arkansas office of long term care (oltc) maltreatment

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arkansas office of long term care (oltc) maltreatment
ARKANSAS OFFICE OF LONG TERM CARE (OLTC)
MALTREATMENT REPORTING AND INVESTIGATION PROGRAM
• Protocol (investigation document EMS-762)
was promulgated and issued to all Long Term
Care Facilities (LTC) on November 11, 1993.
• BASIS FOR ARKANSAS PROGRAM:
• Currently Act 1214 of 2015 , Ark. Code Ann. §
12-12-1701; State regulations (LTC 300-306.6.5);
and Federal (42 C.F.R. 4831(c)(1)(ii)(iii) reporting
requirements.
MANPOWER UTILIZATION AND COORDINATION
WITHIN OLTC
• OLTC’s reporting and investigation process is in accordance with 42 C.F.R.
§483.13(c) which is tag F-225. OLTC’s process is supported by federal
regulation, state regulation and state law.
• F-225 states that all alleged violations must be reported immediately to
the administrator, and then to other officials in accordance with state law,
through established procedures (including the State survey and certification
agency).
• Under state regulations, OLTC’s Incident and Accident (I & A) form must
be typewritten, filed out completely and faxed to a required number by 11:00
a.m. the next business day. That is the established procedures required
under F-225.
• The Long Term Care Resident Maltreatment Act (Act 1214 of 2015)
requires facilities to report to the Office of Long Term Care under the
regulations of that office. Reporting to OLTC is not just regulation, it is
Arkansas law!
REPORTING TO OLTC IS NOT JUST REGULATION, IT IS
ARKANSAS LAW!
• Act 1214 requires immediate reporting to the
administrator or designated agent, immediately to
the local law enforcement authority, and to OLTC
pursuant to OLTC regulations.
• Reporting is a three-prong process that ties
federal regulation, state regulation and state law
together such that each one supports the other.
• Also under F-225, the facility must have evidence
that all alleged violations are thoroughly
investigated.
THE FACILITY MUST REPORT AND THE FACILITY MUST
INVESTIGATE
• REPORTING: When the OLTC form DMS-7734 reporting documents
are received by 11:00 a.m. the next business day by fax, they go
through an initial review to check off the routing components and they
are reviewed by RN Managers.
• A copy of all I & A’s are delivered to the OLTC Complaint section
twice daily. After a review by the RN Manager of this section, the I
& A’s are forwarded to the RN Manager of the Maltreatment
section for a second review before being entered into the
Maltreatment Database.
• The Maltreatment section review determines what act of
maltreatment, if any, as defined by Arkansas Law, may have been
committed against a resident. The reviewer also ensures a good
description of the incident is provided. Most importantly, the
reviewer ensures the facility is taking appropriate steps to protect
the resident during the course of the investigation.
REPORTING (FAILED PRACTICE REVIEW):
• Once the I & A has gone through the initial review, a review
by RN managers in the Complaint Section, Maltreatment
Section and Scheduling Section is conducted to determine if a
failed facility practice(s) has occurred. A potential failed
facility practice may be in the lack of thoroughness of the
initial report, such as what the facility is doing to protect the
resident during the course of the investigation. Or, the type of
incident itself may have resulted from a failed practice and
not necessarily the fault of the accused.
• The RN Managers of these three sections consult to
decide if a surveyor will be sent into the facility to further
investigate the incident.
INVESTIGATIONS
• An OLTC Surveyor IS NOT sent to the facility to gather
evidence on the accused. This is the job of the facility per
federal and state regulations.
• OLTC provides the investigation packet that all LTC facilities
in Arkansas must use in their investigation. The investigations
must be mailed to OLTC by the end of the 5th working day.
These facility investigations go through a committee review in
the OLTC, which may include RNs and attorneys, to determine
if there is a preponderance of evidence that the accused
committed maltreatment. Attached are the DMS-7734 (I & A)
with numbered instructions and the DMS-762, the Facility
Investigation Report.
MAJOR COMPONENTS OF THE ARKANSAS OLTC
MALTREATMENT PROGRAM:
• Mandatory next business day reporting is required of all facilities
for any alleged, witnessed or suspected Resident Maltreatment as
defined by Act 1214 of 2015. The promulgated form DMS-7734 (I & A)
must be faxed to OLTC.
• Initial review of the DMS-7734 (I & A) is done twice a day or as
needed. Copies of the I & A are sent to the OLTC Complaint Section for
review by the RN Manager and the Medicaid Fraud Control Unit of
Attorney General’s Office.
• The original I & A is reviewed by the RN maltreatment section
manager and then entered into OLTC maltreatment tracking data
base.
• The I & A is assigned a tracking number and held in a tickler file
awaiting the Facility Investigation Report, known as the DMS-762.
THE OLTC MALTREATMENT INVESTIGATION REPORT
(DMS-762)
• The facility must mail the completed DMS-762 to OLTC by certified mail with a
receipt of delivery by the end of the fifth (5th) working day after the reported incident.
•
•
The OLTC Maltreatment processing includes copying the facility’s DMS-762s and
mailing them to:
•
The Medicaid Fraud Control Unit (MFCU) of the Attorney General’s Office
and
•
The licensing authority, such as the Arkansas State Board of Nursing, if the
alleged perpetrator is licensed or registered.
The Facility Investigation Report (DMS-762) is matched with the original DMS7734 (I & A) reporting document.
•
The data in the maltreatment database is updated to show that the DMS762 was received from facility.
•
The investigation report DMS-762 is assigned in the database to the initial
reviewer of the maltreatment review committee.
COMMITTEE REVIEW AND DETERMINATION…
• …of the DMS-762 maltreatment investigation report is conducted as
follows:
• The Initial Reviewer reviews the facility investigation report to
determine if a preponderance of evidence is present to make a
founded determination against the accused based on the definitions of
the Maltreatment in Arkansas Act 1214 of 2015.
• The Initial Reviewer calls the facility for additional information
such as care plans, MARs for drug cases, CNA training on care
plans, equipment, lifts, etc. The initial reviewer completes the
attached flow sheet with recommendations and assigns the case
by date and tracking number to the second reviewer.
• A Second Reviewer reviews the entire case to determine
agreement with the initial reviewer.
COMPLETION OF SECOND REVIEW
• After the second reviewer completes the case review with
recommendations, the case goes back to the first reviewer
• If both reviewers agree on a preponderance of evidence, a Finding
letter is issued. The case may go to an attorney before the Finding
letters is issued.
• If both reviewers say that a preponderance of evidence doesn’t exist,
then an unsubstantiated letter is mailed to the accused.
• If there is a question of nurse practice, the case goes to the nurse
manager in charge of the Maltreatment Section.
• If reviewers disagree on the evidence, the case goes to an attorney in
Office of Chief Counsel (OCC).
• If the first and second reviewer agrees and the attorney in OCC
doesn’t agree, the case goes to the Director of OLTC for final review
and determination.
A FINDING OF MALTREATMENT IS ISSUED TO ACCUSED
• A formal Finding letter is mailed certified mail
with a receipt to the accused letting the accused
know that the state has found there is a
preponderance of evidence against the accused
for either abuse, neglect, misappropriation of
property or sexual abuse as defined in Act 1214
of 2015.
MALTREATMENT CASE IS TRANSFERRED.
• After the initial Finding letter is issued and mailed, the case is
transferred by the Maltreatment Section Supervisor to one of the
individuals that will represent the state if a hearing is requested.
• The accused has 30 days to request a hearing.
• If a reply from the accused is not received in 30 days from the
date of the letter then a second letter is sent and then
subsequently a third letter.
• If there is no appeal from the accused after the third letter has
been mailed, the accused automatically goes on the Prometric
Arkansas Nurse Aide Registry.
• All three notifications to the accused are mailed certified mail
with a receipt.
APPEAL TO OLTC BY THE ACCUSED
• If the accused appeals, the hearing specialist that the case is assigned
begins the appeals process.
• The appeal is sent to the Office of Hearings and Appeals which is
part of OCC.
• OCC Hearings and Appeals will establish a hearing date and notify
the accused. At that time, an order is written by the Administrative
Law Judge (ALJ) to release the evidence against the accused to the
accused or his/her attorney to prepare his/her defense.
• All hearings are telephone hearings unless requested otherwise.
• The Hearing Specialist decides whether he or she wishes to be
represented by an agency attorney. Normally if the accused has an
attorney, the Hearing Specialist at OLTC will be represented by an
attorney.
FINAL RESOLUTION OF APPEAL BY THE ACCUSED
• If the ALJ finds for the State, a finding of fact
statement upholding the State’s finding will be sent to
OLTC. At that time, the accused is placed on the
Registry and is sent a notification letter by the
Maltreatment Section stating that they have been
placed on the Registry.
• The accused can appeal the administrative
determination to Circuit Court for judicial review.
• If the ALJ finds for the accused a finding of fact
statement will be sent to the OLTC and the accused
will be sent a letter by OLTC stating that they will not
be placed on the Registry.
OFFICE OF LONG TERM CARE MALTREATMENT
DATABASE.
• From the time the DMS-7734 I & A arrives, to
the completion of the Finding process, every
single step, every letter, every time a
document changes hands, where a document
is sent, the current status of the document,
requested information, etc. is all tracked in the
OLTC Maltreatment Tracking Database
MALTREATMENT SECTION INTER-AGENCY AND
DEPARTMENT COOPERATION
• The OLTC Maltreatment Section works well
with and shares information with the OLTC
Complaint Section, Attorney General’s Office,
State Board of Nursing, County Coroners, Local
Police and State Police, or other state and
federal entities that have a legal need to know
of the maltreatment investigations and results.
OFFICE OF LONG TERM CARE MALTREATMENT
TRAINING PROGRAMS
•
OLTC provides training programs on the state and federal regulations and state law regarding the reporting and
investigation of maltreatment in Arkansas Long Term Care Facilities. OLTC provides training to such entities as:
•
Arkansas Healthcare Foundation providing training programs for Administrators in Training (AIT), Director of
Nurses (DON), AITs for Residential Care Facilities, Assisted Living Facilities, Social Workers, and Activity Directors.
•
New OLTC surveyors in training
•
Advocacy Organizations
•
Groups of nursing homes
•
Ombudsmen
•
Nursing Organizations
•
Arkansas Innovative Performance Program
•
State telephone conference hookup on maltreatment
•
Other entities that request a program on maltreatment reporting
•
PowerPoint training programs for Administrator in Training and new OLTC Surveyors are usually three and one-half
hours. Other PowerPoint training may range from one to two hours. This is based on the needs and time of the entity
requesting the training. Handouts depend on the entity being trained.
STRENGTHS OF THE ARKANSAS OLTC MALTREATMENT
PROGRAM
• The DMS-7734, Incident and Accident Reporting Form has to be filled out and faxed to OLTC by
11:00 a.m. the next business day. There must be a thorough description of the incident on the form and
what the facility is doing to protect the resident during the course of the investigation.
• Federal regulations state that facilities must follow state and local laws and the rules and
regulations of the survey and certification agency regarding reporting.
• State Law requires the reporting of any allegation, witnessed event or reason to suspect
Maltreatment to the Office of Long Term Care under the regulations of that office.
•
Any allegation (regardless of dementia level of resident), witnessed event or reason to suspect
must be reported immediately to the Administrator and immediately to the Police. Reporting to
the local law enforcement authority immediately is Arkansas law.
•
This puts the reporting responsibility on the facility and facility staff. The OLTC requires the
report to be typed.
•
There is a series of dates on the DMS-7734 that allows OLTC to see when the incident
happened versus when it was reported.
STRENGTHS OF THE OLTC MALTREATMENT PROGRAM
CONT.’D.
• The DMS-762, Facility Investigation Report requires the facility to obtain
witness statements on the witness statement form, the DMS-762.
• Obtaining the witness statements by the facility immediately provides a
more accurate document while memories are fresh and before
individuals are able to compare notes.
• With this system of gathering witness statements as soon as an
incident happens the OLTC Maltreatment Section has a better
chance of determining whether a preponderance of evidence exist.
• OLTC requires the original witness statements be sent to us and
we prefer them to be handwritten.
• The process OLTC uses puts the burden of the immediate protection of
the resident and an investigation process on the facility and the
administrator, so that surveyors do not have to be sent to the facility in
order to gather a preponderance of evidence to make a Finding decision
against an individual.
COMPLAINT SECTION REVIEW
• The Complaint section receives a copy of all
Forms DMS-7734, Incident and Accident
Reporting Forms. The DMS-7734, I & A, is
reviewed by a Program Manager in the
Complaint section. If the review does not meet
any of the criteria listed below, the I & A goes to
the RN Supervisor over complaints for review
and appropriate action.
REVIEW FOR POTENTIAL FAILED FACILITY PRACTICES
• Is the description of the incident clear and concise?
• Does the facility explain what they are doing to protect
the resident(s) during the investigation?
• Does the facility indicate what steps are being taken to
prevent a reoccurrence, for example, is the facility
doing an in-service regarding the incident?
• If equipment is involved, has the equipment been
removed from service? Is someone else being
consulted to determine the equipment error?
• Could this incident have been prevented by the
facility?
POSSIBLE ACTIONS BY COMPLAINT SECTION
• Call the facility for additional information.
• Notify the Maltreatment section that the
Complaint section wants to see the Facility
Investigation Report, DMS-762, as soon as it comes
in.
• Notify the RN Manager over scheduling that this
incident needs to be looked at as a concern the
next time there is a visit to the facility.
• Set the incident up as a complaint investigation
and assign a priority to the complaint.

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