LeadingAge NY and CMS Discuss Abuse/Neglect Citations
On Mon., May 21, 2018, LeadingAge NY met by phone with the Centers for Medicare and Medicaid Services (CMS) to discuss citations related to abuse and neglect and how actions or inactions of individual employees impact nursing homes' potential to be cited. The meeting, which was requested by LeadingAge NY, was the result of concerns expressed by members that had been cited for abuse/neglect even though the circumstances surrounding the cited incident were solely attributable to individual culpability and not to the facility’s failure to ensure proper screening, training, policies and procedures, reporting, and actions against perpetrators.
When the citations were issued, Department of Health (DOH) staff stated that they were citing based on Interpretive Guidance that went into effect with the new federal nursing home regulations in November 2017. Up to this time, in New York State, investigations of abuse/neglect allowed for the determination of individual culpability to be made based on language in Public Health Law (PHL) section 2803-d. The new federal guidance does not provide for the actions of an individual to be separate from the nursing home. The Interpretive Guidance states the following:
“It has been reported that some facilities have identified that they are in compliance with F600-Free from Abuse and Neglect because they could not foresee that abuse would occur and they have “done everything to prevent abuse,” such as conducted screening of potential employees, assessed residents for behavioral symptoms, monitored visitors, provided training on abuse prevention, suspended or terminated employment of the perpetrator, developed and implemented policies and procedures to prohibit abuse, and met reporting requirements. However, this interpretation would not be consistent with the regulation, which states that “the resident has the right to be free from verbal, sexual, physical, and mental abuse…” Therefore, if the survey team has investigated and collected evidence that abuse has occurred, it is appropriate for the survey team to cite the current or past noncompliance at F600-Free from Abuse and Neglect.”
On the call were Karen Tritz, Director of the Division of Nursing Homes in the CMS Survey and Certification Group, and several other CMS Central Office staff, CMS Region 2 Survey and Certification staff, and representatives from the DOH Survey and Certification Group. CMS stated that the guidance in F600 is not new and that it is based on case law, which notes that “The facility, as a business entity, exists only in contemplation of the law, and can only perform the functions of a long-term care provider through the employees it chooses and empowers to act on its behalf.” CMS has concluded, based on this decision, that in cases involving abuse, the facility will always be cited.
However, citations of neglect are more nuanced. In these incidents, survey staff would attempt to discern whether the non-compliance is based on deficits or weaknesses in structure or processes within the nursing home or represent systemic patterns. Citations for neglect, unlike abuse, would not be automatic. The federal Interpretive Guidance around neglect states the following:
“Neglect at F600 should not automatically be cited in addition to the Resident’s Rights/Quality of Care/Quality of Life tags. While the latter citations identify potential or actual negative outcomes in the areas of resident’s rights, quality of care, and quality of life, neglect identifies the facility’s failure to provide the required structures and processes in order to meet the needs of one or more residents. This may include, but is not necessarily limited to, the facility’s failure to provide necessary staff, supplies, services, policies, training, or staff supervision and oversight to meet the resident’s needs.”
Based on the information provided on the CMS call, LeadingAge NY is discussing the interpretation with counsel and is continuing to meet on a bimonthly basis with DOH. At this time, members should review their current policies and procedures around abuse/neglect to determine if they align with the new nursing home requirements and the abuse prohibition protocols. Those members with concerns about possible vulnerabilities in their systems should engage LeadingAge NY ProCare for a more in-depth review of their processes to identify and investigate incidents.
Contact: Elliott Frost, efrost@leadingageny.org, 518-867-8832