Nursing Facilities Still Struggle with Abuse Reporting Requirements – By Jonathon E. Cohn, Partner, Arent Fox LLP for Washington Healthcare News
Last month, the Office of Inspector General (“OIG”) published a report entitled, “Nursing Facilities’ Compliance with Federal Regulations for Reporting Allegations of Abuse or Neglect.” The report’s purpose was to determine the extent to which nursing facilities reported allegations of abuse, as well as the extent to which such allegations were reported correctly. According to the report, in 2012, 85% of the nation’s nursing homes reported almost 150,000 incidents of abuse or neglect. The OIG found that 53% of the incidents were correctly reported; that 61% of nursing facilities maintained documentation supporting compliance with the reporting requirements; and that 76% maintained appropriate policies and procedures for reporting allegations and investigation results. The OIG concluded: “It is both required and expected that nursing facilities will report any and all allegations of abuse and neglect to ensure resident safety.” The OIG then recommended that the Centers for Medicare and Medicaid Services (“CMS”) reissue guidance clearly describing the reporting requirements and “reiterate in its guidance that all allegations of abuse or neglect must be reported to the State survey agency, as required by Federal law.”
The OIG’s conclusions are not new. Historically, its audits of abuse reporting and investigations have concluded that the nation’s nursing homes are either underreporting; reporting, but failing to report pursuant to federal standards; and/or inadequately investigating when reports are made. Because the OIG considers the problem to be significant, it implores CMS to take action to correct the problem by reissuing prior guidance.
Certainly, everyone in the nursing home business – owners, operators, and staff, as well as most of the patients and families they serve – understand the importance of reporting abuse. So will reminding the industry of something it already knows do any good? The answer to that may depend on the reason for the problem, i.e., the reporting percentages that the OIG clearly believes are too low. Is it that facilities are intentionally underreporting? Is it that the governing regulations are too vague to give the facility adequate and meaningful notice of when a report is necessary? Is it that a zero tolerance policy for any abuse, suspected or otherwise, by the state and federal enforcement agencies leads to data that tends to reflect underreporting, even if some of the regulations are vague? It is hard to know exactly where the answer lies. While each of these factors may play some role in the OIG’s findings, a significant problem with the data and the OIG report may lie with the methodology utilized.
