Usually, we are asked to answer questions about proper procedures – particularly reporting these alleged incidents to external law enforcement.  Our position has always been that suspected criminal activities should be reported – either to the sheriff/police, or DSS.

We just became aware that there is a hidden provision in the PPACA (affordable care act a/k/a Obama Care) that may impose career ending sanctions on anyone who doesn’t report these alleged crimes.  The law applies to any Nursing Facility that receives >$10,000 from Medicare/Medicaid (this means 99.9% of all nursing homes).

Every Nursing Facility employee and contractor is covered by the law.  It is pretty clear that any ECP clinician working in a Nursing Facility is affected.

The ‘good’ news is that the Secretary of CMS is trying to figure out how to implement enforcement of the law – that implies they aren’t planning on applying the law until they’ve written regulations.

Also, it is the obligation of the owner/administrator to educate you directly about the provisions of the law, and how to report.  While this doesn’t absolve you of a duty to report, it does place the legal burden on them to establish a mechanism within the facility.

What does this mean to you?  IF YOU SUSPECT THAT A CRIME WAS COMMITTED AGAINST A PATIENT, YOU OR THE FACILITY MUST REPORT IT IMMEDIATELY.

What problems can this cause?   In the past some facilities preferred to look at certain events as ‘behavioral’ or ‘training’ problems – that is the case with assault.  Examples are one patient striking another or a staff member striking a disruptive patient.  Under this law those are reportable crimes.  If anyone suspects a reportable crime occurred, they are obligated to report it.

What should ECP do? Our Medical Directors should discuss this with their administrators – we need to establish clear protocols for reporting suspected criminal activity – even if CMS hasn’t given reporting directions.  The law is in effect and the penalties are severe.

We don’t recommend you go looking for problems, but if a facility staff member tells you about a suspected problem, SOMEONE needs to file a report.  You should immediately tell the Administrator and/or the DON about the suspected issue and inform them of your collective legal obligation to notify law enforcement (or perhaps DSS).

Here is the actual law for your reference.

(3) REPORTING OF CRIMES IN FEDERALLY FUNDED LONGTERM
CARE FACILITIES.—Part A of title XI of the Social Security

_{Act (42 U.S.C. 1301 et seq.), as amended by section 6005,}
is amended by inserting after section 1150A the following new
section:

_{‘‘REPORTING TO LAW ENFORCEMENT OF CRIMES OCCURRING IN}

_{FEDERALLY FUNDED LONG-TERM CARE FACILITIES}

_{‘‘SEC. 1150B. (a) DETERMINATION AND NOTIFICATION.—}

_{‘‘(1) DETERMINATION.—The owner or operator of each longterm}

_{care facility that receives Federal funds under this Act}

_{shall annually determine whether the facility received at least}

_{$10,000 in such Federal funds during the preceding year.}

_{‘‘(2) NOTIFICATION.—If the owner or operator determines}

_{under paragraph (1) that the facility received at least $10,000}

_{in such Federal funds during the preceding year, such owner}

_{or operator shall annually notify each covered individual (as}

_{defined in paragraph (3)) of that individual’s obligation to}

_{comply with the reporting requirements described in subsection}

_(b).

_{‘‘(3) COVERED INDIVIDUAL DEFINED.—In this section, the}

_{term ‘covered individual’ means each individual who is an}

_{owner, operator, employee, manager, agent, or contractor of}

_{a long-term care facility that is the subject of a determination}

_{described in paragraph (1).}

_{‘‘(b) REPORTING REQUIREMENTS.—}

_{‘‘(1) IN GENERAL.—Each covered individual shall report to}

_{the Secretary and 1 or more law enforcement entities for the}

_{political subdivision in which the facility is located any reasonable}

_{suspicion of a crime (as defined by the law of the applicable}

_{political subdivision) against any individual who is a resident}

_{of, or is receiving care from, the facility.}

_{‘‘(2) TIMING.—If the events that cause the suspicion—}

_{‘‘(A) result in serious bodily injury, the individual shall}

_{report the suspicion immediately, but not later than 2}

_{hours after forming the suspicion; and}

_{‘‘(B) do not result in serious bodily injury, the individual}

_{shall report the suspicion not later than 24 hours}

_{after forming the suspicion.}

_{‘‘(c) PENALTIES.—}

_{‘‘(1) IN GENERAL.—If a covered individual violates subsection}

_(b)—

_{‘‘(A) the covered individual shall be subject to a civil}

_{money penalty of not more than $200,000; and}

_{‘‘(B) the Secretary may make a determination in the}

_{same proceeding to exclude the covered individual from}

_{participation in any Federal health care program (as}

_{defined in section 1128B(f)).}