As Beasley Allen previously reported, a recent report from the Office of Inspector General (OIG) at the U.S. Department of Health and Human Services (HHS) revealed a gross underreporting of nursing home abuse and neglect incidents throughout the country. After discovering a number of cases had never been reported to local law enforcement as required by law, OIG auditors realized a pattern that indicated a breakdown in the system designed to protect nursing home residents. Without waiting for the conclusion of the audit, the agency issued an “early alert” taking to task HHS and the Centers for Medicare and Medicaid Services (CMS), which oversees nursing homes, for deficient procedures and reporting shortfalls.
Further, the OIG report explained that CMS had taken no enforcement actions since 2011 when federal law triggered a set of sanctions to correct the underreporting. The agency failed to update the State Operations Manual (SOM) with the new regulations until six years after the law became effective.
The SOM is part of the CMS Online Manual System that offers guidance on day-to-day operating instructions, policies and procedures to State Survey Agencies (Survey Agencies). Survey Agencies are state level governing bodies that are delegated certain CMS oversight duties including conducting investigations to determine how nursing homes and other health care providers comply with their Conditions of Participation in the Medicare and Medicaid programs including the reporting of potential abuse or neglect.
In 2011, Section 1150B of the Social Security Act became effective, requiring “covered individuals in federally funded long-term care facilities” to report potential crime, such as abuse and neglect, committed against a resident at the facility. If such incidents were not reported to appropriate authorities, CMS had several enforcement actions at its disposal to ensure compliance with the reporting requirements. These actions included “civil monetary penalties of up $300,000 and possible exclusion from participation in any federal health care program.”
While CMS confirmed that it had not taken enforcement actions, it argued that, as of this summer, the Secretary of HHS had not officially conferred such authority upon the agency. Nonetheless, the agency also said it had not identified anyone who had failed to report an incident of potential abuse or neglect.
The OIG early alert report described the inexcusable experiences of two nursing home residents uncovered during the audit. A female resident was allegedly sexually assaulted and had “two silver-dollar-sized bruises” on one of her breasts following the encounter. The emergency room report noted that nursing home staff helped the female resident bathe and change clothing before taking her to the emergency room. The nursing home did not report the attack. Instead, facility personnel informed the resident’s family the following day and the family contacted law enforcement, which then began investigating the incident.
Similarly, a male resident who “suffered from several medical conditions that affected his mental acuity,” was admitted to the emergency room where medical professional noticed “multiple bruises in various stages of healing.” The emergency room staff noted that some of the bruises were on areas of the body “not easily banged” and that “a deep healing scratch on the right flank” raised the staffs’ concern about possible abuse or neglect. The resident talked to emergency room personnel about “being beaten with feet, hands and a broomstick,” yet because of his mental status, it was difficult for those assisting in him in the emergency room to gain a clear picture of what caused his injuries.
Sadly, incidents like these have become a common occurrence in nursing homes across the country. When they go unreported, perpetrators of appalling abusive or neglectful acts are not held accountable. The OIG report included several recommended steps CMS must take immediately including: continuing to work with HHS to receive the appropriate enforcement authority; updating the SOM and working with Survey Agencies and nursing homes to ensure compliance; and fully enforcing Section 1150B – including all penalties.
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If you need more information on nursing home litigation contact Chris Boutwell, at 800-898-2034 or by email at Chris.Boutwell@beasleyallen.com. Chris handles nursing home litigation for our firm, and he will be glad to talk with you.
Visit BeasleyAllen.com Sept. 28 for another installment in our Nursing Home Series.
U.S. Department of Health and Human Services/Office of Inspector General