Introduction
On August 24, 2017, the Office of Inspector General (“OIG”) of the Department of Health and Human Services (“HHS”) issued an “Early Alert”
that disclosed the preliminary results of its ongoing review of abuse
of Medicare beneficiaries in skilled nursing facilities. Specifically,
OIG determined: (i) that a significant number of incidents of potential
abuse or neglect of nursing facility residents receiving emergency care
has not been reported to law enforcement as required under the Elder
Justice Act; and (ii) that the Centers for Medicare & Medicaid
Services (“CMS”) lacked adequate procedures to ensure proper reporting.
The Early Alert, which includes a list of suggestions for immediate
remedial action to be taken by CMS, highlights the increased scrutiny
that nursing facilities will face for failing to comply with the Elder
Justice Act’s reporting obligations, and points to proactive measures
nursing facilities can take, now, to mitigate risk of any enforcement
action.
Requirements to Report Abuse or Neglect of Residents of Skilled Nursing Facilities
The “Elder Justice Act,” adopted with the passage
of the Affordable Care Act (“ACA”) effective March 23, 2011 (see 42
U.S.C. § 1320b-25), requires “covered individuals” -- including an
owner, operator, employee or agent, of a long term care facility -- to
[A] report to HHS (or the State Survey Agency) and one or more law
enforcement entities any reasonable suspicion of a “crime” against any
individual who is a resident of the facility; and [B] make such report
within two hours after forming the suspicion that the resident suffered
serious bodily injury, or within 24 hours if there is no serious bodily
injury.
Failure to make the required reports could result
in civil monetary penalties of up to $300,000 and exclusion from
participation in the Medicare and Medicaid programs. Id. Although the
law went into effect in 2011, the corresponding regulations requiring
skilled nursing facilities to develop and implement conforming policies
and procedures do not go into effect until November 28, 2017. See 42
C.F.R. § 483.12(b).
Separately, skilled nursing facilities must also
report resident abuse, neglect, mistreatment, injuries of unknown
origin, and misappropriation of resident property to the administrator
of the facility and the State Survey Agency. See 42 C.F.R. §
483.12(c); see also N.Y. Public Health Law § 2803-d and 10 N.Y.C.R.R. §
81.1 et seq.
OIG’s Audit
Although its review of skilled nursing facility
abuse reporting is not yet complete, OIG issued its preliminary audit
results through the Early Alert because of the “importance of detecting
and combating elder abuse.”
Audit Methodology and Findings: To conduct this
audit, OIG reviewed hospital emergency room records of 134 residents of
skilled nursing facilities transferred to the hospital, in which the
emergency room staff assigned one of 12 primary diagnoses codes utilized
for Medicare reimbursement claims that indicate potential abuse or
neglect (e.g., adult sexual abuse, adult physical abuse, adult
maltreatment). OIG also reviewed the State Survey Agency records for
each of the relevant skilled nursing facilities. Based on these
records, OIG found that, for 28% of these cases, there was no evidence
that the underlying incident had been reported to law enforcement.
Notably, OIG assumed that every emergency room visit associated with one
of the 12 “abuse” diagnostic codes was an incident reportable under the
Elder Justice Act. OIG, however, did not independently verify whether
there was actual abuse or neglect of these individuals.
Based on its findings, OIG concluded that CMS
lacks procedures to enforce the Elder Justice Act, and specifically to
ensure that incidents of abuse or neglect of nursing facility residents
are being properly reported to law enforcement. In particular, OIG
noted that CMS does not “match” hospital Medicare claims for emergency
room services with claims for nursing home reimbursement, to identify
instances of potential abuse or neglect.
CMS acknowledged that it has not identified any
instances in which a covered individual failed to make a report to law
enforcement. In its defense, CMS informed OIG that it has not taken any
enforcement action yet because HHS has not yet delegated enforcement
authority to CMS.
Furthermore, CMS stated that it has recently updated
the State Operations Manual, used by the State Survey Agencies, to
reference the applicable Elder Justice Act regulations, with an
effective date of November 28, 2017.
OIG’s Recommendations to CMS
In the Early Alert, OIG provided the following “suggestions” for CMS to take immediately:
-
Implement procedures to compare hospital Medicare claims for
emergency room treatment with nursing home claims to identify incidents
of potential abuse or neglect and to periodically provide the details of
this analysis to the State Survey Agencies for further investigation of
compliance with Elder Justice Act reporting obligations;
-
Continue to work with HHS to secure the authority to impose the civil
monetary penalties and exclusion of providers pursuant to the Elder
Justice Act;
-
Promulgate additional regulations, if necessary, to impose penalties for non-compliance with the reporting requirements;
-
Impose penalties when appropriate; and
-
Direct State Survey Agencies to refer suspected violations of the reporting obligations to CMS for appropriate action.
Lessons for Skilled Nursing Facilities
-
With the issuance of the Early Alert, the mandate to report to law
enforcement, suspected crimes against residents, including abuse and
neglect, will continue to be a compliance focus of OIG and will likely
be an enforcement priority for CMS going forward. Nursing facilities
need to revisit and, to the extent they have not done so already, update
their policies and procedures to comply with the reporting obligations
contained in the Elder Justice Act -- before the applicable regulations
go into effect on November 28, 2017.
-
OIG focused its attention on skilled nursing facility residents
receiving emergency room services. Skilled nursing facilities should
likewise be particularly focused on resident transfers for emergency
care for potential incident reporting pursuant to the Elder Justice Act.
-
OIG equated any emergency room visit associated with one of the 12
“abuse” diagnosis codes to be reportable under the Elder Justice Act.
However, at the time of an emergency room transfer, nursing facilities
in some cases may not have identified evidence of potential abuse of a
criminal nature, and would not have the benefit of the emergency room
physicians’ evaluation when the resident arrives at the hospital. As a
matter of course, skilled nursing facilities should consider requesting
records of the emergency room diagnoses and, whenever one of the 12
codes has been assigned, presume that the incident should be reported to
law enforcement if it has not been already, unless the evidence clearly
indicates the coding is mistaken and no abuse took place.
Full Article & Source:
OIG Issues Stark Warning to Skilled Nursing Facilities: Potential Abuse or Neglect of Residents Receiving Emergency Room Services is Being Underreported to Law Enforcement
No comments:
Post a Comment