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Resident Rights – Diet Waivers

Angie Szumlinski, Kasie Cousino, Mary McMurry, Andrea DeLandNews

As our residents “age in place” we are often faced with the challenge of balancing resident rights with resident safety. The family wants mom to have that Big Mac for lunch, mom is on a therapeutic diet with chopped meat or pureed food, what do you do?

Trust me, we get it, there is no easy way to say no, however, it is important to remember that no matter how nice you are, you are not without risk.

A recent case study illustrates the significance of decisions like this:

A medically complex resident was admitted with cognitive limitations and dysphagia of 10 years duration. The SLP recommended a pureed diet and eating in the dining room. The family and resident insisted that he/she be permitted to eat soft foods. A dietary waiver was signed. The resident refused to eat in the dining room and choked while eating soft foods in his/her room. He/she expired shortly thereafter. The facility was on notice that the resident was eating foods outside dietary recommendations but did not supervise the ingestion.  Arguably the waiver placed the facility on a higher alert. The case resolved for $200,000 – $400,000.

The federal regulations at F-552 grant residents the right to participate in treatment conditions; however, F-684 mandates that the facility provide care in accordance with the standard of practice, which includes the duty to provide care pursuant to physician orders.[1] If we permit a resident to deviate from physician order by providing a diet inconsistent with the order and/or permitting family to bring in food that contradicts the order, then we would likely receive regulatory scrutiny and a potential negligence claim should harm result from this deviation.

A dietary waiver will not protect you in the event of a negative outcome. At the end of the day, dietary waivers are only as good as the paper they are written on. The State Operations Manual, Appendix PP @ §483.25(d) provides the following warning:

“Verbal consent or signed consent/waiver forms do not eliminate a facility’s responsibility to protect a resident from an avoidable accident, nor does it relieve the provider of its responsibility to assure the health, safety, and welfare of its residents. While Federal regulations affirm the resident’s right to participate in care planning and to refuse treatment, the regulations do not create the right for a resident or representative to demand the facility use specific medical interventions or treatments that the facility deems inappropriate. The regulations hold the facility ultimately accountable for the resident’s care and safety.”

Please consider discussing the resident’s nutritional status and risks regularly with family members and be sure that families understand our policies, which are conditions of participation in the Medicare provider network.

Stay the course, do the right thing for the right reason, and contact your legal counsel for guidance. Stay well and stay informed!


[1] Note: The federal regulations permit the physician to delegate the writing of diet orders to qualified dieticians.