MAHSA Annual Convention May 2, 2007 Bureau of Health Systems Update Michael Pemble, Director

1. MAHSA Annual Convention May 2, 2007 Bureau of Health Systems Update Michael Pemble, Director Division of Operations Bureau of Health Systems

2. Question: Why do the surveyors not stay in the building until an IJ is removed or corrected? Subsequently, then how can an IJ be called days after the surveyor exited the facility?

3. Answer: • Surveyors are not required to stay in the building until an IJ is removed. • IJs can be called after exit based on review of information obtained during the survey, or from other sources after the survey "exit." • PHC requirement that Division of Operations Director or Nursing Home Monitoring Director be involved in making IJ decision. See MCL 333.20155(20).

4. Question: Why is MPRO the sole agency for Directed POC’s and Directed In-services? Could there not be another agency or persons available as a choice?

5. Answer: • MPRO is the service provider of choice for Directed Inservices and Directed Plans of Correction based on past practice and feedback from BHS managers. • Problems with availability of MPRO remediators or delays in obtaining service should be brought to the attention of the manager that required DIT or DPOC. Special circumstances, e.g. a consultant who is already working with a facility and is a provider preferred person for remediation can be discussed with BHS manager.

6. Question: If Michigan is awarded the opportunity to participate in the QIS survey pilot, how would the state implement this?

7. Answer: Michigan will not participate in pilot project. CMS has announced that Minnesota will be the only State added to the pilot, at this time. See CMS S&C 07-09 for description of the pilot.

8. Question: Why doesn’t the state implement the dining assistant program when other states have successfully provided this added benefit to the residents for years?

9. Answer: The State’s position is it will wait on legislative action.

10. Question: Please explain BHS’s authority to overturn MPRO’s IDR results.

11. Answer: • SOM 7212C(3) NOTE: Informal dispute resolution is a process in which State Agency officials make determinations of noncompliance. States should be aware that CMS holds them accountable for the legitimacy of the process including the accuracy and reliability on conclusions that are drawn with respect to survey findings. This means that while States may have the option to involve outside persons or entities they believe to be qualified to participate in this process, it is the States, not outside individuals or entities, that are responsible for informal dispute resolution decisions. CMS will look to the States to assure the viability of these decision-making processes, and holds States accountable for them.

12. MPRO offers advisory opinion, so BHS does not technically overturn their decision. We don't keep statistics how many times we have rejected MPRO opinion to delete citation. We reject MPRO opinion when we feel that it does not follow regulations or is inconsistent with facts.

13. Question: Why does Michigan report resident to resident allegations when the other states within CMS Region V report only those with serious injury, those requiring medical attention or repeat offenders who harmed a resident previously, etc? Could Michigan follow the other states allegation reporting criteria to reduce the number of intakes for the state in order to more efficiently deal with the volume, timelines of investigations, etc?

14. Answer: CMS has made it clear, as recently as 2/6/07 that resident to resident altercations are to be reported as alleged abuse incidents without any qualification of seriousness of injury. Michigan will follow the regulations as we understand them and as CMS directs. The Facility Reported Incident Log provides an alternative method of reporting non-harm abuse, neglect each time on Forms 362 and 363.

15. Question: A facility was already cited for F-324 on an annual and gave a completion date of 2-18-07. The facility then had a complaint survey obviously prior to the POC date and the complaint team cited the same tag. Why wouldn’t the “Summary Report” just reflect that the facility is already out for F324 and the POC completion date has not been met so either report amended with the example or just stated that facility is working on POC, etc. Why get a double tag like double jeopardy?

16. Answer: There are no SOM provisions addressing this situation. Deficiencies may be cited when found. There is no double jeopardy. Cites are encouraged when a POC is needed because prior cite is different example. In the example, the standard survey covered falls issue, complaint FRI involved falls and elopement. Falls issue was cited as M346, state tag only; elopement cited as F-324 and POC required.

17. Question: Why are surveys unannounced?

18. Answer: Sec. 20155(1) states “A visit made pursuant to a complaint shall be unannounced.” SOM, App. P. “Do not announce SNF/NF surveys to the facility.” SOM 2700. “It is CMS policy to have unannounced surveys for all providers….” “While the unannounced surveys may result in some minor inconveniences, this policy represents changing public attitudes and expectations toward compliance surveys.” Sec. 20155(9) “The department or a local health department shall conduct investigations or inspections, other than inspections of financial records, of a county medical care facility, home for the aged, nursing home, or hospice residence without prior notice to the health facility or agency.”

19. Question: Once a finding of non-compliance opens an enforcement cycle, how does that cycle end?

20. Answer: Compliance Date Determination Compliance can be certified when: • All deficiencies have been corrected, or • The facility is in substantial compliance; and • The facility provides acceptable evidence to establish correction. If the facility is in substantial compliance on the date of the first revisit, the compliance date is automatically the date accepted in the PoC, unless there is evidence that compliance was achieved on either an earlier or later date. If the facility is in substantial compliance on the second revisit, the compliance date is the date observation, record review or other evidence substantiates compliance.

21. Compliance (when correction is verified) is certified as the date of the 3rd or 4th revisit. CMS does not allow a compliance date earlier than the revisit date for the third or subsequent revisits. When more than one deficiency is involved, the date the facility is considered to be in compliance is the latest of the correction dates for the deficiencies. It should be noted that for OBRA enforcement purposes, remedies cease when the facility is either in compliance or in substantial compliance. If deficiencies are not corrected, but yet reduced to substantial compliance level, the substantial compliance date(s) for each deficiency and for the facility overall are evaluated in the same manner as described above. Enforcement remedies remain in effect until all deficiencies are corrected or the facility achieves substantial compliance.

22. Interim Policy for Reporting Alleged Abuse, Mistreatment, Neglect, Misappropriation and Injuries of Unknown Source

23. CMS Reporting Requirements • 42 CFR 483.13(c)(2) The facility must ensure that all alleged violations involving mistreatment, neglect, or abuse, including injuries of unknown source, and misappropriation of resident property are reported immediately to the administrator of the facility and to other officials in accordance with State law through established procedures (including to the State survey and certification agency).

24. 42 CFR 483.13(c)(4) The results of all investigations must be reported to the administrator or his designated representative and to other officials in accordance with State law (including to the State survey and certification agency) within 5 working days of the incident, and if the alleged violation is verified appropriate corrective action must be taken.

25. CMS Notice • Centers for Medicare & Medicaid Services issues S&C-05-09 (12/16/04) Reiterates the reporting of alleged violations and the results of the investigation by nursing homes to the state survey and certification agency as mandated by 42 CFR 483.13(c)(2) and (4). Defines the terms “neglect”, “abuse”, “injury of unknown source” “misappropriation of resident property”, “immediately” and “in accordance with State law.”

26. Complaint vs. FRI Intake History *FY 2007 data through March 31, 2007.

27. Facility Reported Incident Intake History *Projected based on current totals. ** FRI totals for FY2007, through March 31, 2007.

28. Facility Reported Incident Intake HistoryFY 2007Category 3 – Non-Urgent

30. Facility Participation in Facility Reported Incident Log

32. ABUSE, NEGLECT, MISTREATMENT, MISAPPROPRIATION AND INJURY OF UNKNOWN SOURCE INVESTIGATION GUIDE • START HERE WITH AN • ►ALLEGATION OR SUSPICION OF ABUSE, NEGLECT, OR MISAPPROPRIATION OF RESIDENT PROPERTY, OR AN • ►INJURY OF SUSPICIOUS ORIGIN (FROM PAGE 2) • IMMEDIATELY •  Secure resident’s safety •  Assess the resident, provide medical and/or psychosocial treatment as necessary •  Examine the resident’s injury and/or psychosocial changes and document the description in the medical record •  Remove alleged perpetrator (staff, family, or visitor) from contact with all residents and staff pending outcome of investigation •  Take measures to prevent recurrence if alleged perpetrator is a resident • Document date and time injury was discovered in the resident’s medical record •  Notify physician if the injury (physical and/or psychosocial) has the potential to require physician intervention •  Notify the resident’s legal representative if there is a significant change in health status • Immediately (no later than 24 hours) notify the administrator •  Administrator or designee notifies BHS, local law enforcement, and/or other state agencies as required • Immediately (no later than 24 hours) notify BHS of all allegations by one of the following methods: 1) complete the BHS-OPS-362 online submission form found on the BHS website, 2) fax the BHS-OPS-362 form, or 3) call BHS to report followed by a fax of the completed BHS-OPS-362 • Facility Incident Report - 24 Hours (BHS-OPS-362)

33. INVESTIGATE •  Document date and time of all notifications per facility policy •  Interview and/or obtain statement from person reporting allegation or suspicion •  Interview and/or obtain statement from victim/resident •  Interview and/or obtain statement from alleged perpetrator •  Interview and/or obtain statements from potential witnesses as determined by the scope of the investigation •  Review the resident’s medical record for relevant information (diagnosis, history, similar injuries, etc.) •  Review materials and complete investigation (refer to abuse investigation protocol and facility policy) • WITHIN FIVE WORKING DAYS OF INDCIDENT •  Report the results of investigation to the administrator •  Report the results of investigation to BHS on the BHS-OPS-363 form and submit by fax with supporting documentation •  Initiate corrective measures (if applicable) to prevent recurrence • Facility Investigation Report - 5 Working Days • (BHS‑OPS-363) • NOTE TO PROVIDERS USING THE FACILITY LOG: •  Incidents and findings that involve harm are reported on the BHS-OPS-362 and BHS-OPS-363 forms and recorded on the facility log. •  Incidents and findings that do not involve harm are recorded on the facility log only.

34. INJURY OF UNKNOWN SOURCE (IUS) DETERMINATION The source of injury is known AND abuse or neglect is alleged or suspected; return to #1 on Page 1 of the Investigation Guide and proceed with immediate action, investigation and report of alleged abuse/ neglect finding. 1. Was the injury observed by any person or explained by the resident? RESIDENT INJURY (source to be investigated) YES NO The director of nursing (or designated licensed staff) should determine the scope of investigation based on the nature of the injury and professional judgment with the following, "Is the injury suspicious:  A. Because of the extent or location of the injury (e.g., the injury is located in an area not generally vulnerable to trauma), or  B. Due to the number of injuries observed at one particular point in time or the incidence of injuries over time?"

35. 2. Is there a suspicion that abuse/neglect may have occurred? (Box A or B checked) Return to # 1 on Page 1 of the Investigation Guide and proceed with immediate action, investigation and report of alleged abuse/neglect finding. YES NO • Document summary of conclusion of investigation. • Review the resident’s plan of care and revise as necessary to prevent recurrence of injury. •  Complete determination within 24 hours of incident; no report to BHS is necessary if answers to questions 1 and 2 are “NO.”

36. MICHIGAN DEPARTMENT OF COMMUNITY HEALTH BUREAU OF HEALTH SYSTEMS ABUSE ELEMENTS GUIDELINE ELEMENTS OF ABUSE INCLUDE: 1. A RESIDENT TO RESIDENT, STAFF TO RESIDENT OR VISITOR TO RESIDENT ABUSIVE ACT THAT IS WILLFUL; OR 2. NEGLECT; 3. (AND) PHYSICAL HARM, PAIN OR MENTAL ANGUISH A. EXAMPLES OF ABUSIVE ACTS ARE: -- HITTING, -- SLAPPING, -- KICKING, -- UNREASONABLE CONFINEMENT, INVOLUNTARY SECLUSION, -- INTIMIDATION, -- DELIBERATE INFLICTION OF PAIN INTENDED AS CORRECTION OR PUNISHMENT, -- PHYSICAL THREATS, -- USE OF ORAL, WRITTEN, OR GESTURED LANGUAGE THAT WILLFULLY INCLUDES DISPARAGING OR DEROGATORY TERMS TO RESIDENTS OR THEIR FAMILIES, -- HUMILIATION, HARASSMENT, THREATS OF PUNISHMENT OR DEPRIVATION, -- SEXUAL ABUSE, SEXUAL HARASSMENT, SEXUAL COERCION, OR SEXUAL ASSAULT, UNWELCOME TOUCHING OF A SEXUAL NATURE, REQUEST FOR SEXUAL FAVOR, -- INTENTIONALLY WITHHOLDING FOOD, CARE, MEDICATIONS, ASSISTANCE, -- FAILURE TO PROVIDE GOODS AND SERVICES NECESSARY TO AVOID HARM, MENTAL ANGUISH, MENTAL ILLNESS, -- SEPARATION OF A RESIDENT FROM OTHER RESIDENTS OR OTHER CONFINEMENT AGAINST THE RESIDENT’S WILL.

37. B. EXAMPLES OF PHYSICAL HARM, PAIN OR MENTAL ANGUISH ARE: -- CUTS, SKIN TEARS, BRUISING, PUFFINESS, TENDERNESS OF THE SKIN/MUSCLE, -- SPRAINS, -- FRACTURES, -- BROKEN BONES, -- ALL BURNS, -- ANY INJURY THAT IMPAIRS FUNCTION OF ARM, LEG, HAND, -- VISIBLE EMOTIONAL DISTRESS; WITHDRAWAL OR FEAR C. “WILLFUL” MEANS DELIBERATE OR INTENTIONAL, NOT ACCIDENTAL. D. INSTANCES OF ABUSE OF ALL RESIDENTS, EVEN THOSE IN A COMA, CAUSE PHYSICAL HARM, PAIN OR MENTAL ANGUISH. E. USE OF DISPARAGING AND DEROGATORY TERMS CAN BE ABUSE REGARDLESS OF AGE, ABILITY TO COMPREHEND, OR DISABILITY OF RESIDENT.

38. RULES 1. INCIDENTS ARE REPORTABLE ON BHS-OPS-362 IF THEY INCLUDE ELEMENTS FROM “A” AND “B”, I.E., AN ABUSIVE ACT AND HARM. THESE INCIDENTS ARE ALSO REPORTED ON THE FACILITY LOG. 2. INCIDENTS THAT INCLUDE ELEMENT “A” BUT NOT “B” ARE RECORDED ONLY ON THE FACILITY LOG, I.E., THERE IS NO “HARM” TO RESIDENT. 3. INVESTIGATION RESULTS ON BHS-OP-363 ARE REQUIRED IF A BHS-OPS-362 REPORT IS FILED. THE INVESTIGATION RESULTS ARE ALSO SUMMARIZED ON THE FACILITY LOG. 4. INVESTIGATION RESULTS FOR NON-HARM ALLEGATIONS ARE REPORTED ONLY ON THE FACILITY LOG. NOTE: TO PROVIDERS NOT PARTICIPATING IN “THE INTERIM SYSTEM OF REPORTING ABUSE, NEGLECT, MISTREATMENT AND MISAPPROPRIATION OF PROPERTY,” ALL INCIDENTS AND FINDINGS CONTINUE TO BE REPORTED ON THE BHS-OPS-362 AND BHS-OPS -363.

39. PAST NON-COMPLIANCE To cite past non-compliance, all three (3) of the following criteria must apply: 1) The facility must have been out of compliance with a regulatory requirement at the time the incident occurred. 2) The non-compliance must have occurred after the exit date of the last standard survey and before the current survey.

40. PAST NON-COMPLIANCE(CONTINUED) 3) There must be specific evidence that the facility corrected the non-compliance, at the time of the incident, and is in substantial compliance at the current survey. Past compliance evidence must show that the facility identified the (alleged) deficiency, developed and implemented corrective action following the incident.

41. BHS Website Links • Sample Facility Reported Incident log http://www.michigan.gov/document/mdch/bhs_FRI_log_3-22-07_191638_7.doc • Abuse and Neglect Investigation Guide http://www.michigan.gov/documents/mdch/bhs_Abuse_and_Neglect_Investigation_Guide_191625_7.doc • Abuse Elements Guideline http://www.michigan.gov/documents/mdch/bhs_ABUSE_ELEMENTS_CHECKLIST_191628_7.doc