Health Reform 2010: New Elder Abuse Reporting Requirements

Every year approximately 11% of individuals 60 and over suffer some form of abuse, according to the National Institute of Justice. For each reported case of abuse, an estimated 5 more cases go unreported. The recently enacted health reform legislation in the Patient Protection and Affordable Care Act of 2010 and its subsequent amendment through passage of the Health Care and Education Reconciliation Act of 2010 (collectively , the “PPACA”) adopts the Elder Justice Act and Patient Safety and Abuse Prevention Act to improve awareness and prevention of elder abuse, neglect and exploitation. The new law includes new reporting requirements in cases of elder abuse, stronger penalties for non-reporting, and expands the federal program for federal criminal background checks for employees of long-term care facilities. These federal requirements modify and expand upon existing Mandated Reporter requirements under Virginia law.

Reporting Elder Abuse, Neglect, and Exploitation

Under prior Federal law, nursing homes and ICFs/MRs must report alleged violations involving resident mistreatment, neglect, abuse, injuries of unknown origin and misappropriation of property. The new law seeks to provide more uniformity among states in reporting standards. In particular, Section 6703(b)(3) of the PPACA requires reporting by owners, operators, employees and contractors of long-term care facilities of a reasonable suspicion that a crime against a resident occurred within 2 hours of “forming a suspicion” if there is serious bodily injury to the resident and within 24 hours, if no serious bodily injury occurs. Serious bodily injury means injury that involves extreme physical pain, substantial risk of death, protracted loss or impairment to the patient’s functioning, the occurrence of criminal sexual abuse, or any injury requiring medical intervention such as surgery, hospitalization, or physical rehabilitation.

This section overrides existing Virginia reporting time standards. For example, Virginia law requires mandatory reporters (i.e., administrators, physicians, nurses, social workers) to report crimes and elder abuse “immediately.” The new law establishes a timeframe to report as early as 2 hours and no later than 24 hours depending on the seriousness of the harm to the resident. A written report following an investigation (but no later than five days after making the report) is still required under state guidelines. Other than the shorter reporting time, existing state and federal reporting laws remain unchanged. See Mellette PC’s 2008 Client Advisory: Virginia Reporting Requirements

The new law also requires reporters to notify the Secretary of Health and Human Services and relevant law enforcement agencies of their suspicions. Although Health and Human Services has not yet designated who is to receive these reports on the Secretary’s behalf, previous federal guidance provided for reporting to the state’s long term care

licensing office. Therefore, providers should continue to send reports of suspected abuse, neglect, and exploitation to the Long Term Care Division of the Virginia Department of Health, unless and until the Secretary provides specific guidance to the contrary. Reports should also continue to go to local law enforcement and Department of Social Services representatives, as required by federal and state reporting laws. Where suspicions involve abuse by a person licensed or certified by the Department of Health Professions, a DHP complaint may be required.

The reporting requirements were effective upon enactment on March 23, 2010. Therefore, long term care facilities should remind all employees not only of their obligations to report serious bodily injury to residents within 2 hours but also the PPACA’s protection against facility retaliations for reporting. If the facility has not already done so, it should develop in-service training programs and implement policies and procedures to ensure employees and other required reporters are educated on the provisions in this section, including “reasonable suspicion” “crime” reporting. Reasonable suspicion of a crime against a resident is not a mere hunch and the reporter can articulate a fact or inference in support of the suspicion.

Penalties for Failure to Report

A facility’s failure to report abuse or retaliation against an employee who files a report could result in civil monetary penalties up to $300,000 and three years exclusion from Medicare. However, PPACA allows consideration of the financial burden of such penalties on facilities serving underserved populations.

The PPACA also requires all licensed nursing facilities to conduct elder abuse prevention and dementia management training with their staff. The law establishes a National Training Institute to improve the training of surveyors with respect to investigating allegations to better respond to an increase in reports of abuse and crimes against elderly residents. The law also provides grants to state survey agencies to design and implement optimal complaint investigation systems, including provisions to promptly prioritize complaints; ensure effective and timely response; and optimize the collaboration between local authorities, consumers, and providers. Unlike the above elder abuse reporting requirements, nursing facilities in participating states have until March 2011 to enact these training programs

Criminal Background Checks

Although background checks on long-term care employees are a function of state law, current background checks using the Virginia State Police database may not detect crimes committed in another state. The PPACA also contains Section 6201, or the Patient Safety and Abuse Prevention Act, which expands a previous HHS pilot program to establish a national criminal background check system for employees of long-term care facilities. Federal grants encourage states to participate voluntarily in the national system. The new law prohibits the hiring of abusive workers and requires nationwide criminal background checks on direct patient access employees in participating states. The federal guidance implementing the PPACA provisions awaits.

Conclusion

As the new federal health reform legislation is implemented via the regulatory process, new changes to the legal and operational requirements for long term care facilities will occur. If our firm can be of assistance in further identifying and interpreting these changes for you, please let Peter Mellette, Harrison Gibbs or Nathan Mortier know.

This Client Advisory is for general educational purposes only. It is not intended to provide legal advice specific to any situation you may have. Individuals desiring legal advice should consult legal counsel for up to date and fact specific advice.
Categories: Client Advisory