Elder Justice Act Combats Abuse and Neglect of Elderly Individuals
Legal Alerts
7.12.10
Tucked away in the nearly 2000 pages of the Patient Protection and Affordable Care Act (“PPACA,” commonly referred to as the “health care reform law") is the Elder Justice Act, which principally provides for establishment and funding of programs to combat abuse and neglect of elderly individuals. One section of the Elder Justice Act, however, imposes new and significant notification and reporting obligations upon owners, operators, managers, employees, agents and contractors of long-term care facilities.
If the long-term care facility receives at least $10,000 in federal funds in a year (including Medicare and Medicaid funding), then the owner or operator must notify annually each “covered individual” of that individual’s obligation to comply with the reporting requirements of the Elder Justice Act. For purposes of the statute, a “covered individual” is an individual who is an owner, operator, employee, manager, agent, or contractor of a long-term care facility receiving at least $10,000 in federal funds in a year.
Additionally, each covered individual is required to report to the Secretary of Health and Human Services (or presumably the Secretary’s agent) and to one or more law enforcement entities for the political subdivision in which the facility is located any “reasonable suspicion” of a crime against a resident or individual otherwise receiving services from the facility. If the crime involves “serious bodily injury” (e.g. extreme physical pain, substantial risk of death, protracted impairment or loss of the function of a bodily member, organ or or mental faculty, any injury requiring medical intervention, or certain kinds of sexual abuse), then the report must be made within two hours of forming the “reasonable suspicion.” Otherwise the report must be made within 24 hours of forming the “reasonable suspicion.” A failure to report under the above provisions subjects the obligated individual to severe civil money penalties ($200,000 or $300,000) and possible exclusion from participation in Medicare/Medicaid and other federal health programs. If an individual is excluded, the long-term care facility cannot employ that individual and is subject to significant civil money penalties for doing so.
Long term care facilities also are prohibited from retaliating against any employee for performing “lawful acts,” including acts pertaining to reporting crimes. The facility is again subject to severe civil money penalties for any retaliation. Facilities must post a sign, with such content to be determined by CMS, advising employees of their rights under the Elder Justice Act.
Although no regulations have been published to date to flesh out the obligations created by this section of the Elder Justice Act, the reporting provisions are technically already effective. This leaves open many compliance questions for long-term care facilities, including (a) how to calculate the $10,000 funding threshold; (b) precisely who is subject to the reporting obligation; (c) what actions are reportable crimes; (d) when does a “reasonable suspicion” exist; (e) what level of injury is “serious bodily injury”; (f) what are the mechanics of making a required report; and (g) what conduct constitutes retaliation for “lawful conduct” and what is included within this Act’s definition of “lawful conduct” by an employee. Even though these issues remain open, long-term care facilities should consider how to begin complying with the Elder Justice Act as soon as possible.
If you have questions about how to implement the Elder Justice Act or other provisions of the Patient Protection and Affordable Care Act, please contact Joanne Lax at 248-203-0816, Phyllis Adams at 734-214-7664, or Walter Deitch at 312-627-2183.
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