October 17, 2011

Congress included the Elder Justice Act in the historic Affordable Care Act last year. As a result, the health reform law requires long-term care facilities to report suspected crimes against residents more quickly and thoroughly than ever before. The law states that a facility and any owner, operator, employee, manager, agent, or contractor who reasonably suspects a crime must report it to both local law enforcement and the state survey agency.

While the requirement has been on the books for more than a year, no regulation or additional guidance was available until this June. At that time, the Centers for Medicare & Medicaid Services released a memorandum officially informing state survey directors of the requirements in the law.

Although the document is helpful, how these new reporting requirements will play out in practice remains to be seen. However implementation develops, these reporting requirements pose administrative and investigatory challenges to long-term care facilities.

In certain instances, the new statute tightens the reporting time frame. When a possible crime results in serious bodily injury, the facility and involved individuals must make a report within 2 hours of when the crime was suspected. Less-violent crimes must be reported within 24 hours after suspicion.

The statute defines serious bodily injury as one involving extreme physical pain, substantial risk of death, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty. Also, injury requiring medical intervention and sexual abuse, as defined by current federal law, are considered serious bodily injury.

Otherwise, the Elder Justice Act defines "crime" according to local law, making it difficult to universally define many possible crimes. Communication and coordination between long-term-care facilities and law enforcement concerning the definition of crime, as well as the nature of the facilities’ reporting obligations, are important. Facilities need to know exactly when they have an obligation to report, and law enforcement should be prepared for an increased volume of reports from long-term care facilities.

Facilities are also responsible for annually notifying facility owners, operators, employees, managers, agents, and contractors – "covered individuals" – of their obligation to report suspected crimes. Facilities must post conspicuous notices of employees’ rights to file complaints, of procedures for filing complaints, and of employees’ rights to file a subsequent complaint in the event they experience employer retaliation.

Crime and Punishment

There are severe consequences for covered individuals and facilities that do not comply with this statute. A covered individual’s failure to report can result in a civil monetary penalty up to $300,000.

Covered individuals may lose their jobs, and facilities may become ineligible for Medicare and Medicaid reimbursement. While this statute does not expressly provide for individual liability, nursing home administrators could conceivably face personal liability for a facility’s failure to report.

Violations of this statute are to be cited through the same survey F Tags that were in use before the Elder Justice Act. For example, F Tag 226 (for the failure to develop or implement facility policies and procedures for reporting abuse and neglect) and F Tag 493 (for the failure to establish or implement policies regarding the management and operation of the facility) may be used to address violations.

Although the new reporting requirements are broad and potentially burdensome, the purpose is to protect the well-being and safety of long-term care residents. Two cases demonstrate how the new reporting requirements could prevent harm to residents and reduce legal turmoil for facilities.

In a 2011 case, the CMS’s Departmental Appeals Board upheld a $4,500 civil monetary penalty and citation at the immediate-jeopardy level against a skilled nursing facility for failing to report allegations of physical abuse after a resident had repeatedly complained about mistreatment.

While the resident’s complaints were repetitive and in hindsight unsubstantiated, the board noted that facility staff may not "exercise discretion whether to report or not report a complaint of abuse or mistreatment. ... [T]he implicit premise of the regulation is that residents in skilled nursing facilities, being among the most vulnerable members of our society, must be protected at all costs from even the potential of abusive conduct."

Another Departmental Appeals Board case, from 2008, upheld a citation at the immediate-jeopardy level and $22,500 in civil monetary penalties for the improper reporting of an incident. One housekeeper had witnessed another inappropriately touching a resident.

The witnessing housekeeper immediately made a report to a licensed practical nurse on a Saturday morning. The nurse did not report the incident to the director of nursing until the next Monday morning. The administrator was informed 20 minutes later. At about noon on Monday, the administrator notified a state surveyor. The police were not alerted until Tuesday, after prompting by the state surveyor. The housekeeper who had been seen inappropriately touching the resident continued working at the facility both Sunday and Monday, constituting the immediate jeopardy cited.

These cases demonstrate why simply reporting a possible crime or any other troubling incident up the chain of command isn’t always enough in long-term care. The new reporting requirements can improve resident safety, and facilities must follow them to continue receiving Medicare and Medicaid reimbursements. Some tips for effectively implementing and communicating these reporting requirements include the following:

--Coordinate with local law enforcement. Facilities need to understand what constitutes a crime under local law. Law enforcement needs to be aware of the new reporting requirements.

--Review existing reporting protocols and timing requirements. Develop new policies, procedures, and protocols as necessary to ensure compliance with these reporting requirements.

--Ensure that procedures exist for appropriate reporting on nights and weekends.

--Make it known within the facility that multiple individuals responsible for reporting a suspected crime may (but are never required to) file a single report, but that those making a report together should be individually identified.

--Be clear that covered individuals who become aware of a suspected crime after it has been reported should add information to the original report, including the names of the covered individuals and the date and time they became aware of the suspected crime.

--Remain vigilant about regularly checking the Medicare-Medicaid exclusion list to avoid employing excluded staff.

The CMS June 2011 memorandum is available at www.cms.gov/Surveycertificationgeninfo/downloads/SCLetter11_30.pdf.CfA

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