All nursing homes that receive more than $10,000 are required by federal law to report any suspicion of crimes against their elderly residents. While there have been reporting problems, the Department of Health and Human Services has vowed to increase enforcement of these federal regulations.
The mandatory reporting requirement, originally a part of the Affordable Care Act, more colloquially known as Obamacare, has two main provisions – both of which carry heftier fines as of November 28, 2017. A violation of these laws can result in a fine of up to $221,000. If the failure to report the suspected crime results in more harm to the resident, the fine increases to $331,000. The assisted living facility will also be fined for retaliating against any employee or resident that reports a suspected crime. The maximum fine allowable for a retaliatory measure is $221,000.
The two main provisions are a little different in what they apply to and whom they apply to, here is a breakdown of the two laws:
- Reasonable suspicion of a crime against a resident.
If any employee reasonably suspects a crime has been committed against a resident, then he or she is obligated by law to report to both the State Survey Agency and a local law enforcement agency within 24 hours. If there is serious bodily injury, then the employee only has two hours to report the suspected abuse. According to the law, these time limits are based on “real time” – as opposed to “business hours.”
- Alleged violations of abuse, neglect, or exploitation.
A facility is required to report any alleged violations of abuse, neglect or exploitation to the facility administrator and State Survey Agency (and, at least in New York, adult protective services.) Notably, this statute also extends to any injuries of an “unknown source” as well as the results of any internal investigations into abuse at the nursing home. Similar to the previous regulation, the facility only has 24 hours to report the alleged violations of abuse. The time-frame narrows to two hours if there is serious bodily injury.
Importantly, both laws require that nursing homes and other assisted living facilities educate their employees and workers about these laws. Ignorance to the mandatory reporting requirements will not lessen their fines or punishments.
Both laws also require facilities (and consequently their employees and workers) to preserve any evidence that could be relevant to an investigation. Therefore, facilities could be in violation of this regulation if they bath an assault victim, destroy documents relating to the alleged abuse, or even if they fail to take a resident to an emergency room after an alleged assault – where a rape kit or other evidence would normally be gathered.
