CMS Requirements of Participation (ROP) Overview of Abuse and Neglect Changes

It is very important to keep in mind our specific Washington State requirements related to mandatory reporting (RCW 74.34), the WACs in Chapter 388-97, and the need for all SNFs to implement the department’s guidance related to abuse and neglect reporting outlined in the Nursing Home Guidelines, AKA “the Purple Book.” It is just as important for facilities to closely examine and adhere to the federal requirements. As a result of the CMS Phase 2 and Phase 3 changes and requirements effective October 2022, there were several additions, clarifying statements, and changes to the F-tags focusing on abuse, neglect, reporting of crimes, and physical restraints. It is imperative to review the State Operations Manual (SOM) F-tags in their entirety, however, some of changes/additions are outlined below.

F600 Abuse/Neglect:

CMS clearly states that not every deficiency at Resident’s Rights, Quality of Care, or Quality of Life will result in a finding of neglect at F600.

Neglect is defined as “the failure of the facility, its employees or service providers to provide goods and services to a resident that are necessary to avoid physical harm, pain, mental anguish or emotional distress.”

On a positive note, CMS has clarified in the new guidance that surveyors should not assume every resident-to-resident altercation results in abuse.
For example, infrequent arguments or disagreements during social interactions (dining room, etc.)

CMS also modified the language related to consent in order to protect a resident’s right to physical intimacy.
The facility must take steps to protect the resident(s) from abuse.
The facility must evaluate the resident(s) capacity to consent.
CMS removed the language, “Residents without the capacity to consent to sexual activity may not engage in sexual activity.”

CMS clearly states that facilities must do the following when abuse is alleged/ identified. The facility must:

Take steps to prevent further potential abuse;
Report the alleged violation and investigation within required timeframes.
Conduct a thorough investigation of the alleged violation; and
Take appropriate corrective action.
In addition, the resident’s care plan must be revised if the resident’s needs change as a result of the incident of abuse.

When a facility has identified abuse, the facility must take all appropriate steps to remediate the noncompliance and protect residents from additional abuse immediately. Failure to take the required steps could result in findings of current noncompliance and increased enforcement action.

CMS updated the deficient practice statement for abuse and neglect, as well as the scope/severity examples. The reasonable person’s concept is applied to these examples.

CMS also added content on past noncompliance that states surveyors must investigate to determine if the facility took appropriate actions and determine the date of substantial compliance related to abuse/neglect.

F607 Develop/Implement Abuse/Neglect Policies:

Information that was previously at F608 can now be found in F607, such as the regulation wording, intent, and related definitions. Also included in F607 is the requirement that the facility must have written policy/procedures that include posting the notice of employee rights in a conspicuous place, the right to file a complaint with the state survey agency if they believe the facility has retaliated against an employee or individual who reported a suspected crime, and how to file such a complaint.

Another key point under F607 is that all SNFs are now required to include QAPI coordination in their policies and procedures for prohibition of abuse and neglect.

CMS expects the facility’s policies and procedures will direct staff on how information is to be shared with the QAA Committee in order for the QAA Committee to have oversight of facility processes and determine whether more systemic actions are necessary related to abuse and neglect prevention.

Facilities must show how cases of abuse are communicated with the QAA committee.

Instances of physical or sexual abuse ALWAYS require corrective action and tracking by QAA.

F608 has been deleted.

F609 Reporting Alleged Violations:

CMS moved the requirements, intent, and related definitions from F608 to F609 which require a facility to develop and implement written policies and procedures related to reporting of crimes and notifying covered individuals (staff) of their reporting responsibilities. This is not a new requirement; it has just been moved.

CMS added language that facility policies and procedures must address reporting requirements and that failure to report even with a policy and procedure in place may indicate the facility’s failure to implement the policy and procedure.

The facility must submit accurate reports of alleged/identified abuse/neglect to the state agency. CMS provides template reporting guides (not required).
Templates provided-Initial Report- Exhibit 358
Follow-up Investigation Report-Exhibit 359

To ensure the accurate reporting of suspected crimes to law enforcement, CMS provides guidance to surveyors about what the facility’s policies and procedures should address. Examples described in the guidance include, but are not limited to, the following:
Orienting new staff to the reporting requirements and assuring that covered individuals (staff) are annually notified of their responsibilities in a language they understand;
Identifying barriers to staff reporting such as fear of retaliation or causing trouble for someone, and implementing interventions to remove barriers and promote a culture of transparency and reporting;
Working with law enforcement annually to determine which crimes are reported;
Assuring that staff can identify what is reportable as a reasonable suspicion of a crime and providing in‐service training; and
Providing periodic drills across all levels of staff and all shifts to ensure that staff understand the reporting requirements.

CMS goes on to state that even in the presence of a policy/procedure, failure of the staff to report a reasonable suspicion of a crime is indicative of the facility’s failure to implement the policies/procedures. For example, CMS notes that when a staff person does not report to law enforcement, the facility may have not provided notification to the employees regarding reporting, staff may be fearful of reporting, or do not want to get others in trouble. Also, the CMS guidance was revised to instruct surveyors to pay particular attention to situations when a covered individual (staff includes the owner, operator, employee, manager, agent, or contractor of the facility) in the facility has not reported a suspected crime to law enforcement. If the covered individual refuses to report or cannot verify that the report was done, the surveyor must consult with his/her supervisor immediately, and the state agency must report the potential criminal incident to law enforcement immediately. CMS also added a deficient practice statement for surveyors to use when writing citations related to the failure to report suspected crimes.

CMS also added information on what facilities must continue to do if the incident or altercation does not meet the criteria to report. The facility must meet requirements related to assessments, care planning by the interdisciplinary team, provide care and services needed to prevent harm, and develop and implement policies and procedures to prevent abuse of residents.

F604-Physical Restraints:

Under Tag F604, CMS clarified when a bed rail is considered a physical restraint. It is a restraint when the bed rail/side rail keeps a resident from voluntarily getting out of bed in a safe manner due to their physical or cognitive inability to lower the rail independently.

There are several changes throughout the Critical Element Pathways for Abuse, Neglect, and Physical Restraints.

SNF Questions? Email Elena Madrid or call at 1 (800) 562-6170, ext. 105.

Posted in Skilled Nursing Facilities, Survey & Regulatory