CMS Guidance:  The following summary is included in the Centers for Medicare and Medicaid Services (CMS) SC 11-30NH  memorandum dated June 17, 2011 and REVISED August 12, 2011.  (Please click on S&C 11-30NH attachment above regarding the entire contents of the memorandum.)

• Reporting Suspicion of a Crime:  Section 1150B of the Social Security Act (the Act), as established by section 6703(b)(3) of the Patient Protection and Affordable Care Act of 2010 (Affordable Care Act), requires specific individuals in applicable long-term care facilities to report any reasonable suspicion of crimes committed against a resident of that facility.   
• Reporting to State Survey Agencies (SAs) and Law Enforcement:  Reports must be submitted to at least one law enforcement agency of jurisdiction and the SA (in fulfillment of the statutory directive to report to the Secretary).    
• Applicability of This Memo:  This memorandum discusses applicability of this provision to the following Medicare and Medicaid participating long-term care provider types that are collectively referred to as “facilities” or “LTC facilities” in this memorandum:
• Nursing facilities (NFs),
• Skilled nursing facilities (SNFs),
• Hospices that provide services in LTC facilities, and
• Intermediate Care Facilities for the Mentally Retarded (ICFs/MR).  
• LTC Facility Policies and Procedures:  LTC facilities should have policies and procedures to comply with this law.  The obligations of the facility are different than the obligations of a covered individual.  

What does this mean for you as a facility? 

This law must be followed for all federally (Medicare and/or Medicaid) certified SNF and ICF facilities and does not apply to assisted living or residential care facilities.  

According to the S&C, facilities have an obligation to comply with the law at it is plainly written without any delay in the administrative rule-making process. 

Effective implementation of section 1150B of the Act may promote a timely response to potential crimes, thereby protecting residents of such facilities. The statute requires that:  

• Covered individuals timely report any reasonable suspicion of a crime against a resident of, or who is receiving care from, a LTC facility;
• If the events that cause the reasonable suspicion result in serious bodily injury, the report must be made immediately after forming the suspicion (but not later than two hours after forming the suspicion).  Otherwise, the report must be made not later than 24 hours after forming the suspicion;
• Covered individuals are subject to civil money penalty and exclusion sanctions for failure to meet the reporting obligations of the statute;
• LTC facilities are ineligible to receive Federal funds for any period that they employ an individual classified as an excluded individual under sections 1150B(c)(1)(B) or 1150B(c)(2)(B) of the Act; and
• LTC facilities are also subject to civil money penalty and exclusion sanctions for retaliating against any employee who makes a lawful report, causes a lawful report to be made, or for taking steps in furtherance of making a lawful report pursuant to the statute.

 REQUIRED LTC Facility Responsibilities:

1)     Annually notify each covered individual (defined as anyone who is an owner, operator, employee, manager, agent or contractor of the LTC facility) of that individual’s reporting obligations.

2)     Conspicuously post, in an appropriate location,  a notice for its employees specifying the employees’ rights, including the right to file a complaint with the State Agency under this statute.  The notice must include a statement that an employee may file a complaint with the SA against a LTC facility that retaliates against an employee as specified above, as well as include information with respect to the manner of filing such a complaint.   

The notice must also include information about what must be reported, the timeframes for reporting and how to file the report with law enforcement.  The notice should include information about how to report to the SA including the hotline number (1-800-392-0210) and the hours of operation of 8:00 a.m. – 8:00 p.m. This notice must be posted in a place that is readily available for all employees.  (i.e. an employee break room, time clock, etc.) (The size and type for the sign should be no less than the minimums required for other required employment related signs.) 

3)     The facility may not retaliate against an individual who lawfully reports a reasonable suspicion of a crime under section 1150B.  A LTC facility may not discharge, demote, suspend, threaten, harass, or deny a promotion or other employment-related benefit to an employee, or in any other manner discriminate against an employee in the terms and conditions of employment because of lawful acts done by the employee, or file a complaint or a report against a nurse or other employee with the appropriate state professional disciplinary agency because of lawful acts done by the nurse or employee.  

LTC Facilities Should:

1)     Meet with your local law enforcement entity to determine what actions are considered crimes in their political subdivision and how those reports should be made to be in compliance with this law.

2)     Develop and maintain policies and procedures that ensure compliance with the requirements Section 1150B of the Social Security Act (the Act), as established by section 6703(b)(3) of the Patient Protection and Affordable Care Act of 2010 (Affordable Care Act).

Facility policies and procedures should address the mechanism for documenting that all covered individuals have been notified annually of their reporting obligations.  Examples of such documentation may include a copy of a notice or letter sent to covered individuals or a completed training/orientation attendance sheet specifying reporting obligations.

Time Period for Individual Reporting:

Section 1150B establishes two time limits for reporting of reasonable suspicion of a crime depending on the seriousness of the event that leads to the reasonable suspicion.

Serious Bodily Injury – 2 Hour Limit:  If the events that cause the reasonable suspicion result in serious bodily injury to a resident, the covered individual shall report the suspicion immediately, but not later than 2 hours after forming the suspicion to local law enforcement and by following the guidance noted above to notify the SA. 

All Others – Within 24 Hours:  If the events that cause the reasonable suspicion do not result in serious bodily injury to a resident, the covered individual shall report the suspicion not later than 24 hours after forming the suspicion to local law enforcement and by following the guidance noted above to notify the SA.

NOTE: The SA can be notified by calling either the Adult Abuse Hotline or in the case of facility self report you are encouraged to call your regional office directly during business hours or shortly after the next available business hours begin to file this report.  If the Regional Office is closed, but the Adult Abuse Hotline is open, the report should then be called to the hotline.

When was the effective date of this law:

March 23, 2011

What will survey staff do when investigating a complaint with allegations that include the suspicion of a crime?

• Determine whether the facility notified each covered individual at least annually of that individual’s reporting obligations.
• Determine whether the facility has conspicuously posted the required information as noted above
• In cases that allege facility retaliation determine whether or not the facility retaliated against an individually who lawfully reported a reasonable suspicion of a crime.
• Determine whether the facility is developing policies and procedures to ensure compliance with Section 1150B.
• Ask each employee interviewed under the A/N protocol what their response would be if they had reasonable suspicion that a crime had occurred against a resident. 
• Continue to follow all existing survey guidance and federal  requirements regarding complaints alleging abuse, neglect, or misappropriation (F226).
• Citations regarding the failure to notify, post, retaliate, etc could be appropriately cited at F492 (adherence with federal, state and local laws)  and/or F493 (governing body)

If you have additional questions regarding the requirements for “Reporting to Law Enforcement of Crimes Occurring in Federally Funded Long-Term Care Facilities” please contact your legal counsel.