Ryan P. Whitney, J.D.
Aegis Compliance and Ethics Center, LLP
Elder Abuse Points to Compliance Void
Skilled Nursing Facilities (“SNFs”) continue to struggle combating elder abuse. A 2014 study conducted by the Department of Health and Human Services Office of Inspector General (“OIG”) revealed alarming trends in SNFs throughout the country. More recently, the OIG has warned that the Centers for Medicare & Medicaid Services (“CMS”) do not possess adequate procedures to combat elder abuse or report incidents of such abuse to the proper authorities. Until such inadequacies are fixed, independent whistleblowers appear the best defense against future abuses.
Lack of Basic Compliance Measures
Three years ago, the OIG released a study assessing various nursing facilities’ compliance with Federal reporting regulations for abuse and neglect. The results were disturbing: 85% of the facilities studied reported one or more allegation(s) of abuse, only 61% possessed documentation supporting self-reporting compliance guidelines and, despite 76% having policies addressing these requirements, only 53% of abuse allegations were ultimately reported.
These results reveal widespread compliance failures across the SNF industry. The lack of basic compliance fundamentals appears the most likely culprit; however, the culture of each organization could present a contributing problem. The data shows a 23% gap between reporting policies and actual reporting. Oftentimes this points to a culture that does not encourage reporting efforts. If an organization takes a punitive approach to mistakes and non-compliance, self-reporting will usually decrease. Similar results occur if no hotline or other reporting system exists within an organization. SNFs also face a unique challenge in that when abuse occurs, often the only employee/witness – and thus the person with the power to report the incident – is the person committing the actual abuse.
CMS Lagging Behind
Regulatory agencies have offered little reassurance. This August, the OIG released another report showing 134 Medicare beneficiaries who may have sustained injuries from abusive conduct between 2015 and 2016. The OIG once again found significant numbers of unreported incidents which led the agency to conclude that CMS is not procedurally capable of reporting SNF abuse. While the OIG offered CMS suggestions for immediate correction, they advised the relatives of Medicare beneficiaries as well.
The OIG urged family and friends of SNF residents to self-report any abuse or neglect to the police department or directly to a state fraud unit. It seems that, until CMS can meet the OIG’s requirements, beneficiaries and their families and friends will serve as the main source of compliance enforcement. In addition to reporting suspected abuse, it is a good idea to follow up with the authorities on an occasional basis to ensure the incident receives the appropriate scrutiny and follow-through.
While this vigilante style of incident reporting may seem odd, whistleblowing has proven an effective method of exposing fraud and abuse throughout the healthcare industry. If you have a relative, friend or loved one who lives in an SNF, spend some time talking to them about how they are being treated. Without an effective compliance program, elders and those close to them are the last line of defense.