The Oregon Caregiver SPRING/SUMMER 2024 www.ohca.com 14 LEGAL & REGULATORY Supporting Resident Choice with Individually Based Limitations By Eugenia Liu, J.D., Oregon Health Care Association We often leap to the conclusion that “limits” are a negative thing. However, limits could have positive connotations. In fact, individually based limitations, also known as an “IBL,” are a tool that can be used to support a resident’s rights, preferences, and choices as well as promote their health and safety. What Is an Individually Based Limitation? An IBL is a person-centered tool that is used to mitigate a risk and support a specific need in connection with the federal home and community-based settings (HCBS) rules. IBLs are not the same as a risk agreement and they can only be used in community-based care settings. IBL requirements are outlined under OAR 411-004-0040. IBLs cannot be unilaterally implemented by a facility. IBLs must be supported by a specific assessed need and be: (1) necessary to protect the health and safety of the resident or others; and (2) accepted by the resident for whom the limitation is needed. Facilities need to follow strict documentation requirements to implement an IBL. Some of the key elements that must be identified and documented include: • The specific and individualized assessed need that justifies the IBL • The positive interventions and supports that the facility attempted prior to turning to an IBL • The less intrusive approaches that have been tried but did not work • The established time limits for periodic review of the IBL, which must occur at least annually if not more frequently, to determine if the IBL is still needed or can be terminated • An assurance that the IBL does not cause harm to the resident The facility must secure the informed consent of the resident and/or their legal representative and note any discrepancies between the wishes of the resident and the consent of the resident’s legal representative. The facility also needs to complete the appropriate forms and have the resident, or the resident’s legal representative, sign the forms before implementing the IBL. Consent for an IBL must be informed. This means the resident and/or their legal representative is fully advised of the benefits, risks, and alternatives of the particular course of action or limitation. The discussion of risks and benefits may involve other interdisciplinary team members, such as the resident’s physician or other relevant third-party providers. When Can Individually Based Limitations Be Used? There are many ways that an IBL can be used to enhance resident choice, health, and safety. For example, a diabetic resident may have difficulties managing their blood sugar levels and their physician recommends limiting sugary items that make the condition worse. However, the resident loves chocolates and friends and family often send boxes of chocolates to the resident for special events. No amount of positive reinforcement or redirection has worked, and the resident continues to eat the boxes of chocolates. With the resident’s consent, an IBL may involve the facility restricting access to sugary items, such as screening and removing packages that contain chocolates before they reach the resident or from the resident’s room. Similarly, a resident may have a history of substance use disorder but is working hard to refrain from falling back into old habits. The resident has friends from those days and knows it is hard to decline visits from these friends or tell them “no” when they invite the resident out. The facility may work with the resident to implement an IBL that restricts visits by having staff escort these friends to the unit, redirecting attempts to visit at certain hours, or monitoring visits to support the resident and help the resident avoid leaving the facility with them. Alternative, less restrictive means must be attempted first, but there are specific, assessed needs that may be best supported by a well-documented IBL to promote resident preference, choice, and quality care. Eugenia Liu is the SVP and General Counsel at OHCA.
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