Double Trouble: The Right Way to Handle Abuse and Incident Investigations

Double Trouble: The Right Way to Handle Abuse and Incident Investigations LSN Annual Meeting Polsinelli PC. In California, Polsinelli LLP

Faculty Jason Lundy Polsinelli PC 161 N. Clark, Suite 4200 Chicago, IL 60601 312.873.3604 jlundy@polsinelli.com Matthew Murer Polsinelli PC 161 N. Clark, Suite 4200 Chicago, IL 60601 312.873.3603 mmurer@polsinelli.com Meredith Duncan Polsinelli PC 161 N. Clark, Suite 4200 Chicago, IL 60601 312.873.3602 mduncan@polsinelli.com

Outline 1. Definitions of Abuse, Incident, Accident 2. Mandatory Reporting Laws 3. Common Mistakes 4. Crucial Steps & Response Checklist 5. Best Practices in Completing Incident & State Reports

77 Ill. Admin. Code What is an incident or accident? For SNFs and ICF/DDs Generally, an occurrence affecting a resident that is not the expected outcome of a resident s condition or disease process. An incident or accident is classified as serious if it causes physical harm or injury to a resident. For ALFs Undefined. 300.690.

What is an incident or accident? Falls Elopements Medication error Skin breakdown that is clinically unavoidable Allegation of abuse Abuse Allegation of misappropriation Misappropriation of resident property Choking incidents Entrapment incidents Resident on resident aggression Resident on staff aggression

What is abuse? Federal Definition (Medicaid and/or Medicare facilities): Abuse = willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish. 42 C.F.R. 488.301.

What is abuse? Federal guidance Supplements federal definition Abuse Physical Abuse Sexual Abuse Verbal Abuse Mental Abuse Involuntary Seclusion Includes deprivation by an individual, including a caretaker, of goods or services that are necessary to attain or maintain physical, mental, and psychosocial well-being. Includes hitting, slapping, pinching, kicking, and controlling behavior through corporal punishment. Includes, but is not limited to, sexual harassment, sexual coercion, or sexual assault. 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. Includes, but is not limited to, humiliation, harassment, threats of punishment or deprivation. Defined as separation of a resident from other residents or from her/his room or confinement to her/his room (with or without roommates) against the resident s will, or the will of the resident s legal representative. State Operations Manual: F223, Interpretive Guidelines (c). 483.13(b),

What is abuse? Illinois Definition: Abuse = any physical or mental injury or sexual assault inflicted on a resident other than by accidental means in a facility. Abuse is a type of incident. Nursing Home Care Act, 210 ILCS 45/1-103

What is abuse? State Regulations IDPH Definitions Physical Abuse Infliction of injury on a resident that occurs other than by accidental means and that requires (whether or not actually given) medical attention Verbal Abuse (mental injury) Mental Abuse (mental injury) Refers to the use by a licensee, employee or agent of oral, written or gestured language that includes disparaging and derogatory terms to residents or within their hearing or seeing distance, regardless of their age, ability to comprehend or disability. Includes, but is not limited to, humiliation, harassment, threats of punishment or deprivation, or offensive physical contact by a licensee, employee, or agent. Sexual harassment or coercion (mental injury) Undefined; perpetrated by a licensee, employee, or agent Sexual assault Undefined 77 Ill. Admin. Code 300.330.

Why do we want to know about incidents, accidents, abuse? Mandatory investigations and reporting under Federal/State law. Management of potential liability. Quality assurance identify systemic weaknesses. Communication to ensure continuity of care.

Mandatory Reporting Laws: Incidents or For SNFs and ICF/DDs Accidents With all incidents or accidents, facility must: Create a written report and maintain a file of such Record a descriptive summary of the occurrence in the resident s progress or nurse s notes With serious incidents or accidents, facility must: Notify IDPH within 24 hours by fax or phone Send a narrative summary to IDPH within 7 days Additional requirements if occurrence results in resident death 77 Ill. Admin. Code 300.690.

Mandatory Reporting Laws: Incidents or For ALFs Accidents When an incident or accident has a significant negative effect on a resident s health, safety, or welfare, the facility must: Report to IDPH within 24 hours of the occurrence by contacting IDPH s Central Complaint Registry, by fax, or by other electronic means Maintain a copy of the report for one year Significant negative effect is assumed if: An unplanned or unscheduled visit to a hospital is necessary; Treatment is provided; AND follow-up care is required 77 Ill. Admin. Code 295.2050.

Mandatory Reporting Laws: Abuse With any allegation of mistreatment, neglect, or abuse, including injuries of unknown source, and misappropriation of resident property, a SNF or ICF/DD must: 1. Immediately Report (24 hours) Immediately report the allegation to the facility administrator Immediately report the allegation to the resident s representative in writing and by telephone Immediately report the allegation to IDPH 2. Investigate Have evidence that all alleged violations are thoroughly investigated Prevent further potential abuse while the investigation is in progress 3. Report again Report to facility administrator and IDPH the results of all investigations.within five working days of the incident 4. Take appropriate corrective action, if the alleged violation is verified. Source: 42 C.F.R. 483.13(c)(2) (skilled nursing facilities) 42 C.F.R. 483.420(d) (ICF/DD facilities) 210 ILCS 45/3-610; 77 Ill. Admin. Code 300.3240

Mandatory Reporting Laws: Other Types of Reporting Elder Justice Act (Federal) Owner, operator, employee, agent, and contractors of facility must report any reasonable suspicion of a crime committed against a resident Timing of report clock time, not business time: Within 2 hours if suspicion relates to incident causing serious injury Within 24 hours if suspicion relates to incident that did NOT cause serious injury Report made to local law enforcement and IDPH Source: PPACA, 6703(a).

Mandatory Reporting Laws: Other Types of Reporting Elder Justice Act (Federal) Not required to notify facility of report Applies to SNFs and ICF/DDs that receive at least $10,000 in federal funds annually Does NOT apply to ALFs, independent living, non-nursing portions of CCRC

Mandatory Reporting Laws: Other Types of Reporting Elder Abuse and Neglect Act (Illinois) If any mandated reporter has reason to believe that an eligible adult, who because of a disability or other condition or impairment is unable to seek assistance for himself or herself, has, within the previous 12 months, been subjected to abuse, neglect, or financial exploitation, the mandated reporter shall, within 24 hours after developing such belief, report this suspicion to the Department on Aging. Mandated Reporter = nurse, social worker, nursing home administrators, physicians, therapists, etc. Source: 320 ILCS 20/4.

Top Four Errors with Abuse 1. Staff fail to identify an incident or allegation of abuse. 2. Staff fail to report an allegation of abuse. 3. Once a report has been made, staff are not suspended pending investigation. 4. Failure to conduct a thorough investigation & dig deeper.

Scenario 1 CNA John has been an outstanding CNA for ten years. One day CNA John loses it and hits a resident.

Scenario 2 Spouse slaps resident to encourage her to do therapy.

Scenario 3 Resident with dementia says that she has had sex with a staff member. Resident is known by staff to be unreliable. Resident reports that she had a consensual relationship with staff.

Scenario 4 Resident 1 has dementia and is aggressive when others come near. Resident 2 has dementia and wanders into her room. Resident 1 hits resident 2 with drawer.

Scenario 5 Resident 1 is admitted and is hostile and resistive to care. Resident continually refuses body check. Staff repeatedly try to conduct body check. Resident 1 subsequently tells a nurse that other lesbian nurses assaulted her.

Scenario 6 Demented resident has history of aggressive behaviors. Resident s physician has an order for Ativan PRN. Resident becomes hostile and aggressive, two staff hold the resident while a nurse administers Ativan.

Scenario 7 Resident admitted to the hospital and tells hospital staff that facility staff abused him. Three staff were present during the alleged incident and clearly there was no abuse.

Scenario 8 Demented resident repeatedly unplugs ventilator of another resident.

Three Golden Rules 1. Treat every allegation as if it were true and as if it were abuse. 2. Treat every allegation as if it were true and as if it were abuse. 3. Treat every allegation as if it were true and as if it were abuse.

First Steps in Reacting to An Allegation What happens when a facility employee first hears an allegation or develops a suspicion of abuse, neglect, or unknown injury?

First Steps in Reacting to An Allegation 1.Care, treat, and protect residents IDPH s regulations and procedures are important, but the highest duty is to your residents

First Steps in Reacting to An Allegation 2. Immediately notify the Administrator Staff should be hypersensitive While an employee s direct supervisor or best contact may be the facility s DON or RSD, regulations require notification to the Administrator Best practice: Employee immediately reports to both supervisor and administrator.

First Steps in Reacting to an Allegation 3. Immediately contact local police, if the following occurred: Physical abuse involving physical injury inflicted on a resident by a staff member or visitor. Physical abuse involving physical injury inflicted on a resident by another resident, except in situations where the behavior is associated with dementia or developmental disability. Sexual abuse of a resident by a staff member, another resident, or a visitor. A person other than a resident committed a crime in the facility. Resident dies due to causes other than disease processes. 77 Ill. Admin. Code 300.695

First Steps in Reacting to an Allegation 3. Immediately contact local police (cont.) Remember to follow policy concerning local law enforcement notification that includes seeking advice concerning preserving a potential crime scene. Weigh preservation of a crime scene against resident dignity issues

First Steps in Reacting to an Allegation 4. Isolate the perpetrator If the investigation indicates the employee Immediately bar the employee from further contact with residents, pending the outcome of further investigation, prosecution, or disciplinary action. Immediate suspension means immediate If the investigation indicates another resident... Immediately evaluate the resident s condition to determine the most suitable therapy and placement for the resident, considering the safety of that resident as well as the safety of other residents and employees of the facility. 210 ILCS 45/3-611, -612; 77 Ill. Admin. Code (f). 300.3240(e),

First Steps in Reacting to an Allegation 4. Isolate the perpetrator (cont.) If the investigation indicates a family member or visitor Contact local police immediately and provide as much information as possible about the person. Do not allow the person any further access to residents. Be careful and consider safety precautions for facility residents and employees.

First Steps in Reacting to an Allegation 5. Facility nursing staff or administrator notifies the resident s physician. Facility administrator notifies the resident s representative by telephone and in writing immediately. *Steps 1-5 are done immediately*

First Steps in Reacting to an Allegation 6. Facility administrator makes an initial report to IDPH for all reportable incidents or accidents within 24 hours. Contact Regional Office by phone or fax IDPH s complaint registry hotline if unable to contact Regional Office

The Initial Report The focus should be on keeping it factual. There should be no speculation or personal opinion. It should only be kept if it is required. It shouldn t be a summary of a review of the incident.

The Initial Report Most common problems: Rampant speculation based upon uncorroborated verbal report Resident 1 was struck by Mr. Smith, our employee. Rampant speculation Resident eloped from the facility. Possible causes include malfunctioning door alarm, light staffing.

The Initial Report What we usually see: Factual summary R1 was found on floor of room at 5:46 p.m. Partial summary of investigation slippery floor was noted, staff reported problems with resident disarming body alarm. Conclusion R1 was assessed. Redness noted to rt. Hip. MD contacted ordered resident to be sent to ER for X-ray.

The Initial Report What we prefer: Factual summary R1 was found on floor of room at 5:46 p.m. Facility is conducting a full investigation of this [allegation, incident, accident] and will report the investigation results to IDPH when it is completed. Conclusion R1 was assessed. Redness noted to rt. Hip. MD contacted ordered resident to be sent to ER for X-ray.

The Investigation Form vs. Function No Function and Form Yes!

Function of the Investigation Initial investigation is meant to gain an understanding of what happened. Discover immediately who the perpetrator is. The person responsible for the investigation should initially take notes and not gather staff statements. Once a more complete picture has been formed, statements can be gathered if they will be helpful. If the incident involves a resident injury or death, contact legal.

Function of the Investigation Limit incidents and liability exposure Discovery quickly before repeat incidents occur one bite vs. pattern and practice Be careful with the one bite argument you may not have foreseen the abuse or injury its first time, but IDPH may argue that the lack of supervision which allowed the abuse or injury to happen equals neglect Determine if there is an underlying systemic issue that may have contributed to the incident.

Form of the Investigation Comprehensive You are always better off with a more thorough investigation than a cursory investigation. The surveyor will certainly do more than a cursory investigation and you want to be prepared.

Form of the Investigation Considerations for a thorough investigation: Interview: All staff on duty at the time Resident s roommate, if possible Family members, if possible & appropriate Other residents Even if there was an eye witness, confirm the events with others if possible. Review prior notes.

Form of the Investigation Documented Be Methodical Do you have essentially the same protocol for investigating every allegation or incident? Have a template prepared before you start Helps guide the investigation Automatically creates a comprehensive, documented investigation to show surveyors Check boxes Show what you did (just like surveyors) OK if some items are N/A Really OK to do something useless because it shows your thorough

The Investigation There is no requirement that an investigation determine the cause of an incident or accident. Still make a conclusion: substantiated/unsubstantiated, credible/inconclusive, confirmed/disproved, etc. If the cause truly is unclear, it is ok to state that the cause could not be determined. Have legal review any report that involves a resident injury or death.

While the Investigation Is Ongoing Presume that there will be an on-site survey by IDPH and assume that they will cite the facility with a deficiency. It is best to presume that they will cite the deficiency at an immediate jeopardy. Take proactive measures to respond to the presumed immediate jeopardy: Assess all residents with the same issues or risks Review relevant policy and revise if necessary In-service staff on relevant policy Audit compliance going forward

Final, Follow-Up Report Fax to IDPH Regional Office State regulations within 7 days A narrative summary of each serious accident or incident occurrence shall be sent to the Department within seven days of the occurrence. Federal regulations 5 working days The results of all investigations must be reported to the administrator or designated representative or to other officials in accordance with State law within five working days of the incident and, if the alleged violation is verified, appropriate corrective action must be taken.

Final, Follow-Up Report Contents 1.Summary of facts what we know happened. 2.Summary of investigation who we interviewed, what we considered. 3.Summary of proactive measures in servicing of staff, review of other residents with similar conditions or concerns (e.g., high risk for falls or elopement risk). 4.Conclusion remember if we were unable to determine what happened that is ok.

Just the facts, ma Final, Follow-Up Report If the facility s investigation concludes that no abuse, neglect or injury of unknown origin occurred, then: Report the facility s open-minded investigation methods, and Evidence that disproves the allegation If the facility s investigation concludes that abuse, neglect or injury of unknown origin did occur, then: Still, am now just more of them. Leave out blame, motivations, irrelevant or side issues, etc.

Final, Follow-Up Report Move along, nothing to see here Show your swift, strong action taken to address the abuse, neglect, or injury (i.e., POC steps: resident assessments, staff discipline/termination, in-service training, etc.), so there is no need for surveyors to investigate because you have already done it all! But, be aware that it doesn t end here.

Further Follow Up Discipline staff as appropriate Reprimand Suspend Terminate Report to registry Train staff Orientation In servicing One-to-one training

Further Follow Up If a systemic issue is identified, figure out how to address it and how you will monitor the issue going forward. Prepare information to give to the surveyor, including abuse survey response file: Original IDPH report Facility abuse policy Summary of investigation Follow-up report In servicing documentation Copies of updated care plans if applicable

Have Policies & Procedures In Place The underlying incident or accident may be hard for IDPH to prove or the facility may have a strong defense but, violations are sustained because the facility s follow-up reporting and investigation were inadequate.

Required Policies and Procedures Federal Guidance (State Operations Manual) SNFs must develop and implement policies and procedures that include: 1. Screening potential employees for history of abuse or mistreatment 2. Training employees on issues related to abuse 3. Prevention, including resident and family education as well as identifying, correcting, and intervening in situation where abuse is more likely to occur 4. Identification of events and trends that may constitute abuse 5. Investigation of incidents 6. Protection of residents during investigations 7. Reporting/response, including reporting all alleged violations and substantiated incidents to state agency, reporting to State nurse aide registry or licensing authorities unfit employees, taking corrective action as necessary, and analyzing what changes are needed to prevent further occurrences State Operations Manual: F226, Interpretive Guidelines 483.13(c).

Required Policies and Procedures The facility shall develop and implement a policy concerning local law enforcement notification, including: 1) Ensuring the safety of residents in situations requiring local law enforcement notification; 2) Contacting local law enforcement in situations involving physical abuse of a resident by another resident; 3) Contacting police, fire, ambulance and rescue services in accordance with recommended procedure; 4) Seeking advice concerning preservation of a potential crime scene; 5) Facility investigation of the situation.

Questions??

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