New CMS Regulations on Abuse—Do You See What We See?

Resident says “they” took her favorite pair of pink fuzzy socks.
A patient with schizophrenia complains that his milk is warm because staff have injected urine into the carton without opening it to poison him.
A patient stated the nurse took “hours” to answer his call light.
You witness a resident hit staff and staff ran from room. Resident states that the staff hit him before they ran, but there was a witness that stated that this did not happen. 

What do the above scenarios have in common?  Under the new abuse regulations, each one must be reported and investigated as potential abuse, neglect, misappropriation of resident property or mistreatment.   And if YOU hear about them, then YOU are a mandated reporter.

We are concerned about the impact of the new F Tags 609 and 610 addressing abuse. These took effect 11/28/2017, though few LTC providers, CALTCM, AMDA, CAHF or even some Ombudsman personnel appear aware of them and their possible implications. While we await legal counsel and advice from the professional organizations that often guide us, and ideally, an All Facilities Letter (AFL) from CDPH, we wanted to invite the membership to take a closer look and to think through for yourself what these regulatory changes may mean to you. 

We first read about the new regulations, there was some concerning language and this issue was brought up to leadership both within California, CDPH and the national organizations as well as to CMS.  It was unclear how the regulations might be interpreted.  However increasingly nursing homes are reporting that the new regulations are being enforced quite literally, and that they are receiving deficiencies for failure to report failure to investigate even verifiably untrue allegations, and subject to  California based citations based on failure to follow abuse reporting regulations as well as risking loss of CMS star ratings if a second violation occurs.

In October 2019, several changes were made to the Nursing Home Compare website and the Five-Star Quality Rating System. These changes affected the health inspection and quality measure domains. This section provides details on these changes. Ratings changes for facilities that receive the abuse icon are to  make it easier for consumers to identify facilities with instances of non-compliance related to abuse.  Starting in October 2019, CMS added an icon to highlight facilities that meet either of the following criteria:

  1. Harm-level abuse citation in the most recent survey cycle: Facilities cited for abuse where residents were found to be harmed (Scope/Severity of G or higher) on the most recent standard survey or on a complaint survey within the past 12 months. 
  2. Repeat abuse citations: Facilities cited for abuse where residents were found to be potentially harmed (Scope/Severity of D or higher) on the most recent standard survey or on a complaint survey within the past 12 months and on the previous (i.e., second most recent) standard survey or on a complaint survey in the prior 12 months (i.e., from 13 to 24 months ago). Nursing homes that receive the abuse icon have their health inspection rating capped at a maximum of two stars. Due to the methodology used to calculate the overall rating, the best overall quality rating a facility that receives the abuse icon can have is four stars. 

Under F609, a facility “…must: Ensure that all alleged violations…are reported immediately, but not later than 2 hours after the allegation is made…”  Furthermore, “alleged violations” are “..a situation or occurrence that is observed or reported by staff, resident, relative, visitor or others but has not yet been investigated, and if verified, could be noncompliance with the Federal requirements related to mistreatment, , exploitation, neglect, or abuse…”  Given this, the requirement is to report before any investigation or even assessment of whether the incident could have occurred.  Essentially, if it were verified, and could be abuse, then it must be immediately reported, even if further investigation would almost assuredly disprove the allegation, i.e., if there was urine in his milk, it could be abuse (“No, no!” said the Queen. “Sentence first—verdict afterwards.” —Chapter 12, Alice’s Evidence).

You may recall that the Elder Justice Act was enacted in 2010, now codified in LTC regulations as F Tag 608. The Elder Justice Act addressed the “reasonable suspicion” of crimes against elders and dependent adults, which included abuse, and thus made it mandatory to engage law enforcement rather than solely reporting to State licensing and Ombudsman.  The requirement was that all those who worked with elders and dependent adults were required to report the reasonable suspicion of a crime to law enforcement and the Ombudsman and State Survey Agency, with a 2- hour reporting window for “serious bodily injury.” We were given a 24- hour reporting window for all other abuse or neglect. Though the language of F608 focused on “reasonable suspicion” it is hard to imagine an alleged crime that would not fall under the various reporting categories in F609, thus invoking the mandate to report within 2 hours and without the “reasonableness” standard.  Fast forward to 2017 where our F Tags were re-numbered and new ones were added. 

Here are the major changes: 

  1. New F tag 609 broadens the definitions of abuse and reporting to include “injuries of unknown origin that cannot be explained” and the vague term “mistreatment.”  It is noteworthy that “mistreatment” is defined in 24 CFR 483.5 as “inappropriate treatment or exploitation of a resident” – Does “inappropriate” do any thing to clarify “mistreatment?”  Also, “inappropriate” seems vague and highly subjective; potentially “arbitrary and capricious” in legal terms…
  2. The definition of “alleged violation,” appears to leave no latitude to not report even clearly false or even categorically impossible verbalizations as “if reported…but has not yet been investigated, and, if verified could be…” (such as an allegation that a resident was just raped by a Martian—If substantiated, this WOULD constitute abuse of a vulnerable elder, correct?)
  3. F 609 requires reporting to the Administrator (in addition to law enforcement, Ombudsman and State Survey Agency).  Are administrators working 27/7/365? Note there is no time frame or “designee.” 
  4. Time frames are tightened.  Although a first read suggests the time frames for reporting are the same, when you read the law more closely and look at the interpretive guidelines, it appears there is a further intensification of reporting requirements. F 609 stipulates there is a two-hour window for BOTH telephonic and fax reporting any allegation of abuse or neglect, whether serious body injury occurs or not.  While there is a variation allowing for a 24 hour window in some cases, the wording “…or not later than 24 hours if the events…do not involve abuse…” to support this 24 hour window are challenging for line staff to interpret, thus perhaps making a 2 hour window a safer option in all cases. 
    • It appears that Ftag 609 essentially supplants Ftag 608, given the wording “…all alleged violations involving abuse, neglect, exploitation, or mistreatment, including injuries of unknown source and misappropriation of resident property, are reported immediately, but not later than 2 hours after the allegation is made…” which, as noted would seem to overlap with nearly any potential crime.
  5. Mandate to complete a facility investigation within five days and send to the State Survey Agency. F tag 610 provides a NEW requirement for the facility to complete a FACILITY investigation of potential abuse or neglect and send a report to the State Survey Agency “…within 5 working days of the incident.”
    1. Perhaps this was to address the issue that some facilities delay investigation, expecting the State Survey Agency to investigate and make their own conclusions. CFR 483.12(c )(1-4) states the facility must investigate its own allegations, prevent further potential abuse, neglect exploitation or mistreatment while the investigation is in process and report the results of all investigations to the administrator or his or her designated representative and to other officials in accordance with State law, including the State Survey Agency, within five working days of the incident, and if the alleged violation is verified, appropriate corrective action must be taken.” 
    2. We are unaware of any state laws requiring other reporting locations or of other regulations specifying the facility to send abuse investigations outside the facility, other than to the State Survey Agency (noted above). We are wondering how we can word these investigations in a manner to protect resident and staff privacy, to promote a just culture and truth-telling, and to contain the correct legal-ese. We suspect this would not be framed like an incident report or contain all QAPI components, and facilities should consider how they will exclude privileged QAPI deliberations and processes, but would instead develop some shorter more general response based on the regulatory elements (see F Tag 610 Guidance).
  6. Change in “reasonable suspicion?” Doesn’t “reasonable suspicion” keep me from having to file clearly false reports as it did for certain professionals under CA WIC 15630 or the EJA?
    1. F 609 also appears to remove any consideration of reasonable suspicion. Reasonable suspicion was sometimes thought of as a clinical exemption. This is the concept that licensed clinicians (physician and surgeon, a registered nurse, or a psychotherapist) may be able to exercise some judgement (WIC 15630(b)(C)(3)(A)). Without the concept of reasonable suspicion, would clinicians now be obligated to report any verbalization or report no matter how far fetched?  The answer appears to be yes.  It is not uncommon that certain residents verbalize what could be statements of abuse or mistreatment, etc., often due to disorientation, delirium, delusions, manipulation, or perseverative accusatory statements; sometimes verbalizing these any time someone comes into contact with them, e.g., “good morning Mr. Jones; ‘they hit me, they hit me, they hit me, they hit me…’” based on long-standing and well-documented delusions or perseveration resulting from brain injury. 

Implications of the new regulations

  1. Increased denominator of abuse complaints, most unsubstantiated, can make the problem of “abuse” in long term care appear to skyrocket.
    • The likely “increase” in abuse reports will be used by certain “advocacy” organizations to “show” or “prove” dramatic increases in abuse and mistreatment of residents, and then to justify further efforts to “protect” residents, and demonize our profession.
  2. Resident care will suffer – large amounts of staff time will be diverted from care for other residents to report and per F609 and to investigate per F610 for clearly erroneous “allegations.”
  3. There are more opportunities to be found deficient due to process errors rather than bona fide resident safety issues as surveyors investigate the processes of investigating—when was staff taken off work, who did the investigation, how was it done, when were they returned and so on.
  4. Per feedback from law enforcement and other regulators, the explosion in clearly false reports has created  a similar problem of time away from other important work Abuse investigations by these agencies may be delayed due to staff overwhelm, thus creating a concern that responses to true abuse may be delayed.
  5. Interdisciplinary providers may be reluctant to engage residents in conversations that may result in abuse complaints. Innocent questions asking if a resident still believes food is poisoned or “how are you getting along with staff” may uncover persistent delusions or minor complaints that would then need to be reported. A possible unintended consequence is that people may avoid conversations about, or documentation of issues which may be considered abuse, or even denying the conversations occurred. For example, the patent yelled “you keep hurting me” during care we can imagine the more meticulous facilities driven crazy completing reams of abuse complaints and investigations, while the facilities this may be directed at (i.e., those that actually fail to report) may ignore the new requirement as they have done before. This may be similar to what some suggest is done in other areas (you identify fewer pressure ulcers by not reporting; your pain quality measure improves if you do not really ask, or pre-medicate to eliminate pain before asking) the new requirements may unintentionally create pressure for some facilities or staff to avoid reporting or interactions that might lead to reporting, thus actually jeopardizing legitimate detection and reporting of abuse or neglect.
  6. Aggrieved or otherwise dissatisfied individuals in a facility may use reporting of trivial, or even false issues to harm staff and the facility.  Furthermore, self-reports by these individuals of alleged abuse, etc., which, if the facility did not identify and report as well may subject the facility to consequences for “failing” to report.

MDs Still may not think this is their responsibility—but it is

How many MD clinicians have completed a telephonic or paper abuse reporting form? Based on my informal survey of peers, we would say not many are familiar with the form or have ever completed one. 

How many have at some time heard a complaint of potential mistreatment, e.g., not answering call light? Not getting water?  A staff member being mean? The CIA interrogating a resident all night?. Did you believe that you did enough by telling the nurse? Are you ready to report to the Administrator, CDPH, Law Enforcement and the Ombudsman within 2 hours and by telephone and fax? Do you know the numbers to use? If you have made the call and the multiple faxes?  If so, you know it is time-consuming. You will have to report, document, and then be ready to receive calls and/or visits from law enforcement, the Ombudsman and the Department of Public Health. 

Not only must an individual report, but you must assure that the report is also made immediately to the facility because the facility will be evaluated on the timing of their interventions, “Ms. Smith needs her vitals checked again, can we start an IV for fluids and a stat antibiotic for her UTI which I think is causing delirium, and by the way she noted that a strange man entered her room and touched her private areas a few nights ago and I am calling the Sheriff now and will fax the SOC 341.”

You will have to make sure the nursing home knows about it so they can remove potentially offending staff, begin their investigation and assess the resident for physical or emotional distress on a routine basis.

While we certainly support the need to have strong reporting requirements to protect residents, we are concerned that the new F Tags have moved well beyond this and actually harm our ability to provide excellent care and promote resident safety.

State Operations Manual for F Tags 609-610 f.pdf (at page 150) SOC 341

Note: the preceding article does not reflect the opinions of the County of San Diego, CALTCM, or any legal advice, but is the beginning of a conversation on new regulations and their possible implications. For legal advice for your situation, please seek legal counsel.

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