Blog

Legal Updates in Long Term Care – The Elder Justice Act

By:  Brian N. Rath, Esq. and Megan S. Mueller, Esq. 

Brian N. Rath, Esq. and Megan S. Mueller, Esq. of Buchanan Ingersoll & Rooney, P.C., presented “Legal Updates in Long Term Care” at the New Jersey Chapter meeting on June 9, 2011.  Focusing on the impact of health care reform upon the long term care industry, the presentation addressed various newly enacted compliance, reporting and transparency requirements, including, but not limited to the new requirements imposed by the enactment of the Elder Justice Act.  We are taking this opportunity to provide a brief summary of the affirmative obligations imposed upon certain licensed nursing facilities pursuant to the Elder Justice Act, which became effective on March 23, 2010, as well as provide update due to recent guidance from CMS concerning these obligations.

Enacted in connection with the Patient Protection and Affordable Care Act, the Elder Justice Act amends the Social Security Act and establishes a federal elder justice program to prevent, detect, treat, intervene in and prosecute elder abuse, neglect, and exploitation and improve long term care.  While the Elder Justice Act implements a number of measures targeting elder abuse, neglect and exploitation, the most critical for licensed nursing facilities is the mandatory reporting of suspected elder abuse crimes and employee protection from retaliation for such reporting.

Specifically, the Elder Justice Act mandates that a long-term care facility, that receives at least $10,000 in Federal funds must annually notify all covered individuals, including each individual who is an owner, operator, employee, manager, agent, or contractor of the long-term care facility (“Covered Individuals”), of the individual’s obligation to report any reasonable suspicion of a crime against any individual who is a resident of, or is receiving care from, the facility.  The mandatory report must be made to the State Agency (on behalf of Secretary of HHS) and at least one local law enforcement authority, within very strict time limits.  If the suspected crime results in serious bodily injury, the mandatory report must be made immediately and in no event later than 2 hours after forming the suspicion.  Alternatively, if the suspected crime does not result in serious bodily injury, the report must be made no later than 24 hours after forming the suspicion.

Additionally, the Elder Justice Act both: (i) prohibits long-term care facilities from retaliating against an employee who reports or causes a report to be made in accordance with the requirements of the Act, and (ii) requires the facility to conspicuously post a sign specifying the rights of employees under the Elder Justice Act, including a statement that an employee may file a complaint with the Secretary of HHS against a long-term care facility that violates the provisions of the Elder Justice Act and information with respect to the manner of filing such a complaint.

The penalties for failure to comply with these mandatory requirements include civil monetary penalties up to $200,000 (or $300,000 if the violation is deemed to exacerbate the harm to the victim), potential exclusion from participation in all Federal health care programs, and potential ineligibility for Federal funds in the event that a long-term care facility employs an excluded individual during the period of such exclusion.  Moreover, the Elder Justice Act imposes additional penalties for retaliation against a covered individual for complying with the mandatory reporting requirements, including civil monetary penalties up to $200,000 and possible exclusion from participation in Federal health care programs for a period of 2 years.

Importantly, on June 17, 2011, CMS issued guidance to the State Agencies confirming the current obligations of long-term care facilities pursuant to the Elder Justice Act and directing that all reporting must be made to at least one local law enforcement agency and the State Agency (in  fulfillment of the statutory reporting requirement to HHS).  CMS highlights the possible deficiency citations for a SNF/NF for noncompliance and further outlines certain necessary next steps towards compliance, as follows:  (1) determine whether the facility receives at least $10,000 in federal funding; (2) consider coordinating with State and local law enforcement to determine what actions are considered crimes in the facility’s jurisdiction, thus triggering the reporting requirements; (3) if applicable, review and revise existing policies, procedures and compliance plans to reflect the new mandatory reporting requirements and consider whether to designate a single individual within the facility to be responsible for such reporting, as CMS has confirmed that multiple Covered Individuals may file a single report that includes information about the suspected crime from each Covered Individual and the identification of all Covered Individuals making the report; (4) educate all Covered Individuals concerning their mandatory reporting obligation and establish a plan for implementing the annual notification to all such Covered Individuals concerning same; (5) post a sign in a conspicuous location in the facility that identifies the rights of employees pursuant to the Elder Justice Act; (6) ensure compliance with the prohibition upon retaliation.  Should you have any questions concerning these new requirements or necessary steps towards compliance, please do not hesitate to contact the authors at brian.rath@bipc.com or megan.mueller@bipc.com.