The U.S. Department of Health and Human Services Office of Inspector General (“OIG”) issued a memorandum dated August 24, 2017 entitled “Early Alert: The Centers for Medicare & Medicaid Services Has Inadequate Procedures To Ensure That Incidents of Potential Abuse or Neglect at Skilled Nursing Facilities Are Identified and Reported in Accordance With Applicable Requirements (A-01-17-00504).”
The OIG determined that CMS procedures are not adequate to ensure that incidents of potential abuse or neglect of Medicare beneficiaries residing in SNFs (nursing homes) are identified and reported. Specifically, CMS officials informed the OIG that they do not match Medicare claims for reimbursement of emergency room services with claims for reimbursement of SNF services to identify instances of potential abuse or neglect.
The OIG further determined that CMS has not taken any enforcement actions using section 1150B of the Social Security Act or used the penalties it contains since its effective date of March 23, 2011, to ensure SNF employees report incidents of potential abuse or neglect (Section 1150B of the Social Security Act requires covered individuals in federally funded long-term care facilities to report immediately any reasonable suspicion of a crime committed against a resident of that facility).
As a result, the OIG suggests that CMS take immediate action to ensure that incidents of potential abuse or neglect of Medicare beneficiaries residing in SNFs are identified and reported. These immediate actions include:
• implement procedures to compare Medicare claims for emergency room treatment with claims for SNF services to identify incidents of potential abuse or neglect of Medicare beneficiaries residing in SNFs and periodically provide the details of this analysis to the Survey Agencies for further review and
• continue to work with the HHS Office of the Secretary to receive the delegation of authority to impose the civil monetary penalties and exclusion provisions of section 1150B.
The OIG recommended that after receiving the delegation of authority, CMS should:
• promulgate appropriate regulations, if CMS determines it is necessary, to impose penalties under section 1150B;
• enforce section 1150B, including imposing penalties for violations;
• ensure that the SOM (State Operations Manual) is updated as planned with an effective date of November 28, 2017, to include references to section 1150B, including its penalty provisions; and
• notify Survey Agencies when the SOM is updated to include references to section 1150B and direct them to refer suspected violations of section 1150B to CMS for appropriate action.
The OIG Investigation
The OIG had requested and reviewed the emergency room records for 134 Medicare beneficiaries with any of 12 primary diagnoses codes that explicitly indicate potential abuse or neglect, and the OIG reviewed publically available Survey Agency reports for each SNF covering the period when the incident of potential abuse or neglect occurred.
The OIG identified 134 Medicare beneficiaries whose injuries may have been the result of potential abuse or neglect that occurred from January 1, 2015, through December 31, 2016.
As a result of it anaylsis, the OIG determined that CMS has inadequate procedures to ensure that incidents of potential abuse or neglect of Medicare beneficiaries residing in SNFs are identified and reported. The OIG found that many of the incidents of potential abuse or neglect that it identified may not have been reported to law enforcement: 96 of the 134 incidents (72%) were reported to local law enforcement.
The OIG concluded its memorandum by stating: “We plan to make formal recommendations to CMS when our audit is complete. The information in this alert is preliminary, and our audit is continuing. We will issue a draft report at the conclusion of the audit and include CMS’s comments and actions taken in response to this Early Alert.”
If you or a loved one suffered injuries (or worse) while a resident of a nursing home in the United States due to nursing home neglect, nursing home negligence, nursing home abuse, nursing home understaffing, or resident on resident abuse, you should promptly contact a local nursing home claim attorney in your U.S. state who may investigate your nursing home claim for you and file a nursing home claim on your behalf, if appropriate.
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