Elder Abuse: Federal Requirements for Oversight in Nursing Homes and Assisted Living Facilities Differ
Released: 2019-09-18T00:00:00

Letter

Background

Care Provided in Nursing Homes and Assisted Living Facilities

Nursing homes and assisted living facilities provide important long-term care to vulnerable individuals in institutional or residential settings. Specifically, nursing homes provide care to elderly and disabled individuals, many of whom have physical and cognitive limitations requiring skilled nursing care. Assisted living facilities provide a residential alternative to nursing home care for individuals who prefer to live independently but need assistance to maintain their independence. Like nursing homes, they may provide residents with a variety of services to assist with activities of daily living, such as bathing and dressing, but the facilities are generally not licensed to provide 24-hour skilled nursing care and typically offer a more limited range of medical care. As we reported in our January 2018 report on CMS’s oversight of assisted living facilities under the Medicaid program, the demand for assisted living services, which offer the benefit of community living, is expected to increase as a result of the aging of the nation’s population, increased life expectancy, and older adults’ desire to remain in the community. Additionally, the cost of nursing home care for an individual generally exceeds the cost of assisted living facility services, further incentivizing a shift among consumers and payers to assisted living for elderly individuals, including those with increasingly complex health needs who would otherwise need nursing home care.

Long-Term Care Facility Oversight

Oversight of nursing homes is a shared federal-state responsibility. Federal law imposes both a comprehensive set of quality standards that nursing homes must meet to participate in the Medicare and Medicaid programs, and federal and state oversight responsibilities to enforce these standards. CMS, which is charged with implementing these standards and conducting federal oversight, contracts with state survey agencies to perform both routine inspections—known as standard surveys—and conduct investigations of elder abuse incidents, including complaints and facility-reported incidents. CMS provides guidance implementing statutory and regulatory requirements to protect residents from elder abuse in its State Operations Manual, which specifies requirements for reporting, investigating, and notifying law enforcement about elder abuse in nursing homes. CMS regional offices monitor state compliance with federal requirements for nursing home oversight.

Generally, states establish their own oversight requirements for assisted living facilities. These facilities are largely overseen by state agencies within, for example, the state health or aging departments; however, when assisted living facilities provide services to Medicaid beneficiaries, they are also indirectly subject to CMS oversight through the agency’s oversight of state Medicaid agencies. As we have previously reported, states can provide Medicaid coverage for assisted living services under multiple authorities, but most commonly states use an HCBS waiver under section 1915(c) of the SSA. Under these waivers, CMS requires states to develop a quality assurance system that monitors beneficiary health and welfare—including tracking and responding to incidents that may cause harm to a beneficiary’s health and welfare, such as elder abuse. States must demonstrate to CMS that they are meeting these quality assurance obligations in their waiver renewal reports, typically submitted about 2 years before an HCBS waiver is scheduled to end. States must also report summary information annually to CMS on any health and welfare deficiencies occurring under their HCBS waivers. CMS regional offices oversee state compliance with waiver requirements.

In addition to state survey agencies, state Medicaid agencies, and the agencies that license and regulate assisted living facilities, there are other entities charged with protecting nursing home and assisted living facility residents from elder abuse. These agencies’ roles and missions can vary by state. For example, Adult Protective Services (APS) programs in each state are generally responsible for identifying, investigating, resolving, and preventing abuse of older adults, and such programs may investigate complaints of elder abuse in nursing homes and assisted living facilities. Additionally, Medicaid Fraud Control Units and local law enforcement can also play a role in investigating elder abuse. Consequently, incident management may be coordinated among multiple separate agencies.

Federal Requirements Specify Elder Abuse Reporting, Investigation, and Notification in Nursing Homes and Direct States to Establish Assisted Living Facility Requirements

Federal requirements include those for nursing homes and state survey agencies specific to reporting, investigating, and notifying law enforcement of elder abuse in nursing homes. For example, federal requirements specify the time frames within which nursing homes must report alleged elder abuse to state survey agencies and, similarly, specify time frames for state survey agencies to report elder abuse to CMS. In contrast, there are no similar requirements for assisted living facilities and, instead, states must establish their own policies to ensure the reporting and investigation of elder abuse in assisted living facilities covered by Medicaid. (See fig. 1 for federal requirements for reporting, investigating, and notifying law enforcement about elder abuse in nursing homes and assisted living facilities.)

As illustrated in figure 1, there are key differences between federal requirements for reporting, investigating, and notifying law enforcement about elder abuse occurring in nursing homes compared to assisted living facilities. CMS officials told us that the difference in requirements between nursing homes and assisted living facilities reflects the different regulatory relationship between the agency and the two facility types. According to CMS officials, CMS has direct regulatory authority over nursing homes, but does not have direct authority over assisted living facilities. As noted, states are largely responsible for establishing their own policies for overseeing the reporting and investigation of abuse in assisted living facilities. (See app. I for profiles of selected states with HCBS waivers regarding elder abuse reporting, investigating, and notification.) Differences in federal requirements include the following: Reporting. Federal law and CMS policy define specific time frames for nursing home staff and state survey agencies to report incidents of abuse that occur in nursing homes, respectively, and CMS requires states to establish their own reporting time frames for assisted living facilities serving HCBS waiver participants. Nursing homes must ensure that allegations of elder abuse are reported to the state survey agency immediately, but no later than 2 hours after the allegation is made if the incident involves serious bodily injuries and within 24 hours if it does not. In addition, state survey agencies must report to CMS all complaints and certain facility-reported incidents of abuse through a computer-based complaint and incident tracking system and immediately alert CMS regional offices when an especially significant or sensitive incident occurs that attracts public or broad media attention. In contrast, CMS requires state Medicaid agencies that pay for care in assisted living facilities through HCBS waivers to establish their own required time frames for reporting incidents. Consequently, reporting time frames and processes for assisted living facilities can vary by state. For example, Connecticut requires incidents to be reported to the state Medicaid agency and Adult Protective Services within 2 business days, while Oklahoma requires that initial incident reports are submitted within 1 business day.

Investigation. CMS prescribes investigation time frames and priority categories for incidents occurring in nursing homes and requires states to establish their own time frames and priority categories for incidents in assisted living facilities. CMS requires state survey agencies to assess reports of elder abuse in nursing homes and assign a priority investigation status based on the seriousness of the allegations. The required investigation time frames are tied to the priority status. For example, if the allegation indicates that there continues to be an immediate risk of serious injury, harm, impairment, or death of a resident unless immediate corrective action is taken, the survey agency must initiate an onsite investigation within 2 business days of receiving the report. CMS also requires nursing homes to have written policies and procedures for conducting internal investigations of suspected elder abuse and to submit findings from these investigations to the state survey agency within 5 business days of the incident. In contrast, CMS does not prescribe investigation time frames or define priorities for incidents occurring in assisted living facilities; instead, CMS requires that state Medicaid agencies with HCBS waivers establish their own policies for prioritizing reports of abuse and initiating investigations in assisted living facilities. Consequently, investigation time frames and prioritization can vary by state. For example, Connecticut does not specify a process for prioritizing incident investigations in its HCBS waiver, but officials told us the state requires the Medicaid program to initiate an investigation immediately; whereas South Dakota requires face-to- face contact with a victim within 24 hours if the incident is life or health-threatening.

Family or Legal Guardian Notification Although the Centers for Medicare & Medicaid Services (CMS) requires facilities to notify a resident’s representative of a deterioration in the resident’s condition, CMS does not require nursing homes, assisted living facilities, state survey agencies, or state Medicaid agencies to notify a victim’s family or legal guardian of alleged elder abuse. However, CMS’s guidance for nursing homes notes the importance of family or legal guardian notification. Specifically, CMS guidance requires facilities to take actions to prevent further harm from occurring to a victim of alleged elder abuse and cites law enforcement notification, as well as family or legal guardian notification as examples of protective measures facilities may take to comply with that requirement. In addition, CMS requires states to develop a policy for notifying participants, family, or legal guardians of the findings of any critical incident investigations under its home and community-based services waiver program. CMS officials told us family or legal guardian notification is generally a state responsibility, and state officials told us that it is largely a facility responsibility governed by the facility’s policies. Some states include family or guardian notification requirements in state guidance on mandatory reporting of elder abuse. In interviews with stakeholders representing consumers and elder abuse investigators we learned that family notification can both help but also pose some privacy challenges.

Law enforcement notification. Although federal law requires nursing homes to establish policies for ensuring that law enforcement is notified of elder abuse that occurs in their facilities, and CMS policy requires state survey agencies to notify law enforcement of substantiated findings of elder abuse that occur in nursing homes, these actions are not required when a similar incident occurs in an assisted living facility. Furthermore, CMS also does not require state Medicaid agencies to establish their own law enforcement notification requirements for assisted living facilities as part of the state’s HCBS waiver agreements. CMS and state officials told us that, generally, state agencies coordinate with law enforcement regardless of where the abuse occurs. Some states also require law enforcement notification as part of their state mandatory reporter laws. (See app. I for descriptions of selected state mandatory reporter laws.) For example, Connecticut requires Medicaid waiver program staff members to inform law enforcement of all suspected crimes, including abuse. Both GAO and HHS-OIG have identified, among other things, gaps in notifying law enforcement about abuse in nursing homes and recommended that CMS make changes to help ensure that nursing homes and state survey agencies notify law enforcement.

In the course of our review, we found states may align certain requirements for investigating, reporting, and notifying law enforcement about elder abuse in assisted living facilities with federal requirements for nursing homes. Officials from all three selected states in our review told us they apply certain federal nursing home requirements and time frames to assisted living facilities when overseeing reports and investigations of alleged elder abuse. For example, officials from Oklahoma and South Dakota told us they align or are in the process of aligning time frames within which assisted living facilities are required to report incidents of elder abuse to state authorities with the time frames federally required for nursing homes, and said that alignment reduces confusion, especially among facilities that offer both types of residential care.

Given its attenuated role in overseeing the reporting, investigation, and law enforcement notification of elder abuse in assisted living facilities, CMS officials told us the agency is taking steps to gather and disseminate best practices to help states better manage their response to elder abuse incidents in assisted living facilities. Specifically, officials told us that CMS has initiated an effort to more closely examine how states operate their incident management systems, which are used to track reports and investigations of elder abuse in assisted living facilities covered by their HCBS waivers. In May 2018, CMS surveyed states requesting information on how those states operate an incident management system for their HCBS waiver programs to track reports and investigations of elder abuse. CMS officials said they will take information learned through the survey as well as through on-site reviews that the agency has been conducting in five states since June 2019, to develop best practices and technical guidance on collecting and reporting critical incidents.

Agency Comments

We provided a draft of this report to HHS for review and comment. HHS noted that federal oversight of nursing homes and assisted living facilities is not directly comparable given the differences between HHS’s statutory authority to oversee both facility types. HHS noted that although CMS’s oversight of assisted living facilities is more limited, CMS works in partnership with states—through providing guidance, technical support, training, and oversight of states’ quality reporting—to ensure the safety of Medicaid beneficiaries in assisted living facilities. We recognize that CMS is operating in different statutory frameworks with respect to both nursing homes and assisted living facilities, and we have noted the distinction in our report. HHS further noted that CMS is undertaking efforts to strengthen federal oversight of nursing homes and states with HCBS programs, including through addressing our past recommendations.

HHS comments are reproduced in appendix III. HHS also provided technical comments, which were incorporated as appropriate.

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If you or your staff have any questions about this report, please contact me at (202) 512-7114 or at dickenj@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. GAO staff who made key contributions to this report are listed in appendix IV.

Appendix I: Summary of Selected States’ Requirements for Reporting, Investigating, and Notifying Law Enforcement about Elder Abuse in Assisted Living Facilities

We reviewed state-level requirements for reporting, investigating, and notifying law enforcement about elder abuse in three selected states that cover services in assisted living facilities under their Home and Community-based Services (HCBS) waivers—Connecticut, Oklahoma, and South Dakota. These states are collectively responsible for safeguarding as many as 16,800 assisted living residents—2,751 of whom are covered by Medicaid—from elder abuse. All three states have mandatory reporting requirements that typically require various identified health care providers and facility staff to report suspected elder abuse to adult protective services or law enforcement, regardless of the setting in which the victim was abused or whether the victim is an HCBS waiver participant who would be protected under the Centers for Medicare & Medicaid Services (CMS) program requirements. Further, the states developed guidance for their HCBS programs that establishes additional reporting, investigation, and notification requirements—beyond their mandatory reporting law requirements—that caregivers, facilities, program staff, and state agencies must follow in response to incidents that occur to residents receiving services under Medicaid waiver programs. Selected information about assisted living facilities and state- level requirements for each of the three states is summarized in figures 2 through 4.

Appendix II: Summary of Selected Federal and State Audits of Oversight of the Reporting, Investigation, and Notification of Law Enforcement about Elder Abuse in Nursing Homes and Assisted Living Facilities

GAO has issued reports reviewing the Centers for Medicare & Medicaid Services’ (CMS) oversight of the health and welfare of residents in nursing homes and assisted living facilities. For example, selected GAO reports from approximately the past 5 years included a review of the incidence of abuse in nursing homes and a review of what is known about the incidence of abuse in assisted living facilities. Reports often included key recommendations. (See table 1.)

In addition to GAO’s audits of federal oversight of nursing homes and assisted living facilities, the Office of Inspector General within the Department of Health and Human Services (HHS-OIG) routinely audits a broad range of both the Centers for Medicare & Medicaid Services’ (CMS) and states’ oversight activities related to long-term care facilities. We identified three HHS-OIG reports issued between 2014 and 2018 that provide examples of HHS-OIG’s examinations of the reporting, investigation, and notification of law enforcement of elder abuse in nursing homes. (See table 2.) Although the specific scope of these reports varied, common findings included gaps in notifying law enforcement. For example, HHS-OIG examined Medicare claims data to identify cases where hospital staff had identified potential abuse and found that nursing homes failed to report many of these incidents to state survey agencies or notify law enforcement despite federal and state requirements and recommended that CMS provide training, clarify guidance, and track referrals to law enforcement.

State auditors may also audit their states’ oversight of nursing homes and assisted living facilities. We identified nine reports issued by state auditors between 2014 and 2018 that examined their states’ oversight of elder abuse reporting and investigation across both settings. (See table 3.) Although the scope of individual reports across the states varied, state auditors identified instances of state entities not complying with state or federal requirements for a variety of reasons—including weaknesses in policies and procedures, resource constraints, and information management challenges—and recommended improvements. For example, in 2014 California state auditors found that thousands of complaint investigations—including over 300 classified as immediate jeopardy—were left open for almost a year, in part because the state did not specify time frames for completing investigations.

Appendix III: Comments from the Department of Health & Human Services

Appendix IV: GAO Contact and Staff Acknowledgments

GAO Contact

John E. Dicken, (202) 512-7114 or dickenj@gao.gov.

Staff Acknowledgments

In addition to the contact named above, Karin Wallestad (Assistant Director); Jasleen Modi (Analyst-in-Charge); and Elise Pressma made key contributions to this report. Also contributing were Thomas Garloch, Cathy Hamann, Laurie Pachter, and Jennifer Whitworth.