Investigations:AdiscussionbetweenSDMFCU, DHS, CSP'sandSP’sMarch14,2017
Separatepotentialcriminalmattersfrom purely regulatorymatters
Ifpurely regulatory (DHS/DSS/DOH matter)then lawenforcement probably has norole (minor medicationerror,personnelissue,dietrestrictions)
If more thanpurely regulatory (suchas mattersinvolvingalleged abuseor neglect,theft,fraud,illegaldrug use),thenreportto local lawenforcementand regulatoryagencies,and keepfacility "investigation"to a minimum toavoidtaintingor hinderinglawenforcementinvestigation
Soundseasy,butlotsofgrayareaKellyWellscaseWemust treat allallegationsseriouslyandfollowthefacts wherevertheyleadProvide background informationand yourthoughtsto lawenforcement
Allegation:StaffBob---has beenreportedfor possiblechild abuse to childrennamed J---andR---.Bob hasbeen seenthrowing thechildren onto bed and elbowing them intheir stomachs.Bob continues to work at---even though there isconcern ofchildabuse.
IFUSED,THEACCOMPANYING TOOLIS TO BEUSEDINCONJUNCTION WITH APPLICABLE FEDERAL NURSING HOME REGUALTIONS&ADMINISTRATIVE RULESOFSOUTHDAKOTA
Is theinjury “suspicious” becauseofANYof thefollowing?
The extent of theinjuryThe locationofthe injury (the injury is located in an area not generally vulnerable totrauma)The numberofinjuries observed at one particular point intimeThe incidenceofinjuries over a periodoftime
Is thereSerious BodilyInjury?
IMMEDIATELY notifytheAdministrator* oftheEvent,the 2 HOUR clockstarts.Documentthe Date,Time,and Methodusedfor the notification.REPORT thereasonable suspicion not laterthan 2 HOURS afterforming thesuspicion.
REPORTto:SD DOH COMPLAINT CoordinatorandLOCAL LAWENFORCEMENTCONDUCT athorough internal investigationandSendinfindingsreportwithin5workingdays.
Canthesourceof theinjuryorevent be explained?
Does the eventmeet the reportingcriteria for AllOthers *^ within24Hours
REPORT the initialfindings no laterthan 24hoursafterthediscovery.
CONDUCT athorough internal investigationandsendthereport within5working days totheSD DOH ComplaintCoordinator.
Definitions for those itemswith a *followingitare providedonpage3 of thisdocument.^Otherreportableeventsthatareconsidered within the Administrative Rules of SouthDakota.5working days report– ifaninvestigationisongoing; providethedetailand thosepartiesinvolved.No***Document findings.Notreportableatthistime.
DEFINITIONS–Crime:Section 1150B (b)(1) of the AffordableCareActprovides that a “crime” is defined by law of the applicable political subdivision where a LTC facility islocated.Applicable facilitiesmustcoordinate withtheirlocal law enforcement entities to determine what actions are considered crimes within their political subdivision.Politicalsubdivision–CMSbelieves it would be a city, county, townshiporvillage, or anylocalunitofgovernmentcreatedbyorpursuant to Statelaw.Serious Bodily Injury:Section 2011 (19)(A)ofthe AffordableCareAct providesthat “serious bodily injury” is defined as an injurywith:extreme physicalpain;with the possibility of lossorimpairment of a bodily member, mental faculty, ororgan;a risk ofdeath;orthat may require surgery, hospitalization, orrehabilitation.When in doubt with regard towhetheran injury qualifies as “seriousbodilyinjury” report using the earlier timeline.Abuse:Thewillful infliction of injury,unreasonableconfinement, intimidation, or punishment with resulting physical harm, pain, or mental anguish. This included deprivation of goods or services that are necessary toattainor maintain physical, mental, and psychosocialwell-being.Physical Abuse:Hitting,slapping, pinching, and kicking. Also includes controlling behavior throughcorporalpunishment.From 483.13 (b)(c)Neglect:The failure to provide goods and services necessary to avoid physical harm, mental anguish,ormental illness. From 483.13(b)(c).
Misappropriation of resident property:The deliberate misplacement, exploitation, or wrongful, temporaryorpermanent use of a resident’sbelongingsor money without the resident’s consent. From Administrative Rules of South Dakota(ARSD).AllOthers perARSD:any death resultingfromother than natural causesoriginatingon facility property such as accidents, abuse, negligence, orsuicide;any missing resident – individual away from facilitywithoutstaffknowledgeof departmentorexit time anddestination;any fire with structural damage or where injuryordeathoccurs;any partial or complete evacuationofthe facility resultingfromnatural disaster;orany loss of utilities,suchas electricity, natural gas, telephone, emergency generator, firealarm,sprinklers, and other critical equipment necessary for theoperationof the facility for more than24hours.CONDUCTINGAND DOCUMENTING AN INVESTIGATION-When conducting and documenting an investigation, focus on the “problem.” Clearly identify it, stay on message,sayit clearly, and keepitsimple.Usesimpleterminologywheneverpossible.Answerthefollowing:Who –identify resident(s) involved (pleaseusenamesnotinitials or numbers), staff observersorstaff who may be involved or[+] implicated ([+]please provide Date of hire,SocialSecurity Number,Dateof birth, Address, and Phone contact information, LicensureorCertification information, Any previous disciplinary action, Date of termination if applicable) , familyorother visitors.Review staff schedules to ascertain thatallpossible individuals thatmayhave knowledge of the event areinterviewed.What –describe the event,useallsenses, beobjective.See/Sight – pallor, sweating, deformities,bruises,edema, redness, bodyfluidcolor, pupilreaction.
Feel– dampness, localized heat, localized coldness,pulses.Hear– complaints of pain, moaning, breathing pattern,heartsounds, blood pressure. Smell – fruity odors,fecalorurineodors,foulsmelling drainage, alcoholbreath.When –document the time. Accuracy is critical. If takinginformationfrom the electronic medicalrecord (EMR)ensure,whenentries aremadeat alatertime,staffrecordtheactualtime of the occurrence as theEMRsystem generally time stamps the entrytime.Where–document the location, beasdescriptive aspossible.How –description of how the event mayhaveoccurred with the acquired information from those interviewed if there were no witnesses and/ortheindividual is not a good historian. Do review the resident’s BIMsscore.Why –other particularssuchas care plannotfollowed, staffnotavailable, resident contributing factors, etc. These are areas that may be fruit for litigation,butalso a great opportunity for review of thesystemand education.Conclusion –This is a summary statement that indicates an allegation or suspicion of abuse/neglect was either substantiated ornotsubstantiated. Termination ofanemployee or having them terminate themselves doesnotautomatically indicate whether the provider wasableto substantiate an allegation; for example – With completion of internal investigation, we were able to substantiate the allegation that(name)madeinappropriate advances toward (name), it was ouradministrativedecision to terminate (name’s) employment and the Board of Nursing was notified; theprovidermade changes to a policy/procedure; education/re- education was provided to staff; care plans were reviewed/revised as necessary; a plausible explanation was gained forhowan injury of unknownsourceoccurred, personal property was foundor restitutionwasmade.Inthe event reporting of other reportable events, these aretimeswhere a staff “debriefing” maybe needed and isanopportunity to evaluate systemprocessesand provide a learning/educationopportunity.
When aninjury of unknown sourceoran allegation of a reasonablesuspicionof acrime*has been reported or discoveredbystaffor another individual, a reasonable suspiciondoesnot have to befirst-handknowledge.Attorneysdefine reasonable suspicion as:a legal standard of proof that is more than a hunch but less than probablecause.A reasonable suspicion would include observation, previous experience,andreports by residents and familymembers.In the eventaninjury of unknown source or an allegationofa reasonable suspicion of a crime has been reportedordiscovered;takeimmediate and necessary actions to provide appropriate medical care and appropriate interventions for theresident(s).The seriousness of the event that leads to reasonablesuspicionestablishes two timelimitsforreporting:SeriousBodily Injury* - 2 HourLimitAllOthers*^- Within 24 HourThe reporting timeline is based onclock time,notbusiness hours. After business hours,onweekends and holidays, the report continues to be forwarded to the state survey agency(SSA).The report mustgoto both the SSA and local law enforcement. An individual (facility employee) may reportperpolicy a reasonable suspicion of a crime to the facility administrator (provided an individual has clear assurance the administrator is reporting it), who will then coordinate reporting to theSSAand local law enforcement as required.Thefacilitymay notretaliate against any individual that reports acrime.Either of theabovetimelines also requires a thorough investigation andtheinvestigative findingsforwardedin a report to the SSA within 5workingdays.
Resident-to-ResidentAltercations:In the event a resident-to-resident altercation has been alleged; take immediate and necessary actions to intervene while providing appropriate supervision and monitoring to protect the residentandotherresident(s).Did the residentactwillfully in the altercation?“Willfulmeans that the individual intendedtheaction itself thathe/she knewor should have known could cause physical harm, pain, or mental anguish.Eventhough a resident may have cognitive impairment, he/she could still commit a willfulact.”If NOT a willful act, it is NOT reportable as Abuse at this time. Do investigate, review, andrevisecare plan asnecessary.If the act was willful and resulted in the “infliction of injury, unreasonable confinement, intimidation orpunishmentwith resultingphysical harm, pain, or mental anguish,” this is reportable. Doinvestigateand reportperappropriatetimeline.Fall(s):NOT all falls are reportable. Those falls that involve injury of a serious nature should bereported.If afalloccursand the provider determines there were no injuries at the timebutlater thereisdiscovery of an injury anditis of aseriousnature,thenthe fall should bereported.All falls whether reportable ornotshould reflect a thorough internal investigation.Theinvestigationshouldascertainifthere were injuries, appropriate treatment, and a determination if there may have been contributing factors, including any review or revision of individual care plan or facilitypractices.Youmayreferencethepreparedtool onpage 2 ofthisdocument toassistin determiningtheappropriate timeline for reporting inSouthDakota.Youmayreference page 4 of this document to assistinconducting and documenting a thorough investigation.
SDCL26-8A-3. Persons required to report child abuse or neglected child--Intentionalfailureas misdemeanor.Anyphysician, dentist, doctorofosteopathy, chiropractor, optometrist, emergency medical technician, paramedic,mental health professional or counselor,podiatrist, psychologist, religious healing practitioner,socialworker,hospitalinternorresident, paroleor courtservices officer,lawenforcement officer, teacher, school counselor, school official,nurse,licensed or registeredchildwelfare provider, employeeorvolunteer of adomesticabuse shelter, employeeorvolunteer of a child advocacy organization orchildwelfare service provider, chemical dependency counselor,coroner,or any safety-sensitive position as definedin§3-6C-1, whohasreasonable cause to suspect that a child under the age of eighteen hasbeen abusedor neglected as definedin§ 26-8A-2 shall report that information in accordance with §§26-8A-6,26-8A-7, and 26-8A-8. Any person who intentionally fails to make the required report is guilty of a Class 1 misdemeanor. Any person who knowsorhas reason to suspect that a child has beenabusedor neglected as definedin§ 26-8A-2 may report that information as providedin§26-8A-8.
Mandatory reporting ofabuse,neglect,orexploitation--Violationas
misdemeanor.Any:Physician, dentist, doctor of osteopathy, chiropractor, optometrist, podiatrist, religious healing practitioner, hospital intern or resident,nurse,paramedic, emergency medical technician, social worker,oranyhealthcareprofessional;Psychologist, licensed mental health professional,orcounselor engaged in professional counseling;orState, county,ormunicipal criminal justice employee or law enforcement officer; who knows,orhas reasonable cause tosuspect,that an elderoradult with a disabilityhas beenoris beingabused,neglected, or exploited, shall, withintwenty-fourhours, reportsuchknowledgeorsuspicion orallyorin writing to the state's attorney of the county in which theelderor adult with a disability residesoris present, to the Department of Social Services,orto a law enforcement officer. Any person who knowinglyfailsto make the required report isguiltyof a Class 1 misdemeanor.A person describedinthissectionisnotrequired to report the abuse,neglect,orexploitationofan elderoradult with a disability if the person knows that another person has already reported to a proper agency thesameabuse, neglect, or exploitation that would have been the basis oftheperson's ownreport.
Thankyou!Welook forward to workingwithyou!MFCUstaff:Paul Cremer,DirectorSchelle Wenner,SeniorInvestigatorMike Pease,InvestigatorRonBugay,AuditorLornaWebb,AnalystMedicaidFraudControlUnitOffice ofthe AttorneyGeneralGeorgeS.MickelsonCriminalJusticeCenter1302E.Highway 14,Suite4Pierre, SD57501-8504Telephone:(605)773-4102Fax: (605)773-4106Email:ATGMedicaidFraudHelp@state.sd.us
46:11:03:01. Provider policy on abuse, neglect, and exploitation.Aprovider shall haveapolicy approved bythedivisionwhichprohibits abuse, neglect,and exploitation of aparticipant.Thepolicy shallcontainthefollowing:Definitionsofabuse, neglect,andexploitation pursuanttoSDCL22-46-1;Aprocedure to report tothedivision pursuantto §46:11:03:02;Aprocedure to report totheDepartmentof SocialServices pursuant to SDCL26-8A-3to26-8A-8, inclusive,orSDCL 22-46-7 to 22-46-11,inclusive;Aprocedure foraninternalinvestigation thatincludes:Initiationof theinvestigationwithin 48hoursor thenext business day, whicheverislater;Issuanceofpreliminary investigation findingsto thedivisionwithinseven calendar daysof initiation of theinvestigation;Issuanceof thefinal investigation findingsto thedivisionwithin30 calendar daysof initiation oftheinvestigation;Aprocedure for remediationtoensure healthandsafetyofparticipants;Aprocedure for disciplinaryactiontobetakenif staffhave engagedinabusive, neglectful,or exploitativeactivities;Aprocedure to informtheguardian,theparentifthe participantisunder 18years of age, andtheparticipant'sadvocate,ifany,of the allegedincidentor allegation andany information nototherwiseprohibited by courtorder about any action taken within 24hours after the incidentor allegation,unless theperson isaccusedof theallegedincident;Upon substantiatingtheallegation,aproceduretocommunicate investigation results totheparticipant,to theparticipant's parentifthe participantisunder18 years of age, ortotheparticipant's guardianoradvocate,if any.The provider shall document the actions to beimplemented to reduce thelikelihoodof andprevent repeated incidentsofabuse, neglect, orexploitation;Aprocedure for trainingtheparticipant,theguardianor theparticipant'sadvocate, ifany,andany family membersas identifiedby the participant,upon admission andannually thereafter,onhow to reportto theprovideranddivisionany allegation ofabuse, neglect,orexploitation. The provider shalldocumentthe date, time, andcontent of thistraining;Arequirement thatthetraining include what actions bytheparticipant,the guardian or theparticipant's advocate,ifany, may takewhennot satisfiedwith the actiontakenortheoutcome;Arequirement thatthetraining shall be providedin anaccessible format;andArequirement thatretaliationagainstaparticipant,theparticipant'sparent ifthe participantisunder18 years of age, the participant'sguardianor advocate, if any, isforbidden.Retaliation isalso forbidden againsta whistleblower pursuanttoSDCL27B-8-43.
46:11:03:02. Critical incident reports -- Submissiontodivision.The provider shallgive verbalnoticeofanycriticalincident involvingaparticipant to the division no laterthantheend of thedivision's next businessday or theprovider'snextadministrative business day, whicheveroccursfirst, fromthetime the provider becomes awareofthe incident.Theprovider shall submitawritten critical incident report utilizingthedivision's on-line reporting systemwithinseven calendar days aftertheinitial noticeismade.DDD willbeconductingapresentation on Therap Critical Incident Reports March30th. GERResolutionsforinvestigations will be discussedatthattime.