Circular Letter  Circular Letter - Healthcare Abuse and Neglect

Date:	04/26/2000
Organization:	Bureau of Health Care Safety and Quality Division of Health Care Facility Licensure and Certification
Referenced Sources:	105 CMR 155.00: Patient and resident abuse prevention, reporting, investigation, penalties and registry Chapter 336 of the Acts of 1998 M.G.L. Chapter 111, Sections 72F through 72L

TO: Directors, Home Health Agencies; Directors, Hospice Programs; Directors, Homemaker Agencies

FROM: Paul I. Dreyer, Ph.D., Director

DATE: April 26, 2000

RE: Home Health Agencies, Homemaker Agencies and Hospice Programs Amendments to the Department of Public Health's Regulations at 105 CMR 155.000 Concerning Patient and Resident Abuse Prevention, Reporting, Investigation, Penalties and Registry.

The purpose of this memorandum is to provide you with information and instructions that you will need to implement amendments to 105 CMR 155.000: Patient and Resident Abuse Prevention, Reporting, Investigation Penalties and Registry regulations which became effective on March 17, 2000. These amendments were developed with the assistance of an advisory committee that was convened by the Department to implement Chapter 336 of the Acts of 1998 which amended Massachusetts General Laws Chapter 111, Sections 72F through 72L, commonly called "The Patient Abuse Statute." The regulations set for standards forth the prevention, reporting and investigation of patient and resident abuse, neglect and mistreatment, and the misappropriation of patient and resident property by individuals working in or employed by a home health agency, homemaker agency, hospice program or a long term care facility. A copy of the regulations is enclosed in Attachment A.

Background and Key Provisions

The Patient Abuse Statute was originally enacted in 1980. Its provisions included mandatory reporting of suspected cases of abuse, neglect or mistreatment of residents in long term care facilities ("facilities"), investigation of such cases by the Department, responsibilities of facilities to monitor and train personnel, and measures to ensure confidentiality of reporters' and Department reports.

The amendments to the Patient Abuse Statute and regulations made significant changes and provide for the following:

1. Investigations and Reporting - Expands the Department's authority to include investigations of suspected cases of patient abuse, neglect, mistreatment or misappropriation of patient property by individuals employed by or working for home health agencies, homemaker agencies, and hospice programs, as well as, long term care facilities.
2. Mandatory Reporters - Expands the types of individuals who are mandatory reporters of suspected patient or resident abuse by individuals employed by or working for home health agencies, homemaker agencies, hospice programs, or in long term care facilities.
3. Registry - Requires that the Department establish and maintain a registry which contains: (a) the names of all individuals certified as nurse aides pursuant to federal long term care facility regulations, 42 USC s.1396r, and (b) findings of patient or resident abuse, neglect, mistreatment or misappropriation of patient or resident property made against nurse aides, home health aides or homemakers. This registry was previously established for nurse aides certified to work in Medicare and Medicaid certified nursing homes pursuant to federal regulations. That same registry has been expanded to include findings of patient or resident abuse, neglect, mistreatment or misappropriation of patient or resident property by home health aides, homemakers, and hospice program home health aides.
4. Hearing Procedures - Requires the Department to provide notice and hearing to all nurse aides, home health aides or homemakers accused of patient or resident abuse. Including a provision for intermediate sanctions, such as suspension, probation or warning letters for nurse aides, home health aides and homemakers accused of abuse, neglect, mistreatment or misappropriation of patient or resident property.
5. Agency Responsibilities - Requires that facilities, home health agencies, homemaker agencies, hospice programs and long term care facilities:
   • Adopt and implement written policies and procedures for reporting and responding to suspected cases of patient abuse, neglect, mistreatment or misappropriation of patient property;
   • Investigate all allegations of suspected abuse, neglect, mistreatment or misappropriation of patient property;
   • Review any situation or incident in which a patient suffers physical or psychological injury or harm;
   • Post in the facility and agency offices a notice informing the public and staff of the patient abuse statute and regulations, as well as, procedures for reporting suspected cases to the Department; See enclosed "Important Notice" which should be posted.
   • Contact the "Nurse Aide Registry" prior to hiring an individual who will provide direct care to patients or have access to patients or their property to ascertain if there is any sanction, finding or adjudicated finding of patient abuse, neglect, mistreatment or misappropriation against a prospective employee. If such a finding does exist, the agency or facility is prohibited from hiring the individual during the period of time that the sanction or suspension is in effect, except in circumstances where the individual is working under a probationary sanction where the aide's performance is closely monitored by the employer;
   • Provide orientation and annual in-service training programs for all staff on patient and resident abuse, neglect mistreatment, and misappropriation of patient or resident property.

Reporting Suspected Cases of Abuse, Neglect, Mistreatment or Misappropriation to the Department

Any mandatory reporting individual, as defined in 105 CMR 155.003, is required to immediately make an oral report of suspected patient or resident abuse, neglect, mistreatment or misappropriation of patient or resident property to his or her supervisor or employer whenever he or she has reasonable cause to believe that any patient or resident has been abused, neglected or mistreated or had property misappropriated. Upon receiving such a report, said supervisor or employer shall immediately notify the Department by oral communication, electronically transmitted report or facsimile. To facilitate this reporting, the Department maintains a "Patient Abuse Hotline" [phone] and has developed a Fax Reporting System. Reports submitted via Fax fulfill both the oral and written reporting requirements. Instructions for submitting faxed reports to the Department are enclosed in Attachment B.

Investigations by the Department

In all cases of suspected patient or resident abuse, neglect, mistreatment or misappropriation of resident or patient property, the Division of Health Care Quality will conduct its investigation of the allegation contained in the report. The Department's investigation into the allegations will include, but not be limited to:

• An unannounced visit to the facility, home health agency, homemaker agency, or hospice program;
• An attempt to interview the patient or resident who was allegedly abused, neglected mistreated or had property misappropriated.;
• Notice to the administrator of the facility, or the director of the agency that the Department is investigating a case of suspected patient or resident abuse, neglect, mistreatment or misappropriation of patient or resident property pursuant to the Patient Abuse regulations;
• An evaluation and determination of the nature, extent and cause or causes of any injuries sustained by the patient or resident in question;
• An attempt to identify and interview the person or persons accused of the alleged abuse, neglect, mistreatment or misappropriation of the property of the patient or resident in question;
• An attempt to interview all witnesses to the event;
• An evaluation of the environment in the facility named in the report and a determination of the risk of physical or psychological injury to other residents in the facility; and
• An evaluation of any and all other pertinent facts.

The Department will prepare a written report of its findings and recommendations. The report contains no identifying information relating to any patient or resident, reporting individual or any other person whose right of privacy would be abridged by the disclosure. A copy of the Department's report will be sent to the Attorney General, the reporter of the incident, the facility, home health agency, homemaker agency, or hospice program involved, and to the accused individual. When the Department's investigation results in a valid finding against a nurse aide, home health aide, homemaker or hospice home health aide, the accused aide is notified in writing of his or her right to request a hearing on the matter. A notation is placed against the accused aide's name on the registry. When a valid finding involves a registered or licensed professional, the Department must notify the Attorney General and the appropriate registration board of that finding.

Responsibilities to Contact the Registry Prior to Hiring

The Department maintains a registry of all individuals who have a finding or adjudicated finding of patient abuse, neglect, mistreatment or misappropriation. Agencies and facilities must contact the registry before hiring individuals. Instructions for contacting the registry are enclosed in Attachment C. BE SURE TO COMPLETE AND RETURN THE USER INFORMATION SHEET ON THE LAST PAGE OF ATTACHMENT B. The responsibilities for contacting the registry are as follows:

1. Home Health Agencies, Homemaker Agencies and Hospice Programs:
   All home health agencies, homemaker agencies, and hospice programs shall contact the registry prior to hiring an individual who will provide direct care to patients or have access to patients or their property to ascertain if there is any sanction, finding or adjudicated finding of patient or resident abuse, neglect mistreatment or misappropriation of patient or resident property against the prospective employee.
2. Prohibition on Hiring or Employing Individuals:
   No facility, home health agency, homemaker agency or hospice program shall hire or employ an individual whose name appears in the registry with a finding or adjudicated finding of patient or resident abuse, neglect, mistreatment or misappropriation of patient or resident property, or if a sanction was imposed upon that individual, such individual may not be hired or employed until the terms of such sanction have been fulfilled, except in circumstances where the individual is working under a probationary sanction where the individual's performance is closely monitored by the employer. Furthermore, no facility, home health agency, homemaker agency or hospice program shall hire or employ an individual if such individual has been found guilty of, or pleaded guilty or nolo contendere to or admitted to sufficient facts to support a guilty finding of patient or resident abuse, neglect, mistreatment or misappropriation of patient or resident property in a court of law.

Training

Training on the new regulations is scheduled at the following times and places. Use the enclosed Registration Form to register for a session. Telephone and fax instructions are included on the registration form.

May 10, 2000 Salem State College, Veteran's Hall, Campus Center
9am - Noon Lafayette Street, Salem, MA

May 12, 2000 Federal Reserve Bank - Auditorium (ground floor)
9am - Noon 600 Atlantic Avenue, Boston, MA

May 16, 2000 VNA of Central Mass. Worcester, VNA Headquarters-Auditorium
9am - Noon 120 Thomas Street, Worcester, MA

May 23, 2000 Town of Barnstable, Town Hall Hearing Room
9am - Noon 367 Main Street, Hyannis, MA

Contact the following for assistance

Reporting to the Department: Intake Unit Staff [phone]

Contacting the Registry: Peter Bilodeau [phone]

Training Sessions: Submit registrations by FAX to: [phone]
Phone: [phone]

General Questions: Jean Pontikas [phone]

Enclosures

Attachment A: Patient Abuse Regulations (not available online at this time)
Attachment B: Accessing the Nurse Aide Registry
Attachment C: Fax Reporting Form

Enclosure: Registration Form for Training (not available online at this time)
Enclosure: Important Notice (for posting in the agency)