Office of Clinical Standards and Quality/Survey & Certification Group

Transcription

1 DEPARTMENT OF HEALTH & HUMAN SERVICES Centers for Medicare & Medicaid Services 7500 Security Boulevard, Mail Stop C Baltimore, Maryland Office of Clinical Standards and Quality/Survey & Certification Group DATE: TO: FROM: Month XX, 20XX State Survey Agency Directors Director Survey and Certification Group Ref: S&C: 12-XX- SUBJECT: Nursing Homes - Clarifications on Issues Related to the Federal Regulations for Abuse, Neglect, Mistreatment, and Misappropriation of Resident Property Memorandum Summary Guidance: This memorandum clarifies issues related to the Federal requirements for abuse, neglect, mistreatment, and misappropriation of resident property for nursing homes (deficiencies at Tags F223-F226); and Facility Responsibility: Clarifies that a facility is responsible for the acts of their employees. Background State Survey Agencies have requested clarifications from CMS regarding the interpretive guidance for 42 C.F.R (b) and (c) - F223-F226, related to the Federal regulations to prevent abuse, neglect, mistreatment, misappropriation of resident property, and facility reporting requirements. Facility Responsibility Under Tags F223 and 224, a nursing home is responsible for the actions of its employees, contractors, and volunteers. Some facilities contend that they should not be held responsible for the actions of the employee/contractor/volunteer if they have developed the required policies and procedures to prohibit abuse, neglect, mistreatment, and misappropriation of property and conducted the appropriate screening and training of its employees/contractors/volunteers. According to 42 C.F.R (b), The resident has the right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion. Even if a facility provides evidence that it did everything to prevent abuse or neglect, this regulatory language means that a facility is responsible for the actions of employees, contractors, and volunteers who are under facility management. I. Abuse F C.F.R (b) The resident has the right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion.

2 Page 2 State Survey Agency Directors The definition of abuse is included in regulatory language found at 42 C.F.R , which states: Abuse means the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish. Actions that are considered willful include, but are not limited to: Physical abuse (such as hitting, slapping, pinching and kicking) Verbal abuse/mental abuse (such as use of oral, written or gestured language that willfully includes disparaging and derogatory terms, humiliation or threats of punishment) Sexual abuse (such as sexual harassment and sexual assault) Involuntary seclusion (such as separation of a resident from other residents or from their room or confinement to their room against the resident s will and without valid reason). The failure of a witness or resident to report an allegation of abuse, neglect, mistreatment, or misappropriation of property does not refute that it has occurred. For example, if a nurse aide witnesses an act of abuse but fails to report the incident, the failure to report does not support a conclusion that the abuse did not occur. Likewise, if a resident is abused but does not allege abuse, the resident s inability to provide information about the incident is immaterial when the abuse is substantiated by other supporting evidence. Surveyors should use information from a variety of sources to substantiate abuse. This information may include: interviews with residents, family members, facility staff, or others observation record review. NOTE: See Pub. 107, State Operations Manual, Appendix P, Task 6 Section E. - Information Analysis for Deficiency Determination. If the resident is the primary source of information, the team should conduct further information gathering and analysis. This may include additional interviews with family and staff or record reviews to supplement or corroborate the resident s report. If additional sources of information are not available, determine if the interviewees are reliable sources of information and if the information received is accurate. If so, citation of a deficiency may be based on resident information alone. When investigating an allegation of abuse, surveyors should recognize that some situations of abuse do not result in an observable physical injury or psychosocial outcome. A physical mark on a resident s body is not needed to conclude that abuse has occurred. The decision about whether physical harm, pain, or mental anguish has occurred is not solely dependent on the resident s response to the abuse. The reasonable person concept should be applied in cases where the resident s reaction to a situation of abuse is markedly incongruent with the level of reaction the reasonable person would have to that situation or when there is no discernable response because of a resident s mental impairment. NOTE: See Pub. 107, SOM, Appendix P, IV. Deficiency Categorization Section E. - Psychosocial Outcome Severity Guide, for the Application of the Reasonable Person Concept.

3 Page 3 State Survey Agency Directors Staff-to-Resident Abuse The facility is responsible for the actions of its employees, including intentional acts by employees who are aware they are doing something wrong and are in conflict with the facility s policies and procedures. Contractors and volunteers are held to the same standard as employees. In 2002, CMS released a memorandum that provided a clarification on defining and citing abuse. This memorandum states: Properly trained staff should be able to respond to resident behavior. CMS does not consider striking a combative resident an appropriate response. Retaliation by staff is abuse and should be cited as such and reported to the appropriate law enforcement agency and, if appropriate, the Medicaid Fraud Control Unit. 1 It is not acceptable for an employee to claim his/her action was reflexive or a knee-jerk reaction and was not intended to cause harm. The employee knew or should have known that the action could cause physical harm, pain, or mental anguish. It is important to remember that abuse is defined as willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish. A reasonable person would conclude that being hit, slapped, pinched, kicked, verbally threatened or talked to with disparaging or frightening terms causes harm and that any type of corporal punishment would cause mental anguish. In applying the reasonable person concept, surveyors should consider that nursing home residents are vulnerable and dependent on staff for the provision of care and services. Humiliation and recurrent fear can be reasonably expected to occur in nursing home residents that are victims of abuse. 2 Based on this vulnerable population, CMS has determined that any occurrence of staff-to-resident abuse will be cited at the level of harm of G or above for past or current noncompliance at F223. NOTE: It is recommended that documentation reflect the reasonable person concept in those situations in which a resident is unable to speak for him/herself and the severity is at harm and/or above. Nursing homes have diverse populations including residents who have conditions such as dementia, mental illness, or intellectual disabilities. When a nursing home accepts a resident for admission, the facility has assumed the responsibility to adequately assess, develop an individualized care plan, and provide interventions or services to meet the resident s needs from the time of admission. Staff members are expected to be in control of their own behavior and understand how to work with the nursing home population. This clarification is not implying that every situation that occurs between an employee and a resident should be considered abuse. Accidents between staff and residents do occur. Examples of accidents that are not considered abuse include: a staff member that trips and falls into a resident; or a staff member that quickly turns around or backs up into a resident that they did not know was there. 1 See S&C dated March 28, This memorandum was incorporated into the following sections of Pub. 107, State Operations Manual: Section 7701 and Appendix PP, Interpretive Guidelines for Long Term Care Facilities, Interpretive Guidelines for 42 C.F.R (b). 2 The following reference supports this statement. Comijs et al. (1999) found that victims of elder mistreatment had significantly higher levels of psychological distress than non-victims. Appearing fearful, withdrawn, nervous, agitated, angered, passive, embarrassed, dissociated, or depressed, along with the quality of interaction with caregivers may indicate the possibility of elder abuse. Feelings of suicide and helplessness may also be indicative of abuse (Anetzberger, 1997).

4 Page 4 State Survey Agency Directors It is the facility s responsibility to ensure that all staff members are trained in appropriately providing a resident s care. CMS regulations and policies address nurse aide training in relation to preventing resident abuse. In 42 C.F.R (b) the regulation addresses the curriculum of the nurse aide training program. NOTE: Section 6121 of the Patient Protection and Affordable Care Act of 2010, amending Sections 1819(f)(2)(A)(i)(I)) and 1919(f)(2)(A)(i)(I) of the Social Security Act, clarifies that nurse aide training includes initial and annual dementia management and patient abuse prevention training for all nurse aides. The nurse aide must receive training for the following: Understanding the behavior of residents with dementia and/or cognitive impairments; Techniques and appropriate responses for addressing the unique needs and behaviors of residents; and, How to modify their own behavior in response to a resident s behavior. Resident-to-Resident Abuse An incident involving a resident who willfully inflicts injury upon another resident should be reviewed as a potential situation of abuse under the guidance for 42 C.F.R (b) at F223. Willful means that the individual intended the action itself and that he/she knew or should have known that the action could cause physical harm, pain, or mental anguish. In determining willful, surveyors should conduct interviews, observe the resident, and review the following information in the resident s record, which includes but is not limited to the Resident Assessment Instrument, progress notes, physician s orders, and nurses and consultants notes regarding the assessment of the resident s overall condition and behavioral history. A surveyor should not automatically assume that abuse did not occur when a resident is found to have a cognitive impairment (through observation, record review or interview) since the resident may have been capable of committing a willful act. In instances when a resident s willful intent cannot be determined, a resident-to-resident altercation should be reviewed under the guidance at 42 C.F.R (h)(2) F323 which requires, The facility must ensure that (2) Each resident receives adequate supervision and assistance devices to prevent accidents. The interpretive guidelines provide guidance to surveyors for evaluating resident-to-resident altercations as follows: The facility is responsible for identifying residents who have a history of disruptive or intrusive interactions, or who exhibit other behaviors that make them more likely to be involved in an altercation. The facility should identify the factors (e.g., illness, environment, etc.) that increase the risks associated with individual residents, including those (e.g., disease, environment) that could trigger an altercation. The care planning team reviews the assessment along with the resident and/or his/her representative, in order to identify interventions to try to prevent altercations. The surveyor should refer to the guidance at F323 for information regarding the failure to provide adequate supervision. Visitor-to-Resident Abuse The intent of the regulation at (b) states that The facility must ensure the health and safety of each resident and that residents must not be subjected to abuse by anyone, including,

5 Page 5 State Survey Agency Directors but not limited to, facility staff, other residents, consultants or volunteers, staff of other agencies serving the resident, family members or legal guardians, friends, or other individuals. The facility should have appropriate policies that address the prevention of abuse, mistreatment or misappropriation of resident property, including how to ensure the health and safety of each resident with regard to family members or legal guardians, friends, or other individuals. According to the regulations at F172, (j) - Access and Visitation Rights: (j)(1) - The resident has the right and the facility must provide immediate access to any resident by the following: (vii) Subject to the resident s right to deny or withdraw consent at any time, immediate family or other relatives of the resident; and (viii) Subject to reasonable restrictions and the resident s right to deny or withdraw consent at any time, others who are visiting with the consent of the resident. The interpretive guidelines at F172 indicate the following regarding visiting: Immediate family or other relatives are not subject to visiting hour limitations or other restrictions not imposed by the resident. Likewise, facilities must provide 24-hour access to other non-relative visitors who are visiting with the consent of the resident. These other visitors are subject to reasonable restrictions according to the regulatory language. As noted in the guidelines at F172, the facility must provide visits subject to reasonable restrictions. Facility policies should address the reasonable restrictions including, but not limited to: Protecting the security of all facility residents, such as keeping the facility locked at night; Denying access or providing limited and supervised access to a visitor if that individual has been found to be abusing, exploiting, or coercing a resident; Denying access to a visitor who has been found to have been committing criminal acts such as theft; Denying access to visitors who are inebriated and/or disruptive; Changing the location of visits to assist care giving or protect the privacy of other residents, if these visitation rights infringe upon the rights of other residents in the facility; or Changing how the facility system monitors visits, such as with the use of a log. II. Neglect, Mistreatment and Misappropriation of Resident Property F C.F.R (c) - Staff treatment of residents. The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property. The mere existence of a policy does not meet the requirement at F224, since the facility also must implement those policies & procedures. The Quality Assessment & Assurance Committee is responsible for evaluating the effectiveness of facility policies and procedures. Measures to implement a policy can only be understood as sufficient if these measures are in place, can be readily described by staff, and provide adequate resident protections. Neglect

6 Page 6 State Survey Agency Directors 42 C.F.R Neglect means failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness. The facility s policies and procedures that prohibit neglect should include how the facility will provide supervision, monitoring, sufficient and knowledgeable staff, and appropriate oversight and support from the administration. In addition, these policies and procedures must be implemented, ensuring that the facility: Has an awareness of developing or changing conditions; Paid attention to conditions at an early/preventable stage; and Took timely action when a resident or residents developed the conditions. Clarification was requested regarding situations in which a surveyor may consider the potential for investigating and citing F224 for neglect. Neglect can be the result of failure by an individual staff member, several staff, or failure of facility processes. An act of neglect can be an act of omission or commission. There is nothing that precludes a surveyor from citing F224, if the surveyor identifies an aggregation of failures to provide goods and services a resident needs to maintain physical or mental health and/or prevent physical or psychosocial harm or pain. As a surveyor identifies noncompliance in the areas of quality of care or quality of life, he/she must cite the deficiency at the appropriate regulatory tag. In addition, he/she should consider process failures that, after investigation, could lead to a finding of neglect. Neglect at F224 should not be cited in addition to the quality of care or quality of life Tag unless the incident(s) of neglect includes a failure either for an individual resident over time or across multiple issues, or for a group of residents for a specific issue(s). For example, indicators of neglect may include, but are not limited to, being left to sit or lie in urine or feces, isolating dependent residents by leaving them in their rooms or other isolated locations, or failing to answer call bells to provide needed assistance. Surveyors should investigate whether these indicators constitute an aggregation of failures on the part of the facility and rise to the level of neglect. Mistreatment Mistreatment refers to actions that cause harm or have the potential to cause harm whether or not harm to the resident was intended. Examples of mistreatment include, but are not limited to: A situation in which a resident s behavior may be inappropriately managed as a result of the caregiver s inexperience or lack of training; Taking unauthorized photos of residents using any type of equipment (e.g., cameras, mobile phones) and keeping or distributing them (e.g., social media websites, text/picture messages); Instances when intimate relationships have developed between a staff member and a resident within a facility. In such a case when there is no intent to cause harm, it is considered an abuse of power and position, is professionally unethical, and should be considered mistreatment; or, Instances when a resident has given his/her money or belongings to staff as a result of coercion, or because the resident believes that it was necessary (e.g., in order to receive good care). Facility staff is in a position that may be perceived as one of power over a resident. As such, staff may be able to manipulate or unduly influence decisions by the resident. Staff must not accept or ask a resident to borrow personal items or money, nor

7 Page 7 State Survey Agency Directors should they attempt to gain access to a resident s holdings, money, or personal possessions through persuasion, coercion, request for a loan, or solicitation. Clarification has been requested regarding the difference between misappropriation of resident property and mistreatment as it relates to resident property. Misappropriation of resident property means the deliberate misplacement, exploitation, or wrongful, temporary, or permanent use of a resident s belongings or money without the resident s consent (42 C.F.R ). Mistreatment is the inappropriate use of a resident s property with the resident s consent obtained through coercion, solicitation, or persuasion. Misappropriation of Resident Property Misappropriation of resident property means the deliberate misplacement, exploitation, or wrongful, temporary, or permanent use of a resident s belongings or money without the resident s consent (42 C.F.R ). Resident s property includes all residents possessions, regardless of their apparent value to others. Misappropriation of resident property includes the diversion of a resident s medication(s) such as controlled substances for staff use. If the surveyor, during the investigation, has determined that a resident s medications were diverted for staff use, the SA should make referrals to the following agencies as appropriate: local law enforcement; State Board of Nursing; State Board of Pharmacy; and possibly the State licensure Board for Nursing Home Administrators. If noncompliance with 42 C.F.R (c) has been identified regarding staff diversion of a resident s medication, then concerns with additional requirements also may have been identified. The surveyor is cautioned to investigate these related additional requirements before determining whether noncompliance with the additional requirements may be present. Examples of some of the related requirements that may be considered when noncompliance related to staff diversion of medications has been identified include the following: F309 For evidence and/or potential outcomes such as unrelieved pain. For example, evidence that on a particular shift, or when a particular staff member is working, that the resident s pain symptoms are not relieved to the extent possible, but the pain symptoms are met to the extent possible on other shifts; F425 Pharmacy Services for policies for at a minimum, safeguarding and access, monitoring, administration, documentation, reconciliation and destruction of controlled substances; F431 Pharmacy service consultation, drug records, and reconciliation of controlled drugs; F514 Accuracy of medical record for the documentation of the administration of the medication and outcomes; and F520 Quality assessment and assurance for how the committee monitors the provisions of controlled substances from ordering through disposal. III. Hiring and Reporting F225 Hiring:

8 Page 8 State Survey Agency Directors 42 C.F.R (c)(1)(ii) The facility must not employ individuals who have been (A) Found guilty of abusing, neglecting, or mistreating residents by a court of law; or, (B) Have had a finding entered into the State nurse aide registry concerning abuse, neglect, mistreatment of residents or misappropriation of resident property. It has come to our attention that clarification has been requested in relationship to hiring practices and criminal convictions. According to F225, if a facility determines that actions by a court of law against an employee are such that they indicate that the individual is unsuited to work in a nursing home (e.g., felony conviction of child abuse, sexual assault, or assault with a deadly weapon), then the facility must report that individual to the nurse aide registry (if a nurse aide) or to the State licensing authorities (if a licensed staff member). Such a determination by the facility is not limited to mistreatment, neglect and abuse of residents and misappropriation of their property, but to any treatment of residents or others inside or outside the facility which the facility determines to be such that the individual should not work in a nursing home environment. It has been noted that deficiencies have been issued at F225 when surveyor review of employee personnel files reveals a facility failure to screen a potential employee prior to employment. If a facility has not developed or implemented their policies and procedures related to the screening procedures related to the abuse protocol, the facility should be cited for noncompliance at F226 (see below). If it is determined that the facility employed an individual who was found guilty by a court of law of abusing a resident or had a finding entered into the State nurse aide registry, the deficiency would be issued at F225. While it may be good practice, the Federal regulations do not require the facility to check any State or Federal registries or agencies for employees who are not nurse aides, but the facility must conduct required screening. Immediate Reporting: 42 C.F.R (c)(2) The facility must ensure that all alleged violations involving mistreatment, neglect, or abuse, including injuries of unknown source, and misappropriation of resident property are reported immediately to the administrator of the facility and to other officials in accordance with State law through established procedures (including to the State survey and certification agency). CMS recognizes that States have different reporting requirements that could go beyond the Federal requirements or are more specific than the Federal requirements. For example, some SAs require that all falls be reported to the SA. The SA should continue to manage and investigate these cases under their licensure authority; these cases do not necessarily meet the Federal definition of abuse, neglect or mistreatment. If the State determines that these occurrences do meet the definition of abuse, neglect, or mistreatment, as outlined in this memorandum, the SA must assess whether the nursing home has met the requirements for reporting and investigating these cases under 42 C.F.R (c) (F225). If the facts surrounding the situation lead a reasonable person to suspect a violation has occurred, it is unnecessary for an individual to allege abuse, neglect, mistreatment or misappropriation of property. An allegation may be verbal or in writing. If a verbal report is made to the SA, the facility must have documentation of the date and time of when the report was made to the SA. Previously, CMS clarified that immediately means as soon as possible, but should not exceed 24 hours after discovery of the incident, in the absence of a shorter State timeframe requirement. It has been reported that some providers take 24 hours to investigate all alleged violations and

9 Page 9 State Survey Agency Directors only report the incident if it is substantiated. This interpretation does not meet the intent of the requirement. The intent of the regulation at F225 is that as soon as the facility is aware of a situation that meets the reporting requirements, they must immediately notify the administrator, and other officials in accordance with State law, including the State Survey Agency. The surveyors must determine whether the allegation was reported as soon as possible. Reporting is not expected to take 24 hours. 3 Some facilities are conducting an investigation of an allegation prior to reporting it to required officials. While it may be necessary for a facility to make an initial evaluation as to whether or not an incident potentially meets one or more of the reporting criteria, the thorough investigation should be completed after reporting the allegation. For example, upon discovery of an injury, the facility must immediately take steps to evaluate whether the injury is an injury of unknown source, and if the injury meets the defined criteria, an immediate report is required. Similarly, if a resident states that his or her belongings are missing, the facility may make an initial determination whether the item has been misplaced in the resident s room, in the laundry, or elsewhere before suspecting misappropriation of property. As stated previously in this memo, it is expected that staff members will be in control of their own behavior. Therefore, an initial evaluation would not be necessary for allegations of staff-to-resident abuse and these instances must be reported immediately. IV. Policies and Procedures - F C.F.R (c) Staff Treatment of Residents (F226) The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property. The regulation requires the development and implementation of policies and procedures that prohibit mistreatment, neglect, abuse of residents, and the misappropriation of resident property. The failure to develop policies addressing each of the key components of an effective abuse prevention program (screening, training, prevention, identification, investigation, protection, and reporting/response) supports a deficiency at F226. The facility s failure to implement their own policies and procedures to prohibit abuse, neglect, mistreatment and/or misappropriation of resident property, may result in a deficiency at F223 or F224 and, if applicable, at F226. However, surveyors should not take this to mean that a deficiency at F223 or F224 should automatically result in a deficiency at F226. Proper documentation and supporting evidence are essential before any deficiency is written. While the same findings may support a deficiency at F223 or F224 and, if applicable, F226, surveyors need to document how the incident is related to the improper development or implementation of the policies and procedures that prohibit the mistreatment, neglect, and abuse of residents and the misappropriation of resident property. If F223 or F224 and F226 are cited, surveyors should not assume that the deficiencies are always cited at the same scope and severity level. For example, a deficiency may be cited at F223 for abuse at an isolated scope (one resident); however, an associated deficiency may be cited at F226 at widespread scope when failure to develop and/or implement policies and procedures have the potential to affect all residents. Screening 3 Refer to S&C: NH; Reporting Reasonable Suspicion of a Crime in a Long Term Care Facility (LTC): Section 1150B of the Social Security Act for additional criteria on reporting. The memorandum describes section 1150B of the Act, which was established by section 6703(b)(3) of the Affordable Care Act and is entitled Reporting to Law Enforcement of Crimes Occurring in Federally Funded Long-Term Care Facilities.

10 Page 10 State Survey Agency Directors Pre-employment screening is critical to ensuring the integrity of the facility s work force and safeguarding the residents welfare. Because providers of nursing care have frequent, relatively unsupervised access to vulnerable people and their property, the facility should conduct a reasonable and prudent background investigation and reference check before hiring employees. Because many of the nursing facility s services are furnished under arrangement with nonemployee personnel, including registry, contracted and personnel agency staff, the nursing facility also should require these individuals to be subject to the same scrutiny by their agency prior to placement in the facility. CMS has acknowledged that nursing homes are not required by regulation to perform criminal background checks on all staff; however, CMS has specified that the facility should check all references, and make reasonable efforts to uncover criminal backgrounds. Effective Date: This policy is in effect immediately. Training: This policy should be shared with all appropriate survey and certification staff, their managers and the State/Regional Office training coordinators. Questions concerning this memorandum may be addressed to Kathleen Johnson at Kathleen.Johnson@cms.hhs.gov. /s/ Thomas E. Hamilton cc: Survey and Certification Regional Office Management