< public policy < coverage and reimbursement < long term care coverage

August 6, 2004

Ms. Nancy Matheson, Ph.D.
Project Director
American Institutes for Research
1000 Thomas Jefferson Street NW
Washington DC 20007

Re: Public Comment on CMS Draft Regulations F-Tag 248 and F-Tag 249

Dear Ms. Matheson:

Following please find the comments of the American Therapeutic Recreation Association (ATRA) related to CMS Draft on Regulations F-Tag 248 and F-Tag 249. ATRA is the largest national association of recreational therapists, who are health care providers who use recreational therapy interventions to improve function of individuals with illnesses or disabling conditions. Recreational therapy is a health care and human service discipline that delivers treatment services designed to restore, remediate and/or rehabilitation functional capabilities for persons with injuries, chronic illnesses and all disabilities. Please note that the numbered bolded items offer general headings and then specific comments with references to wording in the regulations.

Comments:
1. Committee Composition
It is noted that the panel developing the revised regulations was predominantly composed of Certified Activity Directors – with the exception of one OTR, one Music Therapist and one Registered Nurse. One individual holds the CTRS credential but is not actively involved in the national professional organization for recreational therapists. With 27% of the 15,000 (or 4,070) Certified Therapeutic Recreation Specialists’ practicing in LTC, the composition of the panel seems to present a slanted view that does not account for the clinical expertise or the differences in abilities, skills and knowledge of activity professionals and recreational therapists. ATRA would like to strongly encourage CMS to consider including a CTRS on its panel when developing future regulations and procedures in which CTRS’ practice.

2. Recreational Therapists and Activity Professionals
The draft regulations provide more in-depth information, and point to a higher quality of services than the previous regulations. This is to be commended. The needs and abilities of individuals living in skilled nursing facilities have significantly changed since the regulations were initially written; consumer demands and expectations have also evolved. The draft regulations reflect a more comprehensive program that meets the ever-changing needs of senior adults living within SNFs. With this being said, this change in programming also reflects the need for a higher level of skills, abilities and knowledge than was previously expected or required.

The modified F248 regulations clearly call for a higher level of skill and knowledge. A comprehensive assessment that leads to the individualized, appropriate plan of care that addresses quality of life and functioning needs to be completed by a qualified individual who has a scope of practice that addresses the various areas mentioned in the new F248 language. The new F248 demands that the assessment be completed by a skilled clinician who is trained in assessment beyond that of the previous F249 requirements.

By changing the 249 regulations and making them vague, CMS is treating professionals with varying training and skills in a similar manner. Activity professionals, occupational therapy professionals and recreational therapy professionals are put on an identical playing field, even though their training/ education and experience are extremely different. Each discipline brings various specializations to activity departments that impact the services provided. Each has a role in long term care; however, these roles are different based on the expertise and training of the specific discipline. CMS needs to acknowledge these distinct and important differences to ensure the best and most appropriate quality of care to residents. Having individuals with varying qualifications brings different “eyes” to each program. By eliminating the recognition of these varying disciplines, CMS is ignoring that professional credentials bring distinct and important qualities sought by long term care facilities, and required by the acuity of today’s resident in long term care. We need to be careful about blurring the lines between professional qualifications, skills, knowledge and abilities.

As CMS has indicated in the RAI Manual, there is a distinction between recreational therapy and activities. Recreational therapy is physician ordered treatment, provided by a qualified recreational therapist. CMS needs to acknowledge this distinction not just in the RAI Manual, but also in the regulations.

Furthermore, in order to achieve improved quality of life, many residents have functional deficits that require treatment and specialized interventions that go beyond the general activity program. This type of treatment should be provided by a Certified Therapeutic Recreation Specialist (CTRS) to improve the resident’s functional abilities, and thus, help them to benefit from the general activity program. In addition, specialized interventions that are meaningful to the individual and account for their limitations and abilities can be identified and developed. The new regulations should include language to illustrate this practice and need for various disciplines within an activities department.

CTRS’ can work with Activity departments to provide guidance and direction based on recreational therapy assessment and treatment. This should be done in the same manner that physical, occupational or speech therapists provide direction to restorative nursing services. The recreational therapists’ role in LTC is not to enhance the activity program; rather, recreational therapy is one of the first treatment option when a resident’s ability to benefit from the activity program is impaired or hindered by functional deficits.

Comments related to recreational therapists:
F-Tag 248: Intent (page 1)
ATRA recommends adding the following statement be added to this section: “Note: If a resident demonstrates functional deficits that hinder participation in an activities program, a referral to a qualified recreational therapist should be considered to address and develop specialized interventions and programs that meet the resident’s needs.” The rationale for this statement is that some residents require specialized interventions that cannot be met through a general activities program even with adaptations. Thus, specialized interventions need to be provided and addressed specifically through the provision of recreational therapy.”

Page 3: 1st paragraph
Activity assessment needs to go beyond leisure interests.

“This assessment should be completed by or under the supervision of a qualified professional”.
An assessment needs to be conducted by a trained clinician who has skills and education in the area of assessment. Any person should not be permitted to do an assessment related to functional abilities or quality of life issues. Assessment is to lead to an appropriate plan of care that is individualized and meets the person’s needs, abilities and limitations. A high school graduate serving as an activity aide should not be permitted to make clinical judgments about an individual’s functioning or quality of life. These judgments, evaluations and assessments should be left in the hands of qualified and trained clinicians. CMS should be consistent with its language and practice; a CNA would not be permitted to do a nursing assessment, nor would a COTA be allowed to do an Occupational Therapy evaluation. Why should someone without training be permitted to do an activity assessment?

Page 4: Examples of Adaptations
As already indicated, by adding these into the regulations, CMS is indirectly pointing out that there is a certain skill set required to adapt activities for residents. This task should not be left to just anyone but should be undertaken by professionals who are trained in adapting tasks. *See additional comments later in document about these examples.

F-Tag 249
This regulation removes the specificity for qualifications and experience previously provided and ignores the abilities, skills and knowledge provided by various professionals. By removing these, CMS has removed a “minimum standard” for competency and experience. CMS needs to establish at least a minimum knowledge base. Without this minimum, CMS is allowing a board unknown level of skills for individuals calling themselves “activities directors”.

Furthermore, by making the regulation vague, CMS is not protecting the consumer or their rights to quality services by qualified professionals. By making this regulation vague, CMS is allowing a high school graduate to come into a SNF to provide assessment, care planning and interventions that require specialized training and education. While this may not be the intent, the vagueness of this standard will permit facilities to employ underqualified individuals without skills to provide the most appropriate service.

The modified regulations presented in F248 place much of the burden for quality of life and psychosocial outcomes on the activities program within a facility. CMS is clearly and accurately linking psychosocial outcomes to activities. However, a program without some type of specialist cannot meet or attain these outcomes appropriately.

Definitions: Change to read as follows
“ Recognized accrediting body refers to those organizations that certify, register or license therapeutic recreation specialists, activity professionals or occupational therapists.”

Task 6: Determination of Compliance – page 13 and 14
Compliance with 42 CFR 483.75(g), F499 Staff Qualifications and Compliance with 42 CFR483.15(3) F246 Accommodation of Needs
These regulations need clarification. ATRA suggest that wording include:
“ Facilities should recognize that a certain percentage of residents have functional deficits that provide barriers to meaningful activity and quality of life programs. These may include but would not be limited to significant impairment in physical, cognitive, social, psychological, emotional or behavioral functioning. In these cases, in order to provide adequate activity, quality of life programming and positive psychosocial outcomes, additional services and treatment may be required. These services may include, but would not be limited to recreational therapy, physical therapy, speech therapy, occupational therapy and psychological therapy, or an appropriate combination. These therapist should be provided in accordance with CMS regulations.” The rationale for this is that in order to provide adequate interventions, it should be recognized that access to specialized services are needed when significant deficits are present and significantly limit a resident’s ability to participate in meaningful activities and life roles.

Investigative Protocol Activities: Observations (page 10)
In this protocol, CMS is seeking a sophisticated level of therapeutic thinking. This is beyond the skill and scope of activity professionals.

3. Functional Skills and Abilities
In the draft regulations, CMS has removed any references in F248 and the
guidelines to functional skills. There is a strong emphasis on quality of life, which
ATRA commends. However, functional abilities are neglected to be mentioned. All
disciplines in SNFs should be promoting the highest practical level of functioning.
Recreational therapists should be promoting this functioning, as well as quality of
life.

Throughout the document, references neglect to include the role recreational therapists have in maintaining or improving functional abilities. This document contains strong references to quality of life issues, but does not mention contributions to functional skills and abilities. There is a clear focus on psychosocial issues that may be impacted by activity involvement; however, there are no comments to reflect physical functioning, even though recreational therapists provide consistent physical interventions to maintain/improve physical abilities. Active and passive range of motion, as well as the provision of restorative nursing interventions, are all within the scope of practice of a recreational therapist.

Comments related to functional skills and abilities:
F-Tag 248: Intent (page 1)
“ Receives activities, to the extent possible, that contribute to attaining and maintaining the highest practicable quality of life and functioning.“

Rationale: All disciplines in SNFs should be promoting the highest practical level of functioning. Recreational therapists should be promoting functional skills, as well as quality of life. The previous regulations stated “highest practicable level of functional ability”; by removing this wording, CMS is ignoring the contribution of recreational therapists to the functional level of residents.

Page 2: Assessment
The first paragraph should indicate that the individual’s functional abilities should also be assessed to determine level and scope of involvement, as well as the impact of these skills upon the person’s ability to participate in life activities.

4. Mandated Care Plans
CMS should not dictate a specific activity plan of care. This detracts from the interdisciplinary approach that is promoted in the RAI process and throughout the regulations. Furthermore, requiring a care plan on every resident ignores an understanding of the complexities of co-morbidity and the individual clinician’s professional judgment.

With this new language, CMS is mandating that a care plan for activities must be written on each resident. In saying this, CMS is dictating practice. There are times when it is clinically appropriate to not have a “leisure/activities” care plan on a resident. Recreational therapists may choose to address a functional or psychosocial issue, not an activity issue. At other times, the therapist may add interventions to the care plan under a different problem such as discharge planning or coping. Not every resident needs a goal in the “activity” area.

Clinicians should be allowed to exercise their professional judgment in developing the plan of care rather than having it directed to them. Furthermore, this regulation is in conflict with the RAI process which promotes the interdisciplinary process, in which staff work together to focus on common goals and objectives. Requiring a care plan regardless of trigger goes against the care planning process, and will result in citations to good departments.

Parts of the new regulation show CMS prescribing the components required in a care plan down to the minute detail noted in this section of the draft regulations.

Comments related to mandated care plans:
F-Tag 248
Definitions – page 1
“ Activity Plan of Care”: CMS should not dictate a specific activity plan of care. This detracts from the interdisciplinary approach that is promoted in the RAI process and throughout the regulations. Furthermore, requiring a care plan on every resident ignores an understanding of the complexities of co-morbidity and the individual clinician’s professional judgment.

What is suggested here only addresses “little or no activity” from a participation only approach. This potential leads to a common care plan “At risk for activity deficit” that is implemented by a facility without a clear understanding of the causes of this problem. By mandating a care plan, CMS is also undermining the thought process developed in the RAPs.

Page 3: Care Planning Related to Activities
Many of the statements in this section need to be written into other sections of the regulations. By placing these comments in the Activity section, the responsibility falls to activities staff – not the entire facility as CMS indicates it should.

While CMS is promoting an ideal that all disciplines be involved in quality of life, in reality this does not consistently happen. A deficient in the interdisciplinary area would be cited to the activities department not to the appropriate department. This currently happens and makes quality activity departments look poor on paper because of a lack of facility teamwork.

Page 3: Care Planning Related to Activities
“ The information gathered through the assessment process should be used to develop an individualized activities care plan that is an integral part of the comprehensive, interdisciplinary care plan”.

This statement seems to contradict itself. It appears to be promoting a separate activities care plan that focuses on participation and leisure interests, rather than an interdisciplinary care plan in which this is built into other problem areas.

“The activities care plan is part of the resident’s comprehensive plan of care, and should contain measurable, time-oriented goals and specific approaches to reach these goals. These goals should not merely focus on attendance at a certain number of activities per week, but should focus on desired benefits of the resident’s participation in these programs. These goals should specify the outcome in terms of the resident’s reaction to the offering…”

Attendance and participation should not be goals on the care plan; the care plan should focus on functional issues and problems, as well as quality of life.

Page 3: Care Planning Related to Activities
2nd paragraph: “Since each resident is entitled to an activities program that meets their needs and preferences, care planning for activities is needed for each resident, regardless of whether activities have triggered on the MDS”.

In this statement, CMS is mandating that a care plan for activities must be written on each resident. In saying this, CMS is dictating practice. There are times when it is clinically appropriate to not have a “leisure/activities” care plan on a resident. Recreational therapists may choose to address a functional or psychosocial issue, not an activity issue. At other times, the therapist may add interventions to the care plan under a different problem such as discharge planning or coping. Not every resident needs a goal in the “activity” area.

Clinicians should be allowed to exercise their professional judgment in developing the plan of care rather than having it dictated to them. Furthermore, this statement would be in conflict with the RAI process which promotes the interdisciplinary process, in which staff work together to focus on common goals and objectives. Requiring a care plan regardless of trigger goes against the care planning process, and will result in citations to good departments.

Investigative Protocol Activities: Observations
Page 12: Record Review – Care Plan
This list is inappropriate and again, dictates a separate specific activities care plan rather than an interdisciplinary plan of care with overlapping goals and approaches. CMS should not be prescribing the components required in a care plan down to the minute detail noted in this section of the draft regulations.

Also, as indicated before, if surveyors do not see every one of these details written on a care plan (whether it is appropriate to include or not), facilities will be cited for substandard care.

Measurable goals related to any and every planned one to one activity interventions are difficult to document. In practice, not every discipline charts what is occurring in a resident’s day. This is typically left up to the activities staff. When activities staff are not present or do not observe an one to one intervention provided by others (i.e. volunteers, pets, nursing staff, etc.) there will be no documentation to prove the occurrence of this goal. Furthermore, it may not be clinically appropriate to have a goal for these one to one interactions, even though they are occurring. CMS should allow this to be up to the discretion of the individual clinician.

5. Listing of Adaptations and Interventions
Pages 4 – 7 should be removed from the regulations. While it is nice to have a list of interventions/adaptations provided, CMS should not be prescribing interventions. As ATRA has indicated with other draft regulations, what CMS puts in writing is considered firm and law by providers, fiscal intermediaries and surveyors. If a clinician does not use these “prescribed interventions/adaptations”, there are surveyors who will cite the facility for substandard care.

By adding these into the regulations, CMS is indirectly pointing out that there is a certain skill set required to adapt activities for residents. This task should not be left to just anyone but should be undertaken by professionals who are trained in adapting tasks.

Related to the following comments about care planning, CMS is requiring a very specific care plan. While ATRA agrees that care needs to be individualized and personalized to each resident, CMS is ignoring the fact that often there is one qualified individual within the Activity department doing the care planning for all of the residents in a given facility. From one recreational therapist’s perspective doing the care planning for 110 residents, providing this level of specificity would be a time-consuming and an almost impossible task.

There is no mention in these sections related to dementia, psychosocial well-being or institutionalization. There is strong research evidence that prescriptive activities are very beneficial to address behavioral concerns. This should be included in these sections if CMS uses the specific information provided in the draft.

Comments related to listing of adaptations and interventions:
Page 4: Examples of Adaptations
This section should be removed from the regulations.

Page 6: Interventions
This section should be removed from the regulations for the same reasons indicated above.
In addition, the care plan should not include interventions that are facility policy, such as notifying residents of activities or providing transportation. If it is a facility policy or a standing order, the information should not be included in the care plan as it applies to ALL residents within a facility.

If CMS is going to continue to include this list, it is suggested that “For the resident whose ethnic or cultural background differs from the norm for the facility” be changed to state “For residents of varying ethnicities”. Also in this section, instead of saying “Special…”, state “Account for preferences in….”

Page 7: Facilitating Participation
This section neglects to acknowledge the fact that simply providing accommodation does not guarantee that a program has been adapted for those participating.

Page 7: Anticipated benefits in relation to the goal
Will CMS be requiring this of all disciplines in their care plans? Quality of life benefits should not just be required of social workers, recreational therapists and activity professionals. If this is going to be a requirement for these disciplines, it should be mandated that all disciplines indicate the anticipated benefits of a goal.

Further comments on F248 and F249 Draft Regulations:
Definitions – page 1
“ Activities” are any task or activity that occur during a resident’s day, including ADLs. CMS should consider becoming consistent in their language of activity with JCAHO, the Alzheimer’s Association and other professional organizations. In addition, any reference to functional skills is removed in the current draft definition. It is difficult to achieve “highest practicable quality of life” without considering functional abilities. The definition of Activities noted here should also include some reference to delivering activities at the appropriate level and using appropriate adaptations.

“Program of activities- formal, informal and self-directed”: this statement is vague and unclear. Is the draft referring to opportunities for independent, individual, small and large group structured programs, and spontaneous/informal recreation?

Page 2: 2nd full paragraph
“ Meaningful activity”- This term is vague and needs to be clearly defined to reflect that this is a word that is individualized to each person and varies based on that individual’s life experiences. What is meaningful to the twenty-something nurse’s aide is not the same as the 90-year old resident; nor is the 90-year old resident’s definition of meaningful activity the same as her roommate.

Page 3: “Note”
This is a good addition to the regulations.

Investigative Protocol Activities: Observations
Page 10: “If the resident is non-ambulatory and needs ADL assistance during activities, determine if the facility has made accommodations to allow the resident to participate in desired off-campus activities…”
This requirement is impractical for many facilities who do not have financial resources to own an accessible van or who have limited staff. In times of staffing shortages, it is important to meet the needs of the residents while at the facility which may impact the ability of some to leave the facility.

Page 11: “For group activities that the resident attends, determine if they are occurring in rooms that have sufficient space, light and ventiliation…”
Will facilities now be cited by surveyors if it is deemed there is not sufficient space for an activity? Is this fair?

Psychosocial Outcome Severity Guide
ATRA applauds CMS’ attempt to review the psychosocial outcomes of deficient practice. This demonstrates forward thinking by CMS.

Utilizing verbal and non-verbal expressions of psychosocial well-being is extremely important. However, it is challenging to determine pre-morbid and current expressions of sadness. CMS must consider how this may impact some residents and their expression related to psychosocial outcomes.

In addition, it was noted that there is no reference to determine if there are psychosocial concerns occurring in a resident’s life that are within/outside of the facility. Consideration must be given to these factors as well, such as the death of a spouse/sibling/child; conflicts with roommate/family; or cyclical pattern of psychosocial well-being.

Connection Between Deficiency and Outcome – page 18
“ For a resident who is cognitively impaired and unable to express him or herself verbally, note the resident’s non-verbal reactions to the situation and use the information in the Guide to determine severity based on that non-verbal reaction.”

This does not account for environmental factors or issues that occurred prior to activity that may continue to be impacting the individual’s mood and/or behavior. This statement allows a surveyor to take a one second snap shot of a resident to make a judgment, rather than looking at the big picture of the resident’s day.

Reasonable person concept- page 19
This statement permits a lot of subjectivity by surveyors, and by survey team. This will lead to many inappropriate deficiencies based on an individual’s judgment of what is reasonable. This does not take into account individual resident’s preferences, backgrounds, but allows the surveyors to project their judgment and subjectivity into the situation.

Thank you for the opportunity to offer comment on the Draft F-Tag 248 and F-Tag 249 regulations for skilled nursing facilities. If you have any questions or if I can be of assistance in any way, please do not hesitate to contact me at 703.683.9420 or conferences@atra-tr.org. Thank you.

Sincerely,

Dawn De Vries

Dawn De Vries, MPA, CTRS
Director of Continuing Education and Competency Training
Long Term Care Public Policy