An allegation of abuse has been made in your facility—how do you respond? Providers should be well trained and prepared for this possibility, beginning with a clear understanding of the definition of abuse and the related regulations. Per regulatory guidance of F600, “Abuse,” is defined at §483.5 as “the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish. Abuse also includes the deprivation by an individual, including a caretaker, of goods or services that are necessary to attain or maintain physical, mental, and psychosocial well-being. Instances of abuse of residents, irrespective of any mental or physical condition, cause physical harm, pain or mental anguish. It includes verbal abuse, sexual abuse, physical abuse, and mental abuse including abuse facilitated or enabled through the use of technology.” (CMS, 2017) Willful, as used in this definition of abuse, “means the individual must have acted deliberately, not that the individual must have intended to inflict injury or harm.” (CMS, 2017)
Important Steps to Follow:
First and foremost, when there is an allegation of abuse, the victim and other residents must be protected. The facility should remove the alleged perpetrator from resident care areas immediately. Also, actions to prevent further potential abuse while the investigation is in process should be implemented. These actions may include providing one-on-one monitoring as appropriate, suspension of suspected staff member pending the outcome of the investigation, or even initiating discharge process for residents who are a danger to self or others depending on the circumstances of the allegation.
An investigation should be started immediately. The investigation process should include, but is not limited to, review and/or implementation of the following:
- Accident/Incident Report
- Interview with the alleged victim to determine:
- Details of what happened
- Whether he/she can identify the alleged perpetrator and any witnesses
- What occurred prior to, during and immediately following the incident
- Whether he/she reported the allegation to anyone; if so, to whom and what was the response
- Does he/she feel safe, is he/she afraid of anyone, or fearful of retaliation
- Has he/she had past encounters with the alleged perpetrator
- Medical assessment, examination, and treatment for affected individual(s) which may include outpatient treatment (i.e. sexual abuse)
- Preservation of any materials pertinent to the investigation of the alleged abuse or neglect.
- Resident interviews and/or skin evaluations, which may need to include 100% of resident population depending upon situation
- Witness statements, including date and time, circumstances, location(s) and name/signature of individual
- Interviews with staff, including those working at time of incident or others who may have information regarding the resident or incident during the specified time frame
- Interview with alleged perpetrator
- Medical Record review and care plan update as appropriate
- Review of employee files
- Evaluation of staffing patterns and assignments
- Once an allegation of abuse is made known to any staff member, the reporting countdown begins.
- The Elder Justice Act reporting timeline is based on clock time, not business hours.
- §483.12(c) In response to allegations of abuse, neglect, exploitation, or mistreatment, the facility must report immediately.
- The administrator must be immediately notified upon identification of actual or suspected abuse, neglect, mistreatment, injuries of unknown source, and/or misappropriation of resident property.
- The resident’s representative and physician should be notified.
- Results of the investigation should be documented on the Accident/Incident Report.
- Also, results of the investigation must be reported to the proper authorities as required by state law.
- Any actions against an employee involving a court of law should be reported to the State nurse aide registry or licensing authorities, as specified in F606.
- The appropriate corrective actions need to be taken whether this includes termination of the employee, change in policies and procedures as necessary, evaluation of staffing needs, supervision or any other individualized approaches necessary to address the well-being of the resident(s).
- Social Services should be designated to visit the resident, assessing their psycho-social needs, documenting and developing interventions to address any identified needs.
- Any follow-up care should be included in documentation.
- Failure of staff to respond appropriately to allegations of abuse or suspicious injuries of unknown origin can result in severe regulatory liability as well as civil liability.
- Nursing Home Compare has an alert icon when a provider has been cited for an abuse violation in the past year or over each of the past two years, depending on the level of harm.
F609-Reporting Timeframes: Reporting of Suspected Crimes vs. Alleged Violations
|What||Suspected Crimes||Alleged Violations|
|Any reasonable suspicion of a crime||1. All alleged violations of abuse, neglect, exploitation or mistreatment, including injuries of unknown source and misappropriation of resident property
2. The results of all investigations of alleged violations
|Who is required to report||Any covered individual, including the owner, operator, employee, manager, agent or contractor of the facility||The facility|
|To whom||Stage Agency (SA) and one or more law enforcement entities for the political subdivision in which the facility is located (i.e., police, sheriffs, detectives, public safety officers; corrections personnel; prosecutors; medical examiners; investigators; and coroners).||The facility administrator and to other officials in accordance with State law, including to the survey agency and the adult protective services where state law provides for jurisdiction in long-term care facilities.|
|When||Serious bodily injury-Immediately but not later than 2 hours after forming the suspicion.
No serious bodily injury-not later than 24 hours.
|All alleged violations-Immediately but not later than
1. 2 hours -if the alleged violation involves abuse or results in serious bodily injury
2. 24 hours-if the alleged violation does not involve abuse and does not result in serious 24 hours bodily injury.
· Results of all investigations of alleged violations-within 5 working days of the incident.
· If the alleged violation is verified, appropriate corrective action must be taken.
F608-Definition- “Serious bodily injury” means an injury involving extreme physical pain; involving substantial risk of death; involving protracted loss or impairment of the function of a bodily member, organ, or mental faculty; requiring medical intervention such as surgery, hospitalization, or physical rehabilitation; or an injury resulting from criminal sexual abuse.
Federal Regulation §483.12(b)(4) requires a facility to develop and implement written policies and procedures that establish coordination with the QAPI program. All abuse & neglect allegations need to be reviewed by the QAPI committee for the following:
- Ensure appropriate actions were taken in response to the allegation.
- Ensure a complete and through investigation was completed.
- Evaluate contributing factors and ensure appropriate corrective actions were established and followed.
- Evaluate trends and ensure appropriate actions were taken in response to any identified trends.
Centers for Medicare & Medicaid Service. https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/downloads/SCLetter11_30.pdf
Centers for Medicare & Medicaid Service. https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/GuidanceforLawsAndRegulations/Downloads/LTC-Survey-FAQs.pdf
Centers for Medicare & Medicaid Service. https://www.cms.gov/Regulations-and-Guidance/Legislation/CFCsAndCoPs/Downloads/som107ap_pp_guidelines_ltcf.pdf
Contact Proactive for abuse prevention and response training or for a comprehensive review of your existing program and processes [email protected]