NYSHFA S PRACTICAL GUIDE TO INVESTIGATING ABUSE COMPLAINTS. Including the Elder Justice Act Electronic Incident Reporting Manual

Transcription

1 NYSHFA S PRACTICAL GUIDE TO INVESTIGATING ABUSE COMPLAINTS IN NEW YORK STATE SKILLED NURSING FACILITIES * Newly Revised and Updated 2013 * Including the Elder Justice Act Electronic Incident Reporting Manual

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3 NYSHFA S PRACTICAL GUIDE TO INVESTIGATING ABUSE COMPLAINTS IN NEW YORK STATE SKILLED NURSING FACILITIES Including the Elder Justice Act NYSHFA (2013) 33 Elk Street, Suite 300 Albany, New York Copyright is not claimed as to any part of the original work prepared by the United States Government, the New York State Government, or any governmental officer or employee as part of that person s official duties. DISCLAIMER The regulations referenced and included in this manual were accurate as of the date of publication. The publishers disclaim responsibility for changes in the regulations or the interpretive guidance on the regulations, or for the impact of any such changes on the content of this material, subsequent to the date of publication.

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5 September 2013 Dear Member, We are happy to be sending you a copy of our revised 2002 NYSHFA s Partners in Prevention Workbook now entitled: NYSHFA s 2013 Practical Guide to Identifying, Investigating and Reporting Abuse in NYS Skilled Nursing Facilities. We began this initiative in 2001 to produce educational material on Abuse, Neglect and Mistreatment prevention in nursing facility settings. At that time, we partnered with the New York State Department of Health, the law offices of O Connell and Aronowitz and Hodgson Russ, Bruce Arnold of Gray Rider Investigative Services and the Amo Group to provide you with the most current information and proposed working tools to evaluate incidents; to determine if further investigation is warranted; and to conduct effective investigations. In our revised manual, many of those tools and suggestions still hold true. We have updated the manual to address the Elder Justice Act and the New York State Department of Health electronic reporting system. We have also included, in the electronic version of the manual, links to federal and state regulations and guidance materials. This will enable you to check resources easily from your desktop. This workbook is a great resource and educational tool for your skilled nursing home staff. We have included a variety of tools to assist you and your staff with the investigations and follow up processes. They are guides to assist you with your process and ensure that you are thorough in your investigations and reporting. You can and should adapt them to your practices. Jane Bello Burke, Hodgson Russ, LLP (formerly O Connell and Aronowitz), Nancy Leveille and Karen Morris, NYSHFA, were the main contributors to this revised document. Michael Amo was consulted and provided permission to utilize some of the material from our original manual and to revise tools as needed to make the material current. We would like to thank Nancy Knapp, Administrative Assistant, NYSHFA, for editing this guide. Feel free to copy any part of the book for only your facility use. Non-members may purchase this manual by contacting the NYSHFA offices at (518) X 20. We hope this will be a useful tool to add to your resource materials. Sincerely, Richard Herrick Nancy Leveille Karen Morris President and CEO Senior Director Director Member Operational Support Clinical and Quality Services

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7 TABLE OF CONTENTS INTRODUCTION... 1 Purpose of this Guide... 1 Sources of Abuse Investigation and Reporting Requirements... 1 The Seven Components of a Systemic Approach to Policies and Procedures... 3 CHAPTER I: IDENTIFYING AND PREVENTING ABUSE, MISTREATMENT AND NEGLECT... 7 Federal Regulatory Requirements... 8 New York State Regulatory Requirements... 9 Putting It All Together CHAPTER II: INVESTIGATING ABUSE, MISTREATMENT AND NEGLECT Federal Requirements Facility Investigations of Incidents What Is an Investigation? Understanding Reasonable Cause to Believe Misappropriation of Resident Property and Reporting to Law Enforcement Event Management Instructions for Event Management Conducting the Investigation Describing the Scene Documenting the Investigation Investigation Checklist and Sample Forms Missing Property Report CHAPTER III: REPORTING ABUSE, NEGLECT OR MISTREATMENT Federal Requirements New York State Requirements Who, What and When and How to Report CHAPTER IV: QUALITY IMPROVEMENT Quality Improvement A Team Approach to Improving Care Utilizing Root Cause Quality Improvement Bibliography CHAPTER V: THE ELDER JUSTICE ACT: SUSPICION OF CRIME Background and Summary i

8 Requirements Penalties for Failure of Covered Individuals to Comply with Reporting Requirements Suggested Actions CHAPTER VI: SCREENING POTENTIAL EMPLOYEES Federal Regulatory Requirements State Regulatory Requirements Screening Potential Employees APPENDIX... 0 ii

9 INTRODUCTION Purpose of this Guide The purpose of this Guide is to assist New York State nursing homes and their employees in understanding the federal and state requirements and expectations for identifying and preventing abuse, mistreatment, neglect and misappropriation of resident property. To achieve these goals, this Guide provides: a reference to the regulations regarding abuse reporting and investigations and the Seven Components of a Systemic Approach to Policies and Procedure; the Federal and State definitions of abuse, neglect, mistreatment and misappropriation of resident property; a guide to reporting and investigating incidents; and a reference as to what to do with your investigation findings according to regulation. a reference to the Elder Justice Act Sources of Abuse Investigation and Reporting Requirements There are three primary sources of the principles of abuse investigation and reporting. These are: Federal regulations; State statute and regulations; and Federal and State guidance letters and materials. The key Federal regulations addressing abuse, mistreatment and neglect are found at 42 C.F.R (c), 42 C.F.R (e), 42 C.F.R , and the interpretive guidelines in the Center for Medicare and Medicaid Services ( CMS ) State Operations Manual ( SOM ) Appendix PP-Guidance to Surveyors for Long Term Care Facilities Interpretive Guidelines 42 C.F.R The primary New York sources are the statute at New York Pub. Health Law 2803-d and the regulations at 10 NYCRR 81.1, 10 NYCRR 415.4, and 10 NYCRR These Federal and State sources require the reporting of alleged violations of abuse, mistreatment and neglect, including injuries of unknown origin, immediately to the facility administrator and in accordance with state law, to the New York State Department of Health (the NYS DOH ). Additionally, the regulations require the immediate reporting of alleged violations of misappropriation of resident property. Over the years, the Federal and State regulators have issued several guidance letters and materials addressing these requirements. 1

10 In March 2000, the NYS DOH issued a Dear Administrator Letter (DAL 00-04) describing the responsibilities of nursing homes in reporting abuse, mistreatment and neglect. In November 2003, CMS issued a Survey and Certification guidance letter (S&C 04-09) to provide direction and guidance to State Agencies in the management of complaints and reported incidents for nursing homes and other health care providers. In October 2005, the NYS DOH issued a Dear Administrator Letter (DAL/DQS 05-10) to respond to provider inquiries regarding compliance with State law and Federal regulations addressing reporting responsibilities, timeframes and expectations. The October 2005 DAL provides clarification regarding: nursing home requirements to report incidents of alleged abuse, neglect and mistreatment to the NYS DOH; provider responsibilities to investigate incidents; and nursing home requirements to comply with the Abuse Prohibition Protocol. The October 2005 DAL expressly supplements and does not replace, the information previously distributed in the March 2000 DAL (00-04). In October 2011, the NYS DOH issued a Nursing Home Incident Reporting Manual describing revised reporting requirements, effective October 17, The NYS DOH s intent in issuing the Manual is to provide clear guidelines on what incidents to report, when to report, and to avoid reporting inconsistencies. As of this writing (September 2013), the Manual is available on the NYS DOH s website, and the most current edition is dated June 14, The NYS Nursing Home Incident Reporting Manual is a resource for all skilled nursing facility staff responsible for reporting incidents and should be used in conjunction with this manual. The principles and suggestions in this Guide are based upon the Federal regulations, the State statute and regulations, and the Federal and State guidance documents described above. Using these materials, facilities can develop their own policies and procedures to assist employees in understating and complying with the abuse prohibition requirements. 2

11 The Seven Components of a Systemic Approach to Policies and Procedures The federal regulations at 42 C.F.R require that the facility must develop and implement policies and procedures that include seven components: screening, training, prevention, identification, investigation, resident protection, and reporting/response. The items under each component listed below are examples of ways in which the facility could operationalize each component. The NYS DOH encourages facilities to review with staff the Abuse Prohibition Protocols and the seven components of a systemic approach to policies and procedures. THE SEVEN KEY COMPONENTS TO THE PREVENTION OF ABUSE, MISTREATMENT AND NEGLECT Source: SOM, App. PP -Guidance to Surveyors for Long Term Care Facilities COMPONENT REGULATION DOES THE FACILITY HAVE PROCEDURES TO: SCREENING The maintenance of efforts and evidence to determine if potential employees have a history of abuse or neglect TRAINING The provision, during orientation and through ongoing training, of information regarding abuse, neglect, misappropriation of resident property and related reporting requirements PREVENTION The system for (c)(1)(ii) (A) & (B) SOM, App. PP, Interp. Guidelines Tag F226; see 42 C.F.R (e) (b), (c) Screen potential employees for a history of abuse, neglect or mistreating residents as defined by the applicable requirements at (c)(1)(ii)(A) and (B). This includes attempting to obtain information from previous employers and/or current employers, and checking with the appropriate licensing boards and registries. Train employees, through orientation and on-going sessions, on issues related to abuse prohibition practices such as: o Appropriate interventions to deal with aggressive and/or catastrophic reactions of residents; o How staff should report their knowledge related to allegations without fear of reprisal; o How to recognize signs of burnout, frustration and stress that may lead to abuse; and o What constitutes abuse, neglect and misappropriation of resident property. Provide residents, families and staff information on how and to whom they may report concerns, incidents 3

12 THE SEVEN KEY COMPONENTS TO THE PREVENTION OF ABUSE, MISTREATMENT AND NEGLECT Source: SOM, App. PP -Guidance to Surveyors for Long Term Care Facilities COMPONENT REGULATION DOES THE FACILITY HAVE PROCEDURES TO: identifying, correcting and intervening to prevent abuse, neglect and/or misappropriation of resident property. IDENTIFICATION The recognition of events that may constitute abuse or neglect. INVESTIGATION The process for investigating incidents and identifying staff members to be involved in the process (c)(2) (c)(2), (3), (4) and grievances without the fear of retribution; and provide feedback regarding the concerns that have been expressed. (See (f) for further information regarding grievances.) Identify, correct and intervene in situations in which abuse, neglect and/or misappropriation of resident property is more likely to occur. This includes an analysis of: o Features of the physical environment that may make abuse and/or neglect more likely to occur, such as secluded areas of the facility; o The deployment of staff on each shift in sufficient numbers to meet the needs of the residents, and assure that the staff assigned have knowledge of the individual residents care needs; o The supervision of staff to identify inappropriate behaviors, such as using derogatory language, rough handling, ignoring residents while giving care, directing residents who need toileting assistance to urinate or defecate in their beds; and o The assessment, care planning, and monitoring of residents with needs and behaviors which might lead to conflict or neglect, such as residents with a history of aggressive behaviors, residents who have behaviors such as entering other residents rooms, residents with self-injurious behaviors, residents with communication disorders, those that require heavy nursing care and/or are totally dependent on staff. Identify events, such as suspicious bruising of residents, occurrences, patterns, and trends that may constitute abuse; and to determine the direction of the investigation. Investigate different types of incidents; and Identify the staff member responsible for the initial reporting, investigation of alleged violations and reporting of results to the proper authorities. (See 42 C.F.R (c)(2), (3) and (4). 4

13 THE SEVEN KEY COMPONENTS TO THE PREVENTION OF ABUSE, MISTREATMENT AND NEGLECT Source: SOM, App. PP -Guidance to Surveyors for Long Term Care Facilities COMPONENT REGULATION DOES THE FACILITY HAVE PROCEDURES TO: PROTECTION The procedures and actions to protect individuals from harm during the investigation (c)(3) Protect residents from harm during an investigation. REPORTING/ RESPONSE The facility or system must assure that any incidents of substantiated abuse and neglect are reported and analyzed, and the appropriate corrective, remedial or disciplinary action occurs, in accordance with applicable local, State or Federal law (c)(1)(iii), (c)(2), (c)(4) Report all alleged violations and all substantiated incidents to the state agency and to all other agencies as required, and take all necessary corrective actions depending on the results of the investigation; Report to the State nurse aide registry or licensing authorities any knowledge it has of any actions by a court of law which would indicate an employee is unfit for service; and Analyze the occurrences to determine what changes are needed, if any, to policies and procedures to prevent further occurrences. 5

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15 CHAPTER I: IDENTIFYING AND PREVENTING ABUSE, MISTREATMENT AND NEGLECT Federal and State Regulations Side by Side Comparison 7

16 Identifying and Preventing Abuse, Mistreatment and Neglect Federal Regulatory Requirements Resident behavior and facility practices. (a) (b) (c) Restraints. The resident has the right to be free from any physical or chemical restraints imposed for purposes of discipline or convenience, and not required to treat the resident s medical symptoms. 42 C.F.R (a) Abuse. The resident has the right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion. 42 C.F.R (b) 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. (1) The facility must 42 C.F.R (c) (i) Not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion; (ii) (iii) 42 C.F.R (c)(1)(i) 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 their property; and 42 C.F.R (c)(1)(ii) Report any knowledge it has of actions by a court of law against an employee, which would indicate unfitness for service as a nurse aide or other facility staff to the State nurse aide registry or licensing authorities.42 C.F.R (c)(1)(iii) 8

17 New York State Regulatory Requirements 10 NYCRR 415.4: Resident behavior and facility practices. (b) Staff treatment of residents. The nursing home shall develop and implement written policies and procedures that prohibit mistreatment, neglect or abuse of residents and misappropriation of resident property. (1) The facility shall: (i) (ii) (iii) 10 NYCRR 415.4(b) not use, or permit verbal, mental, sexual or physical abuse, including corporal punishment, or involuntary seclusion of residents; and not employ individuals who have: (a) (b) 10 NYCRR 415.4(b)(1)(i) been found guilty of abusing, neglecting or mistreating individuals by a court of law; or had a finding entered into the New York State Nurse Aide Registry concerning abuse, neglect or mistreatment of residents or misappropriation of their property. 10 NYCRR 415.4(b)(1)(ii) report any knowledge it has of actions by a court of law against an employee which would indicate unfitness for service as a nurse aide or other facility staff to the New York State Nurse Aide Registry or to appropriate licensing authorities. 10 NYCRR 415.4(b)(1)(iii) (2) The facility shall ensure that alleged violations involving mistreatment, neglect or abuse, including injuries of unknown source, are reported immediately to the administrator of the facility and, when required by law or regulation, to the Department of Health in accordance with Section 2803-d of the Public Health Law and Part 81 of this Title through established procedures. 10 NYCRR 415.4(b)(2) (3) The facility shall document that all alleged violations are thoroughly investigated and shall prevent further potential abuse while the investigation is in progress. 10 NYCRR 415.4(b)(3) (4) The results of all investigations shall be reported to the administrator or his or her designated representative or to other officials in accordance with State law and if the alleged violation is verified, effective corrective action shall be taken. 10 NYCRR 415.4(b)(4) 9

18 10 NYCRR Organization and administration. (j) Misappropriation of resident property. The nursing home shall establish and implement policies and procedures for the receipt, review and investigation of allegations of misappropriation of resident property by individuals in the employ of and/or whose services are utilized by the facility. Such policies and procedures shall be coordinated with the process governing the handling of complaints as set forth in section of this Part. (1) For purposes of this subdivision, misappropriation of resident property shall mean the theft, unauthorized use or removal, embezzlement or intentional destruction of the resident s personal property including but not limited to money, clothing, furniture, appliances, jewelry, works of art, and such other possessions and articles belonging to the resident regardless of monetary value. (2) In accordance with policies and procedures governing misappropriation of resident property, the nursing home shall: (i) (ii) (iii) (iv) (v) (vi) ensure that upon receipt of an allegation of misappropriation as submitted by the resident, designated representative, other individual or source, an investigation of the matter shall be undertaken not later than 48 hours after receipt; maintain a log containing information regarding the receipt, review, investigation, and disposition of every allegation of misappropriation of resident s property including the name of the complainant and the resident, a description of the personal property involved, and staff designated to conduct the review and investigation; notify the resident and complainant in writing as to the findings upon disposition of the allegation; notify the appropriate police agency when the results of the investigation indicate there is reasonable cause to believe that a resident s personal property valued at more than two hundred fifty (250) dollars has been misappropriated or may elect to make such notification when the resident s personal property is valued at less than that amount; monitor the status of all referrals to a police agency on a regular basis but not less often than quarterly; and notify the Department within 72 hours of receipt of the notice that such referral resulted in conviction of an individual who was involved in misappropriation of resident property. 10 NYCRR (j) 10

19 Putting It All Together Definition of Terms: A Federal/State Side-by-Side Comparison Abuse DEFINITION OF TERMS: A Federal/State Side-by-Side Comparison Term Federal Definition New York State Definition Verbal Abuse The willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish. 42 C.F.R This also includes the deprivation by an individual, including a caretaker, of goods or services that are necessary to attain or maintain physical, mental, and psychosocial well-being. This presumes that instances of abuse of all residents, even those in a coma, cause physical harm, or pain or mental anguish. SOM, App. PP, Interp. Guidelines Tag F (b), (c) Additional Federal Interpretive Guidelines Verbal abuse is defined as the use of oral, written or gestured language that willfully includes disparaging and derogatory terms to residents or their families, or within their hearing distance, regardless of their age, ability to comprehend, or disability. Examples of verbal abuse include, but are not limited to: threats of harm; saying things to frighten a resident, such as telling a resident that he/she will never be able to see his/her family again. SOM, App. PP, Interp. Guidelines Tag F (b), (c) Inappropriate physical contact with a patient or resident of a residential health care facility, while such patient or resident is under the supervision of the facility, which harms or is likely to harm the patient or resident. Inappropriate physical contact includes, but is not limited to, striking, pinching, kicking, shoving, bumping and sexual molestation. 10 NYCRR 81.1 The New York State definition does not include an element of willfulness. Additional NYS Guidance Verbal abuse includes any action that creates fear or psychological harm for the resident. Examples may include a threatening tone of voice, angry gesture, or any other action that creates fear or intimidation or humiliation. NYS DOH Nursing Home Incident Reporting Manual Q&A #5a-c, pp (2012) One (1) of the following elements are needed for the incident to be reported to the NYS DOH: Threat OR Physical Action (includes threatening gesture, intimidation) Fear of imminent, serious bodily injury Use of foul, humiliating or threatening language NYS DOH Nursing Home Incident Reporting 11

20 DEFINITION OF TERMS: A Federal/State Side-by-Side Comparison Term Federal Definition New York State Definition Sexual Abuse Physical Abuse Mental Abuse Additional Federal Interpretive Guidelines Sexual abuse includes, but is not limited to, sexual harassment, sexual coercion, or sexual assault. SOM, App. PP, Interp. Guidelines Tag F (b), (c) Additional Federal Interpretive Guidelines Physical abuse includes hitting, slapping, pinching and kicking. It also includes controlling behavior through corporal punishment. SOM, App. PP, Interp. Guidelines Tag F (b), (c) Additional Federal Interpretive Guidelines Mental abuse includes, but is not limited to, humiliation, harassment, threats of punishment or deprivation. SOM, App. PP, Interp. Guidelines Tag F (b), (c) 12 Manual p. 18 (2012) Additional NYS Guidance If the element below exists, a report must be filed with the NYS DOH: Non-Consensual sexual intrusion or penetration, or touching intimate parts or the clothing covering the intimate parts, or examines or treats resident/patient for other than bona fide medical purposes or, observes or photographs another person s intimate parts or, physical force/threat. NYS DOH Nursing Home Incident Reporting Manual p. 15 (2012) If the following element exists, a report must be made to the NYS DOH: Inappropriate physical contact resulting in bodily injury, or likely to harm a resident. Includes resident to resident, staff to resident or family/visitor to resident. Refer to verbal abuse / psychological harm. NYS DOH Nursing Home Incident Reporting Manual p. 10 (2012) Mistreatment None at this time. The inappropriate use of medications, inappropriate isolation or inappropriate use of physical or chemical restraints on or of a patient or resident of a residential health care facility, while such patient or resident is under the supervision of the facility.

21 DEFINITION OF TERMS: A Federal/State Side-by-Side Comparison Term Federal Definition New York State Definition 10 NYCRR 81.1(b) NYS DOH Nursing Home Incident Reporting Manual p. 14 (2012). Neglect Injuries of Unknown Origin Misappropriation of Resident Property The failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness. 42 C.F.R The source of the injury was not observed by any person or the source of the injury could not be explained by the resident; and The injury is suspicious because the extent of the injury or the location of the injury (e.g., the injury is located in an area not generally vulnerable to trauma) or the number of injuries observed at one particular point in time or the incidence of injuries over time. SOM, App. PP, Interp. Guidelines Tag F (c)(2) and (4) 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 The failure to provide timely, consistent, safe, adequate and appropriate services, treatment, and/or care to a patient or resident of a residential health care facility while such patient or resident is under the supervision of the facility, including but not limited to: nutrition, medication, therapies, sanitary clothing and surroundings, and activities of daily living. 10 NYCRR 81.1(c) Additional NYS guidance Two elements are needed to trigger reporting to the NYS DOH: Injury without known incident Facility unable to rule out abuse or care plan violation NYS DOH Nursing Home Incident Reporting Manual p. 26 (2012). The theft, unauthorized use or removal, embezzlement or intentional destruction of the resident s personal property including but not limited to money, clothing, furniture, appliances, jewelry, works of art, and such other possessions and articles belonging to the resident regardless of monetary value. 10 NYCRR (j)(1) 13

22 DEFINITION OF TERMS: A Federal/State Side-by-Side Comparison Term Federal Definition New York State Definition Additional NYS Guidance Misappropriation of Resident Property cont d One element needed to trigger reporting to the NYS DOH: Deliberate misplacing, exploiting, or wrongful use of a resident s property A pattern of misplacing, exploiting, or wrongful use of a resident s property Resident consent not given. NYS DOH Nursing Home Incident Reporting Manual p. 21 (2012). 14

23 CHAPTER II: INVESTIGATING ABUSE, MISTREATMENT AND NEGLECT 15

24 Investigating Abuse, Mistreatment and Neglect Federal Requirements Resident behavior and facility practices. (1) The facility must (i) Not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion; (ii) 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 their property; and (iii) Report any knowledge it has of actions by a court of law against an employee, which would indicate unfitness for service as a nurse aide or other facility staff to the State nurse aide registry or licensing authorities. 42 C.F.R (c)(1) (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). 42 C.F.R (c)(2) (3) The facility must have evidence that all alleged violations are thoroughly investigated, and must prevent further potential abuse while the investigation is in progress. 42 C.F.R (c)(3) (4) The results of all investigations must be reported to the administrator or his designated representative and to other officials in accordance with State law [1] (including to the State survey and certification agency) within 5 working days of the incident, and if the alleged violation is verified appropriate corrective action must be taken. 42 C.F.R (c)(4) 1 According to the SOM, the phrase in accordance with State law modifies the word officials only: As such, State law may stipulate that alleged violations and the results of the investigations be reported to additional State officials beyond those specified in Federal regulations. This phrase does not modify what types of alleged violations must be reported or the time frames in which the reports are to be made. As such, States may not eliminate the obligation for any of the alleged violations (i.e., mistreatment, neglect, abuse, injuries of unknown source, and misappropriation of resident property) to be reported, nor can the State establish longer time frames for reporting than mandated in the regulations at (c)(2) and (4). No State can override the obligation of the nursing home to fulfill the requirements under (c), so long as the Medicare/Medicaid certification is in place. SOM, Interpretive Guidelines, (c)(2) and (4). New York State requires an immediate report to the NYS DOH upon having reasonable cause to believe that abuse, neglect, mistreatment or misappropriation of a resident s property has occurred. 16

25 Facility Investigations of Incidents As described in the NYS DOH Guidance (DAL 00-04, DAL/DQS 05-10, and the Nursing Home Incident Reporting Manual), Federal and State regulations (42 C.F.R (f) and 42 C.F.R (c); 10 NYCRR 415.4(b)(2)(3)(4) and 10 NYCRR (b)(6)) require that providers investigate incidents and complaints. As described below, the NYS DOH has emphasized that an allegation must be reported immediately to the NYS DOH when meeting the reasonable cause standard. The results of an investigation of abuse, neglect, mistreatment or misappropriation of resident property must be reported both to the administrator (or designees) and to other officials (including the NYS DOH) within five working days of the incident (483.13(c)(4)). 2 It is important for providers to document their investigations thoroughly. As a general matter, a thorough investigation should include the following elements: The date and time the incident was discovered/identified; The identity of the person discovering the incident; How the incident was discovered; A description of the resident, and any pertinent information regarding his or her condition (medical, psychological, behavioral or other), prior to and upon discovery of the incident; Identification of the area where the incident occurred; An interview log that includes: o Identification of staff likely to have information about the incident; o Names of staff interviewed, along with any written statements, signed and dated; o Identification of staff, if any, identified as likely to have information but whom the facility decided not to interview, and the basis for that decision; o A list of the questions posed to the staff interviewed; o A statement from the resident, if he or she is willing and able to provide one, about the incident; and o Statements from roommates, volunteers, visitors, or other individuals who may have been in the area and witnessed the incident. NYS DOH staff will continue to review the handling of these types of allegations during survey/complaint investigation by application of the CMS Abuse Prohibition 2 Note: For Elder Abuse reporting timeframes, see Chapter V (at page 62) below. See also NYS DOH Nursing Home Incident Reporting Manual p. 4 (2012)(Appendix #4). 17

26 Investigative Protocol, set forth in Appendix P - Survey Protocol for Long Term Care Facilities - Part I, Task 5G. This involves a determination of whether the facility has developed and operationalized policies and procedures designed to protect residents from abuse, neglect, involuntary seclusion, and misappropriation of their property. This includes policies and procedures for hiring practices, training and ongoing supervision for employees and volunteers who provide services, and the reporting and investigation of allegations and occurrences that may indicate abuse. The provider must be able to provide evidence that, upon the allegation of abuse, neglect, mistreatment, and/or misappropriation of resident property, it commenced the investigation immediately, regardless of the time of day or day of the week when the incident occurred. Evidence of an investigation includes: An explanation of the evidence reviewed (such as interviews and physical evidence); Identification of the documents (such as care plans and policies and procedures) reviewed; The conclusion reached as a result of the investigation, and the basis for that conclusion; and Any changes to care plans and/or policies and procedures implemented as a result of the investigation to prevent recurrence. 18

27 Fact Finding, Not Fault Finding What Is an Investigation? When an event occurs, the first step is to conduct an incident review. The incident review is a systematic process of observing and collecting facts that describe and explain an event or a series of events. The purpose is to find out what happened. In conducting this review, it is important to proceed with an open mind in a stepwise fashion and not to make assumptions or jump to conclusions before the facts are in. What may at first have seemed apparent may not be what actually occurred. If at any time the facts suggest the possibility of abuse, the focus shifts to the abuse investigation protocol. The purpose of the abuse investigation is to determine whether abuse, mistreatment, neglect or misappropriation of resident property occurred and, if so, how to prevent further occurrences. In conducting the investigation, it is important to focus on the facts that took place, and not to place blame upon an individual. Placing blame directs attention away from what is important: what took place, how to protect the resident, and what to do to prevent further occurrences. Is it necessary to investigate every event to the same depth? No. That would be a misuse of precious time and resources. Nevertheless, it is necessary in each case to proceed logically and to be thorough in documenting the reason for a particular conclusion. How do you decide on the appropriate level of investigation? The key is to understand the federal and state definitions of abuse, mistreatment and neglect, and the interpretive guidelines, and to consider whether an event fits under one of the definitions. The first step is to initiate the incident/accident review. If, at any time during the review it appears that the facts could fit within one of the abuse definitions, immediately implement the abuse investigation protocol. The incident review and abuse investigation follow parallel tracks. If an event could fit under one of the definitions, follow the incident review procedures and, in addition, commence an abuse investigation. If the event does not fit under one of the definitions, follow the incident review procedures and document thoroughly the facts and reasoning that lead to the conclusion that the event does not fit within one of the abuse definitions. In either event, the completion of the Incident/Accident Report will help to achieve the goal of thorough documentation of observations and findings. Remember, logical consistency is essential. Anyone, tomorrow or three years from now, should be able to follow the process and the reasoning that led to the conclusion. The ultimate purpose of the investigation is to gather data for use in improving the delivery of care to residents. With a consistent and thorough process in place, the individual coordinating the investigation will uncover the relevant facts and be able to take quick action to develop and operationalize policies and procedures to prohibit abuse, neglect, mistreatment and misappropriation of property for all residents. This demonstrates regulatory compliance. Just as important, a consistent and thorough process speaks volumes to the staff and residents about the facility s commitment to identifying and preventing abuse, neglect, mistreatment and misappropriation of property, regardless of the cause. 19

28 Understanding Reasonable Cause to Believe The Trigger for Reporting to the NYS DOH Federal regulations (42 C.F.R ), and state regulations (10 NYCRR 415.4) require the reporting of alleged violations of abuse, mistreatment and neglect, including injuries of unknown origin, immediately to the facility administrator and in accordance with state law, to the NYS DOH. Federal regulations also require that alleged violations of misappropriation of resident property be reported immediately. CMS has defined immediately as, as soon as possible, but not to exceed 24 hours after the discovery of the incident. (Appendix PP-Guidance to Surveyors (c)(2) and (4)). NYS Public Health Law Section 2803-d requires the reporting of abuse, mistreatment or neglect and misappropriation immediately to the NYS DOH upon having reasonable cause to believe that abuse, neglect or mistreatment or misappropriation has occurred. When an event occurs, the incident review should begin with the focus of ruling out abuse, neglect, mistreatment or misappropriation of a resident s property. If at any point during the investigation, the investigator has reasonable cause to believe that abuse, mistreatment and neglect has occurred, the facility must report it promptly to the NYS DOH. Do not wait until the completion of the investigation to make the report. This Reasonable Cause to Believe equates to the Federal Alleged Violation which triggers the reporting requirement. IF THE REASONABLE CAUSE THRESHOLD IS NOT ACHIEVED, THE NYS DOH INSTRUCTS THAT NOTIFICATION TO THE DOH IS NOT REQUIRED UNDER THE AFOREMENTIONED FEDERAL AND STATE REGULATIONS AND STATE LAW. NYS DOH Nursing Home Incident Reporting Manual, page 2 (2012). What is reasonable cause to believe? The NYS DOH regulation at 10 NYCRR 81.1(d) defines reasonable cause to mean that upon a review of the circumstances, there is sufficient evidence for a prudent person to believe that physical abuse, mistreatment, or neglect has occurred. The regulation further states that circumstances to be reviewed shall include, but not be limited to any of the following: a statement that physical abuse, mistreatment or neglect has occurred, the presence of a physical condition at variance with the history or course of treatment of the patient or resident, and the visual or aural observation of an act or condition of physical abuse, mistreatment or neglect. SUSPICION Internal Report (Facility Investigation) REASONABLE CAUSE External Report (NYS DOH Incident Reporting System) FINDINGS Conclusion based on thorough investigation reported to NYS DOH within 5 days 20

29 Misappropriation of Resident Property and Reporting to Law Enforcement New York State Regulatory Requirements For misappropriation of a resident s property: if the property is valued at more than $ and the results of the investigation indicate there is reasonable cause to believe that the property has been misappropriated, the New York State regulation, at 10 NYCRR (j) requires a report to be made to the appropriate police agency. The regulation permits such a report when the resident s personal property is valued at less than that amount. The New York State regulation, at 10 NYCRR (j)(iv), requires the nursing home to establish and implement policies and procedures for the receipt, review and investigation of allegations of misappropriation of resident property by individuals in the employ of the facility and/or whose services are utilized by the facility. For purposes of this requirement, misappropriation of resident property means the theft, unauthorized use or removal, embezzlement or intentional destruction of the resident s personal property including but not limited to money, clothing, furniture, appliances, jewelry, works of art, and such other possessions and articles belonging to the resident regardless of monetary value. In the event of such an allegation, the regulation requires the nursing home to: undertake an investigation no later than 48 hours after receipt of the allegation; maintain a log containing information regarding the receipt, review, investigation, and disposition of every allegation of misappropriation of resident s property including the name of the complainant and the resident, a description of the personal property involved, and staff designated to conduct the review and investigation; and notify the resident and complainant in writing as to the findings upon disposition of the allegation. In addition, the regulation requires the nursing home to notify the appropriate police agency if the results of the investigation indicate reasonable cause to believe that a resident s personal property valued at more than $ has been misappropriated. The facility may elect to make such notification when the resident s personal property is valued at less than that amount. (See Elder Justice Act below.) The regulation also requires the nursing home to monitor the status of all referrals to a police agency on a regular basis but not less often than quarterly, and to notify NYS DOH within 72 hours of receipt of the notice that such referral resulted in conviction of an individual who was involved in misappropriation of resident property. See Missing Property Report, Appendix #10. The Elder Justice Act Although the NYS regulation has not changed, the Elder Justice Act, established by the Patient Protection and Affordable Care Act, 6703(b)(3), now requires covered 21

30 individuals to report to the local police a reasonable suspicion of any crime committed against a resident, including theft, without regard to dollar amount. If at any point, the person conducting the investigation develops reasonable suspicion of a crime, the Elder Justice Act requires the submission of a report to the NYS DOH and to a local law enforcement agency. For more information, see the discussion of the Elder Justice Act in Chapter IV. Even if an individual makes such a report, the facility should continue to complete its own internal investigation unless the NYS DOH, local law enforcement, or facility management directs otherwise. The determination of whether a criminal act has occurred is outside the scope of most health care workers. The Elder Justice Act, however, does not require the individual to make a determination of criminal conduct but instead to report any reasonable suspicion of a crime. Whether evidence or circumstances would lead to further investigation by law enforcement and/or an arrest, a decision will be made by law enforcement professionals. Since communities vary regarding prosecutorial standards, it is recommended that each facility coordinate with local law enforcement to work out acceptable reporting thresholds and procedures. Support from and consultation with local law enforcement may be helpful in labor, legal or regulatory actions. A good relationship with local law enforcement agency is always positive. 22

31 Event Management STEP BY STEP GUIDE TO CONDUCTING INVESTIGATIONS 23

32 EVENT MANAGEMENT FLOWCHART AWARENESS OF EVENT Witnessed Alleged Injury of unknown source Any suspicion that abuse etc has occurred IMMEDIATE ACTION Protect the subject and others from further harm Provide medical attention Preserve the evidence BEGIN INVESTIGATION OF INCIDENT Initiate facility incident report (I&A) Conduct internal notifications per facility policy (Admin, DON, Physician, Family) If a crime has been committed, follow Elder Abuse law protocols Could this event fit under the abuse regulations? Yes, or Don t Know CONDUCT ABUSE INVESTIGATION Create investigation file Start investigation log Conduct interviews Review documents Document findings Any time during the investigation reasonable cause to believe is established? NO Document reason it does not Follow facility policy regarding incident reviews If at any time a suspicion of abuse, etc arises begin abuse investigation & continue incident review Yes IMMEDIATE REPORTS Notify Administrator File electronic report using the NYS DOH Electronic Reporting System NO Complete investigation & document conclusion on summary Complete investigation Document conclusion Send summary to NYS DOH (within 5 working days of the incident) REPORT STATUS OF STATE NOTIFICATION TO INITIAL REPORTER DOCUMENT CORRECTIVE ACTION TAKEN REVIEW QUALITY IMPROVEMENT COMMITTEE Trends & patterns may lead you to suspicion of abuse, neglect, mistreatments, 24 misappropriation of resident property, which would require a thorough investigation. Revised with Permission: The Amo Group, LLC 10/ Summit Ave. Central Valley, NY NYSHFA s expertise and collaboration was instrumental in the development of this flow chart. 24

33 Instructions for Event Management Event management means making sure the process is followed accurately, completely and efficiently. Awareness of Event: Upon learning of an event, whether it is witnessed, alleged, an injury of unknown origin or a suspicion that abuse, neglect or mistreatment may have occurred, take immediate action. Immediate Action: First and foremost, protect the residents from further harm. This involves obtaining medical attention for the resident if needed and preserving the evidence at the scene. It may also involve removing the accused abuser from the facility. Begin Investigation: Initiation of the Incident/Accident Report is the first step in reviewing the circumstances of the event. Notify the administrator, attending physician, family and others in accordance with the facility s policy. Yes or Don t Know, Begin Abuse Investigation: Upon verification that the event does fit under the abuse regulations, or if there is uncertainty on this point, the person responsible for the investigation should open an abuse investigation in addition to following the incident review procedures. Create an abuse investigation file and initiate the investigation log to keep an accurate record of each step in the investigation. The investigator should document the time of arrival on the scene or notification of the incident, describe the scene, conduct interviews and complete the review of documentation process. If yes to a crime, notify your community police. (See Chapter V, page 62 for timeframes.) No: If, at this point, the event does not rise to the level of the abuse definitions, document clearly the analysis leading to that conclusion. Then follow the facility s Incident Review Policy, which should include evaluation of the event to determine cause, actions to prevent further occurrences and reporting to Quality Improvement. Immediate Reports: If at any time while following the incident review procedures, or at any time during an abuse investigation, there is Reasonable Cause to Believe there has been abuse, neglect or mistreatment, notify the facility administrator and the NYS DOH, through the Electronic Incident Reporting System, immediately and complete a thorough abuse investigation. NYS DOH Electronic Incident Reporting System: Effective October 17, 2011, the NYS DOH introduced an Electronic Reporting System for the reporting of incidents via the Health Commerce System. This system replaced the previous system of making telephone calls to the hotline. The system permits the facility to print out a hard copy of each report it makes via the electronic reporting system for its records. The most recent revision to the Nursing Home Incident Reporting Manual, dated June 14, 2012, contains directions for using the electronic reporting system and Frequently Asked Questions related to the reporting requirements. 25

34 Event Management (cont d) Report Status of State Notification to Initial Reporter All staff working in nursing facilities are required to report suspected abuse, neglect, mistreatment or misappropriation of resident property and any potential crime. If staff brings such information to the attention of the administrator (or his or her designee), the administrator (or designee) should report back to the initial reporter on results of the investigation and whether it resulted in a report to the NYS DOH and/or local law enforcement In the event of misappropriation of resident property, the NYS regulation, at 10 NYCRR (j)(2(iii), requires notification to the resident and complainant in writing as to the findings upon disposition of the allegation. For other complaints, it is usually a good practice to inform the initial reporter about the disposition of the complaint. Corrective Actions: Document all corrective actions and the date of implementation. These may include, for example, disciplinary action, education for staff, care plan revisions, policy and procedure revisions and/or environmental or other changes related to safety. Review by Quality Improvement: The Quality Improvement team should review incidents for root causes, patterns and trends. If, at any time, a pattern or trend leads to a suspicion of negligent or abusive practices or to a pattern of mistreatment because of faulty systems within the facility, a new abuse investigation may be warranted and immediate systems improvement effort should be instituted. A root cause analysis will assist the team in recommending appropriate revisions to policies and procedures, training programs, hiring practices or other systems or processes. 26

35 Conducting the Investigation Step By Step 1. Protect and Describe the Scene 6. Review of Pertinent Documents 2. Gather the Evidence 7. Recreate the Event On Paper 3. Fill Out the Incident/Accident Report 8. Write the Conclusion 4. Make a List of Witnesses and Start Your Interviews 9. Take Corrective Actions 5 Create Your Investigation File 10. Quality Improvement (Prevention) STEP ONE: Protect and Describe the Scene Take the steps one at a time. As an example, let s assume the event is an injury of unknown origin. You are the supervisor, and the aide calls for you because a resident is on the floor. You arrive on the scene. While doing your most important job, caring for and protecting the residents, remain alert to the situation. The very next thing you will do after caring for the resident is to protect and describe the scene. (See page 30.) STEP TWO: Gather the Evidence Make sure that any evidence in the area is preserved. Evidence is anything that helps you reach the truth: to reconstruct events, identify persons involved, determine responsibility. STEP THREE: Fill Out the Incident/Accident Report Next make sure to initiate the Incident/Accident Report and complete it thoroughly. Do not leave anything undone. There is no better time to get information than in the present (real time). Reconstructing information later is difficult and time consuming. STEP FOUR: Make a List of Witnesses and Start Your Interviews Make a list of the witnesses you may want to interview. Pay attention to who is at the scene. Was there anyone who should have been there but wasn t? Who else needs to be interviewed (the doctor, the family, others.) Some people may be interviewed at the time of the event. Some may be interviewed later. Some may be interviewed more than once. (See Witness Pool page 36 and The Witness/Resident Statement page 37.) Make a plan for reviewing evidence, documents and interviews and follow it. STEP FIVE: Create Your Investigation File You need to keep all your information organized and document every step you take. Set up the chart for your investigation (see The Investigation File, page 34). Document everything and file it here. Start your Investigation Log (see page 35). Keep your log on the left side of the chart, making it easy to use. Write everything you do on the log. This will help you with writing the conclusion. You might keep your description of the scene behind 27

36 it. On the right you will keep all the other documents and statements or pieces of evidence you collect. Number each one and put that number on the log with the date and time you collected it. This way you will always be able to match the log entry to the correct document. The purpose of this organization is the same as with your resident chart: anyone should be able to pick it up, even five years from now, and know very clearly what was done. This is your proof of a thorough investigation. It will also help you to see where there are gaps in your investigation or your logic when you prepare to write the conclusion. (See Investigation File, page 34 and Investigation Log, page 35). STEP SIX: Review of Pertinent Documents Collect pertinent documents. You may need to make copies or write summaries of the chart, including nursing notes, medical notes, care plans, and other similar documentation. Enter the title of the documents you use on the log, labeled with a corresponding number, and store your notes or copies of them in the right side of your file. (See attached Documents Check List, page 34). STEP SEVEN: Recreate the Event Once you have collected all the information and evidence and interviewed your witnesses, you will analyze the facts you have gathered. These facts, following the flow of your log, will help you to recreate the event. Upon reviewing the facts, you may find gaps in the story. Retrace your investigation to fill them. If you cannot, document the gaps! Never make assumptions to fill gaps! Document just the facts. STEP EIGHT: Write the Conclusion The conclusion must always be supported by the facts you have documented. Always note the supporting evidence for your conclusion. Never say, I think when writing your conclusion. Those reading it need to know what was found and how it was supported. (See The Investigation Summary/ Writing the Conclusion pages 40-45). STEP NINE: Take Corrective Actions Describe any immediate corrective actions that were taken. The NYS DOH will review the measures you took to protect residents from further occurrences and any immediate medical/nursing care that was provided. FINAL STEP: Quality Improvement (Prevention) The Quality Improvement Committee should use the data your investigation produces to upgrade your Abuse Prevention System. Not every investigation goes to the same depth level, but each investigation should be thorough enough to demonstrate your conclusion. In some cases, your Incident/Accident report and initial documentation collection may give you enough facts to formulate a conclusion. In other cases it may be necessary to go further. In either case, follow the steps and keep your documentation organized and clear. This is what the NYS DOH, the Attorney General, or other regulatory oversight agency will want to see. Do it in the beginning and it will save time and stress later. 28

37 THE INVESTIGATION FILE: The following is a template for organizing your investigation into a file or chart. The Chart for the Investigation (see pages 34-46): keep the log on the left side of the file keep statements and documents on the right (include a copy of your Incident/Accident report) THE INVESTIGATION LOG (see page 35): Document every step taken in the investigation in chronological order: when did you arrive, what did you see, what is different (people, things), every person interviewed or not interviewed (Statements), every document reviewed, every notification made, any inconsistencies in statements, documentation or evidence. REVIEW OF PERTINENT DOCUMENTS Note everything you review and the date of its review on the Log. Keep your notes or copies of documents in the File. Documents you review may include: care plans, medical notes, medication history, chart notes, administrative documents (such as timesheets, schedules, and employment information), anything of importance to this particular investigation. TAKING STATEMENTS (pages 38-39) WRITING THE INVESTIGATION SUMMARY (pages 40-45) 29

38 Describing the Scene An aide reports that Mrs. Brown is on the floor in her room. Your aide s training has given her the knowledge to know that after she protects the resident and summons help, she must protect the scene. What does that mean? Most employees in a nursing home are there because they are caretakers. The first thing they want to do is clean up. They must be taught to leave things as they are until someone has the chance to document it. The only things moved should be those needed to protect the residents from harm. You can then describe what is there. Is the bed moved? Are the wheels locked or unlocked? Are people there who shouldn t be? Is someone not there who should be? Is the chair where it belongs? Are clothes where you might usually see them? Does she have both her shoes on? Which shoes? Does she have her roommate s shoes on? Notice the smells in the area. You can often document timing by smells. Did anyone smell the coffee brewing? Must be breakfast. Do you hear anything unusual? Train your staff to use their senses. Document what staff observed and what you observed. It may help to make a sketch of the area. A simple box showing where things were when you entered the room will do. What is different about the surroundings? Label the sketch with the date, time, and north/south directions. If you found a bruise on Mrs. Brown, document where she was when you first saw it. Was she in her regular chair? Describe the bruise, color, size, and other relevant characteristics. Who was around when you found it? What was she wearing? What was different about her or the surroundings? This step is important. Don t miss it. When you interview people you then can fill in some of the blanks. Put your sketch in your Investigation File. North BED DATE TIME ROOM # TABLE BATH BED 30

39 Documenting the Investigation NEW YORK STATE REGULATIONS The facility shall document that all alleged violations are thoroughly investigated. 10 NYCRR 415.4(b) The nursing home shall maintain information necessary to permit production of the following records immediately upon request and any other records required... (f) an accident and incident record which shall include a clear description of every accident and any other incident involving behavior of a resident or staff member that poses a threat to a resident or staff member, the resident's version of the accident or incident unless the resident objects or is unable to give a report due to his/her medical condition, names of individuals involved and a description of medical and other services provided, by whom such are provided, and the steps taken to prevent recurrence, with a copy of the resident's version as reported given to the resident and/or the resident's designated representative. 10 NYCRR (f) To comply with this standard of documentation, and to prove you did a thorough investigation that brought you to your conclusion, you must have a clear organized and consistent system of documenting. The following is required per regulation: 1. An accident/incident record which shall include a clear description; 2. The resident s version of the accident or incident unless the resident objects or is unable to give a report due to his/her medical conditions; 3. Names of individuals involved; 4. A description of medical and/or other services provided and by whom; 5. Steps taken to prevent a recurrence; 6. A copy of the resident s version as reported given to the resident and/or the resident s representative. 31

40 This page left blank intentionally. 32

41 Investigation Checklist and Sample Forms 33

42 DOCUMENTS CHECKLIST THESE GO IN THE INVESTIGATION FILE DESCRIPTION OF THE SCENE SKETCH OF THE SCENE COPY OF INCIDENT/ACCIDENT REPORT RESIDENT S STATEMENT WITNESS STATEMENTS CHART REVIEW CARE PLAN REVIEW CARE GIVER ASSIGNMENT SHEET (COPY) PERSONNEL RECORD REVIEW TIME SHEET (COPY) NOTIFICATIONS MADE (Copy of DOH Incident Report and/or police report) OTHER 34

43 Name of initial investigator Date: Time arrived on scene or investigation started: Name of person reporting incident: INVESTIGATION LOG ITEM # DATE TIME DESCRIPTION OF FACTS SOURCE INSTRUCTIONS: NUMBER AND LOG EACH STEP TAKEN IN THE INVESTIGATION PROCESS. CROSS REFERENCE BY NUMBERING THE CORRESPONDING ITEMS PLACED IN THE FILE. THIS WILL BE THE BASIS FOR YOUR INVESTIGATION SUMMARY Used with Permission: The Amo Group, LLC 10/ Summit Ave. Central Valley, NY

44 WITNESS POOL WHO IS A WITNESS? Anyone who could have seen, heard, smelled, touched or tasted something that might add information. Who was in the next room? Was a maintenance person nearby? Think of who might help. RESIDENT ROOMMATE EYE WITNESSES CAREGIVERS VISITORS DIETARY PERSONS HOUSEKEEPING AGENCY STAFF MAINTENANCE STAFF SOCIAL SERVICES PERSONS OTHER PERSONS WITH KNOWLEDGE Used with Permission: The Amo Group, LLC 10/ Summit Ave. Central Valley, NY

45 Witness/Resident Statement Painting A Word Picture of What Occurred : A statement is a written version of a person s activities, actions and observations. STEP ONE: Prepare Prepare for the interview by reviewing essential documents and other people s statements. Draft an interview outline. What do you need to know? STEP TWO: Do Conduct the interview. Sit with the witness and guide him or her through the process of telling you what occurred. The person conducting the investigation should conduct the interview. Listen carefully! Document the responses with notes. STEP THREE: Write After the witness has told you the story, write it down. The person conducting the interview should write the statement. When the witness writes the statement, it often is difficult to read or rambles on with unnecessary information. There is no requirement that the statement be in the witness own handwriting. STEP FOUR: Read and Sign After you have written the statement down, READ it back to the witness. If the witness agrees with what you have written, ask him or her to SIGN and date it. If the witness disagrees, clarify any issues and re-read the statement. If the witness chooses not to sign the statement, make sure to document that on the statement and sign and date it yourself. Methods of Questioning There are two primary methods for taking a statement: the narrative method and the question-and-answer method. The Narrative Method The narrative method uses an open-ended request to ask the witness about his or her observations and actions at a specific location and time. The Question-and-Answer Method The question-and-answer method uses a focused series of questions to elicit information about the witness observations and actions at a specific location and time. The interviewer records both the questions and the answers. The interviewer should always ask at the end, Do you have anything you wish to add to this statement? For clarity, consistency and efficiency, it is recommended that nursing facilities use the question and answer method, rather than the narrative method, in taking a statement. See witness sample page

46 WITNESS STATEMENT Person Interviewed: Interviewer: Interview Date: Title: Title: Time: 1. When and where were you working on [date(s)]? 2. What was your assignment? 3. When did you last see [name of resident]? 4. What was [name of resident] doing when you last saw them? 5. What did you do for [name of resident(s)] when you last saw them? 6. Did anyone assist you? Who? Describe their role in assisting you. 7. Did you observe anyone else with [name of resident(s)] the last time you saw them, either before or after? 8. Do you have any idea how this could have happened? 9. Do you want to add anything? Signatures: Person Interviewed: Interviewer: Date: Date: Note: The questions may be modified to reflect the details of the incident, but, it is recommended each person interviewed be asked the same basic questions and then any follow-up questions that will guide the person to give a complete account. 38

47 RESIDENT STATEMENT DATE: TIME: RESIDENT S NAME: UNIT: DATE OF EVENT: RESIDENT S VERSION OF EVENT: RESIDENT S SIGNATURE: SIGNATURE OF PERSON TAKING REPORT: SIGNATURE OF WITNESS: RESIDENT STATEMENT NOT COMPLETED BECAUSE (CHECK ONE): Resident objects to giving the statement Resident is unable to give a statement due to medical condition Other (explain) SIGNATURE: WITNESS: CHECK ONE: COPY GIVEN TO RESIDENT OR COPY GIVEN TO RESIDENT S REPRESENTATIVE SIGNATURE OF RESIDENT S REPRESENTATIVE: Use Self-Duplicating Forms or Make Copies for the Resident, the Family or the Resident s Representative Used with Permission: The Amo Group, LLC 10/ Summit Ave. Central Valley, NY

48 The Investigation Summary There are three elements to the investigation summary: the synopsis, the details; and the conclusion. 1. SYNOPSIS: Explain the event. Who is the resident? Who reported the event to you? What time were you called? What happened? Describe the event. When did it happen? Give date and time of the occurrence. Where did it happen? Give the name of the investigator. 2. DETAILS: Describe the process of the investigation (follow the investigation log.) When was the event discovered? How was the event discovered? Where was the resident? Details? Who saw, heard or knew something of importance? What do the witnesses know? What witnesses were not interviewed and why? What evidence did you collect? What documents were reviewed? 3. CONCLUSION: The facts as noted in your details establish a conclusion. It s NOT WHAT YOU THINK happened It s WHAT YOU DETERMINED from the facts. Determine whether your findings support abuse, neglect, mistreatment or misappropriation of property or potential crime. Again, refer to the definitions (Chapter I, page 11-14). In writing your conclusion, state clearly whether the facts do or do not support a finding of abuse, neglect, mistreatment or misappropriation of resident property, and explain how they do or do not support such a finding. 40

49 Remember: Your Documentation Must Support Your Conclusion Strive to answer the question, How Do the Facts Support the Conclusion? For example: The evidence supports the allegation of abuse as defined in the regulations because (note how and why the documentation and evidence supports the allegation of abuse). The evidence does not support the allegation of as defined in the regulations because (give details as to how the documentation does not support the allegation). 1. In conducting an investigation: The Conclusion A Thorough Investigation Supports the Conclusion a. the facility must reach an investigation conclusion that aligns with, and is supported by, the information collected and examined; b. the facility should identify if the investigation findings support that abuse, neglect, mistreatment or misappropriation of property has or has not occurred by an individual or individuals or that a potential crime has or has not been committed; c. if there is evidence to support the allegation and the individuals are known, they should be identified, and if they are not known, the conclusion should support that sufficient information was examined and staff interviewed to reach that conclusion; and d. when the facility investigation determines that there is no deficient practice/crime, the information gathered should be thorough enough to support that conclusion. 2. The NYS DOH has cited deficiencies when there are failures in the investigation process, such as: a. the documentation of the investigation does not support the conclusion; or b. an investigation did not occur or was not conducted in a timely fashion or does not contain thorough enough information or contains contrary information. 41

50 INVESTIGATION SUMMARY FORM page 1 REPORT INFORMATION Date of Event Time of Event When was event discovered? Date of Incident Report Resident s Name: Resident s Diagnosis Unit Room Where Event Occurred: How was event discovered: Who Reported Event: Incident Report Completed By: Briefly Describe Event: Physician notified: No Why Yes Date Resident Seen By MD.: No Why Yes Date Admin (or Designee) notified: No Why Yes Date INVESTIGATION Investigation initiated by Date Investigation started Time Investigator Employees interviewed Date Time (Continue list on back if more space is needed.) Describe significant information gathered from these witnesses. Identify who the witness is by line number from above. List of residents interviewed Date Time (Continue list on back if more space is needed.) Describe significant information gathered from these witnesses. Identify who the witness is by line number from above.. 42

51 INVESTIGATION SUMMARY FORM page 2 List of other people interviewed Date Time Describe significant information gathered from these people. Identify who the person is by line number from above. Review of pertinent employee personnel records Date Time Describe significant information gathered from these reviews. Identify who the employee is by line number. RECORDS REVIEWED Include review of assessments, care plans, progress notes, caregiver guides etc. Medical record reviewed: Date Time Significant information related to incident: 43

52 INVESTIGATION SUMMARY FORM page 3 THE CONCLUSION The facts in this investigation support Do not support the allegation of as defined in the regulations/law. How and Why: Signature Date 44

53 FOLLOW-UP ACTIONS: INVESTIGATION SUMMARY FORM page 4 (i.e., Disciplinary actions, revised care plan, policy review) Signature and title of primary investigator Date Signed: Administrator Signature: Date Signed: Report to NYS DOH: No Yes Date: Law Enforcement: No Yes Date: Investigation reported to Quality Improvement Committee: Yes Date No Explain INITIAL REPORTER INFORMED OF WHETHER OR NOT REPORT WAS MADE To NYS DOH: Yes Date No Explain To Law Enforcement: Yes Date No Explain RECORD ANY FOLLOW-UP BY: NYS DOH Date: Law Enforcement Date: Attorney General Date: Other Follow-up Information: 45

54 Missing Property Report REPORT NO.: DATE: TIME: PERSON REPORTING: OWNER OF MISSING PROPERTY: UNIT NO.: ROOM NO.: DESCRIPTION OF MISSING PROPERTY: ESTIMATED VALUE OF MISSING PROPERTY: LAST SEEN: LOCATION DATE TIME BY WHOM? DISCOVERED MISSING: DATE: TIME: AREAS CHECKED: BED ROOM LAUNDRY TRASH PERSON S INTERVIEWED: PROPERTY FOUND: YES NO SUMMARY: LOGGED: DATE TIME NOTIFICATIONS: SUMMARY OF OUTCOME REVIEWED WITH: ADMINISTRATOR: NO YES DATE RESIDENT DATE REPRESENTATIVE DATE POLICE NOTIFIED: NO YES DATE SIGNATURE OF INVESTIGATOR DATE Used with Permission: The Amo Group, LLC 16 Summit Ave. Central Valley, NY

55 CHAPTER III: REPORTING ABUSE, NEGLECT OR MISTREATMENT 47

56 (1) The facility must Reporting Abuse, Neglect or Mistreatment Federal Requirements Resident behavior and facility practices. (i) (ii) Not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion; Not employ individuals who have been (A) (B) Found guilty of abusing, neglecting, or mistreating residents by a court of law; or Have had a finding entered into the State nurse aide registry concerning abuse, neglect, mistreatment of residents or misappropriation of their property; and (iii) Report any knowledge it has of actions by a court of law against an employee, which would indicate unfitness for service as a nurse aide or other facility staff to the State nurse aide registry or licensing authorities. 42 C.F.R (c)(1) (2) The facility must ensure that all alleged violations involving abuse, neglect or mistreatment, 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). 42 C.F.R (c)(2) (3) The facility must have evidence that all alleged violations are thoroughly investigated, and must prevent further potential abuse while the investigation is in progress. 42 C.F.R (c)(3) (4) The results of all investigations must be reported to the administrator or his designated representative and to other officials in accordance with State law [3] (including to the State survey and certification agency) within 5 working days of the incident, and if the alleged violation is verified appropriate corrective action must be taken. 42 C.F.R (c)(4) 3 See note 1, page 16 above. 48

57 New York State Requirements Statutory Requirement New York Public Health Law 2803-d: Reporting abuses of persons receiving care or services in residential health care facilities. 1. The following persons are required to report in accordance with this section when they have reasonable cause to believe that a person receiving care or services in a residential health care facility has been physically abused, mistreated or neglected by other than a person receiving care or services in the facility: any operator or employee of such facility, any person who, or employee of any corporation, partnership, organization or other entity which, is under contract to provide patient care services in such facility, and any nursing home administrator, physician, medical examiner, coroner, physician s associate, specialist s assistant, osteopath, chiropractor, physical therapist, occupational therapist, registered professional nurse, licensed practical nurse, dentist, podiatrist, optometrist, pharmacist, psychologist, licensed master social worker, licensed clinical social worker, speech pathologist and audiologist. 2. In addition to those persons required to report suspected physical abuse, mistreatment or neglect of persons receiving care or services in residential health care facilities, any other person may make such a report if he or she has reasonable cause to believe that a person receiving care or services has been physically abused, mistreated or neglected in the facility. 3. Reports of suspected physical abuse, mistreatment or neglect made pursuant to this section shall be made immediately by telephone and in writing within forty-eight hours to the department. Written reports shall be made on forms supplied by the commissioner and shall include the following information: the identity of the person making the report and where he can be found; the name and address of the residential health care facility; the names of the operator and administrator of the facility, if known; the name of the subject of the alleged physical abuse, mistreatment or neglect, if known; the nature and extent of the physical abuse, mistreatment or neglect; the date, time and specific location of the occurrence; the names of next of kin or sponsors of the subject of the alleged physical abuse, mistreatment or neglect, if known; and any other information which the person making the report believes would be helpful to further the purposes of this section. Such written reports shall be admissible in evidence, consistent with the provisions of paragraph (f) of subdivision six of this section, in any actions or proceedings relating to physical abuse, mistreatment or neglect of persons receiving care or services in residential health care facilities. Written reports made other than on forms supplied by the commissioner which contain the information required herein shall be treated as if made on such forms. N.Y. Public Health Law 2803-d 49

58 Who, What and When and How to Report Who Must Report Public Health Law Section 2803-d identifies mandatory reporters as those professionals who care for nursing home residents. Those who care for residents include health care workers who provide services to nursing home residents in other health care settings and those who provide services under contract. Anyone may report alleged abuse, mistreatment, or neglect. All nursing home staff should be aware of their responsibility to report to the NYS DOH. What to Report NYS Public Health Law Section 2803-d requires the reporting of abuse, mistreatment or neglect immediately to the NYS DOH upon having reasonable cause to believe that abuse, neglect, or mistreatment has occurred. NYS DOH regulations at section 81.1(d) (10 NYCRR 81.1 (d)) define reasonable cause to mean that upon a review of the circumstances, there is sufficient evidence for a prudent person to believe that physical abuse, mistreatment or neglect has occurred. (See also page 20.) Circumstances to be reviewed that may lead to a reasonable cause conclusion might include, but are not limited to: a statement that physical abuse, mistreatment, or neglect has occurred; the presence of a physical condition (e.g. a bruise) which is inconsistent with the history or course of treatment of the resident; or a visual or aural observation of an act or condition of abuse, mistreatment or neglect. Facilities must report to the Department alleged violations of abuse, mistreatment, neglect, injuries of unknown origin, or misappropriation of resident property, if and when the reasonable cause threshold has been achieved. This might occur before the facility investigation into the incident has begun or at any time during the investigation. If the reasonable cause threshold has not been achieved, the NYS DOH instructs that notification to the DOH is not required under the aforementioned federal and state regulations and state law. NYS DOH Nursing Incident Reporting Manual, page 2 (2012). In addition, according to NYS DOH Guidance (in DAL 00-04, DAL/DQS 05-10, and the Nursing Home Incident Reporting Manual), providers should be aware that: 50

59 verbal abuse must be reported to the NYS DOH; resident-to-resident abuse must be reported if the following exists: Inappropriate physical contact resulting in bodily injury, or likely to harm a resident. (See Nursing Home Incident Reporting Manual.) See Appendix #4. providers must report to the NYS DOH instances in which there is a failure to follow the care plan (neglect), when: o There are repeated failures by staff to follow the care plan; OR o Resident harm has occurred, or o Failure to provide timely, consistent, safe, adequate and appropriate services. (See page 12 Nursing Home Incident Reporting Manual.) Note: the NYS DOH has determined that occurrence of other specified incidents are reportable to the NYS DOH as listed under Quality of Care Concerns on pages of the Nursing Home Incident Reporting Manual), which can be found on the Health Commerce System and in the Dear Administrator Letter web page, at (Click on NH DAL 11-12). When to Report Federal regulations (42 C.F.R ), and state regulations (10 NYCRR 415.4) require the reporting of alleged violations of abuse, mistreatment and neglect and misappropriation of property, including injuries of unknown origin, immediately to the facility administrator and in accordance with state law, to the NYS DOH. In addition, Federal regulations require that alleged violations of misappropriation of resident property be reported. CMS has defined immediately as, as soon as possible, but not to exceed 24 hours after the discovery of the incident. How to Report When an incident occurs, the facility is required to initiate an investigation. Once the facility has determined that reporting the incident is required, the facility must access the Health Commerce System to submit an electronic form to the NYS DOH. Incidents can be submitted via the HCS Internet Portal: any day of the week, or time of day. Using your username and password, log onto the HCS Internet Portal, and proceed to the Nursing Home Surveillance and Reporting System (HERDS) to enter information on the electronic Incident Form. Instructions for the Incident Form can be found either by clicking on the Instruction link found on the left hand side of the form, or through the Instruction link found within the Dear Administrator Letter section. 51

60 NOTE: Reporting incidents to NYS DOH does not relieve the facility from the reporting requirements of other agencies. If a determination is made that an event is not reportable to NYS DOH, this does not relieve the facility of its responsibility to investigate and take appropriate action. As a routine part of every standard survey and for selected complaint surveys, the NYS DOH utilizes an abuse protocol that is designed to determine whether facility staff are fully aware of their internal reporting responsibility in the facility, along with their reporting responsibilities to the NYS DOH, and whether the facility met its investigative responsibilities as discussed in this manual. According to the NYS DOH, a facility will not be cited for failure to report if there was no reasonable cause to believe that abuse, neglect, mistreatment or misappropriation of property occurred. In those cases, notification to the NYS DOH is not required under Federal or New York State regulations. (Nursing Home Incident Reporting Manual, page 2). If the facility can successfully demonstrate that an investigation of an incident/allegation immediately commenced, the facility s investigation is thorough, and the conclusion of the investigation is supported by the evidence collected and reviewed, the facility will have met the survey requirements. The Consequences of Failure to Report Abuse, Neglect and Mistreatment The NYS DOH has analyzed the types and number of complaints that have been reported to the Centralized Complaint Intake Program. The NYS DOH has concluded that some facilities have not differentiated between complaints where the NYS DOH is required to be notified (abuse, neglect, mistreatment, misappropriation of resident property), and those that do not have to be reported (i.e. personnel issues). As a routine part of every standard survey and for selected complaint surveys, the NYS DOH completes an abuse prohibition protocol that is designed to determine whether staff is fully aware of their internal reporting responsibility in the facility as well as their reporting responsibilities to the NYS DOH. Historically, the data has shown there were only a small number of citations for failure to report, and suggests that there is an overall understanding of reporting requirements. Therefore, providers may be reporting in an effort to insulate themselves from a potential citation for failure to report by reporting every incident that occurs. The NYS DOH s position has been and remains, that a provider will not be cited for failure to report if there was not reasonable cause to believe that abuse, neglect, mistreatment or misappropriation of property has occurred. In such cases, notification to the NYS DOH is not required under either Federal or New York State regulations. The focus of survey staff in determining how facilities respond to allegations will reflect the seven elements outlined in the Abuse Prohibition Protocol. If the NYS DOH s review of the incident determines that a violation of either Federal or New York State regulations took place (i.e. quality of life, quality of care), those specific violations will be cited. 52

61 CHAPTER IV: QUALITY IMPROVEMENT 53

62 Quality Improvement A comprehensive, proactive Quality Improvement 4 process in a nursing facility is the core of an effective abuse prohibition effort. This chapter will help the user understand the purpose of using information gathered from Incident/Accident Reports and investigations to promote Prevention. It will also simplify techniques for transforming the data from such sources into useful information for your abuse prohibition process. Getting Started The Abuse Prohibition components are created to help a facility attack the prevalence of abuse, neglect and mistreatment in a systematic manner. Full implementation of each component when taken together will reduce opportunities for abuse, neglect, mistreatment or misappropriation of resident property. So the first question to be asked is: IS YOUR PROGRAM JUST MEETING MINIMUM STANDARDS, OR IS IT HELPING TO PREVENT ABUSE IN YOUR NURSING FACILITY? Here are some tips that may help you answer this question. Do you have a facility-specific policy on abuse prohibition that articulates the required seven components? Can your staff demonstrate knowledge of the seven components? Do you have clear procedures that direct staff how to implement your policy? Have they been tested to be sure they work? Does your Quality Improvement Committee and its process focus on abuse prevention? Does the incident and accident data show clear improvement trends? Does resident satisfaction feedback show positive response to your efforts? Does staff satisfaction feedback show positive response to your efforts? Does interaction with state surveyors show a positive response to your efforts? If you answered yes to these questions, you can be assured you are moving in the right direction. 4 Quality Improvement is used here as a generic phrase meant to include the concepts of quality assurance (QA), quality management (QM), quality assessment and assurance (QA/A). These phrases may be used interchangeably. Remember the important word in each phrase is QUALITY. 54

63 Have your abuse prohibition efforts progressed to Quality Improvement? Central to Quality Improvement is the belief that we can always do better. With full regulatory compliance for abuse prohibition in place, our next challenge is to eliminate any vestiges of abuse. Although there are many acceptable approaches to accomplish this task, a few that have been successful for facilities are discussed next. Management Tools The most powerful tools available to promote prevention of abuse are your Quality Improvement Committee (QI) and each and every staff member in your nursing facility. Organizing this effort is a difficult and time consuming task, not to be left to people with limited experience and time. Investment in your QI process is a real investment in the quality of care for your nursing facility. Here are some tips that may help as you evolve your QI process: Make the QI Committee one of the most important committees in your nursing facility and never miss an opportunity to publicize the good work it is doing. Include the chairperson of your QI Committee in your senior decision making functions (e.g., budget processes, policy making meetings, etc.). Develop strategies to integrate the work of clinical and support staff. Barriers should be eliminated between and among all departments. It takes an entire facility, working together, to foster an abuse free environment. Keep ALL staff involved in abuse prohibition and constantly focused on finding ways to improve your facility s abuse prohibition processes. Interdisciplinary improvement teams are excellent tools to foster involvement. Emphasize the importance of data in decision making processes. The more staff are comfortable with numbers, the more willing they will be to participate in the Quality Improvement process. Encourage all staff to attend continuing education programs on QI processes. Learning increases skills and fosters commitment. Train staff at all levels to use a root cause analysis process (see pg 58) to assist them in identifying causal factors and implementing improvement strategies. 55

64 Incident & Accident Reviews -Trends and Patterns An incident or accident is much more than one event. It is one data point in a facility s abuse prohibition database. Each data point, when combined with others from the past weeks or months, begins the process of converting data to information. This can happen in at least two ways: Trends or Patterns. Patterns of data are orderly arrangements that suggest some underlying root cause. Trends are a form of data patterns that point in a certain direction. Trends are usually portrayed on run charts. Trends in data begin to show us where we are heading if we do not change course. For example, if the number of falls has been steadily increasing over the past few months we might conclude that a trend exists. Your Quality Improvement Committee might be interested in finding out what is causing this trend. One way would be to use Root Cause Analysis 5 to drill deeper into this issue. The results of the analysis can then be used to make changes in the systems, which may reverse the trend. Near-Miss Reviews When care systems weaken or are stressed beyond design there are likely to be NEAR MISSES. Usually caregivers catch the error before anything happens or at least before any harm has occurred. This is good. However, facilities should have a process to capture and analyze these Near Misses in order to prevent reoccurrences or actual incidents/accidents that could result in harm. This is another effective, proactive approach to quality improvement. Creating a system to identify near misses requires several elements: 1. A reporting system that is easily accessible to staff at all times. An example would be preprinted forms that are readily available and a consistent routing system for the forms. 2. Create a culture of no blame where employees are free to report without negative consequences and are encouraged to offer suggestions for improvements. Use near misses as learning experiences. 3. Reward employee reporting efforts. Communicate, via staff meetings, the good ideas and changes that have come from reporting near misses which have resulted in a safer environment. Recognize and/or reward employees who have stepped up. 4. Assign a point person to review near misses and follow up on actions to be taken. Report back to the initial reporter what is being done. There are additional benefits of near miss reporting. Do not be surprised when investigating near misses to find that unsafe practices and conditions may have existed for 5 Ammerman, Max. THE ROOT CAUSE ANALYSIS HANDBOOK: A SYSTEMATIC APPROACH TO IDENTIFYING, CORRECTING AND REPORTING WORKPLACE ERRORS. Quality Resources Press: New York,

65 some time and have become acceptable to staff. Unsafe practices can also be the result of policies and procedures that are outdated and no longer reflect the current work environment, equipment and/or staff competence. Near miss reporting can create a proactive quality improvement culture throughout the facility. QAPI Quality Assurance and Program Improvement In March 2010, Congress passed the Affordable Care Act. The Provisions set forth at Section 6102 (c) of the Affordable Act provide the opportunity for CMS to mobilize some of the best practices in nursing home QAPI and to identify technical assistance needs in advance of a new QAPI regulation. The provision states that the Secretary (delegated to CMS) shall establish and implement a QAPI program for facilities that includes development of standards (regulations) and provision of technical assistance on the development of best practices in order to meet such standards. This new provision significantly expands the level and scope of required QAPI activities to ensure that facilities continuously identify and correct quality deficiencies as well as sustain performance improvement. CMS (S&C NH) has developed a framework of five elements for a QAPI program this framework is applied to QAPI in all health care settings that CMS regulates e.g., hospitals, home care, ambulatory care, dialysis units. CMS has customized the five QAPI elements for nursing homes, taking into account that residents actually live in nursing homes, and that a good quality of life and resident ability to exercise choice are important. At the same time, safety and high quality of all health care services is a paramount goal, as in all other settings. The five QAPI elements for nursing homes are: Design and Scope: a QAPI program must be ongoing and comprehensive, dealing with the full range of services offered by the facility, including the full range of departments. Governance and Leadership: the governing body and/or administration of the nursing home develops and leads a QAPI program that involves leadership working with input from facility staff, as well as from residents and their families and/or representatives. Feedback, Data Systems, and Monitoring: the facility puts in place systems to monitor care and services, drawing data from multiple sources. Performance Improvement Projects: the facility conducts Performance Improvement Projects (PIPs) to examine and improve care or services in areas that are identified as needing attention. Systematic Analysis and Systemic Action: the facility uses a systematic approach to determine when in-depth analysis is needed to fully understand the problem, its causes, and implications of a change. See Quality Improvement bibliography (pg 60) for QAPI resources. 57

66 A Team Approach to Improving Care Utilizing Root Cause Definition of team: A small number of people with complementary skills who are committed to a common purpose, performance goals and approach for which they hold themselves mutually accountable. 6 In long-term care this could be our Interdisciplinary Care Planning Team or a Quality Improvement Team. To care for the whole resident it is necessary to bring people with many different skills together. That may be the easy part. Getting them to work together toward a common goal with mutual accountability is the real challenge. There are many resources that can guide you on this journey; the message here is that the journey is crucial to the quality of care in your facility. Departmental barriers obstruct teamwork. Break these barriers down and teams will survive and thrive. All staff in all departments must see their value in abuse prohibition and prevention. When they do they will be willing partners and members of teams in improving the quality of care to residents. When incidents or accidents occur, look to Care Planning Teams and your Quality Improvement Committee for help. In complicated cases special investigation teams can be used to undertake investigations. Investing in the team approach will benefit your facility in many ways, but especially in finding out what happened in an alleged abuse situation, eliminating causes of abuse, neglect and mistreatment and improving the overall quality of resident care. Problem Solving Process An effective problem solving process (PSP) includes the following steps: 1. Define the Problem specifically identify the problem in measurable terms. 2. List and select the most probable cause brainstorm the potential cause to identify, discuss, verify what is the most likely cause of an issue. 3. List and select the most probable solution after the cause is verified. You can then brainstorm potential solutions. 4. Evaluate and refine the solution so the outcome of the solution actually improves the situation in measurable terms. 6 Katzenbach, J.R and Smith, Douglas K. THE WISDOM OF TEAMS: CREATING THE HIGH PERFORMANCE ORGANIZATION, Harvard Business School Press: Boston,

67 William Edwards Deming, a statistician, professor, author, lecturer and consultant, stressed a four-step cycle the Plan, Do, Study, Act, or PDSA, model -- for problem solving. The PDSA model is depicted in the figure below. Deming s PDSA Model PLAN DO ACT STUDY Once you have identified potential solutions, apply the PDSA model to test and evaluate whether the identified cause was accurate and the solutions resolved the problem. Root Cause Analysis is intended to be used as part of an effective PSP Root Cause Analysis is a process for identifying the basic or casual factors that underlie variation in performance, including the occurrence of risk of an occurrence of a critical event. It is also: A systematic approach that identifies the basic reason for a problem A reactive as well as proactive approach A strategy to eliminate problems or improve services A quick way to assist in specifically writing your problem statements would be to use the 4 W s and an H in defining it: who, what, why, where and how does this occur. Once you have the specific problem statement, you can employ a simple technique to identify the root cause by asking the question why over and over, until you get to the prime source of the issue identified. 59

68 Quality Improvement Bibliography American Healthcare Association. Washington, DC. Continuous Quality Improvement: Using the Regulatory Framework Amo, Michael F. Incident Investigation: A Do-It-Yourself Guide. Nursing Homes: Long Term Care Management Volume 46, Number 9 (October, 1997). pp Amo, Michael F. QA&A: Basics for the Administration. Nursing Home: Long Term Care Management. Volume 41, Number 5 (October 1992). pp Amo, Michael F. Root Cause Analysis: A Tool For Understanding Why Accidents Occur. Balance: Volume 2, Number 5 (July/August, 1995). pp Amo, Michael and Niki Lee Rowe. Seven Attributes of Abuse Prevention in Long Term Care. Balance: Volume 4, Number 3 (May/June 2000). pp Joint Commission on Accreditation of Healthcare Organizations: Root Cause Analysis in Health Care: Tools and Techniques QAPI Resources: S&C #13-05 QAPI at a Glance Website: Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter pdf 60

69 CHAPTER V: THE ELDER JUSTICE ACT: SUSPICION OF CRIME 61

70 The Elder Justice Act: Suspicion of Crime Background and Summary The Elder Justice Act requires reporting of any reasonable suspicion of a crime under Section 1150B of the Social Security Act, as established by the Patient Protection and Affordable Care Act, 6703(b)(3). The section, entitled Reporting to Law Enforcement of Crimes in Federally Funded Long-Term Care Facility, sets out reporting requirements which call for covered individuals in applicable long term care facilities to report any reasonable suspicion of crimes committed against a resident of that facility. Those reports must be submitted to one law enforcement agency of jurisdiction and to the State Survey Agency. For New York, these reports must be made to the NYS DOH and at least one local law enforcement agency by the facility and individuals as defined to include the owner, operator, employee, manager, agent, or contractor. Guidelines for making a timely report include: Serious bodily injury: Report in two hours All others: Report in 24 hours. The obligations of facilities are different than the obligations of a covered individual. Failure to meet the reporting obligations of the statute will subject covered individuals and facilities to civil money penalties and exclusion sanctions. Additionally, the Affordable Care Act contains whistleblower protections for facility employees and provides for additional penalties for retaliation by a long term care facility against any individual who makes such a report. In addition, it requires a conspicuous posting for employees and annual notification to covered individuals. A more detailed description of the Elder Justice Act is set forth below. Additional information is available in the CMS S&C Letter NH, Reporting Reasonable Suspicion of a Crime in a Long-Term Care Facility: Section 1150B of the Social Security Act (Rev 01/20/2012). Applicability Requirements The reporting requirements apply to covered individuals. A covered individual is defined in section 1150B(a)(3) of the Affordable Care Act as each individual who is an owner, operator, employee, manager, agent or contractor of a long-term care facility. The reporting requirements apply to all long-term care facilities that receive at least $10,000 in Federal funding during the preceding year including, but not limited to, nursing facilities, skilled nursing facilities, hospices that provide services in long-term care facilities, and intermediate care facilities for the mentally retarded. Assisted living facilities are NOT included under this statute at this time. 62

71 Responsibilities of Covered Individuals Covered individuals must timely report any reasonable suspicion of a crime against a resident of, or who is receiving care from, a long-term care facility. A single event could trigger multiple obligations to report. For example, if one covered individual, say an aide, discovers signs of a crime and reports this to her supervisor, both the aide and supervisor would be required to report the crime. Responsibilities of Long-Term Care Facilities Long-Term Care Facilities are required to: (a) Determine applicability: Determine annually whether the facility received at least $10,000 in Federal funds under the Elder Justice Act during the preceding fiscal year. (b) Notify Covered Individuals: Annually notify each covered individual of that individual s reporting obligations described in 1150B(b) of the Elder Justice Act, if the long-term care facility has determined that it receives at least $10,000 in federal funds under the Act during the preceding fiscal year. (c) Post a Conspicuous Notice: Conspicuously post, in an appropriate location, a notice for its employees specifying the employees rights, including the right to file a complaint under the statute. The notice must include a statement that an employee may file a complaint with the State Agency against a long term care facility that retaliates against an employee as specified above, as well as include information with respect to the manner of filing such a complaint. The required information and elements to be included in such a sign are described in CMS s survey and certification memo available online. 7 (d) Avoid Retaliation: The facility may not retaliate against an individual who lawfully reports a reasonable suspicion of a crime under section 1150B. Reporting Requirements Reporting obligations of crimes themselves fall on covered individuals, not the facility as an entity. In other words, each owner, operator, employee, manager, agent or contractor of a long term care facility is responsible to meet the reporting requirements of this provision. The obligation to report is triggered when the covered individual forms a reasonable suspicion that a crime against a resident has occurred. Reasonable suspicion of a crime is defined by the jurisdiction in which the facility is located. Multiple covered individuals, each of whom has a reporting responsibility, may file a single report that includes information about the suspected crime from each covered person. Each covered individual still holds responsibility to ensure that his or her

72 individual reporting responsibility is fulfilled so it is advisable for any multiple-person report to include identification of all individuals making the report. In no way, however, will a single or multiple person report preclude a covered individual from making an individual report separately to the state agency and at least one law enforcement entity. Facilities may not prohibit individual reporting directly by a covered individual in the instance of multiple covered individuals making one report. Covered individuals may (a) report reasonable suspicion of crime to the facility administrator who will then coordinate timely reporting to the state survey agency and law enforcement on behalf of all covered individuals who made the report to the administrator. Reporting to the administrator would suffice if an individual has clear assurance that the administrator has reported it. Everyone with suspicion of a crime has the obligation to report it and although the administrator could coordinate the reports submitted, each person has the right to make an individual report. The provisions require reporting to the Secretary of HHS and one or more law enforcement entities within the political subdivision in which the facility is located. This could be construed to mean reporting to the local police, the state survey agency and/or the LTC ombudsman. After a report is made, additional covered individuals may supplement the original report with additional information if these individuals become aware of the same incident or form similar suspicion based on the same reported events. The names of additional covered individuals along with date and time of their awareness of such incident or suspicion should also be added to the original report. Reporting may be done by telephone, electronic mail, fax, or other means within the specified timeframes of the law. Timelines for Reporting 1. Serious Bodily Injury Two Hour Limit: If the events that cause the reasonable suspicion result in serious bodily injury to a resident, the covered individual shall report the suspicion immediately, but not later than two hours after forming the suspicion. 2. All Others Within 24 Hours: If the events that cause the reasonable suspicion do not result in serious bodily injury to a resident, the covered individual shall report the suspicion not later than 24 hours after forming the suspicion Reporting requirements are based on real (clock) time, not business hours. State Survey Agencies have reporting mechanisms available 24/7. 64

73 Retaliatory Protections The reporting requirements contain provisions that protect covered individuals who report suspected crimes against residents from retaliation by the long-term care facility. A long-term care facility may not discharge, demote, suspend, threaten, harass, or deny a promotion or other employment-related benefit to an employee, or in any other manner discriminate against an employee in the terms and conditions of employment because of lawful acts done by the employee, or file a complaint or a report against a nurse or other employee with the appropriate state professional disciplinary agency because of lawful acts done by the nurse or employee. Penalties for Failure of Covered Individuals to Comply with Reporting Requirements Covered individuals are subject to civil money penalty and exclusion sanctions for failure to meet the reporting obligations of the statute. Long-term care facilities are ineligible to receive Federal funds for any period that they employ an individual classified as an excluded individual under sections 1150B(c)(1)(B) or 1150B(c)(2)(B). In most cases, the covered individual can be assessed a civil monetary penalty of up to $200,000 and can be excluded from participation in Federal healthcare programs. In cases where the failure to report exacerbates harm to the victim or results in harm to another individual, the covered individual can be assessed a civil monetary penalty of up to $300,000 and face possible exclusion from participation in Federal healthcare programs. Any facility that is found to have engaged in retaliation is subject to a civil monetary penalty of up to $300,000 and possible exclusion from participation in Federal healthcare programs for a period of 2 years. Whether facilities can be held liable in a civil or criminal case if a covered individual does not report is beyond the scope of the Elder Justice Act and is a question for the courts. Suggested Actions Coordinate with Law Enforcement to determine what actions are considered crimes. Review adherence to existing CMS policies as identification of a possible crime may trigger a review of the long-term care facility s policies and procedures for reporting as required under the Federal conditions and requirements for that provider type, and a review of the actions taken to make any required incident report. Develop policies and procedures for section 1150B to ensure compliance, including the prohibition of retaliation against any employee who makes a report, causes a lawful report to be made, or takes steps in furtherance of making a lawful report pursuant to the requirements of the statute. 65

74 Train staff to identify common crimes using the list in Appendix #9 to assist them in complying with the reporting requirements of the Elder Justice Act. Post conspicuously a notice for employees specifying the employees rights under the Elder Abuse Act (page 63). 66

75 CHAPTER VI: SCREENING POTENTIAL EMPLOYEES 67

76 Screening Potential Employees Federal Regulatory Requirements Resident behavior and facility practices. (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. 42 C.F.R (c) (1) The facility must * * * (ii) Not employ individuals who have been (A) (B) Found guilty of abusing, neglecting, or mistreating residents by a court of law; or Have had a finding entered into the State nurse aide registry concerning abuse, neglect, mistreatment of residents or misappropriation of their property; and 42 C.F.R (c)(1)(ii) (iii) Report any knowledge it has of actions by a court of law against an employee, which would indicate unfitness for service as a nurse aide or other facility staff to the State nurse aide registry or licensing authorities. 42 C.F.R (c)(1)(iii) Intent (c)(1)(ii) and (iii) The facility must not hire a potential employee with a history of abuse, if that information is known to the facility. The facility must report knowledge of actions by a court of law against an employee that indicates the employee is unfit for duty. The facility must report alleged violations, conduct an investigation of all alleged violations, report the results to proper authorities, and take necessary corrective actions. Interpretive Guidelines (c)(1)(ii) and (iii) Facilities must be thorough in their investigations of the past histories of individuals they are considering hiring. In addition to inquiry of the State nurse aide registry or licensing authorities, the facility should check information from previous and/or current employers and make reasonable efforts to uncover information about any past criminal prosecutions. 68

77 Found guilty by a court of law applies to situations where the defendant pleads guilty, is found guilty, or pleads nolo contendere. Finding is defined as a determination made by the State that validates allegations of abuse, neglect, mistreatment of residents, or misappropriation of their property. A certified nurse aide found guilty of neglect, abuse, or mistreating residents or misappropriation of property by a court of law, must have her/his name entered into the nurse aide registry. A licensed staff member found guilty of the above must be reported to their licensing board. Further, 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. A State must not make a finding that an individual has neglected a resident if the individual demonstrates that such neglect was caused by factors beyond the control of the individual. State Regulatory Requirements 10 NYCRR : Nursing services. (c) Nurse aide. * * * (2) Only individuals who meet the following qualifications may be assigned to perform nurse aide functions, as defined in paragraph (1) of this subdivision: (i) a person who, as verified by the facility, is listed in the New York State RHCF Nurse Aide Registry developed and maintained as set forth in Section 2803-j of the Public Health Law and as described in Section of this Part; (ii) a graduate of a nursing program approved by the New York State Commissioner of Education or by the licensing authority in another state, territory or possession of the United States as preparation for practice as a licensed nurse who has taken and passed the New York State competency examination. 69

78 (iii) a nurse aide trainee who has successfully completed a State approved RHCF nurse aide training program as described in subdivision (d) of section of this Part or a program designed for such purpose and approved by the State Commissioner of Education and who is waiting to take the RHCF clinical skills and written or oral nurse aide competency examinations at the next scheduled opportunity, such competency examination to be passed within three consecutive attempts within 4 months of the date of the initial RHCF nurse aide trainee employment or of the completion of the State approved RHCF nurse aide training program, whichever occurs first; (iv) a nurse aide trainee who has taken the competency examinations and is waiting for the official results of the examination; (v) a certified nurse aide who is currently listed in another state's nursing home nurse aide registry, as verified by the facility, and who has applied to the Department to obtain State certification and has not been denied; and (vi) a nurse aide trainee provided the individual is concurrently enrolled in a State approved residential health care facility nurse aide training program which meets all requirements set forth in this section and completes such training program and competency examinations within one hundred twenty (120) days of employment, in accordance with the [requirements specified in the regulation]. The Nurse Aide Registry Screening Potential Employees 10 NYCRR (2) Federal regulations at 42 C.F.R (c)(1)(ii), require that a facility not employ individuals who have been found guilty of abusing, neglecting, or mistreating residents by a court of law; or have had a finding entered into the State nurse aide registry concerning abuse, neglect, mistreatment of residents or misappropriation of their property. The interpretive guidelines emphasize that facilities must be thorough in their investigations of the past histories of individuals they are considering hiring. Federal and State regulations prohibit nursing homes from employing or using any individual, in any capacity, who has been convicted of or has a documented finding of resident abuse, neglect, mistreatment or misappropriation of resident property listed in the nurse aide registry. These requirements (at 42 C.F.R (e)(5) and 10 NYCRR (c)(2)(i)) further require nursing homes to verify each nurse aide's certification status, as well as the status of all potential staff, with the state's Nurse Aide Registry prior to employment or use in the facility. In New York, the Nurse Aide Registry is currently available 24 hours a day, seven days a week, at and on-line at The general public can access this information for anyone who ever received status as a 70

79 certified nurse aide. The facility should make reasonable efforts to uncover information about any past/current criminal prosecutions. The Criminal History Record Check The Nurse Aide Registry is not the only resident protection tool employed by the NYS DOH. A Criminal History Record Check ( CHRC ) is conducted on any unlicensed staff who has access to a resident or a resident s belongings. Licensed personnel are not subject to the NYS DOH s CHRC program. CHRC results are not available to the general public. If the NYS DOH, as a result of the CHRC process, has determined that an individual is not allowed to work in a nursing home in a job that gives that person access to a resident or the resident s belongings, the determination is communicated to the authorized person(s) who submitted the finger print request. See CHRC program announcement October 16, 2012 (appendix #8). Refer to Health Commerce System (HCS) under Documents for Long Term Care for the most current CHRC information. 71

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81 APPENDIX

82 APPENDIX 1 New York State Department of Health, Dear Administrator Letter No , Abuse, Neglect & Mistreatment (2000). 2 CMS S&C 04-09, Guidelines to Support Management of Complaints and Incidents and the National Implementation of the ASPEN Complaints/Incidents Tracking System (ACTS) (Nov. 13, 2003) 3 New York State Department of Health, Dear Administrator Letter No , Nursing Home Requirements to Report to Department of Health (2005). 4 New York State Department of Health, Nursing Home Incident Reporting Manual (2012). 5 New York State Department of Health, Incident Reporting Instructions (Rev. June 14, 2012). New York State Department of Health, Dear Administrator Letter No , Incident Reporting System (June 2012). 6 CMS S&C NH, Reporting Reasonable Suspicion of a Crime in a Long-Term Care Facility: Section 1150B of the Social Security Act (Rev 01/20/2012) 7 New York State Department of Health, Criminal History Record Check Program Announcement (Oct. 16, 2012). 8 Guidance on Reporting a Crime under New York Law: supplied by Mary Beth Horn, NYS Trooper, Special Crimes Unit, as part of our DOH/Provider Meeting, CMS Hand in Hand Training Manual. RESOURCES

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93 DEPARTMENT OF HEALTH & HUMAN SERVICES Centers for Medicare & Medicaid Services 7500 Security Boulevard, Mail Stop S Baltimore, Maryland Center for Medicaid and State Operations/Survey and Certification Group DATE: November 13, 2003 Ref: S&C TO: FROM: State Survey Agency Directors Director Survey and Certification Group SUBJECT: Guidelines to Support Management of Complaints and Incidents and the National Implementation of the ASPEN Complaints/Incidents Tracking System (ACTS) Letter Summary ACTS Effective Jan. 1, 2004: The national ACTS implementation date is January 1, State survey agencies (SA) may fully implement ACTS now or at any time prior to January. Thanks: We thank the many state staff who labored with us to create and pilot-test this national electronic complaint tracking and management system. Pilot Successfully Concluded: The pilot phase of ACTS is now ended. States may fully implement ACTS now, may phase up gradually to 100% on January 1, 2004, or may cease the current 15% sampling in favor of a transition-rest until the 100% reporting in January. OSCAR Reporting: Any SA that has not fully implemented ACTS must continue to upload data to the Online Survey, Certification and Reporting (OSCAR) Complaint System. Use the Quick Entry 562 feature in ACTS or enter all intake and investigation information in ACTS. Extension Period for Exceptional State Systems: We may approve an extended transition period for a very limited number of states that have exceptionally capable and fully implemented legacy systems and for whom immediate implementation of ACTS will cause both undue hardship and loss of critical business function. Such states must agree to provide data equivalent to ACTS data via electronic means during the transition period, produce periodic reports, and ensure that CMS has full information on ACTS-covered complaints for the period beginning January 1, Contact your CMS Regional Office (RO) ACTS coordinator (see attachment 4) by December 1, 2003 for an application to request extended transition. All applications must be submitted to the RO by December 15, Attachments 1-4 offer guidance on ACTS definitions, tools, and complaint management. In this memorandum we provide direction and guidance in the management of complaints and reported incidents for nursing homes, home health agencies, end-stage renal disease facilities, hospitals, suppliers of portable X-ray services, providers of outpatient physical therapy or speech pathology services, rural health clinics, and comprehensive outpatient rehabilitation facilities. The management of complaints and reported incidents is supported by the national implementation of the ASPEN Complaints/Incidents Tracking System (ACTS), effective on January 1, However, a State survey agency (SA) may fully implement ACTS at any time prior to January 1, The pilot phase of ACTS ends effective immediately.

94 Page 2- State Survey Agency Directors Even if a State chooses not to implement ACTS until January 1, SAs must continue to upload data to the Online Survey, Certification and Reporting (OSCAR) Complaint System either by using the Quick Entry 562 feature in ACTS or by entering all intake and investigation information in ACTS. We recognize that the national implementation of ACTS affects the data entry workload or system integration challenges for some States that have established business processes with supporting legacy systems for tracking activities. We may approve a limited extension of the transition period for a very small number of states that have exceptionally capable and fully implemented legacy systems and for whom immediate implementation of ACTS will cause both undue hardship and loss of critical business function. Such states must agree to provide data equivalent to ACTS data via electronic means during the extended transition period, produce periodic reports specified by CMS, and ensure that CMS receives full information on ACTS-covered complaints for the period beginning January 1, We believe that the ACTS download capability (expected in mid-2004) will remove the need for any extension except in the most rare of circumstances. Please convey such requests, together with necessary system description and documentation, to the CMS Regional Office contact by December 1, This memorandum replaces the interim guidance issued November 8, 2002 (S&C 03-04). For nursing homes, this memorandum replaces the October 1999 memorandum, Guiding Principles for Complaint Investigations, as well. Improving the management and oversight of complaints and reported incidents is essential to ensuring protection and quality of service for the citizens we serve. We believe ACTS will improve our collective capability to track, investigate, and respond to complaints and incidents. We also believe it will conserve public dollars by virtue of a single national system rather than the creation of many state systems. We therefore appreciate wholeheartedly the diligent work of participating state and regional staff as together we address policy and procedural challenges related to ACTS and to the effective management of complaints and incidents. Thank you. Contacts: Questions about this memorandum may be addressed to Kathy Lochary at [email protected] and Elaine Lew at [email protected]. Effective Date: January 1, 2004 Dissemination: This policy should be shared with all appropriate survey and certification staff, their managers, QIES coordinators, and the state/regional office training coordinators. /s/ Thomas E. Hamilton CC: Survey and Certification Regional Office Management (G-5) Attachment 1 Guidance to Support Management of Complaints and Incidents Attachment 2 - Guidance to Distinguish Between the Priorities of Immediate Jeopardy and Non-Immediate Jeopardy-High in Nursing Home Allegations Attachment 3 - ACTS Required Fields Attachment 4 ACTS RO Contacts

95 Attachment 1 GUIDANCE TO SUPPORT MANAGEMENT OF COMPLAINTS AND INCIDENTS INTAKE PROCESS An allegation is an assertion of improper care or treatment against a Medicare, Medicaid or CLIA participating program that could result in the citation of a Federal deficiency. The point of receipt of the allegation is a critical fact-finding and decision-making point. Information regarding the care, treatment and services provided to beneficiaries can come from a variety of sources and in a number of formats. Allegations may come directly from beneficiaries themselves, beneficiaries' family members, health care providers, concerned citizens, public agencies, or in published or broadcast media reports. Report sources may be verbal or written. In some instances, the complainant may request anonymity. Information To Collect From Complainant To the extent possible, the SA captures complete information necessary to make important decisions about the allegations. In instances where written allegations are received, either subsequent verbal and/or written communication may be necessary to obtain comprehensive information. In the case of allegations received verbally (telephone or face-to-face meetings), an important opportunity exists to obtain complete information to assist with the decision-making and investigative processes. Comprehensive information should be collected during the intake process to allow for proper triage to occur. This information includes the following: Information about the complainant (e.g., name, address, telephone, etc.); Individuals involved and affected, witnesses and accusers; Allegation category (ies) (e.g., abuse, neglect, dietary, nursing services, etc.); Narrative/specifics of the allegation including the date and time of the allegation; The complainant s views about the frequency and pervasiveness of the allegation; Name of the provider/supplier including location (e.g. unit, room, floor) of the allegation, if applicable; How/why the complainant believes the allegation occurred; Whether the complainant initiated other courses of action, such as reporting to other agencies, discussing issues with the provider, and obtaining a response/resolution; and The complainant's expectation/desire for resolution/remedy, if appropriate. Information To Provide To Complainant An effective complaint intake process provides information to assist the complainant in resolving his/her conflicts. The information provided to the complainant may be communicated verbally during initial or subsequent telephone discussions or through written correspondence when acknowledging receipt of the allegation. In either case, the following elements, at a minimum, are provided as part of the intake:

96 The SA's policies and procedures for handling intakes including the scope of the SA s regulatory authority and any considerations pertaining to confidentiality; The course of action that the SA or RO will take and the anticipated time frames; Information about other appropriate agencies that could provide assistance including the name and telephone number of a contact person, if available; and A SA contact name and number for follow-up by the complainant. TRIAGE and PRIORITY ASSIGNMENT A complaint is a report made to the SA or RO by anyone other than the administrator or authorized official for a provider or supplier that alleges noncompliance with Federal and/or State laws and regulations. If, based on the intake information received, the SA determines that the allegation(s) falls within the authority of the SA, the SA triages the intake to determine the severity and urgency of the allegations, so that appropriate and timely action can be pursued. Each SA is expected to have written policies and procedures to ensure that the appropriate response is taken for each complaint. This structure needs to include response time lines and an orderly process to document actions taken by the SA in responding to every allegation. If a State s triage time frames for the investigation of a complaint/incident are more stringent than the Federal time frames, the intake is prioritized using the State s time frames. The SA is expected to be able to share the logic and rationale that was utilized in triage and prioritization of the allegation for investigation. The SA response must be designed to protect the health and safety of all residents, patients and clients. An assessment of each intake must be made by an individual who is professionally qualified to evaluate the nature of the problem based upon his/her knowledge of current clinical standards of practice and Federal requirements. In situations where a determination is made that immediate jeopardy may be present and ongoing, the SA is required to investigate within two working days of receipt of the information. For all non-immediate jeopardy situations, the complaint/incident is to be prioritized within two working days of its receipt, unless there are extenuating circumstances that impede the collection of relevant information. There are circumstances when a provider/supplier is required to report information to the SA. This is defined as an incident - an official notification to the SA or RO from a self-reporting provider or supplier (i.e., the administrator or authorized official for the provider or supplier), or from a separate agency that is providing information about a provider or supplier. The reported incident intake is prioritized after sufficient information is gathered and evaluated. The SA response is expected to protect the health and safety of all residents, patients and clients. An investigation is a review to determine if a deficient practice is or was present, and to assess the degree of harm to any resident(s), patient(s) or client(s). To assist in planning the investigation, the SA reviews any information about the provider that would be helpful to know. This may include the provider s compliance history, the provider's quality indicators, or supporting information received from other programs such as the ombudsman program or protection and advocacy program. This process may require additional contact with the complainant. For non-deemed providers and suppliers, CMS expects the SA to investigate allegations of violations of the Federal participation requirements. Page 2

97 For deemed providers and suppliers, if the SA receives a substantial allegation of noncompliance, an appropriate investigation is initiated, if one is warranted, once RO approval has been obtained. (In 1997 CMS, then HCFA, issued Guidelines for Complaint Investigation. These guidelines continue to serve as a generic, supplementary document to assist SAs with investigative protocols.) Generally, allegations about nonrecurring events that occurred more than twelve months prior to the intake date will not require the SA to conduct an investigation. However, the SA is not precluded from conducting an investigation to determine current compliance status based on concerns identified during the intake or triage process. More specifically for nursing homes, if there is sufficient evidence that the facility does not have continuing noncompliance, as evidenced by a systemic problem, and the intake reported relates to an event that occurred before the last standard survey, an onsite survey may not be required. PRIORITY DEFINITIONS Immediate Jeopardy - Section 42 CFR defines immediate jeopardy as, A situation in which the provider's noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident." Intakes are assigned this priority if the intake information indicates immediate corrective action is necessary because a provider s or supplier s alleged noncompliance with one or more conditions or requirements may have caused, or is likely to cause, serious injury, harm, impairment or death to a resident, patient or client. Immediate jeopardy, immediate and serious threat, and serious and immediate threat are interchangeable terms. In situations where a determination is made that immediate jeopardy may be present and ongoing, the SA is required to investigate within two working days of receipt of the information except: 1) For all Medicare deemed providers/suppliers complaint and incident intakes, the SA investigates a complaint within two working days of receipt of the Form CMS-2802, Request for Validation of Accreditation Survey, from the RO if the RO determines that the complaint involves potential immediate jeopardy to patient health and safety; 2) For hospital EMTALA complaints, the investigation is completed within five working days after receipt of the authorization from the RO; 3) For restraint/seclusion death reports, the SA completes the investigation within five working days of receipt of telephone authorization from the RO. (Appendix Q of the State Operations Manual (SOM) contains the Guidelines for Determining Immediate Jeopardy.) Non-Immediate Jeopardy - High (harm that impairs mental, physical and/or psychosocial status) Intakes are assigned this priority if a provider s or supplier s alleged noncompliance with one or more requirements or conditions may have caused harm that negatively impacts the individual s mental, physical and/or psychosocial status and is of such consequence to the person s well being that a rapid response by the SA is indicated. Usually, specific rather than general information (such as, descriptive identifiers, individual names, date/time/location of occurrence, description of harm, etc.) factors into the assignment of this level of priority. Page 3

98 Regarding allegations pertaining to residents in nursing homes, if the SA makes the determination that a higher level of actual harm may be present, the investigation is to be initiated within 10 working days of its receipt. The initiation of these types of investigations is generally defined as the SA beginning an onsite survey. It is often difficult to distinguish between those allegations that would require an investigation within two working days (immediate jeopardy) from those that would require an investigation within 10 working days (higher level of actual harm). The following are some examples of allegations that indicate that a higher level of actual harm may be present: Resident is intimidated/threatened; Resident is physically abused - spitting/slapping/sticking with sharp object/pushing/pinching; Unexplained/unexpected death, with circumstances indicating that there was abuse or neglect; Sexual assault/sexual harassment/coercion; Falls resulting in fracture (e.g., handrails not secured); Inappropriate use of restraints resulting in injury; Inadequate staffing which negatively impacts on resident health and safety; and Failure to obtain appropriate care or medical intervention, i.e., failure to respond to a significant change in the resident's condition. Attachment 2 describes examples to assist the SAs in distinguishing between the priorities of Immediate Jeopardy and Non-Immediate Jeopardy - High. Non-Immediate Jeopardy - Medium (harm or potential of more than minimal harm that does not significantly impair mental, physical and/or psychosocial status) Intakes are assigned this priority if a provider s or supplier s alleged noncompliance with one or more requirements or conditions has caused or may cause harm that is of limited consequence and does not significantly impair the individual s mental, physical and/or psychosocial status to function. An onsite survey should be scheduled to review these intakes. Non-EMTALA, and non-immediate jeopardy complaints for providers/suppliers with deemed status require an onsite survey within 45 calendar days after approval by the RO. Non-Immediate Jeopardy Low (discomfort) Intakes are assigned this priority if a provider s or supplier s alleged noncompliance with one or more requirements or conditions may have caused physical, mental and/or psychosocial discomfort that does not constitute injury or damage. An onsite investigation may not be scheduled, but the allegation would be reviewed at the next onsite survey. Administrative Review/Offsite Investigation - This priority is used for complaint and incident intakes triaged as not needing an onsite investigation. However, further investigative action (written/verbal communication or documentation) initiated by the SA or RO to the provider is gathered and the additional information is adequate in scope and depth to determine that an onsite investigation is not necessary; however, the SA has the discretion to review the information at the next onsite survey. Page 4

99 Referral Immediate - Complaints/incidents are assigned this priority if the seriousness of a complaint/incident and/or State procedures requires referral or reporting to another agency, board, or network without delay for investigation. Referral Other - Complaints/incidents assigned this priority indicate referral to another agency, board, or network for investigation or for informational purposes. When the SA refers the complaint to another agency or entity (e.g., law enforcement, Ombudsman, licensure agency, etc.) for action, the SA must request a written report on the results of the investigation. Regardless of who conducts the investigation, the SA has the responsibility to assess the provider s or supplier s compliance with Federal conditions or requirements and the time frames for investigation are not altered by the referral to another agency. (Expressed requests by law enforcement that the SA defer an onsite investigation would be discussed with the CMS RO, as appropriate.) No action necessary - Adequate information has been received about the complaint or incident intake such that the SA can determine with certainty that no further investigation, analysis, or action is necessary. For all cases except EMTALA, that do not allege immediate jeopardy, and at the SAs discretion an intake may not require a new onsite investigation if, at a previously completed survey, the same events were investigated; the previously completed survey evaluated the appropriate individuals, including those identified in the intake; and the situation did not worsen. INVESTIGATION FINDINGS AND REPORTS Each SA establishes reporting policies, procedures and formats including report language targeted to specific audiences. The SA/RO provides the complainant and the investigated provider a written report of the investigation findings as a summary record of the investigation. The following principles guide preparation of the report to the complainant: Acknowledge the complainant's concern(s); Identify the SA s regulatory authority to investigate the complaint/incident and any statutory or regulatory limits that may bear on the authority to conduct an investigation; Provide a summary of investigation methods (e.g., on-site visit, written correspondence, telephone inquiries, etc.); Provide date(s) of investigation; Provide an explanation of your SA s decision-making process including definitions of terms used (i.e., substantiated or validated, unsubstantiated or not validated, etc.); Provide a summary of your SA s finding. (Note: To the extent possible the summary should not compromise the anonymity of individuals, or include specific situations that may be used to identify individuals, when anonymity has been requested or is appropriate in the judgment of the SA); Identify follow-up action, if any, to be taken by your agency (i.e., follow-up visit, plan of correction review, no further action, etc.); and Identify appropriate referral information (i.e., other agencies that may be involved). Page 5

100 ADDITIONAL INSTRUCTIONS For Deemed Providers and Suppliers Before the SA conducts a complaint investigation survey against an accredited hospital or deemed provider/supplier, it must receive authorization from the RO. It is the RO's responsibility to determine whether the complaint alleges one or more Condition-levels of noncompliance. If the complaint identifies one or more Condition-levels of non-compliance, the RO must authorize the complaint investigation by completing the applicable CMS If the RO does not authorize the complaint investigation, the SA may conduct a complaint investigation should it determine that the accredited hospital or deemed provider/supplier is non-compliant with its State regulations (i.e., State licensure laws). RO authorization is not required when the SA's basis for conducting the complaint investigation is related to a State regulation. The RO must forward a completed CMS-2802 to the SA via ACTS even when the SA received an initial verbal authorization from the RO to initiate the complaint validation survey of a deemed provider/supplier. Since ACTS allows the RO to authorize a complaint validation survey electronically by completing the RO Signature box on the deemed tab, it is not required to send a signed hard copy of the CMS-2802 to the SA via fax or US Postal Mail. Once the SA receives the authorization through ACTS it may begin its complaint investigation of an accredited hospital or deemed provider/supplier. Whether the survey is of one or all Medicare conditions, it will be treated as a complaint survey under ACTS rather than a re-certification survey, since the complaint is the basis for the survey. CMS Regional Office Responsibility CMS ROs are responsible for monitoring the SAs management of complaints and incidents to assure that the SAs are complying with the provisions set forth in Federal regulations, the State Operations Manual (SOM), and CMS policy memoranda. As part of the monitoring process, the SAs will be evaluated in accordance with the criteria set forth by the State Performance Standard Review. Many States have State laws and regulations that specify how to manage complaints and incidents. Whenever possible, State and Federal requirements should be integrated to avoid unnecessary duplication. CMS ROs should accept State requirements that meet or exceed the intent of the Federal requirements. However, at a minimum, it is expected that noncompliance with Federal requirements resulting from a complaint or reported incident will receive follow-up and be documented in ACTS. State Operations Manual References This guidance supports data entry into ACTS and supplements existing procedures contained in the SOM in Chapter 3 and in Chapter 7 and Appendix P for nursing homes. There are different procedures for conducting complaint investigations for deemed and non-deemed facilities. The SAs and ROs follow the procedures outlined in the SOM at for non-deemed providers/suppliers, at for deemed provider/suppliers and at for EMTALA. Page 6

101 Data Entry From the effective date of this memorandum to the effective date for full implementation of ACTS, SAs must continue to upload data to the OSCAR Complaint System either by using the Quick Entry 562 feature in ACTS or by entering all intake and investigation information in ACTS. ACTS must be used for the intake of all allegations received on or after January 1, 2004 for skilled nursing facilities, nursing facilities, home health agencies, end stage renal disease facilities, hospitals, suppliers of portable X-ray services, providers of outpatient physical therapy or speech pathology services, rural health clinics, and comprehensive outpatient rehabilitation facilities. ACTS is a Federal system and data entered into ACTS is subject to Federal laws governing disclosure and the protection of an individual s right to privacy. SAs and ROs are required to enter into ACTS: All complaint information gathered as part of the SA survey and certification responsibilities as set forth in the 1864 Agreement, regardless if an onsite survey is conducted; and All reported incident information gathered as part of the SA survey and certification responsibilities as set forth in the 1864 Agreement and requires an onsite survey. The information is entered into ACTS regardless of the entity within a State carrying out this function. The information recorded in ACTS reflects the facts furnished by the complainant at the time of the intake. If the intake information requires an onsite survey and the allegation may involve both Federal and State licensure requirements, a Federal onsite survey is completed and entered into ACTS, at a minimum. Where an investigation finds one or more violations of Federal requirements, the findings must be cited under the appropriate tags and entered into the Federal system even if the information is entered into a State licensure system. Since this information is essential to the effective management of the survey and certification program, it is important that SAs complete the required fields in ACTS in a timely manner. Attachment 3 defines the required fields in ACTS. AVAILABLE HELP For assistance with ACTS systems related issues do not hesitate to the help line at [email protected] or call to The ACTS Training Manual and the ACTS Procedures Guide are accessible electronically at: Attachment 4 lists the CMS Regional Office contacts. Page 7

102 Attachment 2 GUIDANCE TO DISTINGUISH BETWEEN THE PRIORITIES OF IMMEDIATE JEOPARDY AND NON-IMMEDIATE JEOPARDY-HIGH IN NURSING HOME ALLEGATIONS (The following scenarios are intended only to assist in the triage of certain allegations of noncompliance in a nursing home. Each situation is unique, and the following examples should be considered as guidance only. An additional resource is Appendix Q (Guidelines for Determining Immediate Jeopardy) of the State Operations Manual.) 1. Allegations of abuse Unexplained, unexpected death, with circumstances indicating that there was abuse or neglect - A report of abuse/neglect resulting in an unexplained or unexpected death would not be triaged as immediate jeopardy if it is clear that the abuse/neglect is not present and ongoing. Whether or not an alleged perpetrator is still present in the facility and has unsupervised interaction with residents would be a consideration in assessing the urgency for an onsite visit. Unless the intake information is sufficient to determine the conditions are not present and ongoing, the intake should be triaged as immediate jeopardy and an onsite visit should be conducted within two working days. Resident is physically abused spitting/slapping/sticking with sharp object, pushing, pinching - A higher level of actual harm would exist if the situation has caused harm that negatively impacts the resident s mental, physical and/or psychosocial status and is of such consequence to the person s well being that a rapid response by the SA is indicated. The extent of the injuries, whether or not the alleged perpetrator is still present in the facility and has unsupervised interaction with the residents, the frequency and duration of the behavior as well as the facility history, recent complaint reports, deficiencies cited, and other available information should also be reviewed in making a decision regarding the triage of complaints alleging physical abuse. Unless the intake information is sufficient to determine the conditions are not present and ongoing, the intake should be triaged as immediate jeopardy and an onsite visit should be conducted within two working days. Sexual assault, sexual harassment and sexual coercion - A report of sexual assault, sexual harassment or sexual coercion would not be triaged as immediate jeopardy if it is clear that the threat of sexual abuse is not present and ongoing. A higher level of actual harm would exist if the situation has caused harm that negatively impacts the resident s mental, physical and/or psychosocial status and is of such consequence to the person s well being that a rapid response by the SA is indicated. Whether or not an alleged perpetrator is still present and has unsupervised interaction with the residents in the facility would be a consideration in assessing the urgency for an onsite visit. Unless the intake information is sufficient to determine the conditions are not present and ongoing, the intake should be triaged as immediate jeopardy and an onsite visit should be conducted within two working days. 1

103 Verbal Abuse - Resident is intimidated/threatened A higher level of actual harm would exist if the situation has caused harm that negatively impacts the resident s mental, physical and/or psychosocial status and is of such consequence to the person s well being that a rapid response by the SA is indicated. Possible indicators of a higher level of actual harm could include: the resident crying, fleeing, not want to leave their room, fearful, not participating in activities, communicating, etc.). The frequency and duration of the behavior, as well as the facility history, recent complaint reports, deficiencies cited, and other available information should also be reviewed in making a decision regarding the triage of intakes alleging verbal abuse. Whether or not an alleged perpetrator is still present in the facility and has unsupervised interaction with the residents would be a consideration in assessing the urgency for an onsite visit. Unless the intake information is sufficient to determine whether or not the conditions are present and ongoing, the complaint should be triaged as immediate jeopardy and an onsite visit should be conducted within two working days. 2. Falls resulting in fracture or serious injury - A report of falls resulting in fracture would not be triaged as immediate jeopardy if it is clear that the conditions causing and/or contributing to the falls are not present and ongoing. If the intake information is not sufficient to determine whether or not the conditions are present and ongoing, the intake should be triaged as immediate jeopardy and an onsite visit should be conducted within 2 working days. A higher level of actual harm would exist if the situation has caused harm that negatively impacts on the resident s mental, physical and/or psychosocial status and is of such consequence to the person s well being that a rapid response by the SA is indicated. Factors to consider would be whether or not falls are preventable (the cause of the fall was the result of something the facility did or failed to do) or non-preventable (the cause of the fall was not the result of something the facility did or failed to do). Unless the intake information is sufficient to determine whether or not the conditions are present and ongoing, the intake should be triaged as immediate jeopardy and an onsite visit should be conducted within two working days. 3. Inappropriate use of physical or chemical restraints resulting in serious injury - A report of inappropriate use of restraints resulting in injury would not be triaged as immediate jeopardy if it is clear that the inappropriate use of restraints is not present and ongoing. If the intake information is not sufficient to determine whether or not the conditions are present and ongoing, the intake should be triaged as immediate jeopardy and an onsite visit should be conducted within two working days. A higher level of actual harm would exist if the situation has caused harm that negatively impacts the resident s mental, physical and/or psychosocial status and is of such consequence to the person s well being that a rapid response by the SA is indicated. Unless the intake information is sufficient to determine whether or not the conditions are present and ongoing, the intake should be triaged as immediate jeopardy and an onsite visit should be conducted within two working days. 2

104 4. Inadequate staffing that negatively impacts resident health and safety - A higher level of actual harm would exist if the situation has caused harm negatively impacting on the resident s mental, physical and/or psychosocial status and is of such consequence to the person s well being that a rapid response by the SA is indicated. The intake would need to provide information about the nature and frequency of the problems created for residents by the inadequate staffing. Other information that could be used to triage the allegation of inadequate staff would be facility history, recent complaint reports, deficiencies cited, MDS data (falls, weight loss, etc). Allegations of inadequate staff should also be analyzed to assess whether or not the lack of staff poses a life safety code violation that places residents at risk. The source or sources of the allegations may impact on the classification of the complaint. Numerous complaints from multiple sources could elevate the priority for an investigation. 3

105 ACTS REQUIRED FIELDS Attachment 3 TAB FIELD(s) DEFINITION 1) Complaint - A complaint is a report made to the SA or RO by anyone other than the administrator or authorized official for a provider or supplier that alleges noncompliance with Federal and/or State laws and regulations. Intake Intake Type 2) Incident - An incident is an official notification to the SA or RO from a self-reporting provider or supplier (i.e., the administrator or authorized official for the provider or supplier), or from a separate agency that is providing information about a provider or supplier A) Federal COPs, CFCs, RFPs, EMTALA: The allegation relates to noncompliance with the Federal condition(s) of participation (COPs), condition(s) for coverage (CFCs), requirement(s) for participation (RFPs), or EMTALA requirement(s). This would include allegations of noncompliance with Federal requirements only or both Federal Intake Subtype and State requirements. (SAs and ROs are required to enter these cases into ACTS.) (for Complaints) B) State-only, licensure: The allegation is related to noncompliance with State licensure requirements only. (SAs have the option to enter these cases into ACTS.) C) No State or Federal provider compliance issue involved: The allegation does not relate to noncompliance with Federal or State survey and certification requirements. (SAs have the option to enter these cases into ACTS.) 1

106 TAB FIELD(s) DEFINITION A) Federally required, entity-reported: A provider or supplier is required by Federal law, regulation, or policy to report this type of incident, which includes the following: a. 42 C.F.R (f)- Standard: Seclusion and restraint for behavior management. The hospital must report to CMS any death that occurs while a patient is restrained or in seclusion, or where it is reasonable to assume that a patient s death is a result of restraint or seclusion. (SAs and ROs are required to enter into ACTS all incidents that lead to an onsite survey of Federal requirements or conditions.) b. 42 C.F.R For skilled nursing facilities (SNFs) and nursing facilities (NFs), 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 to other officials in accordance with State law through established procedures (including to the State survey and certification agency). (SAs and ROs are required to enter into ACTS all incidents that lead to an onsite survey of Federal requirements or conditions.) B) State-required, may result in Federal noncompliance, entity-reported: A provider or supplier is required by State law, Intake Subtype regulation, or policy to report this type of incident to the SA. This type of incident may result in noncompliance with (for Incidents) a Federal condition(s) of participation, condition(s) for coverage, requirement(s) for participation, or EMTALA requirement(s). Therefore, the SA must follow its complaint policies and procedures to investigate incidents of this type. (SAs and ROs are required to enter into ACTS all incidents that lead to an onsite survey of Federal requirements or conditions.) C) State-required, all other, entity-reported: A provider or supplier is required by State law, regulation, or policy to report this type of incident to the SA. This type of incident does not imply noncompliance with Federal conditions or requirements. (SAs and ROs are required to enter into ACTS all incidents that lead to an onsite survey of Federal requirements or conditions.) D) Reported by other agencies: A separate agency or entity is required by State law, regulation, or policy to officially report this type of incident to the SA. Example: An investigative report from an outside agency. (SAs and ROs are required to enter into ACTS all incidents that lead to an onsite survey of Federal requirements or conditions.) E) None of the above: A provider or supplier is not required by Federal or State laws, regulations, or policies to report this type of incident. (SAs and ROs are required to enter into ACTS all incidents that lead to an onsite survey of Federal requirements or conditions.) Complainant s Name For an incident the name of the official reporting the information is entered. Source A selection is made from a predefined list. The user cannot select more than 3. Received Dates: Start/End Start Date: The date of the telephone call or electronic correspondence; or, the date stamped by the SA or RO receiving office of the written correspondence. End Date: The date the SA or RO has sufficient information to prioritize the complaint or incident. This is the date in which the SA or RO determines 1) whether an onsite survey to assess Federal compliance or further action is necessary and 2) the appropriate time frame for investigation. 2

107 TAB FIELD(s) DEFINITION At least one priority must be selected for each intake. Some combinations are not permitted. A) Immediate Jeopardy: Intakes assigned this priority indicate immediate corrective action is necessary because a provider s or supplier s noncompliance with one or more conditions or requirements may have caused, or is likely to cause, serious injury, harm, impairment or death to a resident, patient or client. B) Non-Immediate Jeopardy - High: Intakes are assigned this priority if a provider s or supplier s alleged noncompliance with one or more requirements or conditions may have caused harm negatively impacting on the individual s mental, physical and/or psychosocial status and is of such consequence to the person s well being that a rapid response by the SA is indicated. This level of complaint is represented by specific rather than general information, such as, descriptive identifiers, individual names, date/time/location of occurrence, description of harm, etc. C) Non-Immediate Jeopardy - Medium: Intakes are assigned this priority if a provider s or supplier s alleged noncompliance with one or more requirements or conditions has caused or may cause harm that is of limited consequence and does not significantly impair the individual s mental, physical and/or psychosocial status to function. D) Non-Immediate Jeopardy - Low: Intakes are assigned this priority if a provider s or supplier s alleged noncompliance with one or more requirements or conditions may have caused physical, mental and/or psychosocial discomfort that does not constitute injury or damage. An onsite investigation may not be Priority scheduled but the allegation would be reviewed at the next scheduled onsite survey, at the latest. E) Administrative Review/Offsite Investigation: This priority is used for complaints/incidents that are triaged as not needing an onsite investigation. However, further investigative action (written/verbal communication or documentation) initiated by the SA or RO to the provider may be needed to ensure compliance with the Federal requirements. The additional information is adequate in scope and depth to determine that an onsite investigation is not necessary; however, a SA has the discretion to review the information at the next onsite survey. F) Referral Immediate: Complaints/incidents are assigned this priority if the seriousness of a complaint/incident and/or State procedures requires referral or reporting to another agency, board or network immediately for investigation. G) Referral - Other: Complaints/incidents assigned this priority indicate referral to another agency, board, or network for investigation or for informational purposes. H) No action necessary: Adequate information has been received about the complaint/incident such that the SA can determine with certainty that no further investigation, analysis, or action is necessary. For all cases except EMTALA, that do not allege immediate jeopardy, and at the SAs discretion an intake may not require a new onsite investigation if, at a previously completed survey, the same events were investigated; the previously completed survey evaluated the appropriate individuals, including those identified in the intake; and the situation did not worsen. These types of intakes should be linked to the appropriate survey that has already reviewed the issue. Investigate Within X Days Completion is required if the Priority is Immediate Jeopardy or Non-immediate Jeopardy (Priorities A D). A numerical time frame in calendar days is entered to support the Priority selected. The calendar date of the intake is counted as day zero. 3

108 TAB FIELD(s) DEFINITION Allegations Investigation Due By Allegation Category Findings (Substantiated) Findings (Unsubstantiated) Priority Investigate Within X Days Investigation Due By Completion is required if the Priority is Immediate Jeopardy or Non-immediate Jeopardy (Priorities A D). A corresponding calendar date is entered. At least one allegation category from a predefined list per intake is required unless Priority H - No Action Necessary is selected. A substantiated allegation is an allegation that did occur and is verified by evidence. An allegation is considered substantiated based on the finding about the individual or specific situation named by the complainant in his or her allegation; or, other residents or patients reviewed or similar situations, even if the noncompliance was corrected for the specific individual(s) named by the complainant in the allegation. A. Federal deficiencies related to the allegation are cited For nursing homes only, when Tag F698 is cited on the CMS-2567 for egregious past noncompliance between two periods of compliance for which a civil money penalty was imposed, ACTS automatically generates a check in the PNC (past noncompliance) box located at the Actions/Close tab. B. State deficiencies related to the allegation are cited C. No deficiencies related to the allegation are cited The SA determined that the allegation did occur. However, at the time of the investigation, the provider had taken action necessary to prevent the deficient practice, and/or the allegation was not serious enough to warrant citing deficiencies. (This is not applicable for EMTALA, for EMTALA see the State Operations Manual at 3410.) D. Referral to appropriate agency After investigation, the complaint/incident was forwarded to the appropriate agency. An unsubstantiated allegation is an allegation where evidence cannot support that the allegation did occur. A. Allegation did not occur Evidence indicates that the allegation did not occur. B. Lack of sufficient evidence The SA is unable to verify that the allegation did occur because of insufficient evidence. The evidence is inconclusive. C. Referral to appropriate agency After investigation, the complaint/incident was referred to the appropriate agency. This field is shared with Intake page and Deemed page (when applicable). This field is shared with Intake page and Deemed page (when applicable). This field is shared with Intake page and Deemed page (when applicable). 4

109 TAB FIELD(s) DEFINITION EMTALA (Fields required only if Create EMTALA Allegation box is checked) Deemed and Accredited (Fields enabled if Deemed for Medicare Participation or Accredited box is checked). Death Associated with Restraint/ Seclusion [Grid] EMTALA RO Response EMTALA RO Response Date Type of Emergency RO EMTALA Determination Resolution RO Confirmed Violation Date or RO Confirmed No Violation Date Type of Allegation Priority RO Response Regional Representative Region Date For Hospitals: When allegation type = Death Associated with Restraint/Seclusion (05), at least one row must be completed, except for Urban/Rural field. One of these fields should always be completed This field is shared with Intake and Allegation pages. There are no edits on these fields at this time. Investigation Investigated By Required when Complaint Priority is Immediate Jeopardy or Non-immediate Jeopardy (Priorities A D) Investigation Completed Required when Complaint Priority is Immediate Jeopardy or Non-immediate Jeopardy (Priorities A D) The date that the result of the investigation is communicated to the provider or supplier. 5

110 TAB FIELD(s) DEFINITION Actions/Close Forwarded to RO/MSA Proposed Action Proposed Action Date Overall Findings Reason Closed If the intake originates from the CMS RO, the SA should check the Forwarded to CMS/MSA box in all complaint/incident scenarios. If the intake originates from the SA, SAs should not check the box or enter a date for all nursing home intakes. For non-long-term care intakes, the SA should check the Forwarded to RO/MSA box on the complaint/incident record in the three following scenarios: i. If the complaint/incident survey is on an accredited/deemed provider/supplier. ii. If the complaint results in an EMTALA investigation. iii. If the complaint/incident survey is on an other than accredited/deemed provider or supplier and the SA is recommending termination. At least one proposed action per complaint/incident record if a survey is present. Date of the notice sent to the provider/supplier informing the provider/supplier of actions that may be taken as a result of the investigation findings. If the provider/supplier is in compliance, the proposed action date is the date the provider/supplier is notified that it is in compliance. At least one proposed action date per complaint/incident record if a survey is present. Supplied by ACTS (For complaints, uses same rule as Findings: Required when Complaint Priority = Immediate Jeopardy or Non-immediate Jeopardy (Priorities A D); for incidents, defaults on-screen to Not Applicable). Field is completed by selecting one or more of the following: A. Paperwork complete All information and documentation, including notification to the complainant, if applicable, related to this complaint or incident has been completed in the SA or RO file. B. Withdrawn The complainant contacted the entity receiving the allegation and asked that the allegation be removed. C. Referred - At the intake, during administrative review, or after the onsite complaint survey, it is determined that the issues involved must be directed to another agency or organization for resolution. D. No jurisdiction The issues identified at intake, during an administrative review or after a survey do not involve Medicare/Medicaid participation requirements. E. Provider/Supplier Termination The provider or supplier has been terminated from participation in the Medicare and/or Medicaid programs. Date Closed Date associated with the latest reason closed action selected. 6

111 TAB FIELD(s) DEFINITION NOTIFICATION: Notices Button (every tab) and the Acknowledgement and Parties Notified section on the Investigation Properties tab At least one notification is required, except when Priority is No Action Necessary. 7

112 Attachment 4 POINT OF CONTACT IN EACH CMS REGIONAL OFFICE All State agency questions related to the attached guidance are to be directed first to the CMS regional office point of contact. To assure consistency, CMS central and regional offices will work closely to jointly address concerns and questions. REGION NAME CONTACT INFORMATION I Ray Porter [email protected] II Richard Minkoff [email protected] III Paul Velez [email protected] IV Brenda Nimmons [email protected] V Maria Neff [email protected] VI Sergio Mora [email protected] VII Paul Shumate [email protected] VIII Nancy Walker [email protected] IX Richard Shirasawa [email protected] X Demetra Kossligk [email protected]

113 APPENDIX #3

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115 STATE OF NEW YORK DEPARTMENT OF HEALTH 161 Delaware Avenue Delmar, NY Antonia C. Novello, M.D., M.P.H., Dr. P.H. Dennis P. Whalen Commissioner Executive Deputy Commissioner October 20, 2005 Dear Administrator: DAL/DQS: Subject: Nursing Home Requirements to Report to Department of Health In March 2000, the Department of Health issued a Dear Administrator Letter (DAL 00-04) describing the responsibilities of nursing homes in reporting abuse, mistreatment and neglect. In December 2004, the Centers for Medicare and Medicaid Services (CMS) issued guidance on the reporting requirements for nursing homes when there are alleged violations related to mistreatment, neglect, abuse, injuries of unknown origin and misappropriation of resident property. To respond to provider inquiries regarding compliance with State law and federal regulations related to reporting responsibilities, timeframes and expectations, the Department is issuing this letter to provide clarification regarding the following: nursing home requirements to report incidents of alleged abuse, neglect and mistreatment to DOH provider responsibilities to investigate incidents, and nursing home requirements to comply with the Abuse Prohibition Protocol. This letter supplements and does not replace, the information previously distributed in the March 2000 DAL (00-04). State and Federal Definitions The table found as Appendix A to this letter presents the relevant definitions under Federal and State requirements.

116 What to Report Federal regulations (42 CFR ), and state regulations (10NYCRR 415.4) require the reporting of alleged violations of abuse, mistreatment and neglect, including injuries of unknown origin, immediately to the facility administrator and in accordance with state law, to the Department of Health. In addition, Federal regulations require that alleged violations of misappropriation of resident property be reported. CMS has defined immediately as, as soon as possible, but not to exceed 24 hours after the discovery of the incident. NYS Public Health Law (PHL) Section 2803-d requires the reporting of abuse, mistreatment or neglect immediately to the Department upon having reasonable cause to believe that abuse, neglect, or mistreatment has occurred. Department regulations at section 81.1(d) (10NYCRR section 81.1(d)) defines reasonable cause to mean that upon a review of the circumstances, there is sufficient evidence for a prudent person to believe that physical abuse, mistreatment or neglect has occurred. Circumstances to be reviewed that may lead to a reasonable cause conclusion might include, but are not limited to: a statement that physical abuse, mistreatment, or neglect has occurred; the presence of a physical condition (e.g. a bruise) which is inconsistent with the history or course of treatment of the resident; or a visual or aural observation of an act or condition of abuse, mistreatment or neglect. Providers will comply with that part of the Federal reporting requirement to state officials in accordance with state law as contained in 42CFR by following the reasonable cause requirement defined in the PHL, Section 2803-d. Federal regulations require that, the facility must ensure that all alleged violations involving mistreatment, neglect and abuse... are reported immediately to the administrator of the facility and to other officials in accordance with State law. Providers should report to the Department alleged violations of abuse, mistreatment, neglect, injuries of unknown origin, or misappropriation of resident property, only if and when the reasonable cause threshold has been achieved. This might occur before the provider investigation into the incident has begun or at any time during the investigation. If the reasonable cause threshold has not been achieved, notification to the DOH is not required under the aforementioned federal and state regulations and state law. Who Must Report Public Health Law Section 2803-d identifies mandatory reporters as those professionals who care for nursing home residents. Those who care for residents include health care workers who provide services to nursing home residents in other health care settings and those who provide services under contract. Anyone may report alleged abuse, mistreatment, or neglect. All nursing home staff should be aware of their responsibility to report to the Department.

117 Facility Investigations of Incidents Federal and State regulations (42 CFR (f) and 42 CFR (c) and 10NYCRR 415.4(b)(2)(3)(4), (b)(6)) require that providers investigate incidents and complaints. The results of an investigation of abuse, mistreatment, neglect or misappropriation of resident property must be reported both to the administrator (or designees) and to other officials (including the Department of Health) within 5 working days of the incident (42CFR (c)(4)). An allegation, as previously stated, must be reported immediately to the Department when meeting the reasonable cause standard. It is important that provider investigations are thoroughly documented. A thorough investigation includes the following: The date and time the incident was discovered; Who discovered the incident; How the incident was discovered; A description of the resident and any pertinent information regarding their condition (medical, psychological, behavioral, etc.) noted prior to discovery of the incident; A description of the resident and the area where the incident occurred; An interview log that includes: Names of staff interviewed along with their signed and dated statements; Staff who the facility decided not to interview, and why it was decided not to interview these staff; A list of the questions posed to the staff interviewed; A statement from the resident, if they are able to provide a statement about the incident; And, statements from roommates, volunteers, visitors any other individual who may have been in the area the incident took place and may have been a witness to the incident. Department of Health staff will continue to review the handling of these types of allegations during survey/complaint investigation by application of the CMS Abuse Prohibition Protocol. Facilities are strongly encouraged to review with staff the Abuse Prohibition Protocols and the seven areas covered (Screening, Training, Identification, Resident Protection, Investigation, Report/Response and Prevention). (See Appendix B) Providers must be able to provide evidence that once an allegation of abuse (neglect, mistreatment, misappropriation of resident property) was made, that the investigation was commenced immediately regardless of the time of the day or the day of the week that the incident occurred. Evidence of an investigation includes: An explanation of the evidence reviewed; What documents (i.e. care plans, policies and procedures) were reviewed and why these documents were selected for review; The conclusion reached as a result of the investigation with a discussion of its basis; and

118 Any changes implemented to care plans, policies, and procedures to prevent recurrence, as a result of the investigation. Other Issues Providers should be aware that verbal abuse must be reported to the Department of Health. In addition, resident-to-resident abuse must be reported if one or both of the following exist: There are repeated instances of aggressive resident behavior that the facility has not satisfactorily identified, or implemented a care plan to intervene, OR Residents have been physically or mentally harmed by the aggressor. As also articulated in the DAL 00-04, providers must report to the Department instances in which there is a failure to follow the care plan, when: There are repeated failures by staff to follow the care plan; OR Resident harm has occurred. Failure to Report The Department has analyzed the types and number of complaints that have been reported to the Centralized Complaint Intake Program (CCIP). The Department has concluded that some facilities have not differentiated between complaints where the Department is required to be notified (abuse, neglect, mistreatment, misappropriation of resident property), and those that do not have to be reported (i.e. personnel issues). As a routine part of every standard survey and for selected complaint surveys, the Department completes an abuse prohibition protocol that is designed to determine whether staff is fully aware of their internal reporting responsibility in the facility as well as their reporting responsibilities to the Department of Health. An analysis of the data shows that in FFY 2004, there were only a small number of citations for failure to report, and suggests that there is an overall understanding of reporting requirements. Therefore, providers may be reporting in an effort to insulate themselves from a potential citation for failure to report by reporting every incident that occurs. The Department s position has been and remains, that a provider will not be cited for failure to report if there was not reasonable cause to believe that abuse, neglect, mistreatment or misappropriation of property has occurred. In such cases, notification to the Department is not required under either Federal or NYS regulations. The focus of survey staff in determining how facilities respond to allegations will reflect the seven elements outlined in the Abuse Prohibition Protocol. If the provider can successfully demonstrate that an investigation of an incident/allegation was immediately commenced, the provider s investigation contains all elements of the investigation previously described in this letter, and the conclusion of the investigation is supported by the evidence gathered, the Department will not cite the provider for failure to adequately investigate the incident.

119 If the Department s review of the incident determines that a violation of either Federal or NYS regulations took place (i.e. quality of life, quality of care), those specific violations will be cited. Please share this letter with all facility staff, as it is the responsibility of the facility to insure that all staff is familiar with the requirements for reporting of abuse, neglect, mistreatment and misappropriation of resident property. Please contact the Division of Quality and Surveillance for Nursing Homes and ICFs/MR, at (518) , if you have any questions regarding this letter. Thank you for your cooperation and your ongoing efforts to ensure high-quality care and a dignified, respectful quality of life for all residents of New York State nursing facilities. Sincerely, Keith W. Servis, Director Division of Quality and Surveillance for Nursing Homes and ICFs/MR

120 APPENDIX A NEW YORK STATE AND FEDERAL DEFINITIONS Item NYS Definition CMS Definition Mistreatment The inappropriate use of medications, inappropriate isolation or inappropriate use of physical or chemical restraints on a resident of a residential health care facility, while the resident is under the supervision of the facility. None at this time. Neglect Abuse Injuries of Unknown Origin Misappropriation resident property of The failure to provide timely, consistent, safe, adequate and appropriate services, treatment and/or care to a resident of a residential health care facility while the resident is under the supervision of the facility, including but not limited to: nutrition, medication, therapies, sanitary clothing and surroundings, and activities of daily living. Inappropriate physical contact with a resident of a residential health care facility, while the resident is under the supervision of the facility, which harms or is likely to harm the resident. Inappropriate physical contact includes, but is not limited to, striking, pinching, kicking, shoving, bumping, and sexual molestation. None at this time. The theft, unauthorized use or removal, embezzlement or intentional destruction of the resident s personal property including but not limited to money, clothing, furniture, appliances, jewelry, works of art, and such other possessions and articles belonging to the resident regardless of monetary value. Failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness. The willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish. To be classified as an injury of unknown origin both of the following conditions must exist: *The source of the injury was not observed by any person or the source of the injury could not be explained by the resident; and *The injury is suspicious because the extent of the injury or the location of the injury (e.g., the injury is located in an area not generally vulnerable to trauma) or the number of injuries observed at one particular point in time or the incidence of injuries over time. The deliberate misplacement, exploitation, or wrongful, temporary, or permanent use of a resident s belongings or money without the resident s consent.

121 APPENDIX B Abuse Prohibition Protocol includes the following: In order to assure a consistent approach in reviewing the issue of abuse in nursing homes, surveyors are required to complete an Abuse Protocol during every standard survey. This investigative tool requires the review of policies and procedures in the survey. This investigative tool requires the review of policies and procedures in the home regarding abuse and the interview of staff members, residents and families to test individual knowledge of the policies and the implementation of the policies. There are seven factors included in this investigative protocol: Screening Training Identification Protection of Residents Investigation Report/Response Prevention Has the facility screened potential employees against the Nursing Home Nurse Aid Registry and other responsible background checks? Has staff been trained regarding what abuse is and what to do about it? Is the training ongoing? Do the policies and procedures identify a system for how the potential for abuse may be identified before it happens as well as identify behavior of both residents and staff as being abusive? Example: Do staff members know that if they see a bruise, it may have been the result of abuse and should be reported? Is there a system for keeping residents free from physical, mental, sexual, verbal and psychological abuse all the time and particularly when either a staff member or another resident is alleged to have committed abuse? Facility policies should address how all residents are kept safe. The facility must identify an individual who will collect the facts once an allegation of abuse is made. There needs to be training of staff on investigative technique. There must be a system for investigating the incident immediately, regardless of the time of day or day of the week. Facilities must have a system for the reporting of all alleged violations to the Department of Health and any other agency as appropriate. Facilities must actively engage in a process designed to prevent abuse from occurring.

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123 APPENDIX #4

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125 New York State Department of Health Division of Residential Services NURSING HOME INCIDENT REPORTING MANUAL Revised 06/14/12 General information (NH DAL 11-12: Incident Reporting System) Online Reporting Form (Nursing Home Surveillance)

126 TABLE OF CONTENTS I. GENERAL INFORMATION 1. Introduction 1 2. Incident Reporting Procedure 3 3. Review of facility investigation of incidents 4 4. Facility reporting requirements 4 5. The Elder Justice Act 4 6. General questions and answers 5 II. INCIDENT CATEGORY STATUTES AND EXAMPLES A. Abuse, mistreatment, neglect, misappropriation 8 1. Abuse 10 1a. Resident to resident abuse 10 1b. Staff to resident abuse 11 1c. Family /visitor to resident abuse Neglect Mistreatment Sexual abuse 15 4a. Resident to resident sexual abuse 15 4b. Staff to resident sexual abuse 16 4c. Family /visitor to resident sexual abuse Verbal abuse 18 5a. Resident to resident verbal abuse 18 5b. Staff to resident verbal abuse 19 5c. Family /visitor to resident verbal abuse Misappropriation of property 21 B. Quality of care Medication error/ drug diversion Injury of unknown origin Burns Attempted suicide or death related to suicide, restraints, equipment CPR concerns Accidents related to choking, equipment,misuse or failure Elopement 32 C. Physical environment Malfunction or misuse of equipment Physical plant issues / loss of service Physical environment / fire/ smoke 35

127 I. GENERAL INFORMATION 1. INTRODUCTION This manual is available to all skilled nursing facility staff responsible for reporting incidents to New York State Department of Health (NYSDOH). Information contained within describes revised reporting requirements, effective June 14, Staff of nursing homes and hospitals are required to report suspected instances of "abuse, mistreatment, and neglect" in order to protect the health and safety of persons residing in nursing homes. If there is reasonable cause to suspect that abuse, mistreatment and neglect has occurred in the nursing home, it must be promptly reported to the Department. In addition, the failure of licensed health care personnel to report instances of physical abuse, mistreatment and neglect for patients who are residents of nursing homes constitutes professional misconduct. It is the intent of the New York State Department of Health to provide clear guidelines on what incidents to report, when to report, and to avoid reporting inconsistencies. Nothing in this manual should be deemed to affect the requirement for facilities to report emergencies and disasters to the State Warning Point, operated by the NYS Office of Emergency Management. To report concerns with on-line submission: New York State Centralized Intake Program Include your name, user name, and the facility/agency name in the . REPORTING ABUSE, MISTREATMENT, NEGLECT and MISAPPROPRIATION OF PROPERTY In December 2004, the Centers for Medicare and Medicaid Services (CMS) issued guidance on the reporting requirements for nursing homes when there are alleged violations related to mistreatment, neglect, abuse, injuries of unknown origin and misappropriation of resident property. Federal regulations (42 CFR ), and state regulations (10NYCRR 415.4) require the reporting of alleged violations of abuse, mistreatment and neglect, including injuries of unknown origin, immediately to the facility administrator and in accordance with state law, to the Department of Health. Additionally, Federal regulations require that alleged violations of misappropriation of resident property be reported immediately. CMS has defined immediately as, as soon as possible, but not to exceed 24 hours after the discovery of the incident. (SOM Appendix PP - Guidance to Surveyors for Long Term Care Facilities Interpretive Guidelines (c) (2) and (4)). 1 P age

128 NYS Public Health Law (PHL) Section 2803-d requires the reporting of abuse, mistreatment or neglect and misappropriation immediately to the Department upon having reasonable cause to believe that abuse, neglect or mistreatment or misappropriation has occurred. Department regulations at section 81.1(d) (10NYCRR section 81.1(d)) defines reasonable cause to mean that upon a review of the circumstances, there is sufficient evidence for a prudent person to believe that physical abuse, neglect or mistreatment has occurred. Circumstances to be reviewed that may lead to a reasonable cause conclusion might include, but are not limited to: A statement that physical abuse, mistreatment, or neglect has occurred; The presence of a physical condition (e.g. a bruise) which is inconsistent with the history or course of treatment of the resident; or A visual or aural observation of an act or condition of abuse, mistreatment or neglect. This does not negate an individual staff person s responsibility to report instances of abuse, neglect or mistreatment to NYSDOH in accordance with mandatory reporting guidelines. This may be separate and apart from the facility report, in which circumstance; the staff person would be considered a third party complainant. Facilities must report to the Department alleged violations of abuse, mistreatment, neglect, injuries of unknown origin, or misappropriation of resident property, if and when the reasonable cause threshold has been achieved. This might occur without or before the facility investigation into the incident, or it may occur at any time during the investigation. If the reasonable cause threshold has not been achieved, notification to the DOH is not required under the aforementioned federal and state regulations and state law. OTHER REPORTABLE INCIDENTS The Department of Health has determined that occurrence of specified incidents are reportable to the Department as listed in the educational PowerPoint, that can be found on the Health Commerce System and in the Dear Administrator Letter web page. This manual contains: Questions and answers on both general matters and on specific reporting categories. (The questions and answers are only examples and do not cover all situations). The DOH policy concerning failure to report. The DOH policy regarding untimely reporting of incidents. Specific guidelines for each reportable incident. 2 P age

129 PLEASE NOTE: For purposes of facility reported incidents, long-term care facilities must report abuse, neglect, and misappropriation within 24 hours after the reasonable cause threshold is concluded. All other reportable incidents are to be communicated to the NYSDOH by the next business day. The Incident Reporting Line phone number, , may be used in case of an emergency such as loss of Internet or computer service. If circumstances dictate reporting via the hotline, that contact will be sufficient and there will be no need to report online. If a provider continues to report via the hotline they will be redirected to the website. The Centralized Complaint Intake Unit will prepare summaries of all reported incidents, and enter these into the federal complaint tracking system. A case number will be assigned and sent to you in an on the next business day. If you have questions regarding incident reporting that are not addressed in this manual, we will work with you to assist your facility in complying with the reporting requirements. You may direct your questions to the Centralized Complaint Intake Unit at INCIDENT REPORTING PROCEDURE Once a facility/staff member has "reasonable cause" to believe a violation of abuse, mistreatment, neglect, injuries of unknown origin, or misappropriation of resident property has occurred, it must be reported to the NYSDOH. Simultaneously, the facility is required to initiate an investigation. The facility must access the Health Commerce System to submit an electronic incident reporting form to the Department of Health to complete the reporting requirements. Incidents can be submitted via the HCS Internet Portal, any day of the week, or time of day. Using your username and password, log onto the HCS Internet Portal, and proceed to the Nursing Home Surveillance and Reporting System to enter information on the electronic Incident Form. Instructions for the Incident Form can be found either by clicking on the Instruction link found on the left hand side of the form, or through the Instruction link found within the Dear Administrator Letter section. PLEASE NOTE: REPORTING INCIDENTS TO NYSDOH DOES NOT RELIEVE THE FACILITY FROM THE REPORTING REQUIREMENTS OF OTHER AGENCIES. 3 P age

130 IF A DETERMINATION IS MADE THAT AN EVENT IS NOT REPORTABLE TO NYS DOH, THIS DOES NOT RELIEVE THE FACILITY OF ITS RESPONSIBILITY TO INVESTIGATE, DOCUMENT AND RETAIN THE INVESTIGATION DOCUMENTATION, AND TO TAKE APPROPRIATE ACTION. 3. REVIEW OF FACILITY INVESTIGATION OF INCIDENTS As a routine part of every standard survey and for selected complaint surveys, the Department utilizes an abuse protocol that is designed to determine whether facility staff is fully aware of their internal reporting responsibility in the facility, along with their reporting responsibilities to the Department of Health, and whether the facility met its investigative responsibilities as discussed in this manual. The facility must always report when the reasonable cause threshold is met. Facilities will not be cited for failure to report if there was no reasonable cause to believe that abuse, neglect, mistreatment or misappropriation of property occurred. In those cases, notification to the Department is not required under federal or NYS regulations. This does not negate the facility s responsibility to investigate all incidents. The investigative information must be retained by the facility for evidence that an adequate and thorough investigation was completed. 4. FACILITY REPORTING REQUIREMENTS In order for a facility to meet compliance standards, facilities are required to report incidents according to the regulatory requirements, as set forth in 42 CFR (c) Staff treatment of residents (F224 and F226). Federal regulations (42 CFR ), and state regulations (10NYCRR 415.4) require the reporting of alleged violations of abuse, mistreatment, neglect, including injuries of unknown origin, and misappropriation of property immediately to the facility administrator and in accordance with state law, to the Department of Health. As indicated in Section 1 of this manual, immediately has been defined to mean as soon as possible, but no later than 24 hours after the discovery of the incident. 5. THE ELDER JUSTICE ACT The Elder Justice Act requires reporting of any reasonable suspicion of a crime under Section 1150B of the Social Security Act, as established by the Patient Protection and Affordable Care Act, 6703(b)(3). This requires certain individuals in long term care facilities to report a reasonable suspicion of a crime committed against a resident. Those reports must be submitted to one law enforcement agency of jurisdiction and the State Survey Agency. For New York State, these reports must be made to the 4 P age

131 NYSDOH and at least one local law enforcement agency by the facility and individuals as defined to include the owner, operator, employee, manager, agent, or contractor. The Medicaid Fraud Control Unit, which has jurisdiction to investigate and prosecute instances of abuse, mistreatment, neglect and misappropriation of resident funds, qualifies as a local law enforcement agency for these purposes. Guidelines for making a timely report include: Serious bodily injury: Report within two hours All others: Report to be made within twenty-four hours The facility must develop and maintain policies and procedures that ensure compliance with Section 1150B. The Act prohibits retaliation by a long term care facility against any individual who makes such a report and establishes distinct penalties, including a fine of up to $200,000 for failure by an individual to report within the timeframe noted above (up to $300,000 if failure to report in timely manner exacerbates the harm to the victim of the crime). In addition, facilities are required to conspicuously post notice to employees informing them of their reporting obligations, and to annually provide personal notice of such obligations to those employees covered by the reporting obligations. Further information on this can be found in the CMS, S&C Letter 11-30, Reporting Reasonable Suspicion of a Crime in a Long Term Care Facility. 6. GENERAL QUESTIONS AND ANSWERS 6 a. How will confidentiality of incident reports be maintained? Information is reported to NYSDOH via a secure web site. All matters reported to the DOH Nursing Home Hotline are considered confidential and sensitive. 6 b. If an abuse, mistreatment, neglect or misappropriation allegation is investigated by the facility and not substantiated; does it have to be reported to NYSDOH? If at any time during the facility investigation the reasonable cause threshold is met, the facility must immediately report the incident to the Department. 6 c. When are initial incident reports due? Initial reports are to be submitted online within 24 hours after the incident is identified or if abuse, mistreatment or neglect appears to have occurred, once the reasonable cause threshold is met via the web reporting system. All facilities must assure that internal reporting systems are in place to meet these requirements. 5 P age

132 6 d. What is the time frame for a completed written report after the initial report is made? If the DOH requires more information, beyond the initial report, follow-up written reports should be completed and submitted upon request, within 5 working days of the incident. While the initial report is submitted via the HCS, the written report will be sent through conventional mail or fax. 6 e. Do facilities need to call the hotline in addition to reporting via the web site? A call is not necessary if the facility submitted the reportable incident to the Department via the web site. In the event you cannot access the web site, you can call the toll-free line at or to [email protected]. Additional information the facility wishes to submit after the initial report should be called to the toll-free hotline or ed. 6 f. Will a series of events reported as incidents trigger a survey? A series of events reported as incidents may trigger a survey. When the incidents are related to a specific area or standard of care, a survey may be indicated. The critical factors that NYSDOH considers are: whether the facility is doing all that it reasonably can to prevent incidents, and whether the facility is completing appropriate investigations and follow-up when an incident is determined to be unavoidable. 6 g. What constitutes verbal abuse? This includes any action that creates fear or psychological harm for the resident. Examples may include a threatening tone of voice, angry gesture, or any other action that creates fear, intimidation or humiliation. 6 h. How can a facility be sure that it is conducting an acceptable investigation? Please refer to the educational PowerPoint that can be found on the Health Commerce System and in the Dear Administrator Letter web page. In addition, NYSDOH expects that all of the questions on the Incident Reporting Form are thoroughly completed. If additional information is required, you will be contacted by an investigator. 6 i. An assessment of a resident is completed after an incident, but there is no physical injury. If the resident was involved in a physical altercation, and indicates by action or interview(s) that he/she experiences pain, is this considered an injury? Yes. Pain is considered injury. Even if a resident with cognitive impairment cannot express pain, any action that would normally be considered painful by a reasonable person should be considered an injury. For example, a slap that leaves no mark would 6 P age

133 normally be painful and should be considered reportable as an injury even if the resident cannot verbalize pain. 6 j. How can I find out if a staff person has been excluded from working in a nursing facility? The general public can access this information for anyone who ever received status as a certified nurse aide. Federal and State regulations (42 CFR (e)(5) and 10 NYCRR (c)(2)(i)) require facilities to verify each nurse aide's certification status, as well as the status of all potential staff, with the New York State Nurse Aide Registry prior to employment or use in the facility. The Registry is available 24 hours a day, seven days a week at: The Registry is not the only resident protection tool employed by the Department of Health. A Criminal History Record Check (CHRC) is conducted on any unlicensed staff that has access to a resident or a resident's belongings. Licensed personnel are not subject to the Department's CHRC program. CHRC results are not available to the general public. However, if the Department, as a result of the CHRC process, has determined that an individual is not allowed to work in a nursing home in a job that gives that person access to a resident or the resident s belongings, the determination is communicated to the authorized person(s) (AP) who submitted the fingerprint request (CHRC 103) to the Department of Health. 7 P age

134 8 P age II. INCIDENT CATEGORY STATUTES AND EXAMPLES Section II of this manual provides the federal statute for reporting incidents for all relevant reporting categories. Reporting categories are displayed, with the required elements that trigger reporting of an incident to the NYSDOH. In addition, a list of items that should be collected during the facility investigative process is included. These investigative items should be retained by the facility to provide proof that a thorough investigation was conducted. Examples are provided for each category of determining whether the reasonable cause threshold was reached for incident reporting; it should be noted that these examples are not all inclusive due to the multitude of incident scenarios that may occur during the daily operations of a nursing home. A. PHYSICAL ABUSE/ MISTREATMENT/ NEGLECT/ MISAPPROPRIATION 42 CFR Resident behavior and facility practices. (1) The resident has the right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion. (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 the NYSDOH). (3) The facility must have evidence that all alleged violations are thoroughly investigated, and must prevent further potential abuse while the investigation is in progress. (4) The results of all investigations must be reported to the administrator or his designated representative and to other officials in accordance with ffederal and State laws (including the NYSDOH) within 5 working days of the incident, and if the alleged violation is verified appropriate corrective action must be taken. DEFINITIONS of abuse, mistreatment, neglect and misappropriation: Abuse NYS - Inappropriate physical contact with a resident of a residential health care facility, while the resident is under the supervision of the facility, which harms or is likely to harm the resident. Inappropriate physical contact includes, but is not limited to, striking, pinching, kicking, shoving, bumping, and sexual molestation. Federal - The willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish. Mistreatment NYS - The inappropriate use of medications, inappropriate isolation or inappropriate use of physical or chemical restraints on a resident of a residential health care facility, while the resident is under the supervision of the facility.

135 Federal No federal definition at this time. Neglect NYS - The failure to provide timely, consistent, safe, adequate and appropriate services, treatment and/or care to a resident of a residential health care facility while the resident is under the supervision of the facility, including but not limited to: nutrition, medication, therapies, sanitary clothing and surroundings, and activities of daily living. Federal - Failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness. Misappropriation NYS - The theft, unauthorized use or removal, embezzlement or intentional destruction of the resident s personal property including but not limited to money, clothing, furniture, appliances, jewelry, works of art, and such other possessions and articles belonging to the resident regardless of monetary value. Federal - The deliberate misplacement, exploitation, or wrongful, temporary, or permanent use of a resident s belongings or money without the resident s consent. 9 P age

136 1. PHYSICAL ABUSE TYPES OF PHYSICAL ABUSE Resident to resident Staff to resident Family / visitor to resident If the following element exists, a report must be made to the DOH: Inappropriate physical contact resulting in bodily injury, or likely to harm a resident. What should the facility have readily available? Complete electronic incident form Have available Witness statement(s) Resident statement(s) Accused statement(s) Photographic evidence (if available) Facility investigation Care plan(s) Resident cognition evaluation Employee personnel and training records Report /case ID number from law enforcement Plan to prevent reoccurrence 1a. RESIDENT TO RESIDENT ABUSE: Q&A If a resident with Alzheimer s hits another resident and causes an injury (bruise, skin tear etc.) or pain, is it reportable? Yes, the facility has a responsibility to protect all residents from abuse. The Department would be reviewing the facility response to the incident in terms of care planning. Two residents, each with a diagnosis of dementia and residing in a nursing home are involved in an altercation. Staff heard the residents yelling and found resident A standing over resident B. Resident A was shouting, I told you to stay out of my room. Resident B was lying on the floor of resident A s room. He had sustained a 1 cm laceration to his left arm. When questioned, resident B was unable to relate what had happened. Resident A stated that he had struck resident B when he failed to leave the room. Resident B has a history of wandering and resident A has a history of being very territorial. Is this reportable? 10 P age

137 Yes, this would be reportable. The resident had an altercation resulting in an injury. Two residents have a physical altercation. No injury results. Is this reportable? This is reportable since the behaviors may result in harm. 1b. STAFF TO RESIDENT ABUSE Q&A A resident, who is cognitively intact, is combative with care. He is acting out and staff is unable to provide care to him. The resident exhibits bruising to both lower arms. The resident alleges that staff intentionally hurt him. Is this reportable? Yes, it would be reportable. There was an allegation of inappropriate physical contact resulting in harm. A cognitively impaired resident claims that a staff member pushed her. This resident has a history of making false allegations against staff. There are no injuries and no witnesses. Her story changes each time she tells it. Is this reportable? The facility would be required to show that they investigated this allegation and retain a record of the investigation report. If the facility determines that abuse did not occur, and the reasonable cause threshold was not reached, based on observation, interviews and record review, and absence of injury, the facility would not be required to report this. One staff member reports that another staff member punched the resident. The resident is unable to give a version. Is this reportable? Yes, this is reportable. The existence of even one witness meets the reasonable cause threshold that abuse occurred. 1c. FAMILY TO RESIDENT ABUSE Q&A If a family member hits a resident, is this reportable? Yes, it is considered abuse and should be reported and investigated, with the goal of protecting the resident from further abuse by this individual. 11 P age

138 2. NEGLECT If one of the following elements exists for an incident of neglect, then the incident needs to be reported to DOH: Failure to follow the care plan resulting in injury; or Failure to follow the care plan on more than one occasion with or without injury; or Failure to provide timely, consistent, safe, adequate and appropriate services. What should the facility have readily available? Complete electronic incident form Have available Witness statement(s) Resident statement(s) Accused statement(s) Photographic evidence (if available) Facility investigation Care plan(s) Resident cognition evaluation Employee personnel and training records Report /case ID number from law enforcement Plan to prevent reoccurrence Q&A A resident falls on the evening shift. Staff witnessed the fall. The resident is assessed and no injury is noted. The resident does not complain of pain. Staff does not document the fall and does not pass the information on to the next shift. No increased monitoring is performed, as other staff members are unaware of the fall. For the next two days the resident complains of pain. After two days, the physician is notified and x-rays are taken which confirm a fracture. Is this reportable as neglect? Yes, this is reportable. Staff was aware of the fall and potential for injury and failed to provide timely and appropriate services. A resident requires a Hoyer lift for transfers. Two staff members transfer the resident without the lift. The resident falls and sustains a fracture. The Hoyer lift was available but the staff members were in a hurry and chose not to use it. Is this reportable as neglect? Yes, this is reportable. The staff members should have been knowledgeable of the resident s care plan indicating that they were supposed to use the Hoyer lift. This failure resulted in an injury to the resident. 12 P age

139 Night staff failed to assure that a resident s bed alarm was working properly. The resident attempted to get out of bed and fell, fracturing her hip. The staff had looked at the light near the resident s bed that was red. This usually indicated the alarm was functioning; however, this resident had a different type of alarm than any other resident in the facility. Is this reportable? Yes, this is reportable as neglect. The staff failed to assure that the safety device was in proper working order. If staff had not been trained on this device, the facility could incur culpability for failure to appropriately train staff. A resident was on a 2-hour toileting schedule. A staff person failed to toilet the resident once during that shift. The resident was incontinent but did not suffer any skin breakdown. The resident did not have a history of skin breakdown. Is this reportable as neglect? The staff person had no history of failure to provide care. Is this reportable? No, this is not reportable. There was no evidence to support a pattern of poor care and there was no injury to the resident. However, it is a resident care concern and the facility needs to address it. If the same staff person had a similar issue after being retrained then it would be considered neglect. The facility should evaluate the resident for any outcomes related to dignity, including mental anguish. Morning staff discovered a resident s call light unplugged. Interview with the resident and other staff determined that a CNA unplugged the call light because the resident had been using it frequently during the night. The resident was not harmed. Is this reportable as neglect? Yes, this is reportable. Such conduct constitutes neglect because the resident is being deprived of the call light to which she is entitled and needs in order for her to obtain assistance with activities of daily living. This conduct also constitutes reportable mistreatment in that the resident is now being inappropriately isolated. 13 P age

140 3. MISTREATMENT One (1) element is needed for an incident to be reported to DOH: The inappropriate use of medications, inappropriate isolation or inappropriate use of physical or chemical restraints on a resident of a residential health care facility, while the resident is under the supervision of the facility. What should the facility have readily available? Complete electronic incident form Have available Witness statement(s) Resident statement(s) Accused statement(s) Photographic evidence (if available) Facility investigation Care plan(s) Resident cognition evaluation Employee personnel and training records Report /case ID number from law enforcement Plan to prevent reoccurrence Q&A Resident is found by a CNA tied to the bed with a sheet. It was determined that another CNA used a sheet to restrain the resident, in order to limit activity. Is this reportable? Yes, this is reportable because it involved the inappropriate use of a physical or chemical restraint on a resident. 14 P age

141 4. SEXUAL ABUSE Resident to resident Staff to resident Family / visitor to resident If the element below exists, a report must be filed with DOH: Non-Consensual sexual intrusion or penetration or, touching intimate parts or the clothing covering the intimate parts or, examines or treats resident/patient for other than bona fide medical purposes or, observes or photographs another person's intimate parts or, physical force/threat. What should the facility have readily available? Complete electronic incident form Have available Witness statement(s) Resident statement(s) Accused statement(s) Photographic evidence (if available) Facility investigation Care plan(s) Resident cognition evaluation Employee personnel and training records Report /case ID number from law enforcement Plan to prevent reoccurrence 4a. RESIDENT TO RESIDENT SEXUAL ABUSE Q&A A staff member observed a male resident fondling the breasts of a female resident. The female resident was interviewed but has severe dementia and could not relate what happened. The male resident has a psychiatric diagnosis but is cognitively aware and was able to be interviewed. He denied fondling the resident. Is this reportable? Yes, this would be reportable. This is an example of non-consensual sexual contact. A staff member reported finding a cognitively intact male resident in a cognitively intact female resident s room. He was stroking her breast and leg. When questioned by the staff member to determine whether this activity was consensual, the female resident voiced no complaint. Both residents had been on friendly terms with each other and continued to be for the next several days, when the female resident reported that she considered this to have been inappropriate behavior by the male resident. The male resident was 15 P age

142 interviewed and stated that the female had encouraged his behavior. Is this reportable? Yes, this is reportable. Once a resident states that the act was not consensual or otherwise inappropriate, this should be reported. Two cognitively impaired residents, a male and a female, were sitting on a couch in the lounge. The male resident had his hand on the female resident s breast. Neither resident seems fearful or distressed, and it appears that that the residents enjoy each other s company and have some kind of relationship. Is this reportable? The facility must determine if both residents are consenting in this situation. If the facility determines that the residents are consenting, this would not be reportable, as all the sexual abuse elements are not met. Care planning is essential. 4b. STAFF TO RESIDENT SEXUAL ABUSE Q&A A certified nursing assistant (CNA) stated that she had observed a male nurse fondling a female resident (his hand was between the resident s legs). This occurred on the Alzheimer s Unit, during the night shift. No other staff was present. The male nurse denied the allegation. He stated that he had spoken with the CNA earlier on the shift regarding her unsatisfactory job performance and believed she was accusing him of retaliation. The female resident could not be interviewed, nor were any other residents on the unit interviewed, due to their levels of cognitive impairment. Yes, this would be reportable. An allegation was made that contained the element of non-consensual sexual contact. Further, if the staffer is a health care provider or mental health care provider as defined in section of the Penal Law, the resident is deemed to be incapable of consent. (PL (3) (h)). A staff member reported that another staff member had been observed with his arms around a female resident, kissing her on the cheek. The resident was interviewed and stated that the staff member had hugged and kissed her but she did not perceive his actions as inappropriate or sexual in nature. The male staff member was interviewed and acknowledged hugging and kissing the resident. He stated that she seemed to be having a bad day and he gave her a hug and kiss as a supportive gesture. Is this reportable? No, this is not reportable. The act was not sexually inappropriate and the resident consented. Before determining that it was not reportable, the facility should assure that the resident was comfortable with the staff member s action. In constructing 16 P age

143 policies and procedures, the facility should ensure that residents are not compromised in any way by personal contact or relationships. A cognitively intact female resident complained to a staff member that while she was in Physical Therapy, a male staff member had touched her breast. This was unrelated to any treatment modality. She reported that she believed that this was a purposeful act. Yes, this would be reportable. The element of non-consensual sexual contact was present. The facility must still complete a thorough investigation to determine if the staff person was providing legitimate medical assessment or care, as opposed to inappropriate touching. 4c. FAMILY/VISITOR TO RESIDENT SEXUAL ABUSE Q&A If a family member has sexual contact with a resident, is this reportable? Yes it is reportable and considered abuse if the element is evident and should be investigated, with a goal in mind of protecting the resident from further abuse by this individual. Sexual relations between consenting adults are not reportable. 17 P age

144 5. VERBAL ABUSE/ DIGNITY CONCERNS 42 CFR (b) and (c) Resident behavior and facility practices. The facility must not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion; Verbal abuse is defined as the use of oral, written or gestured language that willfully includes disparaging and derogatory terms to residents or their families, or within their hearing distance, regardless of their age, ability to comprehend, or disability. Examples of verbal abuse may include, but are not limited to, threats of harm or saying things to frighten a resident. TYPES OF VERBAL ABUSE/DIGNITY CONCERNS: Resident to resident Staff to resident Family / visitor to resident What should the facility have readily available? Complete electronic incident form Have available Witness statement(s) Resident statement(s) Accused statement(s) Photographic evidence (if available) Facility investigation Care plan(s) Resident cognition evaluation Employee personnel and training records Report /case ID number from law enforcement Plan to prevent reoccurrence One (1) of the following elements is needed for the incident to be reported to DOH: Threat OR Physical Action (includes threatening gesture, intimidation). Fear of imminent, serious bodily injury. Use of foul, humiliating or threatening language. 5a. RESIDENT TO RESIDENT VERBAL ABUSE Q&A Staff overheard resident #1, who is alert and oriented, shout at his roommate, resident #2, Shut the hell up. You moan all the time. Shut up or I ll shut you up. Staff intervened immediately. Resident #2 is demented. Immediately following this incident resident #2 stopped talking which staff thought might be related to the incident. Is this reportable? 18 P age

145 Yes, it is reportable because it would meet all the elements for verbal abuse. Resident #1 directly threatened resident #2, and did so with foul language, and fear of imminent bodily injury. Although resident #2 could not verbalize that he was afraid, his behavior indicated that he was fearful. The staff did a good job of noting the non-verbal reaction of the resident which is very important in determining whether an incident is reportable when it involves residents who are not able to tell you how they feel or residents who have short-term memory loss. 5b. STAFF TO RESIDENT VERBAL ABUSE Q&A Staff member A overheard staff member B talking to a resident in a harsh tone of voice. Staff member B was in the resident s room responding to a call light. She was heard to say in a loud, rough voice, I m getting tired of having to come in here all the time to clean you up. Staff member A reported the incident to the charge nurse who attempted to assess the resident. The resident, who has some dementia, was unable to tell staff what had happened. Later, staff member A was assisting staff member B in caring for the same resident. When staff member B attempted to assist the resident with dressing, the resident kept pulling back as though she was afraid or humiliated. She became somewhat agitated. Staff member A asked staff member B to leave the room. As soon as staff member B left, the resident became calm and staff member A was able to finish dressing the resident. Was this reportable as verbal abuse? Yes, this is reportable. It meets the elements of threat (by the rough tone of voice and the nature of the remarks I m tired of having to take care of you ) and of fear or humiliation (following the incident, the resident appeared fearful of the staff member, and humiliated). Staff knew the resident and was able to identify a change in her behavior that indicated she was fearful of the staff member. A resident met with the facility social worker and stated that one staff member has continually insulted residents during the course of daily care. Is this reportable as verbal abuse? Yes, this is reportable because it meets the definition of verbal abuse. A staff member was showering an alert and oriented 75-year-old female resident. The resident shouted that the water was too cold and shouted, Damn it, warm it up. The staff member replied, Shut the hell up and let s get this over with, and shook her fist. Another staff member cleaning the floor in the hall heard the exchange. Is this reportable? 19 P age

146 Yes, this is reportable because it contained the necessary elements of physical action and foul language. 5c. FAMILY/VISITOR TO RESIDENT VERBAL ABUSE Q&A Staff overheard the husband of resident #1 yelling at his wife and her roommate, resident #2. (Both residents reside on an Alzheimer s Unit) The husband was angry that his wife had called him and then could not remember why she had called. He was angry with resident #2 because he thought she had damaged an item that belonged to his wife. He was shouting and shaking his finger in resident #2's face. Staff entered the room and told him he would have to leave if he didn t calm down. His wife was upset but not afraid of him. Resident #2 did express fear of the husband. Is this reportable as verbal abuse? Yes, it is reportable. Shaking his finger in resident #2's face meets the element of a physical action resulting in a threat. The element of fear was also met because resident #2 stated that she was afraid of the individual. If resident #1 had been the only resident in the room; this would not have been reportable because she stated she was not afraid of her husband. Therefore one of the necessary elements, causing fear would not have been present. If a family member verbally abuses a resident, is this reportable? Yes, it is reportable as the facility has knowledge that the family member verbally abused the resident. In addition, the facility must take action to protect the resident from further abuse by this individual. 20 P age

147 6. MISAPPROPRIATION OF PROPERTY What should the facility have readily available? Complete electronic incident form Have available Witness statement(s) Resident statement(s) Accused statement(s) Photographic evidence (if available) Facility investigation Care plan(s) Resident cognition evaluation Employee personnel and training records Report /case ID number from law enforcement Plan to prevent reoccurrence One (1) element needed to report to DOH: Deliberate misplacing, exploiting, or wrongful use of a resident s property. A pattern of misplacing, exploiting, or wrongful use of a resident s property. Resident consent not given. If the allegation is made against a staff member, and the facility has reasonable cause to believe that misappropriation occurred, then it is reportable. If the resident reports misappropriation by a family member to the facility, it would not be reportable to the DOH, unless the family member was an employee of the agency or staff under contract with the facility. Q&A The resident's daughter reported that her mother's ruby ring, which she last saw two days ago, was missing. The resident has mild dementia, but the daughter insisted the resident did not misplace it. The daughter implied a staff member was responsible. Is this reportable? At this point this is not reportable because the facility has no evidence of deliberate misplacing or wrongful use of the ring. The facility needs to conduct an investigation and a search. The ring could be lost. Following the search, the ring had not been found. The daughter observed a staff member wearing what she believes to be her mother's ring. The daughter notified the police. Is this reportable? 21 P age

148 Yes, this is reportable because there is reasonable cause to believe a staff member may have taken the ring. The facility was given $25.00 by three different families on Wednesday, so their family members could go to an outing on Friday. The person at the desk took the money and gave it to the nurse, who locked it in the medicine room drawer. On Friday morning, the Social Worker asked the nurse for the money for the three residents to go on the outing. There was no money in the medicine drawer. Is this reportable? Yes, this is reportable. Deliberateness was implied because the money was in a locked drawer and only staff had a key to the drawer. Additionally, valuables are not to be stored in the medication drawers or narcotic box. A resident reported that the night shift was using her personal cell phone for other residents without her permission. Is this reportable? Yes, this is reportable because the resident did not give permission for the use of her personal property by others in the facility. 22 P age

149 B. QUALITY OF CARE CONCERNS Sec Quality of care: Each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care. Reportable incidents: Medication error / drug diversion Injury of unknown origin Burns Death related to suicide / restraints/ equipment CPR concerns Accidents related to choking, or equipment misuse or failure 23 P age

150 1. MEDICATION ERROR / DRUG DIVERSION What should the facility have readily available? Complete electronic incident form Have available Witness statement(s) Resident statement(s) Accused statement(s) Facility investigation Care plan(s) Resident cognition evaluation Employee personnel and training records Report /case ID number from law enforcement, if reported Plan to prevent reoccurrence One (1) of the following elements is needed for report to DOH: Medication or treatment error with harm. Repeated medication or treatment errors by a nurse. Missing controlled drugs, that is not a documentation error. Multiple occurrences of not administering medications or treatments as ordered. Q&A A nurse makes an error on a dose of Coumadin over a few days. The resident exhibits excessive bruising and a very high INR. The resident was hospitalized and required vitamin K treatment. Is this reportable? Yes, it is reportable. Harm occurred in the form of bruises and low INR which required hospitalization and additional medical intervention. A unit dose package of Oxycontin is missing. Staff report that only one nurse had the keys and the count was correct at shift change, but incorrect at the next shift. Is this reportable? Yes, it is reportable as the nurse may have diverted the medication. This could possibly be considered misappropriation in addition to a medication concern. In addition to reporting this incident to the Department of Health, reports should also be made to the New York State Education Department, Office of Professional Discipline, Medicaid Fraud Control Unit and the Department of Health s Bureau of Narcotic Enforcement. 24 P age

151 A nurse administered one dose of antibiotic to the wrong resident. There was no negative outcome to the resident and the nurse has no history of errors. Is this reportable? No, this is not reportable, as there was no history of medication errors and no harm. This matter should be investigated and handled internally by the facility. A nurse fails to administer treatments on the unit to which she is assigned. Is this reportable? Yes, this is reportable as it affects many residents and there is a potential for harm. In addition, MD orders and the plans of care were not followed. Signing for medications and /or treatments not administered is considered falsification of records and is reportable. 25 P age

152 2. INJURY OF UNKNOWN ORIGIN What should the facility have readily available? Complete electronic incident form Have available Witness statement(s) Resident statement(s) Photographic evidence (if available) Facility investigation Care plan(s) Resident cognition evaluation Report /case ID number from law enforcement, if reported Plan to prevent reoccurrence Two (2) elements are needed for report to the DOH: Injury without known incident. Facility unable to rule out abuse or care plan violation. Q&A A resident is found with bruising to both upper extremities. The resident is not interviewable. Is this reportable? Injuries of unknown origin are reportable. The facility must conduct a preliminary investigation to determine if the elements of abuse, neglect or mistreatment are present. The facility should focus on root cause analysis and determine through investigation if abuse, neglect or mistreatment occurred. A resident is found with a fractured hip of unknown origin. Is this reportable? The facility must investigate this occurrence. If it determined that there was no care plan violation, and abuse, neglect and mistreatment were ruled out, the facility is not required to report this. The facility should seek guidance from the physician to determine the origin of the fracture. If the facility is unable to determine cause and abuse is not ruled out, it is reportable. 26 P age

153 3. BURNS What should the facility have readily available? Complete electronic incident form Have available Witness statement(s) Resident statement(s) Photographic evidence (if available) Facility investigation Care plan(s) Resident cognition evaluation Report /case ID number from law enforcement, if reported Plan to prevent reoccurrence One (1) of the following elements is needed for report to the DOH: Second or third degree burns. Accident resulting in burn to body surface. Q&A An 80-year-old male resident was outside smoking. He had his oxygen on via nasal cannula. When staff returned, they discovered that the resident was red and blistered around the mouth and nose. The resident's beard was burned. Is this reportable? Yes, this is reportable because the resident sustained a burn related to an accident. The blisters are classified as second degree burns. An aide put a 30-year-old female patient with Multiple Sclerosis in the tub. The resident added hot water to the tub when the aide left the room. Upon return, the aide discovered that the patient was red and had blisters from the waist down, when she took the patient out of the tub. Is this reportable? Yes, this is reportable because the resident sustained a burn related to an accident. A resident spills hot coffee onto his lap and sustains a blistered area. Is this reportable? Yes, this is reportable because the resident sustained a burn related to an accident. A resident developed a red blistered area after application of a hot pack. Is this reportable? Yes, this is reportable because the resident sustained a burn related to an accident. 27 P age

154 4. ATTEMPTED SUICIDE OR DEATH RELATED TO SUICIDE, RESTRAINTS, EQUIPMENT What should the facility have readily available? Complete electronic incident form Have available Witness statement(s) Resident statement(s) Photographic evidence (if available) Facility investigation Care plan(s) Resident cognition evaluation Report /case ID number from law enforcement, if reported Plan to prevent reoccurrence One (1) of the following elements is needed to report to DOH: Incident resulting in death. Resident attempt at suicide. Death reportable to law enforcement as unexplained or suspicious. Are unexpected deaths reportable? Yes, they are reportable if the death resulted from an incident (event). Is a suicide occurring on the premises of a residential facility reportable? It is reportable if the death occurred while the resident is under the supervision of the facility, regardless of where or when the death occurred. A resident is injured during a Hoyer lift transfer, and sustains a subdural hematoma. A few days later, she expires. Is this reportable? Yes this is reportable. The injury is related to the use of equipment. If equipment failure is identified, the facility must complete and forward a report according to the Safe Medical Devices reporting guidelines. What if a resident attempts to take their own life? Is this reportable? Yes, this is reportable. The facility investigation should document mental status and the facility s planned intervention. 28 P age

155 5. CPR CONCERNS What should the facility have readily available? Complete electronic incident form Have available Witness statement(s) Resident statement(s) Facility investigation Advanced directive documents DNR /CPR policy Care plan(s) Resident cognition evaluation Employee personnel and training records Report /case ID number from law enforcement, if reported Plan to prevent reoccurrence One (1) of the following elements is needed for report to the DOH: CPR not provided when it was required. CPR provided against resident s wishes. Q&A A resident with a DNR order was found without breath and pulse. Staff responded by providing CPR. Is this reportable? Yes, this is reportable because the provision of CPR was in direct opposition to the resident s wishes. This may indicate that the facility plan to make resident wishes known to all may have failed. A resident with no DNR order is found without breath and pulse and staff decides not to provide CPR. Is this reportable? Yes, this is reportable because the decision by staff is incorrect and in direct opposition to the resident s wishes. CPR was performed as required, but the resident expired. Is this reportable? No, this is not a reportable incident. 29 P age

156 6. ACCIDENTS RELATED TO CHOKING OR EQUIPMENT HAZARD; RESIDENT FOUND IN NON-RESIDENT AREA What should the facility have readily available? Complete electronic incident form Have available Witness statement(s) Resident statement(s) Photographic evidence (if available) Facility investigation Care plan(s) Resident cognition evaluation Report /case ID number from law enforcement, if reported Plan to prevent reoccurrence One (1) of the following elements is needed for report to the DOH: Accident related to choking; or Accident related to entrapment in equipment; or Resident found in potentially hazardous non-resident area. Q&A If a resident is served, or manages to obtain, food of incorrect consistency, is this reportable? Yes, this is reportable if the resident choked and required staff interventions. If the staff prevented ingestion of the item, and the resident was not negatively affected, this would not be reportable. If the resident required thickened liquids, and was served or managed to obtain incorrect consistency, is this reportable? Yes, this is reportable if the resident choked and required staff intervention(s). If the staff prevented ingestion of the item, and the resident was not negatively affected, this is not reportable. A resident uses upper side rails for positioning, turns in bed, and gets a body part wedged in between the side rail and mattress. Is this reportable? Yes, this is reportable regardless of outcome. 30 P age

157 A resident stands from his chair, loses balance and falls, sustaining a fractured hip. Is this reportable? The facility must investigate this incident. If it is determined that the care plan was not violated and there is no evidence of abuse, neglect or mistreatment, it is not reportable. A resident is ambulatory and found unattended in a non-resident area in the nursing home. The area has machinery, equipment and toxic supplies. Is this reportable? Yes, this is reportable as a resident should not be unattended in non-resident areas, including but not limited to: equipment rooms, stairwells, kitchen areas, janitor areas, utility areas or utility basements. If this occurs, it is reportable, regardless of the presence of actual injury. 31 P age

158 7. ELOPEMENT FROM THE BUILDING Elopement occurs when a resident leaves the Nursing Home building undetected or fails to return from a (preauthorized) pass. What should the facility have readily available? Complete electronic incident form Have available Witness statement(s) Resident statement(s) Photographic evidence (if available) Facility investigation Care plan(s) Resident cognition evaluation Elopement Risk Assessment Report /case ID number from law enforcement, if reported Plan to prevent reoccurrence One (1) of the following elements is needed for report to the DOH: Resident is at risk for elopement and remains missing after search of building conducted; or Resident with cognitive impairment leaves facility undetected; or Resident on outing or appointment with staff and elopes from staff oversight; or Resident fails to return from outing, with pass. Q&A A facility receives a call from the local hospital, informing the facility that one of their residents was brought to the hospital after being found by the police. The facility did not know the at-risk resident was missing, so they did not initiate a search. The resident was found within 8 hours. Is this reportable? Yes, this is reportable. The fact that the facility did not search because they did not know the resident was missing does not exclude the facility from reporting. If a resident is missing from the building, it is reportable. A resident with impaired cognition was sent to the physician's office via a mobility van as ordered by the MD. His daughter planned to meet him at the physician's office. The appointment date was miscommunicated and the office was closed. The resident did not return at the expected time. The facility called the physician's office and discovered that the office was closed. The resident is mildly confused. He had been missing for four hours. Is this reportable? 32 P age

159 Yes, this is reportable. The resident was sent to the MD appointment by the facility. The facility is responsible to assure safe arrival and return. He was at high risk due to his mental status and inability to make his needs known, his age and medical condition. If a patient leaves the Nursing Home AMA (against medical advice), is this a reportable incident? No, as long as there is no dementia involved, this is not reportable as the resident has announced his/her intention to leave and is therefore, not considered to be a missing person. A security guard was at the front desk, when a resident who appears healthy and looks like a visitor approaches the desk and asks to leave. The guard allows him to leave and then discovers that the man was a resident. Is this reportable? Yes, this is reportable, as having a security guard is part of the facility elopement prevention policy and the system failed. A confused resident approaches an alarmed door. The alarm sounds and staff responded. The resident is safe and returned to her unit. Is this reportable? No, this is not reportable as the system worked and the resident never left the building or staff line of vision. If the resident was able to exit the building and staff was unaware, the incident is reportable. 33 P age

160 C. PHYSICAL ENVIRONMENT 1. MALFUNCTION OR MISUSE OF EQUIPMENT If misuse of equipment or faulty equipment results in resident accident, this is reportable under quality of care. Investigation materials: Complete electronic incident form Have ready: Facility investigation Staff interviews Facility policy and plan for monitoring equipment Preventive maintenance plan and PM records Staff in-service records / personnel records Resident interviews Safe Medical Device Act What is Medical Device Reporting (MDR)? Medical Device Reporting (MDR) is the mechanism for the federal Food and Drug Administration (FDA) to receive significant medical device adverse event reports from manufacturers, importers and user facilities, so they can be detected and corrected quickly. User Facilities and MDR User Facilities (e.g., hospitals, nursing homes) are required to report suspected medical device-related deaths to both the FDA and the manufacturers. User facilities report medical device-related serious injuries only to the manufacturer. If the medical device manufacturer is unknown, the serious injury is reported by the facility to the FDA. Health professionals within a user facility should familiarize themselves with their institution s procedures for reporting adverse events to the FDA and medical device manufacturers. Two (2) of the following elements is needed for report to the DOH: Malfunction or intentional or unintentional misuse of equipment. Adverse effects related to use of equipment. 34 P age

161 Q & A A nursing home resident was being removed from an Apollo bathtub by a portable chair. The chair stand failed to lock in place and the resident sustained a laceration to the right ear lobe and an abrasion to the right shoulder. The chair armrest had warped causing the locking mechanism to fail. Is this reportable? Yes, this is reportable. The equipment clearly malfunctioned and although staff was able to intervene in this instance, there was an injury. In the subacute unit, the wall oxygen delivery system failed and an alarm sounded. The nurses immediately attached the patients to the portable oxygen tanks. Is this reportable? No, this is not reportable. The backup system functioned appropriately; thus, there was lack of potential for serious injury. If the alarm failed, it would be reportable. 2. PHYSICAL PLANT ISSUES and LOSS OF SERVICES The facility must report planned and unintentional loss of service for telephones, electricity, heat, air conditioning, water, and concerns effecting kitchen sanitation. One (1) of the following elements is needed for report to the DOH: Loss of service lasting or expected to last 4 or more hours. There is no back-up system in place; or The back-up system fails to work. Investigation materials: Complete electronic incident form Have ready: Facility plan to maintain services Facility policy and plan for monitoring equipment 3. PHYSICAL ENVIRONMENT ISSUES The facility must report occurrences of smoke or fire requiring evacuation or resulting in injury to resident(s), including serious injury or death related to a fire or smoke inhalation. The facility must report building issues that affect resident care or safety, such as, but not limited to, bomb threats, storm damage and flooded areas. 35 P age

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163 APPENDIX #5

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165 Incident Reporting System October 4, 2011 DAL: DRS-NH Incident Reporting System Dear Nursing Home Administrators: The Division of Residential Services introduces a new electronic Incident Reporting Form, which will allow nursing homes to report their incidents through the Health Commerce System (HCS). The new electronic Incident Reporting Form will replace the previous method of reporting incidents occurring at the nursing home using the nursing home hotline. Facilities will be required to report their incidents effective October 17, 2011 using the new Incident Reporting Form available on the HCS. Federal regulations (42 CFR ), and state regulations (10NYCRR 415.4) require the reporting of alleged violations of abuse, mistreatment and neglect, including injuries of unknown origin, immediately to the facility administrator and in accordance with state law, to the Department of Health. In addition, Federal regulations require that alleged violations of misappropriation of resident property be reported. CMS has defined 'immediately' as, "as soon as possible, but not to exceed 24 hours after the discovery of the incident". NYS Public Health Law (PHL) Section 2803-d requires the reporting of abuse, mistreatment or neglect immediately to the Department upon having "reasonable cause" to believe that abuse, neglect, or mistreatment has occurred. Department regulations at section 81.1(d) (10NYCRR section 81.1(d)) defines "reasonable cause" to mean that upon a review of the circumstances, there is sufficient evidence for a prudent person to believe that physical abuse, mistreatment or neglect has occurred. Federal and State regulations (42 CFR (f) and 42 CFR (c) and 10NYCRR 415.4(b)(2)(3)(4), (b)(6)) require that providers investigate incidents and complaints. The results of an investigation of abuse, mistreatment, neglect or misappropriation of resident property must be reported both to the administrator (or designees) and to other officials (including the Department of Health) within 5 working days of the incident (42CFR (c)(4)). An allegation, as previously stated, must be reported immediately to the Department when meeting the reasonable cause standard. The Department has provided an Incident Reporting Manual to further clarify the reporting requirements, and help ensure that facilities are only reporting incidents required under State and Federal regulations. The manual provides a list of reportable incidents that shall be reported via the HCS. The Department's requirements for reporting incidents are consistent with past reporting requirements. A Power Point presentation has been prepared to train nursing home employees about the process for investigating incidents, and what constitutes a reportable incident. The Power Point presentation will guide providers on what to report, the information that needs to be gathered, and how to report facility reported incidents.

166 The Incident Reporting Manual, Power Point Presentation, and Form Instructions can be found below the link to this Dear Administrator Letter. Thank you for your cooperation in working collaboratively with the Department to implement the new incident reporting process. Sincerely, Jacqueline Pappalardi, Director Division of Residential Services Office of Health Systems Management

167 Incident Reporting Form Instructions October 2012

168 NOTE: Please ensure that at the end of the submission process the following is displayed at the top of your screen in bold red print: Thank you. Data has been submitted to the Department of Health. This identifies that your incident has been reported to the Department of Health. 1) Log onto the HCS at: 2) Navigate to the HCS Nursing Home Incident Reporting Form - Click on NH Surveillance (listed under My Applications on the left side of your screen). - Select Data Entry from the DataEntry menu. - Select the activity NH INCIDENT FORM. - Click on Add New to start reporting a new incident. -Or- Select an incident from the drop down menu to continue a previously started incident (skip to (4) below) 3) Enter the date and time of the incident, and select the primary incident type from the drop down menu. Click on Save, then click on Back to Data Entry. 1 P age

169 4) Verify that the correct incident is selected by reviewing the date, time, and primary incident type. Click on Next to proceed with data entry. All of the following data tabs are required. 2 P age

170 Overview Questions 5) Answer all available questions (white or orange background). Some questions may change from gray to orange depending on the answer to a previous question. Click on Save, then click on Next. 3 P age

171 Overview Text 6) Answer all available questions (white background). Click on Save, then click on Next. 4 P age

172 Resident Information 7) Answer the first question on the tab ( How many residents were affected? ) Answer all other questions that change from a gray to an orange background. Click on Save, then click on Next. 5 P age

173 Accused Staff Information 8) Answer the first question on the tab ( How many staff were responsible for abuse, mistreatment,? ) Answer all other questions that change from a gray to an orange background. Click on Save Completing the submission 9) Click on Preview Data to be Submitted Review the data and click on Proceed to Submit Data to DOH The screen should now display Thank you. Data has been submitted to the Department of Health. Remember: Until you see Thank you. Data has been submitted to the Department of Health., the incident has not been reported to the Department of Health. 6 P age

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175 APPENDIX #6

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177 DEPARTMENT OF HEALTH & HUMAN SERVICES Centers for Medicare & Medicaid Services 7500 Security Boulevard, Mail Stop Baltimore, Maryland Center for Medicaid, CHIP, and Survey & Certification/Survey & Certification Group DATE: June 17, 2011 Ref: S&C: NH REVISED TO: FROM: State Survey Agency Directors Director Survey and Certification Group SUBJECT: Reporting Reasonable Suspicion of a Crime in a Long-Term Care Facility (LTC): Section 1150B of the Social Security Act **Revised to include updated versions of the Questions and Answers and Appendix One documents** Memorandum Summary Reporting Suspicion of a Crime: Section 1150B of the Social Security Act (the Act), as established by section 6703(b)(3) of the Patient Protection and Affordable Care Act of 2010 (Affordable Care Act), requires specific individuals in applicable long-term care facilities to report any reasonable suspicion of crimes committed against a resident of that facility. Reporting to State Survey Agencies (SAs) and Law Enforcement: Reports must be submitted to at least one law enforcement agency of jurisdiction and the SA (in fulfillment of the statutory directive to report to the Secretary). Applicability of This Memo: This memorandum discusses applicability of this provision to the following Medicare and Medicaid participating long-term care provider types that are collectively referred to as facilities or LTC facilities in this memorandum: o Nursing facilities (NFs), o Skilled nursing facilities (SNFs), o Hospices that provide services in LTC facilities, and o Intermediate Care Facilities for the Mentally Retarded (ICFs/MR). Processing Reports about Suspected Crimes: SAs should process reports received under Section 1150B of the Act in accordance with existing Centers for Medicare & Medicaid Services (CMS) and State policies and procedures for reporting incidents and complaints to SAs. LTC Facility Policies and Procedures: LTC facilities should have policies and procedures to comply with this law. The obligations of the facility are different than the obligations of a covered individual. This memorandum informs SAs of the new 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.

178 Page 2 State Survey Agency Directors In order to promote timely application of the protections offered by section 1150B of the Act for LTC facility residents, we are explaining now the current obligations of LTC facilities to comply with the law as it is plainly written, without any delay that might be occasioned by waiting for any administrative rule-making process that might further clarify application of the law. A. Background Section 6703(b)(3) of the Affordable Care Act, in part, amends Title XI of the Act by adding a new section 1150B. Section 1150B requires LTC facilities that receive at least $10,000 in Federal funds under the Act during the preceding year to annually notify each covered individual of their obligation to report to the Secretary (now assigned to the SA) and at least one local law enforcement entity any reasonable suspicion of a crime, as defined by local law, committed against an individual who is a resident of, or is receiving care from, the facility. A covered individual is defined at section 1150B(a)(3) of the Act as each individual who is an owner, operator, employee, manager, agent, or contractor of such LTC facility. Effective implementation of section 1150B of the Act may promote a timely response to potential crimes, thereby protecting residents of such facilities. The statute requires that: Covered individuals timely report any reasonable suspicion of a crime against a resident of, or who is receiving care from, a LTC facility; If the events that cause the reasonable suspicion result in serious bodily injury, the report must be made immediately after forming the suspicion (but not later than two hours after forming the suspicion). Otherwise, the report must be made not later than 24 hours after forming the suspicion; Covered individuals are subject to civil money penalty and exclusion sanctions for failure to meet the reporting obligations of the statute; LTC facilities are ineligible to receive Federal funds for any period that they employ an individual classified as an excluded individual under sections 1150B(c)(1)(B) or 1150B(c)(2)(B) of the Act; and LTC facilities are also subject to civil money penalty and exclusion sanctions for retaliating against any employee who makes a lawful report, causes a lawful report to be made, or for taking steps in furtherance of making a lawful report pursuant to the statute. B. LTC Facility Responsibilities 1. Required Functions: A Medicare- or Medicaid-participating LTC facility must: a) Determine Applicability: Determine annually whether the facility received at least $10,000 in Federal funds under the Act during the preceding fiscal year;

179 Page 3 State Survey Agency Directors b) Notify Covered Individuals: Annually notify each covered individual of that individual s reporting obligations described in section 1150B(b) of the Act, if the facility determines that it received at least $10,000 in Federal funds under the Act during the preceding fiscal year. c) Post Conspicuous Notice: Conspicuously post, in an appropriate location, a notice for its employees specifying the employees rights, including the right to file a complaint under this statute. The notice must include a statement that an employee may file a complaint with the SA against a LTC facility that retaliates against an employee as specified above, as well as include information with respect to the manner of filing such a complaint. d) Eschew Retaliation: The facility may not retaliate against an individual who lawfully reports a reasonable suspicion of a crime under section 1150B. A LTC facility may not discharge, demote, suspend, threaten, harass, or deny a promotion or other employment-related benefit to an employee, or in any other manner discriminate against an employee in the terms and conditions of employment because of lawful acts done by the employee, or file a complaint or a report against a nurse or other employee with the appropriate state professional disciplinary agency because of lawful acts done by the nurse or employee. 2. Additional Advisable Functions: A facility that effectively implements section 1150B will: a) Coordinate with Law Enforcement: Coordinate with the facility s State and local law enforcement entities to determine what actions are considered crimes in their political subdivision. b) Review Adherence to Existing CMS Policies: Review existing facility protocols and procedures to ensure adherence to existing CMS and State policies and procedures for reporting incidents and complaints. For example, participating nursing homes are already required to have policies and procedures in place to report abuse, neglect or misappropriation of resident property. During the course of a standard survey or complaint investigation, the identification of a possible crime may trigger a review of the LTC facility s policies and procedures for reporting as required under the Federal conditions and requirements for that provider type, and a review of the actions taken to make any required incident report. c) Develop Policies and Procedures for Section 1150B: Develop and maintain policies and procedures that ensure compliance with section 1150B, including the prohibition of retaliation against any employee who makes a report, causes a lawful report to be made, or takes steps in furtherance of making a lawful report pursuant to the requirements of the statute.

180 Page 4 State Survey Agency Directors C. Covered Individual Reporting SAs receiving more than one report regarding the same incident may process and/or investigate the allegation as a single complaint or incident. Multiple covered individuals, each of whom has a reporting responsibility, may file a single report that includes information about the suspected crime from each covered person. It remains the responsibility of each covered individual to ensure their individual reporting responsibility is fulfilled, so it is advisable for any multiple-person report to include identification of all individuals making the report. If, after a report is made regarding a particular incident or suspicion of a crime, additional covered individuals become aware of the same incident or form a similar suspicion based on the same reported events, the original report may be supplemented with additional information including the names of the additional covered individuals along with the date and time of their awareness of such incident or suspicion. However, in no way will a single or multiple-person report preclude a covered individual from making an individual report separately, in his/her own words, to the SA and at least one law enforcement entity. While facilities may establish an efficient process for avoiding unnecessary duplication and easing administrative burdens, they cannot prohibit individual reporting directly by a covered individual. SAs will follow the standard CMS protocols for assessing and, as appropriate, investigating all reported complaints and incidents. D. Time Period for Individual Reporting Section 1150B establishes two time limits for the reporting of reasonable suspicion of a crime, depending on the seriousness of the event that leads to the reasonable suspicion. 1. Serious Bodily Injury 2 Hour Limit: If the events that cause the reasonable suspicion result in serious bodily injury to a resident, the covered individual shall report the suspicion immediately, but not later than 2 hours after forming the suspicion; 2. All Others Within 24 Hours: If the events that cause the reasonable suspicion do not result in serious bodily injury to a resident, the covered individual shall report the suspicion not later than 24 hours after forming the suspicion. E. Survey Guidance It is useful to distinguish between three types of possible allegations; 1. Events Giving Rise to a Suspected Crime: As SAs receive reports of suspected crimes under this requirement, they must intake, record information about the event(s) giving rise to the suspicion, prioritize the complaints based on those underlying, alleged events, and, and as appropriate, investigate in accordance with existing CMS policies and

181 Page 5 State Survey Agency Directors procedures for addressing complaints or incidents. Any deficiency citations against a LTC facility that may result will be ones that are currently specified in existing CMS regulations and guidance. 2. Allegations of Individual Failure to Report: With regard to any allegation that a covered individual had a duty to report under this requirement, but did not do so, SAs must take certain actions focused on the underlying event(s) that gave rise to the allegation: a) Intake: SAs must intake and record the allegation according to existing CMS policies and procedures for complaints or incident reporting. An allegation that a covered individual failed to report a reasonable suspicion of a crime will generally contain some information about the health and safety conditions in the LTC facility at issue. The SA must assess the allegation with respect to what it may reveal about those underlying conditions and the facility s compliance with existing CMS conditions and requirements. b) Prioritize and Investigate: If the allegation contains sufficient information, then the SA must prioritize and, as appropriate, investigate the facility s compliance with CMS conditions and requirements in accordance with existing CMS policies and procedures for addressing complaints or incidents (per part E.1 above). 3. Allegations of Facility Failure to Comply with Section 1150B: With respect to any allegation that a LTC facility failed to comply with any of the requirements of section 1150B (outlined in part B.1 of this Memorandum), SAs must take certain actions focused on determining the facility s compliance with existing CMS conditions and requirements. c) Intake: SAs must intake and record the allegation according to existing CMS policies and procedures for complaints or incident reporting. An allegation of facility failure to comply with this requirement will generally contain some information about the health and safety conditions in the LTC facility and facility management or actions. The SA must assess the allegation with respect to what it may reveal about the facility s compliance with existing CMS regulations. d) Prioritize and Investigate: If the allegation contains sufficient information, then the SA must prioritize and, as appropriate, investigate the facility s compliance with CMS conditions and requirements in accordance with existing CMS policies and procedures for addressing complaints or incidents (per part E.1 above). For example, an allegation that covered individuals did not report or were not informed of their duty to report under 1150B of the Act could lead to a determination that the facility did not comply with existing Federal requirements for reporting incidents, or provide training and have certain policies and procedures in place. For example, possible deficiency citations in a SNF/NF, might include, but are not limited to:

182 Page 6 State Survey Agency Directors (c)-F226- Failure to develop and/or implement its policies and procedures for reporting abuse/neglect; (d)-F493- Governing body failure to establish/implement facility policies regarding the management and operation of the facility. For example, possible deficiency citations for a hospice provider might include, but are not limited to: o (b)(4)-L508-The hospice must ensure that all alleged violations involving mistreatment, neglect, or verbal, mental, sexual, and physical abuse, including injuries of unknown source, and misappropriation of patient property by anyone furnishing services on behalf of the hospice, are reported immediately by hospice employees and contracted staff to the hospice administrator. o (c)(8)-l771-the hospice and SNF/NF or ICF/MR must have a written agreement that includes a provision stating that the hospice must report all alleged violations involving mistreatment, neglect, or verbal, mental, sexual, and physical abuse, including injuries of unknown source, and misappropriation of patient property by anyone unrelated to the hospice to the SNF/NF or ICF/MR administrator within 24 hours of the hospice becoming aware of the alleged violation. For example, potential deficiency citations in an ICF/MR might include, but are not limited to: (d)(2)-w153-the facility must ensure that all allegations of mistreatment, neglect or abuse, as well as injuries of unknown source, are reported immediately to the administrator or to other officials in accordance with State law through established procedures. At the present time there are no CMS regulations that apply specifically to section 1150B responsibilities of covered individuals or facilities. Consequently, SAs will focus on (a) the events giving rise to reports made under this 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. Questions concerning this memorandum may be addressed to Alice Bonner at [email protected] or Akosua Ghailan at [email protected].

183 Page 7 State Survey Agency Directors Effective Date: Immediately. Please ensure that all appropriate staff members are fully informed within 30 days of the date of this memorandum. CMS is drafting guidance about the civil money penality component of 1150B and information will be forthcoming. Training: The information contained in this letter should be shared with all survey and certification staff, their managers, nursing homes, and the State/RO training coordinators. Attachments /s/ Thomas E. Hamilton cc: Survey and Certification Regional Office Management

184 Appendix One Definitions Included in the Affordable Care Act or Referenced from Other Sources for Purposes of Section 1150B of the Act Agent: Title 42 of the Code of Federal Regulations, Part defines agent as any person who has been delegated the authority to obligate or act on behalf of a provider. Contractor: The term contractor is defined in Black s law library as any person who enters into a contract, but is commonly reserved to designate one who, for a fixed price, undertakes to procure the performance of works on a large scale, or the furnishing of goods in large quantities, whether for the public or a company or individual. Covered Individual: A covered individual is defined in section 1150B(a)(3) of the Act as anyone who is an owner, operator, employee, manager, agent or contractor of the LTC facility; Crime: Section 1150B(b)(1) of the Act provides that a crime is defined by law of the applicable political subdivision where a LTC facility is located. Applicable facilities must coordinate with their local law enforcement entities to determine what actions are considered crimes within their political subdivision; Excluded Entity: An excluded entity means a long term care facility that been determined by the Secretary under section 1150B(d)(2) of the Act to be excluded for a period of 2 years pursuant to section 1128(b) of the Act; Excluded Individual: An excluded individual means a covered individual who has been determined by the Secretary to be excluded from participation in any Federal health care program (as defined in section 1128B(f) of the Act) under sections 1150B(c)(1)(B) or 1150B(c)(2)(B) of the Act; Exploitation: The term exploitation is defined in section 2011(8) of the Act (as added by section 6703(a)(1)(C) of the Affordable Care Act) as the fraudulent or otherwise illegal, unauthorized, or improper act or process of an individual, including a caregiver or fiduciary, that uses the resources of an elder for monetary or personal benefit, profit, or gain, or that results in depriving an elder of rightful access to, or use of, benefits, resources, belongings, or assets; Law Enforcement: Law enforcement is defined in section 2011(13) of the Act (as added by section 6703(a)(1)(C) of the Affordable Care Act) as the full range of potential responders to elder abuse, neglect, and exploitation including: police, sheriffs, detectives, public safety officers; corrections personnel; prosecutors; medical examiners; investigators; and coroners; Long-Term Care: The term long-term care is defined in section 2011(14) of the Act (as added by section 6703(a)(1)(C) of the Affordable Care Act) and means supportive and health services specified by the Secretary for individuals who need assistance because the individuals have a loss of capacity for self-care due to illness, disability, or vulnerability;

185 Long-Term Care (LTC) facility: A long-term care facility is defined in section 2011(15) of the Act (as added by section 6703(a)(1)(C) of the Affordable Care Act) as a residential care provider that arranges for, or directly provides long term care; Loss of capacity for self care: The term loss of capacity for self-care is defined in section 2011(14)(B) of the Act (as added by section 6703(a)(1)(C) of the Affordable Care Act) and means an inability to engage in one or more activities of daily living, including eating, dressing, bathing, management of one's financial affairs, and other activities the Secretary determines appropriate; Neglect: The term neglect is defined in section 2011(16) of the Act (as added by section 6703(a)(1)(C) of the Affordable Care Act) as (A) the failure of a caregiver or fiduciary to provide the goods or services that are necessary to maintain the health or safety of an elder; or (B) self-neglect. Neglect is also defined at 42 CFR as the failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness; Political subdivision: CMS believes a political subdivision would be a city, county, township or village, or any local unit of government created by or pursuant to State law. Retaliate against an employee: The term retaliate against an employee is referenced in Section 6703(d)(1)(A) of the Act and states: When the employer discharges, demotes, suspends, threatens, harasses, or denies a promotion or any other employment-related benefit to an employee, or in any other manner discriminates against an employee within the terms and conditions of employment because the employee has met their obligation to report a suspicion of a crime. Self-Neglect: The term self-neglect is defined in section 2011(18)(A) of the Act (as added by section 6703(a)(1)(C) of the Affordable Care Act) to mean an adult s inability, due to physical or mental impairment or diminished capacity, to perform essential self-care tasks including (A) obtaining essential food, clothing, shelter, and medical care; (B) obtaining goods and services necessary to maintain physical health, mental health, or general safety; or (C) managing one s own financial affairs; Serious Bodily Injury: The term serious bodily injury is defined in section 2011(19)(A) of the Act (as added by section 6703(a)(1)(C) of the Affordable Care Act) as an injury involving extreme physical pain; involving substantial risk of death; involving protracted loss or impairment of the function of a bodily member, organ, or mental faculty; or requiring medical intervention such as surgery, hospitalization, or physical rehabilitation; In the case of criminal sexual abuse which is defined in section 2011(19)(B) of the Act (as added by section 6703(a)(1)(C) of the Affordable Care Act), serious bodily injury/harm shall be considered to have occurred if the conduct causing the injury is conduct described in section 2241 (relating to aggravated sexual abuse) or section 2242 (relating to sexual abuse) of Title 18, United States Code, or any similar offense under State law.

186 Appendix Two - Excerpts Section Elder Justice Act Reporting Reasonable Suspicion of a Crime REPORTING TO LAW ENFORCEMENT OF CRIMES OCCURRING IN FEDERALLY FUNDED LONG-TERM CARE FACILITIES Section 6703(b)(3) LONG-TERM CARE FACILITIES. Part A of title XI of the Social Security Act (42 U.S.C et seq.), as amended by section 6005, is amended by inserting after section 1150A the following new section: SEC. 1150B (a) DETERMINATION AND NOTIFICATION. (1) DETERMINATION. The owner or operator of each long term care facility that receives Federal funds under this Act shall annually determine whether the facility received at least $10,000 in such Federal funds during the preceding year. (2) NOTIFICATION. If the owner or operator determines under paragraph (1) that the facility received at least $10,000 in such Federal funds during the preceding year, such owner or operator shall annually notify each covered individual (as defined in paragraph (3)) of that individual s obligation to comply with the reporting requirements described in subsection (b). (3) COVERED INDIVIDUAL DEFINED. In this section, the term covered individual means each individual who is an owner, operator, employee, manager, agent, or contractor of a long-term care facility that is the subject of a determination described in paragraph (1). (b) REPORTING REQUIREMENTS. (1) IN GENERAL. Each covered individual shall report to the Secretary and 1 or more law enforcement entities for the political subdivision in which the facility is located any reasonable suspicion of a crime (as defined by the law of the applicable political subdivision) against any individual who is a resident of, or is receiving care from, the facility. (2) TIMING. If the events that cause the suspicion (c) PENALTIES. (A) result in serious bodily injury, the individual shall report the suspicion immediately, but not later than 2 hours after forming the suspicion; and (B) do not result in serious bodily injury, the individual shall report the suspicion not later than 24 hours after forming the suspicion. (1) IN GENERAL. If a covered individual violates subsection (b) (A) the covered individual shall be subject to a civil money penalty of not more than $200,000; and (B) the Secretary may make a determination in the same proceeding to exclude the covered individual from participation in any Federal health care program (as defined in section 1128B(f)).

187 (2) INCREASED HARM. If a covered individual violates subsection (b) and the violation exacerbates the harm to the victim of the crime or results in harm to another individual 42 USC 1320b 25.krause on GSDDPC29PROD with PUBLIC LAWS (A) the covered individual shall be subject to a civil money penalty of not more than $300,000; and (B) the Secretary may make a determination in the same proceeding to exclude the covered individual from participation in any Federal health care program (as defined in section 1128B(f)). (3) EXCLUDED INDIVIDUAL. During any period for which a covered individual is classified as an excluded individual under paragraph (1)(B) or (2)(B), a long-term care facility that employs such individual shall be ineligible to receive Federal funds under this Act. (4) EXTENUATING CIRCUMSTANCES. (A) IN GENERAL. The Secretary may take into account the financial burden on providers with underserved populations in determining any penalty to be imposed under this subsection. (B) UNDERSERVED POPULATION DEFINED. In this paragraph, the term underserved population means the population of an area designated by the Secretary as an area with a shortage of elder justice programs or a population group designated by the Secretary as having a shortage of such programs. Such areas or groups designated by the Secretary may include (i) areas or groups that are geographically isolated (such as isolated in a rural area); (ii) racial and ethnic minority populations; and (iii) populations underserved because of special needs (such as language barriers, disabilities, alien status, or age). (d) ADDITIONAL PENALTIES FOR RETALIATION. (1) IN GENERAL. A long-term care facility may not (A) discharge, demote, suspend, threaten, harass, or deny a promotion or other employment-related benefit to an employee, or in any other manner discriminate against an employee in the terms and conditions of employment because of lawful acts done by the employee; or (B) file a complaint or a report against a nurse or other employee with the appropriate State professional disciplinary agency because of lawful acts done by the nurse or employee, for making a report, causing a report to be made, or for taking steps in furtherance of making a report pursuant to subsection (b)(1). (2) PENALTIES FOR RETALIATION. If a long-term care facility violates subparagraph (A) or (B) of paragraph (1) the facility shall be subject to a civil money penalty of not more than

188 $200,000 or the Secretary may classify the entity as an excluded entity for a period of 2 years pursuant to section 1128(b), or both. (3) REQUIREMENT TO POST NOTICE. Each long-term care facility shall post conspicuously in an appropriate location a sign (in a form specified by the Secretary) specifying the rights of employees under this section. Such sign shall include a statement that an employee may file a complaint with the Secretary against a long-term care facility that violates the provisions of this subsection and information with respect to the manner of filing such a complaint. (e) PROCEDURE. The provisions of section 1128A (other than subsections (a) and (b) and the second sentence of subsection (f)) shall apply to a civil money penalty or exclusion under this section in the same manner as such provisions apply to a penalty or proceeding under section 1128A(a). (f) DEFINITIONS. In this section, the terms elder justice, long term care facility, and law enforcement have the meanings given those terms in section 2011.

189 Questions & Answers Reporting Reasonable Suspicion of a Crime in Long Term Care Facilities January 20, 2012

190 Contents Main Topic Questions A. Background 1. What are the provisions in section 6703 of the Affordable Care Act, part of the Elder Justice Act? 2. What is the effective date of the section 6703(b)(3) requirements? B. Facility Responsibilities C. Reporting Requirements 1. What are a long-term care facility s responsibilities under section 1150B of the Act? 2. Section 1150B requires facilities to conspicuously post Notice of Employee Rights posters in a form specified by the Secretary- is this form available? 3. What types of facilities must conform to the requirements under section 1150B of the Act? 4. Who is considered a covered individual? 5. Who are excluded individuals that we should not employ? 6. Does Section 1150B cover only those with firsthand knowledge of the suspicion of a crime? 7. In a Continuing Care Retirement Community that includes independent living, assisted living, as well as nursing care, is the expectation that the facility post in all areas of the community, or just the nursing care unit? 8. What is the difference between reporting incidents to the SA and reporting the suspicion of a crime to the SA and local law enforcement? 1. All reasonable suspicions of a crime have to be reported to the State Agency. Is there a specific form? What number should we call? 2. If a covered individual reports a suspicion of a crime directly to law enforcement or the State Agency, can the facility s policies require that individual to report the concern/incident to his/her facility supervisor or the administrator as well? 3. When a skilled nursing facility has a case of abuse, we submit a 24-hour report and then a 5-day report specific to abuse reporting. Do we also need to report to the Secretary and local law enforcement? 4. Section 1150B requires reporting time frames of 2 hours or 24 hours when there is a reasonable suspicion of a crime - is this business hours? For example, if the suspicion occurs on a Saturday, must it be reported then, or can it wait until Monday? 5. Is it safe to assume that falls that result in a hospitalization, that are not directly related to a witnessed act of abuse, have to be reported to law enforcement? 6. Does section 1150B include acts committed by a resident of a nursing facility that has dementia? We often have resident to resident altercations on our Alzheimer's Unit that could constitute assault. Would we now need to report assault by a resident with dementia to local law enforcement? 7. Should facilities or State Survey Agencies meet with local law enforcement officials to determine which actions they consider to be crimes and which issues should be reported to law enforcement? 8. Does an unusual bruise require reporting to law enforcement? 9. If a suspicion of a crime is reported by a covered individual, and the occurrence also meets the requirements for incident reporting, must the facility report the incident using the usual incident reporting mechanisms? 10. To what number or numbers is the suspicion of abuse reported? Are there

191 different numbers for reporting when there has been serious injury? 11. If our state mandated Resource Management Plan requires staff make a direct report to one of three designated staff, does this preclude that requirement or may we assist staff in making the required reports to the SA and Law Enforcement? 12. Is abuse to be considered as part of this required reporting? 13. Is it acceptable for a facility in its compliance policy to state that covered individuals may either (a) report reasonable suspicion of crime directly to the state survey agency and law enforcement, or (b) report reasonable suspicion of crime to the facility administrator who will then coordinate timely reporting to the state survey agency and law enforcement on behalf of all covered individuals who made the report to the administrator? 14. Can a facility fax a notification? 15. In reference to the duty of covered individuals to timely report a suspicion of a crime, I see there are two timelines that must be followed. If a covered individual determines that he/she has a reasonable suspicion involving serious bodily injury after business hours for the SA or the weekend, what procedure should that individual follow to ensure that he/she will not be held responsible for not reporting to the state within the 2 hour timeline? 16. Under Facility Requirements 1. (c) and (d) I find some information on what to include in the notice that we must conspicuously post. Is there any other information that should be included in the notice regarding employee s rights? D. Liability 1. Can facilities be held liable in a civil or criminal case if a covered individual does not report suspicion of a crime? E. State Agency s 1. What is the SA s role in enforcing the provisions of 1150B? Requirements 2. What are a facility s reporting obligations? 3. Can CMS provide examples of the circumstances in which self-neglect would be a crime? F. ICF/MRs 1. Who or what agency should the facility call? 2. Is the Local Ombudsman considered the same as a member of law enforcement? 3. Who do I contact if I have a reasonable suspicion of a crime? 4. Does this new requirement mandate that the employee who suspects a crime (i.e., direct care staff) must be the one who calls the SA and law enforcement? G. Definitions 1. What is the definition of contractor and agent as used in Section 1150B of the Act? 2. Are employees of contractors, including direct care staff employed by temporary agencies, covered individuals? 3. Who is a covered individual?

192 Reporting Reasonable Suspicion of a Crime in Long Term Care Facilities A. Background A.1. What are the provisions in section 6703 of the Affordable Care Act, part of the Elder Justice Act? Subtitle H of the Patient Protection and Affordable Care Act (Affordable Care Act) of 2010 is also known as the Elder Justice Act of Section 6703(b)(3) of the Affordable Care Act (which is located in this subtitle) amends the Social Security Act (the Act) by establishing new section 1150B of the Act entitled, Reporting to Law Enforcement of Crimes Occurring in Federally Funded Long-Term Care Facilities. Section 1150B of the Act requires certain individuals in federally funded long-term care facilities to timely report any reasonable suspicion of a crime committed against a resident of that facility. Those reports must be submitted to at least one law enforcement agency of jurisdiction and the State Survey Agency (SA), in fulfillment of the statutory directive to report to the Secretary. Individuals who fail to report under section 1150B(b) shall be subject to various penalties, including civil monetary penalties. Section 1150B(d) of the Act also prohibits a long-term care facility from retaliating against any individual who makes such a report. A.2. What is the effective date of the section 6703(b)(3) requirements? The amendments made to Title XI of the Act by section 6703(b)(3) of the Affordable Care Act became effective on March 23, Therefore, the requirements and provisions of that section are currently in effect. B. Facility Responsibilities B.1. What are a long term care facility s responsibilities under section 1150B of the Act? There are three specified responsibilities for long term care facilities in section 1150B of the Act: (1) to notify covered individuals annually of their reporting obligations, (2) to prevent retaliation if an employee makes a report, and (3) to post information about employee rights, including the right to file a complaint if a long term care facility retaliates against anyone who files a report. Reporting obligations of crimes themselves fall on covered individuals, not the facility as an entity. In other words, each owner, operator, employee, manager, agent or contractor of a long term care facility is responsible to meet the reporting requirements of this provision. Facility policies and procedures should address the mechanism for documenting that all covered individuals have been notified annually of their reporting obligations. Examples of such documentation may include a copy of a notice or letter sent to covered individuals or a completed training/orientation attendance sheet specifying reporting obligations. B.2. Section 1150B requires long term care facilities to conspicuously post notice of employee rights posters in a form specified by the Secretary- is this form available? There is no specified template or form for the posting of this information at this time.. Rather, the required information and elements to be included in such a sign are described in CMS s survey and certification memorandum S&C: NH dated June 17, This S&C Memo is available online at: B.3. What types of facilities must conform to the requirements under section 1150B of the Act?

193 Long-term care facility is defined in section 2011 of the Act as a residential care provider that arranges for, or directly provides, long-term care (i.e., supportive and health services for individuals who need assistance because the individuals have a loss of capacity for self-care due to illness, disability, or vulnerability). Facilities that receive at least $10,000 of Federal funds annually and that meet the definition of long-term care facility include the following: nursing facilities (NFs), skilled nursing facilities (SNFs), hospice programs operating in SNF/NFs, and intermediate care facilities for the mentally retarded (ICF/MR). Assisted living facilities are not included under this statute at this time. B.4. Who is considered a covered individual? A covered individual" is anyone who is an owner, operator, employee, manager, agent or contractor of the long term care facility (Section 1150B(a)(3) of the Act). B.5. Who are excluded individuals that we should not employ? If a long term care facility employs any covered individual who has been excluded from participating in any Federal health care program under sections 1150B(c)(1)(B) or (c)(2)(b) due to failure to meet the reporting requirements of this provision, then that facility will be ineligible to receive Federal funds under the Act. CMS is currently working with the Office of the Inspector General on a database that will include a list of such excluded individuals. B. 6. Does section 1150B cover only those with first-hand knowledge of the suspicion of a crime? The law does not specify first-hand knowledge. The law states that each covered individual must report any reasonable suspicion of a crime against a resident of a long term care facility. However, if during the course of an investigation of a complaint or incident there is evidence gathered from individuals with first-hand knowledge of the suspicion of the crime, this additional information may be considered under section 1150B, even if those individuals did not file a separate report. B.7. In a Continuing Care Retirement Community that includes independent living and assisted living as well as nursing care, is the expectation that the facility post notice in all areas of the community, or just the nursing care unit? The requirement is to post notice in each applicable long term care facility. In this example, it would be the SNF/NF. B.8. What is the difference between reporting incidents to the SA and reporting the suspicion of a crime to the SA and local law enforcement? Current regulation requires a facility to report incidents: (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). This requirement has not changed and the mechanics of complying with this regulation are the same as they have been. Reporting the suspicion of a crime is the responsibility of covered individuals. There may be instances where an occurrence will require both the facility to report the alleged violations involving mistreatment, neglect, or abuse, including injuries of unknown source and misappropriation of resident property and covered individuals must report the suspicion of a crime to the State Survey Agency and to local law enforcement.

194 C. Reporting Requirements C.1. All reasonable suspicions of a crime have to be reported to the State Survey Agency. Is there a specific form? What number should we call? No, the statute does not require the use of a specific form for reporting suspicions of a crime. Reporting may be done by telephone, electronic mail, fax or other means within the specified timeframes of the law. States may choose to adopt use of a specific form. Unless otherwise specified, the State Survey Agency contact number is the same number that you use to report complaints against a facility to the Survey Agency. It is important to keep in mind that the time frames for reporting the suspicion of a crime are different and more stringent than time frames related to reporting an incident under CMS regulations. C.2. If a covered individual reports a suspicion of a crime directly to law enforcement and the survey agency, can the facility s policy require that individual to report the concern/incident to his/her facility supervisor or the administrator as well? Covered individuals have an independent obligation to report the suspicion of a crime against a long term care facility resident directly to local law enforcement and the State Survey Agency. In order to encourage reporting of the suspicion of a crime, facilities should promote a culture of safety and performance improvement in the work environment. This includes freedom from fear of retaliation if an employee reports the suspicion of a crime, an open and just culture where feedback and communication are encouraged, and the ability for staff to speak up about problems or issues that they identify. Thus, it would be prudent that a facility policy not require disclosure of whether or not a covered individual has reported a suspicion of a crime to local law enforcement and the State Survey Agency. It is important to note, however, that Federal regulations do require SNFs and NFs to 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) (42 C.F.R (c)(2)). See also C3 below. C.3. When a skilled nursing facility has a case of abuse, we submit a 24-hour report and then a 5-day report specific to abuse reporting. Do we also need to report this to the Secretary and local law enforcement? Reports of suspicions of crimes committed against a resident must be submitted to at least one law enforcement agency of jurisdiction and the State Survey Agency (in fulfillment of the statutory directive to report to the Secretary). If there is reasonable suspicion that a crime has occurred (crime being defined by laws of the applicable political subdivision where the facility is located), then in addition to reporting the allegation of abuse to the State Survey Agency, the individual must also report this to local law enforcement. C.4. Section 1150B specifies reporting time frames of 2 hours or 24 hours when there is a reasonable suspicion of a crime; is this business hours? For example, if the suspicion occurs on a Saturday, must it be reported then, or can it wait until Monday? No. Reporting requirements are based on real (clock) time, not business hours. Section 1150B(b)(2) provides that if the events that cause the suspicion result in serious bodily injury, the individual must report this immediately (but not later than 2 hours after forming the suspicion); otherwise, the individual must report the suspicion not later than 24 hours after forming the suspicion. State Survey Agencies should have a reporting mechanism available 24/7 (e.g., hotline, answering machine that may receive a message, live person, fax, etc.).

195 For example, if a reasonable suspicion of a crime that results in serious bodily harm occurs on a Saturday, the timing obligation for reporting this would be satisfied if the individual who formed the suspicion both left a message on the State Survey Agency answering machine and notified local law enforcement on that same day within two hours of forming the suspicion. C.5. Is it safe to assume that falls that result in a hospitalization, unless directly related to a witnessed act of abuse, do not have to be reported to law enforcement? A fall resulting in a hospitalization of a resident would generally be reported to the State Survey Agency under current incident reporting guidelines and State licensure regulations. A fall would only have to be reported to law enforcement (as well as the State Survey Agency under section 1150B) if there was a reasonable suspicion of a crime related to that event or incident. C.6. Does section 1150B require reporting of acts committed by a resident of a nursing facility that has dementia? We often have resident to resident altercations on our Alzheimer's Unit that could constitute assault. Would we now need to report assault by a resident with dementia to local law enforcement? This will be case specific and should be addressed through discussions among facilities, State Survey Agencies and local law enforcement. Crime is defined by the law of the applicable political subdivision. Not every resident to resident altercation will be appropriate to report to local law enforcement; however, some cases may be reportable. CMS expects long term care facilities to take any necessary action to prevent resident-to-resident altercations to every extent possible. C.7. Should facilities or State Survey Agencies meet with local law enforcement officials to determine which actions they consider to be crimes and which issues should be reported to law enforcement? This is advisable. CMS encourages community partnerships through discussions between State Survey Agencies and local law enforcement. We encourage the participation of long term care ombudsmen, resident advocates, and worker representatives as well. C.8. Does an unusual bruise require reporting to law enforcement? Not necessarily. Each event or suspicion will be case specific. A bruise or injury of unknown source should be reported to the State Survey Agency through the usual incident reporting processes. However, if there is a reasonable suspicion that the injury is the result of a crime, it should be reported to law enforcement as well. C.9. If a suspicion of a crime is reported by a covered individual, and the occurrence also meets the requirements for incident reporting, must the facility report the incident using the usual incident reporting mechanisms? Current regulation requires a facility to report incidents: (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). This requirement has not changed and the mechanics of complying with this regulation are the same as they have been. Reporting the suspicion of a crime is the responsibility of covered individuals. There may be instances where an occurrence will require both the facility to report the alleged violations involving mistreatment, neglect, or abuse, including injuries of unknown source and misappropriation of resident property and covered individuals must report the suspicion of a crime to the State Survey Agency and to local law enforcement. C.10. To what number or numbers is the suspicion of abuse reported? Are there different numbers for reporting when there has been serious injury?

196 Reporting may be done by telephone or by fax within the specified timeframes of the law. Unless otherwise specified, the State Survey Agency contact number is the State Agency that conducts the Medicare and Medicaid certification Surveys. It is important to keep in mind that the time frames for reporting the suspicion of a crime are different and more stringent than time frames related to reporting an incident. C.11. If our State mandated Resource Management Plan requires staff make a direct report to one of three designated staff, does this preclude that requirement or may we assist staff in making the required reports to the SA and Law Enforcement? Covered individuals would still have an independent obligation to report the suspicion of a crime directly to local law enforcement and the State Survey Agency. You also may assist staff in making reports to the SA and to law enforcement. In order to encourage reporting of the suspicion of a crime, facilities should promote a culture of safety and performance improvement in the work environment. This includes freedom from fear of retaliation if an employee reports the suspicion of a crime, an open and just culture where feedback and communication are encouraged, and the ability for staff to speak up about problems or issues that they identify. Additionally, it is important to note, however, that Federal regulations do require skilled nursing facilities (SNFs) and nursing facilities (NFs) to 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) (42 C.F.R (c)(2)). C.12. Is abuse to be considered as part of this required reporting? Abuse should be considered under current health and safety standards. Under current requirements, abuse should always be reported; whether it rises to the level of a crime would depend on the specific situation. For example, sexual abuse would be considered a crime; physical assault that leads to physical injury would also be considered a crime. Other types of abuse should always be reported under health and safety standards but may not be considered a crime. Federal regulations do require SNFs and NFs to 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) (42 C.F.R (c)(2)). C.13. Is it acceptable for a facility in its compliance policy to state that covered individuals may either (a) report reasonable suspicion of crime directly to the state survey agency and law enforcement, or (b) report reasonable suspicion of crime to the facility administrator who will then coordinate timely reporting to the state survey agency and law enforcement on behalf of all covered individuals who made the report to the administrator? Yes, covered individuals may (a) report reasonable suspicion of crime directly to the State Survey Agency and law enforcement, and/or (b) report reasonable suspicion of crime to the facility administrator who will then coordinate timely reporting to the state survey agency and law enforcement on behalf of all covered individuals who made the report to the administrator. Reporting to the administrator would suffice if an individual has clear assurance that the administrator is reporting it. Reports should be documented and the administrator should keep a record of the documentation. Everyone who saw a possible crime has the obligation to report it. The administrator could coordinate the reports submitted, but each person has to report. In addition, facilities cannot prohibit or circumscribe reporting directly to law enforcement even if they have a coordinated internal system.

197 C.14. Is it sufficient to send notification by fax to Certification as usual or is it required that we contact a person? If it is a person, will that individual be available on nights and weekends? If yes and different from usual contact numbers, please forward that information. Reporting may be done by telephone, electronic mail, fax or other means within the specified timeframes of the law. Unless otherwise specified, you would contact the State Survey Agency contact number, which is the State Agency that conducts the Medicare and Medicaid certification Surveys. It is important to keep in mind that the time frames for reporting the suspicion of a crime are different and more stringent than time frames related to reporting an incident under CMS regulations. C.15. In reference to the duty of covered individuals to timely report a suspicion of a crime, I see there are two timelines that must be followed. I also see (if I'm reading the memo correctly) that a covered individual must report not only to law enforcement but also to State Survey agencies. Law enforcement operates 24/7. However, if a covered individual determines that he/she has a reasonable suspicion involving serious bodily injury and it is after business hours for the state agency or the weekend, what procedure should that individual follow to ensure that he/she will not be held responsible for not reporting to the state w/in the 2 hour timeline? Also, is reporting to the law enforcement in addition to reporting of State and FEDS (1 day, 15 day, Immediate and 5 day)? Section 1150B establishes two time limits for the reporting of reasonable suspicion of a crime, depending on the seriousness of the event that leads to the reasonable suspicion. 1. Serious Bodily Injury 2 Hour Limit: If the events that cause the reasonable suspicion result in serious bodily injury to a resident, the covered individual shall report the suspicion immediately, but not later than 2 hours after forming the suspicion; 2. All Others Within 24 Hours: If the events that cause the reasonable suspicion do not result in serious bodily injury to a resident, the covered individual shall report the suspicion not later than 24 hours after forming the suspicion. Please note: Both types of reporting (incident report to State and crime reporting to LE/SA) must be done if both situations are met. Reporting requirements are based on real (clock) time, not business hours. Section 1150B(b)(2) provides that if the events that cause the suspicion result in serious bodily injury, the individual must report this immediately (but not later than 2 hours after forming the suspicion); otherwise, the individual must report the suspicion not later than 24 hours after forming the suspicion. State Survey Agencies should have a reporting mechanism available 24/7 (e.g., hotline, answering machine that may receive a message, live person, fax, etc.). For example, if a reasonable suspicion of a crime that results in serious bodily harm occurs on a Saturday, the timing obligation for reporting this would be satisfied if the individual who formed the suspicion both left a message on the State Survey Agency answering machine and notified local law enforcement on that same day within two hours of forming the suspicion. Please note the State and Federal requirements are listed below: F225, (c)(2) The facility must ensure 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).

198 F225, (c)(4) The results of all investigations must be reported to the administrator or his designated representative and to other officials in accordance with state law (including to the state survey and certification agency) within 5 working days of the incident, and if the alleged violation is verified appropriate corrective action must be taken. Immediately: per CMS means as soon as possible but ought not to exceed 24 hours after discovery of the Incident. As such, states may not eliminate the obligation for any of the above violations (i.e., mistreatment, neglect, abuse, injuries of unknown source, and misappropriation of resident property) to be reported, nor can the state establish longer time frames for reporting than mandated in the regulations. Nursing homes must comply with requirements for participation, including reporting requirements set out in 42 C.F.R (c)(2) and (4). Please note: No state law can override the obligation of a nursing home to fulfill the requirements under 42 C.F.R (c), as long as Medicare/Medicaid certification is in place. C.16. Under Facility Requirements 1. (c) and (d) I find some information on what to include in the notice that we must conspicuously post. Is there any other information that should be included in the notice re employee's rights? The notice should include the following: REQUIREMENTS FOR POSTING: 1. Individual s right to file a complaint with the SA if they feel the facility has retaliated against an employee or individual who reported a suspected crime under this statute, and how to file such a complaint with the SA; 2. The sign may be posted in the same area that the facility posts other required employee signs, such as labor management posters. 3. Size and type requirements for the sign should be no less than the minimums required for the other required employment-related signs. D. Liability D.1. Can facilities be held liable in a civil or criminal case if a covered individual does not report suspicion of a crime? This is a question for the courts, not one that CMS can answer. It is beyond the scope of the Act. E. State Agency s Requirements E.1. What is the SA s role in enforcing the provisions of 1150B? We are not asking States to enforce 1150B, however, we expect States to make assessments under the current complaint process. We are not requiring States to make a determination on whether a crime has been committed. SAs must assess reports received under section 1150B following CMS protocols for processing incident reports or complaints, and investigate such reports as appropriate to those protocols. In addition, SAs must assess the long-term care facility s compliance with the facility obligations of section 1150B if either of the following are triggered: (a) during the course of a standard survey or complaint investigation the survey team identifies a report of a suspicion of a crime against an individual who is a resident of, or is receiving care from, the LTC facility, and the incident has not been previously reported to the State SA, or (b) the SA receives

199 a specific allegation of noncompliance with section 1150B by the facility and the SA assesses the allegation to be credible and serious (including credible allegations of retaliation against an individual who has reported suspicion of a crime). In such a case the SA must review both facility responsibilities under this section and the responsibilities of a covered individual. E.2. If a facility has complied with its requirements for posting information regarding 1150B and notifying individuals of their reporting obligations, is there any other expectation on the part of the SA? SAs will follow the standard CMS protocols for assessing and, as appropriate, investigating all reported complaints and incidents. E.3. Can CMS provide examples of the circumstances in which self-neglect would be a crime? Examples of what constitutes a crime are defined by the laws within the local jurisdiction of the long-term care facility, as interpreted by local law enforcement entities. However, allowing self-neglect to persist without intervention may result in a facility s failure to meet Medicare conditions of participation and could result in a deficient practice under federal health and safety regulations. Therefore, with regard to self-neglect, facilities should focus on preventing self-neglect, which is addressed in health and safety standards. F. ICF/MRs F.1. I am seeking clarification on who or what agency should the facility call? The memo made mention about the "secretary", are they to continue the abuse hotline or should they be contacting another number. Unless otherwise specified, you would contact the State Survey Agency contact number, which is the same number that you use to report complaints against a facility to the State Agency that conducts the Medicaid certification surveys. It is important to keep in mind that the time frames for reporting the suspicion of a crime are different and more stringent than time frames related to reporting an incident under CMS regulations. F.2. I am writing from an ICF facility in El Cajon, CA that provides long-term care to adults with developmental disabilities. I am the agency trainer and just trying to get some slight clarification on the new reporting standard, so I can appropriately provide training within our agency. Currently when reporting an allegation of abuse we do so to the local Ombudsman as well as to state licensing. In this case would the Local Ombudsman be the same as a member of law enforcement? Reporting to the local ombudsman does not meet the requirement for reporting to local law enforcement. You would contact the State Agency that conducts the Medicaid certification Surveys. F.3. I am a little confused about the memo I received from DHHS about CMS S&C NH- Reporting Reasonable Suspicion of a crime in LTC facility: Section 1150B of Social Security Act. I am the administrator of a provider service; we have 4 group homes for the mentally challenged adults. I am unclear of how the individuals are suppose to report a crime-who is the secretary and how is this person contacted. Is there a phone number or address and is there a form to report on? If so can I get a copy of the form? I understand law enforcement to report it to but what State Agency are individuals suppose to report, Elder or adult protection services? Please help me understand so I can train staff and put proper notification out for staff to read. The State Agency acts on the behalf of the Secretary for this requirement in fulfillment of the statutory directive to report to the Secretary. Reports must be submitted to at least one law enforcement agency of jurisdiction and the State Agency. Reporting to Elder or Adult Protective Services would not meet the requirement for reporting

200 to the Secretary. You would report to law enforcement and the State Agency that conducts the Medicaid certification Surveys. F.4. I work at an ICF, whose policy directs employees to report incidents to management. Management is then required to make all other notifications. Does this new requirement mandate that the employee who suspects a crime (i.e., direct care staff), must be the one who calls the SA and law enforcement or, may the employee choose to continue to notify management with the understanding that management will make these notifications? Also, who do we list as the SA contact (name, phone, , fax)? Yes, covered individuals may (a) report reasonable suspicion of crime directly to the state survey agency and law enforcement, and/or (b) report reasonable suspicion of crime to the facility administrator who will then coordinate timely reporting to the state survey agency and law enforcement on behalf of all covered individuals who made the report to the administrator. Reporting to the administrator would suffice if an individual has clear assurance that the administrator is reporting it. Reports should be documented and the administrator should keep a record of the documentation. Everyone who saw a possible crime has the obligation to report it. The administrator could coordinate the reports submitted but each person has to report. In addition, facilities cannot prohibit or circumscribe reporting directly to law enforcement even if they have a coordinated internal system. In order to encourage reporting of the suspicion of a crime, facilities should promote a culture of safety and performance improvement in the work environment. This includes freedom from fear of retaliation if an employee reports the suspicion of a crime, an open and just culture where feedback and communication are encouraged, and the ability for staff to speak up about problems or issues that they identify. Employee must be given the option of independent reporting, in case they fear retaliation or want to remain anonymous. Unless otherwise specified, you would contact the State Survey Agency contact number, which is the same number that you use to report complaints against a facility to the State Agency that conducts the Medicaid certification surveys. It is important to keep in mind that the time frames for reporting the suspicion of a crime are different and more stringent than time frames related to reporting an incident under CMS regulations. G Definitions G.1. What is the definition of contractor and agent as used in Section 1150B of the Act? Please refer to Appendix 1 for the definition of contractor and agent. G.2. Are employees of contractors, including direct care staff employed by temporary agencies, covered individuals? Please refer to Appendix 1 for the definition of who is a covered individual. G.3. Who is a covered individual? Please refer to Appendix 1 for the definition of who is a covered individual.

201 NOTICE REQUIREMENTS FOR REPORTING SUSPECTED CRIMES UNDER SECTION 1150B OF THE SOCIAL SECURITY ACT Section 1150B of the Social Security Act (the Act), as established by section 6703(b)(3) of the Patient Protection and Affordable Care Act of 2010 (Affordable Care Act) requires the reporting of any reasonable suspicion of a crime committed against a resident of, or an individual receiving care from, a long term care facility. Specifically, the Act requires long term care facilities to post a notice in a conspicuous location that informs all covered individuals, as defined in S&C Memo NH, of their right to file a complaint with the Secretary against a facility that retaliates and the manner of filing such a complaint. The notice should include the following: 4. Individual s right to file a complaint with the SA if they feel the facility has retaliated against an employee or individual who reported a suspected crime under this statute, and how to file such a complaint with the SA; 5. The sign may be posted in the same area that the facility posts other required employee signs, such as labor management posters. 6. Size and type requirements for the sign should be no less than the minimums required for the other required employment-related signs.

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203 APPENDIX #7

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207 APPENDIX #8

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209 REPORTING A CRIME UNDER NEW YORK LAW (Appendix #8) Set forth below are the elements of certain crimes under the New York Penal law. This is not intended to be an all-inclusive list, but merely to provide guidance to assist nursing homes with answering the question What is a crime? and to help employees recognize some of the crimes they will be reporting. It is recommended that the report should be made to law enforcement if there is any doubt as to whether a crime was committed or not. N.Y. Penal Law Assault in the third degree. A person is guilty of assault in the third degree when: 1. With intent to cause physical injury to another person, he causes Such injury to such person or to a third person; or 2. He recklessly causes physical injury to another person; or 3. With criminal negligence, he causes physical injury to another person by means of a deadly weapon or a dangerous instrument. Assault in the third degree is a class A misdemeanor. N.Y. Penal Law Assault in the second degree. A person is guilty of assault in the second degree when: 1. With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person; or 2. With intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument; or 3. With intent to prevent a peace officer, a police officer, registered nurse, licensed practical nurse, sanitation enforcement agent, a firefighter, including a firefighter acting as a paramedic or emergency medical technician administering first aid in the course of performance of duty as such firefighter, an emergency medical service paramedic or emergency medical service technician, or medical or related personnel in a hospital emergency department, a city marshal, a traffic enforcement officer or traffic enforcement agent, from performing a lawful duty, by means including releasing or failing to control an animal under circumstances evincing the actor s intent that the animal obstruct the lawful activity of such peace officer, police officer, registered nurse, licensed practical nurse, sanitation enforcement agent, firefighter, paramedic, technician, city marshal, traffic enforcement officer or traffic enforcement agent, he or she causes physical injury to such peace officer, police officer, registered nurse, licensed practical nurse, sanitation enforcement agent, firefighter, paramedic, technician or medical or related personnel in a hospital emergency department, city marshal, traffic enforcement officer or traffic enforcement agent; or 4. He recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument; or 5. For a purpose other than lawful medical or therapeutic treatment, he intentionally causes stupor, unconsciousness or other physical impairment or injury to 1

210 another person by administering to him, without his consent, a drug, substance or preparation capable of producing the same; or 6. In the course of and in furtherance of the commission or attempted commission of a felony, other than a felony defined in article one hundred thirty which requires corroboration for conviction, or of immediate flight therefrom, he, or another participant if there be any, causes physical injury to a person other than one of the participants; or 7. Having been charged with or convicted of a crime and while confined in a correctional facility, as defined in subdivision three of section forty of the correction law, pursuant to such charge or conviction, with intent to cause physical injury to another person, he causes such injury to such person or to a third person; or 8. Being eighteen years old or more and with intent to cause physical injury to a person less than eleven years old, the defendant recklessly causes serious physical injury to such person; or 9. Being eighteen years old or more and with intent to cause physical injury to a person less than seven years old, the defendant causes such injury to such person; or 10. Acting at a place the person knows, or reasonably should know, is on school grounds and with intent to cause physical injury, he or she: (a) causes such injury to an employee of a school or public school district; or (b) not being a student of such school or public school district, causes physical injury to another, and such other person is a student of such school who is attending or present for educational purposes. For purposes of this subdivision the term school grounds shall have the meaning set forth in subdivision fourteen of section of this chapter. 11. With intent to cause physical injury to a train operator, ticket inspector, conductor, signalperson, bus operator or station agent employed by any transit agency, authority or company, public or private, whose operation is authorized by New York state or any of its political subdivisions, a city marshal, a traffic enforcement officer, traffic enforcement agent or sanitation enforcement agent, registered nurse or licensed practical nurse he or she causes physical injury to such train operator, ticket inspector, conductor, signalperson, bus operator or station agent, city marshal, traffic enforcement officer, traffic enforcement agent, registered nurse or licensed practical nurse or sanitation enforcement agent, while such employee is performing an assigned duty on, or directly related to, the operation of a train or bus, or such city marshal, traffic enforcement officer, traffic enforcement agent, registered nurse or licensed practical nurse or sanitation enforcement agent is performing an assigned duty. 12. With intent to cause physical injury to a person who is sixty-five years of age or older, he or she causes such injury to such person, and the actor is more than ten years younger than such person. Assault in the second degree is a class D felony. N.Y. Penal Law Assault in the first degree. A person is guilty of assault in the first degree when: 2

211 1. With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument; or 2. With intent to disfigure another person seriously and permanently, or to destroy, amputate or disable permanently a member or organ of his body, he causes such injury to such person or to a third person; or 3. Under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes serious physical injury to another person; or 4. In the course of and in furtherance of the commission or attempted commission of a felony or of immediate flight therefrom, he, or another participant if there be any, causes serious physical injury to a person other than one of the participants. Assault in the first degree is a class B felony. N.Y. Penal Law Menacing in the first degree. A person is guilty of menacing in the first degree when he or she commits the crime of menacing in the second degree and has been previously convicted of the crime of menacing in the second degree or the crime of menacing a police officer or peace officer within the preceding ten years. Menacing in the first degree is a class E felony. N.Y. Penal Law Menacing in the second degree. A person is guilty of menacing in the second degree when: 1. He or she intentionally places or attempts to place another person in reasonable fear of physical injury, serious physical injury or death by displaying a deadly weapon, dangerous instrument or what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; or 2. He or she repeatedly follows a person or engages in a course of conduct or repeatedly commits acts over a period of time intentionally placing or attempting to place another person in reasonable fear of physical injury, serious physical injury or death; or 3. He or she commits the crime of menacing in the third degree in violation of that part of a duly served order of protection, or such order which the defendant has actual knowledge of because he or she was present in court when such order was issued, pursuant to article eight of the family court act, section of the criminal procedure law, or an order of protection issued by a court of competent jurisdiction in another state, territorial or tribal jurisdiction, which directed the respondent or defendant to stay away from the person or persons on whose behalf the order was issued. Menacing in the second degree is a class A misdemeanor. N.Y. Penal Law Menacing in the third degree. A person is guilty of menacing in the third degree when, by physical menace, he or she intentionally places or attempts to place another person in fear of death, imminent serious physical injury or physical injury. Menacing in the third degree is a class B misdemeanor. 3

212 N.Y. Penal Law Reckless endangerment in the second degree. A person is guilty of reckless endangerment in the second degree when he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person. Reckless endangerment in the second degree is a class A misdemeanor. N.Y. Penal Law Reckless endangerment in the first degree. A person is guilty of reckless endangerment in the first degree when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person. Reckless endangerment in the first degree is a class D felony. N.Y. Penal Law Criminal obstruction of breathing or blood circulation. A person is guilty of criminal obstruction of breathing or blood circulation when, with intent to impede the normal breathing or circulation of the blood of another person, he or she: a. applies pressure on the throat or neck of such person; or b. blocks the nose or mouth of such person. Criminal obstruction of breathing or blood circulation is a class A misdemeanor. N.Y. Penal Law Strangulation in the second degree. A person is guilty of strangulation in the second degree when he or she commits the crime of criminal obstruction of breathing or blood circulation, as defined in section of this article, and thereby causes stupor, loss of consciousness for any period of time, or any other physical injury or impairment. Strangulation in the second degree is a class D felony. N.Y. Penal Law Strangulation in the first degree. A person is guilty of strangulation in the first degree when he or she commits the crime of criminal obstruction of breathing or blood circulation, as defined in section of this article, and thereby causes serious physical injury to such other person. Strangulation in the first degree is a class C felony. N.Y. Penal Law Sexual misconduct. A person is guilty of sexual misconduct when: 1. He or she engages in sexual intercourse with another person without such person s consent; or 2. He or she engages in oral sexual conduct or anal sexual conduct with another person without such person s consent; or 3. He or she engages in sexual conduct with an animal or a dead human body. Sexual misconduct is a class A misdemeanor. N.Y. Penal Law Rape in the third degree. A person is guilty of rape in the third degree when: 4

213 1. He or she engages in sexual intercourse with another person who is incapable of consent by reason of some factor other than being less than seventeen years old; 2. Being twenty-one years old or more, he or she engages in sexual intercourse with another person less than seventeen years old; or 3. He or she engages in sexual intercourse with another person without such person s consent where such lack of consent is by reason of some factor other than incapacity to consent. Rape in the third degree is a class E felony. N.Y. Penal Law Rape in the second degree. A person is guilty of rape in the second degree when: 1. being eighteen years old or more, he or she engages in sexual intercourse with another person less than fifteen years old; or 2. he or she engages in sexual intercourse with another person who is incapable of consent by reason of being mentally disabled or mentally incapacitated. It shall be an affirmative defense to the crime of rape in the second degree as defined in subdivision one of this section that the defendant was less than four years older than the victim at the time of the act. Rape in the second degree is a class D felony. N.Y. Penal Law Rape in the first degree. A person is guilty of rape in the first degree when he or she engages in sexual intercourse with another person: 1. By forcible compulsion; or 2. Who is incapable of consent by reason of being physically helpless; or 3. Who is less than eleven years old; or 4. Who is less than thirteen years old and the actor is eighteen years old or more. Rape in the first degree is a class B felony. N.Y. Penal Law Criminal sexual act in the third degree. A person is guilty of criminal sexual act in the third degree when: 1. He or she engages in oral sexual conduct or anal sexual conduct with a person who is incapable of consent by reason of some factor other than being less than seventeen years old; 2. Being twenty-one years old or more, he or she engages in oral sexual conduct or anal sexual conduct with a person less than seventeen years old; or 3. He or she engages in oral sexual conduct or anal sexual conduct with another person without such person s consent where such lack of consent is by reason of some factor other than incapacity to consent. Criminal sexual act in the third degree is a class E felony. 5

214 N.Y. Penal Law Criminal sexual act in the second degree. A person is guilty of criminal sexual act in the second degree when: 1. being eighteen years old or more, he or she engages in oral sexual conduct or anal sexual conduct with another person less than fifteen years old; or 2. he or she engages in oral sexual conduct or anal sexual conduct with another person who is incapable of consent by reason of being mentally disabled or mentally incapacitated. It shall be an affirmative defense to the crime of criminal sexual act in the second degree as defined in subdivision one of this section that the defendant was less than four years older than the victim at the time of the act. Criminal sexual act in the second degree is a class D felony. N.Y. Penal Law Criminal sexual act in the first degree. A person is guilty of criminal sexual act in the first degree when he or she engages in oral sexual conduct or anal sexual conduct with another person: 1. By forcible compulsion; or 2. Who is incapable of consent by reason of being physically helpless; or 3. Who is less than eleven years old; or 4. Who is less than thirteen years old and the actor is eighteen years old or more. Criminal sexual act in the first degree is a class B felony. N.Y. Penal Law Forcible touching. A person is guilty of forcible touching when such person intentionally, and for no legitimate purpose, forcibly touches the sexual or other intimate parts of another person for the purpose of degrading or abusing such person; or for the purpose of gratifying the actor s sexual desire. For the purposes of this section, forcible touching includes squeezing, grabbing or pinching. Forcible touching is a class A misdemeanor. N.Y. Penal Law Persistent sexual abuse. A person is guilty of persistent sexual abuse when he or she commits the crime of forcible touching, as defined in section of this article, sexual abuse in the third degree, as defined in section of this article, or sexual abuse in the second degree, as defined in section of this article, and, within the previous ten year period, has been convicted two or more times, in separate criminal transactions for which sentence was imposed on separate occasions, of forcible touching, as defined in section of this article, sexual abuse in the third degree as defined in section of this article, sexual abuse in the second degree, as defined in section of this article, or any offense defined in this article, of which the commission or attempted commission thereof is a felony. Persistent sexual abuse is a class E felony. 6

215 N.Y. Penal Law Sexual abuse in the third degree. A person is guilty of sexual abuse in the third degree when he or she subjects another person to sexual contact without the latter s consent; except that in any prosecution under this section, it is an affirmative defense that (a) such other person s lack of consent was due solely to incapacity to consent by reason of being less than seventeen years old, and (b) such other person was more than fourteen years old, and (c) the defendant was less than five years older than such other person. Sexual abuse in the third degree is a class B misdemeanor. N.Y. Penal Law Sexual abuse in the second degree. A person is guilty of sexual abuse in the second degree when he or she subjects another person to sexual contact and when such other person is: 1. Incapable of consent by reason of some factor other than being less than seventeen years old; or 2. Less than fourteen years old. Sexual abuse in the second degree is a class A misdemeanor. N.Y. Penal Law Sexual abuse in the first degree. A person is guilty of sexual abuse in the first degree when he or she subjects another person to sexual contact: 1. By forcible compulsion; or 2. When the other person is incapable of consent by reason of being physically helpless; or 3. When the other person is less than eleven years old; or 4. When the other person is less than thirteen years old and the actor is twentyone years old or older. Sexual abuse in the first degree is a class D felony. N.Y. Penal Law a Aggravated sexual abuse in the fourth degree. 1. A person is guilty of aggravated sexual abuse in the fourth degree when: (a) He or she inserts a foreign object in the vagina, urethra, penis, rectum or anus of another person and the other person is incapable of consent by reason of some factor other than being less than seventeen years old; or (b) He or she inserts a finger in the vagina, urethra, penis, rectum or anus of another person causing physical injury to such person and such person is incapable of consent by reason of some factor other than being less than seventeen years old. 2. Conduct performed for a valid medical purpose does not violate the provisions of this section. Aggravated sexual abuse in the fourth degree is a class E felony. 7

216 N.Y. Penal Law Aggravated sexual abuse in the third degree. 1. A person is guilty of aggravated sexual abuse in the third degree when he or she inserts a foreign object in the vagina, urethra, penis, rectum or anus of another person: (a) By forcible compulsion; or (b) When the other person is incapable of consent by reason of being physically helpless; or (c) When the other person is less than eleven years old. 2. A person is guilty of aggravated sexual abuse in the third degree when he or she inserts a foreign object in the vagina, urethra, penis, rectum or anus of another person causing physical injury to such person and such person is incapable of consent by reason of being mentally disabled or mentally incapacitated. 3. Conduct performed for a valid medical purpose does not violate the provisions of this section. Aggravated sexual abuse in the third degree is a class D felony. N.Y. Penal Law Aggravated sexual abuse in the second degree. 1. A person is guilty of aggravated sexual abuse in the second degree when he or she inserts a finger in the vagina, urethra, penis, rectum or anus of another person causing physical injury to such person: (a) By forcible compulsion; or (b) When the other person is incapable of consent by reason of being physically helpless; or (c) When the other person is less than eleven years old. 2. Conduct performed for a valid medical purpose does not violate the provisions of this section. Aggravated sexual abuse in the second degree is a class C felony. N.Y. Penal Law Aggravated sexual abuse in the first degree. 1. A person is guilty of aggravated sexual abuse in the first degree when he or she inserts a foreign object in the vagina, urethra, penis, rectum or anus of another person causing physical injury to such person: (a) By forcible compulsion; or (b) When the other person is incapable of consent by reason of being physically helpless; or (c) When the other person is less than eleven years old. 2. Conduct performed for a valid medical purpose does not violate the provisions of this section. Aggravated sexual abuse in the first degree is a class B felony. 8

217 N.Y. Penal Law Facilitating a sex offense with a controlled substance. or she: A person is guilty of facilitating a sex offense with a controlled substance when he 1. knowingly and unlawfully possesses a controlled substance or any preparation, compound, mixture or substance that requires a prescription to obtain and administers such substance or preparation, compound, mixture or substance that requires a prescription to obtain to another person without such person s consent and with intent to commit against such person conduct constituting a felony defined in this article; and 2. commits or attempts to commit such conduct constituting a felony defined in this article. Facilitating a sex offense with a controlled substance is a class D felony. N.Y. Penal Law Unlawful imprisonment in the second degree. A person is guilty of unlawful imprisonment in the second degree when he restrains another person. Unlawful imprisonment in the second degree is a class A misdemeanor. N.Y. Penal Law Unlawful imprisonment in the first degree. A person is guilty of unlawful imprisonment in the first degree when he restrains another person under circumstances which expose the latter to a risk of serious physical injury. Unlawful imprisonment in the first degree is a class E felony. N.Y. Penal Law Coercion in the second degree. A person is guilty of coercion in the second degree when he or she compels or induces a person to engage in conduct which the latter has a legal right to abstain from engaging in, or to abstain from engaging in conduct in which he or she has a legal right to engage, or compels or induces a person to join a group, organization or criminal enterprise which such latter person has a right to abstain from joining, by means of instilling in him or her a fear that, if the demand is not complied with, the actor or another will: 1. Cause physical injury to a person; or 2. Cause damage to property; or 3. Engage in other conduct constituting a crime; or 4. Accuse some person of a crime or cause criminal charges to be instituted against him or her; or 5. Expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt or ridicule; or 6. Cause a strike, boycott or other collective labor group action injurious to some person s business; except that such a threat shall not be deemed coercive when the act or omission compelled is for the benefit of the group in whose interest the actor purports to act; or 7. Testify or provide information or withhold testimony or information with respect to another s legal claim or defense; or 9

218 8. Use or abuse his or her position as a public servant by performing some act within or related to his or her official duties, or by failing or refusing to perform an official duty, in such manner as to affect some person adversely; or 9. Perform any other act which would not in itself materially benefit the actor but which is calculated to harm another person materially with respect to his or her health, safety, business, calling, career, financial condition, reputation or personal relationships. Coercion in the second degree is a class A misdemeanor. N.Y. Penal Law Coercion in the first degree. A person is guilty of coercion in the first degree when he or she commits the crime of coercion in the second degree, and when: 1. He or she commits such crime by instilling in the victim a fear that he or she will cause physical injury to a person or cause damage to property; or 2. He or she thereby compels or induces the victim to: (a) Commit or attempt to commit a felony; or (b) Cause or attempt to cause physical injury to a person; or (c) Violate his or her duty as a public servant. Coercion in the first degree is a class D felony. N.Y. Penal Law Petit larceny. A person is guilty of petit larceny when he steals property. Petit larceny is a class A misdemeanor. N.Y. Penal Law Grand Larceny in the fourth degree. A person is guilty of grand larceny in the fourth degree when he steals property and when: 1. The value of the property exceeds one thousand dollars; or 2. The property consists of a public record, writing or instrument kept, filed or deposited according to law with or in the keeping of any public office or public servant; or 3. The property consists of secret scientific material; or 4. The property consists of a credit card or debit card; or 5. The property, regardless of its nature and value, is taken from the person of another; or 6. The property, regardless of its nature and value, is obtained by extortion; or 7. The property consists of one or more firearms, rifles or shotguns, as such terms are defined in section of this chapter; or 8. The value of the property exceeds one hundred dollars and the property consists of a motor vehicle, as defined in section one hundred twenty-five of the vehicle and traffic law, other than a motorcycle, as defined in section one hundred twenty-three of such law; or 10

219 9. The property consists of a scroll, religious vestment, a vessel, an item comprising a display of religious symbols which forms a representative expression of faith, or other miscellaneous item of property which: (a) has a value of at least one hundred dollars; and (b) is kept for or used in connection with religious worship in any building, structure or upon the curtilage of such building or structure used as a place of religious worship by a religious corporation, as incorporated under the religious corporations law or the education law. 10. The property consists of an access device which the person intends to use unlawfully to obtain telephone service. 11. The property consists of anhydrous ammonia or liquified ammonia gas and the actor intends to use, or knows another person intends to use, such anhydrous ammonia or liquified ammonia gas to manufacture methamphetamine. Grand larceny in the fourth degree is a class E felony. N.Y. Penal Law Grand larceny in the third degree. A person is guilty of grand larceny in the third degree when he or she steals property and: 1. when the value of the property exceeds three thousand dollars, or 2. the property is an automated teller machine or the contents of an automated teller machine. Grand larceny in the third degree is a class D felony. N.Y. Penal Law Grand larceny in the second degree. A person is guilty of grand larceny in the second degree when he steals property and when: 1. The value of the property exceeds fifty thousand dollars; or 2. The property, regardless of its nature and value, is obtained by extortion committed by instilling in the victim a fear that the actor or another person will (a) cause physical injury to some person in the future, or (b) cause damage to property, or (c) use or abuse his position as a public servant by engaging in conduct within or related to his official duties, or by failing or refusing to perform an official duty, in such manner as to affect some person adversely. Grand larceny in the second degree is a class C felony. N.Y. Penal Law Grand larceny in the first degree. A person is guilty of grand larceny in the first degree when he steals property and when the value of the property exceeds one million dollars. Grand larceny in the first degree is a class B felony. N.Y. Penal Law Scheme to defraud in the first degree. 1. A person is guilty of a scheme to defraud in the first degree when he or she: (a) engages in a scheme constituting a systematic ongoing course of conduct with intent to defraud ten or more persons or to obtain property from ten or more persons by false or 11

220 fraudulent pretenses, representations or promises, and so obtains property from one or more of such persons; or (b) engages in a scheme constituting a systematic ongoing course of conduct with intent to defraud more than one person or to obtain property from more than one person by false or fraudulent pretenses, representations or promises, and so obtains property with a value in excess of one thousand dollars from one or more such persons; or (c) engages in a scheme constituting a systematic ongoing course of conduct with intent to defraud more than one person, more than one of whom is a vulnerable elderly person as defined in subdivision three of section of this chapter or to obtain property from more than one person, more than one of whom is a vulnerable elderly person as defined in subdivision three of section of this chapter, by false or fraudulent pretenses, representations or promises, and so obtains property from one or more such persons. 2. In any prosecution under this section, it shall be necessary to prove the identity of at least one person from whom the defendant so obtained property, but it shall not be necessary to prove the identity of any other intended victim, provided that in any prosecution under paragraph (c) of subdivision one of this section, it shall be necessary to prove the identity of at least one such vulnerable elderly person as defined in subdivision three of section of this chapter. Scheme to defraud in the first degree is a class E felony. N.Y. Penal Law Tampering with a witness in the fourth degree. A person is guilty of tampering with a witness when, knowing that a person is or is about to be called as a witness in an action or proceeding, (a) he wrongfully induces or attempts to induce such person to absent himself from, or otherwise to avoid or seek to avoid appearing or testifying at, such action or proceeding, or (b) he knowingly makes any false statement or practices any fraud or deceit with intent to affect the testimony of such person. Tampering with a witness in the fourth degree is a class A misdemeanor. N.Y. Penal Law Tampering with a witness in the third degree. A person is guilty of tampering with a witness in the third degree when, knowing that a person is about to be called as a witness in a criminal proceeding: 1. He wrongfully compels or attempts to compel such person to absent himself from, or otherwise to avoid or seek to avoid appearing or testifying at such proceeding by means of instilling in him a fear that the actor will cause physical injury to such person or another person; or 2. He wrongfully compels or attempts to compel such person to swear falsely by means of instilling in him a fear that the actor will cause physical injury to such person or another person. Tampering with a witness in the third degree is a class E felony. N.Y. Penal Law Tampering with a witness in the second degree. A person is guilty of tampering with a witness in the second degree when he: 1. Intentionally causes physical injury to a person for the purpose of obstructing, delaying, preventing or impeding the giving of testimony in a criminal proceeding by such 12

221 person or another person or for the purpose of compelling such person or another person to swear falsely; or 2. He intentionally causes physical injury to a person on account of such person or another person having testified in a criminal proceeding. Tampering with a witness in the second degree is a class D felony. N.Y. Penal Law Tampering with a witness in the first degree. A person is guilty of tampering with a witness in the first degree when: 1. He intentionally causes serious physical injury to a person for the purpose of obstructing, delaying, preventing or impeding the giving of testimony in a criminal proceeding by such person or another person or for the purpose of compelling such person or another person to swear falsely; or 2. He intentionally causes serious physical injury to a person on account of such person or another person having testified in a criminal proceeding. Tampering with a witness in the first degree is a class B felony. N.Y. Penal Law Intimidating a victim or witness in the third degree. A person is guilty of intimidating a victim or witness in the third degree when, knowing that another person possesses information relating to a criminal transaction and other than in the course of that criminal transaction or immediate flight therefrom, he: 1. Wrongfully compels or attempts to compel such other person to refrain from communicating such information to any court, grand jury, prosecutor, police officer or peace officer by means of instilling in him a fear that the actor will cause physical injury to such other person or another person; or 2. Intentionally damages the property of such other person or another person for the purpose of compelling such other person or another person to refrain from communicating, or on account of such other person or another person having communicated, information relating to that criminal transaction to any court, grand jury, prosecutor, police officer or peace officer. Intimidating a victim or witness in the third degree is a class E felony. N.Y. Penal Law Intimidating a victim or witness in the second degree. A person is guilty of intimidating a victim or witness in the second degree when, other than in the course of that criminal transaction or immediate flight therefrom, he: 1. Intentionally causes physical injury to another person for the purpose of obstructing, delaying, preventing or impeding the communication by such other person or another person of information relating to a criminal transaction to any court, grand jury, prosecutor, police officer or peace officer or for the purpose of compelling such other person or another person to swear falsely; or 2. Intentionally causes physical injury to another person on account of such other person or another person having communicated information relating to a criminal transaction to any court, grand jury, prosecutor, police officer or peace officer; or 3. Recklessly causes physical injury to another person by intentionally damaging the property of such other person or another person, for the purpose of obstructing, 13

222 delaying, preventing or impeding such other person or another person from communicating, or on account of such other person or another person having communicated, information relating to a criminal transaction to any court, grand jury, prosecutor, police officer or peace officer. Intimidating a victim or witness in the second degree is a class D felony. N.Y. Penal Law Intimidating a victim or witness in the first degree. A person is guilty of intimidating a victim or witness in the first degree when, other than in the course of that criminal transaction or immediate flight therefrom, he: 1. Intentionally causes serious physical injury to another person for the purpose of obstructing, delaying, preventing or impeding the communication by such other person or another person of information relating to a criminal transaction to any court, grand jury, prosecutor, police officer or peace officer or for the purpose of compelling such other person or another person to swear falsely; or 2. Intentionally causes serious physical injury to another person on account of such other person or another person having communicated information relating to a criminal transaction to any court, grand jury, prosecutor, police officer or peace officer. Intimidating a victim or witness in the first degree is a class B felony. N.Y. Penal Law Criminal contempt in the second degree. A person is guilty of criminal contempt in the second degree when he engages in any of the following conduct: 1. Disorderly, contemptuous, or insolent behavior, committed during the sitting of a court, in its immediate view and presence and directly tending to interrupt its proceedings or to impair the respect due to its authority; or 2. Breach of the peace, noise, or other disturbance, directly tending to interrupt a court s proceedings; or 3. Intentional disobedience or resistance to the lawful process or other mandate of a court except in cases involving or growing out of labor disputes as defined by subdivision two of section seven hundred fifty-three-a of the judiciary law; or 4. Contumacious and unlawful refusal to be sworn as a witness in any court proceeding or, after being sworn, to answer any legal and proper interrogatory; or 5. Knowingly publishing a false or grossly inaccurate report of a court s proceedings; or 6. Intentional failure to obey any mandate, process or notice, issued pursuant to articles sixteen, seventeen, eighteen, or eighteen-a of the judiciary law, or to rules adopted pursuant to any such statute or to any special statute establishing commissioners of jurors and prescribing their duties or who refuses to be sworn as provided therein; or 7. On or along a public street or sidewalk within a radius of two hundred feet of any building established as a courthouse, he calls aloud, shouts, holds or displays placards or signs containing written or printed matter, concerning the conduct of a trial being held in such courthouse or the character of the court or jury engaged in such trial or calling for or demanding any specified action or determination by such court or jury in connection with such trial. 14

223 Criminal contempt in the second degree is a class A misdemeanor. N.Y. Penal Law Criminal contempt in the first degree. A person is guilty of criminal contempt in the first degree when: (a) he contumaciously and unlawfully refuses to be sworn as a witness before a grand jury, or, when after having been sworn as a witness before a grand jury, he refuses to answer any legal and proper interrogatory; or (b) in violation of a duly served order of protection, or such order of which the defendant has actual knowledge because he or she was present in court when such order was issued, or an order of protection issued by a court of competent jurisdiction in this or another state, territorial or tribal jurisdiction, he or she: (i) intentionally places or attempts to place a person for whose protection such order was issued in reasonable fear of physical injury, serious physical injury or death by displaying a deadly weapon, dangerous instrument or what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm or by means of a threat or threats; or (ii) intentionally places or attempts to place a person for whose protection such order was issued in reasonable fear of physical injury, serious physical injury or death by repeatedly following such person or engaging in a course of conduct or repeatedly committing acts over a period of time; or (iii) intentionally places or attempts to place a person for whose protection such order was issued in reasonable fear of physical injury, serious physical injury or death when he or she communicates or causes a communication to be initiated with such person by mechanical or electronic means or otherwise, anonymously or otherwise, by telephone, or by telegraph, mail or any other form of written communication; or (iv) with intent to harass, annoy, threaten or alarm a person for whose protection such order was issued, repeatedly makes telephone calls to such person, whether or not a conversation ensues, with no purpose of legitimate communication; or (v) with intent to harass, annoy, threaten or alarm a person for whose protection such order was issued, strikes, shoves, kicks or otherwise subjects such other person to physical contact or attempts or threatens to do the same; or (vi) by physical menace, intentionally places or attempts to place a person for whose protection such order was issued in reasonable fear of death, imminent serious physical injury or physical injury. (c) he or she commits the crime of criminal contempt in the second degree as defined in subdivision three of section of this article by violating that part of a duly served order of protection, or such order of which the defendant has actual knowledge because he or she was present in court when such order was issued, under sections two hundred forty and two hundred fifty-two of the domestic relations law, articles four, five, six and eight of the family court act and section of the criminal procedure law, or an order of protection issued by a court of competent jurisdiction in another state, territorial or tribal jurisdiction, which requires the respondent or defendant to stay away from the person or persons on whose behalf the order was issued, and where the defendant has been previously convicted of the crime of aggravated criminal contempt or criminal contempt in the first or second degree for violating an order of protection as described herein within the preceding five years; or 15

224 (d) in violation of a duly served order of protection, or such order of which the defendant has actual knowledge because he or she was present in court when such order was issued, or an order issued by a court of competent jurisdiction in this or another state, territorial or tribal jurisdiction, he or she intentionally or recklessly damages the property of a person for whose protection such order was issued in an amount exceeding two hundred fifty dollars. Criminal contempt in the first degree is a class E felony. N.Y. Penal Law Aggravated harassment in the first degree. A person is guilty of aggravated harassment in the first degree when with intent to harass, annoy, threaten or alarm another person, because of a belief or perception regarding such person s race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation, regardless of whether the belief or perception is correct, he or she: 1. Damages premises primarily used for religious purposes, or acquired pursuant to section six of the religious corporation law and maintained for purposes of religious instruction, and the damage to the premises exceeds fifty dollars; or 2. Commits the crime of aggravated harassment in the second degree in the manner proscribed by the provisions of subdivision three of section of this article and has been previously convicted of the crime of aggravated harassment in the second degree for the commission of conduct proscribed by the provisions of subdivision three of section or he or she has been previously convicted of the crime of aggravated harassment in the first degree within the preceding ten years; or 3. Etches, paints, draws upon or otherwise places a swastika, commonly exhibited as the emblem of Nazi Germany, on any building or other real property, public or private, owned by any person, firm or corporation or any public agency or instrumentality, without express permission of the owner or operator of such building or real property; 4. Sets on fire a cross in public view; or 5. Etches, paints, draws upon or otherwise places or displays a noose, commonly exhibited as a symbol of racism and intimidation, on any building or other real property, public or private, owned by any person, firm or corporation or any public agency or instrumentality, without express permission of the owner or operator of such building or real property. Aggravated harassment in the first degree is a class E felony. N.Y. Penal Law Aggravated harassment in the first degree. A person is guilty of aggravated harassment in the first degree when with intent to harass, annoy, threaten or alarm another person, because of a belief or perception regarding such person s race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation, regardless of whether the belief or perception is correct, he or she: 1. Damages premises primarily used for religious purposes, or acquired pursuant to section six of the religious corporation law and maintained for purposes of religious instruction, and the damage to the premises exceeds fifty dollars; or 16

225 2. Commits the crime of aggravated harassment in the second degree in the manner proscribed by the provisions of subdivision three of section of this article and has been previously convicted of the crime of aggravated harassment in the second degree for the commission of conduct proscribed by the provisions of subdivision three of section or he or she has been previously convicted of the crime of aggravated harassment in the first degree within the preceding ten years; or 3. Etches, paints, draws upon or otherwise places a swastika, commonly exhibited as the emblem of Nazi Germany, on any building or other real property, public or private, owned by any person, firm or corporation or any public agency or instrumentality, without express permission of the owner or operator of such building or real property; 4. Sets on fire a cross in public view; or 5. Etches, paints, draws upon or otherwise places or displays a noose, commonly exhibited as a symbol of racism and intimidation, on any building or other real property, public or private, owned by any person, firm or corporation or any public agency or instrumentality, without express permission of the owner or operator of such building or real property. Aggravated harassment in the first degree is a class E felony. N.Y. Penal Law Endangering the welfare of an incompetent or physically disabled person. A person is guilty of endangering the welfare of an incompetent or physically disabled person when he knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a person who is unable to care for himself or herself because of physical disability, mental disease or defect. Endangering the welfare of an incompetent or physically disabled person is a class A misdemeanor. N.Y. Penal Law Endangering the welfare of a vulnerable elderly person, or an incompetent or physically disabled person in the second degree. A person is guilty of endangering the welfare of a vulnerable elderly person, or an incompetent or physically disabled person in the second degree when, being a caregiver for a vulnerable elderly person, or an incompetent or physically disabled person: 1. With intent to cause physical injury to such person, he or she causes such injury to such person; or 2. He or she recklessly causes physical injury to such person; or 3. With criminal negligence, he or she causes physical injury to such person by means of a deadly weapon or a dangerous instrument; or 4. He or she subjects such person to sexual contact without the latter s consent. Lack of consent under this subdivision results from forcible compulsion or incapacity to consent, as those terms are defined in article one hundred thirty of this chapter, or any other circumstances in which the vulnerable elderly person, or an incompetent or physically disabled person does not expressly or impliedly acquiesce in the caregiver s conduct. In any prosecution under this subdivision in which the victim s alleged lack of consent results solely from incapacity to consent because of the victim s mental disability or mental incapacity, the provisions of section of this chapter shall apply. In 17

226 addition, in any prosecution under this subdivision in which the victim s lack of consent is based solely upon his or her incapacity to consent because he or she was mentally disabled, mentally incapacitated or physically helpless, it is an affirmative defense that the defendant, at the time he or she engaged in the conduct constituting the offense, did not know of the facts or conditions responsible for such incapacity to consent. Endangering the welfare of a vulnerable elderly person, or an incompetent or physically disabled person in the second degree is a class E felony. N.Y. Penal Law Endangering the welfare of a vulnerable elderly person, or an incompetent or physically disabled person in the first degree. A person is guilty of endangering the welfare of a vulnerable elderly person, or an incompetent or physically disabled person in the first degree when, being a caregiver for a vulnerable elderly person, or an incompetent or physically disabled person: 1. With intent to cause physical injury to such person, he or she causes serious physical injury to such person; or 2. He or she recklessly causes serious physical injury to such person. Endangering the welfare of a vulnerable elderly person, or an incompetent or physically disabled person in the first degree is a class D felony. 18