SURVEY AND REGULATORY UPDATE |
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ASSISTED LIVING INSPECTION PROCESS: INFORMAL DISPUTE RESOLUTION |
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When an assisted living provider receives a Statement of Deficiencies (SOD) from DSHS, there is an option to informally dispute the citation(s) and/or enforcement action(s). This article outlines the methods involved in disputing citations.
Informal dispute resolutions (IDR) can be requested and conducted to correct misinformation, provide clarification to a citation, suggest a different section of WAC or RCW be cited to better depict the nature of the failed practice, or to suggest elimination of the citation all together.
When receiving the SOD, the facility administrator should read it carefully, and preferably more than once. For each citation, ask the following questions:
- Is the information accurate?
- Do the findings reflect what actually happened?
- Are the residents, staff, and/or collateral contacts correctly listed in the citation?
- Are there pieces of information missing that would lend to a different outcome?
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Is it a strong citation? DSHS staff use three data collection methods to determine failed practice: observation, interview, and record review. If a citation only includes, for example, record review, the inclusion of observation and interview data may have led to a different outcome.
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Is this issue cited in the correct area? Sometimes the WAC section and subsection don’t match the findings and would better be situated in a different area of the WAC or RCW.
Because the SOD will be posted on the DSHS website for three years, it warrants efforts to ensure the content of the document is accurate. If it is not, the facility administrator can make a written request for an IDR within 10 calendar days of receiving the SOD. The cover page of the SOD provides instructions on how to request this meeting.
Currently IDRs are conducted by DSHS staff who are unaffiliated with the licensing and complaint investigation teams. Your written request for IDR should include the following:
- The date of the SOD
- The specific citations you are planning to IDR
- The method of IDR preferred (face-to-face, telephone conference, or documentation review)
The meeting itself is an opportunity to provide additional information via written documentation and/or oral evidence to dispute the citation(s). The DSHS IDR staff person will ask clarifying questions. No immediate decisions will be made at the meeting; the administrator will be notified of the outcome of the IDR via telephone and written letter.
More information on preparing for an IDR, expectations during the meeting, and responsibilities after the meeting can be found here. If you have questions related to assisted living regulations, inspections, or SODs, contact Vicki McNealley via email, or call her at (800) 562-6170 extension 107.
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SKILLED NURSING: REVIEW OF REPORTING REQUIREMENTS FOR SNFs |
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There are multiple reporting requirements that pertain to a facility, covered individual, and mandated reporter. A facility’s lack of an effective system to ensure prompt reporting on behalf of the facility and mandatory reporters can often result in significant outcome to the facility including citations and enforcement action, but more importantly the lack of prompt reporting may result in ongoing and repeated incidents of abuse, neglect, or exploitation.
One of the foundational elements to ensuring an effective and prompt reporting system is understanding the multilayered state and federal requirements for both the facility as an entity, employees, and any “covered individuals.”
The Code of Federal Regulation (CFR) 483.12 (c) Freedom from Abuse, Neglect, and Exploitation requires the facility to immediately report all alleged violations involving abuse, neglect, exploitation, or mistreatment, including injuries of unknown source and misappropriation of resident property, to the administrator of the facility and to other officials, including the State Survey Agency in accordance with State law through established procedures. The facility must also report to the Administrator and the State Agency results of investigations within five working days. More information can be found under F609, here.
In addition to the above requirement, Section 1150B is a section of the Social Security Act requires the reporting of any reasonable suspicion of a crime committed against a resident of, or an individual receiving care from a long term care facility. These reports must be submitted to at least one law enforcement agency of jurisdiction and the State Survey Agency (SA) per the provisions in section 6703 of the Affordable Care Act of 2010, part of the Elder Justice Act of 2009. More information regarding the requirement can be found under CFR 483.12(b), F608 here.
Section 1150B (d) of the Act also prohibits a long term care facility from retaliating against any “covered individual” who makes such a report. “Covered Individuals” who fail to report under Section 1150B (b) of the Act shall be subject to various penalties, including civil monetary penalties. A “covered individual” is defined in section 1150B (a)(3) of the Social Security Act as anyone who is a/an:
- Owner,
- Operator,
- Employee,
- Manager,
- Agent, or
- Contractor of a Medicare or Medicaid certified nursing facility, ICF/ID, or hospice.
What are the Different Requirements for Reporting of Suspected Crimes Versus Alleged Violations?
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Any reasonable suspicion of a crime against a resident |
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- All alleged violations of abuse, neglect, exploitation, or mistreatment, including injuries of unknown source and misappropriation of resident property
- The results of all investigations of alleged violations
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Who is required to report? |
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Any covered individual, including the owner, employee, manager, agent, or contractor of the facility |
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State Agency (SA) and one or more law enforcement entities for the political subdivision in which the facility is located (i.e., police, sheriff, detectives, public safety officers, corrections personnel, prosecutors, medical examiners, investigators, and coroners) |
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The facility administrator and to other officials in accordance with State law, including the SA and the Adult Protective Services (APS) where state law provides for jurisdiction in long term care facilities. |
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Serious bodily injury - immediately but not later than two hours after forming the suspicion.
No serious bodily injury - not later than 24 hours
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All alleged violations - immediately, but not later than:
- Two hours if the alleged violation involves abuse or results in serious bodily injury
- 24 hours if the alleged violation does not involve abuse and does not result in serious bodily injury
Results of all investigation of alleged violations within five working days of the incident
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The state of Washington requirements/regulations outline the facility requirements, as well as the individual mandated reporter requirements. According to the Washington Administrative Code (WAC) 388-97-1620 (7) General Administration, the nursing home must report to the local law enforcement agency and the department (DSHS) any individual threatening bodily harm or causing a disturbance which threatens any individual’s welfare and safety. The facility must also identify, investigate, and report incidents involving residents according to department established nursing home guidelines. Additionally, the facility must report to local law enforcement and DSHS in accordance with WAC 388-97-1640.
The mandated reporting requirements are outlined in the statute, RCW 74.34 Abuse of Vulnerable Adults. The facility and mandated reporters MUST IMMEDIATELY notify the department and law enforcement as directed in WAC when there is the following:
- Reasonable cause to believe that a vulnerable adult has been abandoned, abused, neglected, financially exploited, or a resident's property has been misappropriated, the individual mandatory reporter must immediately report the incident to the department.
- Reason to suspect that a vulnerable adult has been sexually or physically assaulted, the individual mandatory reporter must:
- Immediately report the incident to the department.
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Notify local law enforcement in accordance with the provisions of chapter 74.34 RCW.
Under RCW 74.34.053, it is a gross misdemeanor for a mandated reporter to knowingly fail to report as required under this section; and a misdemeanor for a person to intentionally, maliciously, or in bad faith make a false report of alleged abandonment, abuse, financial exploitation, or neglect of a vulnerable adult.
Where Do You Report?
Reports to the state agency (SA) per the federal requirements and to the department (DSHS) per the state requirements are to be made to the Residential Care Services (RCS) Complaint Resolution Unit (CRU), via the following methods:
- Phone (800) 562-6078
- Fax (360) 725-2644
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Online
Most facilities are aware of the Nursing Home Guidelines, also known as the “Purple Book.” The Purple Book is written and published by the department and is an excellent resource and guide for reporting and investigation. While it is a guide, facilities must comply with the guide based on WAC 388-97-1620. Additional definitions related to what is reasonable cause to believe, probable, reason to suspect, etc., can be found in the Purple Book.
Calling the hotline demonstrates an effective, responsive system to prevent and address abuse/neglect/exploitation and events/incidents that affect residents’ lives. If you have questions or would like additional information about the skilled nursing survey process, please email Elena Madrid or call her at (800) 562-6170, extension 105.
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303 Cleveland Avenue SE, Suite 206 | Tumwater, Washington 98501
Tel (800) 562-6170
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