OIG Issues Stark Warning to Skilled Nursing Facilities: Potential Abuse or Neglect of Residents Receiving Emergency Room Services is Being Underreported to Law Enforcement


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:

Lessons for Skilled Nursing Facilities

Bottom Line:  Nursing facilities -- and “covered individuals” -- that fail to heed OIG’s alarm may be putting themselves in regulatory jeopardy.


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National Law Review, Volumess VII, Number 249