Failure to Determine Decision-Making Capacity and Verify Legal Representation for Cognitively Impaired Residents
Summary
The deficiency involves the facility’s failure to implement and operationalize its policies and procedures for advance care planning, determination of decision‑making capacity, and verification of legal representation for three cognitively impaired residents. For one resident with dementia, psychosis, and anxiety, the MDS and multiple clinical notes over several months documented that the resident was rarely/never understood, alert only to self, highly cognitively impaired, and unable to make needs known. Psychiatric evaluations repeatedly described advanced dementia, profound cognitive impairment, and limited capacity for engagement, and a physician note explicitly stated the resident was cognitively impaired, unable to make decisions, and would need guardianship. Despite this, there was no documented competency assessment, no identification or activation of a legal decision maker, and no social services documentation addressing designation of a legal representative. The resident’s face sheet listed the resident as their own responsible party, and the granddaughter and daughters only as emergency contacts. During this same period, the facility obtained signatures on advance directive and psychotropic medication consent forms that were attributed to the resident, even though staff interviews confirmed the resident was not cognitively intact and did not have a DPOA or guardian. The advance directive form documented that the resident did not choose to formulate any advance directives, and psychotropic consents for Zyprexa and Remeron were signed and witnessed by staff, with illegible or inconsistent resident signatures/initials that appeared dissimilar from each other. Social services documented that the resident remained their own person and that the patient was their own decision maker, while other clinical notes described the resident as non‑verbal, unable to verbalize needs, unable to retain education, and exhibiting aggressive behaviors. Discussion with family about pursuing guardianship was not documented until approximately four months after admission, and social services acknowledged that no competency assessment was completed and that they did not address the lack of a legal decision maker because the resident was initially expected to be short‑term. For a second resident with a BIMS score of 0, severe cognitive impairment, aphasia, dysarthria, and dependence in ADLs, the MDS indicated the resident was rarely/never understood. The face sheet listed the resident’s mother as responsible party, but there was no documentation of competency assessment, guardianship, or DPOA in the EMR. Social services documented that the resident remained their own person and had no wishes to issue further advance directives, while also recording that the resident was nonverbal and that the mother refused psychiatric services on the resident’s behalf, even though she was not documented as a legal representative. When surveyors attempted to interview the resident, verbalizations were not understandable, and a CNA reported it was hard to know what the resident wanted and that they normally could not understand the resident. Despite this, an advance directive form in the EMR showed a clearly written resident signature that closely resembled the LPN witness’s signature; the LPN later denied that the signature was theirs or the resident’s and stated they did not know who signed the resident’s name. The LPN also reported the resident was admitted alone and was unsure who was making the resident’s medical decisions. For a third resident with heart disease and dementia, the MDS showed severe cognitive impairment and need for supervision to total assistance with ADLs. Two HCPs had deemed this resident incompetent to make medical decisions, and probate court documentation granted a named individual temporary guardianship for a defined period. However, no permanent or current guardianship documentation was present in the EMR after the temporary order expired, even though the face sheet continued to list this individual as the resident’s legal guardian. The Social Services Director stated that the resident had an active legal guardian and that guardianship documentation was maintained in the EMR, but when reviewed, only the expired temporary guardianship order could be produced. The director acknowledged they did not have current guardianship documentation and did not explain how they knew the individual was legally able to make decisions without proof. The facility’s own policies required ongoing assessment of decision‑making capacity, determination of when residents could no longer make their own health care decisions, and maintenance of documentation for guardianship or surrogate decision makers, but these processes were not carried out or documented for the three residents. The Administrator confirmed that social services was responsible for addressing competency and legal representation but was unable to explain why these issues were not addressed for the residents in question. The Administrator also acknowledged that the signatures on one resident’s advance directive form appeared similar and that it did not appear to be the resident’s signature, and agreed that no one else should sign for a resident unless requested and documented. The Administrator further confirmed that guardianship documentation should be scanned into the EMR and was informed that one resident’s guardianship documentation was not current, without providing further explanation. Overall, the facility did not follow its policies on advance directives, determination of advocates’ authority, and ongoing review of residents’ decision‑making capacity, resulting in the absence of timely competency determinations, lack of appropriate and legal representation for two residents, and lack of current guardianship documentation for the third resident.
Penalty
Resources
Below are regulatory guidelines relevant to this citation:
Incomplete DNR Forms for Two Residents: Two residents with DNR status had incomplete DNR paperwork. One resident with CKD and severe cognitive impairment had no resident signature on the DNR form, and the physician signed on the wrong line. Another resident with Alzheimer’s disease and severe cognitive impairment had the resident signature on the proxy line, but the physician signature, date, printed name, and license number were missing. The SW and ADM verified the forms were not completed correctly.
Incomplete DNR forms were found for two residents with DNR status. One resident with chronic respiratory failure, heart failure, and type 2 diabetes had a DNR form with the resident’s signature on the wrong line and an undated physician signature, and another resident with renal disease and type 2 diabetes had the resident’s signature on the wrong line with the Person’s Signature line left blank. The DON and SW both verified the missing information and stated the forms were not completed correctly.
Failure to Review Residents’ AD Decisions: The facility did not ensure that 3 residents were informed of and had their AD decisions reviewed. Each resident was able to make needs known and was their own responsible party, but the EHR did not show review of AD decisions on admission or at care conferences. The Social Services Director and Administrator both acknowledged the missing reviews.
A resident with CHF, pulmonary edema, and chronic respiratory failure had care plan and IDT documentation stating an Advance Directive was on file and up to date, but the document could not be found in the record. The ADON stated only a POST form was present, confirmed a POST is not an Advance Directive, and said there was no copy of the resident’s Advance Directive on file.
Failure to Assist Residents With Advance Directive Formulation: Multiple residents had no advance directive in the chart or documented follow-up after social services notes showed they either already had a POA/Living Will or wanted help completing one. Residents with conditions including fx, chronic resp failure, delirium, sepsis, HTN, CKD, AFib, UTI, discitis, and anemia had incomplete documentation, and one care plan had conflicting POA/Living Will information.
Incomplete OOH-DNR Documentation: A resident with severe cognitive impairment, dementia, HTN, CAD, and dysphagia had DNR status documented, but the OOH-DNR form was not fully completed. The form was signed by the qualified relative, yet the attending physician did not sign the required section and the document lacked the physician's dated signature, printed name, and license number; the DON stated the form was still valid based on the witness signature date.
Incomplete DNR Forms for Two Residents
Penalty
Summary
The facility failed to ensure that two residents with documented DNR status had properly completed DNR forms. One resident was a male admitted with chronic kidney disease and acute cystitis with hematuria; his face sheet and physician order summary both reflected DNR status, and his MDS showed severe cognitive impairment with a BIMS score of 6. His DNR form dated 8/06/24 did not contain the resident’s signature, and the physician signed on the line intended for the resident’s signature. The second resident was a female admitted with Alzheimer’s disease and chronic kidney disease; her face sheet and physician order summary also reflected DNR status, and her MDS showed severe cognitive impairment with a BIMS score of 3. Her DNR form dated 09/25/25 had the resident’s signature on the line for a legal guardian, agent, or proxy, but the physician’s signature, date, printed name, and license number were missing. The social worker and administrator both verified the missing information and stated the forms were not valid if not completed correctly.
Incomplete DNR Forms for Two Residents
Penalty
Summary
The facility failed to ensure that two residents with DNR status had completed DNR forms with all required information. Resident #9, a male with chronic respiratory failure, heart failure, and type 2 diabetes, had a DNR order on the physician order summary and a care plan for DNR, but the DNR form showed the resident’s signature on the line for Guardian/Agent/Proxy/Relative Signature, the Person’s Signature line was blank, and the physician’s signature was not dated. Resident #35, a male with renal disease and type 2 diabetes, also had a DNR order and a care plan for DNR, but the DNR form showed the resident’s signature on the line for Guardian/Agent/Proxy/Relative Signature and the Person’s Signature line was blank. During interviews, the DON stated the DNR was not valid if it was not filled out correctly and verified the missing information on the forms for Residents #9 and #35. He stated the SW was responsible for making sure the DNR was completed accurately and that quarterly audits of DNRs were completed for accuracy. The SW also verified the missing information on the DNR forms for both residents and stated she and the resource nurses were responsible for ensuring DNRs were completed correctly. The facility’s Social Services policy stated advance directives would be recognized and respected and that the facility would implement residents’ decisions and directives in compliance with state and federal law and facility policy.
Failure to Review Residents’ Advance Directive Decisions
Penalty
Summary
The facility failed to ensure that residents were informed of their right to establish an advance directive for 3 of 3 sampled residents reviewed for advance directives. Resident 6 was admitted with diagnoses including COPD and diabetes, was able to make needs known, and was their own responsible party, but the electronic health record did not show that the facility reviewed the resident’s advance directive decisions. Resident 11 was admitted with diagnoses including metabolic encephalopathy and diabetes, was able to make needs known, and was their own responsible party, but the record also did not show review of advance directive decisions. Resident 141 was admitted with diagnoses including acute kidney failure and diabetes, was able to make needs known, and was their own responsible party, but the record did not show review of advance directive decisions. During interviews, the Social Services Director stated that residents’ advance directive decisions should be reviewed on admission, at quarterly care conferences, and at the resident’s request. The Social Services Director later stated that Resident 6’s most recent care conference on 02/24/2026 did not include review of the advance directive decision, Resident 11’s initial care conference on 04/07/2026 did not include review, and Resident 141’s most recent care conference on 11/17/2025 did not include review. The Administrator also stated that social services would review advance directive decisions with residents on admission and at quarterly care conferences, and acknowledged that the lack of review for Residents 6, 11, and 141 did not meet expectations.
Advance Directive Not Located in Resident Record
Penalty
Summary
The facility failed to ensure residents exercised their right to formulate an Advance Directive for Resident #33. The State Operations Manual defines an Advance Directive as a written instruction such as a living will or durable power of attorney for health care, and distinguishes a POLST form from an Advance Directive. Resident #33 was readmitted with multiple diagnoses including congestive heart failure, pulmonary edema, and chronic respiratory failure. Resident #33’s care plan, initiated on 5/4/26 and revised on 5/18/26, documented that the resident had an Advance Directive on file and that it was up to date. An IDT Conference Note dated 5/12/26 also documented that the resident’s Advance Directives were reviewed, accurate, and up to date. However, the resident’s Advance Directive could not be located in the record. On 5/28/26, the ADON stated she only saw the resident’s POST form, acknowledged that a POST form is different from an Advance Directive, and stated she did not believe Resident #33 ever gave the facility an Advance Directive; she confirmed there was no copy on file.
Failure to Assist Residents With Advance Directive Formulation
Penalty
Summary
The facility failed to ensure residents and their representatives received assistance to exercise their right to formulate an Advance Directive. Based on policy review, record review, and staff interview, 9 of 12 reviewed residents did not have an advance directive in the medical record or documentation that advance directive information was provided, discussed, or followed up on with the resident or representative. The facility policy stated that on admission the facility would determine whether the patient had executed an advance directive and, if not, determine whether the patient would like to formulate one. Several resident records showed social services notes documenting that the resident either already had a POA/Living Will or wanted assistance obtaining one, but the records did not contain the actual advance directive or documented follow-up. Resident #2, admitted with a nondisplaced left femur fracture and chronic respiratory failure, stated he had a POA/Living Will and that the facility could obtain a copy, but the record did not show an advance directive or follow-up. Resident #37, admitted with a displaced intertrochanteric fracture and delirium, stated she did not have one and wanted assistance making one, yet the record did not document the completed directive at the time of review. Resident #60, with diabetes and anxiety, and Resident #66, with acute embolism/thrombosis and anemia, both stated they had advance directives and would have family provide copies, but no copies or follow-up documentation were present. Additional records also lacked required documentation. Resident #61, with multiple rib fractures and atrial fibrillation, had no advance directive documented and no social services note showing the resident was asked about one or offered assistance. Resident #3, with UTI and discitis, had a social services note indicating she had a POA/Living Will and would let family know, but no advance directive or follow-up was documented. Resident #17, with sepsis and hypertension, had conflicting documentation in social services and care planning records regarding POA/Living Will status, while the baseline care plan did not address advance directive status. Resident #29, with a fractured pubis and chronic kidney disease, and Resident #52, with a fractured hip and hypertension, also lacked advance directive documentation in the medical record.
Incomplete OOH-DNR Documentation
Penalty
Summary
The facility failed to ensure a resident had a properly completed advance directive for Resident #5, whose electronic face sheet listed Advance Directives: DNR. Resident #5 had diagnoses including unspecified dementia with behavioral disturbance, hypertension, atherosclerotic heart disease with angina, and dysphagia. The quarterly MDS reflected a BIMS score of 0, indicating severe cognitive impairment, and the quarterly care plan noted that the resident's family/representative completed documentation for DNR status and that the code status would be reviewed quarterly and as needed. Record review of the resident's OOH-DNR form dated 12/08/22 showed the form was signed by the qualified relative in section C, but the attending physician did not sign section E, and the form did not include the physician's dated signature, printed name, or license number. Section F, which required all persons who signed above to acknowledge the document was properly completed, was also not signed by the physician. During interview, Social Services stated DNR forms must be filled out completely and said forms may not be valid if the physician's dated signature and license number were missing. The DON stated the form was valid and said they went with the date of the witness signature when the physician's signature was not dated.
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