Massachusetts attorneys, Bernard J. Hamill, Quincy

Starvation - significant weight loss - under nutrition

It is against Federal Regulations to allow a Resident to Starve or suffer significant weight loss
unless proper nutrition is given and it is otherwise unpreventable

The CMS Guidelines define what is "significant" and what is "severe" weight loss:

SignificantWeight Loss vs Severe Weight Loss
1 month a weight loss of 5% is Significant Loss ; Greater than 5% is Severe weight Loss
3 months a weight loss of 7.5% is Significant Loss; Greater than 7.5% is Severe weight Loss
In 6 months a weight loss of 10% is Significant Loss; Greater than 10% is Severe weight Loss

Several Ftags (Federal Regulations) also address this problem:

Ftag 360
§483.35 Dietary Services
The facility must provide each resident with a nourishing, palatable, well-balanced diet that meets the daily nutritional and special dietary needs of each resident.

Ftag 325
§483.25(i) Nutrition
the facility must ensure that a resident--
§483.25(i)(1) Maintains acceptable parameters of nutritional status, such as
body weight and protein levels, unless the resident's clinical condition
demonstrates that this is not possible; and
§483.25(i)(2) Receives a therapeutic diet when there is a nutritional problem

Ftag 364
§483.35(d) Food
Each resident receives and the facility provides:
(1) Food prepared by methods that conserve nutritive value, flavor, and appearance;
(2) Food that is palatable, attractive, and at the proper temperature;
"Food-palatability" refers to the taste and/or flavor of the food.
"Food attractiveness" refers to the appearance of the food when served to residents.

Ftag 365
§483.35(d)(3) Food prepared in a form designed to meet individual needs; and

Ftag 366
§483.35(d)(4) Substitutes offered of similar nutritive value to residents who refuse food served

Ftag 367
§483.35(e) Therapeutic Diets
Therapeutic diets must be prescribed by the attending physician.
The intent of this regulation is to assure that the resident receives and consumes foods in the appropriate form and/or the appropriate nutritive content as prescribed by a physician and/or assessed by the interdisciplinary team to support the treatment and plan of care.

"Therapeutic Diet" is defined as a diet ordered by a physician as part of treatment for a disease or clinical condition, or to eliminate or decrease specific nutrients in the diet, (e.g., sodium) or to increase specific nutrients in the diet (e.g., potassium), or to provide food the resident is able to eat (e.g., a mechanically altered diet). If the resident has inadequate nutrition or nutritional deficits that manifests into and/or are a product of weight loss or other medical problems, determine if there is a therapeutic diet that is medically prescribed.

Ftag 322 Tube Feeding: §483.25(g)(2) A resident who is fed by a naso-gastric or gastrostomy tube receives the appropriate treatment and services to prevent aspiration pneumonia, diarrhea, vomiting, dehydration, metabolic abnormalities, and nasal-pharyngeal ulcers and to restore, if possible, normal eating skills.
Intent §483.25(g)
Clinical conditions demonstrating that nourishment via an naso-gastric tube is
unavoidable include:
- Lack of sufficient alertness for oral nutrition (e.g., resident comatose); and
- Malnutrition not attributable to a single cause or causes that can be isolated
and reversed. There is documented evidence that the facility has not been able
to maintain or improve the resident's nutritional status through oral intake.

CMS guidelines define what is meant by "unavoidable" nutritional parameters::

"Avoidable/Unavoidable" failure to maintain acceptable parameters of nutritional status:
"Avoidable" means that the resident did not maintain acceptable parameters of nutritional status and that the facility did not do one or more of the following: evaluate the resident's clinical condition and nutritional risk factors; define and implement interventions that are consistent with resident needs, resident goals and recognized standards of practice; monitor and evaluate the impact of the interventions; or revise the interventions as appropriate.
"Unavoidable" means that the resident did not maintain acceptable parameters of nutritional status even though the facility had evaluated the resident's clinical condition and nutritional risk factors; defined and implemented interventions that are consistent with resident needs, goals and recognized standards of practice; monitored and evaluated the impact of the interventions; and revised the approaches as appropriate.

Call us at 617-479-4300 if a loved one has been victimized by a lack of proper nutrition resulting in severe weight loss or starvation.

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