The OIG’s September 2008 Supplemental Compliance Guidance for Nursing Facilities includes resident safety as a “risk area” upon which providers should focus in their corporate compliance programs. Resident safety includes both staff-to-resident abuse and neglect (including injuries of unknown origin) and resident-to-resident abuse and/or family-to-resident abuse.
The Federal OBRA regulations which govern nursing facility care for Medicare and Medicaid-certified providers guarantee residents the right to be free from abuse and neglect. Based on this specific resident right, providers have a legal obligation to take steps to protect residents from abuse and neglect from anyone coming in contact with a resident, but particularly from facility staff and other residents.
The OIG’s Supplemental Guidance acknowledges that no facility can absolutely guarantee that abuse will not occur against a resident, but stresses the steps that facilities can take to minimize this risk and avoid it wherever possible. The OIG’s recommended steps, which should be addressed in a facility’s compliance program, include:
- Development and implementation of, and training on, policies and procedures which prohibit abuse and neglect, including injuries of unknown origin, by facility staff, other residents and visitors/family members.
- These policies should address the independent issues of: preventing abuse and neglect; reporting suspicions or allegations of abuse or neglect; thoroughly investigating such allegations, reports or suspicions; and responding to allegations or suspicions of abuse or neglect by anyone to prevent their recurrence.
- A key element of these policies and procedures must be a system of 24-hour confidential reporting of suspicions or allegations of abuse or neglect by anyone coming in contact with residents.
- An on-going program of educating staff, family members and visitors regarding the: signs of possible abuse and neglect, the prohibition against such treatment, the methods of reporting and responding to such allegations and the potential results of abuse or neglect, including discipline for facility staff (including termination); the facility’s obligation to report and fully investigate such allegations consistent with State law; and the potential for a referral to State law enforcement officials and agencies such as State Adult Protective Services where abuse or neglect is suspected or confirmed by the facility’s investigation.
- Mechanisms to ensure that facility staff, facility consultants, family members, and visitors are constantly reminded of the prohibition against abuse and neglect. Such mechanisms may include posters, brochures and/or online resources, among others, which are readily and repeatedly available to anyone coming in contact with facility residents.
- Reporting mechanisms for suspicions of abuse or neglect should be available at all times, be confidential at the election of the reporting person(s); and may include anonymous reporting hotlines, drop boxes or similar options that are available 24 hours per day, 7 days per week and protect the identity of the reporter.
- Facilities may want to include in their policies and procedures, and in their practices, an ongoing program of training for all staff, consultants, family members and other visitors that includes the facility’s commitment to prevent abuse and neglect, warning signs of possible abuse and neglect, and methods of reporting such suspicions to senior administrative staff with the authority to respond appropriately.
Resident-to-resident abuse is one of the hardest issues for providers to address in terms of prevention because the signs that one resident may harm another are not always readily apparent, even with the best preadmission and ongoing screening and evaluation. Nonetheless, the OIG has identified this issue as a sub-risk area within the risk area of resident abuse and neglect.
Nursing facility providers, as noted by the OIG, have an obligation to take reasonable steps to prevent resident-to-resident abuse. Some of the specific steps and recommendations included on this issue in the OIG’s September 2008 Supplemental Guidance includes:
- Proper training and orientation, on an on-going basis, for facility staff to sensitize them to the facility’s obligations to prevent such abuse where possible.
- Proper preadmission screening of residents to identify those with the potential for abuse of other residents.
- Continued and appropriate periodic assessment and reassessment of existing residents to identify those with the potential for abusing other residents and to respond appropriately through interventions.
- Thorough resident assessments, comprehensive care plans, and proper staffing assignments to address residents with the potential to harm other residents.
Although not addressed in the OIG’s Supplemental Guidance, providers should remember that under Federal law, one of the factors for discharging a resident is that he or she creates a danger to the safety of other residents. In practice, most State survey agencies seem to expect that facilities take all reasonable steps, prior to discharge, to address and resolve the issue of residents with a propensity to harm fellow residents before discharging a resident on this basis. As such, facilities considering discharge of a resident based on “danger to others” should carefully document their efforts to try approaches short of discharge, including behavior modification, psychosocial interventions and consultations, activity program modifications, roommate changes, medication evaluation and adjustment, and other methods before simply moving to the discharge option. If these efforts have not worked, and discharge seems to be the only viable option, remember the very specific documentation and notice requirements applicable to such discharges provided under Federal regulations at 42 CFR Section 483.12.
Staff-to-Resident Abuse and Neglect
The OIG’s Supplemental Guidance also focuses on staff-to-resident abuse as a sub-risk area under the general risk area of Resident Safety. In this section, the OIG reminds providers that:
- Providers cannot employ individuals found guilty under State law of abusing, neglecting or mistreating residents or those with “a finding entered into a State nurse aide registry concerning abuse, neglect or mistreatment of residents or misappropriation of their property.”
- Effective recruitment, screening and training of staff members is essential to ensuring that such individuals are not hired or allowed to continue employment in a facility.
- Acknowledging the great diversity that exists among State databases for checking the backgrounds of potential and/or current employees, the OIG nonetheless stresses that providers must check those databases that are available, including any in a State where the provider reasonably believes an applicant or employee may have worked. While there is no foolproof way to guarantee that an applicant or employee provides accurate and complete information as part of their past employment history, providers should at minimum require all job applicants to identify all States in which they have previously worked and remind applicants and employees that misrepresenting information on a job application is grounds for immediate termination.
- Facility policies should also require verification and proof of applicable education requirements, licensure, certification, competency evaluations, training and/or accreditation of employees, as appropriate to their job responsibilities. Providers may also want to consider periodic audits of employment records to ensure that ongoing required (by State law or facility policy) training, retraining, continuing education requirements or other training or certification requirements are accomplished and documented in a timely fashion.
Auditing and Monitoring for Resident Safety
We devoted a prior section of this Compliance Guidance to the function of auditing and monitoring your compliance program in the specific context of the risk areas identified by the OIG in its 2008 Supplemental Compliance Guidance and those additional risk areas each facility identifies from its own operations.
In the context of a formal corporate compliance program, auditing and monitoring just means having in place reliable, periodic systems to “audit” or check up on various aspects of facility and corporate operations which are identified in and are a part of your corporate compliance program. The keys to meaningful auditing and monitoring are 1) a workable system that is not overly complex; 2) a reliable system; 3) designated specifics on how the auditing process will work and who will be responsible for making sure it does; and 4) reviewing your auditing processes periodically to ensure that they, like other parts of your operations and business processes, are doing the job they were designed to do.
In the following discussion, we propose a sample auditing and monitoring tool for the risk area of resident safety. This is only a sample and is designed to help facilities think about a method of ongoing self-evaluation of their operations regarding the risk area of resident safety. Each facility should design an auditing and monitoring mechanism appropriate to its operations, staff and unique compliance program. This sample utilizes the threshold questions we developed and recommended in the section of this Compliance Guidance entitled “Making Auditing and Monitoring Practical: A Step-by-Step Approach to Taking the Pulse of Your Operations and Compliance Program.”