United States: Nursing Facilities Still Struggle With Abuse Reporting Requirements

Last Updated: October 17 2014
Article by Jonathon E. Cohn

* The following alert was originally published in California Healthcare News (CHN). To read it on the CHN website, click here.

Last month, the Office of Inspector General (OIG) published a report entitled, "Nursing Facilities' Compliance with Federal Regulations for Reporting Allegations of Abuse or Neglect." The report's purpose was to determine the extent to which nursing facilities reported allegations of abuse, as well as the extent to which such allegations were reported correctly. According to the report, in 2012, 85% of the nation's nursing homes reported almost 150,000 incidents of abuse or neglect. The OIG found that 53% of the incidents were correctly reported; that 61% of nursing facilities maintained documentation supporting compliance with the reporting requirements; and that 76% maintained appropriate policies and procedures for reporting allegations and investigation results. The OIG concluded: "It is both required and expected that nursing facilities will report any and all allegations of abuse and neglect to ensure resident safety." The OIG then recommended that the Centers for Medicare and Medicaid Services (CMS) reissue guidance clearly describing the reporting requirements and "reiterate in its guidance that all allegations of abuse or neglect must be reported to the State survey agency, as required by Federal law."

The OIG's conclusions are not new. Historically, its audits of abuse reporting and investigations have concluded that the nation's nursing homes are either underreporting; reporting, but failing to report pursuant to federal standards; and/or inadequately investigating when reports are made. Because the OIG considers the problem to be significant, it implores CMS to take action to correct the problem by reissuing prior guidance.

Certainly, everyone in the nursing home business — owners, operators, and staff, as well as most of the patients and families they serve — understand the importance of reporting abuse. So will reminding the industry of something it already knows do any good? The answer to that may depend on the reason for the problem, i.e., the reporting percentages that the OIG clearly believes are too low. Is it that facilities are intentionally underreporting? Is it that the governing regulations are too vague to give the facility adequate and meaningful notice of when a report is necessary? Is it that a zero tolerance policy for any abuse, suspected or otherwise, by the state and federal enforcement agencies leads to data that tends to reflect underreporting, even if some of the regulations are vague? It is hard to know exactly where the answer lies. While each of these factors may play some role in the OIG's findings, a significant problem with the data and the OIG report may lie with the methodology utilized.

The OIG characterized the incidents of abuse/neglect as falling into five different categories. Four of the categories were abuse (50%); misappropriation of property (15%); neglect (12%); and mistreatment (4%). And the fifth category, constituting almost 20% of all cases of abuse in 2012? "Injuries of unknown source," or said another way, unexplained physical injury.

Given that the figures in the OIG report reflect significant noncompliance, the fact that 20% of all cases are attached to such a subjective category raises the next — and very important — question: When is it fair to conclude that an unexplained physical injury is abuse? The answer depends on the presenting injury, the thoroughness of the investigation, and the facility's interpretation of the investigation results and governing regulations. But this may be easier said than done, as suggested by the following examples:

A non-communicative nursing home patient on blood thinner medication, with no history of bruising or unexplained injury, is sleeping with side rails up to prevent falling out of bed. The resident is restless during sleep and is observed to move around. In the morning the resident has bruising around both eyes. The nursing assistant who has been assigned to the resident for months is a good employee with no history of any problems or discipline.

Is this unexplained physical injury abuse or the unfortunate result of self inflicted injury resulting from the resident banging himself against the side rails at night? And if the bruising is self-inflicted, does it constitute reportable neglect, even if "side rails up" is part of the current care plan?

Here is another example:

A nursing home resident with severe osteoporosis and osteoarthritis is undergoing physical therapy. After a session of PT, the resident complains that the therapist was rough. Within a few days, some warm swelling is noticed on her hip. An X-ray reveals a minor hip fracture.

Same question: Is the unexplained physical injury abuse because the physical therapist overdid it, or is it the result of a spontaneous hairline fracture due to osteoporosis? If it turns out that the fracture was caused by handling during PT, should it be reported?

And finally:

A nursing home resident has a history of falling at multiple facilities over the course of almost a year. At the resident's current facility, he sleeps on a low air mattress only a few inches above the floor to mitigate the risk of injury from falling out of bed. One morning, he is found off his mattress on the floor. Although the treating physician insists that sliding off the mattress could not have injured the resident, an MRI reveals the resident has suffered a subdural hematoma. However, the scan is inconclusive regarding the age of the hematoma.

Is this unexplained physical injury reportable as abuse?

All of these examples were taken from real cases. In each case, the state survey agency took enforcement action against the facility for failing to report the incident as abuse, even though the facility, after a thorough investigation, concluded no abuse or neglect occurred. The tension between underreporting and over reporting pervades the OIG report, as it does the industry as a whole. The solution is unclear and may not exist. The regulators and elder rights groups insist that any injury, even the most minor skin tear, should be reported as abuse, since almost any injury to a nursing home resident is abuse. Obviously, this approach would be far from optimal, unduly burdening not only facility operations, but also state and federal regulators, who are already struggling to keep up with large case loads. Underreporting, on the other hand, poses an unacceptable risk to the nation's frail and elderly nursing home population, as well as to facilities that wish to be compliant.

Of course, there are facilities that under report or ignore the reporting requirements altogether. It happens all the time. But there are also plenty of situations where a facility is cited even though it conducted a full and fair investigation and reasonably concluded that the injury did not constitute abuse.

CMS agreed with all the OIG's recommendations in its report, so the industry can expect updated or reissued guidance soon. Perhaps in its next round of guidance, CMS will provide additional direction to assist nursing homes in complying with the reporting requirements.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions