Iowa Health Care Association
Abuse Investigations and Reporting Requirements
Kendall R. Watkins
Davis, Brown, Koehn, Shors & Roberts, P.C.
215 10th Street, Suite 1300
Des Moines, IA 50309
Phone: (515) 288-2500
Fax: (515) 243-0654
E-mail:
Nursing facilities have obligations to report abuse under both Federal and State regulations. Assisted LivingPrograms must follow abuse reporting obligations under State Law. Each will be discussed separately.
A.Dependent Adult Abuse (Source: Iowa Code Ch. 235E)
(Requires a Caretaker and a Dependent Adult)
Applicable to Nursing Facilities, Residential Care Facilities and Assisted Living Programs
1.Who is a Caretaker? "Caretaker" means a person who is a staff member of afacility or program who provides care, protection, or services to a dependent adult voluntarily, by contract, through employment, or by
order of the court.[Iowa Code §235E.1(1)].
2.Who is a Dependent Adult? - "Dependent adult" means a person eighteen years of age orolder whose ability to perform the normal activities of daily living or to provide for the person's own care or protection is impaired,either temporarily or permanently. [Iowa Code §235E.1(4)]
3.Dependent Adult Abuse - Intent. Dependent Adult Abuse can occur as a result of either a willful(intentional), a grossly negligent act or omission or a reckless act or omission of a caretaker, taking into account the totality of the circumstances. [Iowa Code §235E.1(5)(a)].
“Gross Negligence”means an act or omission that signifies more than ordinary inadvertence or inattention, but less than conscious indifference to consequences; and, in other words, means an extreme departure from the ordinary standard of care.
"Recklessly" means that a person acts or fails to act with respect to a material element of a public offense, when the person is aware of and consciously disregards a substantial and unjustifiable risk that the material element exists or will result from the act or omission. The risk must be of such a nature and degree that disregard of the risk constitutes a gross deviation from the standard conduct that a reasonable person would observe in the situation.
4.Dependent Adult Abuse - Definitions
aPhysical Injury
b.Injury Which Is At Variance With History Given Of Injury
c.Unreasonable Confinement means confinement thatincludes but is not limited to the use of restraints, either physical or chemical, for the convenience of staff. “Unreasonable confinement” does not include the use of confinement and restraints if the methods are employed in conformance with state
and federal standards governing confinement and restraint or as authorized by a physician or physician
extender.
d.Unreasonable Punishment means a willful act or statement intended by the caretaker to punish,agitate, confuse, frighten, or cause emotional distress to the dependent adult. Such willful act or
statement includes but is not limited to intimidating behavior, threats, harassment, deceptive acts, orfalse or misleading statements.
e.Assault - "Assault of a dependent adult" means the commission of any act which is generally intended to cause pain or injury to a dependent adult, or which is generally intended to result in physical contact which would be considered by areasonable person to be insulting or offensive or any act which isintended to place another in fear of immediate physical contact whichwill be painful, injurious, insulting, or offensive, coupled with the apparent ability to execute the act.
f.Sexual Offense With/Against Dependent Adult
Sexual abuse defined: Any sex act between persons is sexual abuse by either of the persons when the act is performed with the other person in any of the following circumstances:
1. The act is done by force or against the will of the other. If the consent or acquiescence of the other is procured by threats of violence toward any person or if the act is done while the other is under the influence of a drug inducing sleep or is otherwise in a state of unconsciousness, the act is done against the will of the other.
2. Such other person is suffering from a mental defect or incapacity which precludes giving consent, or lacks the mental capacity to know right and wrong of conduct in sexual matters . . .Iowa Code §709.1(1)(2
g.Exploitation Of Dependent Adult (Financial/Belongings)
"Exploitation" means a caretaker who knowingly obtains, uses, endeavors to obtain to use,or who misappropriates, a dependent adult's funds, assets, medications, or property with the intent to temporarily or permanently deprive a dependent adult of the use, benefit, orpossession of the funds, assets, medication, or property for thebenefit of someone other than the dependent adult.
h.Neglect of a dependent adult. "Neglect of a dependent
adult" means the deprivation of the minimum food, shelter,
clothing, supervision, physical or mental health care, or other care
necessary to maintain a dependent adult's life or physical or mental
health. Iowa Code §235E.1(5)(a)(1)(d)].
The failure on the part of the caretaker or dependent adult to provide for minimum food, shelter, clothing, supervision, physical or mental care, and other care necessary for the dependent adult’s health and welfare when financially able to do so or when offered financial and other reasonable means to do so shall constitute denial of critical care to that dependent adult. 441 I.A.C. §176.2
i.Sexual exploitationof a dependent adult by a caretaker
whether within a facility or program or at a location outside of a
facility or program. "Sexual exploitation" means any consensual
or nonconsensual sexual conduct with a dependent adult which include but is not limited to kissing; touching of the clothed or unclothedbreast, groin, buttock, anus, pubes, or genitals; or a sex act, asdefined in §702.17. "Sexual exploitation" includes the transmission, display, taking of electronic images of the unclothedbreast, groin, buttock, anus, pubes, or genitals of a dependent adultby a caretaker for a purpose not related to treatment or diagnosis or as part of an ongoing investigation.
Sexual exploitation does not include touching which is part of a necessary examination, treatment,or care by a caretaker acting within the scope of the practice oremployment of the caretaker; the exchange of a brief touch or hugbetween the dependent adult and a caretaker for the purpose ofreassurance, comfort, or casual friendship; or touching betweenspouses or domestic partners in an intimate relationship.
B.Federal Abuse Regulations
(Applicable to Medicaid/Medicare Certified Nursing Facilities)
Does Not Require a Caregiver to Be the Alleged Perpetrator
Resident Abuse - Federal Certification Guidelines [Source: 42 C.F.R. §§483.13(b)(c); State Operations Manual]
1.Each resident has the right to be free from abuse, corporal punishment, and involuntary seclusion. Residents must not be subjected to abuse by anyone, including, but not limited to, facility staff, other residents, consultants or volunteers, staff of other agencies serving the resident, family members or legal guardians, friends, or other individuals.
2.“Abuse” means the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish.” This also includes the deprivation by an individual, including a caretaker, of goods or services that are necessary to attain or maintain physical, mental, and psychosocial well-being. This presumes that instances of abuse of all residents, even those in a coma, cause physical harm, or pain or mental anguish.
3.“Verbal abuse” is defined as the use of oral, written or gestured language that willfully includes disparaging and derogatory terms to residents or their families, or within their hearing distance, regardless of their age, ability to comprehend, or disability. Examples of verbal abuse include, but are not limited to: threats of harm; saying things to frighten a resident, such as telling a resident that he/she will never be able to see his/her family again.
4.“Sexual abuse” includes, but is not limited to, sexual harassment, sexual coercion, or sexual assault.
5.“Physical abuse” includes hitting, slapping, pinching and kicking. It also includes controlling behavior through corporal punishment.
6.“Mental abuse” includes, but is not limited to, humiliation, harassment, threats of punishment or deprivation.
7.“Involuntary seclusion” is defined as separation of a resident from other residents or from her/his room or confinement to her/his room (with or without roommates) against the resident’s will, or the will of the resident’s legal representative. Emergency or short term monitored separation from other Residents will not be considered involuntary seclusion and may be permitted if used for a limited period of time as a therapeutic intervention to reduce agitation until professional staff can develop a plan of care to meet the resident’s needs.
7.“Neglect” means failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness.
8.“Misappropriation of resident property” means the deliberate misplacement, exploitation, or wrongful, temporary or permanent use of a resident’s belongings or money without the resident’s consent.
9.“Injuries of Unknown Source.” An injury should be classified as an “injury of unknown source” when both of the following conditions are met:
•The source of the injury was not observed by any person or the source of the injury could not be explained by the resident; and
•The injury is suspicious because of the extent of the injury or the location of the injury (e.g., the injury is located in an area not generally vulnerable to trauma) or the number of injuries observed at one particular point in time or the incidence of injuries over time. (See F225 [42 C.F.R. §483.13(c)(2)])
C.Stepped Up Enforcement of Federal Regulation Mandated by CMS on DIA:
Under these broad federal definitions: (1) resident-to-resident physical contact that occurs where residents are hit, slapped, pinched or kicked, or (2) resident-to-resident disparaging and derogatory comments or verbal threats of harm, or (3) resident-to-resident sexual harassment, sexual contact or touching (groping of breasts, genitalia) AND that results in physical harm, pain or mental anguish must be reported to the Department.
IHCA has sought clarification from the Department as to certain threshold factual circumstances that would or would not require reporting. Regarding allegations of verbal abuse, “yelling things like, ‘sit down’, ‘get out of here’, ‘shut up’ would not be abuse. But threats or disparaging comments would be.”
Regarding physical assaults by residents with diminished cognitive status, “The CMS Regional Office (Chicago) has explained that as long as the resident intended the act, it’s willful (regardless of cognitive status). Specifically excluded are acts that are inadvertent or accidental. Otherwise, the act is considered willful, thereby meeting the definition of ‘abuse.’”
For nursing facilities, the reporting requirements under §50.7(3) that requires Department notification “when a facility has knowledgeof a pattern of acts committed by the same resident on another resident that results in any physical injury” still applies, but if the resident-on-resident contact fits the definition of abuse noted above, it must be reported pursuant to F223, even if a report under §50.7 is not required.
D.Reporting Requirements
1.State Requirements: A staff member or employee of a facility or program who, inthe course of employment, examines, attends, counsels, or treats a dependent adult in a facility or program and reasonably believes thedependent adult has suffered dependent adult abuse, shall report thesuspected dependent adult abuse to the department[Iowa Code §235E.2(2)].
2.Federal Requirements:The facility must ensure that all alleged violations involving mistreatment, neglect, or abuse, including injuries of unknown source and misappropriation of resident property are reported immediately to the administrator of the facility and to other officials in accordance with State law through established procedures (including to the State survey and certification agency)[§483.13(c)(2) - F225].
This requirement imposes an obligation on a nursing facility to report abuse, regardless of the perpetrator to the Department of Inspections and Appeals.
The federal requirements, unlike the state statute, don’t allow for a facility as part of its investigation to not report abuse based on a “reasonable belief” that abuse did not occur.
The Departmental Appeals Board in affirming a deficiency relating to a failure to report abuse held in part, “. . . the regulation explicitly requires reporting of the results of all investigations of abuse, not merely those that substantiate abuse. Thus, facilities are not free to view their internal investigations as an opportunity to “pre-screen” whether an alleged or suspected instance of abuse is substantiated or involves specific bad actors, i.e., staff. Indeed, the regulation states that all investigations are to be reported and “if the alleged violation is verified appropriate corrective action must be taken.” 42 C.F.R. § 483.13(c)(4). It follows that the regulation contemplates reporting of the results of investigations even when the alleged violation is not verified. Therefore, the investigation of any alleged or suspected abuse should timely and thoroughly collect relevant evidence both to allow the administrator to determine what corrective measures, if any, are called for and to provide a basis to identify which state officials, beyond the survey and certification agency, should be notified, but not to determine whether to report the investigation results. The nature of the results (i.e., whether abuse is substantiated or whether staff actors or facility practices are implicated based on the investigation) has no bearing on whether those results must be reported.”Singing River Rehabilitation & Nursing Center v. CMS (2009).
E.Timing Requirements for Reporting
1. State Requirements (NF/SNF/RCF/Assisted Living): A staff member or employee required to make a report shall immediately notify the person in charge or the person’s designated agent who shallthen notify the department within 24 hours of such notification or the next business day.
Dependent adult abuse must be reported to the Department by “the person in charge” “within 24 hours of such notification or the next business day” [481 I.A.C. §52.2(2)(a)]. These provisions could essentially allow a facility to report dependent adult abuse up to forty-eight hours after it occurs.
2. Federal Requirements (Nursing Facilities): All allegations of resident abuse MUST be reported to the Department within twenty-four (24) hours from the time the allegation is made. While Iowa regulations provide that dependent adult abuse must be reported to the Department by “the next business day” [481 I.A.C. §52.2(2)(a)], CMS does not recognize the “next business day” provision under Iowa law as applicable to the Federal regulations.
If the 24 hour deadline for reporting abuse falls on a weekend or a holiday, a facility is still required to notify the Department within the 24 hour window by making a report on the on-line system, leaving a message on the abuse reporting hotline at (877) 686- 0027, submitting an e-mail to the Department at or sending a fax to (515) 281- 7106.
F.Where Should the Report Be Made?
1.All abuse, regardless of the perpetrator, must be reported to the Department of Inspections & Appeals. This is a change from earlier protocol which did not require notification to DIA if notification was being made to DHS.
2.If the suspected perpetrator is not an employee or affiliated with the facility through contract (pool or agency workers), but fits the caretaker role (family member, friend, etc.) the report should also be made to the Department of Human Services pursuant to the same 24 hour requirement.
3.If the investigation determines that the abuse constituted a crime (an intentional act that resulted in physical injury or constituted a sexual assault), local law enforcement authorities must be contacted, per the Elder Justice Act. If the resident suffers serious bodily injury, the facility must report the suspicion of the crime immediately, but not later than 2 hours after forming the suspicion. If the reportable event does not result in serious bodily injury, the staff member shall report the suspicion not later than 24 hours after forming the suspicion.
G.Protecting the Resident During Investigation:
State Requirements: Immediately separate the alleged perpetrator from the alleged victim and maintain that separation until the abuse investigation is completed [481 IAC §52.6 481 IAC §58.43(9)].
Federal Requirements: Prevent further potential abuse (protect residents from harm) while the investigation is in progress, [42 C.F.R. §483.13(c)(3)].
This is generally accomplished by suspending the employee. However neither the state nor federal regulations require suspension, only “separation.” Separation is not defined in the state regulations but past practice and protocol has involved establishingprocedures whereby the alleged perpetrator-caregiver is not to have any contact with the resident, including no incidental contact unrelated to direct care (e.g. – keeping the perpetrator out of common areas such as dining rooms and activity rooms where the individuals might come into contact with each other).
The Department has acknowledged that a facility followingcompletion its internal abuse investigation, can rescind an employee suspension, and allow the employee to return to work, as long as the separation described above is maintained until the Department concludes is investigation and issues findings regarding its investigation.
H.Abuse Policy Revisions: Facilities must review their written abuse policies and revise the written policies to address the clarifications relating to abuse reporting noted above, and educate employees on the revisions to abuse policies.
I.Implications of Failing to Report Abuse Allegations
1.Facility Licensure/Certification Implications
2.RN/LPN/CNA/NHA Livelihood Implications (Administrative Liability)
3.Civil Liability (Pursuant to Iowa Code §235B.3(10), a person required by this section to report a suspected case of dependent adult abuse who knowingly fails to do so is civilly liable for the damages proximately caused by the failure.
4.Criminal Liability (Pursuant to Iowa Code §235B.3(10), a person required to report a suspected case of dependent adult abuse who knowingly and willfully fails to do so is guilty of a simple misdemeanor. (Application of OIG Mandatory Exclusion).
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