Work in the Time of COVID-19: FAQs for Employers

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We'll make you a bet – we bet if each of you reading this article goes to your facility policy and procedure manual, you'll find a policy on investigating “incidents” in your facility. We also bet that your policy is broader than it needs to be. The nursing facility industry has become so oriented toward “investigating” everything that providers often inadvertently shoot themselves in the foot.

Federal law requires ONLY that you investigate allegations (or suspicions) of abuse, neglect, misappropriation of resident property, and injuries of unknown origin. But what we find in most of our clients' policy manuals is a policy requiring investigations of every unintended outcome, including injuries in which we know exactly what happened. For example, a CNA violates a facility policy on resident van transports, and a fall and injury result. Barring some extreme facts, like that the same CNA has done this numerous times before, it's not abuse, it's not neglect, it's not misappropriation of property, and it's not an injury of unknown origin. Since you know exactly what happened, you are NOT REQUIRED to investigate it. Nonetheless, we often see policies requiring investigations for any “incident” on the campus, defined by the facility as any accident, injury or unintended consequence, regardless of the facts surrounding it.

Here's the problem – the federal administrative law judges who decide nursing facility survey appeals have, over the years, developed a body of case law outlining what a complete and adequate investigation of abuse, neglect, misappropriation, or injuries of unknown origin should look like. So, when you put all unintended outcomes (i.e., “incidents”) into the same policy with those four categories, you inadvertently graft onto yourself the same expected investigatory elements for all “incidents” that the regulators expect to see for abuse, neglect and misappropriation of property.

Now, before somebody screams at us, we're not saying you shouldn't look into unintended outcomes that don't rise to the level of abuse, neglect and misappropriation. What we are saying is you should segregate those four types of outcomes into a separate policy in terms of your duty to investigate and report. For everything else, your policy should probably be to evaluate those outcomes on a case-by-case basis to determine whether they are 1) issues appropriate for consideration by the facility Quality Assurance Committee; 2) risk management issues that should be directed to your compliance officer, counsel, insurance company or senior management; or 3) grievance issues that need resolution with residents, families and/or staff. For example, in the outcome we sited above, you will probably want to know why the CNA used an improper van transfer technique. Was he improperly trained or supervised? Was he just in a hurry? But in our view, that decision should be made on a case-by-case basis, and absent evidence it rose to the level of abuse, neglect or misappropriation, it should be evaluated and assessed as either a QA issue, risk management issue or grievance issue, as applicable.

So, what should you do? Consider creating a policy on REQUIRED investigations limited to those the regulations mandate (abuse, neglect, misappropriation of property and injuries of unknown origin). Either leave the rest to a case-by-case professional decision by your management/staff (consider having the same senior staff make those decisions for the sake of consistency) or separate those other potential unintended outcomes in another policy that delegates them to senior management for evaluation as grievances, risk management and/or QA issues.

The Departmental Appeals Board cases on this point do stretch to find an obligation to investigate. But all the cases we've seen so far where a facility is criticized for failing to do so arose in the context of abuse, neglect, misappropriation, or injuries of unknown origin – EXCEPT where the facility took on an obligation to investigate in a broader array of cases through its own policies and procedures.

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