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Resident smoking policies

September 25, 2015
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Too often residents in skilled nursing facilities (SNFs) have died or suffered serious burns as a result of a fire caused by cigarette smoking. The Centers for Medicare and Medicaid Services (CMS) clarified its position about smoking in nursing facilities in its 2011 Smoking Safety in Long Term Care Facilities memo, but cigarette smoking remains an issue at many facilities. Exploring the contours of the applicable regulations and strategies can help avoid negative outcomes.

Resident rights

Approximately 15,400 SNFs participate in the Medicare and/or Medicaid program. As such, they are obligated to follow the federal regulations regarding SNFs. One of those regulations states that residents have the right to “receive services in the facility with reasonable accommodation of individual needs and preferences, except when the health or safety of the individual or other residents would be endangered.” 42 C.F.R. § 483.15(e). However, a resident’s right to smoke cigarettes in a SNF is not unfettered, and facilities must ensure that residents who smoke are not at risk of harming themselves or others.

Increasingly, SNFs have decided to become smoking-free environments. It is permissible for a SNF to not allow residents to smoke on its premises as long as that restriction was made clear prior to admission. If a SNF decides to prohibit resident smoking, it may not impose that restriction on residents who were admitted while the facility permitted smoking. For SNFs transitioning into smoking-free environments, prospective residents must be informed of the policy change during the pre-admissions process.

Case studies

The two case studies below are very different, yet CMS determined that “immediate jeopardy” existed and imposed substantial civil money penalties in both. Both providers challenged CMS’ findings through the appeals process. In one case, the facility lost its appeals. In the other case, the Administrative Law Judge’s (ALJ) decision is pending.

Case #1

In 2008, a 45-year-old resident was admitted to a SNF with a list of prescription medications, including Ambien, Remeron, Fentanyl, Percocet, Amitriptyline and Methadone. The side effects of these medications may impair thinking and/or cause drowsiness, fainting or dizziness.

On the day of admission, the resident underwent a smoking safety screening. The screening results showed he was able to safely light a cigarette, hold a cigarette independently, use an ashtray appropriately, keep ashes from falling on himself and extinguish a cigarette. He was cognitively intact and had good decision-making skills. The smoking screen indicated by a “no” response that the resident did not exhibit effects from medications including sedation, drowsiness or dizziness.

If “yes” was answered to all of the questions on the smoking screen, the screener could determine whether the resident could smoke alone or with assistance. Alternatively, if any question was answered with a “no,” the screener was supposed to select a type of supervision while the resident smoked. Even though one answer was “no,” the screener indicated that the resident was “able to smoke independently.” There were no further assessments in spite of the medications’ potential side effects.


Alan C. Horowitz

Partner at Arnall Golden Gregory

Alan C. Horowitz

Alan C. Horowitz, Esq., is a partner at...