OIG Issues Stark Warning to Skilled Nursing Facilities: Potential Abuse or Neglect of Residents Receiving Emergency Room Services is Being Underreported to Law Enforcement

by Cadwalader, Wickersham & Taft LLP
Contact

Cadwalader, Wickersham & Taft LLP

Introduction

On August 24, 2017, the Office of Inspector General (“OIG”) of the Department of Health and Human Services (“HHS”) issued an “Early Alert” that disclosed the preliminary results of its ongoing review of abuse of Medicare beneficiaries in skilled nursing facilities.  Specifically, OIG determined: (i) that a significant number of incidents of potential abuse or neglect of nursing facility residents receiving emergency care has not been reported to law enforcement as required under the Elder Justice Act; and (ii) that the Centers for Medicare & Medicaid Services (“CMS”) lacked adequate procedures to ensure proper reporting.  The Early Alert, which includes a list of suggestions for immediate remedial action to be taken by CMS, highlights the increased scrutiny that nursing facilities will face for failing to comply with the Elder Justice Act’s reporting obligations, and points to proactive measures nursing facilities can take, now, to mitigate risk of any enforcement action. 

Requirements to Report Abuse or Neglect of Residents of Skilled Nursing Facilities

The “Elder Justice Act,” adopted with the passage of the Affordable Care Act (“ACA”) effective March 23, 2011 (see 42 U.S.C. § 1320b-25), requires “covered individuals” -- including an owner, operator, employee or agent, of a long term care facility -- to [A] report to HHS (or the State Survey Agency) and one or more law enforcement entities any reasonable suspicion of a “crime” against any individual who is a resident of the facility; and [B] make such report within two hours after forming the suspicion that the resident suffered serious bodily injury, or within 24 hours if there is no serious bodily injury. 

Failure to make the required reports could result in civil monetary penalties of up to $300,000 and exclusion from participation in the Medicare and Medicaid programs.  Id.  Although the law went into effect in 2011, the corresponding regulations requiring skilled nursing facilities to develop and implement conforming policies and procedures do not go into effect until November 28, 2017.  See 42 C.F.R. § 483.12(b).

Separately, skilled nursing facilities must also report resident abuse, neglect, mistreatment, injuries of unknown origin, and misappropriation of resident property to the administrator of the facility and the State Survey Agency.  See 42 C.F.R. § 483.12(c); see also N.Y. Public Health Law § 2803-d and 10 N.Y.C.R.R. § 81.1 et seq.

OIG’s Audit

Although its review of skilled nursing facility abuse reporting is not yet complete, OIG issued its preliminary audit results through the Early Alert because of the “importance of detecting and combating elder abuse.”

Audit Methodology and Findings:  To conduct this audit, OIG reviewed hospital emergency room records of 134 residents of skilled nursing facilities transferred to the hospital, in which the emergency room staff assigned one of 12 primary diagnoses codes utilized for Medicare reimbursement claims that indicate potential abuse or neglect (e.g., adult sexual abuse, adult physical abuse, adult maltreatment).  OIG also reviewed the State Survey Agency records for each of the relevant skilled nursing facilities.  Based on these records, OIG found that, for 28% of these cases, there was no evidence that the underlying incident had been reported to law enforcement.  Notably, OIG assumed that every emergency room visit associated with one of the 12 “abuse” diagnostic codes was an incident reportable under the Elder Justice Act.  OIG, however, did not independently verify whether there was actual abuse or neglect of these individuals. 

Based on its findings, OIG concluded that CMS lacks procedures to enforce the Elder Justice Act, and specifically to ensure that incidents of abuse or neglect of nursing facility residents are being properly reported to law enforcement.  In particular, OIG noted that CMS does not “match” hospital Medicare claims for emergency room services with claims for nursing home reimbursement, to identify instances of potential abuse or neglect.

CMS acknowledged that it has not identified any instances in which a covered individual failed to make a report to law enforcement.  In its defense, CMS informed OIG that it has not taken any enforcement action yet because HHS has not yet delegated enforcement authority to CMS.  Furthermore, CMS stated that it has recently updated the State Operations Manual, used by the State Survey Agencies, to reference the applicable Elder Justice Act regulations, with an effective date of November 28, 2017. 

OIG’s Recommendations to CMS

In the Early Alert, OIG provided the following “suggestions” for CMS to take immediately:

  • Implement procedures to compare hospital Medicare claims for emergency room treatment with nursing home claims to identify incidents of potential abuse or neglect and to periodically provide the details of this analysis to the State Survey Agencies for further investigation of compliance with Elder Justice Act reporting obligations;
  • Continue to work with HHS to secure the authority to impose the civil monetary penalties and exclusion of providers pursuant to the Elder Justice Act;
  • Promulgate additional regulations, if necessary, to impose penalties for non-compliance with the reporting requirements;
  • Impose penalties when appropriate; and
  • Direct State Survey Agencies to refer suspected violations of the reporting obligations to CMS for appropriate action.

Lessons for Skilled Nursing Facilities

  • With the issuance of the Early Alert, the mandate to report to law enforcement, suspected crimes against residents, including abuse and neglect, will continue to be a compliance focus of OIG and will likely be an enforcement priority for CMS going forward. Nursing facilities need to revisit and, to the extent they have not done so already, update their policies and procedures to comply with the reporting obligations contained in the Elder Justice Act -- before the applicable regulations go into effect on November 28, 2017.
  • OIG focused its attention on skilled nursing facility residents receiving emergency room services. Skilled nursing facilities should likewise be particularly focused on resident transfers for emergency care for potential incident reporting pursuant to the Elder Justice Act.
  • OIG equated any emergency room visit associated with one of the 12 “abuse” diagnosis codes to be reportable under the Elder Justice Act. However, at the time of an emergency room transfer, nursing facilities in some cases may not have identified evidence of potential abuse of a criminal nature, and would not have the benefit of the emergency room physicians’ evaluation when the resident arrives at the hospital.  As a matter of course, skilled nursing facilities should consider requesting records of the emergency room diagnoses and, whenever one of the 12 codes has been assigned, presume that the incident should be reported to law enforcement if it has not been already, unless the evidence clearly indicates the coding is mistaken and no abuse took place. 

Bottom Line:  Nursing facilities -- and “covered individuals” -- that fail to heed OIG’s alarm may be putting themselves in regulatory jeopardy.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Cadwalader, Wickersham & Taft LLP | Attorney Advertising

Written by:

Cadwalader, Wickersham & Taft LLP
Contact
more
less

Cadwalader, Wickersham & Taft LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.