Reporting of Crimes in Long Term Care Facilities

by Zach Cattell, J.D., IHCA General Counsel

On June 17th, 2011, the Centers for Medicare and Medicaid Services (“CMS”) released Survey and Certification Memorandum 11-30-NH (the “Memorandum”) (for a copy click: S&C 11-30-NH) that provides guidance to State Survey Agencies (“SSA”), the Indiana State Department of Health (“ISDH”) in Indiana, regarding the reporting of reasonable suspicions of crimes in long term care facilities (“LTC”), also known as the “Section 1150B requirements.” The requirement for covered individuals to report suspicions of crimes in LTCs to the SSA and at least one law enforcement agency, as well as requirements on LTCs to notify covered individuals of their duty to report, all stem from the Elder Justice Act that was part of the Patient Protection and Affordable Care Act of 2010.

Summary of the Memorandum

1. Scope and Applicability

The Memorandum has been long expected by the LTC industry and by SSAs and serves as the only official guidance from CMS on the suspicion of crimes reporting requirement. CMS acknowledges that there are “no CMS regulations that apply specifically to section 1150B [the reporting requirements]” and the Memorandum serves to explain the requirements of the new law so that it is implemented without any delay that may be caused due to the rule-making process. CMS notes further guidance will be released that addresses implementation of the Civil Monetary Penalty component of the Section 1150B requirements.

The reporting law applies to all LTC facilities that received at least $10,000 in annual federal funds during the preceding year. The Memorandum specifies that the reporting obligation applies to Nursing Facilities, Skilled Nursing Facilities, hospices that provide services in long-term care facilities and ICFs/MR. Based on the Memorandum it does not appear that CMS has interpreted Section 1150B to apply to assisted living facilities receiving Medicaid waiver funds. Under the new law, a covered long term care facility must:

1. Determine each year whether it received at least $10,000 in Federal funds in the preceding year;

2. Annually notify all covered individuals of the individual’s reporting obligation (covered individuals are owners, operators, employees, managers, agents or contractors of the facility);

3. Post a notice in appropriate and conspicuous locations for employees that details employees’ rights, including information on how to file a complaint with the SSA if an employee is retaliated against for making a report to the SSA pursuant to the reporting requirement;

4. Not retaliate against a covered individual who lawfully reports a reasonable suspicion of a crime under Section 1150B.

The Memorandum then goes on to discuss functions that will be executed by “[a] facility that effectively implements section 1150B,” which are:

1. Coordination with State and local law enforcement to determine what actions are considered crimes;

2. Review existing facility policies and procedures to ensure compliance with existing CMS and State requirements for reporting incidents and complaints (i.e. policies and procedures in place for reporting of abuse, neglect or misappropriation of resident property); and

3. Develop and maintain policies and procedures to ensure compliance with Section 1150B.

Civil Monetary Penalty and exclusion sanctions may apply to individuals who fail to comply with the reporting requirements, to LTC facilities that retaliate against an employee who makes a lawful report, and LTC facilities are ineligible to receive Federal funds for any period they employ an excluded individual due to certain violations of the new law.

2. Covered Individual Reporting

Covered individuals (owners, operators, employees, managers, agents or contractors of the facility) are required to report reasonable suspicions of crimes to the SSA and at least one local law enforcement agency. The required reporting time period depends on whether the reasonable suspicion was based on events that result in serious bodily injury; these suspicions must be reported immediately and no later than 2 hours after the suspicion was formed. All other events giving rise to a reasonable suspicion of a crime must be reported no later than 24 hours after the suspicion was formed.

While each covered individual has the right and duty to report to the SSA and at least one local law enforcement agency, multiple covered individuals may file a single report that includes information about the suspected crime from each covered individual. Each covered individual that joins a multiple-person report should be specifically identified. A multiple-person report may be further supplemented with additional information should additional covered individuals become aware of the incident or events giving rise to a reasonable suspicion of a crime. Thought the multiple-person reporting mechanism may be instituted by a facility, a facility may not prohibit an individual from directly reporting to the SSA or a local law enforcement agency.

3. Survey Agency Actions Based on Reports Received

The Memorandum also provides SSAs with guidance on distinguishing between types of allegations that it may receive from covered individual reports. The allegation categories specified by CMS are (1) Events Giving Rise to a Suspected Crime; (2) Allegations of Individual Failure to Report; and (3) Allegations of Facility Failure to Comply with Section 1150B. In each case, if an SSA receives a report that falls into any of the above three categories, the SSA must assess the reported information and investigate based upon existing CMS policies and procedures for addressing complaints or incidents. Any deficiency citations issued will be ones that are currently specified in existing CMS regulations and guidance.

For example, the Memorandum states that an allegation that a covered individual did not report or were not informed of their duty to report could lead to a F226 tag (failure to develop and/or implement policies and procedures for reporting abuse/neglect) or an F493 tag (failure to develop and/or implement policies and procedures regarding management and operation of the facility).

Association Actions and Next Steps
IHCA and the AHCA have been actively engaged in analysis of the Memorandum, and IHCA has engaged the ISDH to develop further State-specific guidance regarding implementation of the Memorandum in Indiana. While the Memorandum answers several questions that had arisen since passage of the law, open questions regarding what constitutes “reasonable suspicion” and “crime” still need to be addressed in order that LTC facilities are given proper guidance to comply with this very broad law.

AHCA has also released a sample reporting form (click here for a copy) and a sample policy and procedure (click here for a copy) that facilities may use as the basis for their own individualized reporting form and policy and procedure. In addition, the IHCA is considering appropriate steps to take with law enforcement leadership in Indiana to help further define the reporting requirement.

Conclusion

The Memorandum expressly states that SSAs are to focus on “(a) the events giving rise to the reports made under this [the Section 1150B] requirement and (b) the LTC facility’s responsibilities under existing CMS conditions and requirements to report incidents, prevent abuse or neglect, provide quality care and a safe environment, train staff, and similar duties of direct relevance to safety and quality of care.” The IHCA recommends that LTC facilities immediately develop stand alone policies and procedures addressing the Section 1150B requirements, and examine existing policies and procedures addressing the existing CMS requirements and incorporate the new Section 1150B reporting requirements into those policies and procedures.

The above guidance is not intended to be specific legal advice and facilities should seek independent legal counsel when developing facility-specific policies.

The IHCA is able to assist facilities find legal counsel. Please contact Zach Cattell at zcattell@ihca.org or 317-616-9001.