Sections §6701 to §6703 of the Patient Protection and Affordable Care Act of 2010, H.R. 3590 (“PPACA”) include requirements for reporting of crimes in federally funded long term care facilities. The obligations are included under the “Elder Justice Act” provisions within PPACA.
Long term care facilities or nursing homes have heard very little about the reporting obligations because it has not been clear which federal agency was responsible for implementation and guidance relating to the provisions. In recent private correspondence, the Centers for Medicare and Medicaid Services (“CMS”) has commented that it will take the lead on implementation and will have some guidance out in the coming months.
The statutory obligations provide that “covered individuals” in long-term care facilities that receive a minimum of $10,000 in federal funding must report to the Secretary of DHHS and one or more local law enforcement entities – any reasonable suspicion of a crime (as defined by local law) against any individual who is a resident of, or is receiving care from, the facility.
Failure to make a report can result in a fine of up to $200,000 imposed upon the individual who did not a report. If the violation exacerbates the harm to the victim of the crime or results in harm to another individual, the covered individual can be subject to a fine of up to $300,000 and possible exclusion from Medicare/Medicaid. Covered Individuals under the statute are owners, operators, employees, managers, agent, or contractors of a long-term care facility.
There are two different timing requirements relating to making a report. If the events that cause the suspicion result in serious bodily injury, the report must be made immediately, but not later than 2 hours after forming the suspicion. If the events that cause the suspicion do not result in serious bodily injury, the report must be made not later than 24 hours after forming the suspicion.
The statute defines “serious bodily injury” as involving extreme physical pain; involving substantial risk of death; involving protracted loss or impairment of the function of a bodily member, organ, or mental faculty; or requiring medical intervention such as surgery, hospitalization, or physical rehabilitation.
Employers are prohibited from retaliation against employees who file reports of suspected crimes with the DHHS. Employers who violate the anti-retaliation provision may be fined up to $200,000 and may be excluded from federal programs, including Medicaid and Medicare. Additionally, all facilities that are subject to the statute must post a sign specifying the rights of employees. The sign must include a statement that an employee may file a complaint with DHHS against a facility and information with respect to the manner of filing such a complaint.