The Patient Protection and Affordable Care Act of 2010 (Public Law 111-148) established the Elder Justice Act of 2009 (EJA) reporting requirements in Section 1150B of Title XI of the Social Security Act. The Centers for Medicare & Medicaid Services (CMS) issued and revised S&C 11-30-NH on June 17, 2011 and August 12, 2011, entitled, "Reporting to Law Enforcement of Crimes Occurring in Federally Funded Long-Term Care Facilities" (attached). This All-Facility Letter (AFL) provides information concerning compliance with these new requirements.

Effective Date: These instructions take effect immediately.

Reporting Suspicion of a Crime: The EJA requires specific individuals in long-term health care facilities (LTHCFs) to report any "reasonable suspicion" of crimes committed against "any individual who is a resident of, or is receiving care from, the facility." (42 U.S.C. §1320b-25(b)(1)).

Applicability: The EJA reporting requirements are applicable to LTHCFs as defined in 42 U.S.C. §1397j(15) that receive Medicare and Medicaid funding under the Social Security Act, and according to S&C: 11-30-NH also Hospices that provide services at LTHCFs and Intermediate Care Facilities for the Mentally Retarded (ICFs/MR). The EJA does not supersede the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA) for the "long term care facilities" defined in Welfare and Institutions Code Section 15610.47. The reports required by the EJA must be submitted to at least one local law enforcement agency of jurisdiction and the Department of Public Health Licensing and Certification Program (L&C). An incident in a skilled nursing facility that results in a report of "elder abuse" to the Ombudsman may also result in an EJA report to L&C and local law enforcement.

Processing Reports about Suspected Crimes: L&C will process EJA reports using existing CMS and State policies and procedures for reporting incidents and complaints. Until CMS issues EJA specific regulations, L&C will only cite facilities for violations of existing statutes and regulations.

Covered Individual Reporting: Each covered individual is responsible to ensure that his or her individual reporting responsibility is fulfilled. Multiple covered individuals, each of whom has a reporting responsibility, may file a single report to the local L&C district office that includes information about the suspected crime. L&C will treat multiple reports concerning the same incident as a single complaint incident.

Any LTHCF that received at least $10,000 in Social Security funds during the preceding year must annually notify each "covered individual" of their obligation to report to L&C and at least one local law enforcement entity "any reasonable suspicion of a crime," as defined by local law, committed against an individual who is a resident of, or is receiving care from, the LTHCF. A "covered individual" is each individual who is an owner, operator, employee, manager, agent, or contractor of the LTHCF (42 U.S.C. §1320b-25(a)(3)).

Covered individuals must timely report any reasonable suspicion of a crime against a resident of, or who is receiving care from, a LTHCF. If the events causing the reasonable suspicion result in serious bodily injury, the report must be made immediately after forming the suspicion (but not later than two hours after forming the suspicion) (42 U.S.C. §1320b-25(b)(2)(A)). For example, if a covered individual observes events that cause serious bodily injury at 1:00 am on Sunday morning, the report to L&C and at least one law enforcement entity must take place by 3:00 am.

If the events that cause the reasonable suspicion do not result in serious bodily injury to a resident, the covered individual shall report the suspicion not later than 24 hours after forming the suspicion (42 U.S.C. §1320b-25(b)(2)(B)).

Covered individuals are subject to a civil money penalty and can be excluded from participation in any Federal health care program if they fail to meet the reporting obligations of the statute (42 U.S.C. §1320b-25(b)). LTHCFs that employ such an excluded individual become ineligible for Federal funds for the time the excluded individual is employed. LTHCFs are also subject to a civil money penalty or exclusion sanctions for retaliating against any employee who makes or is taking steps toward making a lawful report (42 U.S.C. §1320b-25(d)(2)). CMS guidance about the civil money penalty component of the EJA is not yet complete.

LTHCF Responsibilities

All Medicare or Medicaid participating LTHCFs must:

• Determine annually whether the facility received at least $10,000 in federal Social Security funds during the preceding fiscal year (42 U.S.C. §1320b-25(a)(1));
• Annually notify each covered individual of that individual's reporting obligations if the facility determines that it received at least $10,000 in such funds (42 U.S.C. §1320b-25(a)(2));
• Conspicuously post a notice for its employees specifying the employees' rights, including the right to file a complaint under the EJA. The notice must include a statement that an employee may file a complaint with L&C against a LTHCF and prohibits retaliation against an employee as specified above, as well as include information with respect to the manner of filing such a complaint (42 U.S.C. §1320b-25(d)(3)), and;
• Not retaliate against an individual who lawfully reports a reasonable suspicion of a crime under the EJA. The facility may not discharge, demote, suspend, threaten, harass, or deny a promotion or other employment-related benefit to an employee, or in any other manner discriminate against an employee in the terms and conditions of employment because of lawful acts done by the employee, or file a complaint or a report against a nurse or other employee with the appropriate state professional disciplinary agency because of lawful acts done by the nurse or employee (42 U.S.C. §1320b-25(d)(1)).

A facility that effectively implements the EJA is advised to:

• Review existing facility policies and procedures to ensure adherence to existing CMS and State policies and procedures for reporting incidents and complaints;
• For example: A facility should already have policies and procedures in place to report abuse, neglect or misappropriation of resident property. During the course of a standard survey or complaint investigation, the identification of a possible crime may trigger a review of existing policies and procedures.
• Coordinate with the facility's State and local law enforcement entities to determine what actions are considered crimes in their political subdivision, and;
• Develop policies and procedures for EJA compliance that include prohibiting retaliation against any employee who makes a report, causes a lawful report to be made, or takes steps in furtherance of making a lawful report pursuant to the requirements of the statute. Facilities are reminded that their procedures should include the retention of proof that reports under the EJA were properly submitted.
• Facilities could use the Form SOC 341(Report of Suspected Dependent Adult/Elder Abuse) for reporting EJA incidents. However, EJA reporting applies to any individual who is a resident of, or is receiving care from, the facility and not just the elderly or dependent adults. Further, while many of the fields on the SOC 341 are required under state law, the EJA doesn't specify any specific information that must be reported. In addition, the timeframes for reporting an EJA incident differ from the EADACPA. Also note that the EJA is not limited to the crimes listed on the SOC 341. Similarly, a facility is not prohibited from using a form SS 8572 (Suspected Child Abuse Report) to report an EJA incident if they are mindful of the EJA differences.
• A copy of California Penal Code Section 368 that is applicable to EADACPA reporting is attached to illustrate the difference with the EJA. Most significantly, the EADACPA provisions only apply to incidents perpetrated upon elderly or dependent adults.

Facilities are responsible for following all applicable laws. The California Department of Public Health's failure to expressly notify facilities of statutory or regulatory requirements does not relieve facilities of their responsibility for following all laws and regulations. Facilities should refer to the full text of all applicable sections of the Health and Safety Code and Title 22 of the California Code of Regulations.

If you have any questions, please contact your respective L&C district office.

Sincerely,

Original signed by Debby Rogers

Debby Rogers, RN, MS, FAEN
Deputy Director
Center for Health Care Quality

Attachment:  California Penal Code 368