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

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On June 17, 2011, the Centers for Medicare and Medicaid Services (CMS) issued much-needed guidance to state survey agency directors on what CMS expects from a long term care (LTC) facility that is obligated to report a “reasonable suspicion of a crime” committed against a resident of that facility. This vexing provision of the Elder Justice Act (EJA) found in last year's massive health care reform law triggers an almost impossibly short reporting obligation, not only for the facility, but also for certain individuals.

What facilities and individuals are affected by this obligation? Nursing facilities, skilled nursing facilities, hospices providing services in an LTC facility, and Intermediate Care Facilities for the Mentally Retarded. Individuals who are obligated to make reports include a facility's owner, operator, employee, manager, agent, or contractor. You may be asking, who doesn't have to make a report as an individual? Also the fact that one individual makes a report doesn't relieve another individual from his or her own obligation to make a report. In fact, information about who reported an event and who knew of the event (and did not report) will be documented by the survey agency. Sound duplicative? It is, but you cannot limit any individual's responsibility to report under this provision.

To whom must a report be made? To at least one law enforcement agency and the state survey agency.

What obligations does an LTC facility have? First, facilities must determine if they received at least $10,000 in federal funds in the prior year; if not, read no further (but that's probably not too many of you). Second, facilities must notify covered individuals of their reporting obligations under the EJA (think training). Third, facilities must post yet another notice, in an appropriate location, for employees about the EJA, including an employee's right to file complaints under the EJA (including with the state survey agency). Fourth, facilities should make sure their anti-retaliation policy covers reports under the EJA (it probably does if the policy was broadly written).

What else does CMS think a facility ought to do? CMS states that covered facilities “effectively” implementing the EJA's reporting obligation will also: (a) coordinate with law enforcement, (b) review adherence to existing CMS policies, and (c) develop policies and procedures specific to the EJA requirements. While these are not stated as “requirements,” you should assume they are.

When must the facility make a report? Reporting time frames are dependent on whether the resident experiences serious bodily injury; if so, report immediately, but not later than within two hours of the event. If there is no serious bodily injury to a resident (e.g., financial crimes against the resident), then report within twenty-four hours of the event.

What do you need to document when you make a report? Follow your policies and procedures and document appropriately your investigation, your findings, your response, and your report. Include dates, time and names of individuals involved. Involve legal counsel as soon as possible. Be prepared to discuss the event with your survey agency.

While it is good to have some guidance on the EJA's reporting requirements, reading the guidance won't answer all your questions about your obligation. For example, the guidance does not clarify what is a “crime” (the EJA says that's a matter of state or local law) or what a facility is supposed to do when an already overworked local law enforcement agency does not or cannot respond to the report. CMS and survey agencies are watching you as you bounce between the health care world to the world of detectives and back again.

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