Abuse and Incident Investigations and Reporting. Polsinelli PC. In California, Polsinelli LLP

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1 Abuse and Incident Investigations and Reporting Polsinelli PC. In California, Polsinelli LLP

2 Faculty Matt Murer Polsinelli PC 161 N. Clark, Suite 4200 Chicago, IL Jason Lundy Polsinelli PC 161 N. Clark, Suite 4200 Chicago, IL

3 Outline 1. Definitions of Abuse, Incident, Accident 2. Mandatory Reporting Laws 3. Common Mistakes 4. Crucial Steps & Response Checklist 5. Best Practices in Completing Incident & State Reports

4 What is an incident or accident? For ALFs Generally, an occurrence that has a significant negative effect on a resident s health, safety or welfare. Assumed whenever an unplanned or unscheduled visit to a hospital is necessary as a result of that incident or accident, treatment is provided, and follow-up care is required. 77 Ill. Admin. Code

5 What is an incident or accident? For Sheltered Care Generally, an occurrence affecting a resident that is not the expected outcome of a resident s condition or disease process. An incident or accident is classified as serious if it causes physical harm or injury to a resident. 77 Ill. Admin. Code

6 What is an incident or accident? For SLFs N/A. Instead, must report... Emergencies (an event, as a result of a mechanical failure or natural force such as water, wind, fire or loss of electrical power, that poses a threat to the safety and welfare of residents, personnel, and others present in the SLF) 89 Ill. Admin. Code , and Suspected Abuse, Neglect, and Financial Exploitation 89 Ill. Admin. Code

7 What is an incident or accident? Falls Elopements Medication error Skin breakdown that is clinically unavoidable Allegation of abuse Abuse Allegation of misappropriation Misappropriation of resident property Choking incidents Entrapment incidents Resident on resident aggression Resident on staff aggression

8 Why do we want to know about incidents, accidents, abuse? Mandatory investigations and reporting under law. Management of potential liability. Quality assurance identify systemic weaknesses. Communication to ensure continuity of care.

9 For ALFs Mandatory Reporting Laws: Incidents or Accidents When an incident or accident has a significant negative effect on a resident s health, safety, or welfare, the facility must: Report to IDPH within 24 hours of the occurrence by contacting IDPH s Central Complaint Registry, by fax, or by other electronic means Maintain a copy of the report for one year 77 Ill. Admin. Code

10 Mandatory Reporting Laws: For Sheltered Care Incidents or Accidents With all incidents or accidents, facility must: Create a written report and maintain a file of such Record a descriptive summary of the occurrence in the resident s progress or nurse s notes With serious incidents or accidents, facility must: Notify IDPH within 24 hours by fax or phone Send a narrative summary to IDPH within 7 days Additional requirements for resident death 77 Ill. Admin. Code

11 For SLFs Mandatory Reporting Laws: Incidents or Accidents Do not need to notify HFS of incidents or accidents Make Incident Report to HFS of suspected abuse, neglect or financial exploitation that results in contact with local law enforcement. 89 Ill. Admin. Code (d) and

12 Mandatory Reporting Laws: Abuse Upon a reasonable belief that a resident is the victim of abuse, neglect, or financial exploitation [ ANFE ], an ALF must: 1. Immediately Report (24 hours) Immediately report the allegation to the ALF management Report to IDPH within 24 hours of the occurrence by contacting IDPH s Central Complaint Registry, by fax, or by other electronic means Maintain a copy of the report for one year 2. Investigate Have evidence that all alleged violations are thoroughly investigated Prevent further potential abuse while the investigation is in progress 3. Report again Report to IDPH the results of all investigations within 14 days after the initial report 4. Take appropriate corrective action, if the alleged violation is verified. 77 Ill. Admin. Code

13 Mandatory Reporting Laws: Abuse With any allegation of mistreatment, neglect, or abuse, including injuries of unknown source, and misappropriation of resident property, a Sheltered Care Facility must: 1. Immediately Report (24 hours) Immediately report the allegation to the facility administrator Immediately report the allegation to the resident s representative in writing and by telephone Immediately report the allegation to IDPH 2. Investigate Have evidence that all alleged violations are thoroughly investigated Prevent further potential abuse while the investigation is in progress 3. Report again Report to facility administrator and IDPH the results of all investigations.within five working days of the incident 4. Take appropriate corrective action, if the alleged violation is verified. 210 ILCS 45/3-610; 77 Ill. Admin. Code

14 Mandatory Reporting Laws: Abuse A Sheltered Care Facility must immediately contact local law enforcement (i.e., call 9-1-1) in these situations: Physical abuse involving physical injury inflicted on a resident by a staff member or visitor; Physical abuse involving physical injury inflicted on a resident by another resident, except in situations where the behavior is associated with dementia or developmental disability; Sexual abuse of a resident by a staff member, another resident, or a visitor; When a crime has been committed in a facility by a person other than a resident; or When a resident death has occurred other than by disease processes. 77 Ill. Admin. Code

15 Mandatory Reporting Laws: Abuse SLF staff shall make a report when there is suspected ANFE of a resident. The SLF manager or employee shall contact local law enforcement immediately when suspected ANFE involving physical injury, sexual abuse, a crime or death occurs to a resident as the result of actions by a staff member, family member, visitor, or another resident. For occurrence of suspect ANFE that results in local law enforcement contact, the SLF manager must provide a preliminary report to HFS by fax within 24 hours after the occurrence. This includes suspected abuse of any nature, allegations of theft, elopement of residents or missing residents, and any crime that occurs on facility property. The SLF manager shall submit a final report to HFS that includes how the investigation was handled, final outcome, who was involved, and what steps are being taken to prevent the situation in the future. The SLF manager is responsible for notifying the appropriate law enforcement or regulatory agency if reports of ANFE by a certified or licensed staff person are substantiated. 89 Ill. Admin. Code

16 Mandatory Reporting Laws: Other Types of Reporting Elder Abuse and Neglect Act If any mandated reporter has reason to believe that an eligible adult, who because of a disability or other condition or impairment is unable to seek assistance for himself or herself, has, within the previous 12 months, been subjected to abuse, neglect, or financial exploitation, the mandated reporter shall, within 24 hours after developing such belief, report this suspicion to the Department on Aging. Mandated Reporter = nurse, social worker, nursing home administrators, physicians, therapists, etc. 320 ILCS 20/4

17 Top Four Errors with Abuse & Neglect 1. Staff fail to identify an incident or allegation of abuse. 2. Staff fail to report an allegation of abuse. 3. Once a report has been made, staff are not suspended pending investigation. 4. Failure to conduct a thorough investigation & dig deeper.

18 Abuse & Neglect Any allegation has to be investigated and reported. Biggest problem with abuse & neglect incidents: staff think that they have to decide whether an allegation, accusation, or incident is actually abuse or neglect before reporting to administration. Front-line staff report everything; supervisors decide if the allegation amounts to abuse or neglect.

19 The Two Most Important Points Staff have to report every allegation of mistreatment. Staff have to report anything that does not seem right, strikes them as inappropriate, makes them uncomfortable, etc. Error on the side of over-reporting

20 Three Golden Rules 1. Treat every allegation as if it were true and as if it were abuse. 2. Treat every allegation as if it were true and as if it were abuse. 3. Treat every allegation as if it were true and as if it were abuse.

21 First Steps in Reacting to An Allegation What happens when a facility employee first hears an allegation or develops a suspicion of abuse, neglect, or unknown injury?

22 First Steps in Reacting to An Allegation 1.Care, treat, and protect residents IDPH s regulations and procedures are important, but the highest duty is to your residents

23 First Steps in Reacting to An Allegation 2. Immediately notify the Administrator Staff should be hypersensitive While an employee s direct supervisor or best contact may be the facility s DON or RSD, regulations require notification to the Administrator Best practice: Employee immediately reports to both supervisor and administrator.

24 First Steps in Reacting to an Allegation 3. Immediately contact local police, if the following occurred: Physical abuse involving physical injury inflicted on a resident by a staff member or visitor. Physical abuse involving physical injury inflicted on a resident by another resident, except in situations where the behavior is associated with dementia or developmental disability. Sexual abuse of a resident by a staff member, another resident, or a visitor. A person other than a resident committed a crime in the facility. Resident dies due to causes other than disease processes. 77 Ill. Admin. Code

25 First Steps in Reacting to an Allegation 3. Immediately contact local police (cont.) Remember to follow policy concerning local law enforcement notification that includes seeking advice concerning preserving a potential crime scene. Weigh preservation of a crime scene against resident dignity issues

26 First Steps in Reacting to an Allegation 4. Isolate the perpetrator If the investigation indicates the employee Immediately bar the employee from further contact with residents, pending the outcome of further investigation, prosecution, or disciplinary action. Immediate suspension means immediate If the investigation indicates another resident... Immediately evaluate the resident s condition to determine the most suitable therapy and placement for the resident, considering the safety of that resident as well as the safety of other residents and employees of the facility. 210 ILCS 45/3-611, -612; 77 Ill. Admin. Code (e), (f).

27 First Steps in Reacting to an Allegation 4. Isolate the perpetrator (cont.) If the investigation indicates a family member or visitor Contact local police immediately and provide as much information as possible about the person. Do not allow the person any further access to residents. Be careful and consider safety precautions for facility residents and employees.

28 First Steps in Reacting to an Allegation 5. Facility nursing staff or administrator notifies the resident s physician. Facility administrator notifies the resident s representative by telephone and in writing immediately. *Steps 1-5 are done immediately*

29 First Steps in Reacting to an Allegation 6. Facility administrator makes an initial report to IDPH for all reportable incidents or accidents within 24 hours. Contact Regional Office by phone or fax IDPH s complaint registry hotline if unable to contact Regional Office

30 The Initial Report The focus should be on keeping it factual. There should be no speculation or personal opinion. It should only be kept if it is required. It shouldn t be a summary of a review of the incident.

31 The Initial Report Most common problems: Rampant speculation based upon uncorroborated verbal report Resident 1 was struck by Mr. Smith, our employee. Rampant speculation Resident eloped from the facility. Possible causes include malfunctioning door alarm, light staffing.

32 The Initial Report What we usually see: Factual summary R1 was found on floor of room at 5:46 p.m. Partial summary of investigation slippery floor was noted, staff reported problems with resident disarming body alarm. Conclusion R1 was assessed. Redness noted to rt. Hip. MD contacted ordered resident to be sent to ER for X-ray.

33 The Initial Report What we prefer: Factual summary R1 was found on floor of room at 5:46 p.m. Facility is conducting a full investigation of this [allegation, incident, accident] and will report the investigation results to IDPH when it is completed. Conclusion R1 was assessed. Redness noted to rt. Hip. MD contacted ordered resident to be sent to ER for X-ray.

34 The Investigation Form vs. Function No Function and Form Yes!

35 Function of the Investigation Initial investigation is meant to gain an understanding of what happened. Discover immediately who the perpetrator is. The person responsible for the investigation should initially take notes and not gather staff statements. Once a more complete picture has been formed, statements can be gathered if they will be helpful. If the incident involves a resident injury or death, contact legal.

36 Function of the Investigation Limit incidents and liability exposure Discovery quickly before repeat incidents occur one bite vs. pattern and practice Be careful with the one bite argument you may not have foreseen the abuse or injury its first time, but IDPH may argue that the lack of supervision which allowed the abuse or injury to happen equals neglect Determine if there is an underlying systemic issue that may have contributed to the incident.

37 Form of the Investigation Comprehensive You are always better off with a more thorough investigation than a cursory investigation. The surveyor will certainly do more than a cursory investigation and you want to be prepared.

38 Form of the Investigation Considerations for a thorough investigation: Interview: All staff on duty at the time Resident s roommate, if possible Family members, if possible & appropriate Other residents Even if there was an eye witness, confirm the events with others if possible. Review prior notes.

39 Form of the Investigation Documented Be Methodical Do you have essentially the same protocol for investigating every allegation or incident? Have a template prepared before you start Helps guide the investigation Automatically creates a comprehensive, documented investigation to show surveyors Check boxes Show what you did (just like surveyors) OK if some items are N/A Really OK to do something useless because it shows your thorough

40 Investigation Obtaining Statements Consider this strategy: Interview with a witness present Prepare a set of questions Summarize responses and capture good quotes. Review and determine whether a signed statement is beneficial 40

41 The Investigation There is no requirement that an investigation determine the cause of an incident or accident. Still make a conclusion: substantiated/unsubstantiated, credible/inconclusive, confirmed/disproved, etc. If the cause truly is unclear, it is ok to state that the cause could not be determined. Have legal review any report that involves a resident injury or death.

42 While the Investigation Is Ongoing Presume that there will be an on-site survey by IDPH and assume that they will cite the facility with a deficiency. It is best to presume that they will cite the deficiency at an immediate jeopardy. Take proactive measures to respond to the presumed immediate jeopardy: Assess all residents with the same issues or risks Review relevant policy and revise if necessary In-service staff on relevant policy Audit compliance going forward

43 Final, Follow-Up Report Fax to IDPH Regional Office State regulations within 7 days A narrative summary of each serious accident or incident occurrence shall be sent to the Department within seven days of the occurrence. Federal regulations 5 working days The results of all investigations must be reported to the administrator or designated representative or to other officials in accordance with State law within five working days of the incident and, if the alleged violation is verified, appropriate corrective action must be taken.

44 Final, Follow-Up Report Contents 1.Summary of facts what we know happened. 2.Summary of investigation who we interviewed, what we considered. 3.Summary of proactive measures in servicing of staff, review of other residents with similar conditions or concerns (e.g., high risk for falls or elopement risk). 4.Conclusion remember if we were unable to determine what happened that is ok.

45 Final, Follow-Up Report If the facility s investigation concludes that no abuse, neglect or injury of unknown origin occurred, then: Report the facility s open-minded investigation methods, and Evidence that disproves the allegation If the facility s investigation concludes that abuse, neglect or injury of unknown origin did occur, then: Still, Just the facts, ma am now just more of them. Leave out blame, motivations, irrelevant or side issues, etc.

46 Final, Follow-Up Report Move along, nothing to see here Show your swift, strong action taken to address the abuse, neglect, or injury (i.e., POC steps: resident assessments, staff discipline/termination, in-service training, etc.), so there is no need for surveyors to investigate because you have already done it all! But, be aware that it doesn t end here.

47 Further Follow Up Discipline staff as appropriate Reprimand Suspend Terminate Report to registry Train staff Orientation In servicing One-to-one training

48 Further Follow Up If a systemic issue is identified, figure out how to address it and how you will monitor the issue going forward. Prepare information to give to the surveyor, including abuse survey response file: Original IDPH report Facility abuse policy Summary of investigation Follow-up report In servicing documentation Copies of updated care plans if applicable

49 Have Policies & Procedures In Place The underlying incident or accident may be hard for IDPH to prove or the facility may have a strong defense but, violations are sustained because the facility s follow-up reporting and investigation were inadequate.

50 Miscellaneous Tips Watch your labels: It is an allegation until proven otherwise, i.e. allegedly involved employee. Immediate actions weren t so immediate? When appropriate/advantageous, telegraph some key information in the initial report. Example: Resident identified a 6ft tall, 300lb man; no male staff in building/all staff thin females under

51 Intent Majority of the time, incidents are not abuse. Always comprehensively investigate to uncover the few times that it is! Vast majority of facilities are cited for failing to follow the process rather than an actual case of abuse. If it is abuse, the facility is very vulnerable to serious deficiencies. Follow your own procedures all the time! Maintain records of in-services, supervision, disciplinary actions, as defense and to distance the facility form the aberrant actions of one employee. 51

52 Questions??

53 Polsinelli provides this material for informational purposes only. The material provided herein is general and is not intended to be legal advice. Nothing herein should be relied upon or used without consulting a lawyer to consider your specific circumstances, possible changes to applicable laws, rules and regulations and other legal issues. Receipt of this material does not establish an attorney-client relationship. Polsinelli is very proud of the results we obtain for our clients, but you should know that past results do not guarantee future results; that every case is different and must be judged on its own merits; and that the choice of a lawyer is an important decision and should not be based solely upon advertisements Polsinelli PC. In California, Polsinelli LLP. Polsinelli is a registered mark of Polsinelli PC