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
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 12207-1010 518-462-4800 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.
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) 462-4800 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
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... 11 CHAPTER II: INVESTIGATING ABUSE, MISTREATMENT AND NEGLECT... 15 Federal Requirements... 16 Facility Investigations of Incidents... 17 What Is an Investigation?... 19 Understanding Reasonable Cause to Believe... 20 Misappropriation of Resident Property and Reporting to Law Enforcement... 21 Event Management... 23 Instructions for Event Management... 25 Conducting the Investigation... 27 Describing the Scene... 30 Documenting the Investigation... 31 Investigation Checklist and Sample Forms... 33 Missing Property Report... 46 CHAPTER III: REPORTING ABUSE, NEGLECT OR MISTREATMENT... 47 Federal Requirements... 48 New York State Requirements... 49 Who, What and When and How to Report... 50 CHAPTER IV: QUALITY IMPROVEMENT... 53 Quality Improvement... 54 A Team Approach to Improving Care Utilizing Root Cause... 58 Quality Improvement Bibliography... 60 CHAPTER V: THE ELDER JUSTICE ACT: SUSPICION OF CRIME... 61 Background and Summary... 62 i
Requirements... 62 Penalties for Failure of Covered Individuals to Comply with Reporting Requirements... 65 Suggested Actions... 65 CHAPTER VI: SCREENING POTENTIAL EMPLOYEES... 67 Federal Regulatory Requirements... 68 State Regulatory Requirements... 69 Screening Potential Employees... 70 APPENDIX... 0 ii
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. 483.13(c), 42 C.F.R. 483.75(e), 42 C.F.R. 488.301, 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. 483.13. 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 415.26. 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
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, 2011. 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, 2012. 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
The Seven Components of a Systemic Approach to Policies and Procedures The federal regulations at 42 C.F.R. 483.13 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 483.13(c)(1)(ii) (A) & (B) SOM, App. PP, Interp. Guidelines Tag F226; see 42 C.F.R. 483.75(e) 483.13(b), 483.13(c) Screen potential employees for a history of abuse, neglect or mistreating residents as defined by the applicable requirements at 483.13(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
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. 483.13(c)(2) 483.13(c)(2), (3), (4) and grievances without the fear of retribution; and provide feedback regarding the concerns that have been expressed. (See 483.10(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. 483.13(c)(2), (3) and (4). 4
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. 483.13(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. 483.13(c)(1)(iii), 483.13(c)(2), 483.13(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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CHAPTER I: IDENTIFYING AND PREVENTING ABUSE, MISTREATMENT AND NEGLECT Federal and State Regulations Side by Side Comparison 7
Identifying and Preventing Abuse, Mistreatment and Neglect Federal Regulatory Requirements 483.13 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. 483.13(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. 483.13(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. 483.13(c) (i) Not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion; (ii) (iii) 42 C.F.R. 483.13(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. 483.13(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. 483.13(c)(1)(iii) 8
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
10 NYCRR 415.26 - 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 415.3 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 415.26(j) 10
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. 488.301 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 F223 483.13(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 F223 483.13(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. 18-20 (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
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 F223 483.13(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 F223 483.13(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 F223 483.13(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.
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. 488.301 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 F223 483.13(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. 488.301 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 415.26(j)(1) 13
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
CHAPTER II: INVESTIGATING ABUSE, MISTREATMENT AND NEGLECT 15
Investigating Abuse, Mistreatment and Neglect Federal Requirements 483.13 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. 483.13(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. 483.13(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. 483.13(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. 483.13(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 483.13(c)(2) and (4). No State can override the obligation of the nursing home to fulfill the requirements under 483.13(c), so long as the Medicare/Medicaid certification is in place. SOM, Interpretive Guidelines, 483.13(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
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. 483.10(f) and 42 C.F.R. 483.13(c); 10 NYCRR 415.4(b)(2)(3)(4) and 10 NYCRR 415.26(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
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
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
Understanding Reasonable Cause to Believe The Trigger for Reporting to the NYS DOH Federal regulations (42 C.F.R. 483.13), 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 483.13(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
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 $250.00 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 415.26(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 415.26(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 $250.00 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
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
Event Management STEP BY STEP GUIDE TO CONDUCTING INVESTIGATIONS 23
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 10/1999 16 Summit Ave. Central Valley, NY 10817 NYSHFA s expertise and collaboration was instrumental in the development of this flow chart. 24
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
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 415.26(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