no,” the screener was supposed to select a type of supervision while the resident smoked. Even though one answer was “no,” the screener indicated that the resident was “able to smoke independently.” There were no further assessments in spite of the medications’ potential side effects.
A month later, a nurse’s progress note indicated the following: “When this nurse was leaving the facility to go home in evening it was noted by this writer that this Resident was sitting outside in front of the facility door sleeping with a lighted cigarette in his mouth. This writer took the cigarette out of his mouth & woke [resident] up. Counseled [resident] on smoking when he is sleepy & the danger that could happen with a lighted cigarette. [Resident] refused to go to bed.”
No incident report was completed and no new assessments were done. Likewise, the facility did not address this incident in a care plan and didn’t implement any interventions to safeguard the resident.
Approximately two weeks after the incident described above, a survey occurred. One of the surveyors noted the following: “[Resident 3] seen out front [with] a cigarette on lap. Hole burned in towel. Lighter on lap. Towel smoldering—smoke coming out of edges of hole glowing red.[Resident 3] asleep out front. Woke resident up. [Resident 3] poured water on it to extinguish.”
Based on the survey findings, CMS imposed a civil money penalty and the facility appealed. At the hearing, the facility acknowledged that the resident was taking several medications that could have sedative effects. However, the SNF asserted that over time, the sedative effects are diminished and that the nurses used their judgment about whether the resident could smoke independently.
The ALJ noted that there was no evidence that the facility assessed the resident to determine if the sedative effects of his medications were diminished. In affirming CMS’ determination of immediate jeopardy, the ALJ noted that the facility’s risk manager testified that “Resident 3 should not have been designated to smoke independently, because he had been found violating the smoking policy when he was found asleep with a lit cigarette in his mouth.” Further, no new assessments were done following the incident and no interventions were implemented.
Case #2
At another SNF, a resident who was assessed as a safe smoker accidentally burned herself when attempting to light a cigarette. The resident had smoked independently for more than 40 years without any known problems and both her attending physician and facility staff documented that she could smoke independently.
As a consequence of the burn, the facility immediately revised its safe smoking policy. It now required that all resident smoking materials must be kept in a secure tackle box behind the nurse’s station. It trained its staff and resident smokers about the revised safe smoking policy. Residents could only smoke at a designated time and in a designated place—the front porch, which had a concrete floor, sprinklers and no hazardous materials. All smokers were required to wear fire-retardant smoker’s aprons while smoking. Signs were placed on all facility entry doors reminding people not to give residents cigarettes or smoking materials.
During an unrelated survey seven months later, a surveyor asked a staff member why the facility had signs on doors admonishing visitors not to give cigarettes to residents. The staff member mentioned the prior incident. Proving that no good deed goes unpunished, the surveyors and CMS determined that immediate jeopardy had continuously existed for seven months and imposed a penalty of more than $700,000, even though no one had been harmed in the seven months since the initial incident.
CMS alleged that having a fire extinguisher more than 75 feet from the front porch and using a cup of water as an ashtray (under staff supervision) to extinguish cigarette butts created immediate jeopardy. At the hearing, under cross-examination, the surveyors could not explain how placing a cigarette butt in a cup of water by a safe smoker who was wearing a smoker’s apron and being supervised by staff could create a fire hazard. In this instance, the facility seems to have taken reasonable measures to ensure the safety of residents. The surveyors also conceded on cross-examination that many of the actions taken after the burning incident “exceeded the regulations.” This case is still pending.
Using Case #2’s multiple and appropriate interventions as a model, the following recommendations should be considered:
Skilled nursing facilities may or may not permit resident smoking. If they do, certain precautions such as those noted above must be undertaken to protect the residents who smoke—as well as the nonsmokers and the facility.
Alan C. Horowitz, Esq., is a partner at Arnall Golden Gregory LLP, where he focuses his legal practice on regulatory compliance for skilled nursing homes, hospices and home health agencies and manages cases where the Centers for Medicare and Medicaid Services (CMS) has imposed an enforcement action. He is a former assistant regional counsel Office of the General Counsel, U.S. Department of Health and Human Services. As counsel to CMS, he was involved with hundreds of enforcement actions and successfully handled appeals before administrative law judges, the HHS Departmental Appeal Board and in federal court. He also has clinical healthcare experience as a registered respiratory therapist and registered nurse. He can be reached at alan.horowitz@agg.com.