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substantiate the allegation. Not all allegations of abuse or neglect are substantiated. Nursing facilities are required to report the results of investigations of these allegations to the nursing facility administrator or designee, State survey agency, and to other officials in accordance with State law within 5 working days of the incident.16 In December 2004, CMS sent a memorandum to State survey agency directors clarifying the nursing facility reporting regulations at 11 42 CFR § 483.13(c). See also CMS, State Operations Manual (Internet-Only Manual), Pub. 100-07, Appendix PP: Guidance to Surveyors for Long Term Care Facilities, F226, § 483.13(c), Staff Treatment of Residents. 12 Ibid. 13 Nursing facilities may become aware of allegations of abuse or neglect through many sources. These sources may include: residents, family members of residents, and nursing facility staff. 14 42 CFR § 483.13(c)(2). State law may stipulate that nursing facilities report allegations of abuse to additional State officials beyond those specified in Federal requirements. 15 Generally, if a State survey agency determines that a nursing facility fails to comply with a specific requirement (e.g., failure to report an allegation of abuse or neglect), the facility may receive a deficiency citation. For the purposes of this study, we did not review deficiency citations or actions taken for noncompliance by State survey agencies. 16 42 CFR § 483.13(c)(4). State law may stipulate that nursing facilities report investigative results to additional State officials beyond those specified in Federal requirements. No State law can override the obligation of a Medicare and/or Medicaid certified nursing facility to fulfill the requirements at 42 CFR § 483.13(c), including 42 CFR §§ 483.12(c)(2) and (4). Therefore, States may not establish longer timeframes for reporting than those mandated in the requirements at 42 CFR §§ 483.13(c)(2) and (4). Nursing Facilities’ Compliance With Requirements for Reporting Allegations of Abuse or Neglect (OEI-07-13-00010) 3 42 CFR §§ 483.13(c)(2) and (4).17 The memorandum reiterated the reporting of allegations of abuse or neglect and the results of the investigations by nursing facilities to the State survey agency. In this memorandum, CMS also clarified the requirement that nursing facilities report allegations of abuse or neglect immediately by defining the term “immediately” to mean as soon as possible, but ought not to exceed 24 hours after discovery of the incident, in the absence of a shorter State timeframe requirement.18 Reporting Reasonable Suspicions of Crimes Section 6703(b)(3) of the Elder Justice Act of 2009 amends the SSA by adding section 1150B.19 Section 1150B requires owners, operators, employees, managers, agents, or contractors of nursing facilities (covered individuals) in applicable nursing facilities to report any reasonable suspicion of crimes committed against a resident of that facility to the appropriate entities (e.g., law enforcement entities).20 The nursing facility’s responsibility to report all allegations of abuse or neglect is separate from a covered individual’s responsibility outlined in Section 1150B. Section 1150B requires applicable nursing facilities to annually notify covered individuals of their obligation to report to the appropriate entities any reasonable suspicions of a crime.21 Nursing facilities may not retaliate against covered individuals who lawfully report a reasonable suspicion of a crime.22 Further, nursing facilities are required to clearly post a notice for employees specifying employees’ rights to file a complaint under Section 1150B.23 17 CMS, Memorandum to State Survey Agency Directors, S&C-05-09, Clarification of Nursing Home Reporting Requirements for Alleged Violations of Mistreatment, Neglect, and Abuse, Including Injuries of Unknown Source, and Misappropriation of Resident Property, December 16, 2004. 18 Ibid. 19 Elder Justice Act of 2009 (EJA), P.L. 111-148, title VI, subtitle H, § 6703(b)(3), adding SSA § 1150B, 42 U.S.C. § 1320b-25. The EJA was enacted as part of the Patient Protection and Affordable Care Act (PPACA). The PPACA (P.L. 111-148, enacted on March 23, 2010) was amended by the Health Care and Education Reconciliation Act of 2010 (P.L. 111-152, enacted on March 30, 2010). Together, these laws are referred to as the Affordable Care Act (ACA). 20 SSA § 1150B. Applicable nursing facilities include those facilities that receive at least $10,000 in Federal funds under the SSA during the preceding year. Further, the law of the applicable political subdivision in which the long-term-care facility is located defines the meaning of the phrase “reasonable suspicion of a crime.” 21 SSA § 1150B(a)(2). 22 SSA § 1150B(d). 23 SSA § 1150B(d)(3). Nursing Facilities’ Compliance With Requirements for Reporting Allegations of Abuse or Neglect (OEI-07-13-00010) 4 In June 2011, CMS sent a memorandum to State survey agency directors that described the regulations related to reporting reasonable suspicions of crimes set forth in Section 1150B and provided answers to frequently asked questions.24 In this memorandum, CMS also indicated that nursing facilities’ policies should “address the mechanism for documenting that all covered individuals have been notified annually of their reporting obligations.”25 The memorandum further indicated that “[e]xamples of such documentation may include a copy of a notice or letter sent to
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