An Update on Reporting of Crimes in Long Term Care Facilities

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

On August 12th, 2011, the Centers for Medicare and Medicaid Services (“CMS”) released an update to the June 17th, 2011, Survey and Certification Memorandum 11-30-NH (the “Memorandum”) 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”) (click here for the updated Memorandum: Updated S&C 11-30-NH).

The Memorandum was published due to the passage of the Elder Justice Act that, in part, requires certain covered individuals to report reasonable suspicions of crimes in that occur in LTCs to the ISDH and a local law enforcement agency. The revised memorandum includes a Questions and Answers document, at pages 13-18, and guidance on the content of required notice regarding anti-retaliation provisions.

In addition, on August 31st, 2011, the ISDH released guidance of its own in the form of ISDH Program Advisory LTC-2011-01 (the “ISDH Program Advisory”). This ISDH Program Advisory provides additional guidance for facilities, as well as sample forms and an implementation timeline that facilities should follow.
CMS Questions and Answers

The additional CMS guidance provides, unfortunately, only a few new pieces of information. For the most part the Questions and Answers reiterate information that was already communicated in the original Memorandum. That being said, the following are new guidance from CMS:
• Reporting a reasonable suspicion of a crime does not require “first-hand knowledge” of the events giving rise to the reasonable suspicion.

• Continuing Care Retirement Communities must comply with the reporting requirements and, specifically, notices that are required to be posted must be so posted in the SNF/NF portion of the community and not in each building or unit of the entire community.

• To promote a culture of safety, and to encourage reporting of reasonable suspicions of crimes, it is not recommended that facilities require covered individuals report to the facility when a report of a reasonable suspicion of a crime is made. Anti-retaliation provisions of the reporting requirement reinforce this premise.

     However, this guidance must be balanced with the requirement for facilities to ensure that all alleged violations involving mistreatment, abuse, neglect, injuries of unknown origin and misappropriation of resident property are immediately reported to the administrator and other officials in accordance with current law.

• The 2-hour and 24-hour reporting requirements for reports of reasonable suspicions of crimes (2-hours when events results in serious bodily injury, and 24-hours for all other reports) are based on actual (clock) time, and not business hours.

• Incidents such as falls, bruising/injuries of unknown origin, resident-on-resident abuse, and other events, may be subject to the crimes reporting requirement, but are case specific. Each of these events would be reportable as an incident, but whether there is a reasonable suspicion of a crime depends on the surrounding circumstances.

Indiana State Department of Health Guidance

The ISDH released ISDH Program Advisory LTC-2011-01, which includes several helpful attachments. The ISDH Program Advisory hits many similar points that the CMS Memorandum discusses, but gives specific guidance on the reporting process and contact information for submitting reports to the ISDH, gives recommendations for implementation of the reporting requirements, includes templates for required and recommended postings, a revised Incident Report Form, and an ISDH Q&A document.

The ISDH materials may be located on the LTC Incident Reporting website at http://www.in.gov/isdh/23638.htm (documents are at the bottom of the page under “Program Guidance and Advisory Letters”). Most notably, the ISDH recognizes that the reporting requirements is current law and is in effect. However, the ISDH sets out an implementation timetable in the form of a checklist (see Implementation Checklist for Facilities) that does provide for some additional time for facilities to get up to speed with the law.

Recommendations

LTC facilities should immediately develop policies and procedures implementing the crimes reporting requirements. According to CMS, the law is in effect and should be enforced by State and Federal Surveyors.

Training of covered individuals (owners, operators, employees, managers, agents or contractors of the facility) regarding their individual duty under the requirement is critical. Each facility will want to be sure that each covered individual understands his/her responsibility, how to make a report, how to join a group report if a group report is being made, that the individual is are not to be retaliated against for making a report to the ISDH or local law enforcement and if retaliation occurs how the individual can make a report regarding such retaliation.

LTC facilities need to reach out to their local law enforcement agency, either the county sheriff or city/town police, as applicable, regarding communication of reports. Establishing a relationship with local law enforcement for purposes of reporting reasonable suspicions and understanding what constitutes a crime in the local jurisdiction are key components to implementation.

If you have any questions about the crime reporting requirements, please contact Zach Cattell at 317-636-4341 or zcattell@ihca.org.