Just as the Trump administration is attempting to prevent nursing home residents or their families from ever being able to sue longterm care facilities for neglect or fraud, a federal audit claims that an alarming percentage of physical and sexual abuse cases at nursing homes may be going unreported to law enforcement.

Daniel Levinson, Inspector General for the Department of Health and Human Services, is currently performing a review of potential abuse and neglect incidents at skilled nursing facilities. This morning, Levin’s office (OIG) released an “early alert” report [PDF] sent to Seema Varma, the new Administrator for the Centers for Medicare & Medicaid Services (CMS), saying that the preliminary results of the audit show that CMS has “inadequate” procedures for ensuring that abuse is properly reported.

If a resident in a federally funded longterm care facility is believed to be a victim of a crime, federal law requires that the facility report the incident to law enforcement “immediately” — within two hours of learning about the incident if serious bodily harm occurred; within 24 hours if no serious injury is involved.

What’s more, skilled nursing facilities (SNF) have a legal obligation to make sure all possible crimes are reported and investigated in a timely manner.

Possible Abuse

As part of its audit, OIG looked at emergency room records for 134 Medicare recipients over a 24-month period whose injuries may have been the result of abuse or neglect at their nursing home, including alleged rape and sexual abuse.

“Many of the incidents of potential abuse or neglect that we identified may not have been reported to law enforcement,” reads the report, which found that investigators could find no evidence that local law enforcement had been notified in 28% of these cases, despite “mandatory reporting laws requiring the hospitals’ medical staff to do so.”

The 72% rate of reported incidents includes cases where anyone contacted police; not just nursing home staff. As you’ll see in the next section, there were cases where nursing home employees failed to meet their legal obligation to report assaults to law enforcement.

The OIG alert also points out that its data set is very limited by having to rely on only those cases where the nursing home resident was treated at an emergency room. Since there would be no record of residents injured and treated within the walls of the nursing home, OIG notes “there is a risk that other Medicare beneficiaries who were potentially abused or neglected remain unidentified.”

Failure To Act

The OIG report includes detailed examples of a couple of instances where nursing home staff not only failed to refer incidents to police, but may have impeded any investigation.

Nothing To See Here
One incident involved a female nursing home resident “Ms. Doe,” with verbal and mobility limitations. A male resident at her facility allegedly attempted to sexually assault her: “Nursing aides found the man on top of Ms. Doe squeezing and touching her breast and ejaculating on her.”

The incident was eventually reported to law enforcement, but not by nursing home staff. Rather, it was the victim’s family who chose to contact the police.

Beyond that failure to act as required, these employees’ actions could have done more harm than good. The OIG report notes that the staffers helped bathe the victim and change her clothing after the incident. While likely well-intentioned, these actions may have destroyed vital evidence needed to prove rape.

Additionally, one staffer who did call police reportedly did so to tell officers that no law enforcement investigation was necessary.

According to the OIG, this staffer told officers “we were doing our own internal investigation and did not need them to make a site visit,” and that “no one was interested in pressing charges and that we were handling.”

A state survey agency responsible for overseeing Medicare compliance found that this facility had fallen short on multiple compliance obligations, it ultimately classified the incident as resulting in “minimum harm or potential for actual harm.”

Beaten With A Broomstick?
A second incident detailed in the OIG report involves a “Mr. Doe” nursing home resident who was taken to the emergency room with injuries. Nursing home staff claimed Mr. Doe was trying to bite, hit, and throw feces at employees, but the ER record noted that this patient was not aggressive when hospital staff treated him.

“More concerning was the multiple bruises in various stages of healing including areas not easily banged (flanks, lower chest, back),” the hospital said, per the OIG report. “There is a deep healing scratch on the right flank. Unfortunately, given [Mr. Doe’s] mental status, there is not a clear story of who has done this.”

According to the ER staff, nursing home employees claimed at the time that Mr. Doe had received these bruises from being restraining during the last time he’d been brought to the emergency room. However, the hospital says it has photos of that previous visit and these bruises were not present.

At the ER, Mr. Doe claimed to have been beaten with “feet, hands and a broomstick” by nursing home employees. The hospital determined that Mr. Doe could not safely return to the nursing facility, contacting adult protective services and the police on his behalf.

Even so, the state survey agency eventually returned Doe to the nursing home. It’s unclear whether the agency ever knew about this incident, notes the OIG.

No Penalties

Since March 2011, CMS has had legal authority to take enforcement actions against nursing homes and penalize them up to $300,000 for failing to live up to their obligation to report potential abuse or neglect incidents to law enforcement.

However, according to the OIG report, CMS has not used this authority once in all those years.

In response to the OIG, CMS said it has not used this particular enforcement authority because the Secretary of Health and Human Services had not yet delegated it to CMS. The agency did not begin the process of obtaining that delegation until June 2017, according to the report.

Taking It Seriously

When reached for comment by Consumerist, a spokesperson for CMS said it is “committed to its work with state agencies, law enforcement, nursing home leadership and staff to ensure these vulnerable people are properly cared for and that all viable or alleged instances involving abuse or neglect are fully investigated and resolved.”

The agency says it takes allegations of abuse and neglect “very seriously,” and that it appreciates the OIG’s report. At the same time, CMS says it will wait until the OIG audit is completed before providing a fuller response.

No Suing For You

Not even a year ago, CMS introduced a sweeping overhaul of the longterm care industry, including a new rule that would stop nursing homes from stripping away residents’ Constitutional right to sue nursing facilities for fraud and abuse.

However, the Trump administration, including new CMS Administrator Verma, have decided that nursing home should indeed be allowed to block residents and their families from having access to the legal system.

In June, the White House effectively abandoned its legal defense of the new rule, and CMS proposed a revision to the arbitration rule that would allow these contractual clauses to remain in place under the condition that customers are given a clear explanation of the rights they are signing away.

But as we’ve pointed out numerous times, if you can’t say no to the clause, and every nursing home uses the same type of restrictive contract, then the revised rule does nothing to restore consumers’ legal rights.

We’ve asked CMS to comment on how it can continue to justify this about-face in light of the OIG’s report, but CMS ignored that question in its response to our query.

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