In this installment of the ALN Consulting series on the CMS Interpretive Guidelines, we investigate and explain the most recent revisions to surveyor guidance on care of the resident with dementia in long-term care facilities. In defense cases involving a patient with dementia it can be difficult to strengthen documentation. The Interpretive Guidelines contain an explanation of the intent of the law, definitions of related terms, and instructions to surveyors on how to determine compliance with the law. Understanding what the Interpretive Guidelines consider to be excellent patient care can make documentation in defense cases much easier.

The CMS Interpretive Guidelines for dementia clearly relate the expectations of a surveyor in regard to a resident with changes in cognition related to a decline in mental ability severe enough to interfere with daily life. According to support and research from the Alzheimer’s Association, the leading voluntary health organization in Alzheimer’s care, dementia is “not a specific disease. It’s an overall term that describes a wide range of symptoms associated with a decline in memory or other thinking skills.” The AA reports that Alzheimer’s disease accounts for 60-80% of cases, and vascular dementia (which occurs after a stroke) is the second most common dementia type.
The defense of a long-term care facility’s liability in the case of a resident with dementia relies on a strong foundation and understanding of the Interpretive Guidelines and its recent revisions. Because dementia impairs memory, communication and language, focus, reasoning and judgement, and visual perception, residents with dementia require care which focuses on safety and perceptive assessment skills to avert decline in the long-term care facility.

42. C.F.R. §483.25 (a)-(m) Quality of Care (F tag 309)

Use of F tag 309 includes, but is not limited to care of a resident with dementia. It focuses on ensuring a long-term care resident maintains the “highest practicable physical, mental, and psychosocial well-being, limited by the individual’s recognized pathology and normal aging process. Highest practicable is determined through comprehensive resident assessment by recognizing then competently and thoroughly addressing the physical, mental or psychosocial needs of the individual.”
Regulation F tag 309
Compliance of F tag 309, care for persons with dementia, is based upon a set of key principles. For a resident with dementia, the facility is in compliance with F309, care for persons with dementia, if they:

1. Obtained details about the person’s behaviors (nature, frequency, severity, and duration) and risks of those behaviors, and discussed potential underlying causes with the care team and (to the extent possible) resident, family or representative;

2. Excluded potentially remediable (medical, medication-related, psychiatric, physical, functional, psychosocial, emotional, environmental) causes of behaviors and determined if symptoms were severe, distressing or risky enough to adversely affect the safety of residents;

3. Implemented environmental and other approaches in an attempt to understand and address behavior as a form of communication and modified the environment and daily routines to meet the person’s needs;

4. Implemented the care plan consistently and communicated across shifts and among caregivers and with the resident or family/representative (to the extent possible); and

5. Assessed the effects of the approaches, identified benefits and complications in a timely fashion, involved the attending physician and medical director as appropriate, and adjusted treatment accordingly.

If these criteria are not met, the surveyor is to cite F309. For residents with dementia for whom antipsychotic or other medications were prescribed, surveyors must also assess for compliance using guidance at F329, Unnecessary Medications.

Surveyor “Probes” in Dementia Care

The December 23, 2014 updates to this Interpretive Guideline include a vast amount of new information for the surveyor to consider and investigate. One area which could be of particular value in defense cases focuses on the allegation that, once medical causes were ruled out, the facility did not attempt to establish other root causes of the behavior. The surveyor probes include interviewing the staff about a systematic analysis and consideration of possible causes, including but not limited to:
• boredom; lack of meaningful activity or stimulation during customary routines and activities;
• anxiety related to changes in routines such as shift changes, unfamiliar or different caregivers, change of (or relationship with) roommate, inability to communicate;
• care routines (such as bathing) that are inconsistent with a person’s preferences;
• personal needs not being met appropriately or sufficiently, such as hunger, thirst, constipation;
• fatigue, lack of sleep or change in sleep patterns which may make the person more likely to misinterpret environmental cues resulting in anxiety, aggression or confusion.
• environmental factors, for example noise levels that could be causing or contributing to discomfort or misinterpretation of noises such as over-head pages, alarms, etc. causing delusions and/or hallucinations.
• mismatch between the activities or routines selected and the resident’s cognitive and other abilities to participate in those activities/routines. For example, a resident who has progressed from mid to later stages of dementia may become frustrated and upset if he/she is trying but unable to do things that she previously enjoyed, or unable to perform tasks such as dressing or grooming.
Updates to the Interpretive Guidelines – 2015 Focused Dementia Care Survey Tools
CMS completed a pilot project in 2014 to “examine the process for prescribing antipsychotic medications and assess compliance with other federal requirements related to dementia care practices in nursing homes.” Five states (California, Illinois, Louisiana, Minnesota, and New York) participated in the pilot. Upon completion of the pilot and the 2015 expansion of the use of the Focused Dementia Care Survey in six states (California, Illinois, Mississippi, Missouri, Nebraska, and Texas), CMS revised the survey materials and tools and has shared the revised materials with the intent that facilities use the tools to assess their own practices.
Included in the tools are specific practices to consider. When a long-term care facility documents these specific practices they can be used as evidence of compliance with CMS guidelines:
1. Observe for language or routines that could have an impact on dignity and/or function, e.g.:
• use of bibs, crescent ‘feeding’ tables
• high percentage of residents wearing socks/non-skid socks and institutional gowns instead of their own clothes and shoes; high percentage of residents with soiled hands or nails, unshaven or with hair not combed or brushed (a high percentage of these observations may indicate that staff does not try to re-approach residents or find ways to enable them to accept needed care/grooming; surveyors should investigate further)
• staff use of terms such as “feeders” “total care residents” etc. in communication versus person- centered language
• failure to respond to residents’ communication/behavioral manifestations of distress/emotional needs versus attention to preventing escalation of distress
• attempts to keep residents “quiet” or prevent them from moving around versus efforts to walk or talk with residents who appear distressed

2. Observe for social dining atmosphere or individualized dining setting (if appropriate) with staff sharing the dining experience with residents (not standing over them). Observe for staff talking with residents, not talking only with other staff or ignoring residents. Observe for culturally appropriate meals.

3. Observe for whether or not staff assesses the environment regularly for too much or too little noise, light and stimulation. (Since this may be difficult to ascertain during observations alone, speak with staff about how they address environmental issues for individuals with dementia).

4. Observe for other basic dementia care approaches such as:
• using soft, low voice and speaking where resident may read lips/see face clearly
• not approaching resident from behind
• providing adequate time during resident care and meals (not rushing)
• encouraging maximal independence (not performing activities/care routines that resident could perform him/herself if given adequate time and task segmentation, cues)
• encouraging time outdoors
• encouraging physical activity
• redirecting resident away from high stress environment
• allowing a resident to remain in preferred location/environment (e.g., to remain in bed) if safe, and re-approaching that resident later on if they express a desire/choose to remain where they are (staff recognizing this as preference/choice, even in someone who has dementia)
• providing stimulation (to avoid boredom); ensuring an adequate number and type of activities on all shifts, on W/E’s
• addressing loneliness/isolation
• appropriately limiting choices to avoid frustration/confusion
5. Assess for adequate sleep and individualized sleep hygiene in care plan (sleep facilitators, such as reducing interruptions for continence care or pressure relief through use of appropriate continence products and mattresses). Assess for residents sleeping often during activities.
6. Evaluate for adequate pain assessment in all residents with particular attention to those with difficulty communicating about pain.
7. Assess for sensory deficits and how these deficits may impact cognition. Is there an assessment for use of adaptive equipment, and is it used appropriately and consistently?
8. Assess for issues during care transitions. For example, was there a unit or room change? What prompted this change? How was information transferred effectively among care providers (“warm handover”)? Consider issues related to accepting residents back after a hospital transfer (communication with state Ombudsman Program may be helpful).

Using Updates to the IG for Defense

A Defense team’s familiarity with the vast updates to the Interpretive Guidelines in the care of a resident with dementia will prove invaluable in cases where the resident shows mental decline. These resident’s allegations frequently involve falls, infection, and nutrition/hydration issues that can be more easily defended using the evidence of excellent care demonstrated using the surveyor guidance. Learn how ALN Consulting can assist your defense team with finding the documentation to strengthen your case involving a resident with dementia.



1. Harris, Rick E. (2015). How to Use the CMS Surveyor Guidance to Craft a Winning Defense [Presentation at the DRI LTC/SNF Seminar].
2. Centers for Medicare & Medicaid Services. (2015). State Operations Manual – Appendix PP – Guidance to Surveyors for Long-term Care Facilities. Retrieved 05/07/16.
3. Centers for Medicare & Medicaid Services. (2015). Memorandum: Focused Dementia Care Survey Tools. Retrieved 05/07/16.
4. Alzheimer’s Association. (2016). Retrieved 0507/16. Web site: