The Centers for Medicare and Medicaid Services (CMS) has issued an updated S&C memo on nursing home staff reporting the reasonable suspicion of a crime. The memo from CMS to state survey agencies was originally issued in June 2011, revised in August 2011, and once again revised in January 2012. The January updates appear in the Definitions (appendix one) and Questions and Answers sections. Note: when this article was written, the CMS updated memo was not yet posted on the CMS website; however, it is available on the Care Providers of Minnesota website.

A few of the updates in the memo are particularly helpful. The terms “agent” and “contractor” are further defined in Appendix One. These definitions will assist providers in determining who is included in “covered individuals.”

• Agent: Title 42 of the Code of Federal Regulations, Part 455.101 defines “agent” as any person who has been delegated the authority to obligate or act on behalf of a provider.
• Contractor: The term “contractor” is defined in Black’s law library as any person who enters into a contract, but is commonly reserved to designate one who, for a fixed price, undertakes to procure the performance of works on a large scale, or the furnishing of goods in large quantities, whether for the public or a company or individual.

The question and answer section of the memo also added some helpful bits of information:

Q. What is the difference between reporting incidents to the SA and reporting the suspicion of a crime to the SA and local law enforcement?

A. Current regulation requires a facility to report incidents: §483.13(c)(2) The facility must ensure that all alleged violations involving mistreatment, neglect, or abuse, including injuries of unknown source and misappropriation of resident propert, are reported immediately to the administrator of the facility and to other officials in accordance with state law through established procedures (including to the state survey and certification agency). This requirement has not changed, and the mechanics of complying with this regulation are the same as they have been. Reporting the suspicion of a crime is the responsibility of “covered individuals.” There may be instances where an occurrence will require both the facility to report the alleged violations involving mistreatment, neglect, or abuse, including injuries of unknown source and misappropriation of resident property, and “covered individuals” must report the suspicion of a crime to the state survey agency and to local law enforcement.

Q. If a suspicion of a crime is reported by a covered individual, and the occurrence also meets the requirements for incident reporting, must the facility report the incident using the usual incident reporting mechanisms?

A. Current regulation requires a facility to report incidents: §483.13(c)(2) The facility must ensure that all alleged violations involving mistreatment, neglect, or abuse, including injuries of unknown source and misappropriation of resident property, are reported immediately to the administrator of the facility and to other officials in accordance with state law through established procedures (including to the state survey and certification agency). This requirement has not changed, and the mechanics of complying with this regulation are the same as they have been. Reporting the suspicion of a crime is the responsibility of “covered individuals.” There may be instances where an occurrence will require both the facility to report the alleged violations involving mistreatment, neglect, or abuse, including injuries of unknown source and misappropriation of resident property, and “covered individuals” must report the suspicion of a crime to the state survey agency and to local law enforcement.

Q. Is it acceptable for a facility in its compliance policy to state that covered individuals may either (a) report reasonable suspicion of crime directly to the state survey agency and law enforcement, or (b) report reasonable suspicion of crime to the facility administrator who will then coordinate timely reporting to the state survey agency and law enforcement on behalf of all covered individuals who made the report to the administrator?

A. Yes, covered individuals may (a) report reasonable suspicion of crime directly to the State Survey Agency and law enforcement, and/or (b) report reasonable suspicion of crime to the facility administrator, who will then coordinate timely reporting to the state survey agency and law enforcement on behalf of all covered individuals who made the report to the administrator. Reporting to the administrator would suffice if an individual has clear assurance that the administrator is reporting it. Reports should be documented and the administrator should keep a record of the documentation. Everyone who saw a possible crime has the obligation to report it. The administrator could coordinate the reports submitted, but each person has to report. In addition, facilities cannot prohibit or circumscribe reporting directly to law enforcement even if they have a coordinated internal system.

Q. Is it sufficient to send notification by fax to Certification as usual or is it required that we contact a person? If it is a person, will that individual be available on nights and weekends? If yes and different from usual contact numbers, please forward that information.

A. Reporting may be done by telephone, electronic mail, fax or other means within the specified timeframes of the law. Unless otherwise specified, you would contact the state survey agency contact number, which is the state agency that conducts the Medicare and Medicaid certification surveys. It is important to keep in mind that the time frames for reporting the suspicion of a crime are different and more stringent than time frames related to reporting an incident under CMS regulations.

Nursing facilities interested in learning more about the reporting requirements contained in the Elder Justice Act may want to consider purchasing ($59 for Care Providers of Minnesota members) the 1/24/12 archived webinar presented on this topic.

Doug Beardsley
952.851.2489
dbeardsl@careproviders.org