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“Managing employee” is identified as an individual, including a general manager, business manager, administrator, director or consultant, who directly or indirectly manages, advises, or supervises, any element of the practices, finances, or operations of the facility.
Elder Justice Act -- Report Reasonable Suspicion of Crime
Effective March 2010, an owner or operator of a long term care facility certified by Medicare and/or Medicaid shall notify each owner, operator, employee, manager, agent, or contractor of a long-term care facility of that individual’s obligation to report to the Secretary and 1 or more law enforcement entities any reasonable suspicion of a crime against any individual who is a resident of, or is receiving care from, the facility.
• If the event that causes the suspicion resulted in serious bodily injury, the individual shall report the suspicion immediately, but not later than 2 hours after forming the suspicion.
• If the event that caused suspicion did not result in serious bodily injury, the individual shall report the suspicion not later than 24 hours after forming the suspicion.
• While this reporting requirement went into effect on March 23, 2010, HHS has not set up any type of “hotline” or number to call to submit report within the 2 hour to 24 hour timeline.
• No regulations have been promulgated to provide additional details or guidance.
(3) Develop and implement policies and procedures to ensure that employees and other required reporters are educated on the provisions in this section, including guidance regarding “reasonable suspicion,” and “crime.”
Guidance may vary from state to state and will require judgment call on behalf of reporter.
Special Focus FacilitiesEffective October 1, 2010, the number of Special Focus Facilities (SFF”) per State will be adjusted to reflect current population of nursing homes in each State and a ten percent increase in slots nationally.
•North Carolina has 4 slots•South Carolina has 2 slots•Georgia has 3 slots
Initial Selection Notification:• State will notify facility that it has been selected due to
persistent pattern of poor quality on last three surveys.
• State will notify facility of potential early termination of provider agreement if there is not significant improvements in next four standard surveys or 24 months, whichever occurs earlier.
“Significant improvement” is defined as no deficiencies that are at or above an “F” level.
Notification of Removal from SFF Designation• Facility can “graduate” from SFF program when
complete two consecutive standard surveys with no deficiencies at “F” level or greater.
• State shall notify facility, Administrator, Governing Body, Owner/Operators, State Ombudsman and State Medicaid Director of the facility's removal from SFF program.
Reduction of civil monetary penalties in certain circumstances.
Beginning March 2011, the Secretary has discretion to reduce a penalty by up to 50% where the facility first self reports the deficiency and then self corrects it within 10 days after being notified of the imposition of the penalty. However, no reduction will be permitted if:
1. It is a repeat deficiency, and the Secretary already reduced a penalty imposed on the facility in the preceding year; or
2. The penalty is imposed for a deficiency that results in a pattern of harm or widespread harm, immediately jeopardizes the health or safety of a resident, or results in the death of a resident.
The Secretary may provide for placement of the civil money penalty collected into an escrow account on the date on which the IDR process is completed or 90 days after the date of the imposition of the penalty, whichever is earlier.
Regulations in Final Rule Stage to be effective March 23, 2011• July 9, 2010, DHHS proposed regulations to implement this section
of Act.
• Regulations are in the Final Rule Stage and set to become effective March 23, 2011.
Regulations provide:Placing penalty funds in escrow pending appeal. A facility will no longer be able to wait until its appeal is completed to pay the imposed CMP. The CMP can be placed in an escrow account either on the date the independent informal dispute resolution process (“IIDR”) is completed or 90 days after imposition of the CMP, which ever date is earlier. The CMP will be returned with interest if the facility is successful in its appeal.
(d) include notification to an involved resident or resident representative as well as the state ombudsman and be give these individuals the opportunity to provide written comments; and
(e) be conducted by the State, CMS, or an entity approved by the State and CMS, who has no conflict of interest with the survey process.
If an entity wants to use the IDR process the facility will have to pay for the costs associated with that process.
The actual fee is not currently specified, but it may be incorporated into rule when it becomes final on March 23, 2011.
Regulations in Final Rule Stage to be effective March 23, 2011
50% reduction.
The Secretary can reduce CMPs resulting in a “D” through “G” level deficiency that was not cited in the prior year by 50% under the following conditions:
(a) facility self-reports noncompliance to CMS or the State before it is identified by CMS or the State;
(b) correction of the noncompliance must have occurred within ten days of the date the deficient practice was identified.
Notification of Facility Closure• An administrator of a facility must submit to the Secretary, the long-
term care ombudsman, residents of the facility and the resident’s legal representatives or responsible parties, written notification of an impending closure.
• Notice must be given at least 60 days prior to the closure, unless the Secretary is terminating facility’s participation in Medicare program resulting in closure, then the Secretary shall identify date by which notice must be given.
• The notice shall include a plan for the transfer and relocation of the resident’s prior to closure. The plan for transfer and relocation shall be approved by the State.
• Designed to provide more and timelier information.
• The reform bill requires the State to submit nursing home survey and certification data, including enforcement actions, to CMS at the same time as it sends notice to the facility of the survey results and enforcement action.
Information to be included on Nursing Home Compare website
Additional information includes:
(1) Staffing data for each facility, including census data, hours of care provided per resident per day, and staffing turnover (note that staffing data is not subject to the March 2011 implementation date);
(2) Links to state websites with survey and certification information, Form 2567 reports, plans of correction, and information to help consumers understand the reports;
(3) A new standardized complaint form and instructions on how to file a complaint;
(4)A summary of the number, type, severity, and outcome of substantiated complaints at each facility;
(5)A summary of adjudicated instances of criminal violations by employees of a nursing home within the facility by type, such as abuse, neglect, or other crimes that resulted in serious bodily injury, and the penalty for the violations;
(6) Information on the status of facilities in the Special Focus Facility Program; and
(7)The number of civil monetary penalties assessed against the facility, employees, contractors, and other agents.
• The State is to establish a complaint resolution process in order to ensure that there is no retaliation against an individual that files a complaint.
• The resolution process shall include:
(1) procedures to track complaints received;
(2) procedures to determine severity of complaint and investigation of the complaint; and,
By March 2012, facilities will be required to submit electronically direct care staffing information, including information with respect to agency and contract staff based on payroll and other verifiable and auditable data in a uniform format.
The information submitted shall include, but not be limited to:
(1) the category of work a certified employee performs, such as whether the employee is a registered nurse, licensed practical nurse, licensed vocational nurse, certified nursing assistant, therapist, or other medical personnel;
(2) resident census data and information on resident case mix;
(3) information of employee turnover and tenure; and
(4) the hours of care provided by each category of certified employees.
• Agency and contract staff data must be reported separately from information on employee staffing.
• The procedure and timing of the electronic reporting as well as any additional information to be submitted will be established after consultation with the ombudsman program, consumer advocacy groups, provider stakeholder groups, employees, and their representatives.
Expenditure Reporting• Effective March 2012, skilled nursing facilities must
separately report expenditures for wages and benefits for direct care staff, breaking out, at a minimum, registered nurses, licensed professional nurses, certified nurse assistants, and other medical and therapy staff.
• The Secretary is to redesign the cost report form by March 2011 so as to allow such reporting and make the information on such expenditures readily available to interested parties upon request.
Nursing facilities must implement compliance and ethics programs that are “effective in preventing and detecting criminal, civil, and administrative violations under this Act and in promoting quality of care” by March 2013.
• Regulations to provide additional guidance on implementation and enforcement of this section must be issued by March 2012.
• Three years after the regulations are in place, the Secretary must assess whether such programs led to changes in deficiency citations, quality performance, or quality of care, and report the results of the assessment to Congress.