An Ounce of Prevention: Resident Related Investigations CAHF Annual Convention November 9, 2014 Palm Springs, CA Presented by Christine J. Wilson, R.N., J.D. Tyler & Wilson, LLP 5455 Wilshire Boulevard, Suite 1925 Los Angeles, CA 90036 Tel: (323) 655 7180 Fax: (323) 655 7122 Email: inquiries@tyler law.com Copyright 2014 by Tyler & Wilson Elder/Dependent Adult Reporting: A Brief Review Federal Regulations CFR 483.13(b) Residents have the right to be free from abuse (F 223) CFR 483.13(c)(2) All allegations of mistreatment, neglect or abuse and injuries of unknown origin must be reported (F 225) CFR 483.13(c)(3) - Evidence of thorough investigation (F 225) CFR 483.13(c)(3) - Prevent further potential abuse while investigation is ongoing (F 225) CFR 483.13(c)(4) All results reported to administrator or officials required by state law within 5 working days (F 225) CFR 483.13(c)(4) - If abuse verified must take corrective action (F 225) Elder/Dependent Adult Reporting Federal Statute: Elder Justice Act (EJA) Part of the Patient Protection and Affordable Care Act Must report reasonable suspicion of a crime against a resident or person receiving care Does not supersede EADACPA Does not require status of elder/dependent adult 1
Elder/Dependent Adult Reporting Federal Statute: Elder Justice Act (EJA) Must report any reasonable suspicion of a crime Serious bodily injury: immediately/max 2 hours Other injury/crime: 24 hours Crime not limited to elder/dependent adult abuse Report to law enforcement and DPH L&C Penalties Facility exclusion from participation in Medicare/Medi-Cal Facility employing any excluded individual cannot participate Monetary penalties up to $200,000 ($300,000 if increased harm ) Additional penalties for retaliation up to $200,000 and/or 2 year exclusion Elder/Dependent Adult Reporting Elder Justice Act: Must do Annual notice to all employees of reporting obligations Notice of employee right to file a complaint with L&C without retaliation No retaliation against employee who reports reasonable suspicion of a crime Ensure that immediate/2 hour (serious bodily injury) and 24 hour (other crimes) reporting takes place weekends count! Elder/Dependent Adult Reporting State Statute: Elder Abuse and Dependent Adult Civil Protection Act (Welfare & Institutions Code 15600 et. seq. EADACPA ) as revised by AB40 (2012) Serious bodily injury: Telephone immediately and written report within 2 hours to law enforcement, DPH L&C and Ombudsman Other suspected abuse: Telephone and written report within 24 hours to law enforcement, DPH L&C and Ombudsman Penal code 368(a) criminal penalties for causing or permitting Additional reporting Regional Center as applicable Individual s licensing board/certification entity if applicable LVN Board has specific requirements 2
Investigation Federal Regulations Time frame: 5 working days Reported to Administrator or designated representative (include back up plan if allegations involve Administrator); also report as required by state law F 225 Must have evidence that all alleged violations are thoroughly investigated Comprehensive and responsive Well conducted No evidence of negated or altered reports No shallow or routinized investigations Ensure that measures implemented immediately to prevent further abuse Investigation Above complies with reporting requirements for Federal regulations only must also comply with EJA, EADACPA and Title 22 reports to: EJA: Law enforcement and DPH L&C EADACPA: Law enforcement & Ombudsman Initial report may (and usually should) be supplemented when more information is obtained) Investigation Must have P&P that complies with EJA, EADACPA, Title 22 requirements and federal regulations Start immediately Preserve evidence Avoid foregone conclusions Know what is privileged (QA, legal counsel) If appropriate, suspend employee (administrative suspension) Any written report to a third party (DPH, law enforcement, Ombudsman) should demonstrate that you have the situation under control 3
About Incident Reports How are they used? Are they kept confidential for QA/legal counsel? Report to DPH or other agency is different from an internal QA/legal report Should not include writing by non-employees (if they insist give them a blank paper) Employee writing the report should be person in charge Components of an Investigation Interviews Client Staff members (including but not limited to caregiver) Other clients Others in a position to observe How to Conduct the Interview Promptly (call in off duty personnel if necessary) Double back if needed but identify separate interview segments Active listening Open ended questions Provide privacy Avoid making promises regarding confidentiality, reporting, disciplinary action, conclusions, etc. Choose the interviewer carefully 4
Consider All Evidence Equipment failure? Food contamination? Medication error? Poisoning? Photographs? Informal notes? Report Writing Outline and plan Stick to the facts Distinguish reported facts from observed facts Write clearly Report Writing: WHAT NOT TO DO Avoid opinion especially as to violation of law Avoid inflammatory conclusions: abuse, punched, kicked, threatened No excessive verbiage: I was called upon to interview versus I interviewed At the present time versus now 5
Take Action Obtain care for client if needed Comply with reporting requirements Take appropriate personnel action Obtain legal counsel and consider outside investigation in serious cases Consider expert evaluation (particularly if litigation is probable) Break Time Stay tuned for Part II: Employee Investigations 6