Responding to Allegations of Abuse and Neglect. Topic Areas: The Rules 1/15/2010

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1 Responding to Allegations of Abuse and Neglect R. Marcus Givhan Monica Nelson Fischer Johnston Barton Proctor & Rose LLP Topic Areas: Requirements of the Division of Health Care Facilities Difference between state required reports and quality assurance ( QA ) materials How to protect QA materials Helpful tips for investigations The Rules Code of Federal Regulations, Chapter 42, Alabama Administrative Code (a) The resident has the right ihto be free from any physical or chemical restraints imposed for purposes of discipline or convenience and not required to treat the resident s medical symptoms. (b) The resident has the right to be free from verbal, sexual, physical and mental abuse, corporal punishment, and involuntary seclusion. 1

2 The Rules Code of Federal Regulations, Chapter 42, Alabama Administrative Code (c) The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property. (d) The facility must ensure that all alleged violations involving mistreatment, neglect, or abuse, including suspicious injuries of an unknown source and misappropriation of resident property are reported immediately to the administrator of the facility. The Rules Code of Federal Regulations, Chapter 42, Alabama Administrative Code (e) The facility must have evidence that all alleged violations are thoroughly investigated, and must prevent further potential abuse while the investigation is in process. The Rules Code of Federal Regulations, Chapter 42, Alabama Administrative Code (f) The results of all investigations must be reported to the administrator or his designated representative and to ADPH within 5 working days of the incident The Administrator/designee must take action immediately!! Do NOT wait until the next scheduled day to work. Go to the facility ASAP after you are notified and get busy investigating!!! 2

3 The $64,000 Question Do we really have to report this? Suggestion: If an incident falls in the possibly reportable category, discuss the decision i to report with all appropriate personnel and legal counsel if necessary. Always lean towards protecting the resident. It may be better for the State to learn of an allegation from a facility rather than from an outside complaint. Incident Reporting Incidents requiring a report should be reported to the DHCF within 24 hours. The 24 hour report should be brief and strictly factual including information such as the date and time of the incident, id the resident involved and any immediate action that was taken. The 24 hour report should not be conclusive in nature as the results of any investigation should come after the investigation process is complete. These findings will be reported in the 5 day report. Incident Reporting 5 Day report Following the 24 hour report and a full investigation, a final report is due to DHCF within 5 working days from the date of the incident. The 5 day report may include supporting documentation such as key statements, nurses notes or any other documents that support the conclusions of the investigation. Also include any information to show what measures have been put in place to prevent other similar incidents. 3

4 Incident Reporting Who else to involve? Legal Counsel: Legal Counsel may be able to assist in formulating and/or conducting a thorough investigation. DHR Usually involving DHR means that there are some family issues that need to be addressed. Local authorities Involving the authorities may be necessary if criminal allegations are involved. The Investigation The investigation should include the following information: Date and time of the incident Circumstances surrounding the incident id (most of the Incident Report forms include this information such as equipment involved, etc.) Location of the incident Any immediate first aid or treatment rendered Any injuries (no matter how minor) The Investigation Witness information including names and contact information Witness statements as needed Date and time sponsor was notified Date and time physician was notified Report that was given to the physician and any physician orders that are received Any out-of-facility treatment received 4

5 The Investigation Any follow-up care and the outcome of the investigation Action taken to prevent reoccurrence including any staff education, in-services i or disciplinary actions Investigation Tips Act immediately!! The State does not like to hear that allegations made on Tuesday afternoon were not properly addressed d until the Administrator i arrived back at the facility on Thursday. Begin investigating immediately. Do not delay! Investigation Tips Educate Make it a point to educate your staff regarding policies and procedures surrounding abuse and neglect. Make sure they know how to identify the types of abuse and report them. Becoming more common sexual abuse Make sure staff understands that the first priority is to protect the resident. 5

6 Investigation Tips Stick to the Facts When documenting information regarding the incident, stick to factual information. Do not document what might have happened or what someone thinks might have happened. Avoid terms such as maybe, possibly, probably, might, appears, seems. Investigations and Surveys The Rest of the Story Keep in mind that an investigation report may be reviewed during an annual survey. The investigation report may also lead to a complaint survey. Investigations and Surveys Tips to Remember Investigate and document with an eye toward the approach of a surveyor. Look at the situation i from their prospective keeping in mind the regulations. Take careful steps when conducting the investigation and document your work. Identify and immediately address any systemic issues. 6

7 Investigations and the QA Process Allegations of abuse may lead to internal investigations and QA reviews. Keep all QA materials in a confidential file. Keep all QA materials separate from incident reports and investigative files. Investigations and the QA Process Things to Remember: Protected materials include QA minutes, reports and corrective action. Privileged information includes discussions and investigations as part of the QA process and determination of employee s understanding of assessment and prevention. Not privileged information includes facts of the incident/allegation and nurse s notes. Investigations and the QA Process Tips for Reporting and QA Always follow the reporting guidelines. Develop independent QA reports separate from the investigation summary. Keep a regular QA meeting schedule. Maintain QA minutes. Restrict access to QA materials. Do not treat resident records as QA. 7

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